Snape v Commissioner of Police

[2003] NSWADT 262

CITATION:	Snape v Commissioner of Police [2003] NSWADT 262
DIVISION:	General Division
PARTIES:	APPLICANT Ronald Phillip Snape RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	033079
HEARING DATES:	01/08/03
SUBMISSIONS CLOSED:	09/17/2003
DATE OF DECISION:	12/12/2003
BEFORE:	Rice S - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit
MATTER FOR DECISION:	Review
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994
CASES CITED:	Gibson v Commissioner of Police [2002] NSWADT 82 Irwin v Commissioner of Police [2003] NSWADT 39 May v Commissioner of Police [2001] NSWADT 82 Nebenzshl v Commissioner of Police, New South Wales Police Service [2000] NSWADT 123 Osborne v Commissioner of Police Service (GD) [2000] NSWADTAP 10
REPRESENTATION:	APPLICANT In person RESPONDENT J Klarica, barrister
ORDERS:	1 Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act the decision of the Minister is set aside.; 2 Pursuant to s88 of the Administrative Decisions Tribunal Act there is no award of costs.

1 For the reasons given below the decision of the Commissioner to refuse Mr Snape’s application is set aside. This means that Mr Snape’s application to the Tribunal is successful.

REASONS FOR DECISION

Background

2 Mr Snape holds a firearms licence in categories A, B and C (rifles and shotguns), issued on 27 January 1999. On 8 October 2002 Mr Snape applied to the Commissioner for Police (‘the Commissioner’) for a firearms licence in category H (a pistol). His application was refused on 16 January 2003 and on 26 February 2003 an internal review confirmed the decision to refuse the licence.

3 On 26 March 2003 Mr Snape applied to this Tribunal for a review of the Commissioner’s decision to refuse his licence.

4 The decision under review is the decision of the Commissioner on 16 January 2003 to refuse Mr Snape’s application for a category H licence.

Legislation

5 A gun licence is issued subject to the general restrictions imposed by section 11 of the Firearms Act (NSW) 1996. The Commissioner does not rely on any of the restrictions in section 11 as a basis for refusing Mr Snape’s application. The Commissioner’s Statement of Reasons for the internal review did make reference to section 11(3)(b) when he stated that:

Further, I am satisfied that you have not provided evidence that you have completed the required firearms training and safety course, as prescribed by the Regulations in respect of a category H firearms licence.

6 Mr Klarica, counsel for the Commissioner, conceded at the hearing that Mr Snape is not required to complete that course. Completion of the course is required only “of a person who has never held a licence”. That does not describe Mr Snape, and he is not subject to the requirement in section 11(3)(b).

7 In addition to the requirements in section 11, the Firearms Act requires, in section 12(1), that:

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 a firearm.

8 Section 12 then prescribes a number of activities, any one of which is “a genuine reason for possessing or using a firearm”. Relevantly to Mr Snape’s application, the Table in section 12 sets out the conditions to be satisfied if a licence is to be issued for the genuine reason of “business or employment”:

The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to use the firearm for which the licence is sought.

9 In the case of a category H licence it is not sufficient, however, to establish the genuine reason as required by section 12. Section 16(b) says that Commissioner must not issue the licence unless

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 pistol

10 Section 17 allows for regulations which “may specify the sort of evidence that may be produced in order to satisfy the Commissioner of a special need”, however the regulations do not currently make any such specification.

11 Thus, to obtain a category H licence Mr Snape must first meet the requirements of section 11. There is no issue that Mr Snape meets these requirements.

12 He must then meet the requirements of section 12 by demonstrating that a category H firearm – a pistol – is necessary in the conduct of his business or employment. The Commissioner contends that Mr Snape has not demonstrated this.

13 Finally he must meet the requirements of section 16 by producing evidence to satisfy the Commissioner that there is a special need for him to possess or use a pistol. The Commissioner did not, in making his decision to refuse Mr Snape’s application, record a view on the existence or not of a “special need”, presumably because that stage in the reasoning process was not reached once the decision to refuse under section 12 had been made.

