Nixon v Commissioner of Police, New South Wales Police Service [2001] NSWADT 189 (15 November 2001)

Last Updated: 31 December 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Nixon v Commissioner of Police, New South Wales Police Service [2001] NSWADT 189

PARTIES: APPLICANT

Frederick Oral Nixon

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 013105

HEARING DATES: 19/09/2001

SUBMISSIONS CLOSED: 19/09/2001

DECISION DATE: 15/11/2001

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Firearms (General) Regulation 1997

Firearms Act 1996

Rural Lands Protection Act 1989

CASES CITED: Dimiti Pikul v The Commissioner of Police NSW Police Service [2001] NSWADT 113

APPLICATION: Firearms Act - firearms licence - issue of licence or permit

Firearms licence - issue of licence or permit

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

T Morgan, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

C Dawes, solicitor

ORDERS: 1 The decision of the Commissioner of Police to refuse Mr Nixon's application for a Category D licence is affirmed

Reasons for Decision:

Background

1 This is an application by Mr Nixon for review of a decision of the Commissioner of Police (the Commissioner) of refusing his application for a Category D firearms licence. In his application for the licence, Mr Nixon stated his special need for this category of licence was to eradicate vertebrate pest animals under adverse condition.

2 Mr Nixon is the owner of a rural property on which he has resided for many years. The property adjoins a National Park and other rural properties. Mr Nixon states that he and his neighbours are constantly troubled by the presence of wild pigs (feral pigs) from the National Park. The presence of these pigs he states cause damage to his land and the potential to carry diseases to his farm animals.

3 When the Firearms Act 1996 ("the Act") came into force Mr Nixon applied for and was issued with a Category D firearms licence. At the same time Mr Nixon applied for and was granted a Category A, B, C and H licence. This licence expires on 6 December 2002 and is not the subject of this appeal.

4 In 1998 The Commissioner revoked Mr Nixon's Category D licence. Mr Nixon successfully made an application to the Local Court for the review of that decision and his Category licence was restored. That licence expired on 26 August 2000 and this application relates to Mr Nixon's application for a renewal of that licence.

Relevant Law

5 As set out in the decision of the Deputy President in Dimiti Pikul v The Commissioner of Police NSW Police Service [2001] NSWADT 113, the starting point for considering the requirements of a Category D firearms licence is s. 15 of the Firearms Act 1996 (the Act). That section provides so far as is relevant:

The Commissioner must not issue a Category D licence to any person unless:

(a) the genuine reason established by the person for being issued with the licence is that of vertebrate pest animal control, and

(b) 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 firearm to which a licence category D applies, and

(c) in the case of a person referred to in paragraph (c) of the genuine reasons of vertebrate pest animal control, the person produces evidence to the Commissioner's satisfaction that any such special need cannot be met by any other means (including by the authority conferred by a Category A, Category B or Category C licence, or by engaging the services of a professional contract shooter).

6 In order for an applicant's genuine reason to be vertebrate pest animal control, he or she must meet the requirements in relation to that reason as set out in section 12 of the Act. So far as it is relevant to this case, that section states that:

12(1) 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 the firearm.

...

(4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant:

(a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

Table

Reason: vertebrate pest animal control.

The applicant must be:

(a) ...

(b) ...

(c) a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and who is participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are affected by brucellosis or tuberculosis."

7 Clause 29 of The Firearms (General) Regulations 1997 prescribes a list of government agencies for the purpose of s.12, reason of vertebrate pest animal control. The list includes the Rural Lands Protection Board (the Board).

Issue

8 The Commissioner accepted that Mr Nixon is a primary producer for the purposes of Section 12(4)(c), reason of vertebrate pest animal control, of the Act. However, he was not satisfied that Mr Nixon:

was "participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are effected by brucellosis or tuberculosis (s. 12(4)(c) emphasis added);

that he had a special need to possess or use a firearm to which a licence Category D applied (s. 15(b)); or

that he had produced evidence that any such special need could not be met by any other means etc (s. 15(c)).

Evidence

9 Mr Nixon relied on his Affidavit evidence and the additional oral evidence he gave during the course of the hearing. In summary Mr Nixon's evidence was that:

he has a continual problem with feral pigs coming onto his property from the surrounding National Park;

these feral pigs come onto his property in groups, cause damage to the fences, erosion and other damage to livestock and small animals;

Mr Nixon has previously lawfully possessed and used Category D firearms to control and suppress feral pigs coming on to his property;

Mr Nixon prefers to use Category D firearms as he finds these to be the most effective to control groups of feral pigs as this category of firearm is self loading with 20 to 30 cartridges enabling him to destroy the majority of the group at one time. He also finds this category of firearm the most humane in that it kills the feral pigs. Whereas, the capacity of other firearms is not sufficient to kill a maximum number of pigs in the group and results in many being injured who escape and are left to die a slow death.

While there is no evidence of the feral pigs carrying any disease at this time there have been previous occasions where this was the case;

Mr Nixon has tried trapping and has not found this to be effective because the feral pigs move in groups and not singly. He also finds traps to be less humane;

Mr Nixon has not tried poisoning but has made enquiries about this method of eradication. In his opinion this method is also not effective and carries with it the additional risk of poisoning other animals;

Mr Nixon has not used professional shooters as his level of income can not support this form of eradication and control.

10 Mr Nixon also summoned Mr Allan Scammall, the managing ranger of the Hume Region of the Lands Protection Board, to give evidence. This Board is given authority under the Rural Lands Protection Act 1989 ("RLPA") to conduct campaigns to suppress and destroy noxious animals. Mr Scammall stated that the Board used an integrated approach in the suppression and eradication of noxious animals including feral pigs. He stated that this approach was used in conjunction with the landowners whose properties were affected. He confirmed that under the provisions of the RLPA landowners were under an obligation to continuously suppress and destroy all noxious animals that were on their land and a failure to do so could result in prosecution action being taken against the landowner. His duties as managing ranger included advising landowners on the most effective means to meet their obligations.

