Marando v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 29

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29
Hearing dates:	1 November 2017; 9 November 2017
Date of orders:	02 February 2018
Decision date:	02 February 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	1. The decision under review is affirmed.
Catchwords:	FIREARMS LICENSING – prohibited weapon - silencer - genuine reason –meaning of word “required” – whether applicant demonstrated that silencer required for recreational or sporting hunting activities
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Firearms Act 1996 (NSW) Weapons Prohibition Act 1998 (NSW)
Cases Cited:	Allen v Commissioner of Police, NSW Police Force [2015] NSWCATAD 224 Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148
Texts Cited:	Macquarie Dictionary
Category:	Principal judgment
Parties:	Rocco Marando (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: H El-Hage (Respondent)   Solicitors: R Marando (Applicant in person) Crown solicitor (Respondent)
File Number(s):	2017/00042111

Reasons for decision

Introduction

1. The Applicant has applied to the Tribunal seeking review of a decision of the Commissioner of Police (“the Commissioner”) to refuse his application under the Weapons Prohibition Act 1998 (NSW) (“the Act”) for a permit to possess and use a prohibited weapon - a silencer.

2. The Applicant is a recreational and sporting hunter and shooter. He currently holds a Category AB firearms licence under the Firearms Act 1996 (NSW) for recreational target shooting/vermin control.

Applicable legislation

3. An application for review is brought pursuant to the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"). Section 55 of the ADR Act provides that an interested person may apply for an administrative review of an administratively reviewable decision. Section 63 of the ADR Act provides:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

4. Section 35 of the Act provides:

35 Administrative review by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions:

(a) the refusal or failure by the Commissioner to issue a permit to the person,

(b) a condition imposed by the Commissioner on a permit issued to the person,

(c) the revocation or suspension of a permit issued to the person.

...

5. The underlying principles and objects of the Act are set out in section 3 as follows:

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,

...

6. A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit: section 7(1) of the Act.

7. 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 are prohibited weapons: section 4(1) and Schedule 1, item 4(3) of the Act.

8. The Commissioner cannot issue a prohibited weapons permit unless he is of the opinion that there is a genuine reason for possessing or using the weapon. Section 11 of the Act 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.

...

(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.

The issues for determination

9. The two primary issues are whether or not the Applicant is able to establish a genuine reason within section 11, and also whether it would be contrary to the public interest for a permit to be granted to him.

The material before the Tribunal

10. The Commissioner's material includes:

1. The affidavit of Inspector Marco Carlon, dated 24 October 2017;

2. The affidavit of Detective Sergeant Timothy Snow dated 24 October 2017, annexing an expert report (“the Snow Report”);

3. The affidavit of Grant Eccles dated 23 October 2017, annexing his report (“the Eccles Report”);

4. A bundle of material filed on 28 September 2017 pursuant to section 58 of the ADR Act; and

5. Written submissions prepared by counsel for the Commissioner, Mr El Hage.

11. The Applicant's material includes:

1. his own affidavit dated 26 September, and annexures;

2. a folder of additional documents which are paginated and in sections numbered 1 to 37. Two reports that were filed with this bundle as sections 36 and 37 were not admitted into evidence; and

3. his own written submissions.

The Permit Application

12. He nominated "recreational/sporting purpose" as the "genuine reason" for seeking a permit for a silencer. An annexure to his Application set out the following reasons for why the possession or use of a silencer was necessary:

Reason 1:

I currently reside on a small rural hobby farm which is 5 acres in size. I have attempted several times to raise chickens. Unfortunately, due to fox predation I have lost over 30 chickens. The foxes prey between sunset and sunrise i.e. at night time, usually when both my family and neighbours are sleeping. The report from firing a firearm:

1.   disturbs my family

2.   disturbs the neighbours

3.   stresses my stock (goats, sheep etc.)

4.   stresses neighbours stock and domestic animals (dogs barking etc.)

5.   disturbs other foxes that are also preying on my livestock in packs eliminating the chance of eradicating multiple feral pests at one time and that limited opportunity to cull also has the disadvantage of educating those foxes about the presence of a motor vehicle or a person travelling on foot, making them more wary.

6.   Increases general environmental disturbance

Use of a silencer is required to eliminate or minimise the above.

Reason 2:

I also have problems with rabbits and hares eating my vegetable patch. Similarly to the fox problem the hares and rabbits graze between sunset and sunrise i.e. at night time, usually when both my family and neighbours are sleeping. The report from firing a firearm:

1.   disturbs my family

2.   disturbs the neighbours

3.   stresses my stock (goats, sheep etc.)

4.   stresses neighbours stock and domestic animals (dogs barking etc.)