Issue for decision

14 The question for the Tribunal is whether, based on all the evidence, the Commissioner made the correct and preferable decision in refusing Mr Snape’s application for a category H firearms licence.

15 In deciding this the Tribunal must have regard to the existence or not of a “genuine reason” pursuant to section 12, and the existence or not of a “special need” pursuant to section 16.

Meaning of “necessary”

16 Mr Snape is able to establish a “genuine reason” only if he can establish that it is “necessary in the conduct of his business or employment” to use the firearm he seeks a licence for.

17 The meaning of the phrase “necessary in the conduct of the applicant’s business or employment” was the subject of an Appeal Panel decision in this Tribunal in the matter of Osborne v Commissioner of Police Service (GD) [2000] NSWADTAP 10. I invited the parties to make written submissions on Osborne, which they did.

18 In Osborne the Appeal Panel was asked by the applicant to construe the word “necessary” as meaning “reasonably necessary” rather than, as the Tribunal in the first instance had done, as meaning “absolutely necessary” (at [38]). Further the applicant contended that the word “conduct” should be interpreted to mean “the particular way in which the specific applicant carries out his or her business”.

19 The Appeal Panel however said:

[44] The critical issue of interpretation is not, in our view, related to whether the use is “reasonably” necessary or “absolutely” necessary, but whether the reference to “the applicant’s business” is to be construed as a reference to the way in which a specific applicant conducts his or her business or is to be construed as a reference to businesses of the kind conducted by the applicant . . .

[45] The narrower view should, we consider, be preferred. The purpose of the legislation is to reduce the use and possession of firearms in the community. If a broader view were to be taken not only would that lead to a greater number of firearms circulating in the community, but it would tend to mean the types of businesses where a real choice existed as to how they were conducted would be more able to make a claim for the possession of a hand pistol the less safely it was conducted. Such an interpretation would defeat the objects of the legislation.

[46] Adopting that approach, our conclusion is that the question of what is “necessary” for the “conduct” of a “business” should be interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application . . .

[47] The question this case poses is whether, even though the typical form of the relevant business does not necessitate the carrying of a pistol, the way in which the applicant has chosen to conduct the business means that it is “necessary” for the “conduct” of the “applicant’s business” that he be allowed to have a pistol. We do not consider that the provision should be read in this broader way. In the present case [the applicant] argues that the way he does business, and as he has done for many years, provides the justification for carrying the pistol.

[48] The 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 that business . . .

20 The Appeal Panel considered the core features of the business which was the subject of that application – dealing in firearms – and decided at [46] that “[n]one of these features in themselves suggest that it is necessary for the conduct of the trade that dealers carry live pistols. The possession of a pistol is not directly required of the business or employment” (emphasis in the original).

21 In Nebenzshl v Commissioner of Police, New South Wales Police Service [2000] NSWADT 123 the Tribunal said that it had been guided by the reasoning in Osborne, and decided at [16] that “the carrying of the firearm by the applicant is not an activity which could be categorised as necessary in the conduct of the applicant’s business or employment”. The business of the applicant in that matter was publishing of event programs and merchandising of products as concession operations at cultural and sporting events. The applicant sought the firearm because on occasions he handled considerable amounts of cash, and on two occasions his employees had been robbed while handling the cash.

22 Guided by Osborne, the questions then in this matter are, first, ‘what are the “core features” of businesses of the type that are the subject of Mr Snape’s application?’ and secondly, ‘is possession of a pistol “directly required of” that business?’. The focus is “on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes that business”.

Evidence

23 Mr Snape is by profession a fisherman, and among the fish he catches are sharks. His commercial fishing licence FL170996 carries ten endorsements pursuant to section 112of the Fisheries Management Act 1994 (NSW) and Part 8 of the Fisheries Management Regulation 2002 (NSW), one of which is “school and gummy shark endorsement”.

