Phillips -v- Commissioner of Police, New South Wales Police [2004] NSWADT 101

CITATION: Phillips -v- Commissioner of Police, New South Wales Police [2004] NSWADT 101 DIVISION: General Division APPLICANT PARTIES: Winston Churchill Phillips RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 043051 HEARING DATES: 11/05/2004 SUBMISSIONS CLOSED: 05/24/2004 DATE OF DECISION: 05/28/2004

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 Interpretation Act 1987 CASES CITED: Mills v Meeking (1990) 91 ALR 16 Osborne v Commissioner of Police [2000] NSWADTAP 33 APPLICANT REPRESENTATION: In person RESPONDENT P McLaughlin, solicitor ORDERS: Decision under review affirmed.

REASONS FOR DECISION 1 Mr Phillips, the applicant, challenges the determination of the Commissioner of Police, the respondent, made pursuant to the provisions of the Firearms Act 1996 ('the Act') to refuse to renew his Category C firearms licence. He has been granted a renewal of his Category A and B firearms licence. The Commissioner considers that Mr Phillips' case does not meet the requirements of s 14 of the Act which provides: ' 14 Category C licences—restrictions on issue (cf APMC 3 (c)) Except as provided by section 17A [deals with target clay shooting], 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).' 2 The Commissioner's position is that Mr Phillips has failed to establish a genuine reason, as required by (a); in the alternative, that he has not produced evidence to the Commissioner's satisfaction that there is a special need, as required by (b); and in the alternative, that he has not produced any evidence to the Commissioner's satisfaction that such special need cannot be met any other means, as required by (c). 3 At the request of the applicant, Mr Phillips, the hearing was conducted by teleconference. Mr McLaughlin, solicitor to the Commissioner, was present in the hearing room in Sydney, and Mr Phillips and his witness Mr Ian Brown participated from Cooma. A day after the hearing Mr McLaughlin sought leave to file supplementary written submissions. Leave was granted, and Mr Phillips was given leave to file written submissions in reply. Both did so. 4 At hearing, Mr Phillips, now 53 years old, stated that from approximately age 18 to age 35, he had been a farmer - first on his family's property, later on another property and, after marriage, elsewhere. He then worked for 15 years for the Rural Lands Protection Board, and in that capacity performed a wide range of duties which included heading a team responsible for eradicating wild dogs. He is very experienced with weapons. He is now engaged in various types of rural work - mainly weed spraying and some work in shearing sheds as a shed hand. He owns, and resides on, a small holding, about 8 kms from Cooma. Its area is 28 acres and it carries a small number of animals, at present 18 sheep, 2 goats and 2 steers. He said that these numbers were smaller than usual due to the drought that had gripped the area now for over a year. 5 Category A licences cover air rifles, rimfire rifles (other than self-loading), shotguns (other than pump action or self-loading), shotgun/rimfire rifle combinations; category B licences cover muzzle-loading firearms (other than pistols), centre-fire rifles (other than self-loading), shotgun/centre-fire rifle combinations. A Category C licence covers (see 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. 6 He said that he needed a Category C licence because a pump action shotgun was the weapon best suited to controlling incursions of packs of dogs. 7 The objectives of the Act are found in s 3, and of these objectives s 3(2)(a) and s 3(2)(c) are of particular relevance (emphasis added): ' 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.' 8 The requirement in s 14(a) requiring the proof of a 'genuine reason' links back to s 12 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.' 9 The table specifies what needs to be shown in relation to each of the permitted 'genuine reasons'. The one relevant to these proceedings is the following: ' 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).' 10 It was accepted that Mr Phillips had given a statement satisfying (b). As to requirement (a), Mr Phillips did not produce any of the items of documentary evidence considered desirable by the Commissioner: a Tax Averaging Certificate or Tax Assessment Certificate no more than one year old, which clearly states that the applicant's income was earned from Primary Production; a Primary Producer Declaration, no more than one year old, signed by a registered tax agent or accountant; or a letter from a tax agent or accountant, on official letterhead, which confirms that the applicant is in the business of primary production. 11 In his closing written submissions Mr Phillips sought to argue that his various rural occupations meant that he satisfied the first alternative found in criterion (a), i.e. 'a person whose occupation is the business of a primary producer'. This possibility had not been raised at hearing. The hearing had focussed on whether he fitted into the second alternative, i.e. that he is the 'owner, lessee or manager of land used for primary production'. It is clear that Mr Phillips is not, in working on other properties, in the 'occupation' of 'primary producer'. Farmhands are not farmers. 12 Mr Phillips' oral evidence is that he had not, on accountant's advice, sought registration for tax purposes as a primary producer, in circumstances where his annual gross receipts from farming activity in connection with his small holding were only about $2,000. (He said his overall income for the last year had been about $20,000.) Mr Phillips' case, on its face, would appear to fit the second alternative, i.e. he is the owner of land [a matter not disputed] which is 'used for primary production'. Mr Phillips' activity is more like that of a hobby farmer. 13 There was some debate at hearing as to what is meant by primary production. The Tribunal considers that 'primary production' is, at least, a reference to an activity carried on by a 'primary producer'. The definition of 'primary producer' in the Macquarie Dictionary brings this out 'n.1 one who works in a primary industry as a farmer, a fisherman, etc. 2. a business or industry devoted to primary production.' More precisely therefore, 'primary production' refers to the carrying on of a business activity, even if it is a small scale business activity. 14 The figure Mr Phillips gave as his level of trading activity ($2000) is so low as to raise doubts as to whether any 'business' is being conducted. 