5.   disturbs other hares and rabbits that are also eating my vegetables in herds eliminating the chance of eradicating multiple feral pests at one time and that limited opportunity to cull also has the disadvantage of educating those rabbits and hares about the presence of a motor vehicle or a person travelling on foot, making them more wary.

6.   increases general environmental disturbance

Use of a silencer is required to eliminate or minimise the above.

Reason 3:

I also have a problem with birds (particularly the Common Myna, Common Starling and House Sparrow) which cause mess as the acidic bird droppings eat into building materials, spread parasites such as bird mites and also eat my fruit trees (especially figs) and vegetables (especially tomatoes). The report from firing a firearm:

1.   disturbs my family

2.   disturbs the neighbours

3.   stresses my stock (goats, sheep etc.)

4.   stresses neighbours stock and domestic animals (dogs barking etc.)

5.   disturbs other birds that are also eating my fruit and vegetables in flocks eliminating the chance of eradicating multiple feral pests at one time and that limited opportunity to cull also has the disadvantage of educating those birds about the presence of a motor vehicle or a person travelling on foot, making them more wary.

6.   Increases general environmental disturbance

Use of a silencer is required to eliminate or minimize the above.

Reason 4:

I also have permission to hunt on approximately 3,000 acres of private land. See Letter of Authority/ Permission to Shoot Recreational Hunting / Vermin Control attached hereto. This property is depredated by feral animals including pigs, foxes and rabbits. The report from firing a firearm:

1.   disturbs the neighbours

2.   Stresses stock on the property (cattle, sheep etc.)

3.   Stresses neighbours stock and domestic animals (cattle, sheep, dogs etc.)

4.   disturbs other feral animals eliminating the chance of eradicating multiple feral pests at one time and that limited opportunity to cull also has the disadvantage of educating those feral animals about the presence of a motor vehicle or a person travelling on foot, making them more wary.

5.   Increases general environmental disturbance

Use of a silencer is required to eliminate or minimise the above.

Reason 5:

The use of a silencer is required to both reduce the tendency of vermin animals to flee at the sound of a gunshot and increase the accuracy of the first shot from a cold bore by reducing recoil, reducing consequent muzzle rise and restricting elliptical barrel whip, thereby increasing the likelihood of destroying more than one feral animal at a time.

Reason 6:

Use of a silencer is required to reduce the need to wear ear muffs that totally eliminate noise from entering the ears. This would be an increased safety factor as I have been attacked by a feral pig and not been able to hear its approach from behind because of wearing total noise eliminating ear muffs.

Reason 7:

Use of a silencer will help mitigate any potential hearing loss.

The Applicant’s contention regarding genuine reasons

13. The Applicant contends that the categories of genuine reason for possessing or using a prohibited weapon are not limited to those provided for in the table to section 11 of the Act. He submits that this is apparent because of the provision in subsection 11(2) which states:

(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. (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

...

14. He submits that the reasons that are tabled in that section are not the only possible reasons.

15. There are no other reasons prescribed in any Regulations.

16. In this case, the Applicant holds a firearms licence for the purposes of recreational hunting and vermin control. From the table, the Applicant has nominated the genuine reason for possessing or using a prohibited weapon as “recreational/sporting purposes”.

17. 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. That is, he must show that the possession or use of a silencer is required for that purpose.

The Applicant’s Case

18. The Applicant holds a current firearms licence. There is no issue in regard to his fitness to hold a licence or his awareness of the obligations upon him as a licensee.

19. The Applicant relies on his own evidence. He provided an affidavit and also gave oral evidence and was cross-examined.

20. The Respondent objected to a number of passages in the Applicant’s affidavit which are clearly based on passages from the decision in Allen v Commissioner of Police, NSW Police Force [2015] NSWCATAD 224 (“Allen”). The Respondent also objected to two reports that were filed by the Applicant. I upheld that objection and those reports were not taken into evidence.

21. To the extent that the Applicant’s affidavit includes information that is based on material that cannot be tested, those parts of the affidavit are to be given reduced weight.

22. He is a recreational and sporting hunter and shooter and he seeks to be able to use a silencer for those activities. He participates in sporting events that involve the use of firearms, for example, target shooting and clay target shooting. It is common ground that he lives on acreage in western Sydney where he operates a small hobby farm. On the farm he has free range chickens and other animals, a vegetable patch and fruit trees. He wishes to use firearms to control feral animals, such as the foxes, hares, rabbits and feral cats, that impact on the activities he carries out on the hobby farm. He carried out trapping many years ago, but is now personally against trapping. He is also personally against baiting as a means of controlling vermin on the hobby farm. He has a personal objection to baiting and trapping, and therefore he is not willing to try it. He also is not prepared to install additional fencing because of the cost of doing so. He conceded that other than from what he has read or seen, he is not in a position to say whether or not other means to control vermin would be effective on the hobby farm.

