Lynch v Commissioner of Police, NSW Police Force
[2014] NSWCATAD 36
•26 March 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Lynch v Commissioner of Police, NSW Police Force [2014] NSWCATAD 36 Hearing dates: 22 July 2013 Decision date: 26 March 2014 Before: S Montgomery, Senior Member Decision: The Respondent's decision to revoke the Applicant's category G firearms licence is set aside and the licence is reinstated.
Catchwords: firearms licence - revocation - whether walls provide a substantial barrier to forced entry - meaning of substantial Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Firearms Act 1996
Firearm Regulations 2006Cases Cited: Australian Education Union v Department of Education and Children's Services [2012] HCA 3
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355Category: Principal judgment Parties: Graham Frederick Lynch (Applicant);
Commissioner of Police, NSW Police Force (Respondent)Representation: T Hartmann, Hartmann & Associates, solicitors (Applicant)
J Mattson, Bartier Perry (Respondent)
File Number(s): 133015
reasons for decision
This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).
The Applicant seeks a review of the Respondent's decision to revoke the category G firearms licence that he held under the Firearms Act 1996 ("the Act").
The Respondent's decision to revoke the Applicant's licence was made on the ground that the Applicant had not complied with conditions of his licence as prescribed under subsection 20(e) of the Act and clause 34(7)(c) of the Firearm Regulations 2006 ("the Regulation").
The Applicant is a collector on antique firearms. He stored his firearms in his garage ("the garage") that was adapted for that purpose and as an entertainment area in 2011. The issue in dispute is whether the walls of the garage satisfy the requirements of clause 34(7)(c) of the Regulation.
The legislation
The licensing and possession of firearms and ammunition is governed by the Act and the Regulation. Section 3 of the Act provides the principles and objects of the Ac. Section 3 relevantly provides:
3 Principles and objects of Act
(1) The underlying principles of this Act are:
(b) to improve public safety :
(ii) by promoting the safe and responsible storage and use of firearms , and
(2) The objects of this Act are as follows:
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
Subsection 20(e) of the Act provides:
Firearms collector licences-special conditions
20 Firearms collector licences-special conditions
Without limiting the conditions to which a firearms collector licence may be subject, any such licence is subject to the following conditions:
(e) any firearm that is part of the collection can only be kept on premises approved by the Commissioner, and must be stored in accordance with the standards prescribed by the regulations for the purposes of this section, ...
Section 39 of the Act specifies:
39 General requirement
(1) A person who possesses a firearm must take all reasonable precautions to ensure:
(a) its safe keeping, and
(b) that it is not stolen or lost, and
(c) that it does not come into the possession of a person who is not authorised to possess the firearm.
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.
(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.
Clause 34(7) of the Regulation provides:
34 Firearms collections
.(7) For the purposes of section 20 (e) of the Act, the following standards are prescribed for the storage of firearms in a firearms collection:
(a) any ammunition for any firearm (whether or not forming part of the collection) must not be kept in the area or room in which the firearms are stored, unless the ammunition is stored in a separate locked container,
(b) the area or room in which the firearms are stored must be part of a permanent building with secure locks on all entrances,
(c) the area or room must have solid walls that provide a substantial barrier to forced entry,
(d) any window in the area or room must be covered by a security screen,
(e) doors leading into the area or room must be made of solid material or be reinforced by steel,
(f) each such door must be fitted with a "dead latch" type lock, or be fitted with a hasp/barrel bolt and padlock,
(g) door hinges must be concealed or the hinge pins must be welded to prevent them from being punched out,
(h) if the firearms are to be displayed outside of their locked containers at any time, the licence holder must be physically present in the area or room at that time.
(8) The standards set out in subclause (7) are in addition to the requirements of Part 4 of the Act.
The Garage
The garage is in good condition and is generally compliant with Australian Standards. Building work to adapt the garage was carried out by Durhams Building Pty Ltd which operated under the Hotondo Homes franchise. James Durham was the superintendent/overseer of the works. The present director of Durhams Building Pty Ltd is Denis Hinchliffe.
Mr Durham and Mr Hinchliffe both provided reports in relation to the structure of the garage.
