Smith v Commissioner of Police, NSW Police

[2006] NSWADT 131

CITATION:	Smith v Commissioner of Police, NSW Police [2006] NSWADT 131
DIVISION:	General Division
PARTIES:	APPLICANT Roy Anthony Smith RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063140
HEARING DATES:	27/04/06
SUBMISSIONS CLOSED:	05/01/2006
DATE OF DECISION:	05/03/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	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 Firearms (General) Regulation 1997
CASES CITED:	Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 Ward v The Commissioner of Police [2000] NSWADT 28
REPRESENTATION:	APPLICANT S Mainstone, solicitor RESPONDENT W Pisani, agent
ORDERS:	The Commissioner’s decision is set asideIn substitution for that decision, the following decision is made:; The application by Mr Smith for a permit to hold an Open Day at the Sydney International Shooting Centre, Kemps Creek on 20 and 21 May 2006 in conjunction with a Shooting, Hunting and Outdoor Trades Expo is approved on the following conditions:; Each person applying to participate in a shoot, must:; (i) register his or her name, address and date of birth with club officials at the venue;; (ii) produce photo identification;; (iii) complete and sign a declaration form containing the following questions:; Have you, in NSW or elsewhere:(a) been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?; (b) been the subject of a firearms prohibition order?; (c) within the last 10 years, been convicted of an offence involving firearms or weapons, prohibited drugs or offences involving violence?; (d) within the last 10 years, been the subject of a Family Law or Domestic Violence Order or an Apprehended Violence order, other than an Order which was revoked ?; Are you currently, in NSW or elsewhere:; (a) subject to a good behaviour bond?; (b) suffering from any mental illness or other disorder that may prevent you from using a firearm safely?; Mr Smith, or other officials from the St Marys Club, are to:; (a) record the personal details and photo identification details of each person approved to participate in a shoot;; (b) refuse to allow any person to participate in a shoot unless they answer “No” to each of the questions in the declaration;; (c) provide the Firearms Registry with copies of the signed declarations together with the details on the photo identification to the Firearms Registry within 21 days of the Open Day.

Introduction

1 Mr Smith is the executive director of the Sporting Shooters Association (NSW) Inc. On 21 December 2005, he applied on behalf of St Marys Pistol Club to the Commissioner of Police under the Firearms Act 1996 for a firearms permit. The permit was to authorise the possession and use of shotguns, rifles and pistols by visitors to an Open Day so that they could participate in target shooting. The Open Day is to be held at the Sydney International Shooting Centre, Kemps Creek on 20 and 21 May 2006 in conjunction with a Shooting, Hunting and Outdoor Trades Expo (S.H.O.T Expo). On 10 March 2006, when Mr Smith had not received a response to his request, he contacted the Firearms Registry. He received a Notice of Refusal the next day. The only reason the Firearms Registry gave for refusing the application was that it was being held in conjunction with the S.H.O.T Expo and the Commissioner’s delegate was not satisfied that it would be in the public interest for the permit to be issued. Mr Smith then requested an internal review of that decision which provided more detailed reasons for the refusal. The Commissioner said that he does not have the power under the Firearms Act 1996 to issue the permit. Alternatively, he said that even if he did have the power to issue the permit, it was contrary to the public interest to do so.

2 On 3 April 2006, Mr Smith applied to the Tribunal for a review of the Commissioner’s decision. Mr Mainstone, who represented Mr Smith, says that not only does the Commissioner have the power to issue a permit for an Open Day, but the Commissioner has acted beyond his power by refusing the permit. That is because the Commissioner has fettered his discretion by making a blanket rule not to issue any permits for Open Days. Even if he has not acted beyond power in refusing the permit, Mr Mainstone says that there is virtually no risk to public safety in allowing members of the public to participate in target shooting under strict supervision.

3 The Tribunal’s role is to “stand in the shoes” of the Commissioner and decide what the correct and preferable decision is having regard to any relevant factual material and any applicable written or unwritten law: s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act). I deal firstly with the Commissioner’s argument that it is beyond his power to issue a permit for Open Days and with Mr Smith’s submission that it is beyond the Commissioner’s power to refuse the permit. I will then deal with the question of whether the Commissioner made the correct and preferable decision in refusing to issue a permit.