23. The Applicant also stated that the purpose of the application is for recreational hunting.

24. It is also common ground that the Applicant has permission to shoot on properties outside of Sydney, including a property located near Cumnock, and a property located near Coolabah. He would normally go hunting on those properties three or four times a year and usually with other people. During those trips he has hunted both during the day and at night. Night hunting was aided by the use of spotlights to help spot the animals.

25. He has been hunting animals for recreational purposes for approximately 40 years. Over that time other places where he has hunted have included Cobar, Bourke, Wilcannia, Dubbo, Wagga, Mogood, and Binjura. He hunted on properties owned by others and the owners would grant him permission to go onto their land and shoot animals. In recent years he has mostly hunted at Coolabah or Cumnock. At Coolabah he has access to around 30,000 acres.

26. The Applicant’s knowledge about the use of silencers is limited to what he has been able to learn from literature that he has read or video clips that he has seen. He has never used a firearm fitted with a silencer and has never hunted with anybody using a firearm with a silencer or observed anybody use a firearm fitted with a silencer. Prior to these proceedings, he had never spoken to anybody at National Parks and Wildlife Services about their use of silencers.

27. However, he has used firearms of various calibres and he has observed that there is certainly a difference in animals’ reactions to the report of a very large calibre as compared to a very small calibre. He therefore has assumed that if a silencer reduces the noise, then it would have the flow-on effect with animals.

28. He accepted that there are a number of variables which might cause an animal to become startled and flee, besides the sound of a firearm. For example, it could be the noise of a vehicle, the spotlight itself, the sound of a twig snapping, somebody talking or the animals might see the hunters.

29. Under cross-examination the Applicant conceded that he can continue to carry out recreational hunting through the use of his firearms at Coolabah, or at any other properties on which he is allowed to shoot, with the consent of the owner, without the use of a silencer.

The Commissioner’s Case

Overview

30. The Commissioner contends that the Applicant must establish that a silencer is needed for the activity concerned and that he has not established a genuine reason that requires the possession and use of a silencer. Further, the Commissioner contends that in any event it would be contrary to the public interest to grant the permit that the Applicant has sought.

31. As noted above, the Commissioner relies on the evidence of Inspector Marco Carlon, Detective Sergeant Timothy Snow and Mr Grant Eccles. Detective Sergeant Snow and Mr Eccles each gave oral evidence and was cross-examined.

Inspector Carlon’s Evidence

32. Inspector Carlon’s affidavit annexed the following documents which were admitted into evidence:

1. "Supplementary Guide for Prohibited Weapon Silencer Permit Applicants for the Genuine Reasons of either Business / Employment or Recreational /Sporting Purposes"; and,

2. "Firearms Registry Prohibited Weapons Silencer Permit", Version 1.4, dated February 2016.

33. Inspector Carlon also annexed a record of the firearms that are recorded as registered as in the possession of the Applicant as at 24 October 2017. He also provided a printout of a property report and a satellite image for the Applicant’s property as well as printouts of; the NSW Department of Primary Industries webpages titled "Best Practice Pest Animal Management", "Rabbit Control" and Fox Control".

34. Inspector Carlon was not required for cross-examination.

Detective Sergeant Snow’s Evidence

35. Detective Sergeant Snow is a Detective Sergeant in the Forensic Ballistic Investigation Section of the NSW Police Force. He prepared a report for the purposes of these proceedings. He has specialized knowledge and expertise in ballistics, firearms identification and the examination of crime scenes.

36. The Detective Sergeant’s evidence largely focused on the manner in which a firearm can be fitted with a silencer, the effectiveness in reducing noise, the benefits for a shooter and the assistance that a shooter might gain in hunting animals. He agreed that a silencer doesn't silence the noise from a firearm but it reduces the noise; even with high calibre firearms there is still a reduction in noise by the use of a silencer. It might be negligible but there's still a reduction. However, in his opinion the use of a silencer would not provide any significantly advantage to a hunter. He stated that the use of a silencer doesn't reduce the sound effectively. The noise of the firearm would still frighten animals. It would still create a general environmental disturbance. It would distress livestock and it would disturb foxes. He agreed that a shot fired from an unsilenced rifle might startle animals more than a shot fired from an unsilenced rifle.

35. The noise produced by discharging a firearm may not necessarily be reduced. The effect is dependent on the firearm calibre, design and the ammunition type. The firearm, silencer and type of ammunition all three work as a system. If any one of those components is changed, for example changing the ammunition type or manufacturer, the result will differ. He accepted that with the correct combination it might be possible to achieve the result of not startling the animals that are being hunted.

