Smith v Commissioner of Police, NSW Police

[2007] NSWADT 61

Set aside by Appeal:

CITATION:	Smith v Commissioner of Police, NSW Police [2007] NSWADT 61
DIVISION:	General Division
PARTIES:	APPLICANT Roy Anthony Smith for SSAA Pty Ltd RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	063285
HEARING DATES:	7 November 2006, 16 January 2007 and 19 January 2007
SUBMISSIONS CLOSED:	19 January 2007
DATE OF DECISION:	21 March 2007
BEFORE:	Fitzgerald K - Judicial Member
CATCHWORDS:	Firearms Act - shooting range - variation or revocation of approval - shooting range - variation or revocation of approval
MATTER FOR DECISION:	Princpal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 2006 Firearms Act 1996
CASES CITED:	Bevan and Commissioner of Police, NSW Commissioner of Police Service [2004] NSWADT 1 Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 England v Commissioner of Police, New South Wales Police [2006] NSWADT 95 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 MacDonald v Director-General of Social Security (1984) 1 FCR 354 Smith v Commissioner of Police, New South Wales Police [2006] NSWADT 131 Ward v Commissioner of Police, New South Wales Police [2006] NSWADT 28 Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91
REPRESENTATION:	APPLICANT S Mainstone, solicitor RESPONDENT W Pisani, agent
ORDERS:	The condition to Shooting Range Approval number 40919710 be amended so that: "The range is not to operate unless a designated Range Officer or Firearms Instructor is in attendance and directly supervising all activities involving firearms." is replaced with:; The range is not to operate unless a designated Range Officer or Firearms Instructor is in attendance and supervising all activities involving firearms: ; a) Where all participants are shooting only from Range B, and there are less than 5 customers waiting between the serving counter and Range B, supervision may be conducted from behind the serving counter provided that there are two designated Range Officers or Firearms Instructors present and at least one of the Range Officers or Firearms Instructors maintains a clear view of Range B at all times. ; b) In all other circumstances the designated Range Officer or Firearms Instructor must not conduct any other activities while responsible for range supervision and should regularly move between each range with shooters on it.

REASONS FOR DECISION

1 On 2 June 2006, Mr Barney Jenkins Manager, Firearms Registry, wrote to the secretary of St Mary's Indoor Shooting Centre enclosing an amended Shooting Range Approval number 40919710 under the Firearms Act 1996 for the shooting range located at 30 Power Street. Relevantly, this approval contained an amended range condition namely that: "The range is not to operate unless a designated Range Officer or Firearms Instructor is in attendance and directly supervising all activities involving firearms." The key difference with the previous approval was the insertion of the word “directly”.

2 By letter dated 14 June 2006 Mr Roy Smith, Manager for the St Mary's Indoor Shooting Centre, requested an internal review of the conditions attached to Range Approval number 409197101 as reissued by the Firearms Registry on [5] June 2006.

3 The internal review, dated 10 July 2006, confirmed the decision of the Commissioner. The internal review noted that the condition on the range approval was amended because of concerns as a result of an inspection of the range by the Firearms Registry's Range Inspector and a Firearms Registry Officer on 23 May 2006.

4 Specifically, the internal review relied on a letter dated 31 May 2006 from the Range Inspector who noted that during the inspection the range staff, who had the title Range Officer on their uniform, were also serving and working behind the counter and at various times these officers were not even observing or concentrating on the activities on the three ranges that were in use. The interval review also relied on a file note from the Firearms Registry Officer in attendance with the Range Inspector.

5 As recorded in that file note, the Firearms Registry Officer, Mr Oakley, observed a person near the exit door to the range in the process of lifting a rifle out of a carry case and heard the male staff member who was behind the counter at the time say to him: "Just leave it in the case, I will come over and clear the firearm". The staff member then walked from behind the counter to the person and checked the firearm.

6 These matters gave the Firearms Registry Range Inspector concern about the level of supervision at the range. It was noted that it was common practice at all other ranges apart from St Mary’s and the Silverdale range to have range officer/s on the firing line so as to have total control of the conduct of the firing line.

7 A hearing was held on 7 November 2006 and the parties invited the Tribunal to visit the St Mary's Indoor Shooting Centre which it did on 16 January 2007 before the hearing was concluded on 19 January 2007. The parties each provided the Tribunal with submissions in advance of that second hearing.