It does not appear to be in dispute that the exterior of the wooden framed garage comprises cyprus pine weatherboard panels of 20 mm thickness. Those panels are placed over a pre-existing fibro cladding of 7mm in thickness attached to the wooden frame with coiled nails. The pre-existing fibro cladding was in good condition. The inside of the garage is lined with gyprock of 10 mm thickness. Insulation batts are placed in the gaps between the studs of the wooden frame. The total thickness of the wall is 138 - 139 mm. The studs and noggins of the wooden frame are each approximately 100 mm x 50 mm. The studs are at 600 mm centres and the noggins are approximately 1.2 metres above the bottom of the frame. The floorplate, roof plate and noggins are all 100mm x 50mm. The floor plate and roof plate extend the full length of the building on each side and at the end. Angled braces set into the framework are each 75 mm x 50 mm.
The roof is of new corrugated iron with the iron screwed to the rafters. The rafters are of 50mm x 100mm dimensions at 900mm centres braced on each side. Above the rafters, longitudinally along each side of the roof are steel battens 900mm apart and running the length of the roof with dimensions of 42mm x 22mm, with one at the top, one at the bottom and one intermediate batten.
The ridge capping and the metal roof is fixed in place by three rows of roofing screws, screwed into the battens so that there are about 14 screws holding each sheet of metal roofing onto the battens. Insulation Batts are inserted beneath the rafters and the ceiling then lined with gyprock.
The garage has a concrete floor. The structure is connected to the house in that the roof of the house extends over part of the roof of the garage, with a short walkway underneath. A carport is erected in front of the garage.
A series of photos in evidence show the presentation of the garage and its proximity to the Applicant's house. A diagram indicates its position relative to surrounding structures.
The Applicant's firearms are stored in a safe within the garage. In addition, the Applicant advised the Respondent that he has taken the following steps in an endeavour to satisfy the requirements:
additional bolts to his rifle safe bolted to the floor, trigger locks on all pistols, pistols in approved pistol safe, steel mesh both inside and outside the only window to the room, and a solid core door with interior hinges inside and a deadlock. The room itself is an interior room only accessible through other locked doors.
the residence ... is surrounded on 3 sides by metal fences, which cannot be easily scaled, having a height of 5 or 6 feet to the sides and rear with access at the rear blocked by other structures and access at the front blocked by a driveway, which when the premises are occupied, accommodates one or two motor vehicles and when the premises are unoccupied, is blocked by a locked gate which is also the pedestrian entrance. The gate is a substantial metal structure.
It is my understanding that there is no issue raised in relation to the compliance of any window and doors for the purposes of clause 34(7) of the Regulation. The issue is limited to whether the garage walls provide a substantial barrier to forced entry.
The Respondent's contention
The Respondent relies on:
- the documents filed in these proceedings pursuant to section 58 of the ADT Act;
- the Statement of Sergeant Nigel Turney dated 13 April 2013; and
- an expert report from Mr. Paul Evans dated 17 April 2013.
The Respondent says that the garage does not provide a considerable obstacle to powerful and vigorous efforts to gain entry to the garage and, therefore, it does not provide a substantial barrier to forced entry. The Respondent says that it is possible that criminals could gain forced entry to the garage by prying away the weatherboard exterior and then breaking their way through the fibro and gyprock walls with relative ease. The Respondent contends that it would be relatively easy and physically possible for a criminal to use a crow bar or other tool to jimmy or pry away the weatherboard panel that is nailed into the pre-existing fibro and wooden frame on the outside of the garage.
In support of this contention the Respondent relies on an Expert Building Report provided by Paul Evans of Principal P A Evans & Associates Pty Ltd, Building and Management Consultants ("the Evans Report").
The Evans Report
Mr Evans gave oral evidence to the Tribunal at the hearing and was cross-examined.
Mr Evans has been involved in the Building and Construction Industry for over 40 years in various roles from an Apprentice to a Building Consultant. He has experience in constructing weatherboard structures and also has experience in demolishing weatherboard structures. He provided that Evans Report in regard to the garage.
The Evans Report supports the Respondent's contention that the garage does not comply with the requirements of clause 34(7)(c) of the Regulation. Relevantly, the report states:
3.0 COMMENTARY AND DISCUSSION
3.1 In accepting that the construction details of the garage are as described by Mr Durham are correct, it is quite clear to me that that this type of construction is not a substantial barrier to a forced entry. There would be no doubt that a determined person could remove the Cyprus Pine cladding and penetrate the fibrous cement sheeting and plasterboard of the internal linings. This could all be quite quickly and easily achieved with just one simple tool, a claw hammer.