Power of Commissioner to issue permits

4 The Firearms Act contains two schemes – one for the issuing of licences and the other for the issuing of permits. The licensing scheme allows the Commissioner to issue licences only for genuine reasons. Those reasons are sport/target shooting, recreational hunting/vermin control, primary production, vertebrate pest animal control, business or employment and firearms collection. The Commissioner may also issue permits. Permits are designed to authorise certain activities not covered by the licensing provisions. Most of those activities are specific, for example, to authorise the use of a firearm by a minor or for film or theatrical productions. However, s 28(g) gives the Commissioner a general discretion to issue permits. That provision states that:

The Commissioner may issue permits for any one or more of the following purposes:
(g) to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate

5 Section 29 and Clause 9 of the Firearms (General) Regulation 1997 (the Regulation) set out both mandatory and discretionary grounds for refusing to issue a permit. None of the mandatory grounds applies to the facts of this case. The discretionary ground that the Commissioner relied on in refusing the permit was the provision in s 29(4) which states that:

Despite any other provision of this section, the Commissioner may refuse to issue a permit if the Commissioner considers that issue of the permit would be contrary to the public interest.

6 The Commissioner submitted that issuing a permit for the purpose of an Open Day would not be in accordance with the principles and objects of the Act, and would be beyond his powers. Section 3 sets out the principles and objects of the Firearms Act:

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.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms. (Emphasis added.)

7 The Commissioner highlighted s 3(1)(a) and (b) and said that they were provisions which make it unlawful for a permit to be issued in the circumstances of this case. There is nothing in the principles or objects of the Firearms Act that prevents the Commissioner from issuing a permit under s 28(g) for the purpose of conducting an Open Day. The principles and objects in s 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. They are entirely consistent with the permit scheme which, for example, allows the Commissioner to refuse an application for a permit when it is contrary to the public interest. As long as the Commissioner acts lawfully when exercising that discretion, he will not have acted beyond power.

8 Section 3(2)(c) requires each person who possesses or uses a firearm under the authority of a licence to establish a genuine reason for possessing or using the firearm. The Commissioner submitted that allowing members of the public to participate in target shooting would be contrary to s 3(2)(c) because those people do not have a genuine reason for possessing a firearm. This submission is misconceived because s 3(2)(c) relates to the licensing provisions, not the permit provisions. The permit scheme operates independently of the licensing scheme and the Commissioner is not required to refuse a permit merely because the activity concerned is not a “genuine reason” under the licensing scheme. In Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 at [38], the Tribunal said:

The licensing provisions do not, on a proper construction of the Act, limit the range of activities for which a permit may be issued – the only limitation is the Commissioner’s assessment of what is appropriate in the circumstances, subject to any proper guidelines for the exercise of that discretion. If the licensing provisions did set the outer limits of the activities for which a permit could be issued then there would be no need for a provision such as s28(g).

9 We agree with that observation and consequently reject the Commissioner’s submission that s 3(2)(c) means that it is beyond power for the Commissioner to issue a permit for an Open Day.

Acting beyond power in refusing the permit

10 Mr Mainstone submitted that rather than acting beyond power if he issued the permit, the Commissioner acted beyond power by refusing the permit. That is because he made a pre-determined rule that in no case would he issue a permit for an Open Day. Mr Mainstone produced a letter from the Commissioner to the Leeton Rifle Club Inc dated 27 March 2006 in which the Commissioner stated that:

I wish to advise that as a consequence of legal advice received in response to an application by the SSAA (NSW) Inc for a Commissioner’s Permit to conduct an open day, the Firearms Registry has suspended the issuing of all Open Day Permits.

Should the Commissioner re-commence issuing open day permits (ie following a contrary decision by the Administrative Decisions Tribunal or legislative amendment), the Commissioner will reconsider any application currently on hand.

