Martin v Commissioner of Police, NSW Police

[2007] NSWADT 69

CITATION:	Martin v Commissioner of Police, NSW Police [2007] NSWADT 69
DIVISION:	General Division
PARTIES:	APPLICANT Paul John Martin RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063225
HEARING DATES:	4 September 2006, 12 December 2006 and 26 March 2007
SUBMISSIONS CLOSED:	26 March 2007
DATE OF DECISION:	2 April 2007
BEFORE:	Handley R - Acting Deputy President
CATCHWORDS:	Prohibited weapons - issue of permit - Weapons Prohibition Act - prohibited weapons - issue of permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Interpretation Act 1987 Weapons Prohibitions Act 1998
CASES CITED:	Clyne v Commissioner of Police, NSW Police [2004] NSWADT 52 Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10 Petty v Commissioner of Police, NSW Police Service [2003] NSWADT 20
REPRESENTATION:	APPLICANT P Cuddy, agent RESPONDENT W Pisani, agent
ORDERS:	The decision under review, dated 22 May 2006, is set aside and the matter is remitted to the Commissioner for reconsideration in accordance with these reasons.

1 This matter involves an application by Paul Martin for a review of a decision of the Commissioner of the NSW Police to refuse Mr Martin’s application for a prohibited weapons permit in respect of a number of different types of prohibited weapons.

Background

2 Mr Martin was born on 3 November 1941 and is aged 65. He works as a self-employed licensed firearms and prohibited weapons dealer and theatrical armourer. He also lectures in NSW schools on World War I and II, and the Vietnam War. He has held relevant permits for these purposes for a number of years.

3 On 21 February 2005, Mr Martin applied for a prohibited weapons general permit in respect of four categories of prohibited weapons for the purpose of teaching students in classes 5 to 6 in primary schools and classes 7 to 12 in secondary schools. On 31 October 2005, a delegate of the Commissioner decided to refuse this application because he was “satisfied that you do not have a genuine reason to enable you to hold a permit to display prohibited weapons to school children, as prohibited weapons are not allowed on any public school premises”. The delegate referred to s 11 of the Weapons Prohibition Act 1998 (‘the Act’), which requires that for a person to be issued with a permit, the Commissioner must be satisfied that the person has a genuine reason for possessing and using the prohibited weapon.

4 On 4 November 2005, Mr Martin applied for a theatrical weapons armourer permit in respect of all categories of such weapons for the purpose of filming and educating students. On 22 March 2006, a delegate of the Commissioner decided to refuse this application because he was “satisfied that to issue a permit to enable the possession and use of prohibited weapons for filming and educating students would be contrary to the public interest, in that these [sic] is no legislative grounds or genuine reasons for this type of permit to be issued”. The delegate referred to s 10(4) of the Act, which states that the Commissioner may refuse to issue a permit if he or she considers that the issue of the permit would be contrary to the public interest.

5 On 31 March 2006, Mr Martin sought a review of the decision of 22 March 2006. On 22 May 2006, an internal review officer with the Firearms Registry of the NSW Police confirmed the decision. The officer stated that he was satisfied that Mr Martin had “provided no evidence relating to any prohibited weapons which supports your stated intention of using such weapons for filming purposes”.

6 On 15 June 2006, the Tribunal received Mr Martin’s request for a review of this decision, to which he attached extensive submissions.

7 At a hearing on 4 September 2006, it appeared to me that there was confusion as to the permit application process, the information that was required to be provided by Mr Martin, and the categories of permit that he required. I therefore remitted the matter to the Commissioner for reconsideration pursuant to s 65(1) of the Administrative Decision Tribunal Act 1997 (‘the ADT Act’), with directions allowing Mr Martin to provide further information to the Firearms Registry prior to the reconsideration being undertaken.