3.2 Once the cladding is removed in strips in the same way as it is installed, an intruder is then only faced with the barrier of very brittle fibre cement sheeting that readily shatters with minor impact plus soft insulation and plasterboard which can easily broken by hand. This would leave a point of entry and exit of approximately 600 mm wide and 1200mm high which could easily accommodate a man passing through the opening with little or no difficulty.
3.3 There are a number of alternative building elements and construction options that could be readily regarded as less easily breeched and provide a significantly greater level of security for the storage of any kind including firearms. These include brickwork, blockwork or similar masonry products that are readily available and the brickwork option is referred to by Mr Hinchcliffe and Mr Durham.
3.4 A commonly used building process in residential construction (such as the property in question) is the building system simply using brickwork construction as this has a number of advantages compared to the timber frame clad in fibre cement and timber siding.
3.5 Whist I have described how easily a timber frame clad construction can be readily breeched, the same cannot be said for a clay brick construction as when the brickwork is constructed to the Australian Standard (AS3700) and cured, it forms a monolithic structure as a single panel with both flexural strength and a level of rigidity that cannot be easily breeched even with the benefit of some power tool and certainly not a claw hammer. A blow with a large hammer will just bounce off a brick wall and not breech it.
3.6 A further consideration can be the long term durability of brickwork, by comparison with the timber frame clad fibre cement and timber siding as constructed. Notwithstanding, the current construction could readily be breeched as I have described and would not provide a substantial barrier to forced entry. The timber based construction is more susceptible to becoming weakened over time from uncontrolled moisture, termite attack or fire. It is an established fact that none if these difficulties have any significant effect brickwork or on the masonry alternatives available.
3.7 Apart from my general building experience and being familiar with the serviceability and material and their reaction to force applied to the building elements used in this construction, these opinions are further confirmed by my many years of experience in remedial building works that frequently require the demolition of building elements as part of the construction process.
4.0 SUMMARY AND CONCLUSIONS
4.1 The subject garage in its as-built condition would appear to be fit for its intended purpose when described as a garage when considered for the use of storing vehicles, this structure as a garage should be quite serviceable for that use.
4.2 The notion that this garage in its current form is capable of providing a substantial barrier to forced entry is not a reasonable proposition. This structure may well be structurally adequate in the sense that that it is weatherproof and a basically sound structure based on the documents provided to me.
4.3 The current form of construction is extremely vulnerable to forced entry as the components utilised in the construction are almost as easily deconstructed as they were constructed at the time of building and upgrading. There is little to deter a determined person intent on accessing the subject property by a forced entry.
4.4 The proposition that a construction of a timber frame clad in fibre cement with timber siding and internal plasterboard could in anyway be considered equal to a brick veneer structure in deterring a substantial barrier to forced entry, is not in my professional opinion a conclusion a reasonably competent and experience builder could come to.
Mr Evans did not accept that individual bricks are easily removed from a brick veneer wall. He also disputes the assertion that a weatherboard wall is comparable to a brick veneer wall. He maintained that Cyprus is a soft timber and does not have the strength of hardwoods. He disagreed that it would be hard to prise off the weatherboards with a jemmy or crowbar. He agreed that, if installed correctly, there will be minimal gap in which the claw or a claw hammer can be jammed under the board to allow the boards to be prised off. However, he said that it is possible to do so because it is soft timber and a bullet head nail does not provide a lot of resistance.
Under cross-examination Mr Evans conceded that Cyprus is a durable, hard wearing timber that has low shrinkage and good nail holding properties.
Mr Evans conceded that it is possible to saw the mortar from around a brick. It can be done with an angle grinder and a chisel. Mr Evans also conceded that there is no mortar at the top of a brick wall, however he disagree that the top bricks are easily removed. However, he conceded that it is possible to dislodge a brick and that once one is dislodged, it gets easier to dislodge others. He agreed that if a brick is hit with a hammer it might break the brick rather than the mortar.
Mr Evans conceded that the weatherboard were nailed at each stud using a nail gun and coiled shank nails. This provides resistance to pull out and therefore the weatherboards do not work loose.
Mr Evans agreed that fenestrated style weatherboards are difficult to dislodge.
Mr Evans made no comment on the adequacy of the garage roof.
Sergeant Turney's evidence
Sergeant Turney gave oral evidence to the Tribunal at the hearing and was cross-examined.
