Braithwaite v Commissioner of Police, New South Wales Police [2004] NSWADT 199

CITATION: Braithwaite v Commissioner of Police, New South Wales Police [2004] NSWADT 199 DIVISION: General Division APPLICANT PARTIES: Garry Braithwaite RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 043088 HEARING DATES: 23/08/2004 SUBMISSIONS CLOSED: 08/23/2004 DATE OF DECISION: 09/14/2004

BEFORE: O'Connor K - DCJ (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 Act 1996 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT P McLaughlin, solicitor ORDERS: Decision under review affirmed

REASONS FOR DECISION 1 The review applicant is a commercial fisher. On 29 December 2003 he applied pursuant to s 10 for renewal of his Category C Firearms Licence issued under the Firearms Act 1996 (the Act). The application was refused on 17 February 2004 by the Commissioner's delegate. The applicant requested internal review. On 22 March 2004 the decision was confirmed. The reason for refusal was that his circumstances did not bring him within the grounds provided under the Firearms Act for the issue of a Category C licence. The applicant lodged his application for review pursuant to s 75 of the Act on 5 April 2004. 2 Category C covers the following kinds of weapons (s 8): • self-loading rimfire rifles with a magazine capacity of no more than 10 rounds • self-loading shotguns with a magazine capacity of no more than 5 rounds • pump action shotguns with a magazine capacity of no more than 5 rounds. 3 The applicant's business is based at Bermagui, and he takes to sea a 30 foot steel vessel manned by two crew, presently himself and his de facto wife, Anne. He fishes for a variety of species by various methods. The prey include tuna and marlin. He uses a variety of weapons to stun and kill big fish before hauling them on board. He says that the most effective method for killing large tuna and marlin is to use a rapid-fire action to kill them once they have been brought in range of the boat. The use of a rapid-fire action was superior to that provided, for example, by a bolt action shotgun. 4 While the applicant has Category A and Category B licences (reissued 16 September 2003), the weapons they cover (non-self-loading firearms other than pistols) do not, he claims, have as good a rapid-fire capability as a semi-automatic. He said a semi-automatic could discharge several shots in about a second to a second-and-a-half. On the other hand a self-loading bolt action rifle might take 30 seconds to discharge a magazine of say, twelve, cartridges. He said that it was important to kill a big fish, such as a 150kg tuna, as quickly as possible. To take the situation with a self-loading rifle, the gap in time between the first bullet and the second might mean that a large fish that is not killed by the first round could take off successfully (break the line, or cause the fisher to lose the line) before another bullet could be fired. There was a greater guarantee of quick success in killing the fish if a rapid-fire semi-automatic could be used. His evidence is that he had held this kind of licence for more than 30 years. 5 The applicant stated that the circumstances in which it is necessary to resort to the semi-automatic are not everyday ones. His recollection was that in his last full tuna/marlin season, he used the semi-automatic about twelve times. He emphasised that while the frequency of use was low, it was very important to the commercial success of his business that he have access to such a weapon for these relatively rare occasions. Big game fish could be very profitable if the skin and flesh remained intact and in good quality. He referred to the high world prices paid for 'sashimi standard' tuna. He said that one of the disadvantages of using an ordinary rifle was that, by having to fire several shots, there could be relatively widespread damage to the skin and flesh, which markedly reduced the market value of the fish. He saw a rapid-fire capability as being more effective in avoiding that kind of problem. 6 The applicant's previous Category C licence expired on 15 January 2003. As noted above, he did not seek to renew the licence until December 2003. He said at hearing that he had not needed access to a Category C weapon again until that time. Because of concern that he might not be able to get another Category C licence, he had on 13 December 2002 applied for a Category H (pistol) licence. That application was refused on 16 October 2003, decision affirmed on internal review, 13 November 2003. He applied to the Tribunal for review. By decision dated 27 July 2004 the Tribunal (Montgomery JM) set aside the refusal, and remitted the matter to the Commissioner for consideration subject to the recommendation that the licence be granted when the applicant has completed such firearms training as the Commissioner considers appropriate for this category of licence. 7 The applicant said that the Category H licence provided the benefit of enabling him to access a rapid-fire weapon; but that he would prefer to have a Category C licence. This covered the weapon he was used to. He said if he got a Category C licence he would happily hand in the Category H licence and dispose of the pistol. 8 The Commissioner objects to the grant of a Category C licence. The Commissioner points out that the statutory criteria governing the grant of a Category C licence are narrower than those applying to Category H licences. 9 The rule governing the grant of a Category C licence is (s 14): ' 14 Category C licences—restrictions on issue Except as provided by section 17A, the Commissioner must not issue a category C licence to any person unless: (a) the genuine reason established by the person for being issued with the licence is primary production (or such other genuine reason as may be prescribed by the regulations), 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 licence category C applies, and (c) 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 or category B licence).' 10 By way of comparison the rule governing the grant of a Category H licence is (s 16): '(1) 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.' 