36. He did not agree that the use of a silencer would increase the accuracy of a firearm. He agreed that the use of a silencer can change the point of impact of a bullet fired from a firearm fitted with a silencer. That is, a bullet fired from a firearm without a silencer fitted will have a different point of impact to a firearm with a silencer fitted. He said that whether or not that would increase the accuracy would depend on the whole weapon system and the skill of the shooter.

37. He stated that where a firearm is fitted with a silencer, muzzle flash can be contained within the body of a silencer and can be used to conceal a shooter's position. He agreed that the muzzle flash reduction could also assist in concealing a shooter's position to any potential animal.

38. Detective Sergeant Snow also accepted that with the use a silencer it might be possible to reduce the noise level to below the level where the use of ear protection is recommended.

39. He also gave evidence in regard to the risk of firing a firearm on a small property without a designed backstop. He conceded that he has not been to the Applicant’s property and he was not able to give evidence in relation to the topography. He was also unable to give evidence of whether the topography would reduce the potential danger associated with firing a firearm on the Applicant’s property.

40. In regard to the use of a firearm for vermin control on the Applicant’s hobby farm, Detective Sergeant Snow’s view is that the use of any firearm is dangerous. However, in the situation where culling has been very carefully controlled and conducted by trained people, the danger would be greatly reduced.

Mr Eccles’ Evidence

43. Mr Eccles is a Senior Pests and Weeds Officer at NSW National Parks and Wildlife Service ("NPWS"). He has lead the NPWS pest control activities since 2013 and he has lead the NPWS trial work and research in relation to the use of silencers of pest control activities since 2015.

44. Mr Eccles gave evidence in regard to his experience with using silencers for the purposes of culling feral animals on NPWS land. NPWS has trialed and researched the use of silencers in order to establish whether it is an efficient use of resources. NPWS would not use silencers unless they offered an advantage.

45. In the Eccles Report, in response to the question Does the use of a silencer reduce the tendency or likelihood of vermin animals to flee at the sound of a gunshot and, if so, to what extent? Mr Eccles stated

If using a silencer and subsonic ammunition [i.e. ammunition that has a velocity less than the speed of sound] than the answer is yes in nearly all cases. However, the degree to the extent of reducing the likelihood of the animal to flee is still impacted on a number of factors including distance from the target, the target species the type of firearms and silencer being used, the terrain, the skill of the shooter and so on. The animals that can actually be targeted with subsonic ammunition are far more limited so it is only used in specific circumstances. This is because subsonic ammunition in comparison to high velocity ammunition, when using the same projectile, has a lot less energy (killing power) and a more curved trajectory.

In regards to using high velocity ammunition, animals in front of the shooter (the direction of fire) will not have a reduced tendency to flee. Animals behind the shooter will have a substantial reduced tendency to flee. This is because there is no difference in Sound Pressure Levels (SPLs) in front of the shooter with or without the silencer when using high velocity ammunition. Though, in contrast, behind the shooter there is a substantial difference.

In all cases when using subsonic ammunition the terrain, the distances and direction of fire compared to the animal will impact on the animal's tendency to flee. Animals that myself and colleagues at NPWS have observed this with is deer, pigs, goats and rabbits. This is because the SPL is reducing in all directions from the point of fire with subsonic ammunition. That is so because the sound made by the firearm approaches background noise levels and becomes less recognisable as a gunshot the further one is away from the firearm that is being fired.

In regards to night operations, the use of the silencer is only a component that affects the animal's tendency to flee. The effect of a light at night can have a bigger impact on an animal's tendency to flee than the use of a silencer. In many circumstances, the use of an unsilenced rifle with a thermal scope is more effective than using a silenced rifle and a spot light in pest control operations. This is because with a spot light, an animal can readily identify where the shooter is and over time the animal will associate the spot light with danger. Obviously a thermal scope on a silenced rifle is the optimum set up.

46. In response to the question To the extent that this was not addressed above, does the use of a silencer on a firearm improve the efficiency of hunting animals generally and, if so, to what extent? Mr Eccles stated

In general terms, the use of a silencer on a firearm will not improve the efficiency of hunting animals if a single target animal is being hunted, such as for the purpose of meat or a trophy. In general terms, if multiple animals are being hunted, silencers may or may not improve the efficiency of hunting because it depends on many other factors such as terrain, the skill of the operators the animals being hunted and so on. For this reason NPWS does not generally use silencers for ground shooting operations. Apart from our ongoing research and trial work, NPWS only uses silencers where they are justified by an endorsed shooting operation plan (which currently adds to our ongoing research and trial work). Justification needed to use silencers is to where it is essential to the operation or it is likely it will dramatically improve the effectiveness of the program. An example of this is shooting in rabbits at north head in Sydney harbour with a 22 long rifle rimfire firearm and a silencer (using standard subsonic ammunition muzzle velocity 1065 fps) so that more rabbits can be shot and people in the vicinity are not disturbed.

