CITATION: Fraser v Commissioner of Police, NSW Police [2004] NSWADT 184 DIVISION: General Division APPLICANT PARTIES: Stuart Bryson Fraser RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 043010 HEARING DATES: 1/04/2004 SUBMISSIONS CLOSED: 04/08/2004 DATE OF DECISION: 08/26/2004 BEFORE: Higgins S - Judicial Member APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 Commissioner of Police, New South Wales v Srape (GD) [2004] NSWADT AP 15 Field v Commissioner of Police, NSW Police [2004] NSWADT 82 Finlay v Commissioner of Police, NSW Police Service [2004] NSWADT 152 CASES CITED: Jamieson v Commissioner of Police, NSW Police [2004] NSWADT 148 Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 McIver v New South Wales Police (unreported, 2 July 2004, Bryce J) Rana v Human Rights and Equal Opportunity Commission & Anor (1997) 155 ALR 128 Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99 APPLICANT REPRESENTATION: D McKay, solicitor RESPONDENT P McLaughlin, solicitor ORDERS: 1. The Commissioner's decision to refuse Mr Fraser's application for a permit to possess and use a category H firearm is set aside. ; 2. Mr Fraser's application is remitted to the Commissioner for consideration in accordance with these directions: ; (a) the Commissioner is to give effect to the Tribunal's view that it is appropriate that Mr Fraser be issued with a permit under s.28(g) of the Act; and ; (b) in consultation with Mr Fraser, the Commissioner is to consider appropriateness of imposing a condition on the permit that limits Mr Fraser's use of a Category H firearm to those situations where he has need to destroy distressed or feral and wild animals, and ill and dying livestock where the use of a long-arm is not practicable because of the inaccessible terrain of his property. BACKGROUND 1 This is an application by Mr Fraser, a primary producer, seeking review of a decision by a delegate of the Commissioner of Police, New South Wales Police ("the Commissioner") to refuse his application for a permit to possess and use a Category H firearm. That decision was made on 12 November 2003 and the Commissioner, through another delegate, confirmed that decision on 5 December 2003, following an internal review request by Mr Fraser. 2 In his reasons for decision, following the internal review, the Commissioner made reference to the following points: a) Mr Fraser had been granted a 'Commissioners Permit – Primary Production Pistol' on 10 July 1998. That application expired on 27 August 2003. b) On 11 April 2003, Mr Fraser was issued with a Category AB firearms licence for the genuine reason of primary production activities on his property. This licence was due to expire on 11 April 2008. c) Senior Sergeant Hoffman, NSW Police Forensic Ballistics, had advised the Commissioner that he was of the opinion that: "The use of long-arm firearms are more suitable and appropriate than hand guns in the destruction of wild animals in their natural environment". d) On the basis of the advice of Senior Sergeant Hoffman, the Commissioner noted 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". e) It was noted that between 1994 and 1997 Mr Fraser held a Class One Shooters Licence, issued for the genuine reason of "primary production". It was also noted that since 1997 Mr Fraser has held and continues to hold a Category A and B firearm licence for the same purpose. The fact that Mr Fraser held such a licence led the Commissioner to believe that he has managed to control vermin on his property for a lengthy period of time using long-arms and other methods, prior to being authorised to use a handgun for the same purpose. f) The Commissioner had given substantial weight to the opinion of the Manager, Firearms Registry ("the Manager") that he does not consider it appropriate for a permit to be issued under s.28(g) for the purpose of possessing and using a Category H firearm for reasons of carrying out duties as a primary producer. In this regard the Commissioner agreed with the position of the Manager that the genuine reason of "primary production" was not included as a genuine identified pursuant to s.16 of the Firearms Act 1996 ("the Act"). g) The Commissioner was of the opinion, having regard to the specific purpose for which a permit may be issued in Division 3 of Part 2 of the Act, and Parts 5 and 6 of the Firearms (General) Regulation 1997 ("the Regulation"), the function provided by s.28 of the Act "did not intend to include the genuine reason of 'primary production'". Furthermore, the intention of the Act did not permit the granting of a permit as a means of circumventing the restrictions that would apply to the granting of a licence for the same purpose. h) Finally, the Commissioner was of the view that it was not in the public interest for Mr Fraser to be issued with the requested permit. For the purpose of this ground, the Commissioner relied on the advice of Senior Sergeant Hoffman regarding the safety risks associated with using a handgun to destroy large wild animals in their natural environment. 