Pikul v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 113

CITATION:	Pikul -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 113
DIVISION:	General Division
PARTIES:	APPLICANT Dimitri Pikul RESPONDENT Commisssioner of Police, New South Wales Police Service
FILE NUMBER:	013014
HEARING DATES:	10/05/01
SUBMISSIONS CLOSED:	05/10/2001
DATE OF DECISION:	07/03/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Rural Lands Protection Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, solicitor
ORDERS:	1. The decision of the Commissioner to refuse to grant Mr Pikul a Category D firearms licence is affirmed.

Introduction

1 On 29 January 2001, Mr Pikul applied to the Tribunal for a review of a decision of the Commissioner of Police. The decision was to refuse his application for a Category D firearms licence. Mr Pikul has a Category A, B, C and H firearms licence, but says that a Category D licence is necessary for the control of vertebrate pests on his property. A Category D licence would allow him to use a “semi auto centre-fire” weapon.

2 Under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act) the Tribunal must decide whether the Commissioner’s decision not to grant Mr Pikul a Category D licence was the “correct and preferable” decision. Rather than have a hearing, the parties consented to the Tribunal determining this matter “on the papers” under s 76 of the ADT Act.

Evidence

3 Mr Pikul filed documents which stated that he has 3064 acres of hilly, rough, heavily timbered land. He needs a Category D licence to control vertebrate pests including pigs, wild dogs, foxes, goats and deer. He also saw the licence as necessary to stop the spread of contagious diseases such as brucellosis, foot-rot, Ovine Johnes disease and worms. Professional contract shooters are not an option for him because of the cost and irregularity with which the animals are seen.

4 He said a centre fire firearm is capable of longer distances, several rapid shots and greater penetration. This type of firearm is required because of thick vegetation.

5 Mr Pikul also provided the Tribunal with a copies of two letters from the Central Tablelands Rural Lands Protection Board; one dated 9 June 2000 and the other dated 7 March 2001. The letters are almost identical. A relevant passage common to both letters is as follows:
The Rural Lands Protection Board Act requires all occupiers of rural land to fully and continuously suppress and destroy all noxious animals on the land.

Legislation

6 The starting point for considering the requirements for the granting of a Category D firearms licence is s 15 of the Firearms Act 1996 (the Act). That section states that:

The Commissioner must not issue a category D licence to any person unless:


(a) the genuine reason established by the person for being issued with the licence is that of vertebrate pest animal control, and

(b) in addition to establishing any such genuine reason, the person produces evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a firearm to which a licence category D applies, and

(c) in the case of a person referred to in paragraph (c) of the genuine reason of vertebrate pest animal control, the person produces evidence to the Commissioner's satisfaction that any such special need cannot be met by any other means (including by the authority conferred by a category A, category B or category C licence, or by engaging the services of a professional contract shooter).


7 In order for an applicant’s genuine reason to be vertebrate pest animal control, he or she must meet the requirements in relation to that reason set out in s 12 of the Act. So far as it is relevant to this case, that section states that:

(1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.
Reason: vertebrate pest animal control
The applicant must be:


(a) a professional contract shooter engaged or employed in controlling vertebrate pest animals on rural land, or

(b) a person employed by or in, or authorised by, a government agency prescribed by the regulations that has functions relating to the control or suppression of vertebrate pest animals, or

(c) a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and who is participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are affected by brucellosis or tuberculosis.

8 The combined effect of these legislative provisions when applied to Mr Pikul’s circumstances is that in order to be granted a Category D licence he must meet the following requirements:

· his “genuine reason” for applying for a Category D licence must be vertebrate pest animal control; and
· he must have a special need to possess or use a firearm to which a licence category D applies; and
· he must be a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production; and
· he must be participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are affected by brucellosis or tuberculosis.

Issue

9 The Commissioner accepted that the Mr Pikul is a primary producer for the purpose of s 12 of the Act, but not that he was “participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are affected by brucellosis or tuberculosis.” Unless Mr Pikul is participating in such a campaign, the Commissioner is not able to grant him a Category D licence.

10 The term “authorised campaign” is not defined in the Act. It must be given its ordinary meaning. “Authorised” is defined in the Macquarie Dictionary, 3rd edition, the Macquarie Library Pty Ltd 1997 as “endowed with authority” or “legally or duly sanctioned”. “Campaign” is defined as “any course of aggressive activities for some special purpose”.

11 The documents produced by Mr Pikul from the Rural Lands Protection Board say that the Board “requires all occupiers of rural land to fully and continuously suppress and destroy all noxious animals on the land.” The respondent’s submission is that these words are merely a statement of fact about the obligations of landowners and is not an “authorised campaign.”

12 In their letters of 9 June 2000 and 7 March 2001, The Rural Lands Protection Board appears to have been referring to s 126 of the Rural Lands Protection Act 1989 which makes it a criminal offence for the occupier of land to fail to “fully and continuously suppress and destroy by any lawful method all noxious animals that are on the land.”

13 Section 138 of the Rural Lands Protection Act 1989 gives the Rural Lands Protection Board the authority to conduct campaigns. That sections states that:

(1) A board may make arrangements for the conduct of campaigns for the suppression and destruction of noxious animals and may take all necessary steps for carrying out those arrangements.

(2) Arrangements under subsection (1) may be made with other boards or with the occupiers or owners of land within the board's district.

14 Mr Pikul has not provided any evidence that he is participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are affected by brucellosis or tuberculosis. All that he has provided is a letter from the Central Tablelands Rural Lands Protection Board which confirms that it is an offence to fail to “fully and continuously suppress and destroy by any lawful method all noxious animals that are on the land.” In the absence of any evidence of the requirement in s 12(1)(c) of the Act that Mr Pikul is participating in an authorised campaign, I am satisfied that the Commissioner has made the correct and preferable decision in refusing to grant Mr Pikul a Category D firearms licence.