8 Mr Martin provided further information to the Commissioner. This generated further correspondence between the parties, which led to the delegate of the Commissioner issuing a theatrical weapons armourer permit to Mr Martin, dated 27 October 2006, in respect of “Miscellaneous weapons” specified in cl 2.1 of Sch 1 of the 1989 Act, namely, “Any bomb, grenade, rocket, missile or mine ...”. On receipt of further information, the delegate subsequently determined that the permit could be extended to include further items, namely the following: cl 1 Knives – (1) flick knives, (3) sheath knives, (6) butterfly knives and (7) star knives; cl 2 Miscellaneous weapons – (3) any device to propel or launch a bomb, grenade, rocket etc, (4) spear guns, (6) slingshots, (11) dart projectors, (12) mace, (13) flails or similar articles, (14) whips, (15) cat-o’-nine-tails, (16) kung fu sticks, (17) side handled batons, (17A) extendable or telescopic batons; cl 3 Replicas, imitations, concealed blades etc – (1) of bombs, grenades, rockets etc, (2) of firearms; cl 4 Miscellaneous articles – (1) body armour vests, (2) handcuffs.

9 Mr Martin subsequently informed the Tribunal that notwithstanding the Commissioner’s decision that Mr Martin’s permit could be extended to include additional types of weapon, he wished to pursue his application in the Tribunal.

10 At a hearing on 12 December 2006, I made further directions requiring the parties to engage in further discussions and, following those discussions, to file and serve further evidence and submissions, prior to a resumed hearing on 26 March 2007.

11 The evidence before the Tribunal comprised various documents provided by Mr Martin about which he gave oral evidence, together with an affidavit dated 20 February 2007 provided by Craig Capper, the Acting Manager of the Firearms Registry. Mr Capper is a former police officer, police prosecutor and legal officer of the Administrative Law Unit of the Legal Services branch of the NSW Police. He is also qualified as a solicitor and, since resigning from the Police in December 2003, has been employed as a public servant in the Firearms Registry.

The Relevant Law

12 The principles and objects of the Act are set out in s 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,

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

13 Section 4(1) contains relevant definitions. A “prohibited weapon is defined as meaning “anything described in Schedule 1”. Schedule 1 includes four categories of prohibited weapons: 1. Knives (for example, star knives); 2. Miscellaneous weapons (for example, grenades, crossbows); 3. Replicas, imitations, concealed blades etc (for example, imitation bombs or forearms, walking sticks containing a sword); 4. Miscellaneous articles (for example, body armour vests or handcuffs).

14 The categories of permit and the authority they confer are set out in s 8(1):

8 Permit categories and authority conferred by permit

(1) The categories of permits and the authority they confer are as follows:

General permit

Authorises the holder of the permit to possess or use a prohibited weapon of the kind specified in the permit, but only for the purpose established by the holder as being the genuine reason for possessing or using the prohibited weapon.

Weapons dealer permit

Authorises the holder of the permit, and any authorised employee, to possess, buy, sell and manufacture prohibited weapons of the kind specified in the permit, but only in the course of carrying on business as a weapons dealer and only at the premises specified in the permit (or at such other premises as may be approved).

Theatrical weapons armourer permit

Authorises the holder of the permit, and any authorised employee, in the course of carrying on business as a theatrical weapons armourer:

(a) to possess, use, buy, sell and manufacture prohibited weapons of the kind specified in the permit, and

(b) to supervise and train persons who are involved in a cinematographic, television or theatrical production in the use of prohibited weapons to which the permit relates.

The authority conferred by a theatrical weapons armourer permit also authorises those persons who are involved in the cinematographic, television or theatrical production concerned to possess and use prohibited weapons to which the permit relates, but only while under the supervision of the holder of the permit or an authorised employee.

15 Section 9 requires a person to apply to the Commissioner for a permit and sets out the form and content of the application. Section 10 empowers the Commissioner, after considering an application, to issue or refuse a permit, and sets out relevant considerations. Section 10(4) provides that the Commissioner may refuse to issue a permit if he or she considers it would contrary to the public interest. Section 11 states:

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 ...