24 Mr Snape drew attention to the fact that the New South Wales Police Firearms Registry issues a purpose-designed form, P667, which is headed “Genuine Reason Form, Business or Employment, Commercial Fishing”. The printed form is designed for signature by “a licenced commercial fisherman”, and anticipates that a licenced commercial will apply for any of category A, category B or category H licence. Mr Snape completed such a form in his application for a category H licence. I am inclined to consider that the existence of such a form is both an indication that a category H licence can be necessary in the business of fishing, and a concession by the Commissioner to that effect. However the Commissioner, in written submissions after the hearing, advises that the option of a category H is no longer included in the relevant form. He offered no evidence to support that submission. The Commissioner submits that, in any event, each application must be decided on its merits. I agree, and so proceed to do so. Nevertheless, accepting the representation by the Commissioner, I take the form as both an indication that a firearm of some sort can be necessary in the business of fishing, and a concession by the Commissioner to that effect.

25 Mr Snape gave evidence that sharks are caught on a seasonal basis, from approximately November to March. During that period he targets sharks as his preferred catch and is, he says, one of two or three fishermen on the NSW south coast to do so.

26 Mr Snape gave a description of how he catches sharks, and he described the reasons why and the way in which he uses a firearm. His evidence is that a shark which is pulled to the side of the boat on a line is shot before it is pulled aboard, because to pull a live shark on board a boat would be dangerous to the fishermen. Mr Snape’s evidence is that not all species of sharks pose this danger, but some four or five species do and it is the invariable practice in the fishing industry to shoot such animals before bringing them aboard a boat of any size.

27 Mr Snape showed a video tape, which was admitted into evidence, that he had made to demonstrate his fishing method. In the video tape Mr Snape’s boat was tied to a wharf and Mr Snape acted out the process of pulling in a shark on a line, reaching for a loaded rifle with one hand while holding the shark line in the other hand, shooting the shark with the rifle, reloading the rifle with one hand, shooting again, returning the rifle to its storage position, and hauling the shark aboard. The purpose of the video was to demonstrate that Mr Snape’s use of a rifle, rather than a pistol, in carrying out his business is awkward and poses some danger to his own safety.

28 In cross examining Mr Snape, counsel for the Commissioner put to him options for catching sharks which would not involve the use of a firearm at all, such as gaffing the shark and tying it to the boat. Mr Snape’s evidence was that such a practice might be suitable for recreational fishers but not for commercial fishers catching sharks in the quantity that he does, and for transporting them over the sandbar into the harbour. It was suggested that he use a knife instead of a gun to kill a shark but Mr Snape rejected this as ineffective and impractical. It was suggested that he tie the line off and use two hands with the rifle, but Mr Snape said that the line would become entangled in the propeller; when it was suggested that he turn off or tilt the engines, Mr Snape said that he needs to keep the boat moving as he is usually close to shore or rocks. It was suggested that he winch the sharks aboard and shoot them then, but Mr Snape’s boat is too small for a winch. It was suggested that he use a speargun, but Mr Snape pointed out that to do so is illegal.

29 For the previous three or four years Mr Snape had been using a rifle and shotgun to shoot sharks. He kept those guns safely when stored on-shore and, when on the boat the firearm he was using was stored in a rod holder to which he had ready access while fishing. He agreed that having the rifle cocked and ready is dangerous, and said that that was, in part, why he wanted to be able to use a pistol.

30 He explained that other fishing boats, up to 60 feet long and with crew, are able to use rifles as there is more room, and one crew member can shoot while another crew member can hold the line with the shark. For Mr Snape, there is no room on the boat for a second person to help.

