Webeck v Commissioner of Police, New South Wales Police

[2004] NSWADT 229

CITATION:	Webeck -v- Commissioner of Police, New South Wales Police [2004] NSWADT 229
DIVISION:	General Division
PARTIES:	APPLICANT John Webeck RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	043247
HEARING DATES:	24/09/2004
SUBMISSIONS CLOSED:	09/24/2004
DATE OF DECISION:	10/08/2004
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Finlay v Commissioner of Police, NSW Police Service [2004] NSWADT 152
REPRESENTATION:	APPLICANT In person RESPONDENT D Shepherd, solicitor
ORDERS:	Order made 24 September 2004: The Commissioner's decision to refuse to issue Mr Webeck a permit to possess and use a pistol is affirmed.

1 Mr Webeck trades in valuable items including opals, gold jewellery and antique swords. These items range in value up to $53,000.00. He stores many items at his premises which are fully alarmed and contain a walk in strong room. He often transports items in his car to his clients. Mr Webeck first obtained a pistol permit in 1976. He says that he needs a pistol to protect his property while that property is on his premises or being transported to clients. His most recent application for a pistol permit was refused. The question for the Tribunal is whether the Commissioner made the correct decision in refusing that application.

Licensing and permit schemes

2 The Firearms Act 1996 contains both a licensing and a permit scheme. Mr Webeck applied for a permit. Until recently, permits to possess and use pistols appear to have been given for diverse purposes including protecting property and culling or destroying animals on rural properties. That practice appears to have changed, resulting in the Commissioner’s refusal of Mr Webeck’s application on this occasion.

Licensing scheme

3 Under the current Act, the licensing scheme requires a person to demonstrate a “genuine reason” for owning, using or possessing a firearm (s 12). Genuine reasons include sport/target shooting, primary production, business or employment and firearms collection. Protection of property is not a genuine reason unless, for example, “it is necessary in the conduct of the applicant’s business or employment” (s 12). A category H licence, which relates to pistols, is not to be issued unless, in addition to having certain genuine reasons for the licence, there is a “special need” for the person to possess or use a pistol.

Permit scheme

4 The Commissioner only has power to issue permits for certain purposes. All but one of those purposes is specific. The specific purposes include:

· to authorise the use of a firearm by a minor;

· to authorise the shortening or conversion of firearms;

· to authorise the possession or use of firearms for film or theatrical productions as provided for in the regulations; and

· to authorise the use of a firearm that is part of a licensed firearms collection in order to test it, or on a special occasion as specified in the permit.

5 All the specific purposes for which a permit may be issued fall outside the purposes or circumstances contemplated under the licensing scheme. For example, there is provision for a person to apply for a licence for the purpose of collecting firearms, but if the person wants to test the firearm, he or she requires a permit. As well as specific purposes for permits, there is a general “catch all” provision which allows the Commissioner to issue permits for “the possession or use of firearms in such circumstances as the Commissioner considers appropriate” (s 28(g)). That is the provision that Mr Webeck would have to rely on when applying for a permit to protect his property.

6 As well as giving the Commissioner an unconfined discretion to issue permits where he considers it appropriate to do so, the Act allows the Commissioner to refuse to issue a permit if he considers that issuing the permit would be contrary to the public interest. That appears to have been the basis for the Commissioner’s decision to refuse to issue the permit in this case. In addition the (Firearms (General) Regulation 1997 provides that the Commissioner may refuse to issue a permit if the applicant intends to possess or use the firearm for the protection of property, other than in circumstances constituting a genuine reason, such as the conduct of the applicant’s business or employment (Cl 9(2)(b)).

Relationship between licensing and permit schemes

7 Although the licensing and permit schemes cover different circumstances, there is a general discretion given to the Commissioner to issue a permit where he considers it appropriate. It is possible that the Commissioner could consider it appropriate to issue a permit even if an applicant is not eligible for a licence. That conclusion arises from the fact that the Commissioner has a discretion to refuse a permit in certain circumstances, but there is no blanket discretion to refuse to issue permit when the person’s need for a firearm is covered by the licensing provisions.

Conclusion

8 In this case, Mr Webeck has applied for a permit for the purpose of protecting his property. Although the Commissioner has power to grant Mr Webeck a permit for that purpose, if he considers it appropriate to do so, it is preferable, in the circumstances of this case, for him to apply under the licensing provisions. In this case, the purpose for which the applicant has applied to possess and use a firearm is the protection of his property. That purpose is dealt with specifically under the licensing scheme. In my view the general discretion to issue a permit was not intended to be used unless the person’s circumstances fall outside the licensing provisions.

9 The Commissioner’s decision to refuse Mr Webeck’s application for a permit is the correct decision because the reason he needs a firearm (the protection of property) is covered by the licensing provisions. If he wants to possess and use a pistol for the purpose of protecting his property, then there is provision for him to obtain a licence as long as it is necessary in the conduct of his business and he can satisfy the Commissioner that there is a “special need” for him to possess or use a pistol. Mr Webeck should apply for a licence, just as everyone in his situation is required to do. Of course, it is no fault of Mr Webeck that the Commissioner did not advise him to apply under the licensing scheme.

Order

10 The Commissioner’s decision to refuse to issue Mr Webeck a permit to possess and use a pistol is affirmed.