16 The Table in s 11(2) includes a number of reasons not relevant to this matter. The following reasons are relevant:

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

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

17 Section 14 empowers the Commissioner to issue a permit “subject to such conditions as the Commissioner thinks fit to impose and as are specified in the permit”.

18 Section 35 enables a person to apply to the Tribunal for the review of a decision to refuse a permit, impose a condition on a permit or revoke or suspend a permit.

General Submissions

19 During the course of these proceedings, Mr Martin expressed his dissatisfaction with the lack of information provided by the Firearms Registry as to the application process and the need to supply supporting documentation. He is obviously extremely frustrated at what he considers to be the unduly restrictive approach now being adopted by the Firearms Registry. He contends that he was not informed of the need to provide supporting documentation, yet his application was refused on the ground that he did not do so.

20 Mr Martin is also frustrated at what Mr Capper referred to in his affidavit (at par 51) as the “industry standard”, which Mr Martin suggests has been developed without proper industry consultation, and which industry standard, he submits, acts as a fetter on the exercise of the Commissioner’s discretion. Mr Martin noted that in his affidavit, Mr Capper refers to a review of the Act undertaken in 2004. Mr Capper states that submissions for this review opened in early 2004 and closed on 15 May 2004. The outcome of the review, which led Mr Capper to develop the industry standard, is yet to be published. Mr Martin said neither he nor any other permit holders that he knows were made aware of the review or call for submissions.

21 Mr Cuddy, speaking on behalf of Mr Martin, also referred to the decision in Clyne v Commissioner of Police, NSW Police [2004] NSWADT 52 (‘Clyne’), where the Tribunal drew attention to the rule against fettering, in support of his contention that in Mr Martin’s case, the delegate of the Commissioner, Mr Capper, fettered his discretion by formulating an “industry standard” and applying this without proper regard to Mr Martin’s individual circumstances.

22 Mr Cuddy referred the Tribunal to the decision in Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10 (‘Osborne’), where the Appeal Panel discussed the approach to be adopted in statutory construction:

“35 As we interpret ss 33 and 34 [of the Acts Interpretation Act 1987], the method to be adopted has two steps with the second step, the s34 step, subordinate to the first step, the s 33 step. First an attempt should be made to ascertain the meaning of the text. That step can be informed by having regard to the objects and purpose of the legislation and the content of the legislation as a whole. The second step, the s34 step, is ancillary. Section 34 provides a variety of options. Under sub-s (1), the ancillary step may involve considering the extrinsic material ‘to confirm’ that the meaning attributed as the ordinary meaning of the provision is consistent with the extrinsic materials; or to ‘determine’ the meaning of the provision if it is ambiguous or obscure; or to resolve the meaning if the ‘ordinary meaning conveyed by the text ... leads to a result that is manifestly absurd or is unreasonable.’

36 By virtue of sub-s (2) the second reading speech, or other extrinsic material, may be ‘considered’ in the interpretation of the provision of an Act. But in our view it is not appropriate to proceed to a consideration of the second reading speech, or other extrinsic document, without first seeking to interpret the provision in issue. It is necessary first to examine and analyse the provisions of the Act for the purpose of determining whether or not there are good reasons to resort to the second reading speech, or other extrinsic document ...”

23 Mr Cuddy submitted that reference to extrinsic materials, such as the Second Reading Speech on the introduction of the Bill for the Act to Parliament, is only permitted where the meaning of particular words in an Act are unclear.

24 With regard to the decision in Petty v Commissioner of Police, NSW Police Service [2003] NSWADT 20 (‘Petty’), where the Tribunal referred to the Minister’s Second Reading Speech, Mr Cuddy submitted that the Tribunal erred at par 30, when expressing the view that:

“it is the intention of Parliament that a strict interpretation be given to the requirement that an applicant for a Prohibited Weapons Permit prove a genuine reason for possession or use of a prohibited weapon”.