8 The precise position of the parties’ changed over the course of the hearing and site visit. In summary, the matter about which the parties disagree is the level of supervision that is appropriate at the St Mary’s Indoor Shooting Centre. The Commissioner seeks a range officer to be solely available to supervise the three ranges (one officer for all three ranges) and that this officer does not have other responsibilities when supervising the ranges.

9 The Applicant would accept two range officers to be on duty (as is current practice at the range) but seeks that the range officers be available to conduct other duties at the same time as they supervise the range.

Evidence

10 Mr Smith, as licence holder for the range approval for SSAA Pty Limited trading as St Mary's Indoor Shooting Centre, Mr Jenkins and Mr Oakley all gave evidence at the first hearing. Mr Oakley's file note also formed part of the evidence.

11 Mr Smith also provided a written statement dated 18 September 2006 and some written material about the St Mary’s Centre including a map of the centre as well as a risk assessment report commissioned by the SSAA from Training Instructional Design Consultancy Services. The report pointed to the sport of shooting as being one of the safest sporting activities in Australia (according to the New South Wales Sports Shooting Injuries Report 2000 also provided) and concluded that there was no evidence that the current safety processes at St Mary’s (where range officers determined the level of supervision required for each shooter) were failing nor that there was any decrease to public safety or increase in injuries. It is unclear what date the report was provided. It was written by Mr John Mumford who did not provide any oral evidence.

12 At the second hearing, Mr Smith also gave some further short evidence about procedures employed at the St Mary's Centre when it was busy.

13 The core evidence between the parties was not in dispute but their opinion as to the effect of that evidence differed.

Mr Jenkins' Evidence

14 Mr Jenkins gave evidence of his qualifications which included being in the army for approximately 20 years. He was a range officer that whole period and had built ranges. He repeated his observations of the site visit as set out in the internal review and summarized above.

15 He stated that he was responsible for just under 400 range inspections and that he had ascertained that it was general practice in New South Wales and in other states that the range officer was actually on the firing line, that is directly supervising. Mr Jenkins' concerns included that relying on a lack of accidents to date results in complacency which will lead to a safety breach.

16 Mr Jenkins stated that in his opinion direct supervision regardless of the experience of shooters was an integral part of range safety. He conceded that the St Mary’s Centre had a different set up to many other ranges (including being an indoor range) but stated that in his view that fact justified having one range officer for all three ranges rather than one for each range as is otherwise common. He did not consider this difference as justification for range officers engaging in other duties at the same time as they were responsible for supervising the range.

Mr Oakley’s Evidence

17 Mr Oakley repeated his observations of the site visit as set out in his file note and is summarised above and in particular gave evidence as to the incident where the gun was not cleared which had not been observed by Mr Jenkins. He acknowledged that the range officer’s response to this had not been slow. Mr Oakley’s evidence was that he had inspected one or two other ranges.

Mr Smith’s Evidence

18 Mr Smith gave evidence in his statement that “in essence Mr Oakley’s statement reflects” his recollection of the visit save for some of the specific words spoken between Mr Smith and Mr Oakley.

19 Mr Smith’s evidence was that it was not practical to have one person designated solely to supervision of the range as at any point in time there may not be enough shooters on the range to justify that expense.

20 He gave evidence that currently supervision at the St Mary's Centre was based on the number of shooters as well as the expertise and weapon type of any one shooter. He explained that the St Mary’s Centre was a purpose built indoor range to stop projectiles leaving the range and had an electronic target retrieval system to eliminate the need for shooters to go forward of the firing line. He also explained as relevant a range call button at every firing point which sounds an alarm for a range officer to attend to immediately. He outlined that it was range policy that no-one was allowed to leave the range without the firearm being cleared by a range officer. He noted that most of Mr Jenkins’ experience would be in the context of outdoor ranges.

21 Mr Smith points to the fact that when people come to the range who are not known to staff, or who are not experienced, they are personally taken to the firing line until it is demonstrated to staff that they can conduct themselves properly.

22 Once a shooter is identified as competent, then it was Mr Smith's evidence that further supervision was unnecessary. He spoke of the fact that to employ a range officer exclusively to supervise or observe the shooting on the range was not only not financially viable but was unnecessary, given the fact that most shooters are experienced and competent as well as the fact that the range had been purposely built. He elaborated that by purpose built he meant that shooters did not go forward of the firing line.