Reducing the barrel whip of a rifle by using a silencer fitted to the rifle to improve accuracy has been observed by myself and colleagues at NPWS when using the 308 Winchester, however, given the gain in accuracy with this calibre only and it only being about one centimetre at 100 meters I do not considered reducing the "barrel whip" by attaching a silencer to improve the efficiency of hunting animal generally as a reason to use silencers. This is especially because of other factors as mentioned before have a more significant impact.

47. In relation to the proposed use of firearm, including weapons of different calibre on the Applicant’s property Mr Eccles stated (citations removed):

It is my understanding the applicant proposes to uses a 22 long rifle and a silencer … with a maximum velocity of up to 850 fps as a higher velocity in 22 long rifle may be unsafe to use ... This would restrict the applicant to ammunition such as a Winchester Zimmer Long or a CCI "quiet 22LR" round.

In this case, a silencer would offer very little advantage in respect to reducing noise for the purposes stated by the applicant as the Winchester ammunition is specially designed to be a "low noise short range training cartridge" and the CCI is designed for ultra-quiet hunting that reportedly only produces 68 decibels at the shooters ear and ideal for where noise might be of concern.

When using low velocity ammunition in an area where there are houses around and the ground is mostly flat as it appears to be the case in this circumstance, an extra level of care must be taken as these low velocity projectiles have an increased tendency to ricochet.

Under the National Standard Operating Procedures, the use of rim fire firearms with lower muzzle energy are not recommended for foxes or cats. Also, there are a number of effective control methods that could be used on this property to control the pest animals identified by the Applicant. For rabbits the primary control should be an integrated approach using a combination of poisoning, harbour destruction and the use of phosphine tablets and, if funds permit, exclusion fencing. Shooting can be useful as a follow-up or maintenance technique if rabbit densities are very low.

For foxes the primary control should be the use of 1080 poison, trapping and or the use of guard animals (alpacas, lama's, maremma sheep dogs etc. If funds permit, exclusion fencing is the best option.

The only solution to controlling hares is shooting or exclusion fencing, I have not controlled hares using a firearm with silencers so I cannot specifically address the effectiveness of their use or not.

The only long term solution to stopping the impact of foxes, cats, rabbits and hares on the applicant's property as an individual property is adequate fencing. Though this can be a costly exercise. Without fencing all the applicants neighbours would need to be involved in a coordinated group program to reduce the impact of pest species to a very low level as immigration will quickly replace any animal controlled in one small property if undertaken in isolation.

Although nosier, and depending on the circumstance, due to the short distances and if there is a need to shoot two animals in quick succession, such as foxes in a pair, a more appropriate firearm than a 22 rim fire may be a double barrel 12 gauge shotgun.

48. Under cross-examination Mr Eccles gave examples of the use of silencers in his work with NPWS. He confirmed that in some respects the use of silencers provides benefits to the NPWS. One of those benefits is that it reduces noise. Whether or not that makes a difference depends on the context. NPWS has a long-standing rabbit program on North Head that involves the use of silencers on 22s. In some situations the use of silencers may give the benefit that the program can be undertaken safely, without protesters putting themselves in the way.

49. Firearms are not used in any NPWS programs without a risk assessment. This takes account of the potential for ricochet and other potential dangers. Each program has a shooting operations plan that is endorsed by the director. There will be a job safety analysis that considers all the risks associated with the operation.

50. Mr Eccles confirmed that in certain circumstances silencers do reduce the tendency or likelihood of animals to flee at the sound of gunshot. However he qualified this view as subject to a number of factors and did not alter the view that he expressed in his report.

51. Mr Eccles stated that NPWS officers also shoot in urban areas without the use of silencers. For example, euthanasia is generally done without silencers.

52. He stated that he is not opposed to the use of silencers, as long as the use is justified. If there was no benefit, NPWS wouldn't use silencers. In any event, the majority of NPWS firearm use is unsilenced.

Discussion

Construction of the legislation

53. The parties do not totally agree on the construction to be given to the applicable provisions of the Act. These were discussed in some detail in Allen. At paragraphs [44] – [46] Senior Member Walker stated:

44 The underlying principles of the WP Act emphasize that possession of prohibited weapons is a privilege conditional on the overriding need to ensure public safety. The Act places strict restrictions on the issue of such permits, and s 8(1) requires that an applicant establish a genuine reason for possessing or using the prohibited weapon. Section 10(4) states that the Commissioner may refuse to issue a permit if the Commissioner considers that to do so would be contrary to the public interest, and s 11 provides that a person must demonstrate a genuine reason for possessing a prohibited weapon, and then elaborates on what would be a genuine reason.

