Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99 (26 May 2004)

Last Updated: 26 May 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99


PARTIES: APPLICANT
Bernhard Saiko
RESPONDENT
Commissioner of Police, NSW Police



FILE NUMBERS: 033317

HEARING DATES: 3/03/2004

SUBMISSIONS CLOSED: 03/03/2004



DECISION DATE: 26/05/2004

BEFORE: Montgomery S - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Firearms (General) Regulation 1997
Firearms Act 1996

CASES CITED:

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
M Buchanan, solicitor

ORDERS: The Commissioner's decision to refuse the issue of a permit is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 On 17 November 2003 Mr Bernhard Saiko lodged an application with the Tribunal for review of a decision made by the Commissioner of Police ("the Commissioner"). That decision was to refuse to issue Mr Saiko with a Commissioner's Permit for use of a Category H firearm for primary production purposes under the Firearms Act 1996 ("the Act").

Background

2 Mr Saiko is the sole director and shareholder of Pomeroy West Pty Ltd, the registered proprietor of a property ("the Property") near Goulburn NSW. The Property is used for primary production with wool being the main product and meat produced to a lesser degree. The Property carries 2000 head of sheep. Much of the Property consists of very steep countryside, comprising gullies, washouts, ravines, dry creek beds and rocky outcrops, most of which is heavily overgrown. The densest cover in the roughest county is accessible only by motorbike, some being accessible only on foot.

3 Mr Saiko held a Class One Shooters Licence from 21 August 1995 until 7 July 1998. On 4 July 1998 he was issued with a Category AB firearms licence for the genuine reason of `recreational hunting' and `primary production'. This licence was renewed on 10 July 2003. On 13 August 2001 Mr Saiko was issued with a Category H firearms licence for the genuine reason of `Target Shooting'. This licence was also renewed on 10 July 2003.

4 On 18 August 2003 Mr Saiko lodged an application to be issued with a Commissioners Permit to authorise the use of a pistol for the genuine reason of `primary production'. This application was refused on 8 October 2003. On 17 October 2003 Mr Saiko sought an internal review of that decision. The internal review was finalised on 23 October 2003 and the decision was taken that the Commissioner's decision is to stand.

5 The Commissioner’s delegate provided written reasons for the decision and Mr Saiko was provided with a copy of those reasons. Those reasons provided, in part:

"D. REASONING PROCESS:

The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions, which allow the Commissioner to refuse to issue a permit. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you and your solicitor in support of your application.

After fully and independently considering all relevant matters I make the following fresh determination.

In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of Firearms.

In considering your application I have taken into account these underlying principles and to the provisions of the Act relating to the genuine reasons established as acceptable for being issued with a licence authorising the use of handguns. I have then considered the authority provided for in the Act for the issuing and refusing of Permits.

I have also given strong consideration to the reasons you have offered for requiring the use of a handgun to carry out duties as a primary producer. However, in this regard due to the following reasons I cannot place much weight to the reasons you have relied on for making this application.

This view is borne out of the fact that you have operated a primary production enterprise on you property since 1998 when your initial Category AB firearms licence was issued. This fact is evidence by the information you supplied and declared as true and correct on your application submitted to the Firearms Registry on 22 January 1998 and again on 16 June 2003.

This fact leads the to believe that you have managed to control vermin on your property for a lengthy period of time using long-arms and other methods, prior to making this application to be authorised to use a handgun for this same purpose.

I have taken into account the issues you have raised and accept that your property's topography consists of steep countryside with gullies, ravines, rocky outcrops and heavily overgrown scrub. I also accept that you have a real need to control vermin from attacking your stock. However, you have not offered any reasons that firmly establish why your circumstances how changed in recent times to the extent that you now require the use of a handgun to undertake the same activities that you have been undertaking since 1998 by use of a long-arm firearm. Therefore, I am left to assume that it is the case that you would rather use a handgun to dispatch vermin as opposed to needing to use a handgun.

I also concede that you had your property and safekeeping arrangements inspected by Sergeant Topham and Senior Constable Sherer of Goulburn Licensing Police. However, in his report of 30 July 2003 Sergeant Topham, apart from outlining the nature of the inspection and confirming the topography of your property, the stock contained therein and the safekeeping arrangements, merely advises of your desire and reasons for wanting to use a handgun to control vermin. He does not support your request nor make any recommendation in this regard.