15 This legislation is of the utmost seriousness for the protection of the community. Cases at the margins need to be carefully examined. The Commissioner's approach is to insist on some form of independent corroboration that a business of primary production is being carried on. 16 In these circumstances the Tribunal agrees with the Commissioner that better evidence is needed. The Commissioner's requirement of a letter on accountant's letterhead stating that a 'business' is being carried on is a reasonable one. 17 Mr Phillips' explanation at hearing only went to the reason he did not have registration as a primary producer. The Tribunal accepts that a person might be engaged in the 'business' of primary production, at least for a period, where it is not economically necessary or attractive to seek to take advantage of the averaging provisions. But that does not explain Mr Phillips' failure to produce a letter from his accountant with some trading information, or information that might explain a non-trading period. 18 Were Mr Phillips to rectify this difficulty (by producing an accountant's letter showing such a small level of activity as a primary producer), the Commissioner would, as the Tribunal understands his submissions, nevertheless move to refuse the application on grounds of statutory interpretation. 19 The Commissioner argues for a strict interpretation of the legislation so as to rule out entirely cases of low use of land for primary production. The Commissioner drew attention to the Second Reading Speech, the Interpretation Act 1987 s 33, and general observations on the purposive approach to construction (see, for example, Mills v Meeking (1990) 91 ALR 16 at 30-31; and Osborne v Commissioner of Police [2000] NSWADTAP 33). 20 This approach to statutory interpretation only comes into play if there is some reason to doubt that the words of the legislation should not be given their apparent meaning. This is not, the Tribunal considers, such a case. The provision simply speaks of land 'used' for primary production. There is nothing in the provision about intensity of use. There is nothing in this legislation to suggest that a narrow or restrictive meaning should be given the word 'used'. The Commissioner retains a discretion to refuse if no 'special need' is shown. 21 'Special Need': Mr Phillips called as a witness in relation to the nature of the problem of dog incursions, Mr Ian Brown, a farmer who has a large holding in the district about 2 kms from Mr Phillips' holding. 22 Mr Brown referred to the seriousness in the district of the problem of packs of stray domestic dogs and packs of wild dogs attacking flocks of sheep. He also referred to changes in the way land is held in the district, and now there were many subdivisions being created which had small holdings. He said that it was important for large holdings such as his to have protection from the dog problem on their perimeter. He saw it as desirable that neighbouring small landholders with stock be equipped to deal with packs of dogs. The smaller properties were, in his eyes, the first line of defence against the incursion of the packs into the bigger properties. Mr Phillips agreed with these views. 23 The Tribunal accepts that Mr Phillips has a long history of safe and responsible use of firearms, and that during his time with the Rural Lands Protection Board he held Categories A, B, C licences and, the even more serious, D licence. The Tribunal accepts that he has been responsible for giving training and instruction in the safe use of weapons. 24 A pump action shotgun enables the user to discharge several cartridges at once. Mr Brown uses a five-cartridge pump action. Mr Phillips and Mr Brown both said that the value of this facility was that an entire pack of dogs could be hit at close range and killed. They said this was the best method for dealing with the threat presented by a marauding pack, and it was also the most humane way to kill them. 25 Mr Phillips said that the options available under the lesser categories of licence given to him, A and B, were not as effective. A double barrelled rifle enables two bullets to be fired at once, but that would, in the normal instance mean that at most only two of the dogs in the pack could be hit. Packs normally consisted of three or more dogs. Even if two dogs were hit, that would leave the others able to disperse; and they might be impossible to hit once time has been taken to reload. He said that there was a greater chance when using the less satisfactory rifles covered by Category A and Category B that the animals would be left badly wounded, and this was crueller than a quick kill. 26 The Tribunal accepts that a pump action weapon would be more effective in dealing with a pack efficiently and humanely. 27 Mr Phillips said that his stock had not been subject to a dog-pack attack now for over 12 months. He said incursions had been infrequent. 28 In the case of a farmer carrying a commercially significant level of stock and engaged in primary production as a significant or sole business, the Tribunal or Commissioner should not give great weight to the factor of relative infrequency of the occurrence of threat if the region is one where it is known that the threat is present (such as the Cooma district). On the other hand, it is reasonable to give infrequency of threat greater weight as a factor militating against the establishment of 'special need' if the level of applicant's farming activity is as low as this case tends to suggest. 29 As to alternative measures available to him, the Tribunal accepts Mr Phillips' evidence that in his context the use of traps is not a sound way to deal with the dog problem as they may have to be set in the same paddocks that are used by stock. 30 The Act gives as its first objective - 'to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances': s 3(2)(a). It gives as its first 'underlying principle': '(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.' 31 There is a countervailing community interest in not having dangerous weapons in circulation in the community to any greater extent than is necessary. The low level of Mr Phillips' farming activity is such that it would not, the Tribunal considers, be a sound exercise of discretion for the Commissioner to give a licence to possess and use a weapon as potentially dangerous as a pump action shotgun. 32 Mr Phillips' application failed to meet ground (a) in s 14. That is enough to require its refusal. It has also failed to meet ground (b). 33 The Commissioner's decision is affirmed. Order 1. Decision under review affirmed.