31 He says that it is difficult and dangerous for him to both hold the shark on the line and try to shoot it with a rifle. He recounted two incidents where he failed to shoot a fish with the one shot available from a rifle. The first was some twenty years ago when he was dragged overboard and underwater by a marlin; the second was when one shot was insufficient to kill a wobbegong. Mr Snape’s claim is that two shots, available to him with a pistol, would have killed the fish.

32 Mr Snape denied that he wants a pistol for convenience: he says that it is essential for his business. He agrees that he has fished for sharks without a pistol for many years, using instead a longarm firearm, but says that that in doing so he has not conducted his business effectively, or safely for himself.

33 I asked Mr Snape to file with the Tribunal, for inspection and submission by the Commissioner, financial records and fishing catch records. He did so, and I address them below.

34 I asked Mr Snape to provide any information he was able to obtain about a matter of Braithwaite that he referred to in his evidence, and the Tribunal registry received on 19 August, placed on file, and sent to the respondent, a letter from Hunt & Hunt, Lawyers, enclosing a statement by Mr Garry Braithwaite. I agree with the Commissioner’s submission that the material filed is not relevant to any issue before me, and I take no account of it.

Submissions

35 Both parties made oral submissions at the close of the hearing. I invited both parties to make further written submissions and, in particular, to address the decision of Osborne. I have taken account of Mr Snape’s submission in relation to Osborne and his more general submission filed on 13 August 2003. I have taken account of submissions for the Commissioner filed on 17 September 2003.

36 In his written submissions the Commissioner relies on May v Commissioner ofPolice [2001] NSWADT 82, Gibsonv Commissioner ofPolice [2002] NSWADT 212, and Irwin v Commissioner ofPolice [2003] NSWADT 39 to support his submission that Mr Snape’s need to maintain a livelihood is not enough to support an application for a firearms licence, and that an applicant’s financial situation, and financial hardship, are secondary considerations. I agree that that is so, but a significant dimension to the cases relied on is that they were concerned with demonstrable risk to public safety, and the Tribunal’s observations as to financial considerations were made in the context of weighing them up against the paramount consideration of public safety.

37 In this matter the Commissioner has not relied on concerns as to public safety in refusing Mr Snape his category H licence. The Commissioner’s view is simply that Ms Snape is unable to satisfy the requirement of “genuine need”. In his submissions counsel for the Commissioner characterised some of Mr Snape’s evidence as giving rise to a concern for public safety: Mr Snape’s admitted previous use of a shortened firearms, his carriage of a firearm in his car from its safe storage at home to his place of work, and his storage of a cocked firearm on his boat, which he alone used. These matters do not satisfy me of the existence of a risk to public safety in the circumstances.

38 The heart of the Commissioner’s position in relation to Mr Snape’s application is in the Statement of Reasons from the internal review, where the Commissioner stated:

Given the fact that you have other options at your disposal, I am of the opinion that your reasons are not extenuating and are not “necessary” in the conduct of your business.

39 In his reasons the Commissioner had canvassed those “other options”, and had suggested that the way in which Mr Snape approached his business was ”his choice”, and consequently a pistol was not necessary to the operation of the business. This view of the Commissioner is reflected in the line of questioning of Mr Snape at the hearing, set out in paragraph [28] above.

40 There is an important distinction, addressed in Osborne, to be made between ‘necessary in the conduct of the business’, and ‘necessary in the way the business is conducted’. It is clear from Osborne that the proper focus of an inquiry is the core features of the conduct of the business, not the way in which the business is conducted. This requires findings to be made as to what constitutes the business, and what its core features are. It may be difficult in some circumstances to distinguish core features of a business from the way a person conducts the business, but that is a finding that must be made.

What is the ‘business’

41 First, then to define the business. While Mr Snape’s business could be said to be “commercial fishing”, that is an insufficient description. Commercial fishing can take a number of forms: in estuaries, at sea, on the ocean, from beaches or rocks, from dinghies, from trawlers etc. Each of these forms of commercial fishing will present with different “core features”. In short, the description of a business as “commercial fishing” is not a sufficient description of a business in order then to identify core features against which the need for a firearm can be assessed.