Another factor that I gave considerable weight to in arriving at this decision is the opinion of Senior Sergeant Wayne Hoffman, NS W Police, Forensic Ballistics ('S/Sgt Hoffman') expert. S/Sgt Hoffman is of the opinion that long-arm firearms (rifles and shotguns) are more suitable and appropriate for use in dealing with wild animals in their natural environment. He states that this is due to the following reasons:

Calibre Considerations:

New handgun laws limit the possession and use of handguns over.38/9mm. Thus the use of medium calibre projectiles (handgun ammunition) is not as effective and efficient in the humane destruction of wild animals. He states that larger calibre centre fire ammunition discharged from an appropriate long-arm is definitely more suitable because large calibre ammunition with larger sectional density projectiles discharged and propelled by larger capacity propellant powders have the demonstrated performance required to both `knock down' and destroy large predator animals quickly and humanely.

Variable range considerations:

He states that handguns are limited in their accuracy and performance over longer distances. Destroying large predator animals in their natural environment may require discharging a firearm from point blank range out to a considerable distance with an animal, which is a moving target. Thus long-arm firearms he says are more effective and efficient in their performance as described above, from point blank (contact) range to long-range distance shots.

Firearm handling and accuracy:

He states that the destruction of wild animals in their natural environment is definitely more suitable with a long-arm firearm due to the greater firearm control and accuracy achieved. This is due to the long barrels fitted to rifles and shotguns, which were designed for accuracy. Long-arms are also fitted with butt stocks and forearm stocks making them a shoulder held weapon allowing more support and control of the firearm ensuring safety and greater accuracy.

In general S/Sgt Hoffman has advised that in the history of firearm development long-arm Firearms were designed and developed for not only protection but to enable the "hunter gatherer" to hunt and kill animals in the field. Whereas, handguns were designed for carrying on the person for close personal protection.

In addition, I have given substantial weight to the opinion of the Commissioner's delegate, the Manager, Firearms Registry ('the Manager') that he does not consider it appropriate for a permit to be issued under Section 28(g) for the purpose of possessing and using a Category H firearm by reason of carrying out duties as a primary producer.

Section 28(g) of the Act provides that the Commissioner may only issue a permit to authorise the possession and use of firearms in such circumstances, as the Commissioner considers appropriate.

It is my understanding that the Manager finds it compelling that the genuine reason of `primary production' was not included as a genuine reason identified pursuant to Section 16 of the Act, which provides for restrictions on the issue of Category H firearms licences. I have formed the same view.

In addition, I also find it compelling that Act (Division 3 - Permits) and the Regulations (Parts 5 and 6) did not identify the genuine reason of `primary production' as a specific reason to issue a Commissioner's Permit as was done for a number of other reasons including: `minors firearms permit', `Firearm Museum Permit', `Permit authorising possession of firearms as heirloom', `Permit for firearms used in film, television or theatrical production' etc. It can clearly be seen that the function provided by Section 28 of the Act did not intend to include the genuine reason of `primary production'.

Moreover, it is clear that the intent of the legislation is that a permit be issued in such cases where the granting of a licence is not appropriate or possible, or where other or special circumstances exist outside the `licensing' provisions and restrictions and not as a means of circumventing the restrictions that would apply to the granting of a licence for the same purpose. The need for applicants to establish a `genuine reason' in support of their application is a key feature of the legislative scheme. The Second Reading Speech made by the Hon J W Shaw, Attorney General and Minister for Industrial Relations, on 25 June 1996, makes it clear that the Act implements the Resolutions of the Australasian Police Ministers' Council in Canberra on 10 May 1996 (Hansard, Legislative Council, 25 June 1996 at 3560). One of those resolutions, Resolution 3(b) was "that classifications be used to define the "genuine reason an applicant must show for owning, possessing or using a firearm".

It is also important to note a recent agreement that occurred at the Council of Australian Governments on 2 December 2002 with respect to tightening handgun possession within Australia. As a result of this agreement, the Firearms Amendment (Prohibited Pistols) Bill 2003 fully implements a National Agreement, which places a range of restrictions on handgun target shooters. This Bill will amend the Firearms Act 1996, the Firearms (General) Regulation 1997, and the prohibited weapons legislation to implement the Prime Minister's Handgun Controls. More importantly, the object of this Bill is to reduce the number of pistols in the community and to strengthen controls over access to pistols.