3 The Tribunal has jurisdiction to hear and determine this application by virtue of s.75(1)(a) of the Act and s.38 of the Administrative Decisions Tribunal Act 1997. RELEVANT LEGISLATION 4 The Act makes provision for the regulation, control and registration of firearms and the licensing of persons to possess and use a firearm. The principles and objectives of the Act are set out in s. 3, which provides as follows: " 3(1) The underlying principles of this Act are: (a) to confirm firearms possession 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 control upon 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 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". 5 The licensing provisions are contained in Part 2 of the Act. This Part is divided into three Divisions. Division 1 creates an offence where a person possesses or uses a firearm without being authorised to do so by a firearms licence or a firearms permit (see s. 7A of the Act). Division 2 makes provision for the issue of a 'firearms licence' and Division 3 makes provision for the issue of a 'firearms permit'. Firearms licence 6 Section 8 of the Act prescribes 7 different types of licences. These are a category A, B, C, D and H firearms licence, a firearms dealer licence and a firearms collector licence. Each category of firearms licence relates to specific types of firearms. For example, air rifles, rim fire rifles (other than self loading), shot guns (other than pump action or self loading) and shot gun/rim fire rifle combinations are all category A firearms. Muzzle loading firearms (other than pistols), centre fire rifles (other than self loading) and shot gun/centre fire rifle combinations are all category B firearms. Pistols, other than a prohibited firearm, are category H firearms. This is the only category, which covers hand held firearms. 7 Section 12(1) of the Act provides that the Commissioner must not issue a licence unless the Commissioner is satisfied that the Applicant has a 'genuine reason' for possessing or using the firearm. The term 'genuine reason' is defined in s.4 to mean a genuine reason as referred to in the Table to s.12. That table contains 8 genuine reasons; namely: Sport/target shooting Recreational hunting/vermin control Primary production Vertebrate pest animal control Business or employment Occupational requirements relating to rural properties Animal welfare Firearms collection 8 The relevant 'genuine reasons' for the purposes of this application are 'primary production', 'vertebrate pest animal control' and 'business or employment'. These are described in the Table to s. 12 as follows: "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 vertebrae pest animals on the land concerned). Reason: vertebrate pest animal control The applicant must be: (a) a professional contract shooter engaged or employed in controlling vertebrate pest animals on rural land, or (b) a person employed by or in, or authorised by, a government agency prescribed by the regulations that has the functions relating to the control or suppression of vertebrate pest animals, or (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 that are affected by brucellosis or tuberculosis. Reason: Business or Employment The applicant must demonstrate that it is necessary in the conduct of the Applicant's business or employment to possess or use the firearm for which the licence is sought". 9 A category C, D and H licence each relate to a specific 'genuine reason'. That is, the issue of these categories of licence are restricted to one or more specifically prescribed 'genuine reason'. For example, the Commissioner must not issue a category C licence to a person unless the applicant establishes that his/her genuine reason for being issued with a licence is 'primary production' or for any other genuine reason prescribed by the regulations (see s. 14(a) of the Act). A category D licence can only be issued where the applicant establishes that his/her genuine reason for being issued with a licence is 'vertebrate pest animal control' (see s. 15(a) of the Act). The genuine reason restrictions on the issue of a category H licence are set out in s. 16(1)(a) of the Act, which provides, so far as is relevant, as follows: "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. (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 posses or use a pistol". 10 In addition to being satisfied that the applicant has established the requisite 'genuine reason' for possessing and using a firearm, ss, 13, 14(b), 15(b) and 16(1)(b) (see above) of the Act require the Commissioner to be satisfied, from evidence produced by the applicant, that the applicant has a "special need" to possess or use a firearm to which the category of licence applied for applies. In the case of a category C and D firearms licence application the applicant is also required to produce evidence to the satisfaction of the Commissioner that the applicant's "special need" cannot be met by any other means, including a category A or B firearms licence (see s. 14(c) and 15(c) of the Act). 