45 The onus is on an applicant to demonstrate and produce evidence of a genuine reason, and what constitutes a genuine reason is not left undefined, as significant guidance is provided in the Table to s 11(2). The genuine reasons set out in s 11(2) are narrowly focused: Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10, [42].

46 Ultimately, the issue in this case is that the applicant must establish that possession and use of a silencer is necessary in the conduct of the business of primary production. It is accepted that the meaning of the word “necessary” will depend on the context in which it is used and in the setting of s 11 cannot be equated with something that is advisable, desirable, of assistance, useful or of some value. In Osborne, which dealt with an application for a pistol permit by a licensed firearms dealer who conducted part of his business on a travelling basis, the appeal panel spoke of the prohibited weapon as needing to be “directly required” in the business. It therefore adopted a stricter approach to the interpretation of the genuine reason of “necessary”. The applicant must therefore be able to demonstrate that the use of a silencer would be necessary (in this stricter sense of essential, indispensable, imperative or directly required) to the conduct of a primary producing business. But the matters raised by the applicant in themselves said nothing about the necessity for a silencer. A silencer is not directly required for the business of primary production.

54. The Appeal Panel in Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148 considered the question of the construction to be given to the word “necessary” in the table to section 11(1) of the Act from paragraph [6]:

First question of law - incorrect construction of the words ‘necessary in the conduct of the applicant’s business’

6 The Commissioner submitted that the Tribunal had misconstrued the word “necessary” in the table to s 11(1) of the Weapons Prohibition Act. Mr Allen relied on “business/employment purposes” as the genuine reason for using or possessing a silencer. To come within that purpose:

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. (Emphasis added.)

7   The word “necessary” is an ordinary, non-technical, term. There is authority for the proposition that the meaning of such a word is a question of fact, not a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 380 at 287. Commentators Aronson and Groves have expressed the view that choosing among a range of usages of a non-technical word should always be an issue of law: Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co) at 211. Even if that is incorrect, the misconstruction of an ordinary word (as distinct from its meaning) is a question of law: Industry Research Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564 at 577.

8   If a non-technical word, such as ‘necessary’ is used in a statutory provision, it should be given its plain and ordinary meaning unless the contrary is shown: Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 per Dixon J at 647; Thompson v Judge Byrne (1998-1999) 196 CLR 141 at [19] per Gleeson CJ, Gummow, Kirby and Callinan JJ at p45] per Guadron J. The Macquarie Dictionary, 3rd edition, defines “necessary” as:

adjective 1. that cannot be dispensed with: a necessary law.

2. happening or existing by necessity.

3. acting or proceeding from compulsion or necessity; not free; involuntary: a necessary agent.

9   These definitions should not be used as a substitute for the word itself. As Basten JA held in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, Basten JA at [45]:

The word “necessary” can have shades of meaning: it is not “a fixed character, peculiar to itself” but rather “admits of all degrees of comparison”, in the language of the United States Supreme Court in McCulloch v State of Maryland 17 US (4 Wheat) 316 at 414 (1819) cited by Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; (2007) 233 Clr 307 at [101]. The Court in McCulloch, in the same passage, noted at 413:

“If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.”

10   Basten JA goes on to state at [46] that “[T]he meaning of ‘necessary’ “depends on the context in which it is used”.

11   The underlying principles and objects of the Weapons Prohibition Act are set out in s 3(1)(a):

(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.

12 The specific objects of the Act are set out in s 3(2):

(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.

13 The Commissioner submitted that the word “necessary” in the context of the Prohibited Weapons Act means that the possession or use of a silencer was “essential” or “directly required” for the purpose of conducting the business of sheep grazing. Those words come from the decision in Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 (Osborne). In that case the Appeal Panel of the Administrative Decisions Tribunal was considering the phrase “necessary in the conduct of the applicant’s business” in a comparable legislative context but in different factual circumstances: Firearms Act 1996 (NSW), 12(1).

14   Mr Osborne was a travelling firearms dealer who applied for a licence to carry a pistol to deter criminals from stealing his firearms. As with permits for silencers, Mr Osborne needed to satisfy the Commissioner that possessing the pistol was “necessary in the conduct of” his business. The Appeal Panel held at [44] that the critical issue was not whether “necessary” meant ‘reasonably’ necessary or ‘absolutely’ necessary. The issue was whether the fact that Mr Osborne chose to travel alone carrying firearms in isolated locations meant that it was necessary for him to carry a pistol.