11 The internal review decision in relation to Mr Smith’s application is dated 20 March 2006, six days before the Commissioner’s delegate wrote to the Leeton Rifle Club Inc. Based on the content of the internal review and the letter, I am satisfied that the Commissioner was of the view on 20 March 2006 that it was beyond his power to issue permits for Open Days and that he would stop doing so. Coming to a view that he has no power to issue permits for Open Days is different from making a pre-determined rule that even though he has the discretion to do so, he would never exercise it. The making of such a rule would offend the rule against fettering. (See Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 (11 March 2004.) However, in this case, rather than making a blanket rule not to issue Open Day permits, the Commissioner wrongly assumed that he did not have the power to issue such permits. In this case, he also decided that if he did have power to issue the permit, he would decline to do so because it was contrary to the public interest. Consequently he did not unlawfully fetter his decision in relation to Mr Smith’s application. The next question is whether the Commissioner came to the correct and preferable decision when he exercised his discretion to refuse the permit.

Exercise of the discretion

12 In determining whether or not to issue a permit for an Open Day, the purpose of the permit must be considered and weighed against any risks to public safety involved. The purpose of the Open Day permit was:

(a) to promote and improve the sport of shooting through public relations programs; and

(b) to educate young people in the art of shooting, safe handling of firearms, field etiquette and a knowledge of the laws relating to firearms, hunting, target shooting and arms collecting

13 These purposes are lawful and legitimate. Although there was no evidence about the extent to which Open Days achieve this purpose, according to Mr Smith, they have been very successful. In 2005, over 1,000 people attended an Open Day and 1,700 shoots took place involving shotguns, rifles and pistols. Mr Smith said that in 2004 there were approximately 3,550 members of target shooting clubs in New South Wales. That number has declined slightly to 3,400 in 2006. Mr Smith said that since 1997 the Commissioner has issued hundreds of permits to allow shooting clubs throughout New South Wales to hold Open Days and the clubs were keen to continue with that activity. The Commissioner also pointed to other ways by which Sporting Shooters Association could achieve its objectives. For example, Clause 109 of the Firearms (General) Regulation 1999 allows new members of shooting clubs to try out target shooting under a three month authority, before they have to be licensed.

14 The public interest in promoting and improving the sport of shooting through Open Days must be weighed against any risk to public safety. While possession and use of firearms remains a lawful activity, there is always some risk of injury or death from the deliberate or accidental misuse of firearms. That risk can never be totally eliminated, except perhaps by banning Open Days. The Tribunal has held that:

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. ( Ward v The Commissioner of Police [2000] NSWADT 28 at [28].)

15 The question in this case is whether it is in the public interest to hold Open Days notwithstanding that there is some risk associated with them. When the firearms legislation was amended in 1996, Mr Smith says that the Commissioner of Police issued new guidelines for Open Days. Those guidelines include restrictions on the firearms that could be used by children between the ages of 12 and 18. The guidelines also deal with the need for supervision, the ratio of supervisors to participants and precautions relating to the safe-keeping of firearms and ammunition. Mr Smith’s application not only complied with the guidelines, but in relation to the ratio of supervisors to participants, it exceeded the guidelines by providing for one supervisor for each participant.

16 The evidence in support of the application for a permit comprised a detailed risk assessment prepared by Mr Adam Wheeler a security consultant. The assessment identified thirteen “risks” including unintended discharge of firearms, misfire or malfunction of a firearm and theft of firearms from the arms display. The level of risk, which is calculated by combining the likelihood of an event happening and the consequences if it does happen, was assessed as “moderate” for four “risks” including potential trip, slips or falls, unintentional discharge of a firearm and inadequate instructions by the range officers. In relation to moderate risks, the consultant explained that management responsibility must be specified in order to contain those risks. Overall, the risk assessment was identified as “low” or “acceptable”.

17 The Commissioner submitted, and Mr Smith agreed, that despite all the precautions that would be taken, there was a possibility that someone with a loaded firearm could deliberately shoot themselves or a member of the public standing nearby. Mr Pisani, acting for the Commissioner of Police, said that that was an unacceptable risk and that the permit should not be issued. I would prefer to rely on the risk assessment undertaken by a qualified security consultant. That assessment was that the overall risk was “low” or “acceptable”. In addition, Mr Smith has been involved with the Sporting Shooters Association (NSW) Inc. for the last 20 years. He is not aware of any incident involving a firearm at an Open Day that has put the public’s safety at risk.