11 Other than a category D firearm licence or a probationary pistol licence (i.e. a probationary category H (sport/target shooting) licence: see ss. 16A and 16B of the Act), all firearms licences once issued remain in force for a period of 5 years unless the regulations prescribe a shorter period. A category D firearm licence and a probationary pistol licence remain in force for 12 months. Permits 12 Section 28 of the Act makes provision for the issue of permits. That section provides as follows: "28 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 Section 31 of the Act makes provision for a permit to acquire a firearm. That section provides that a separate permit must be obtained for every firearm that is purchased and that the permit once issued is only valid for 30 days or such longer period as approved by the Commissioner. 14 In accordance with s.28(c) of the Act, Part 6 of the Regulation prescribes 20 circumstances where a permit may be issued. These are as follows: "43. Permit to purchase non-prohibited firearm on leaving Australia 44. Permit authorising possession of firearm as heirloom 45. Firearms museum permit 46. Permit for firearms used in film, television or theatrical production 47. Theatrical armourers permit 48. International (temporary) visitors permits—competitions 49. International visitors—exemption for those holding international (temporary) visitors permits issued interstate 50. Permit for tranquilliser firearms 51. Permit to conduct paint-ball games 52. Permit authorising possession of paint-ball guns 53. Permit to operate safari tours involving firearms 54. Permit authorising overseas persons to participate in organised safari tours or other hunting activities 55. Permit for non-prohibited firearms used in historical re-enactments 56. Permit for certain cannon 57. Permit for powerheads 58. Permit for starting pistols 59. Arms fair permit 60. RSL club display permit 61. Ammunition collection permit 62. Permit for large calibre pistols used in specialised shooting competitions". 15 Clause 21 of the Regulation provides that a permit once issued remains in force for 5 years unless the Act, the Regulation or the Commissioner provides to the contrary. EVIDENCE 16 At the hearing Mr Fraser relied on the material he had provided the Commissioner when making his application for the renewal of his permit, and the internal review application. This material included a map of Winbar, the property Mr Fraser farms and where he lives with his family. That map stated the following: "Winbar is located 125 kilometres down from Burke on the Eastern side of the Darling River. Winbar is 10,820Ha or 26,726Ac. Winbar is approximately half black soil with heavily timbered river bends, Lignum swamps and old man salt bush. Running out to sandy red soils with woody weeds. Winbar's back paddock is approximately 10,000Ac, 5,000 of which is heavily timbered with Mulga, Box and Woody Weeds." 17 The material also contained the statutory declaration by Mr Fraser which accompanied his application for the renewal of the pistol permit. That statutory declaration was supported by photographs of the 'black country' and 'red country' on the property, and a letter dated 24 June 2003, from Arthur Conomos, the managing director of Arthur Conomos & Associates Pty Ltd, a firm of accountants and registered tax agents. In the letter, Mr Conomos states that Mr Fraser is in the "business" of primary production, as evidenced by their taxation records with his firm. He goes on to state that in his opinion Mr Fraser is a fit and proper person to hold a shooters licence. 18 In his statutory declaration Mr Fraser stated the following as being the special reasons for a 'Commissioner's permit': "I am applying for a renewal of my Commissioner's permit for a pistol, which I believe, is essential in the running of my property. Due to the type of country I own, (riverbeds, and lignum with scrub out the back) I have a lot of trouble with feral pigs. As a sheep producer I can not afford to lose lambs and other older and weaker animals to these vermin. I also find that in dry times it's not uncommon to come across sick and dying animals that need to be put down humanly. As the photo's show a lot of my country can be covered only by motorbike. I find carrying a rifle on a motorbike to be awkward, bulky and very dangerous, especially in thick scrub and believe a pistol is a much safer option. I believe a commissioner permit for a pistol will help me carry out my business in a more effective and safer manner". 