23 Mr Smith gave evidence that when the range becomes busy more range officers could be called in but it would depend on the activities occurring when the range was busy. He said that he had other staff in the building or could contact casual staff but that he believed adequate supervision was provided even when range officers were performing other duties as well as their supervision duties.

24 It was Mr Smith's evidence that supervision is adequate where there are two range officers on duty who operate from behind the counter serving customers and carrying out other duties but also watching the range and clearing weapons as necessary. His evidence was that even when there were 24 shooters on the line, so that each of the three ranges were full, if the shooters had a current licence and were aware of the range rules, more direct supervision was not needed. Mr Smith did agree in cross examination from Mr Pisani for the Commissioner that risks could be dealt with more quickly when there was a dedicated officer on the line but he had assessed these risks and thought it unnecessary that licensed people be supervised.

Tribunal’s Observations

25 The Tribunal conducted a visit to the St Mary's Centre and observed that it consists of three ranges with 8 shooting stations contained in each range. Each of the three ranges can hold a maximum of 8 participants.

26 Range B is directly in front of the serving counter with Range A to the left of that counter and Range C to the right of that counter. The only range to which visibility is clear from the counter is range B. However, between the counter area and Range B there are tables and chairs and a common space where people enter the shooting range. The view from the Centre to Range B is potentially obstructed when people come to the counter to be served.

27 It is not possible to view all of the stations in each of range A and C from the counter. The level of visibility changes depending on where at the counter a range officer is standing and which individual station is being observed. Some of the stations cannot be seen at all from various counter positions. This is a product of the geography of those ranges (as sitting to the left and right respectively of the counter) as well as poor lighting.

28 In each of ranges A, B and C, the shooting stations are tables separated by barriers and behind each set of tables there is a common area. The shooting area in front of the line is also common. The tables and barriers are not fixed. The barriers only extend above the tables and so when someone stands up from a chair they step back almost immediately into the common area. If someone were to climb over the table they would also be in a common area, the firing line.

29 During the range visit, Mr Smith demonstrated a lights and buzzer system that permits shooting range participants to notify the range officers when they require their weapons to be cleared. A button is pressed at the particular shooting station and a light then comes on outside the door of the relevant range.

Applicant's Arguments.

30 The primary argument for the Applicant was that the St Mary’s Centre is purpose built and that range conditions should take into account the different practical set ups of individual ranges. Further, that once range officers are satisfied that a participant is suitably licensed and experienced there is no need for further supervision.

31 It was the argument of the Applicant that clause 31 of the Firearms Regulation 2006 contains no reference to direct supervision such that the discretion given to the Commissioner and then the Tribunal under the Firearms Act 1996 needs to take into account all matters including the fact that the range had been purpose built and that other safety measure were in place. Similar arguments were raised in relation to clauses 86 - 88 of the Firearms Regulation 2006. The Applicant relied on these provisions to demonstrate that the only legislative requirement regarding the holding of range approval is contained within clause 88 which is consistent with the principles and objects of section 3 of the Firearms Act1996.

32 Mr Mainstone reiterated Mr Oakley’s evidence that, in relation to the incident where a gun was taken away from the range before being cleared, it had been dealt with straight away once observed by the range officer.

33 It was further put that even if there were 8 people on the range with 8 range officers supervising them, if a person took it upon themselves to act inappropriately that was human nature and all the supervision in the world would not be able to prevent it.

34 The Applicant pointed to the safety record of the St Mary's Centre and noted that there had been no incidences of death or injury there because adequate safety procedures were in place. Mr Mainstone for St Mary’s Centre contended that the range approval has been successfully operating without the use of the word “directly” in the condition and there is no need to change the current position. Further that it would create enormous logistical difficulties.

35 The Applicant further submits that the Tribunal can infer from the evidence of Mr Jenkins and Mr Oakley that the Respondent had made a predetermined rule that range officers must directly supervise persons on the firing line at all times, regardless of the differing circumstances of each individual range throughout New South Wales or the ability and experience of the shooter or class of firearms use. Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52, 7 to 24 was cited to support an argument that this was inappropriate. The Applicant drew specific attention to paragraph 189 of that decision where the Tribunal noted:

"most of the cases have stressed that the predetermined "rules" must never be so inflexible that the decision maker refuses to listen to an argument for exemption. In other words, the rule against fettering requires guidance rules either to contain their own waiver rule within them, or be capable of being put to one side where an individual argues his application to their case."
36 The Applicant submitted that the matters that the Respondent should have taken into account included the fact that the St Mary's range had been purpose built as an indoor shooting range with specific safety features. The Applicant conceded that the Respondent had a discretion to impose conditions on Range Approval and that the discretion is a broad one. However, the Applicant argued that in this situation the respondent was wrong and did not take into account adequately the particular features of St Mary’s.

