SQUIRES and COMMISSIONER OF POLICE
[2005] WASAT 168
•11 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: SQUIRES and COMMISSIONER OF POLICE [2005] WASAT 168
MEMBER: MR M SPILLANE (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 11 JULY 2005
FILE NO/S: CC 512 of 2005
BETWEEN: GARETH SQUIRES
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm - Genuine reason
Legislation:
Firearms Act 1973 (WA), s 5A(3), s 11, s 11A, s 22
Firearms Regulations 1974 (WA)
State Administrative Tribunal Act 2004 (WA), s 7, s 11, s 17, s 22(1), s 27, s 29, s 32, s 167
Result:
Decision to refuse set aside and application granted
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Brown; Re Scudds, Ex parte (1995) 14 WAR 270
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Application
The applicant applied for a review of a decision made on 8 November 2004 by the respondent to refuse his application for a co‑licence to hold a .222 calibre Browning Rifle Lever Repeater (.222) classified as a category B firearm under Sch 3 of the Firearms Regulations 1974 (WA) ("Firearms Regulations"). The application for review was lodged pursuant to s 22 of the Firearms Act 1973 (WA) ("FA Act").
The respondent's reason for refusing the applicant's application was that he did not consider there was a genuine reason as required by the legislation.
Jurisdiction
The application for review was originally made to the Court of Petty Sessions. However, on 1 January 2005 the State Administrative Tribunal ("the Tribunal") commenced pursuant to s 7 of the State Administrative Tribunal Act 2004 (WA) ("the SAT Act"). By virtue of s 167 of the SAT Act this matter was transferred to the Tribunal. I have been nominated to constitute the Tribunal pursuant to s 11 of the SAT Act.
Facts
In the applicant's initial application dated 7 September 2004 the genuine reason given for requiring the firearm was "vermin control". The applicant stated that he required a category B firearm rather than a category A because of "more humane kill – animal doesn't suffer".
The licensing officer noted that the applicant believed that the .222 applied for was much better than a .223 for which the applicant was already licensed and less expensive to run and maintain.
The applicant furnished a copy of a letter dated 20 August 2000 from Mr Colin Brierly of Indee Station (165 000 hectares) situated 75 kilometres south of Port Hedland who gave permission for the applicant to use a .223 calibre rifle on his property for the express purpose of vermin eradication.
As no issue was raised in respect of the August 2000 permission I am assuming that the licensing officer was satisfied and accepted it as adequate for the purposes of this application.
It should be noted at this point that according to the records furnished by the Commissioner of Police, the applicant is already licensed for nine category B firearms, three category A firearms and two category H firearms.
In his initial letter of appeal dated 8 December 2004 the applicant confirmed that he had been an NCO in the Australian Regular Army and served in Vietnam where he was involved in weapons and safety instruction in artillery. He further confirmed that he is a financial member of the Sporting Shooters Association and also the Perth Lever Action Rifle Club where he is a qualified safety and range officer.
The applicant states that he participates in state and national rifle championships and even though he has a .223 rifle which he shoots at these events, the gun can sometimes fail and it is therefore desirable to have a back‑up gun. This also applies when shooting vermin on Indee Station.
An issue that should be clarified is that the application and the appeal is to be a co-licensee of .222 lever action rifle which is owned by the applicant's son who himself already holds a licence for the rifle.
Law
In exercising its review function, SAT deals with a matter in accordance with the SAT Act (s 17) and the FA Act (s 22(2)).
Section 22(2) of the FA Act enables the person aggrieved by a decision by or on behalf of the Commissioner to seek a review from SAT. The decision in this matter is the refusal of the delegated officer appointed by the Commissioner pursuant to s 5A(3) of the FA Act. The delegated officer who determined the application was District Superintendent AD Gronow APM.
The Tribunal has in accordance with s 29(1) of the SAT Act the same jurisdiction, functions and discretions of those of the delegated officer.
The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made (s 22(1) SAT Act).
The review hearing is therefore de novo (s 27(1) SAT Act) and is not confined to the matters and information that were before the decision maker at the time of the decision.
The powers of the Tribunal according to s 29(3) of the SAT Act are to:
"(a)affirm a decision; or
(b)vary a decision; or
(c)set aside a decision and substitute another decision or send it back to the decision‑maker."