25 Mr Cuddy submitted that in determining whether a permit is reasonably necessary in the conduct of an applicant’s business, the decision in Osborne should be followed. The Appeal Panel, at par 48, adopted the narrower approach of focussing “on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes that business”. Thus, in Mr Martin’s case, the relevant question is what is reasonably necessary for him to carry on his business? The answer to this is that Mr Martin conducts his business by offering access to a reasonable stock of prohibited weapons in order to meet industry demands.

26 Mr Cuddy said Mr Capper’s interpretation of the legislation contradicts the approach adopted in Osborne. Mr Capper’s interpretation requires that the applicant must produce an end-user certificate – that is evidence from the person requiring the use of a particular weapon in a production – in the case of each prohibited weapon for which a permit is sought. Mr Cuddy referred to a fax received by Mr Martin from Trish Berry of the Firearms Registry on 8 September 2006. Ms Berry stated:

“please note that you will need to demonstrate your reason for each type of prohibited weapon for which you need authorisation. In other words, you must be able to demonstrate that you have an end user for each type of prohibited weapon you requested, or demonstrate that interest has been expressed in you supplying each type of prohibited weapons, for specific film, television or theatre productions.”

27 Mr Cuddy pointed to the wording of s 11(2)(a) of the Act, which refers to the Commissioner being satisfied if the applicant “states that he or she intends to possess or use the weapon”. He submitted that the intention of the legislation is to allow theatrical armourers to have stock available for use. Mr Martin already has a prohibited weapons dealer permit (no 409005421) and a prohibited weapons collector permit (no 409414751), which entitle him to possess all the prohibited weapons listed in Sch 1. The prohibited weapons collector permit, issued by Mr Capper on 23 November 2006, authorises Mr Martin to possess, but not to use, a wide range of different types of prohibited weapons for the purpose of maintaining the weapons as a collection and/or displaying the weapons for educational, historic or commemorative purposes.

28 Mr Cuddy said many other theatrical armourers are experiencing similar problems in their dealings with the Firearms Registry. Mr Martin said that like any service industry, theatrical armourers must have a stock of prohibited weapons available to meet customer demands. Since theatrical armourers are also required to train and supervise persons in the use of the weapons in a production, it is also necessary to have the weapons to hand in advance so that the armourer is fully aware of how the weapons can be used safely and is capable of instructing a person in the safe use of the prohibited weapons for the purposes of a production.

29 Mr Pisani, for the Commissioner, submitted that the Tribunal must have regard to the objects of the Act set out in s 3, emphasising (s 3(1)(a)) that the possession and use of prohibited weapons is a privilege conditional on the overriding need to ensure public safety. Moreover, each person who possesses or uses a prohibited weapon under a permit must have a genuine reason for doing so (s 3(2)(a)) and the Act is to provide “strict requirements” to be satisfied in relation to the possession and use of prohibited weapons.

30 Section 11(1) requires the Commissioner not to issue a permit unless the applicant has a genuine reason for possessing or using the weapon. The Commissioner may be satisfied of this if the applicant is able to produce evidence of satisfying specified requirements (s 11(2)(b)). Thus, where an applicant seeks a theatrical weapons armourers permit (s 8(1)), the applicant must produce evidence in respect of each prohibited weapon that a permit is required for a film, television or theatrical production. To issue a carte blanche permit for all categories of prohibited weapons would be contrary to the intention of the legislation. Mr Pisani noted that the standard of proof required is that of the balance of probabilities (Petty, par 7).

31 Ms Pisani submitted that Mr Capper is not fettering his discretion by developing and applying an “industry standard”. He is simply applying the legislation and requiring applicants to demonstrate that they have a genuine reason for requiring a permit for a particular weapon. In the case of a permit required for film/TV/theatrical purposes, the requirement in s 11(2) is that the applicant “must demonstrate that the film, television or theatrical activity concerned requires the possession or use of the prohibited weapon for which the permit is sought”.

Submissions in relation to specific prohibited weapons

32 Mr Martin seeks the inclusion of all categories of prohibited weapons in his permit. However, Mr Cuddy made specific submissions in relation to five particular types of prohibited weapons listed in Sch 1 of the Act.