11 Tendered into evidence were two documents signed by Mr Scammall. The first document was a completed pro-form Rural Lands Protection Board certificate for the purposes of s. 12 of the Firearms Act. The proforma Certificate certified that Mr Nixon was required under the Rural Lands Protection Act to fully and continuously suppress and destroy rabbit, fox and feral pig on his property. In his evidence Mr Nixon stated that he had obtained the certificate from Mr Scammall for the purpose of his application for the renewal of his category D firearms licence. Mr Scammall admitted that he had signed the pro-forma certificate. However, the details on the form had been completed by Mr Nixon. He explained that this pro-forma certificate was no longer used by the Board.

12 The other document tendered into evidence was a letter from Mr Scammall to the NSW Police Service, dated 17 August 2001. In this letter Mr Scammall stated that the Board was not conducting an authorised campaign pursuant to Section 138 of the RLPA for pest animals in the area of Mr Nixon's property. The letter also states that Mr Nixon is not involved in any group pest animal control program. These details were confirmed by Mr Scammell during his cross examination. He also stated in cross examination that there was no increase in the number of feral pigs in the area of Mr Nixon's property.

Submission

13 Mr Morgan, on behalf of Mr Nixon, submitted that the Board did not recognise "a one man campaign" as being an "authorised campaign" for the purposes of s.12 of The Firearms Act, making it impossible for landowners such as Mr Nixon to obtain the necessary certification from the Board in order to obtain a Category D firearms licence. Mr Morgan submitted that this gave rise to an unintended result whereby landowners were placed under a risk of prosecution by failing to meet their statutory obligations under the RLPA because they were unable to obtain the necessary firearms licence which provided them with the means to meet those obligations.

14 Ms Dawes for the Commissioner submitted that the legislation was unambiguous and did not give rise to any unintended results. She submitted that the Act was enacted to provide a new registration, licensing and permit scheme for firearms ownership as part of the legislative "tough new gun laws" and in the circumstances the commissioner's decision was the correct and preferred decision.

Reasons and Decisions

15 I note that s. 126 of the Rural Lands Protection Act 1989 makes it a criminal offence for the occupier of land to fail to fully and continuously suppress and destroy by any lawful method all noxious animals that are on the land (emphasis added). A noxious animal is defined in s.3 to include feral pigs.

16 This section clearly states that the obligation on the landowner to suppress and destroy noxious animals is not at large and only extends to "lawful" means of suppression and destruction. Accordingly, the failure of Mr Nixon being issued with a category D firearms licence would not subject him to prosecution under this section.

17 Section 138 of the RLPA provides that:

(1)A board may make arrangements for the conduct of campaigns for the suppression and destruction of noxious animals and may take all necessary steps for carrying out those arrangements.

(2) Arrangements under subsection (1) may be made with other boards or with the occupiers or owners of land within the board's district.

18 This section clearly makes provision for the Board to authorise campaigns for the suppression or destruction of noxious animals. It would appear that the Board has wide powers in respect of whom they may make arrangements with for such campaigns. Arguably this may be with one landowner and need not be with several owners. Mr Scammall's evidence supported such a conclusion. However, this is not a matter for determination by the Tribunal.

19 Although the Commissioner has relied on several grounds in refusing Mr Nixon's application for the renewal of his category D licence, in my opinion Mr Nixon's failure to produce evidence to the Commissioner that he is "participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals...", is sufficient grounds for the Tribunal to find that the Commissioner's decision was the correct and preferred decision.

20 The term authorised campaign" in s.12(4)(c) for vertebrate pest animal control of the Firearms Act is not defined in the Act and must be given its ordinary meaning. In Dimitri Pikul the Deputy President defined "authorised" to mean endowed with authority" or "legally or duly sanctioned". I accept this interpretation. However, the term "authorised campaign" does not stand alone and the relevant paragraph of the section makes it clear that the campaign must be one that is conducted by a government agency or public authority. Clause 29 of the Firearms (General) Regulations prescribes which agency and authority are the relevant ones for this section. The Board is such an agency or authority and it appears to be given power to "authorise" campaigns under s.138 of RLPA.

21 In this case, Mr Scammall has given evidence that the Board has not authorised any campaign for the suppression and destruction of feral pigs in the region of Mr Nixon's property. Consequently, the Board has not given Mr Nixon the certification he requested. For the purpose of this application, the significance of this is that under s. 15(a) of the Act the Commissioner is required to refuse Mr Nixon's application because Mr Nixon has failed to establish the genuine reason requirements as set out in s.12(4)(c) for vertebrate pest animal control. That is, Mr Nixon cannot establish that he is participating in an authorised campaign conducted by a government agency or public authority.

22 In my opinion the relevant provisions of the Firearms Act are unambiguous and while the Tribunal accepts the evidence of Mr Nixon it does not accept his submission that the terms of this Act and the related provisions of the RLPA Act give rise to unintended results. As submitted by Ms Dawes the purpose of the legislation is clearly to reduce the use and possession of firearms in the community. In the case of category D firearms, a person in the position of Mr Nixon must have the requisite support from a prescribed body that he is participating in an authorised eradication campaign in order for the Commissioner to grant such a licence.

Decision

23 In accordance with s. 63(3)(a) of the Administrative Decisions Tribunal Act 1997, the decision of the Commissioner of Police to refuse Mr Nixon's application for a Category D licence is affirmed.