A decision of the Tribunal is regarded as a decision of the delegated officer under s 29(5) of the SAT Act.
Firearms Act 1973
The FA Act is an act to make provisions for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with or manufacturing firearms and ammunition
Section 11(1) of the FA Act states:
"The Commissioner cannot grant an approval or permit or issue a licence under this act to a person if the Commissioner is of the opinion that:
(a)to do so would be contrary to s 11A or regulations under s 11B or 11C …;
(b)it is not desirable in the interest of public safety;
(c)the person is not a fit and proper person."
Section 11A of the FA Act states:
"(1)an approval or permit cannot be granted and a licence cannot be issued under this Act to a person who, in the Commissioner's opinion, has not been shown to have a genuine reason for requiring or possessing the firearm or ammunition for which the approval, permit or licence is sought.
(2)a person has a genuine reason for requiring or possessing the firearm or ammunition if and only if:
(a)it is for the use by the person as a member of an approved shooting club and the person is an active and financial member of the club;
(b)…
(c)it is for the use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting …
(3)a person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only as to the persons reasons for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm can be reasonably justified".
Submissions
The respondent by document headed reasons or grounds for opposing the application ("respondent's submission") received by the Tribunal on 11 March 2005 referred to:
1.the letter of refusal dated 8 November 2004;
2.details of the firearms and categories already licenced to the applicant;
3.copy of the applicant's initial application dated 7 September 2004;
4.that the applicant has several licence firearms that would suit his need;
5.various emails from Police Ballistic Section dealing with the applicant's contention that a .222 was better and cheaper than his licenced .223; and
6.the applicant's letter of 8 December 2004 stating that his son was travelling overseas. It was noted that this letter was received by the delegated officer a month after the decision had been made.
The respondent in the respondent's submission commented that the applicant in his letter of 8 December 2004 made no mention of his son's other firearms and that there was no provision in the Act to issue a licence for the purpose of sharing his son's rifle.
The respondent closed by stating that any firearms left by the son should be left at the local police station for safekeeping and that the applicant continued to change his "genuine need" and the delegate was not satisfied that the relevant statutory requirements were met.
A copy of the applicant's letter dated 8 December 2004 although referred to was not attached to the respondent's submission, however a copy was attached to the Notice of Appeal filed by the applicant, dated 9 December 2004.
What was included in the respondent's submissions as an "Attachment" was a letter dated 7 February 2005 from the applicant to the District Superintendent Midwest/Gascoyne Region, however no submissions were received from the respondent in respect of the issues raised in that letter. The letter stated:
"In October 2004 I applied for a co‑licence of my Son's Lever Action 222 Rifle, this application was refused on the grounds of 'no genuine need'.
I believe that I do have a genuine need for this co‑licence and perhaps I should have presented more information on the original application, however my Son and I already have firearms co‑licensed and therefore reasoned that this particular firearm, and I, would be treated per the precedent already set.
…
The rifle in question is a Lever Action 222. My licenced Lever Action rifle is a 223. My LA is a competition rifle with Peep Sites which I use under competition Rules in the Perth Lever Action Rifle Club of which I am a long‑standing Member. My son's 222 is also used in this competition, however his rifle is set up for hunting and for the Hunter Class Event i.e. Scope Mounts, Sling Swivels etc.
Under our competition rules, and the National Competition Rules, in the event of a rifle malfunction, I might use my son's rifle as a substitute or back‑up rifle. I currently do not have a suitable 'substitute' rifle for this situation.
When my son and I go hunting and we take the bolt action 308 we are able to lawfully possess and share the one rifle. We would like to be able to do the same when we take his 222 hunting, particularly with lighter vermin, i.e.; goats, dingo, etc. which are quite often encountered when Caretaking Indee Station in the Pilbarra Region.
I would be loathe to cosmetically alter my competition rifle for hunting, whereas in the case of the 222 it is simply a matter of removing the hunting 'extras' and it is then suitable for competition.
Currently, with the exception of the 222, all my Son's firearms are co‑licensed by me, this gave us a good mutual storage arrangement when I stayed with my son while in Perth. Until such time as I am able to co‑licence the 222 I cannot access this safe storage.