Sergeant Turney is the Licensing Supervisor for the Respondent's Wagga Wagga Local Area Command. In that role he looks after licensing matters that involve regulated industries, this includes firearms licence holders and firearms dealers.
Sergeant Turney gave evidence in regard to break and enter crimes in the Wagga Wagga Local Area Command. Data for the period 2007-2013 shows that 38 break, enter and steal incidents were recorded. A total of 43 firearms and firearms accessories have been stolen during these incidents. This included 38 firearms made up of rifles and shotguns. Twenty of these firearms have been stolen in the last three financial years.
In Sergeant Turney's opinion, the garage does not comply with clause 34(7) of the Regulation in it does not have solid walls (including roof) that provides a substantial barrier to forced entry.
He says that in his experience as a police officer, he has seen and is aware of, break and enter crimes being committed by using various implements and tools to obtain access to premises. He is aware of criminals using crow bars, power tools, screwdrivers, bolt cutters and wire cutters to access premises. Based on his experience, it is his view that it would be relatively easy and physically possible for a criminal to use a crow bar or other tool to jimmy or pry away the weatherboard panel that is nailed into the pre-existing fibro and wooden frame on the outside of the garage. He says that he has heard of criminals removing weatherboard to gain access to premises more often than he has ever heard of criminals cutting through, or putting a hole in, a brick wall or a steel reinforced wall.
He provided an example of persons prising away steel panels of a work shed in order to gain access to firearms stored within the shed and to remove the firearms. He says that this and other examples support his view that a well prepared criminal could readily prise away the weatherboard with the correct implements and then the fibro and gyprock provides no real barrier to forced entry with offenders being able to get through the fibro cladding and gyprock sheeting with minimum ease.
Under cross-examination Sergeant Turney conceded that he has not inspected the garage. He also agreed that he is not aware of crime statistics for Temora. He agreed that his statistics related to the whole Wagga Wagga Local Area Command. He accepted that Bureau of Crime statistics indicating that there were two incidents involving firearms and accessories in the period January 2009 to December 2012 could be right. He was unable to provide further assistance in regard to the examples he had given of persons accessing a shed in order to gain access to firearms.
The Respondent's submissions
Mr Mattson provided submissions on behalf of the Respondent. He contends that a high standard is set by the Regulation and clause 34(7)(c) focuses on the physical quality. He submits that 'solid' must be given some meaning. He further submitted that different categories of licence have different requirements. The standard with respect to collection is very high.
Mr Mattson argues that, with some effort, weatherboards can be prised away. Clause 34(7)(c) requires the walls be able to meet the test of providing substantial resistance to forced entry. They must be able to withstand a vigorous and powerful effort and provide a barrier against that. In his submission, the weatherboards do not meet that test.
Mr Mattson argued that little weight should be given to Mr Thompson's evidence. He submitted that there is a question about whether he is an 'expert'. His expertise is in quantity surveying; the research for his report was provided by his colleague; he hadn't read the Australian Standard when he came to his conclusions.
In contrast, he submits that strong weight should be given to Mr Evan's evidence.
Mr Mattson submitted that the comparison with brick veneer is not a good comparison. He says that the Regulation is about preventing criminal access to the premises. In that regard, he says that Sergeant Turney's evidence addressed how resourceful criminals can be.
The Applicant's case
The Applicant gave oral evidence to the Tribunal at the hearing and also relies on:
- A statement by James Durham
- A report by Denis Hinchcliffe ("The Hinchcliffe Report")
- A report by Gary Thompson ("The Thompson Report")
- A Series of photographs of the property'
- Correspondence between the parties
- A Sketch showing the layout of the property
The Hinchcliffe Report
Denis Hinchcliffe, Director of Hotondo Homes Temora, provided a report in relation to the garage. He stated:
...
In the year 2011 Hotondo Homes were engaged to renovate the garage ...
The garage structure consisted of braced hardwood frame with fibro walls and an iron roof, all in good structural order. The renovation was to bring the garage to the same standard as the adjoining residence.
The work done included -
a). Form and lay concrete floor.
b) Lay wooden flooring over concrete (outsourced).
c. While retaining the fibro cladding to the walls, applying over the fibro cladding, weatherboard to match the adjoining residence.
d. Fit new window and door.
e. Line interior walls and ceiling with gyprock sheeting.
f. Divide interior to form an entry area plus a separate interior room.