15   The Appeal Panel concluded that it was not necessary because Mr Osborne could have conducted his business in a way that did not expose him to such a high risk of robbery. The Tribunal explained its conclusion by saying at [46] that, [T]he possession of a pistol is not directly required of the business or employment” and at [49] that, “[I]t is not essential to the process of dealing in firearms to do business in this way”. (Emphasis added). In both passages, the Appeal Panel expressed itself in the negative.

16 The Appeal Panel was not using the words “directly required” or “essential” to suggest that the word “necessary” had a fixed meaning in the context of s 11(1) of the Weapons Prohibition Act. Rather, the Tribunal focused on the way the business was conducted and held that the firearm must be necessary in the context of the core features of the business, not in the context of the way a person chooses to conduct the business.

17   One of the core features of Mr Allen’s business is that he needs to control feral animals. Mr Allen is not conducting his business in a particular manner which makes it more or less necessary to use a silencer. The business features, including the location of his property and the extent of infestation of feral animals, are factors beyond his control. The facts in Osborne can be distinguished on that basis. The Tribunal did not err by failing to interpret “necessary” as “directly required” or “essential”.

18   The Commissioner also submitted that the Tribunal failed to apply the reasoning in Osborne because it considered whether the possession or use of a silencer was necessary for Mr Allen’s specific business rather than for sheep grazing businesses in general. That criticism is not justified because the decision in Osborne distinguishes between the manner in which a person conducts his or her business and the way other businesses of that kind are conducted. The reasoning in Osborne does not preclude the Tribunal from taking into account Mr Osborne’s particular circumstances.

Second question of law: shifting the burden of proof to the Commissioner

19 The Commissioner submitted that the applicant for a permit “bears the onus” and that, in this case, the Tribunal shifted that burden to the Commissioner. In our view, that is not a correct characterisation of either the law or the Tribunal’s decision. Section 11(1) of the Weapons Prohibition Act provides that:

(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.

20 While various ‘genuine reasons’ are set out in s 11(2), those reasons are not the only reasons which may satisfy the Commissioner that a prohibited weapons permit should be issued. Section 11(2) provides that:

(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. (Emphasis added.)

21   When reviewing the Commissioner’s decision, the Tribunal’s task is to decide what the correct and preferable decision is having regard to the material then before it: Administrative Decisions Review Act, s 63. When interpreting similar provisions, courts have held that an applicant does not have to show that the administrator’s decision was wrong: Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88. Nor, unless there is a provision to the contrary, does either party bear a legal onus or burden of proof: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 ([40]).

22 If the genuine reason on which an applicant relies is “business or employment purposes”, an 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”. Section 11(2)(b) makes it clear that Mr Allen had the “evidential burden” to provide evidence on that issue: Williams, CR Burdens and Standards in Civil Litigation (2003) Sydney Law Review 9. But, as Mr Allen had no legal burden of proof, the Tribunal cannot have “shifted the burden onto the Commissioner”.

Recreational/sporting purposes

55. Adopting the approach taken by the Appeal Panel in Allen suggests that in the present matter, where the Applicant has nominated the genuine reason for possessing or using the weapon as 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”. He has the “evidential burden” to provide evidence on that issue. Similarly, he has the “evidential burden” where he has nominated the genuine reason for possessing or using the weapon as vermin control.

56. It is not in issue that the Applicant holds a current firearms licence for the purpose of recreational hunting/vermin control. He has stated that he “intends to possess or use the weapon” for a reason set out in the Table to subsection 11(2) of the Act i.e. Table Reason: recreational/sporting purposes. He must demonstrate and produce evidence of the genuine reason. He has provided evidence in regard to various recreational/sporting activities in which he has been involved over many years. In the circumstances I am satisfied that he has identified a genuine reason for possessing or using the weapon for the purposes of section 11 of the Act.

57. However, as noted above, the table to subsection 11(2) of the Act provides:

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.

Vermin Control

58. The Applicant has stated that he intends to possess or use the weapon for the culling of feral animals/vermin on his property to avoid damage to his fruit and vegetables and loss of livestock. The culling of feral animals/vermin is not a genuine reason set out in the Table to subsection 11(2) of the Act. Nor is it a reason prescribed by the Regulations. Consequently, there are no requirements specified for the possession or use the weapon for culling of feral animals/vermin. It is not a "recreational or sporting purpose" for the purposes of section 11(2).

59. It is clear that the reasons that the Commissioner may be satisfied are genuine reasons are not limited, however subsection 11(2) states that the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon. It states:

(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.