11 It will be seen that the Category C rule is stricter in one important respect. The class of permitted activities is narrower (primary production only – there are no regulations extending this). 12 The 'genuine reason' requirement is governed by s 12 of the Act which provides: ' 12 Genuine reasons for having a licence (cf APMC 3, 1990 Reg cl 22A) (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. (2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons: (a) personal protection or the protection of any other person, (b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section). (3) Subsection (2) does not limit the reasons which the Commissioner may be satisfied are not genuine reasons for the purposes of justifying the possession or use of a 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.' 13 The Table, as relevant, provides: ' Reason: primary production The applicant must: (a) be 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 (b) state that he or she intends to use the firearm solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned).' 14 Mr McLaughlin for the Commissioner contends that the 'genuine reason' requirement is not satisfied as the term 'primary producer' is confined to land-based primary production activities and does not include commercial fishers engaged in hunting for fish on the high seas. His argument is that for a person to be engaged in primary production they must be involved in the managed cultivation of a resource. In reply the applicant submitted that his business was treated as primary production for tax purposes. He also referred to the fact that after the present Firearms Act came into force (it represented a significant tightening in the regime governing firearms), he had been refused a Category C Licence but it had been granted on appeal by the District Court sitting at Bega in 1998. He contended that the arguments relied upon by the Police had been disposed of on this occasion, and he should not be have to meet them again. 15 Mr McLaughlin also drew on other indications in the definition in support of his argument. He submitted that the final words of para (a), which gives the owner, lessee or manager of land a right to a semi-automatic in connection 'with land used for primary production', supported his contention that the Parliamentary intent was to restrict possession of semi-automatics to people engaged in primary production on land. 16 In the alternative, Mr McLaughlin submitted, if the Tribunal was of the view that the applicant did satisfy the requirement of being a person engaged in the occupation of 'primary producer' for the purpose of part (a) of the definition, it remained necessary also to bring the case within part (b). He referred to dictionary meanings of 'farming' and said that they all had the connotation of growing or cultivating produce on land. According to Mr McLaughlin the applicant did not 'farm', he hunted. 17 Mr McLaughlin conceded, after questions from the Tribunal, that 'farm' was not used in such a restrictive connotation today, and that is was not uncommon to see references to 'oyster farming' and 'farming' Atlantic salmon, ocean trout and the like. Mr McLaughlin acknowledged the point, but submitted that these activities also fitted in generally with the definition of 'farming' as they involved the managed growing and cultivation of stock held within a defined space controlled by the farmer. 18 There is force in Mr McLaughlin's arguments of statutory interpretation. 19 There is, the Tribunal considers, a doubt as to whether the kind of fishing that the applicant undertakes could be said to amount to primary production in its ordinary meaning. But even if the applicant could be said to be a person whose occupation is the business of a primary producer for the purposes of para (a), it can not be said that he is engaged in farming activity for the purpose of para (b). 20 The Online Dictionary (US) reflects modern usage in its definition of 'farm' in particular item 2(b): 1. A tract of land cultivated for the purpose of agricultural production. 2. a. A tract of land devoted to the raising and breeding of domestic animals. b. An area of water devoted to the raising, breeding, or production of a specific aquatic animal: a trout farm; an oyster farm. 3. An area of land devoted to the storage of a commodity or the emplacement of a group of devices: a tank farm; an antenna farm. 21 If the Tribunal is wrong, and it can be said that the applicant's circumstances satisfy the 'genuine reason' requirement, his circumstances do not satisfy requirement (c) of s 14. 22 The applicant has demonstrated a 'special need' for a Category C weapon, but he is not able to show that his need cannot by met by any other means. In this case the Category H licence would meet his special need for a rapid fire capability suited to stunning big fish. The applicant felt that it was better to give him access, as he had had in the past, to a semi-automatic rifle (a 'long barrel'). He was experienced in its use. It was held safely between times in a holster fixed to a wall on the deck. It was, he felt, a safer method than a pistol. While that may be so it is not a sufficient reason to hold that he does not have another means available to him of addressing his problem. 23 But to reiterate, the Tribunal's main reason for rejecting the applicant's application is that his business is not one involved in farming. 24 The applicant will no doubt see the outcome of his two applications for review (this one and the one heard by Montgomery JM) as strange. He is now able to use a weapon (a pistol) that he has not used before for stunning and killing big fish; and can not continue to use the weapon (a self-loading 'long barrel') which he has used for many years. He is, in effect, being switched from a weapon with which he is comfortable and with which he has had a lot of experience to one that he has not previously held and for which he must do some additional training. 25 As previously explained, that is a consequence of the stricter preconditions that apply to the issuance of Category C licences. 26 The application is dismissed. Order Decision under review affirmed.