I have been informed that the Licencing Officer inspecting the work has certified "I have sighted the storage/safe keeping arrangements of the firearms and they do not comply with Commissioner's standards".
I have also been informed that the Firearms Act Regulation 34(7)(c) requires that "The area or room must have solid wails that provide a substantial barrier to forced entry".
I consider that the structure is part of a permanent building, is solid, and provides a substantial barrier to forced entry, and in particular I consider it provides at least a substantial barrier as a brick veneer or other brick veneer structure with timber frame and interior liner would.
Mr Durham's evidence
Mr Durham gave oral evidence to the Tribunal at the hearing and was cross-examined.
Mr Durham is a qualified builder with 30 years' experience and he is a trainee building inspector with Temora Shire Council. He was a principal of Durhams Building Pty Ltd which operated under the Hotondo Homes franchise. In that capacity he provided a quote to renovate the garage. The building work was subsequently carried out by Durhams Building Pty Ltd and Mr Durham was the superintendent/overseer of the work. Mr Durham provided a detailed description of the garage structure. This is essentially as set out above. He concluded:
"I consider the walls to provide a substantial barrier to forced entry, a similar barrier to that which would be provided by a brick veneer wall.
It should be borne in mind that part of the renovation works included supplying and laying a 100mm thick concrete slab over the existing slab.
I am of the opinion that the garage as renovated provided a more substantial barrier to forced entry than the room in Mr and Mrs Lynch's house which formerly held Mr Lynch's collection for two reasons:
(a) The roof of the house is of terracotta tiles held in place only by their own weight. It is relatively easy to lift off tiles and gain access to the ceiling of the room beneath.
The screwed metal roof would be a much more substantial barrier.
(b) As there is a space underneath the floor of the main house, it would be possible to gain access to the main house by dislodging a floor board. This would not be possible in the renovated garage because of the concrete floor."
Under cross-examination Mr Durham conceded that weatherboards can be removed but that it would be difficult to do so with a claw hammer because they would tend to split.
The Thompson Report
Mr Gary Thompson gave oral evidence to the Tribunal at the hearing and was cross-examined.
Mr Thompson is a qualified Quantity Surveyor and a licensed builder in Queensland with 28 years industry experience. He was instructed by the Applicant's solicitors to provide an opinion on the comments and opinions expressed in the Evans Report. In particular he responded to the following questions:
a) Whether in your professional opinion, the garage as would provide a substantial barrier to forced entry?
b) How easy or hard would it be for persons to jemmy or pry away the Cypress pine weatherboards?
c) How easy or hard would it be for persons to break through the Fibro cladding?
d) How easy or hard would it be for persons to break through gyprock?
e) Whether, in the event it is your view that the garage does not provide a substantial barrier to forced entry, if you have any comments on, or criticisms of, the statement of Mr Durham.
Mr Thompson provided the following Observations & Opinion (citations removed):
Generally
50. I have made the following assumption:
51. The structure complies with all relevant Building Code of Australia (BCA), state and local authority building acts and regulations;
52. The structure has not been altered from the date that Durhams Building Pty Ltd completed the work;
53.The structure has been maintained since the work was completed.
Whether in your professional opinion, the garage as would provide a substantial barrier to forced entry?
54. The method of construction described in the Durhams Statement is in my opinion is what I would consider a standard method of construction for a Timber Framed Dwelling.
55. I would consider the use of Cypress for wall framing and external weatherboard cladding as a durable and sound material.
56. Cypress may be regarded as 'multipurpose building timber, ... is useful as fence post (de-sapped) poles, cladding, fascias, bargeboards, decking, internal flooring, internal lining and panelling, external and internal joinery and house framing...
57. Cypress is regarded as a Highly Durable Class 1 timber with an expected serviceable life of up to 45 years in an above ground exposed use. From the information provided, I consider that cypress has been used in the construction of the structure at 168 Victoria Street, Temora.
58. I have sourced a copy of the weatherboard profile used in the construction of this structure.'
59. I have assumed that the 'Fenestrated Style' weatherboards have been installed in a method similar to that shown in Attachment K (a) of this report.
60. It is my opinion that this method of construction would be suitable for the intended use of the providing a sound and substantial barrier resistant to forced entry.
61. I would consider a timber framed, weatherboard clad structure equally as resistant to forced entry as a brick veneer method of construction. The external brick skin (Veneer) is attached to the structural timber framework by ties at specified spacings.