33 Category 1 Knives: (5) Trench knives. Mr Cuddy said there appears to be confusion about what a trench knife is. The name is derived from their use in the trenches in World War I (when they were often broken bayonets) and World War II, in Korea and Vietnam. However, the description ‘trench knife’ is also now used in relation to knives used in science fantasy films, fitted with a handle to protect the knuckles and increase the effect of a blow. Mr Martin has a need for a permit in respect of authentic trench knives because in historical war productions they have the effect of establishing period authenticity.

34 Mr Pisani referred to Mr Capper’s affidavit dated 20 February 2007 and his reasons for refusal, where he said Mr Martin “was unable to demonstrate a legitimate need for such an item, nor a request from any person or organisation to supply this item”.

35 Category 2 Miscellaneous weapons: (19) Knuckle-dusters. In his written submissions, Mr Martin noted that in his affidavit, Mr Capper recognised that it is possible such an item “may be requested by a theatrical production depicting gang/criminal activities”. Mr Martin doubted replica knuckle-dusters made from rubber or other similar ‘soft’ substances, as suggested by Mr Capper, would appear authentic. He noted that possession of knuckle-dusters, like other types of prohibited weapons, is strictly controlled.

36 Mr Capper said Mr Martin had not been able to demonstrate a legitimate need for such an item, nor a request for its supply, and why his needs could not be met from replica items made from a soft substance.

37 Category 4 Miscellaneous articles: (3) Silencers, and (5) Brass catchers. Mr Cuddy said that silencers have a legitimate role in movies. In his written submissions, while Mr Martin agreed that silencers should be highly restricted items, he said their use might be needed “to depict the silent and skilful assassin or commando”. Brass catchers, originally a wire cage or canvas bucket used to catch bullets expelled from a semi-automatic or automatic weapon, are needed for theatrical productions to be realistic.

38 In his affidavit, Mr Capper stated:

“It was further considered that the theatrical value of these items would be minimal to nil, due to the fact that more theatrical value is generally obtained through the use of a firearm without a silencer, and particularly the sight of bullets being expelled from a firing weapon is more theatrical than them simply disappearing into a brass catcher. Similarly, the expulsion of the items in a visible manner ensures that the action of firing the firearm is more realistic.”

39 Mr Capper said the use of a silencer can make the identification of a firearm more difficult, as the silencer can alter the striations on the bullet expelled. He said the “use of brass catchers ensures that criminals can avoid more likely avoid [sic] detection by ensuring they leave no cartridges behind”. Again, Mr Capper said Mr Martin was unable to demonstrate either a legitimate need for these items or a request for their supply.

40 Mr Pisani submitted there is a need for restrictions on the availability of silencers for public safety reasons and, if a brass catcher falls into the wrong hands, it makes the investigation of crime more difficult.

41 Category 4 Miscellaneous articles: (4) Firearms magazines. In his written submissions, Mr Martin noted that he has been granted a permit to hold such magazines under the Firearms Act 1996 but yet is not permitted to possess and use such magazines for theatrical purposes. Such magazines are needed for use, for example, in realistic portrayals of police work (NSW police carry two magazines) and war movies. Mr Martin said magazines were recently required for the filming in Sydney of ‘Superman’, and stated that in forthcoming work planned for the film ‘Kokoda’, he will be supplying Bren Guns and will also need a permit for the Bren Gun’s 28 round magazine for accurate portrayal of the equipment.

42 In his affidavit, Mr Capper said these items are highly restricted due, essentially, to safety concerns, and repeated that Mr Martin “was unable to demonstrate any need for this item in the conduct of his business”.

Discussion and Findings

43 The role of the Tribunal is to review the decision which is the subject of Mr Martin’s application, standing in the shoes of the original decision-maker, and making the correct and preferable decision (s 63(1) of the ADT Act). There is no question that Mr Martin “is a fit and proper person who is of good fame and character” (Capper affidavit, par 59), and there has been no suggestion that he is not a person who can be trusted to have possession of prohibited weapons without danger to public safety or to the peace.