19 In his letter of support to his internal review application, Mr Fraser stated the following: " … I took a great deal of time preparing this renewal as I contacted the firearms registry and they advised me as to what I needed. Even though I met all their requirements, I received a phone call from a senior constable Andy Lawrence from Wanaaring police station on the 11-11-03 to say my renewal had been rejected. … Primary production is my business. It is my sole means of income and thus is taken very seriously. In my case my property is my business and my livelihood. I have enclosed a copy of my renewal application and will stress that a pistol is essential to my business. As I have stated before Feral pigs are a very big concern due to the type of country we own. I cannot afford to lose lambs and older weaker animals to these vermin. Foxes are another problem, and between them and the pigs they reduce our lambing drastically, some years by 40%. In carrying out my dutys to control these vermin it's necessary to carry a firearm on my motorbike, as a lot of my country is inaccessible by vehicles. Carrying a rifle on a motorbike is very awkward and extremely dangerous, not only to myself, but to my wife also as she spends her days on a motorbike working alongside me. I will ask you to take into consideration as you review this application the fact that I have held this same licence for the last 5 years without incident. I have enclosed references as to my character and I would also like you to know that I am very vigilant in following the firearms safety laws". 20 The references referred to in Mr Fraser's letter were references from a Patricia Duncan, Richard Sandford and Christine Parnaby. Each of these referees state that they are of the opinion that Mr Fraser is a person of good character and repute. 21 Mr Fraser also gave oral evidence at the hearing, and he was cross-examined by Mr McLaughlin, on behalf of the Commissioner. In his oral evidence, Mr Fraser provided additional photographs and maps to the Tribunal. He explained that he had only become the owner of the property at Winbar about 2½ years ago. Previously he had been managing properties in the area. He confirmed that his income was primarily from his property, however he did supplement that income by doing kangaroo shooting when he had an opportunity to do so. He shoots kangaroos at night in open terrain on his and surrounding properties. He uses a vehicle for this purpose, and his long-arm rifles. He does not take or use his pistol for this purpose. 22 The livestock Mr Fraser has on his property are 1,600 ewes, 1,000 lambs, 250 wethers, 35 cows and 20 calves. His country is rated 1 to 10, and his stock wanders throughout the terrain of his property. His usual practice is to go and inspect his stock a couple of times each week. Because of the terrain of the property, he can only access the majority of the property by motorbike. He always travels during the day, and during his inspections of the property he often comes across feral pigs and other wild animals. Prior to his pistol permit being refused, he always took his pistol and was able to successfully shoot any wild pig or feral animal that he came across. He had previously tried to take his rifle, but found it too difficulty to carry on his bike and when he did carry it, it became damaged because of the low lying trees and scrub. He also found it difficult to use as there is limited vision within the woody weeds and scrub. It was his experience that he seldom saw a feral pig or other wild animal from a distance. They always appeared in front of his motor bike as he was driving through the scrub. In such circumstances he is required to fire quickly in order to kill the feral pig or wild animal. Use of a rifle is too slow, as he needs to stand back to get a clear sight. During this time the feral pig inevitably escapes back into the scrub and out of sight. 23 Mr Fraser stated that feral pigs caused him significant economic loss. His sheep are worth about $100 a head, and a feral pig can kill up to 6 sheep per evening. It is his experience that, on average, there are about 15 to 20 boars each year on his property. Last year his stock losses from killings by wild boars were about 130 sheep and this year they had already reached about 120. In response to cross-examination Mr Fraser stated that his experience was that he was able to significantly reduce the number of stock losses when he was carrying a pistol, as opposed to when he was carrying a rifle. 24 During cross-examination Mr Fraser agreed that a rifle has a greater penetration capacity than a pistol, but he qualified this by stating that at a close range a pistol can equally have a great penetration. He also agreed, in a general sense, with the advice of Senior Sergeant Hoffman, as contained in the Commissioner's reasons for decision in the internal review. However, it was Mr Fraser's evidence that the nature of his property required a departure from this general view. He also agreed that poisoning and traps were alternative methods of killing wild pigs and other feral animals. He uses these, but in his experience, they are very limited in effectiveness. He poisons consistently but finds that he is unable to irradicate those feral pigs which have previously killed his sheep. What he has seen is that a wild animal who actually killed stock, continue to kill and will not take baits. 