…"
Consideration
The review was conducted by way of a hearing de novo. The Tribunal's consideration is not confined to the matters that are before the delegated officer and the Tribunal is placed in the position of delegated officer under the act.
The purpose of the review is for the Tribunal to produce the correct and preferable decision (s 27(2)) of the SAT Act.
The applicant has to satisfy the Tribunal that he fulfils the requirements of the act to have his application approved and the Tribunal has to rely on the act and any relevant evidence and information to determine if the application for review may succeed.
The Tribunal is not bound by the rules of evidence (s 32(2)(a) of the SAT Act) and may "inform itself" of any matter it sees fit (s 32(4) of the SAT Act).
As s 11(A)(1) of the FA Act makes clear "[a]n approval or permit cannot be granted, and a licence cannot be issued, to a person who, in the Commissioner's opinion has not been shown to have a genuine reason for acquiring or possessing the firearm …". This was confirmed in the case of Brown; Re Scudds, Ex parte (1995) 14 WAR 270, when the Supreme Court of Western Australia held the grant of a licence under the FA Act, s 22 is "discretional and will not be granted if the commissioner or magistrate on appeal determines that the applicant does not have a good reason within s 11".
In the circumstances therefore what the Tribunal must be satisfied of in the present case is whether what the applicant has outlined is in fact a "good reason" within s 11.
I now turn to the requirements of s 11 and the evidence and submissions of the parties.
In it's letter of refusal dated 8 December 2004 the reasons for refusal were outlined as follows:
"Under [s] 11B(1) you are required to provide a 'genuine need' for the approval of a category B firearm as specified under Schedule 3 of the Firearms Regulations.
The reason provided by you in your application is that the firearm is required to provide for: 'more humane kills, animal doesn't suffer'.
I do not consider that this is a genuine need as required by the legislation."
In his letters of 8 December 2004 and 7 February 2005 the applicant outlined several additional reasons. The respondent commented on the reasons raised in the letter of 8 December 2004 however the respondent has not commented on the additional reasons raised in the applicant's letter of 7 February 2005 even though it was the respondent who furnished that letter to the Tribunal as an "Attachment" in it's submissions.
I acknowledge that the additional reasons in the applicant's letters of 8 December 2004 and 7 February 2005 were not before the licensing officer when he made the decision dated 8 November 2004 which is under review.
The additional reasons raised by the applicant in the letter of 7 February 2005 are relevant and they are:
1.that the applicant participates in state and national rifle championships and even though he has a .223 rifle it can fail and it is desirable to have a back up gun. This would also apply when shooting vermin on the station;
2.he wants to be in the position to be a co-licensee with his son so that he can legally carry and use the firearm either at the station or as back up in championships;
3.he would like to be able to take the .222 rifle hunting when he goes with his son and lawfully possess and share one rifle particularly with lighter vermin; that is, goats and dingos;
4.his .223 rifle is a competition rifle with peep sites which he uses under competition rules and he would be loathe to cosmetically alter his competition rifle for hunting whereas his son's .222 rifle although also used in competition is set up for hunting and it is a simple matter of removing the hunter "extras" to make it suitable for competition; and
5.being co‑licensee of his son's firearms gives him a good storage arrangement when he stays with his son while in Perth and until such time as he is able to co‑licence the .222 he cannot access that safe storage.
Section 11A(1) precludes the delegated officer and this Tribunal from issuing a licence, if of the opinion that the applicant has not shown a "genuine reason" for possessing the firearm.
Section 11A(3) provides further clarification of the type of information that may be taken into account and confirms that the person "does not have a genuine reason" for possessing a firearm of a "particular kind" unless the delegated officer or the Tribunal is satisfied "not only as to the person's reasons for acquiring or possessing the firearm but also that the particular kind of firearm can be reasonably justified".
Findings
In the circumstances of the present case I am satisfied that the additional reasons outlined in the applicant's letter of 7 February 2005 particularly no's 1, 2, 3 and 4 outlined above taken together with the reasons before the licensing officer originally, establish a genuine reason for wishing to be a co‑licensee of the firearm in question and that those reasons are reasonably justified.
Order
I therefore order that the decision of the delegated officer dated 8 November 2004 be set aside and the application to be a co‑licence of the Browning Rifle Lever Repeater Calibre .222, serial number 24270PV227 be granted.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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