I am therefore mindful of these recent legislative changes, the relevance of same is that they have obviously been brought into existence through the desires of the wider community who seek to improve public safety through tighter handgun control.

The Deputy President in Ward v Commissioner of Police (2000) NSWADT 28 stated:

"The 'public interest' in relation to the holding of a firearms licence relates to the objects and principles set out in s. 3 of the Firearms Act."

It is also accepted that when referring to the issue of `public interest' it includes the safety of the individual seeking to be issued with a licence/permit. In this regard, I have relied on the opinion of S/Sgt Hoffman regarding the safety risks associated with using a handgun to destroy large wild animals in their natural environment and find that you may place yourself at risk to do so.

Therefore, in summary, for the reasons above, I find that not only is it not in the interest of the public (including your own) to grant your application but that it would be inappropriate to issue you with a Commissioner's permit `outside the licensing provisions and restrictions’ of the Act.

E. DECISION:

The Commissioner's decision to refuse your application for a Commissioner's Permit is to stand."

Applicable legislation

6 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as either to confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

7 These are not adversarial proceedings in which Mr. Saiko carries an onus of proof. Mr. Saiko, by making the application, triggers a process of merits review by the Tribunal. Mr. Saiko does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Saiko and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").

8 Section 63 of the ADT Act sets out the approach to be taken by the Tribunal in relation to an application for a review of a reviewable decision. Section 63 states:

"63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

9 The principles and objects of the Act are set out in section 3 in the following terms:

"3 Principles and objects of 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."

10 Section 8 of the Act deals with the different categories of licences, the firearms to which they apply, and the authority they confer. Pursuant to that section a licensee may be authorised to possess or use a registered pistol for a genuine reason. In so far as is relevant section 8 provides:

"Category H licence (pistols)

Firearms to which the licence applies:

- pistols (including blank fire pistols and air pistols).

Prohibited firearms are excluded from this licence category.

Authority conferred by the licence:

The licensee is authorised to possess or use a registered pistol, but only for the purpose established by the licensee as being the genuine reason for having the licence. In the case of a category H (sport/target shooting) licence, the licensee is authorised to possess or use a registered pistol only for the purposes of participating in competitive shooting activities that are approved by the Commissioner. A category H (sport/target shooting) licence does not authorise the possession or use of a prohibited pistol."

11 Section 16 of the Act provides:

"16 Category H licences - restrictions on issue

The Commissioner must not issue a category H licence to any person unless:

(a) the genuine reason established by the person for being issued with the licence is any one or more of the following:

(i) sport/target shooting,

(ii) business or employment,

(iii) firearms collection, 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 pistol."

12 Section 28 of the Act provides the Commissioner of Police with a general power in respect of issuing permits. It provides as follows:

"28 General power to issue permits

The Commissioner may issue permits for any one or more of the following purposes:

(a) to authorise a person to acquire a firearm,

(b) to authorise the possession or use of firearms by minors in accordance with section 32,

(c) to authorise the possession or use of firearms in such circumstances as may be prescribed by the regulations (including film or theatrical productions or other artistic purposes),

(d) to authorise the acquisition, selling or transfer of firearms in such circumstances as may be prescribed by the regulations,

(e) to authorise the shortening or conversion of firearms,

(f) to authorise the use of a firearm (being a firearm to which a category A, category B or category H licence applies) that is part of a licensed firearms collection in order to test it, or on a special occasion as specified in the permit,

(g) to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate,

(h) to authorise anything else that is required by this Act or the regulations to be authorised by a permit."

13 Sections 29 and 30 of the Act provide for general restrictions and provisions on the issuing permits as follows:

"29 General restrictions on issuing permits

(1) A permit must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

(2) Without limiting the generality of subsection (1), a permit must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:

(a) the applicant’s way of living or domestic circumstances, or

(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c) the applicant’s intemperate habits or being of unsound mind.

(3) Subject to this Division, a permit must not be issued to a person who:

(a) is under the age of 18, or

(b) has, within the period of 10 years before the application for the permit was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c) is subject to an apprehended violence order or who has at any time within 10 years before the application for the permit was made been subject to such an order (other than an order which has been revoked), or

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, or

(e) is subject to a firearms prohibition order.

(3A) A permit must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that:

(a) the person is a risk to public safety, and

(b) the issuing of the permit would be contrary to the public interest.

(3B) The Commissioner is not, under this or any other Act or law, required to give reasons for not issuing a permit on the grounds referred to in subsection (3A).