25 Mr McLaughlin, on behalf of the Commissioner, relied upon the material that was contained in the brief of evidence filed and served by the Commissioner in this matter. That material contained details of Mr Fraser's firearms licence history, Mr Fraser's application for a Commissioner's permit, a report from a permits officer of the Firearms Registry, a policy of the NSW Police Firearms Registry in respect of Commissioner's permits dated 4 September 2003, the notice of refusal and statements of reasons in respect of Mr Fraser's application, the advice from Senior Sergeant Wayne Hoffman dated 15 October 2003, Mr Fraser's request for internal review, together with the supporting documentation, the internal review and statement of reasons, and Mr Fraser's application to the Tribunal. 26 The Firearms Registry policy relating to Commissioner's permits is a letter to Firearms Registry staff from Gary Richmond, the Manager of the Firearms Registry. That letter states as follows: "Section 16 of the Act places restrictions on the issue of Category H firearms licences and the Commissioner must not issue a Category H firearms licence to a person unless the genuine reason is (1) Sport/target shooting, (2) Business or employment, (3) Firearms collection, and in addition to establishing any such genuine reason, a person is required to produce evidence to the Commissioner's satisfaction that there is a special need for the person to possess and use a pistol. I find it compelling that the genuine reasons of recreational hunting/vermin control; primary production and vertebrate pest animal control are not contained within Section 16. Following legal advice provided to the Commissioner of Police from Legal Services through my office, I advise that I do 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 (a pistol) by reason of carrying out duties as a primary producer or for the purpose of recreational hunting/vermin control or for vertebrate pest animal control". 27 The advice of Senior Sergeant Hoffman contained a note in which the following was stated: " … Any serious hunter in the field would 'only' use a long-arm firearm and would not entertain a small barrelled handgun controlled by way of a hand grip only. This same 'serious and concerned' hunter would also be very aware of the limitations of hand guns to long-arms 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". SUBMISSIONS 28 Mr McKay, on behalf of Mr Fraser, submitted that the Commissioner's construction of the Act could not be supported. He stated that the term 'business' in s.16 should be given its ordinary meaning, and if Parliament had intended to exclude "the business of primary production" in that section, then it would have done so expressly. The fact that s.12 refers to "primary production business" did not, on a reading of the entire Act, lead to a construction that a primary production business was excluded from the term 'business' in s.16 of the Act. 29 Mr McKay also submitted that the Tribunal should view the advice of Senior Sergeant Hoffman in context. That is, he is a ballistic expert and there is no evidence that he has any knowledge of or experience in a "primary production business". In particular, in a business that is being carried out in terrain that is similar to Mr Fraser's property. 30 He submitted that Mr Fraser was a small land holder in the "battlers" class. He contended that on the material before the Tribunal, it had been established that Mr Fraser had a genuine reason for possessing a pistol, and that he had a special need, due to the nature of the terrain of his property. He also pointed out that no matters adverse to Mr Fraser's need had been raised, nor was there any suggestion that he was otherwise unfit to be authorised to possess and use a pistol. 31 Mr McLaughlin, on behalf of the Commissioner, relied on the matters referred to in the Commissioner's internal review determination. The Tribunal raised with Mr McLaughlin whether the Commissioner had reviewed his position following a decision of the Tribunal in Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52, which had considered the validity of the policy of the Firearms Registry as set out in the letter by Gary Richmond, dated 4 September 2003. As the decision in Clyne had only recently been published, the Tribunal gave Mr McLaughlin the opportunity to file additional submissions following the hearing. Those submissions were subsequently received on 8 April 2004. In the submissions, Mr McLaughlin, on behalf of the Commissioner, adhered to the matters set out in the internal review determination, notwithstanding the decision in Clyne. That is, the Commissioner adhered to his construction of s.28(g) of the Act, which he contended prohibited him from issuing a pistol permit to Mr Fraser. It was argued that the Commissioner's interpretation was supported by the decision in Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404; Rana v Human Rights and Equal Opportunity Commission & Anor (1997) 155 ALR 128 at 133; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672. 32 The written submissions filed on 8 April 2004 also contended that the issue of a permit to Mr Fraser would be contrary to the policy of the Firearms Registry as set out in a letter dated 16 March 2004. That letter is in exactly the same terms as the letter referred to above by Mr Richmond dated 4 September 2003. 