42 A fisher who fishes exclusively for prawns, and a fisher who fishes exclusively for marlin, could each describe themselves as involved in the business of commercial fishing. For the former a net is necessary to his business, and a long line is irrelevant. For the latter a long line is necessary and a net is irrelevant. A more detailed description of the business than merely “commercial fishing” is necessary if its core features are to be identified.

43 One way of looking at the different features is to look at the type of fishing for which the licence is endorsed, thereby identifying the business not as “commercial fishing” generally, but as “commercial fishing for [a species]” or “commercial fishing by [a method]”. Thus a fisherman’s business would more accurately be described as “fishing for mud crabs”, “fishing by the use of fish traps”, “fishing by the use of a net”, or “fishing for prawns”, for example. In these terms, Mr Snape’s business is fishing by line, net and trap, fishing for ocean fish including school and gummy shark, and fishing for estuary fish including prawns and eels.

44 But this description of Mr Snape’s business requires further refinement: the business of a sole trader is very different thing, with different “core requirements” from the business of a large commercial enterprise. The evidence is clear that Mr Snape’s business is that of a sole fisherman, and I find that the “typical form of the relevant business” (Osborne) is that a fisher fishes alone in a dinghy with outboard engines, not far from shore.

45 The Commissioner argued that fishing for shark is not part of Mr Snape’s business, as he had not fished for sharks since the summer of 2001-2002. The reason Mr Snape has not done so is that he did not have a firearm during the summer of 2002-2003: he had handed in his rifle as an illegal weapon and was waiting for a decision on the licence application which is the subject of these proceedings. His evidence is that his business actually operated at a loss during the summer of 2002-2003 and that fishing for sharks is an integral part of his business.

46 On the issues of whether Mr Snape’s fishing for sharks is in fact a part of his business. I have considered the financial records and catch history records provided by Mr Snape. This material was filed in accordance with the Tribunal’s directions and was available on the Tribunal file for inspection and submission by the Commissioner.

47 The catch history records comprise fish manifests and remittance advices from Twofold Bay Fishing Company Pty Ltd, and invoices from Sydney Fish Market Pty Ltd, S&J Seafood Supply, Racovoli’s Amalgamated Fish Agents Pty Ltd, and Fresh Catch Seafoods. I have inspected those records and they show that Mr Snape

in 2002-2003 caught no shark for sale

in 2001-2002 caught no shark for sale

in 2000-2001 caught shark in December, January, February and March

in 1999-2000 caught shark in September, January, March and April

in 1998-1999 caught shark in September, October, March, April, May and June.

from January to June 1998 caught shark in February and March.

48 Mr Snape provided his financial records, prepared by certified practising accountants, for the financial years ending 30 June 1999, 2000, 2001, and 2002. He submitted a copy of his financial journal for the year ending 30 June 2003.

49 These financial records show that his fishing business earned, in the years ending June 1999, 2000, 2001 and 2002, $48637, $43083, $35804, and $41106 respectively. In a covering note to the 2003 financial journal Mr Snape has said that it shows that his fishing business earned $24896 in that year; my calculations put the figure at $30423.

50 Taking sharks is not the whole of Mr Snape’s fishing business. While he has continued to runs his business without taking sharks for the last two years, the figures show that taking sharks an integral part of the business. Mr Snape’s evidence is that many of his former fisheries have been shut down. For example, he used to catch eels but the fishery in Tuross River is now closed. There are very few alternatives for him as a small fisher in the summer months; he says that 40 percent of fisheries are now closed for recreational fishing. To sustain his business he must fish for sharks as he was doing until two years ago.

51 On the basis of this material and Mr Snape’s evidence at the hearing, I find that fishing for sharks is a part of his business. I find that, for purposes of s12, the type of business that is the subject of this application is that of a sole fisherman who fishes alone in a dinghy with outboard engines, not far from shore, for shark among other fish.