(4) 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.

(5) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a permit.

30 General provisions relating to permits

(1) An application for a permit must be made in the prescribed manner and be accompanied by the prescribed fee.

(2) A permit is to be in a form approved by the Commissioner and contain such detail as may be prescribed by the regulations.

(3) The regulations may prescribe or provide for the Commissioner to impose or determine:

(a) conditions to which a permit is to be subject, and

(b) the period for which a permit is to be in force.

(4) A permit may be suspended or revoked by the Commissioner:

(a) for any reason for which a licence may be suspended or revoked under this Act, or

(b) for such other reasons as may be prescribed by the regulations.

(5) The suspension or revocation of a permit takes effect when notice is served on the holder of the permit.

(6) If a permit is surrendered or revoked, the person to whom it was issued must immediately surrender to a police officer:

(a) any firearm in respect of which the permit has been issued, and

(b) the permit.

Maximum penalty (subsection (6)): 50 penalty units or imprisonment for 2 years, or both."

(7) A police officer is authorised to seize any firearm in respect of which a permit has been issued if the permit is suspended or revoked."

14 The Firearms (General) Regulation 1997 ("the Regulations") set out some specific types of permits which may be issued. Part 5 of the Regulations provides for Minor’s Firearms Permits. Part 6 of the Regulations provides for additional types of permits as follows:

Clause 43 - Permit to purchase non-prohibited firearm on leaving Australia;

Clause 44 - Permit authorising possession of firearm as heirloom;

Clause 45 - Firearms museum permit;

Clause 46 - Permit for firearms used in film, television or theatrical production;

Clause 47 - Theatrical armourer's permit;

Clause 48 - International (temporary) visitors permits - competitions;

Clause 48A - International visitors - exemption for those holding international (temporary) visitors permits issued interstate;

Clause 49 - Permit for tranquilliser firearms;

Clause 50 - Permit to conduct paint-ball games;

Clause 51 - Permit authorising possession of paint-ball guns;

Clause 52 - Permit to operate safari tours involving firearms;

Clause 53 - Permit authorising overseas persons to participate in organised safari tours or other hunting activities;

Clause 54 - Permit for non-prohibited firearms used in historical re-enactments;

Clause 54A - Permit for certain cannon;

Clause 55 - Permit for powerheads;

Clause 56 - Permit for starting pistols;

Clause 57 - Arms fair permit;

Clause 58 - RSL club display permit; and

Clause 59 - Ammunition collection permit.

Mr. Saiko’s case

15 Mr Saiko appeared and gave evidence in support of his application. He was also subjected to cross-examination. His case is essential as set out in his original application to the Commissioner. In his Statutory Declaration of 4 August 2003 Mr Saiko stated:

"1) I say I am the sole director and shareholder of Pomeroy West Pty Ltd, the company shown on the title deed as registered proprietor of the property Pomeroy West, near Goulburn NSW.

2) I say the property incorporates two parcels of land, one previously a separate property known as Airdell, and I say the same situation as to ownership exists with that property, and that the two lots comprise a single property of which I am the registered proprietor holding same by way of companies (Pomeroy West Pty Ltd and Airdell Pty Ltd).

3) The Property (hereinafter referred to as Pomeroy West) is used for primary production only, and currently carries 2000 head of sheep, wool being the main product of the property, with meat produced to a lesser degree.

4) Much of the property consists of very steep countryside, comprising gullies, washouts, ravines, dry creek beds and rocky outcrops, most of which is heavily overgrown. The stock requires constant surveillance and attention, and sick and injured sheep frequently take to the most dense cover in the roughest county. This country is accessible only by motorbike, some being accessible only on foot. Annexed hereto and marked "A, B, C, D and E" are photographs showing the nature of the terrain and the ground cover on Pomeroy West.

A longarm cannot be carried on a motorcycle with safety whilst doing work of this kind - even the shortest barrel permissible at law, if slung across the back, catches in the overhang, which would result in a fall and injuries. The use of a rifle-bucket (scabbard) on the side of a motorcycle causes the same problem -

A fall in this country, apart from the more obvious risk of injuries, can prove fatal in winter time, as temperatures are sufficiently low to cause hypothermia and death should an injured rider be incapable of movement.

A handgun is the only humane way to dispatch sick or injured sheep or cattle, and it is for this reason I make my present application for a permit for rural handgun use. An axe or other instrument could be used to kill bogged or injured sheep or cattle, but by comparison such methods are inhumane in the extreme.