37 Mr Smith’s statement also directed the Tribunal to various provisions of the SSAA Range Operations Rule Book and specifically the extracts referred to in the internal review. Namely that the Range Officer has total control over range activities (clause 3.1.1) and that firearms are not to be removed from the firing point until cleared by the Range Officer (rule 3.1.13). Other rules were also provided to the Tribunal but do not need to be reproduced here. It was Mr Smith’s evidence that these rules were developed for outdoor ranges. He also noted rule 3.1 that range control is an individual branch responsibility. I note that that clause also states that:

“These Rules are put forward as a minimum guide for Branches to adapt to their own particular circumstances” (emphasis added).
The Respondent's Case.

38 The Respondent submitted that the Tribunal should have regard to the objects and principals of the Firearms Act1996 and drew particular attention to section 3 of that Act. The Respondent also relied on clause 81 and clause 87 of the Firearms Regulations2006 to support the Commissioner's decision.

39 The Respondent submitted that given the layout of the St Mary’s Centre there is no clear unobstructed view of each and every firing line from the counter area and further that patrons could obstruct the view of any of the ranges from behind the counter when they queue there. It was also submitted that any range officer present behind the counter would be potentially fulfilling a number of duties, some of which would include the range obligations in relation to the arrival of shooters that may also involve activities such as the sale of items.

40 It was the Respondent's position that while a range officer is behind the counter their ability to fulfil their obligations pursuant to the relevant legislation is severely hindered. The Respondent relied on the evidence of Mr Jenkins of 7 November 2006 to support this and also pointed to the extent of experience of Mr Jenkins in relation to firearms and firearm ranges. It was the Respondent's position that direct supervision was necessary to allow a range officer to observe unsafe practices and immediately communicate with range users. Further that adequate supervision required clear sight of and easy access to the range with range officers being free from distractions.

41 The Respondent referred to the incident noted by Mr Jenkins and Mr Oakley as having the potential to put other range users at risk and stated that it could have been prevented with proper supervision.

42 It was the Respondent’s argument that a range officer should wherever possible be proactive in ensuring safety rather than reacting to an incident after it has arisen as even the most experienced shooters may become complacent. In this regard the Respondent drew the Tribunal's attention to extracts of the New South Wales Sports Shooting Injuries provided by the Applicant and referred to earlier. Specifically page 33 acknowledging lack of significant injuries is not a reason not to promote a more consistent safety procedure and that supervision of shooters by a designated range officer at the time shooting is in progress was a safety measure quoted by clubs. The Tribunal also notes that the authors acknowledge that existing safety measures are an important contributing factor to the safety of the sport.

43 Finally the Respondent submitted that the rule against fettering of a discretion had no application to the Tribunal in the present case as Mr Jenkins' concerns were in evidence and the Tribunal was able to have regard to them along with the other evidence.

Relevant Law

44 The role of the Tribunal is to determine whether, having regard to the underlying facts in the matter and the applicable law, the decision of the Commissioner is the correct and preferable one, see section 63 Administrative Decisions Tribunal Act 1997. The Tribunal undertakes a review of the merits of the original decision and is obliged to reconsider all of the material first considered, together with any other relevant material so as to confirm the original decision, vary it, or set it aside and substitute another (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

45 The Tribunal is to make its own decision and there is no presumption that the decision of the Commissioner is correct (section 63(1) of the Administrative Decisions Tribunal Act; MacDonald v Director-General of Social Security (1984) 1 FCR 354 at 357).

46 Section 3 of the Firearms Act 1996 contains the principals and objects of that act and the principles are stated as follows:

"(1) The underlying principles of this Act are:

a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

b) to improve public safety:

i) by imposing strict controls on the possession and use of firearms, and

ii) by promoting the safe and responsible storage and use of firearms, and

c) to facilitate a national approach to the control of firearms.”
47 The principles and objects in section 3 are intended as an aid to interpreting and applying the Firearms Act as a whole and as a guide to the considerations the Commissioner should observe when exercising his discretionary powers, see Smith v Commissioner of Police, New South Wales Police [2006] NSWADT 131 at 7.