Core features of the business

52 I turn then to the first of the questions posed by Osborne for purposes of s12: ‘what are the “core features” of businesses of this type?’. A core feature of this business is the danger that some species of sharks pose if any of them is brought on board alive. A consequent core feature of such a businesses is the need to kill a shark quickly, reliably and safely before it is brought on board. It is the invariable practice in the industry that this is done by shooting the shark while it is still in the water. I note the existence of a form that enables fishers to apply for firearms licences.

53 I find that the relevant core features of the type of business that is the subject of this application is: the landing of sharks, the need to do so safely, and the consequent practice of shooting the shark before landing it. Implicit in this is the further core requirements that the shooting be done reliably and safely.

Necessity for a pistol

54 The second of the questions posed by Osborne for purposes of s12 is: ‘is possession of a pistol “directly required of” that business?’, that is, of a business with these core requirements.

55 The Commissioner has argued that the appropriate way of answering this is to use the ‘but for’ test, and to ask whether, ‘but for’ possession and use of a pistol, Mr Snape could conduct his business? It was submitted at the hearing that the answer to this is “Yes”, as Mr Snape could gaff the fish and tie them to the side of the boat. Differently, it was submitted in written submissions that the answer to this is “Yes”, as Mr Snape has caught sharks for many years without a pistol.

56 In either case the Commissioner misstates the focus the inquiry: it is not simply the conduct of the business, but the conduct of the business having regard to its core features against which necessity is assessed. If the ‘but for’ test is apt then it must be asked whether, ‘but for’ possession and use of a pistol, Mr Snape could conduct his business having regard to its core features?

57 With or without this refinement, the first of the Commissioner’s two answers to the ‘but for’ test – that sharks could be gaffed – is contrary to Mr Snape’s unanswered evidence as to the catching of sharks, and I reject it. As for the second of the Commissioner’s two answers to the ‘but for’ test – that Mr Snape has been taking sharks without a pistol for many years – he has, in so doing, not been meeting the core requirements of his business: reliability and safety. It is about time that he did.

58 The Commissioner argued that the necessity arises not from the nature of the business but from a choice Mr Snape has made as to how he goes about the business. It is argued that a category H firearm is not necessary in Mr Snape’s business, but that he makes it necessary by choosing to fish alone “solely for financial gain”.

59 I disagree. It follows from my finding above that fishing alone is the very nature of the business that Mr Snape is undertaking that the Commissioner is mistaken in categorising Mr Snape’s sole operation as a choice he makes “for financial gain”. That is the nature of Mr Snape’s business. He is a ‘sole trader’. To suggest that he could choose to fish differently is akin to suggesting that a corner store operator could choose to run a department store instead. If he was a fisher on a large boat with crew the core features of the business would differ in key respects. While broadly within the area of activity called “commercial fishing”, the needs of a business cannot be understood until its type is defined and understood. In fishing alone Mr Snape has chosen a type of business, not how to go about a business.

60 I am satisfied from Mr Snape’s evidence, including his account of his experience and the video demonstration, that his possessing and owing a category H pistol is necessary to – in that it is directly required of –the conduct of the business that is the subject of this application.

61 The Commissioner led no evidence that a category H pistol was not necessary to the conduct of the business. Rather, he suggested a number of alternative ways of carrying out the business in an attempt to demonstrate that category H firearm was not necessary, each of which was shown as being inadequate. Mr Snape’s evidence satisfies me of the inadequacy of a long arm firearm in meeting the business’s core requirements.

62 I am satisfied on the evidence that methods other than using a pistol for carrying out this core feature of the business are inadequate, and that possession and use of a pistol is “directly required of” the business. Consequently Ms Snape has a genuine reason for a category H firearm within the meaning of s12.

Special need

63 Satisfied that there is a ‘genuine reason’ for purposes of s12, I turn to the question of whether there is a ‘special need’ as required by s16. It seems to me, however, that the two questions must conflate when, as is the case here, the firearm for which the licence is sought is a pistol.