Annexed hereto and marked "A" "B" "C" "D" and "E" are photographs showing the nature of the terrain and the ground cover on Pomeroy West.

5) I say I am currently a category H licence holder (Licence No 403921955) and I request the Commissioner issue my permit for a rural handgun licence on the strength of the foregoing particulars."

16 The annexures referred to in Mr Saiko’s Statutory Declaration were also provided and support the assertions he has made. A memo from the Goulburn Local Area Command in relation to the application also supports his assertions insofar as they relate to the topography of the Property. That memo states:

"in company with Senior Constable Sherer I attended the property Pomeroy West, Range Road, Goulburn on the afternoon of 29 July, 2003. We there spoke to Mr. Bernhard Saiko who informed us he was the property owner. ... He stated he wished to be able to carry a handgun on the property for the humane destruction of injured and sick stock and to do so with a long arm was impracticable due to the predominating terrain. Mr. Saiko then conducted both Senior Constable Sherer and I on viewing of the property by 4WD vehicle. The Property, situated twenty four (24) kilometres northwest of Goulburn consists of approximately 6,000 acres which is predominately hilly and bisected by a number of deep, steep gullies. Approximately half the property is moderately to heavily timbered with Mr. Saiko indicating the whole of the property is being used for grazing purposes. A number of photographs depicting the topography of the property taken-by Police at the time of inspection are attached. At the present time it is carrying approximately 2,000 sheep due to the prevailing drought conditions but in normal times it usually carries approximately 3,000 sheep, 400 cattle and 10 horses. Mr Saiko indicated that mustering and stock work has in the past been carried out on horseback and motorcycle but is now in the main carried out by the latter. He indicated the carriage of a longarm is very difficult in the prevailing topography and due to the size of the property, to return to the homestead to access a firearm on every occasion needed is impracticable."

17 In his evidence before the Tribunal Mr. Saiko stated that he attends the Property approximately three days per week. He has sold his Sydney business and the amount of time spent on the Property is increasing. While he is away there is no one to care for the stock. He stated that he last used a firearm to destroy injured and sick stock a couple of months prior to the hearing. He was able to use a long-arm rifle, as the animal was in open country. Mr. Saiko conceded that at the time of the hearing he had no stock of his own on the Property.

18 Mr. Saiko seeks the issue of a permit so that he will be able to deal with the sick or injured stock when the need arises in the future.

The Commissioner’s case

19 Ms Buchanan provided written submissions in support of the Commissioner’s case. She relies on those submissions and also repeats the arguments set out in the reasons for internal review. Ms Buchanan submitted:

"In this case, the Commissioner of Police may issue a permit for the use of firearms in such circumstances, as the Commissioner considers appropriate.

The Commissioner does not consider it appropriate to issue permits authorising the possession and use of a Category H firearm for the purposes of primary production. The Commissioner of Police considers that would be contrary to the spirit of the legislation.

It is clear from section 16 of the Firearms Act 1996 that there are restrictions on the use of Category H firearms. Whilst I note that the applicant has not applied for a Licence but has applied for a Permit I would submit that it is necessary to look at each category of firearm and its intended use to gain an insight into what the legislation intended in respect of each type of firearm.

Section 8 below, deals with the different firearm categories for obtaining a firearms licence...

We must also look at section 16 of the Firearms Act 1996 which places restrictions on genuine reasons for which a person can obtain a licence for a Category H firearm.

Section 16 provides as follows: ...

The applicant wants a pistol for use as a primary producer. When looking at the genuine purpose of primary production it is clear that the legislation would allow the applicant to obtain a licence for Category A, B and C firearm. The applicant in fact currently holds a Category ABC firearms licence. (But section 16 above indicates that the applicant cannot obtain a licence for a category H firearm for the genuine reason of primary production). It is clear that the legislative scheme "covered the field" in regards to genuine reasons.

The legislation clearly limited the circumstances in which a person can obtain a Category H firearms licence. The legislation intended that primary production not be a genuine reason for issuing a Category H licence.

To allow a person to obtain a permit authorising the use of a category H firearm would be inconsistent with the intention of the Act. To do so would arguably be to provide a loophole to enable an applicant to obtain a category H firearm for reasons the legislation clearly does not allow.