33 Finally, Mr McLaughlin submitted that in the event the Tribunal were to find that the Commissioner had power to issue the permit to Mr Fraser and that it was not contrary to the policy set out by Mr Richmond, the Commissioner's position was that it was not in the public interest for Mr Fraser to be issued with a permit to possess and use a Category H pistol. It was contended that the safety issues as set out in the advice of Senior Sergeant Hoffman were outweighed by the evidence given by Mr Fraser. In this regard, he pointed out that Mr Fraser has given evidence that he has previously used a rifle, and has used it effectively, and that effective alternative measures were available to Mr Fraser to eradicate wild and feral animals. He contended that the evidence of Mr Fraser potentially demonstrated that the use of a pistol was a more convenient form for Mr Fraser to eradicate such animals. He also contended that Senior Sergeant Hoffman has the requisite expertise and experience, and that the Tribunal should accept his advice as to the distinction between the use of a long-arm firearm and a pistol. REASONS AND DECISION 34 The role of the Tribunal is to determine whether the Commissioner's decision is the correct and preferred decision, having regard to the relevant facts and the applicable law: s.63, Administrative Decisions Tribunal Act 1997. 35 There are three main issues in this application. These are a) whether as a matter of construction of s.28(g) of the Act prohibits the Commissioner from issuing a permit to Mr Fraser to possess and use a Category H firearm; b) whether the policy of the Firearms Registry, as set out in the letter of Mr Richmond of 4 September 2003 and 16 March 2004, is a valid policy and, if a valid policy, whether the issue of a permit to Mr Fraser to possess and use a Category H firearm would be contrary to that policy; and c) if the abovementioned issues are determined in favour of Mr Fraser, whether, having regard to the circumstances of this case, a permit should issue to Mr Fraser to possess and use a pistol. 36 The issues in (a) and (b) above have already been addressed and answered in recent decisions of the Tribunal, and I will briefly deal with these before addressing the final issue. In this regard, I have considered the authorities cited by the Commissioner. In my opinion these do not alter the findings of the previous decisions of the Tribunal. Construction – Primary Producing Business 37 It is noted that the Commissioner's construction of s.28(g) of the Firearms Act is a recent one. While the Commissioner has at all times interpreted the term "business" in s.16 of the Act, which relates to the issue of a Category H (pistol) licence, excluded to a primary producer business. On the basis of this construction, the Commissioner has, since the Act commenced operation, issued a Commissioner's permit to primary producers under s.28(g) of the Act. In most cases these primary producers have held a licence or permit to possess and use a pistol under the repealed legislation. 38 The Commissioner now contends that because of his interpretation of s.16 of the Act, he has effectively circumvented the operation of the Act by authorising primary producers to possess and use a pistol by a permit under s.28(g) of the Act. The consequence has been that primary producers who have held the relevant authority to possess and use a pistol for many years have had their applications for renewal of a Commissioner's permit refused. 39 In Jamieson v Commissioner of Police, NSW Police [2004] NSWADT 148 at [40]-[47], I considered the Commissioner's construction argument. As I pointed out, the Commissioner's construction hinged on his initial construction of the term "business" in s.16 of the Act. As I stated, in Jamieson at [45] it was not necessary for the purpose of Mr Jamieson's application to determine whether the Commissioner's construction of this term, as it applied in s.16 of the Act, was correct or not. Similarly, it is not necessary to make a determination in this application, as Mr Fraser has not applied for a pistol licence. In this regard, it is noted that in order for a licence to be issued under s.16 of the Act, the applicant must demonstrate that it is necessary in the conduct of his/her business to possess and use a pistol and that he/she has a special need to possess and use a pistol (see Commissioner of Police, New South Wales v Srape (GD) [2004] NSWADT AP 15). 40 At [46] in Jamieson, I found that s.28(g) of the Act gave the Commissioner power to issue a permit for a Category H firearm in circumstances where the applicant is a primary producer, and the reasons for seeking a permit was for the purpose of primary production. As I stated in that decision, if Mr Jamieson was entitled to a Category H licence then the issue of a permit would be inappropriate as this would circumvent the licensing provisions. 