48 Section 88 of that act provides for the making of regulations including with respect to:

"(l) clubs and shooting ranges for other firearms."
49 Clause 86 of the Firearms Regulations 2006 relevantly provides that a person may apply for the approval by the Commissioner of a shooting range. Sub-clause (3) states the Commissioner must not grant an approval of a shooting range unless:
"… (b) the shooting range meets the standards accepted by the Commissioner,

… (d) the applicant has control over the use of the shooting range…”

50 Clause 87 of the Firearms Regulations 2006 then provides:
"(1) The Commissioner may approve a shooting range either unconditionally or subject to such conditions as the Commissioner thinks fit (such as conditions relating to the control, administration, management, use and inspection by a police officer, or such other persons as may be approved, of the shooting range, and the preservation of public safety).

…

(3) The Commissioner may vary or revoke any conditions subject to which an approval has been granted or attach to any such approval additional conditions."

51 Clause 88 of that same regulation continues as follows:
“Without limiting the conditions to which the approval of a shooting range may be subject, any such approval is subject to the condition that the person who holds the approval for the range must ensure that, before any person uses a firearm at the shooting range, the person is authorised by a licence or permit to use the firearm for the purposes established by that person's genuine or legitimate reason, unless:

a) clause 110 or 111 applies in relation to that person, or

b) an open day permit … has been granted."

52 Clause 110(4)(b) and 111(2)(b) relate to persons who are not licensed and the use of unauthorised firearms on a shooting range and provide such persons must be under the supervision of a range officer.

53 Clause 31 of the Firearms Regulation2006 (Practising at approved ranges) provides relevantly:

"(3) It is a condition of the approval of a shooting range under Part 8 that the holder of a shooting range approval:

a) is to ensure that any person using the shooting range under this clause is supervised while doing so by a person appointed by the holder of the approval ..."

54 The Act permits the Commissioner to impose conditions on an approval and it is clear from the use of the words "may" and "as the Commissioner thinks fit" in clause 87 that that discretion is broad.

55 Similarly Regulation 89 provides further indication of the breadth of the Commissioner's discretion. That clause permits revocation of an approval of a shooting range "for such reason as the Commissioner thinks fit". Without limiting sub clause (1), sub clause (2) of Regulation 89 provides examples of situations where the Commissioner may revoke an approval and the preservation of public safety is the first example in that list.

56 No direct guidance is given to the Commissioner as to how the discretion is to be exercised but the objects and purpose of the Firearms Act 1996 make clear that firearm possession and use is a privilege and is conditional on the overriding need to ensure public safety (see for example Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 at 37, Bevan and Commissioner of Police, NSW Commissioner of Police Service [2004] NSWADT 1 at 17 and Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at 23.)

57 See also England v Commissioner of Police, New South Wales Police [2006] NSWADT 95 at 39 where it was said in relation to that principle:

"with these express words Parliament has indicated that the licensing and permit provisions of the Act and the Regulation should be strictly interpreted".
58 The type of conditions that are provided by way of example in Regulation 87 also highlight the important of safety with the specific mention of the "preservation of public safety" . In relation to public safety under the Firearms Act 1996, albeit in relation to another provision, Ward v Commissioner of Police, New South Wales Police [2006] NSWADT 28 at 28 is often cited where it was said:
"The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
59 Another example condition provided is "control … of the shooting range" . "Control" is not defined for the purpose of this Regulation, however, the Macquarie Dictionary definition of "control" includes "to exercise restraint or direction over …, to hold in check" This importance of "control" is further emphasised by Regulation 86 which forbids the Commissioner granting an approval of a shooting range unless certain conditions are met.

Decision

60 Though not using the words "directly" or "exclusively" the legislation does grant the Commissioner a broad discretion. The legislative framework makes clear that in exercising the discretion, control of the range and public safety are key factors to be taken into account by the Commissioner.

61 Further, although used in a more specific context, the word "supervise" is not defined in the legislation but its plain English meaning includes: "to oversee … during execution or performance; … have the oversight and direction of." This clearly anticipates more than merely checking licence and experience as shooters enter the range. The combined effect of this language is that what is expected is an on-going process while shooters are on the range not merely an initial consideration of safety.