62. The structural integrity of the brick veneer is dependent upon the weakest point of the wall. In the event that the mortar used to bond the wall is deficient and the bond strength is compromised, the ability of the veneer to sustain impact from an attack to obtain forced entry would in my opinion be reduced.
63. In 3.5 of the Evans report, he references AS 3700 Masonry Structures, and states;
'It forms a monolithic structure as a single panel with both flexural strength and a level of rigidity that cannot be easily breeched even with the benefit of some power tools and certainly not a claw hammer'
64. I am unable to find this particular reference in AS 3700 Masonry Structures.
65. Similarly Evan's has stated that;
'A blow from a large hammer will just bounce off a brick wall and not breach it'
66.This statement is not substantiated with supportive data.
67. Evans again states that;
'It is an established fact that none if these difficulties have any significant effect brickwork or on the masonry alternatives available'
68. This has not been supported by reference material.
How easy or hard would it be for persons to jemmy or pry away the Cypress pine weatherboards
69. In the absence of relevant technical and supportive information, I have relied upon my knowledge and experience within the construction industry to provide an opinion in relation to this question.
70. Based upon the assumption that the cypress weatherboards have been installed similar to that indicated in the Attachment K Diagram, I would consider it relatively hard to jemmy or pry away the cypress pine weatherboards from the supporting timber substrate.
71.l have based my opinion on construction process whereby stock lengths of 3.6 meters are used and cut to length to suit the wall.
72. Boards are nail fixed starting at the bottom and lapped in accordance with the manufacturers recommendations. This will provide a tight seal at the top of the lower board and the bottom of the top board. If installed correctly there will be minimal gap in which the claw or a claw hammer can be jammed under the board to allow the boards to be prised off.
73. The length of the board, being 3.6 meters will also add to the difficulty to bend or break a board based on the fact that the product is regarded as a highly durable product. I do not consider that a claw hammer will be able to obtain enough leverage to enable a hole to be formed to allow access into the premises.
74. Therefore based upon my experience, I would consider it to be difficult to jemmy or pry away cypress weatherboards to gain access to the inside of the building.
How easy or hard would it be for persons to break through the Fibro cladding?
75. I have assumed the existing fibre cement cladding to be a product equivalent to a 7mm harditex cladding.
76. In my experience a product with these characteristic would have very little impact resistance and would be able to be penetrated relatively easily.
77. If the cladding was a '7.0mm compressed fibre cement' product then the material in my experience will prove to be more difficult to break through. However a number of heavy blows will still form a hole to enable access to the interior of the building.
How easy or hard would it be for persons to break through gyprock?
78. I have assumed the existing plasterboard lining to be a product equivalent to a 10mm plasterboard lining.
79. In my experience a product with these characteristic would have very little impact resistance and would be able to be penetrated relatively easily.
CONCLUSION
80. It is my considered opinion that the existing timber framed, weatherboard clad structure used to secure the gun collection at 168 Victoria street Temora, NSW, would provide a substantial barrier to prevent forced entry.
81. In my experience the ability to jemmy or pry weatherboard cladding from the wall would be difficult.
82. I would consider it relatively easy to penetrate a 7.0mm fibre cement cladding if used solely as a barrier against forced entry.
83. I would also consider it relatively easy to penetrate a 10 mm plasterboard internal lining.
Under cross-examination Mr Thompson conceded that he has not worked in installing weatherboards. However, he has removed weatherboards.
Mr Thompson conceded that weatherboards can be removed with the correct tools but said that it would be almost impossible to do so with a claw hammer alone. He was unsure about the feasibility of using a claw hammer and chisel. He said that it would be easier to achieve by using power tools. This would be done by cutting on either side of the stud and using a crowbar. In circumstances where the frame is to be retained, he said that a crowbar would be used and care taken.
Mr Thompson considered that the strength of the weatherboard walls would be comparable with that of a brick veneer wall. In the case of a brick veneer wall, bricks can be removed from the top or where there is no reinforcement.
He conceded that Mr Evans' comment that a brick veneer wall forms a monolithic structure is not intended to be a quote from AS 3700. He conceded that he had not read all of AS 3700. However he disputes Mr Evans' assertion Masonry Structures. He disagrees that a brick veneer wall forms a monolithic structure. He said that the strength of the wall is determined by the mortar. He agreed that properly prepared mortar is a difficult structure to break but the strength depends on the bond.