41 On the basis that a licence could not be issued, I also pointed out that the power to issue such a permit was discretionary, and that the discretion should be exercised in accordance with the principles and objects of the Act. My decision in Jamieson has been followed in Finlay v Commissioner of Police, NSW Police Service [2004] NSWADT 152 at [39]. Policy 42 The Tribunal's decision in Clyne v The Commissioner of Police, NSW Police [2004] NSWADT 52, found that the policy as set out in Mr Richmond's letter, was invalid as it offended against the "rule against fettering": see [14] to [20]. This decision has been followed in Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99; Jamieson (supra) and Finlay (supra). It was also followed in Field v Commissioner of Police, NSW Police [2004] NSWADT 82 (currently subject to appeal). In my opinion, Clyne was correctly decided and I will follow it. Findings 43 In my opinion, Mr Fraser gave truthful and forthright evidence, much of which was not challenged. I have considered all of the evidence and the oral argument presented before the Tribunal, and I make the following findings of fact: (a) Mr Fraser is a person of good character. (b) Mr Fraser holds a Category A and B firearms licence for the genuine reason of primary production activities on his property. (c) That Mr Fraser has been a holder of a firearms licence since 1994 (10 years) and he has been the holder of a pistol permit since April 1997 (5 years). (d) Mr Fraser has been the holder of firearms licence and pistol permit without incident. (e) Mr Fraser's application for a Commissioner's permit has been supported by local police on the basis of having inspected Mr Fraser's property and having interviewed Mr Fraser. (f) Mr Fraser has farmed and lived on his property 'Windbar' for about 2 years. Prior to this, he managed a property that differed to the property he now owns. (g) Mr Fraser is engaged in the business of primary production for profit as a sheep and cattle farmer. The sheep and cattle graze throughout Mr Fraser's property which is densely vegetated with lignum and woody weeds. (h) Mr Fraser can only access the larger proportion of his property by means of a motorbike. (i) Feral pigs and other wild animals inhabit Mr Fraser's property and they kill Mr Fraser's sheep. This results in economic loss for Mr Fraser's business. (j) While being authorised to possess and use a pistol, Mr Fraser regularly used his pistol to eradicate feral pigs and wild animals. He also used it to kill sick and dying stock. Since handing in his pistol as a result of the Commissioner's refusal of his application to renew his permit, Mr Fraser has not been able to eradicate as many wild animals and the number of sheep that are killed has increased. (k) Mr Fraser has used and continues to use poisons and traps to eradicate the feral pigs and other wild animals that inhabit his property. These methods of eradication are limited, particularly for feral pigs and wild animals that have previously killed sheep, and the most effective means of killing such wild animals is with the use of a firearm. (l) The terrain on Mr Fraser's property is such that he has insufficient clear vision to use his long-arm rifles in killing feral pigs and other wild animals that he comes across when riding his motor bike. (m) Mr Fraser does not seek to possess and use a pistol for his, or his family's own protection, or for the protection of his property other than the live stock of his primary production business. (n) Mr Fraser is aware of the limitations of a pistol and the advantages of a long-arm rifle when hunting, and he always uses a long-arm rifle when he is in country where he has a clear vision and when he hunts for kangaroos of an evening. Issue of permit 44 For the reasons stated above, subject to any entitlement that Mr Fraser may have for a Category H firearms licence under s.16 of the Act, the Commissioner has the power to grant him a permit to possess and use a Category H firearm under s.28(g) of the Act. As mentioned above, this power is to be exercised in accordance with the principles and objects of the Act. Accordingly, Mr Fraser must be able to demonstrate that he has a genuine reason as well as a special need for the possession and use of a Category H pistol: see Jamieson at [52]; Saiko at [22] and [24]. Furthermore, the special need must be "real and not hypothetical" (see Saiko at [42]). 45 In McIver v New South Wales Police (unreported, 2 July 2004), Judicial Member Rice stated the following: "Whether the circumstances are sufficiently exceptional to warrant permitting the possession and use of a Category H firearm when a licence would not ordinarily be available, is, as this Tribunal has said before, informed by the principles and objectives of the Act, and the paramount consideration of ensuring public safety". 46 In my opinion, after having determined that an applicant is not entitled to be issued with a firearms licence under Division 2 of the Act, or a permit under any of the other provisions in s.28 of the Act, the proper approach in considering whether it is appropriate to issue a permit under s.28(g) of the Act is to first consider whether Mr Fraser has a genuine reason for using and possessing a Category H pistol. The next matter to consider is whether Mr Fraser has a special need, and the final matter for consideration is whether the issue of the permit should be refused because it would be contrary to the public interest. It is when considering this final issue that considerations of public safety need to be taken into account. 