The Commissioner of Police relies on the matter of Christianos v Commissioner of Police [1999] NSWADT 66. In this case the applicant applied for a pistol permit under section 28(g). It should be noted that the applicant had previously been issued with such a permit. The applicant wanted the permit to carry a pistol whilst lie worked buying and selling opals.

The Tribunal discussed the permit system and at paragraph 12 the Tribunal indicated that the Firearms Act 1996 provided for a "permit scheme which applies in two broad situations; firstly where a person wishes to acquire a firearm (a separate permit is required for the acquisition of every firearm) and; secondly where a person wants to possess or use a firearm but does not come within the licensing regime. This can occur where, for example, the person does not normally reside in New South Wales or where they want the firearm for film or theatrical purposes".

The Tribunal looked to Clause 43-50A of the Firearms Regulation 1997, which set out some specific circumstances, which require a permit. The Tribunal indicated,

"The intent of the firearms legislation is that a permit be issued in such cases where the granting of a licence is not appropriate or possible, or where other special circumstances exist outside the `licensing' provisions and restrictions."

The licensing Regime does not allow a person to obtain a Category H firearm for the purposes of primary production. The Tribunal indicated in Khamis v Commissioner of Police (2001) NSW ADT 21 that "it is reasonable to imply that the intent of the legislation was not to provide permit applicants with a means of circumventing the restrictions that apply to the granting of a licence".

There is no express guidance by the Act or the regulations as to how the discretion in 28(g) should be exercised. However it is useful to look to the second reading speech. The Hon J W Shaw stated that the "firearms Bill represents the toughest controls on firearms ever enacted in New South Wales. The underlying principles and aims of the proposed Act are that the possession and use of a firearm is a privilege not a right, and is conditional on the overriding need to ensure public safety". He went on to say

"the proposed Act will improve public safety by imposing strict controls on the possession and use of firearms, promoting the safe and responsible storage and use of firearms and facilitating a national approach to the control of firearms".

The speech indicates that the objects of the Bill are 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. In respect of a category H firearm, the use of primary production is not a genuine reason. Whilst the applicant is applying for a permit not a licence, it is necessary to look at what the legislation intended. In respect of Category H firearm it is clear from the outset of the intention of Parliament that primary production was not a genuine reason.

The Hon J W Shaw also discussed the issue of permits. He indicated that again, as under the existing law, the Commissioner is able to issue permits for other purposes such as film or theatre production or other purposes, and for overseas shooters who are visiting Australia to participate in shooting competitions. There is no indication that permits could or should be used to provide applicants with a way of obtaining possession and use of a firearm for a purpose, which the legislation clearly did not allow.

Parliament clearly intended for the permits to be issued in circumstances which were not dealt with in the legislation. It was to be used in "unforeseen circumstances" which had not been anticipated by the legislation. The use of a Category H firearm for primary production was clearly considered by the legislation and the legislation clearly indicated at section 16 of the Act that primary production was not included as a genuine reason for a Category H firearm. Category A, B, C firearms are to be used for the genuine reason of primary production.

In effect, the issuance of a Commissioner's permit would be inappropriate, and in my submission would be forcing the Commissioner of Police to make a decision not in accordance with the Act.

For this reason the Commissioner of Police does not consider it appropriate to issue a permit authorising the possession and use of a Category H firearm (pistol) to be used for primary production purposes.

The Commissioner of Police also relies on section 29(4) of the Firearms Act, which provides the Commissioner of Police with discretion to refuse to issue a permit if the Commissioner of Police considers that it would be contrary to public interest.

It has been said that "Applying the public interest test is a question of fact and degree, often depending on a balance of interests, including competing public interests" Re Queensland Electricity Commissioner & Ors Ex Parte Electrical Trade Union of Australia (1987) 72 ALR l per mason CJ Wilson & Dawson JJ at 5.

The reference to "public interest" is to ensure that private interests are not the only matters taken into account and to make clear that the interests of the whole community are matters for the Commissioner of Police's consideration. The effect of the reference is to amplify the scope and purpose of the legislation (Comalco Aluminium (Bell Bay) Ltd v O'Connor & Others (1995) 131 ALR 657.

The purpose of the legislation was clearly indicated by the Hon JW Shaw during the second reading speech referred to above. The underlying principle of the Act is that possession and use of a firearm is a privilege not a right and is conditional on the overriding need to ensure public safety. Public safety was said to be improved by imposing strict controls on the possession and use of firearms and 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 that firearm.