He said that properly prepared mortar can be breached with a hammer at the mortar joint. However he conceded that he has never done it. He disagreed with the proposition that striking a weatherboard wall is more likely to be breached by striking with a hammer then would a brick veneer wall by striking with a hammer.
Mr Thompson accepted that a brick veneer wall would be a minimum of 220 mm thickness and he conceded that the garage weatherboards are only 20 mm thickness. He accepted that weatherboards are exposed to the weather and expand and shrink. He also accepted that all timber structures will experience some movement over time. However, he did not concede that gaps appear between properly installed weatherboards or that the nails securing the weatherboards are designed to be removed. He said that it would be difficult to remove nails.
Mr Thompson accepted that corner covers could be removed but that it would be difficult to do so with a claw hammer. Once corner covers were removed the end of the weatherboards would be exposed. Mr Thompson accepted that with time and effort it would be possible to remove weatherboards to gain access to the garage interior. It would be difficult but not impossible and it would be a time consuming exercise without the use of a power tool.
Mr Thompson considered that it would be easier to remove one or two bricks from a veneer wall than one or two weatherboards from a weatherboard wall. He said that once one or two bricks had been removed it is relatively easy to keep removing further bricks.
The Applicant's submissions
Mr Hartmann provided submissions on behalf of the Applicant. Mr Hartmann submitted that the new weatherboard nailed over existing fibro creates a barrier to forcible entry.
Mr Hartmann submitted that while the Respondent had found that the garage roof was inadequate, Mr Evans had not addressed the issue. In contrast, Mr Durham was of the opinion that the screwed metal roof of the garage would be a much more substantial barrier than terracotta tiles held in place only by their own weight. Mr Hartmann submitted that Mr Durham's opinion should be accepted and the Tribunal should find that the garage roof is adequate.
In regard to the requirement of Clause 34(7)(c) of the Regulation that the room must have solid walls that provide a substantial barrier to forced entry, Mr Hartmann submitted that the word 'solid' adds little to the clause. He submitted that, for good reason, there is no such thing as a 'solid' wall in present day building technology. He argued that this is because cavities serve a purpose. He said that if the structure was a steel mesh cage it would still provide a substantial barrier.
He submitted that the fibro does not provide a barrier to forcible entry and no security is attributed to the gyprock or insulation. However, the fibro adds rigidity to the structure when combined with weatherboards. In effect it creates a room within a room and the only entry is through the weatherboards.
The evidence shows that the Applicant has three complying safes which are bolted to the floor, double security screens, a door which complies with the requirements of the Regulation, and trigger locks on the firearms. The Applicant resides in a country town where a large percentage of residences are similarly built.
Each weatherboard is fixed to each stud with two or three nails using a nail gun and is not easily withdrawn. If it were possible to lift the weatherboard it would tear away. It would then be necessary to prise up the remainder of the weatherboard.
Mr Hartmann submitted that in the circumstances the Tribunal should find that the garage complies with the requirements of Clause 34(7)(c) of the Regulation.
Discussion
Section 63 of the ADT Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Section 24(2)(b)(ii) of the Act provides that the Respondent may revoke a firearms licence if the licensee contravenes any provision of the Act or the Regulation, whether or not the licensee has been convicted of an offence for the contravention.
The Respondent contends that the garage is not an area or room that has solid walls that provide a substantial barrier to forced entry as required by clause 34(7)(c) of the Regulation.
The issue before the Tribunal calls for consideration of the standard necessary in order to comply with clause 34(7)(c) of the Regulation. It appears that clause 34(7)(c) has not been the subject of consideration in the any other proceedings in this Tribunal.
In order to comply with the clause, the garage walls must be solid and they must provide a substantial barrier to forced entry.
In my view, it is not relevant to these proceedings that the adjacent house was previously approved as meeting the requirements of the clause. The firearms are stored in the garage and therefore it is necessary for the garage to meet the standard.
In the absence of a statutory definition, words must be given their natural and ordinary meaning, having regard to their context and the objects and purposes of the Act.
A purposive approach is to be taken to statutory construction. Section 33 of the Interpretation Act 1987 provides:
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
In Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court (per McHugh, Gummow, Kirby and Hayne JJ) stated at paragraph [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"
In Australian Education Union v Department of Education and Children's Services [2012] HCA 3 the majority of the High Court stated at paragraph [26]:
The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose.