60. The Applicant relies on the following factors as establishing that the use of a silencer is required. The report from an unsilenced firearm:

1.   disturbs the Applicants family

2.   disturbs the Applicants neighbours

3.   stresses the Applicants stock (goats, sheep etc.)

4.   stresses neighbours stock and domestic animals (dogs barking etc.)

5.   disturbs other feral animals that are also preying on the Applicants livestock in packs eliminating the chance of eradicating multiple feral pests at one time and that limited opportunity to cull also has the disadvantage of educating those animals about the presence of a motor vehicle or a person travelling on foot, making them more wary.

6.   Increases general environmental disturbance

7.   increases the tendency of vermin animals to flee at the sound of a gunshot

8.   decreases the accuracy of the first shot from a cold bore by reducing recoil, reducing consequent muzzle rise and restricting elliptical barrel whip, thereby decreasing the likelihood of destroying more than one feral animal at a time.

9.   increases the need to wear ear muffs that eliminate noise from entering the ears.

61. In the circumstances of this matter I am not satisfied that culling of feral animals/vermin on his property is a genuine reason contemplated by the Act.

62. If I am wrong in that conclusion, it is my view that the minimum requirements for the possession or use the weapon for culling of feral animals/vermin would be that the Applicant requires or needs to possess or use a silencer for the culling of feral animals/vermin or that it is necessary.

63. In this regard I accept the evidence given by Mr Eccles that the use of a silencer would be of little assistance in the culling of feral animals/vermin. I also note Mr Eccles’ view that the only long term solution to stopping the impact of foxes, cats, rabbits and hares on the Applicant's property is adequate fencing.

64. I have set out above the discussion by the Appeal Panel in Allen regarding the word “necessary”. I will discuss the word “requires” below.

65. In the circumstances I am not satisfied that the evidence establishes that the possession and use of a silencer is required, needed or necessary for the culling of feral animals/vermin.

66. It is not necessary that I address the issues that were raised by the Commissioner in regard to potential safety issues regarding the Applicant’s use of firearms on his property.

Does the Applicant’s recreational or sporting hunting activity require the possession or use of a silencer?

67. The Applicant must establish that these activities require the use of a silencer. The Macquarie Dictionary defines the word “require” to mean:

require

–verb (t) 1. to have need of; need: he requires medical care.

2. to call on authoritatively, order, or enjoin (a person, etc.) to do something: to require an agent to account for money spent.

3. to ask for authoritatively or imperatively; demand.

4. to impose need or occasion for; make necessary or indispensable: the work required infinite patience.

5. to call for or exact as obligatory: the law requires annual income tax returns.

6. to place under an obligation or necessity.

7. to wish to have: to require room service.

–verb (i) 8. to make demand; impose obligation or need: to do as the law requires.

68. In my view, the circumstances outlined in Allen are quite different to those in this matter and do not assist the Applicant. One of the core features of Mr Allen's business is that he needs to control feral animals. In contrast, the Applicant does not own the properties where he shoots and therefore does not have the same obligations and needs to control feral animals. It is possible that the owners of the properties could establish the need for the possession and use of a silencer; however the Applicant merely has a desire to help the owners control feral animals.

69. I am satisfied that the Applicant is entitled to hunt on the specified properties at Cumnock and Coolabah; that he proposes to do so, as he has done for many years; and that he wishes to use a silencer in doing so. I am also satisfied on the evidence that it is possible that the use of a silencer might provide some assistance to him in his hunting activities, although any assistance that he might get from the use of a silencer is likely to be minimal. This is because there are so many variables which might affect the accuracy of the firearms and so many variables besides the sound of a firearm which might cause an animal to become startled and flee.

70. Ultimately, the issue in this case is whether the Applicant is able to establish that the possession and use of a silencer is required for his hunting activities.

71. It is clear that the Applicant has carried out these activities for many years without the assistance of a silencer. He also conceded that he can continue to carry out recreational hunting through the use of his firearms without the use of a silencer.

72. The Applicant has the evidential burden to provide evidence on that issue and in my view he has not satisfied that burden.

73. I agree with the Respondent that a personal preference for shooting with a silencer is insufficient to establish that the Applicant’s recreational or sporting hunting activity requires the possession or use of a silencer.

74. In the circumstances it is not necessary that I consider in any further detail the other issues regarding the relative benefits to flow from the use of a silencer, the safety issues or the public interest issues that have been raised by the Respondent.

75. I am not satisfied that the possession and use of a silencer is required for the Applicant’s recreational or sporting hunting activities. Accordingly it is my view that the decision to refuse his application for a permit to possess and use a silencer is the correct and preferable one and therefore it should be affirmed.

Order

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: 02 February 2018