The applicant cannot show a genuine reason for possessing a category H firearm under the licensing regime. So what he is doing to trying to obtain the same firearm for the same reason under the permit scheme. This is clearly against the intention of the act and does not promote the principles and objectives of the act.

The legislation clearly limits the uses of a pistol. There is a public concern regarding the existence of pistols in the public and one need only look to the news to hear of the handgun problem facing NSW. It is arguable that the public would be concerned that a person would be able to obtain a pistol under a permit when the licensing requirements would not allow that. The public would rightly he concerned that the permit system was being used as a means of circumventing the restrictions that apply in respect of firearms licensing.

There have been recent changes to the Firearms legislation in respect of handguns. Agreement was reached at the Council of Australian Governments on 2 December 2002 with respect to tightening handgun possession within Australia. As a result of this agreement, the Firearms Amendment (Prohibited Pistols) Act 2003 amended the Firearms Act 1996 and the Firearms Regulation 1997. The object of this Act was to reduce the number of pistols in the community and to strengthen controls over access to pistols.

In the matter of Ward v Commissioner of Police (2000) NSWADT 28 the tribunal stated:

"the ‘public interest' in relation to the holding of a firearms licence relates to the objects and principles set out in section 3 of the Firearms Act".

The principles and objects are set out in section 3 ...

To allow the applicant to obtain a permit authorising the possession and use of a Category H firearm for the purposes of primary production when the licensing requirements would not allow this, it is contrary to the intention of the Act and does not promote the objects and principles of the Act.

The Respondent submits the issue of a permit in these circumstances would be contrary to the public interest.

The Respondent submits that the Commissioner of Police made the correct and preferable decision is refusing to issue the permit."

20 The reference to the opinion of Senior Sergeant Hoffman is a reference to a report provided by Senior Sergeant Hoffman to Mr Garry Richmond of the Firearms Registry. That report is dated 15 October 2003 and states:

"Here is my opinion in relation to your request by email dated 16/09/03 on the subject, "Ballistics advice re pistols used by farmers for shooting wild boars and fishermen for shooting sharks." It is noted that no hard copy report will be submitted by the Firearms Registry to Ballistics and advice by way of this email to yourself is all that is required at this stage.

I am of the opinion that Longer Firearms (Rifles and Shotguns) are more suitable and appropriate for use in dealing with these type of wild animals in their natural environment due to the following:

CALIBRE CONSIDERATIONS:

New handgun laws limit the possession and use of handguns over .38/9mm in calibre except for certain target sports such as metallic silhouette, etc. Thus the use of medium calibre projectiles (handgun ammunition) is not as effective and efficient in the humane destruction of these types of wild animals described. Larger calibre centre fire ammunition discharged from an appropriate long-arm is definitely more suitable. This is because large calibre ammunition with larger sectional density projectiles discharged and propelled by larger capacity propellant powders have the demonstrated performance required to both-knock down' and destroy such large predator animals quickly and humanely.

VARIABLE RANGE CONSIDERATIONS:

Handguns are limited in their accuracy and performance over longer distances. Destroying large predator animals in their natural Environment may require discharging a firearm from point blank range out to a considerable distance with an animal which is a moving target. Thus longarm firearms are again more effective and efficient in their performance as described above, from point blank (contact) range to long-range distance shots.

FIREARM HANDLING AND ACCURACY:

The destruction of wild animals in their natural environment is definitely more suitable with a longarm firearm due to the greater firearm control and accuracy achieved with a longarm. This is due to the long barrels fitted to rifles and shotguns which were designed for accuracy- Longarms are also fitted with butt stocks and forearm stocks making them a shoulder held weapon allowing more support and control of the firearm ensuring safety and greater accuracy.

NOTE:

In the history of firearm development LONGARM Firearms were designed and developed for not only protection but to enable the "hunter gatherer" to hunt and kill animals in the field. HANDGUNS were designed for carrying on the person for close personal protection. Any serious hunter in the field would -only' use a longarm firearm and would not entertain a small barrelled handgun controlled by way of a handgrip only. This same 'serious and concerned' hunter would also be very aware of the limitations of handguns to longarms as described in this email. If these firearm users are unaware of the limitations and differences as outlined then their possession and use of firearms in general should be examined."