44 Pursuant to s 11(1) of the Act, the issue, therefore, is whether Mr Martin has a genuine reason for possessing or using the prohibited weapons in respect of which he seeks a theatrical weapons armourer permit. The Table in s 11(2) provides guidance as to what the applicant must demonstrate to establish that he or she has a genuine reason where the use or possession of prohibited weapons is for particular purposes. An important issue is whether the applicant for a permit needs to establish a ‘genuine reason’ specifically in relation to each individual prohibited weapon required, or whether it is sufficient to establish a genuine reason for particular types of prohibited weapon (for example, trench knives, knuckledusters, silencers, brass catchers, firearms magazines) listed in the four categories set out in Sch 1?

45 The parties have referred me, in particular, to two previous decisions of the Tribunal in relation to this issue. The decision in Petty concerned an application for a permit under the Act for the possession and use of slingshots for the purpose of deterring and controlling introduced and feral vermin on Mr Petty’s 6.8 acre property. The application to refuse a permit was affirmed by the Tribunal, which was not satisfied that Mr Petty had a genuine reason for possession and use of the prohibited weapon within the meaning of s 11 of the Act. At par 7 of the decision, the Tribunal noted that where “there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities”.

46 At par 29, the Tribunal referred to the Second Reading Speech upon the introduction of the Bill for the Act into the NSW Legislative Council, in which the Minister referred to the need for an applicant “to prove a genuine reason for possession or use of a prohibited weapon” and to “the strict requirements that must be satisfied in relation to the possession and use of prohibited weapons”. At par 30, the Tribunal expressed the view that “it is the intention of Parliament that a strict interpretation be given to the requirement that an applicant for a Prohibited Weapons Permit prove a genuine reason for possession or use of a prohibited weapon”.

47 In Osborne, the Appeal Panel had regard to a ‘genuine reason’ requirement in the Firearms Act 1996. Under that Act, a particular category of licence authorised a person to possess or use a firearm, but only for the purpose established by the licensee as being his or her genuine reason for having the licence. An applicant was therefore required to demonstrate a ‘genuine reason’ for possession and use of the firearm in his or her business.

48 The Appeal Panel held, at par 48, that: “[t]he test should be read so as to focus on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes the business.” In Osborne, the applicant chose to travel alone carrying dangerous goods to isolated locations, and contended that he needed to carry a pistol for his personal protection. The Appeal Panel emphasised, at par 50:

“The Commissioner’s task is to look at the type of business conducted by the applicant, and ask whether for that type of business the nominated firearm should be regarded as necessary. The instances that would justify possession of a pistol for the protection of the business’s property, applying the test, would be rare. That outcome is consistent with the social purpose of the legislation.”

49 The Appeal Panel found it was not essential to the process of dealing in firearms to do business in this way, and thus the nominated firearm was not necessary for that type of business.

50 In my view, the same approach should be adopted in Mr Martin’s case. The question to be asked is whether Mr Martin has a genuine reason for needing a permit for the possession or use of particular type of prohibited weapons in his business. Such an approach is consistent with the objects of the Act stated in s 3(1), and, in particular, with the need to ensure public safety and impose strict controls on the possession and use of prohibited weapons. Moreover, it is consistent with the s 3(2) requirement that each person who possesses or uses a prohibited weapon has a genuine reason for doing so.

51 Mr Martin’s business is that of a theatrical weapons armourer. Pursuant to s 11(2), the Commissioner may be satisfied that the applicant has a genuine reason for possessing or using a prohibited weapon, if the applicant can demonstrate that the possession or use of such a prohibited weapon is required in the conduct of his business for film, television or theatrical activity. This does not, in my view, mean that he must demonstrate the need for a specific prohibited weapon in respect of each film, television or theatrical production in which his business is involved. That would be unduly restrictive of his business activity and make it difficult for him to develop the supervisory and training skills that may be involved in carrying on his business. What Mr Martin must demonstrate is that he is operating the business of a theatrical weapons armourer and a person conducting such a business has a genuine reason for the possession or use of particular types of prohibited weapons.