47 On the basis of the abovementioned findings, I am satisfied that Mr Fraser has established that he has a genuine reason for possessing and using a Category H pistol. That genuine reason being for use in his primary production business. 48 I am also satisfied that Mr Fraser has a special need for the possession and use of a pistol, which is real and not hypothetical, or based on an assumed future event. He has previously used the pistol for the destruction of feral animals in circumstances where the use of a long-arm rifle is not practical, as well as using it for the purpose of the humane destruction of distressed animals. In my opinion, Mr Fraser's use of a pistol is a necessity, and not a mere convenience. He does use alternative methods, but these are not fully effective, which result in a larger percentage of his stock being killed. In making this finding I have had regard to the opinion of Senior Sergeant Hoffman and that of the Commissioner. Notwithstanding these opinions, I accept the evidence of Mr Fraser that he has a special need for a pistol. This is supported by an officer of the Commissioner who has inspected Mr Fraser's property and while I accept the opinion expressed by Senior Sergeant Hoffman in his advice, that advice was not made by having regard to Mr Fraser's particular circumstances. 49 As mentioned above, the final consideration is one of public interest or risk to public safety. Again I have had regard to the advice of Senior Sergeant Hoffman and the opinion of the Commissioner. However, on balance, I am satisfied on the evidence before the Tribunal that Mr Fraser's use of a Category H firearm in the circumstances he describes has previously posed little or no risk to public safety, and there is no material to suggest that if he were to continue to possess and use a Category H firearm, this risk to public safety would alter. 50 In McIver and Finlay (at [46]-[47]), the Tribunal considered it was appropriate for conditions to be imposed on the permit sought by the applicants in those applications. The basis of the Tribunal's reasoning in these decision was stated by judicial Member Rice in McIver as follows: "Because of the limited basis on which Mr McIver's need for a category H firearm arises, it might be appropriate to impose conditions on the permit. I understand the Commissioner's concern that such conditions are difficulty to enforce. They are, however, a clear indication to a permit-holder of the extent to which possession and use of a category H firearm is a privilege, and of the serious obligations they have to use a category H firearm with care and in very defined circumstances". 51 Section 30(3)(a) of the Act and Clause 22(1)(a) of the Firearms (General) Regulation 1997 enable the Commissioner to issue a permit subject to conditions that he determines are appropriate and to specify these on the permit. In my opinion, the approach in McIver and Finlay is correct, particularly as a permit issued under s.28(g) of the Act should only be issued for very specific purposes. 52 Accordingly, for the reasons set out above, in my opinion the Commissioner's decision to refuse Mr Fraser's application for a permit is not the correct and preferred decision. I am also of the opinion that Mr Fraser's application should be remitted back to the Commissioner to determine what appropriate conditions (if any) that reflect Mr Fraser's special and limited use of a pistol. For example, conditions that reflect that use is limited to his property, during day light, in particular areas of the property, and only for wild animal and vermin control and the killing of ill or dying live stock of the property. 53 For the reasons stated above, in any opinion, the decision of the Commissioner to refuse Mr Fraser his application for a permit to possess and use a Category H pistol is not the correct and preferred decision. 54 Accordingly, the Tribunal orders: (a) The Commissioner's decision to refuse Mr Fraser's application for a permit to posses and use a category H firearm is set aside. (b) Mr Fraser's application is remitted to the Commissioner for consideration in accordance with these directions: (i) the Commissioner is to give effect to the Tribunal's view that it is appropriate that Mr Fraser be issued with a permit under s.28(g) of the Act; and (ii) in consultation with Mr Fraser, the Commissioner is to consider appropriateness of imposing a condition on the permit that limits Mr Fraser's use of a Category H firearm to those situations where he has need to destroy distressed or feral and wild animals, and ill and dying livestock where the use of a long-arm is not practicable because of the inaccessible terrain of his property. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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