Findings

21 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:

a) Mr Saiko is of good character;

b) on 6 July 1998 Mr Saiko was issued with a Category AB firearms licence for the genuine reason of primary production activities. That licence was renewed on 10 July 2003;

c) on 14 August 2001 Mr Saiko was issued with a Category H handgun firearms licence for the genuine reason of target shooting. That licence was renewed on 10 July 2003;

d) Mr Saiko’s company is the sole proprietor of the Property. Mr Saiko nominated the Property as that on which he conducts his primary production business for the purpose of his Category AB firearms licence;

e) Mr Saiko can carry approximately 2000 head of sheep on the Property. At various times it is also used to raise cattle and horses. At the present time Mr Saiko has no stock of his own on the Property;

f) the terrain of the Property includes very steep countryside, comprising gullies, washouts, ravines, dry creek beds and rocky outcrops that are heavily overgrown;

g) on 18 August 2003 Mr Saiko applied for a Commissioners Permit to authorise him to use a handgun in association with activities under the genuine reason of `primary production' on his property;

h) Mr Saiko believes it is in the interest of his safety that he be able to use a handgun to dispatch vermin on his property due to its terrain;

i) Mr Saiko has managed to control vermin on this property using long-arms since at least 1998;

j) Local police have not supported Mr Saiko’s application for a Commissioner’s Permit;

k) it is the opinion of Senior Sergeant Hoffman, NSW Police, Forensic Ballistics that the use of long-arm firearms are more suitable and appropriate than handguns in the destruction of wild animals in their natural environment;

l) Section 28(g) of the Act provides that the Commissioner may issue a permit to authorise the possession and use of firearms in such circumstances as the Commissioner considers appropriate; and

m) the Commissioner does not consider it appropriate for a permit to be issued under section 28(g) for the purpose of possessing and using a Category H firearm by reason of carrying out duties as a primary producer.

22 The Act makes the possession and use of pistols more difficult than the possession and use of long-arm rifles. The circumstances in which a licence can be issued for a pistol are limited and must be viewed in light of the paramount considerations of public safety and the public interest. The legislation restricts the possession and use of category H pistols to a very narrow base. The possession and use of category H pistols pursuant to a permit should be no less restrictive than that pursuant to a licence.

23 I note that the approach to making a decision under section 28(g) of the Act was considered by Judicial Member Rice in Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52. The Judicial Member rejected a suggestion that the discretion can properly be fettered by a view that the Commissioner has come to generally about the appropriateness of issuing permits for the use of pistols. Rather, he considered that the discretion must be exercised according to the particular circumstances of the case. This seems to me to be the correct approach.

24 Nevertheless, it is appropriate that any exercise of discretion accord with the principles and objects of the Act. In my view, this will only be achieved if there is a genuine reason and a special need for the possession and use of a category H pistol. This approach is consistent with the view expressed by Judicial Member Lees in Khamis v Commissioner of Police (2001) NSW ADT 21 where she stated, at paragraph 61, that "it is reasonable to imply that the intent of the legislation was not to provide permit applicants with a means of circumventing the restrictions that apply to the granting of a licence".

25 It is common ground that Mr Saiko has established a genuine reason for the possession and use of a firearm. However, Mr Saiko must show that the use of a pistol rather than a long-arm is necessary, rather than merely desirable or convenient. There must be a special need for the possession and use of a pistol. That need must be real and not hypothetical based on an assumed future event. Mr Saiko’s need for a pistol is neither frequent nor constant. He proposes to use a pistol for the humane destruction of distressed animals, not for the destruction of feral animals. I am satisfied that alternative methods, although less convenient, are available to him for this purpose. If Mr Saiko does not restock the Property, whether because of drought or any other reason, the assumed need of the humane destruction of distressed animals would not materialise. In those circumstances it cannot be said that Mr Saiko has a special need to possess or use a pistol.

26 On the evidence before me it is my view that Mr Saiko’s use of a pistol would not be a necessity, but a mere convenience. I do not accept that the use of a pistol is necessary in the circumstances. This convenience must be weighed against the paramount considerations of public safety and the public interest. In my view the weight to be given to Mr Saiko’s preferred use of a pistol is not enough to make it appropriate to issue a permit for a pistol.

27 In the circumstances I need not consider the other issues raised by the Commissioner. I am not satisfied that Mr Saiko’s circumstances are such that the issue of a permit is appropriate. Accordingly I affirm the Commissioner’s decision to refuse the issue of a permit requested by Mr Saiko.

Order

The Commissioner’s decision to refuse the issue of a permit is affirmed.