I agree with the Respondent's contention that the underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. This Tribunal has adopted that approach consistently in dealing with numerous matters under the Act.
It follows that the construction of clause 34(7)(c) of the Regulation is to be in light of the overriding need to ensure public safety.
The Macquarie dictionary provides a number of definitions of "solid". The most relevant are:
adjective 1. having three dimensions (length, breadth, and thickness), as a geometrical body or figure.
3. having the interior completely filled up, free from cavities, or not hollow: a solid ball of matter.
4. without openings or breaks: a solid wall.
9. substantial, or not flimsy, slight, or light, as buildings, furniture, fabrics, food, etc.
While it is clear that there are cavities between the fibro and gyprock, the weatherboards are firmly attached to the studs and this leaves minimal spacing between them and the fibro. The garage walls have three dimensions, without openings or breaks and are not flimsy, slight, or light. In my view the garage weatherboard walls are 'solid' for the purposes of clause 34(7)(c) of the Regulation.
The Macquarie dictionary provides a number of definitions of "barrier ". The most relevant are:
noun 1. anything built or serving to bar passage, as a stockade or fortress, or a railing.
3. anything that restrains or obstructs progress, access, etc.: ...
4. a limit or boundary of any kind: the barriers of caste.
I do not understand the Respondent to have argued that the walls do not present a barrier to forced entry. Nevertheless, for completeness I find that the garage walls restrain or obstructs progress or access and therefore present a barrier to forced entry for the purposes of clause 34(7)(c) of the Regulation.
The main area of dispute is whether the walls present a 'substantial' barrier to forced entry. The Respondent contends that it is possible that criminals could gain forced entry to the garage by prying away the weatherboard exterior and then breaking their way through the fibro and gyprock walls with relative ease. The Respondent says that the garage does not provide a considerable obstacle to powerful and vigorous efforts to gain entry to the garage, within the proper meaning of clause 34(7)(c).
The Macquarie dictionary provides a number of definitions of 'substantial'. The most relevant are:
adjective 1. of a corporeal or material nature; real or actual.
3. of solid character or quality; firm, stout, or strong.
6. of real worth or value ...
7. relating to the substance, matter, or material of a thing.
8. of or relating to the essence of a thing; essential, material, or important.
The Oxford English Dictionary definition of 'substantial' includes:
Of a structure, etc.: of solid material or workmanship, stout, solid.
...
Firmly or solidly established; of solid worth or value; of real significance, weighty; reliable; important, worthwhile.
On the evidence before me I am of the view that the garage walls consist of weatherboards that are firmly attached to studs and could only be removed with either a power tool or considerable effort with conventional tools such as a crowbar. Any attempt to lift the weatherboards at the point where they overlap is most likely to result in the weatherboard splitting. If that did not occur, the weatherboard would need to be lifted at each stud. This would be a difficult process.
Access would be easily gained by cutting the weatherboards on the edges of the studs using a power tool. This would then allow ready access to the interior of the garage. I accept that a well prepared criminal could remove weatherboards with minimum ease. Similarly, with power tools a well prepared criminal could remove bricks or cut steel bars to gain access to the interior or a building.
If the standard of wall that is necessary to meet the requirements of clause 34(7)(c) of the Regulation were one with the ability to resist access using power tools, very few walls would be able to meet that standard. Similarly, few structures would resist the 'powerful and vigorous efforts' that the Respondent contends to be the standard. This is consistent with Sergeant Turney's evidence regarding break and enter crimes using a range of tools. In my view that cannot be the required standard.
In my view, clause 34(7)(c) of the Regulation requires that the walls be constructed from strong material using good and proper workmanship and built to a standard acceptable in the building industry.
On the evidence before me, the garage walls meet that standard. I find as a fact that the garage walls are constructed from strong material using good and proper workmanship and built to a standard acceptable in the building industry. They provide a substantial barrier to forced entry as required by clause 34(7)(c) of the Regulation.
For completeness I note that I am also satisfied that the garage roof provides a substantial barrier to forced entry as required by clause 34(7)(c) of the Regulation.
That being the case, it is my view that the Respondent's decision is not the correct and preferable one and should be set aside. The effect of this decision is to reinstate the licence.
Order
1. The Respondent's decision to revoke the Applicant's category G firearms licence is set aside and the licence is reinstated.
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: 26 March 2014
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