52 In Osborne, the Appeal Panel noted that, pursuant to s 33 and 34 of the Acts Interpretation Act 1987, the approach to be adopted in interpreting the words of the legislation is, first, to ascertain the meaning of the words having regard to the stated purpose and objects and the content of the legislation as a whole. Second, reference may be made to extrinsic materials in order to confirm the meaning of the words, or if the meaning is ambiguous or obscure or would lead to a result that is manifestly absurd or unreasonable. In the present case, my view is that it is not necessary to take the second step, the wording of the objects clause being sufficiently clear.

53 Turning to the particular decision under review, the evidence before me suggests that there has been a lack of information provided by the Firearms Registry about the requirements for particular permits. Mr Martin has undoubtedly been confused and frustrated by the course of events. It would also be of concern if Mr Capper has developed an “industry standard” without proper consultation with the industry itself. Because I only have minimal information about the review of the Act conducted by Mr Capper and no information about the consultation process itself, I am unable to form any view as to whether or not such consultation has taken place.

54 However, I note that Mr Capper has apparently, on occasion, acted on what appears to be supposition about the needs of theatrical productions. For example, he has expressed a view about the use of silencers based, it would seem, on his own assessment of what is of theatrical value, a view that is at odds with that of Mr Martin. I also find his concern about the use of brass catchers curious if, as seems to be the case, he was satisfied by Mr Martin’s reasons for the possession and use of inherently dangerous articles such as bombs and firearms. I am satisfied that Mr Martin has demonstrated a genuine reason for his permit to extend to include trench knives, brass catchers and firearms magazines to ensure historical authenticity in the depictions of weaponry in film, television and theatrical productions. I am also satisfied that he has demonstrated the need for his permit to extend to include knuckle-dusters and silencers so that, where appropriate, these can be used in realistic representations of criminal conduct.

55 I note that Mr Capper’s industry standard does not constitute Government policy within the meaning of s 64(5) of the ADT Act, where Government policy is defined as meaning policy adopted the Cabinet, the Premier or any other Minister. Thus, although Mr Capper’s industry standard may be useful guide for the Firearms Registry, the Tribunal is not required to give effect to it. Moreover, pursuant to the rule against the fettering of the exercise of discretion, care must be taken to ensure that such policy is only a guide, and the circumstances of a particular application must be must be properly considered on its facts: Clyne at par 17 ff.

56 In the decision under review dated 22 May 2006, the delegate stated “I can find no evidence to support your statement that you are involved in filming theatrical productions”. The reason for the perceived lack of evidence appears, in part, to be the result of a lack of understanding by Mr Martin of what was required of him. This in turn appears, in part, to be due to poor communication by the Firearms Registry. In the course of these proceedings, Mr Martin has produced a significant volume of additional material to support his case. In my view, it is appropriate that the Commissioner should now reconsider the decision in the light of that material.

57 I have set out above what I consider to the correct approach to determining Mr Martin’s application for a theatrical weapons armourer permit. I am not clear from the statement of reasons provided by the delegate whether or not the delegate was unduly influenced by the lack of evidence from those whom Ms Berry, the Acting Co-ordinator of the Case Management Unit of the Firearms Registry, in a fax to Mr Martin dated 8 September 2006, referred to as “end users”. As I have stated above, what Mr Martin must demonstrate is that he is operating the business of a theatrical weapons armourer and that a person conducting such a business has a genuine reason for the possession or use of particular types of prohibited weapons. However, he is not required to demonstrate the need for a specific prohibited weapon in respect of each film, television or theatrical production in which his business is involved.

58 In my view, given the particular circumstances of this case, the appropriate decision is for me to set aside the decision under review and remit the matter to the Commissioner for reconsideration in accordance with these reasons.

Decision

The decision under review, dated 22 May 2006, is set aside and the matter is remitted to the Commissioner for reconsideration in accordance with these reasons.