62 The fact that the St Mary's Centre is purpose built is insufficient to overcome this in light of the legislative framework. In any event it is possible for participants to enter the firing line at St Mary's simply by climbing over a table.

63 Mr Smith's argument contends that supervision is adequate when licence and experience credentials are checked upon entering the range but the Tribunal does not agree, a fact demonstrated by the incident observed by Mr Jenkins and Mr Oakley when the participant left the shooting range prior to having his firearm cleared in contravention of the SSAA Range Rules and Firearms Registry Guidelines.

64 Further, Mr Smith points to the range rules and policies. While these are important for managing the range, the legislation contemplates that range safety extends beyond participants being aware of and understanding the range rules to control being exerted over the range to ensure that they are actually followed. In addition, rule 3.1 is directed to a point that is different to that raised by Mr Smith in that it requires supervision, not merely that rules be in place.

65 Mr Smith’s arguments leave much to circumstance and the judgment of those in attendance at St Mary’s at any particular time. The fact that to date there has not been any compromise to safety at the St Mary’s Centre is irrelevant to the considerations under the Firearms Act1996 which makes clear that public safety is paramount. Implicit in this requirement is that a safety regime be designed to prevent accidents rather than to implement safeguards only after they occur.

66 Mr Smith gave evidence that it was not financially viable to meet the amended condition as sought by the Commissioner though he did not give evidence as to the precise nature of the financial impact. In any event, it has been held in context of a breach of a condition of a firearm licence (and I see no reason why a similar principle does not apply here) that the impact on the individual licensee is not determinative. See Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph 22:

"… a decision maker should not shy from an exercise of [the] discretion merely on the grounds that the licensee may suffer hardship and or inconvenience.”
67 I do not accept the Applicant’s argument that the discretion of the Commissioner was fettered by Mr Jenkins and others failing to consider the specific circumstances of the St Mary’s Centre. There is no evidence before the Tribunal that the Commissioner made a pre-determined rule such that even though he had a discretion to impose a different condition, he would never do so. The Commissioner exercised his discretion in relation to the St Mary's Centre, as is evidenced by the internal review and the facts that he considered as part of that review related to the St Mary's Centre. The fact that Mr Jenkins consulted with Range Officers/Inspectors in other States and referred to common practice at other ranges is insufficient to amount to a fettering of the Commissioner's discretion.

68 In my opinion Mr Smith’s position does not ensure that a range officer is able to supervise the range such that it could be said that the range officer has control over the range. Even in the absence of customers it is not possible to supervise ranges A and C from behind the service counter. Range B while having a clear view from the counter has that view obstructed when customers are queuing or in the lounge. Further, range officers conducting other activities while responsible for range supervision will only distract them from this task. This is not adequate to ensure public safety.

69 However, taking into account the particular features of St Mary’s Centre and the distinction between ranges A and C on the one hand and range B on the other hand, the Tribunal considers that the correct and preferable decision is to amend the condition imposed by the Commissioner.

70 Key to this decision is that it is possible to observe Range B from behind the counter whereas it is not possible to observe ranges A and C from that position. Further, that visibility from Range B is disturbed when customers are present in the common area between the serving counter and the range.

71 Accordingly, the condition to Shooting Range Approval number 40919710 should be amended so that: "The range is not to operate unless a designated Range Officer or Firearms Instructor is in attendance and directly supervising all activities involving firearms." is replaced with:

"The range is not to operate unless a designated Range Officer or Firearms Instructor is in attendance and supervising all activities involving firearms:

a) Where all participants are shooting only from Range B, and there are less than 5 customers waiting between the serving counter and Range B, supervision may be conducted from behind the serving counter provided that there are two designated Range Officers or Firearms Instructors present and at least one of the Range Officers or Firearms Instructors maintains a clear view of Range B at all times.

b) In all other circumstances the designated Range Officer or Firearms Instructor must not conduct any other activities while responsible for range supervision and should regularly move between each range with shooters on it.

72 This gives the St Mary's Centre flexibility to have range officers serving customers from behind the counter when the range is not busy (and the risk of them being distracted is therefore low) but also acknowledges that Ranges A and C cannot be adequately seen from behind the counter and that visibility is obstructed to Range B when customers are present. It also recognizes Mr Smith's current practice to have two range officers on duty and to call in more range officers when the St Mary’s Centre is busy so should not cause undue hardship despite providing greater certainty that public safety is preserved.