18 One of the risks that the Commissioner was particularly concerned about was the fact that the Open Day was to be held in conjunction with the S.H.O.T Expo. As I have said, the Commissioner’s delegate did not elaborate on this concern in his initial refusal decision. In the internal review decision, the delegate said that while there are strict requirements for firearms dealers participating in the S.H.O.T Expo and as the Open Day was being held in the same building, the public would be at significant risk “by having loaded firearms in the building”. The Commissioner did not say what the nature of this risk would be. Mr Smith’s evidence was that the Open Day would take place in a separate part of the building which was the venue for shooting at the Olympic Games in 2000. I can only guess that the Commissioner is concerned about a firearm being shot into a wall, piercing the wall and injuring someone attending the S.H.O.T. Expo. Mr Smith’s recollection was that the walls are made from bricks and glass. There was no other evidence about the nature of the walls separating the areas.

19 The Commissioner had several other objections to the manner in which the Open Day was to be conducted, but either those concerns are addressed in the Risk Assessment or they were addressed by Mr Smith in his evidence. If the permit were to be granted, the only specific way in which the Commissioner suggested that the risk could be minimised was to conduct a rigorous registration and checking process for all those seeking to participate in shoots. I invited Mr Pisani to submit a list of questions that should be asked if I decided to set aside the Commissioner’s decision. The questions Mr Pisani suggested were as follows:

Have you, in NSW or elsewhere:
(a) been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?

(b) been the subject of a firearms prohibition order?

(c) attempted suicide or self harm or been referred or treated for alcoholism, drug dependence, or mental or nervous disorder?

(d) Within the last 10 years been convicted of an offence involving firearms or weapons, prohibited drugs or offences involving violence?

(e) Within the last 10 years been the subject of a Family Law or Domestic Violence Order or an Apprehended Violence order (other than an Order which was revoked) ?

Are you currently, in NSW or elsewhere:

(a) subject to a good behaviour bond?

20 While most of these questions are acceptable, the question relating to attempted suicide or self harm is too broad and may be in breach of the disability discrimination provisions of the Anti-Discrimination Act 1977. Additionally, NSW Police said that it is essential that each person seeking to participate in shoots register their details and produce photo identification. Details of the identification should be recorded by club officials. NSW Police also requested that if the Open Day was to go ahead, that Mr Smith forward the signed declarations together with the details on the photo identification to the Firearms Registry within 21 days of the Open Day.

Conclusion

21 Mr Smith has a legitimate reason for requesting a permit to allow unlicensed members of the public to try the sport of target shooting. There are other ways of promoting shooting as a sport, for example by allowing new members of shooting clubs to try out target shooting under a 3 month authority. Nevertheless, the Open Days have been successful public relations and educative exercise for shooting clubs throughout New South Wales. While the possession and use of a loaded firearm is an inherently dangerous activity, a detailed risk assessment has been undertaken. That assessment rates the overall risk to the public as “low” or “acceptable”. The concerns of the Commissioner have been answered either by the risk assessment or by Mr Smith’s evidence. The only way which in which the risk could be further minimised would be to put in place a detailed registration and checking procedure.

Orders

The Commissioner’s decision is set aside

In substitution for that decision, the following decision is made:

The application by Mr Smith for a permit to hold an Open Day at the Sydney International Shooting Centre, Kemps Creek on 20 and 21 May 2006 in conjunction with a Shooting, Hunting and Outdoor Trades Expo is approved on the following conditions:

Each person applying to participate in a shoot, must:

(i) register his or her name, address and date of birth with club officials at the venue;

(ii) produce photo identification;

(iii) complete and sign a declaration form containing the following questions:

Have you, in NSW or elsewhere:

(a) been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?

(b) been the subject of a firearms prohibition order?

(c) within the last 10 years, been convicted of an offence involving firearms or weapons, prohibited drugs or offences involving violence?

(d) within the last 10 years, been the subject of a Family Law or Domestic Violence Order or an Apprehended Violence order, other than an Order which was revoked ?

Are you currently, in NSW or elsewhere:

(a) subject to a good behaviour bond?

(b) suffering from any mental illness or other disorder that may prevent you from using a firearm safely?

Mr Smith, or other officials from the St Marys Club, are to:

(a) record the personal details and photo identification details of each person approved to participate in a shoot;

(b) refuse to allow any person to participate in a shoot unless they answer “No” to each of the questions in the declaration;

(c) provide the Firearms Registry with copies of the signed declarations together with the details on the photo identification to the Firearms Registry within 21 days of the Open Day.