64 The legislation appears to be a two stage process in which an applicant first establishes a genuine reason and, having established that genuine reason then goes on to establish a special need if the genuine reason is any of sports/target shooting, business/employment, or firearms collection. In establishing the genuine reason of sports/target shooting it is sufficient that an applicant is a current member of an approved shooting club which conducts competitions or activities “requiring the use of the firearm for which the licence is sought”. To establish the genuine reason of firearms collection an applicant must demonstrate that the firearms collection has a genuine commemorative, historical, thematic or financial value, and that the applicant is a current member of an approved collectors’ society or clue. There is nothing in the criteria for establishing a genuine reason a firearms collection that indicates the need for a particular type of firearm. Thus it seems appropriate that if an applicant for a firearm for the genuine reason of maintaining a firearms collection wishes to have a category H licence for a pistol they should demonstrate a special need.

65 The provisions relating to sports/target shooting and business/employment are more problematic, however, and appear to be circular in their construction. Each of them requires that the genuine reason be established for “use of the firearm for which the licence is sought”. Thus if the firearm sought is a category H pistol then the applicant must establish a genuine reason for the possession and use of a category H pistol. This appears to render the “special need” under section 16 redundant.

66 In the case of sports/target shooting, an applicant for a category H pistol only establishes a genuine reason for possessing and using a firearm if they are a member on an approved club which conducts competitions requiring the use of a category H pistol. The special need for a category H pistol is evident from the fact that the genuine reason requires a category H pistol.

67 Similarly, and relevantly to Mr Snape’s case, an applicant for a category H pistol for the genuine reason of business/employment must show that possession or use of a category H pistol is necessary in the conduct of the applicant’s business. This special need for a category H pistol is apparent from the fact that the genuine reason has been demonstrated.

68 A “genuine reason” under s12 must be established for “the firearm for which the licence is sought” (emphasis added). When that firearms is a category H firearm, once a genuine reason has been established on the basis of “necessity” there seems no room to further establish “a special need” for that firearm. Operating as consecutive tests, s16 has no work to do when the test of necessity under s12 has already been satisfied.

69 Reading them as consecutive steps in a decision-making process, I am unable to make sense of the combined effect of section 12 requiring necessity in a business, and section 16 requiring a special need to be shown, when the firearm for which the licence is sought is a category H licence.

70 But it is clear that s16 is a vital part of Parliament’s regime to ensure that the strictest tests are in place to control the use and possession of firearms. Pistols are in a special category of firearm and, appropriately, require the type of scrutiny set out in s16.

71 This difficulty of construction arises only because there are occasions, such as this case, when the reference in s12 to “the firearm for which the licence is sought” is reference to a pistol. In these circumstances it is appropriate in my view to apply the two tests concurrently. This is an available interpretation of s16, where the test of “special need” is “in addition to establishing any such genuine reason”. To read sections 12 and 16 together in this way allows me to give effect to both tests when considering the serious question of issuing a licence for a pistol.

72 I have found above that the business of being a sole fisherman for sharks necessitates the use of a category H firearm. Other type of fishing business which take sharks will necessitate the use generally of a firearm. The special need that Mr Snape has for a category H firearm arises from the fact that the business is that of a sole fisherman. The business of fishing for sharks necessitates the use is a firearm, but perhaps not a category H firearm in all circumstances. The particular nature of Mr Snape’s fishing business is such that his need is a special need, satisfying the tests in both s12 and s16.

73 It follows that Mr Snape’s circumstances satisfy the requirements of the Act for the issue of a Category H licence, and the Commissioner’s decision to refuse his application should be set aside.

ORDERS

1 Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act 1997 the decision of the Minister is set aside.

2 Pursuant to s88 of the Administrative Decisions Tribunal Act 1997 there is no award of costs.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR