CITATION: Bennett v Commissioner of Police, NSW Police [2004] NSWADT 187 DIVISION: General Division APPLICANT PARTIES: Colin John Bennett RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 043045 HEARING DATES: 23/07/2004 SUBMISSIONS CLOSED: 07/23/2004 DATE OF DECISION: 08/30/2004 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 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Clyne v The Commissioner of Police, NSW Police [2004] NSWADT 52 Commissioner of Police, New South Wales v Snape (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) 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: In person RESPONDENT P McLaughlin, solicitor ORDERS: (a) The Commissioner's decision to refuse Mr Bennett's application for a permit to posses and use a category H firearm is set aside; (b) Mr Bennett'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 Bennett be issued with a permit under s.28(g) of the Act; and (ii) in consultation with Mr Bennett, the Commissioner is to consider appropriateness of imposing a condition on the permit that limits Mr Bennett'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. REASONS FOR DECISION BACKGROUND 1 This is an application by Colin John Bennett ("Mr Bennett") seeking review of a decision of a delegate of the Commissioner of Police ("the Commissioner") to refuse his application for a permit to possess and use a semi-automatic pistol. On 25 July 1998, the Commissioner had issued Mr Bennett with a permit to possess and use a semi-automatic pistol. That pistol was issued on the condition that it was only used for the purpose of primary production, including vermin destruction and/or human destruction of sick/injured livestock, at his property. At the same time, Mr Bennett was issued with a Category A, B and C firearm licences. The permits and the licences expired in the latter part of 2003. On 1 September 2003, Mr Bennett reapplied for the licences and the permit. The licences were reissued on 4 September 2003, however on 9 October 2003, the Commissioner refused Mr Bennett's application for a permit on the following basis: a) In the opinion of the Commissioner it was not appropriate for a permit to be issued for the purpose of possessing and using a Category H firearm (a pistol) by reason of carrying out duties as a primary producer. In this regard the Commissioner noted that s.16 of the Firearms Act 1996 (" the Act ") prescribed specified genuine reasons for the issue of a Category J firearms licence and that these specified genuine reasons did not include primary production. He also noted that in addition to establishing a genuine reason, s.16 of the Act required the Commissioner to be satisfied that there was a special need for the applicant to possess and use a pistol. On this basis, the Commissioner found it was not appropriate to issue a permit for the purpose of possessing and using a Category H firearm for the reason of carrying out duties as a primary producer, as in his opinion, this was not a legitimate reason as anticipated by the legislation. b) On public policy grounds, it was contrary to the public interest to issue a Commissioner's permit for the purposes of possessing and using a Category H firearm for the reasons of carrying out duties as a primary producer. 2 On 11 October 2003, Mr Bennett sought internal review of the Commissioner's decision. His request for internal review was supported by a letter, photographs, a document relating to the diagnosis of OJD, together with other material relating to the Johne's Disease. 3 On 8 December 2003, another delegate of the Commissioner finalised the internal review determination. The internal review determination confirmed the original decision of the Commissioner. The grounds for refusal in essence remained the same as they had been for the original decision. However, in the reasons for decision, the Commissioner elaborated as follows: "I am satisfied that your property's topography consists of rough, dense, hilly and scrubby terrain. I also accept that you have a real need to control vermin from attacking your stock and to assist in the humane destruction of native animals. I also concede that you had your property and safe keeping arrangements inspected by the Licensing officer at Bathurst Police … It is clear that Sergeant Cash fully supports your application. However, I am also mindful that you are presently licensed to possess and use category A and B firearms for this same purpose. I note that you have a total of nine (9) long-arms of this type at your disposal. Further, that between 1993 and 1995 (prior to your first Pistol Permit being issued) you were relying on the use of long-arms to carry out your duties as a primary producer. This fact leads me to believe that you have managed to control vermin on your property in the past using long-arms and other methods, prior to being authorised to use a handgun for the same purpose. As stated, your need to control feral animals and destroy native animals is not in dispute, but your advice that the use of a handgun to do so, as the safest and most effective method, contradicts advice provided by a forensic ballistics expert. … 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 are designed for carrying on a 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". 4 On 20 February 2004, Mr Bennett filed his application for a review of the Commissioner's internal review determination with the Tribunal. 5 At the hearing of this matter, without the objection of the Commissioner, Mr Bennett made an application, in writing, pursuant to s.44(1) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") seeking an extension of time for making his application to the Tribunal. It was noted that s.55(1)(d) of the ADT Act and cl.15(3) of the Administrative Decision Tribunal Rules ("the Rules") provide that applications for a reviewable decision are to be lodged within 28 days of the decision for which external review was being sought. In this case, the application was received by the Tribunal outside that time. On the basis of there being no objection from the Commissioner and the fact that Mr Bennett has at all times not been legally represented, the Tribunal granted his application for an extension of time. 6 The Tribunal has jurisdiction to hear and determine Mr Bennett's application by virtue of s.75(1)(a) of the Act and s.38 of the ADT Act. RELEVANT LEGISLATION 7 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". 8 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 9 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. 10 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". 11 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". 12 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 the 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". 13 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). 14 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 15 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. 16 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. 17 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". 18 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 19 At the hearing, the Commissioner relied on the material contained in the brief of evidence that had previously been filed and served in these proceedings. He also relied on a full copy of the report of Senior Sergeant Hoffman, as he then was, together with a document setting out the qualifications and experience of Detective Inspector Hoffman, dated 8 July 2004. In addition to these documents, Detective Inspector Hoffman gave oral evidence and was cross-examined by Mr Bennett. 20 The material contained in the Commissioner's brief included the following documents: (a) Mr Bennett's firearms licence history. (b) Mr Bennett's application for a renewal of his permit, which included a memorandum from the Licensing Officer Cash to the Firearms Registry, a statement from Mr Bennett and a map of Mr Bennett's property which sets out the topography of the property. (c) Memorandum of Gary Richmond, Manager, Firearms Registry, dated 4 September 2003 to Firearm Registry staff, setting out the policy of the Commissioner that he does not consider it appropriate to issue a permit to authorise the possession and use of a Category H firearm for the reason of carrying out duties as a primary producer or for the purpose of recreational hunting/vermin control or for vertebrate pest animal control. (d) The Commissioner's Notice of Refusal of Mr Bennett's application for a permit dated, 8 October 2003, together with reasons for that decision. (e) Opinion of Senior Sergeant Hoffman concerning ballistic advice in respect of pistols used by farmers for shooting wild boars and fisherman for shooting sharks. (f) Memorandum from Licensing Officer Cash dated 7 November 2003, advising that Mr Bennett had been handed a copy of the Commissioner's Notice for Refusal and Statement of Reasons on 7 November 2003. (g) Mr Bennett's application for internal review. That application was in the form of a letter, and it was accompanied with photographs of the terrain on Mr Bennett's property and various photos of wild and feral animals being caught in the fences that surround his property, and material in Johne's Disease. (h) The Commissioner's internal review determination, dated 8 December 2003, together with the reasons for decision. (i) Mr Bennett's application to the Tribunal. 21 In the memorandum of Licensing Officer Cash, he stated the following: "The property is 1250.88HA of steep mountainous, rocky terrain, which is mainly only accessible by motor cycle (trail bikes), limited 4WD access and in some areas by foot alone. The property is mainly used for sheep (wool) and goat (meat) production, and is surrounded by other properties of a similar size. A large proportion of the property can only be described as 'goat country'. The surrounding properties are not used on a primary production basis, and are recreational properties which have become overgrown and overrun with a large population of feral animals, including pigs, foxes, dogs and cats which make their way into BENNETT'S property, attacking and killing his livestock. BENNETT carries a pistol as a side arm when working on his property, rather than carrying a rifle attached over the handlebars of his motorcycle. The attaching of the rifle in this manner has proved dangerous in the past, with the rifle protruding from both sides of the front, has collided with other objects causing BENNETT to be thrown from the motorcycle. On several occasions BENNETT has been unable to release the rifle from his mounting in time to protect himself from attacking feral animals charging at him from close proximity. Whereas, with a pistol he is able to protect himself from an attack of such a nature". 22 In his statement, Mr Bennett stated the following: " … It would be unfortunate if I have to go back to the past of cutting throats and clubbing to death injured livestock and feral animals. That's not only stressful for animals but not very humane. It's a stressful job putting animals down humanely … It's true I can use a rifle at times, but if I carry a rifle in a vehicle or on a motorbike, its usually the heavy calibre, to dispatch a sick or injured animals at close range with a scoped high calibre is and can be very dangerous. It's also true I don't use my handgun every day, but a mechanic doesn't use his torque wrench every day either, but he needs it for his occupation. The loss of this licence will mean that in my vehicle I will have to carry two rifles, one heavy calibre and the other low velocity 22 rifle, on motorbike I have only room for one if I carry at all, and it would certainly be heavy calibre, to carry and maintain a accurate reliable rifle on a motorbike can and is expensive, just recently my motorbike fell over, breaking a $500 scope in half (unrepairable). Also cosmetic damage making resale less valuable. Ninety % of my conveyance around the property is on two wheel motorbike because of terrain only I am authorised by contract of the D.L.W.C. to control and suppress feral animals on a section of land on my property jointly owned, which is remnant native vegetation preservation. This land is inaccessible by vehicle. … The carrying of a long-arm on a motorbike in this country is uncomfortable, difficult and dangerous. This is an occupation health and safety issue, and I take it very seriously should I be unsuccessful with my renewal." 23 In his letter that accompanied his internal review application, Mr Bennett stated as follows: " … We inhabit some of the roughest terrain in NSW … As far as your concern for public interests, it is a non-issue here, this is private property. The only public I see is the mail man a couple of times a week. My children have to be driven out the 7 kms to bus every day also, we don't even get much public travelling in here. It's a dead end. And we are also completely surrounded by thousands of acres of scrub and bushland. There is absolutely no recreational shooting involved with this permit … I have always complied to regulations regarding all my licences. I need this permit to completely cover all lands on my property, but mostly the inaccessible areas where jobs such as fencing require carrying multiple tools – example, straining tools, axe, chainsaw, pliers, wire, posts, water and food. It is in these areas where most feral animals seek refuge. With the introduction to my area of the OJD Disease, enclose some literature explaining my concern. At great cost to me and my family we have started a vaccination program of our livestock to reduce deaths from this disease. But it is imperative that I control all feral goats and deer from entering my grazing lands. … There has been occasions where the pistol has been used in self-defence against attacking animals. Once a large fallow deer buck in rutting season challenged me whilst I was preparing a fence in one of the most remote parts of my property. Experience will tell you not to shoot an animal of this size with a 9mm handgun, but by firing several rounds safely around deterred him from continuing his aggressive behaviour (a wounded deer buck is a much more dangerous animal to me or to someone else). Rutting deer do not like anyone or anything in their area. Another occasion was a wounded boar pig escaped into heavy cover not only for humane reasons, but for safety. He had to be found and destroyed. Pigs are extremely fast and aggressive animals. This particular animal charged and I was able to dispatch him with my handgun. … The drought here was devastating for us and our livestock. The carrying of my handgun was a daily occurrence. I had to humanely destroy dozens of kangaroos which had a disease which rendered them blind. Also competing for water and getting bogged in mud of dams. Grain feeding ewes and lambs, pigs would lay in wait for you to leave and raid grain, [ ] or kill weak lambs, or even grown sheep. I shot several pigs in areas a rifle would have been useless. Wild dogs are also a problem in this area. … I have been without a handgun since the 6/11/03 and it is already affecting both control of feral animals and humane destruction of distressed native animals. … I am simply a third generation primary producer on the same property since 1937. I have over 25 years community service to Fremantle Rural Fire Service, 10 years as Captain, also over 10 years community service in my children's school. A community member of the Bathurst Merino Breeder's Association. I produce fine wool, beef cattle, meat goats. I need to be able to protect our income by preventing disease and destruction from invading feral animals, and this permit is very important to me for all reasons stated". 24 At the hearing, Mr Bennett relied on the material that he had provided to the Commissioner and which was contained in the Commissioner's brief of evidence. He also gave oral evidence and tendered into evidence additional material. The additional material included the following: (a) A letter to the Manager of Firearms Registry, following receipt of the Commissioner's internal review determination. (b) A coloured map identifying the topography of his property. (c) A report by Colin MacRae, a farm safe instructor, of the S&R Risk Management, concerning safety and financial risk assessment on the handgun owned and used by Mr Bennett. In his report, Mr MacRae states the following: "Without the use of a handgun, his grazing business will suffer significantly, and if forced to use a rifle, the safety risk would increase and farm profitability decrease, maybe to be unprofitable. Without question, Australian agriculture is under the most pressure ever to stay profitable, especially now with the current drought. Colin Bennett's genuine reason is increasing with this extra pressure as the safe, effective and humane destruction of sick/injured vermin/native animals/livestock and opportunity shooting of close range vermin (as distinct from long range hunting with a rifle) is very important in his unusual situation, compared to the overwhelming majority of grazing properties. Possessing and using a hand gun is an important tool in Colin Bennett's business. It is my opinion that stock losses without his ability to use a handgun to destroy vermin at close quarters as the opportunity arises when he is carrying out routine work on the property could be significant on a property as big and rugged as Warra Creek, perhaps as high as $15-$20,000/WR. Overall, there is genuine need and relatively low risk (based on what could happen and the likely hood of it happening) with Colin Bennett possessing and using a handgun on his grazing property". (d) Two handwritten documents in which Mr Bennett has set out his estimated losses, to his goat and sheep operation, due to killings by feral pigs and foxes. In total, his estimated cost of losses over a five to six year period are $30,750.00 for sheep and $22,000.00 for goats. As he pointed out in the handwritten notes, this does not include losses as a result of damage caused by wild and feral animals to the fencing on his property. (e) A letter, dated 4 May 2004, from Mick Muldoon of Mick Muldoon Motorcycles of Bathurst, stating that the carrying of a firearm on a motorcycle handlebar could interfere with the handling of the motorcycle and that this may cause an accident resulting in injury and even death to the rider. (f) Letter from Tim Johnson, General Manager of the Central Tablelands Rural Lands Protection Board, dated 13 May 2004, in which Mr Johnson states that he agrees with Mr Bennett's observation of effective pest animal control methods to the extent that the destruction of young or infant pest animals is of advantage to successful eradication of these animals in that it reduces their breeding opportunities, and thereby reduces the overall number of pest animals. (g) Numerous photographs which Mr Bennett explained showed the nature of the vegetation of his property, together with examples of feral and wild animals being caught in the fences surrounding his property. 25 In his oral evidence, Mr Bennett reinforced what he had said in his written documents to the Commissioner. He explained that he has 4,000 sheep on the property and about 800 goats. He explained that he used his pistol while carrying out stock work, weed spraying or fencing. This work was primarily carried out in the rougher terrain of his property. He acknowledged that part of his property was more open and said that when he worked in this area, he used a vehicle and his rifle. He explained that the use of his pistol was for the purposes of having the ability to make "shots of opportunity". That is, when he is out in the rough terrain, and he comes across wild or feral animals, or any injured livestock, he has his pistol on hand so that he can kill the animals instantly. Mr Bennett had photos of wild and feral animals that had caught themselves in his fences, and which he was able to shoot instantly because he had his pistol. Recently, he had come across another feral pig caught up in his fence, and it took him 1½ hours to go back to the homestead to collect his long-arm rifle to shoot the pig. In this circumstance, he had no alternative but to carry his rifle, as he did not have his pistol. At the time he was not carrying the equipment that he usually needs to carry on his motorbike. However, he was concerned about his safety while carrying it. The other alternative is to kill the injured wild or feral animal or livestock with stones, sticks or even a knife. 26 Since the Commissioner's refusal of his renewal application for a pistol permit, Mr Bennett has used these methods when needed. He acknowledged that the loss of his pistol permit had not seriously affected vermin control, however it had affected the humane control and destruction of these animals, as well as sick and injured animals (i.e. his livestock or other wild animals) that he came across while working in the rough property. 27 During cross-examination, Mr Bennett stated that he used alternative means of vermin control, such as baiting, poisons and traps. However, in his experience this was not sufficient to address the problem. He also stated that he had considered using his rifle by placing it across the handlebars of his motorbike. However, he believed that this would be too dangerous, as his motorbike was not designed for this purpose in any event. 28 Mr Bennett also agreed that he was not required to shoot sheep in order to earn his income. The same, he agreed, applied to goats. He said that the alternative means of vermin control that he used, such as poison and traps, did not provide a complete answer to the problems, and that he has shot more feral pigs and wild animals than he has caught in traps or poisoned. 29 He confirmed that he has 9 firearms, consisting of two 303s, which he never uses, two 12 gauge shotguns, two 22.50's and a 22, a 22 magnum and a 410 shotgun. He did not agree that he could use any one of these firearms to put down an animal. He stated he may use a 22, but a 12 gauge shotgun and the 410 would be far too powerful. In each case he would need to step back a considerable distance if he were to use a rifle. He stated that he had used a scabbard to transport his rifles on his motorcycle, however he found that his rifle rattled around in it, and caused damage to the rifle. He also stated that a scabbard attached to the front foot of the motorbike created difficulties in steering his motorbike, as the motorbike was not designed to carry such weight in this position. He was shown a copy of a report in respect of rifle scabbards, and a product list that pictured various types of scabbards that had been obtained from the firearms dealer in Bathurst. Mr Bennett acknowledged that he had not recently looked at scabbards, but insisted that his motorbike was not designed to carry a rifle in a scabbard on the front fork. He agreed that it was a continuing battle to control wild pigs and feral animals, and he confirmed that his loss of livestock would be about the same, with or without a pistol. He stated that he came across sick and deceased stock, and recently this had been a very common phenomena due to the drought. He stated that during the current drought, he had seen up to ten sheep a day which needed to be killed because they were ill or injured. 30 Detective Inspect Hoffman in his oral evidence, stated the following: (a) He is the Commander of the Ballistic Unit of the NSW Police. (b) He has 40 years of experience in using firearms. This has included pistols and handguns. He has also hunted all over Australia in all types of terrain. He has given expert evidence in ballistics at various hearings before a military board of inquiry, and provides ballistic expert advice to the Commissioner. (c) He acknowledged that his advice as contained in the Commissioner's brief of evidence was a generic report and not a report specifically relevant to Mr Bennett's application. (d) He stated that the practice of carrying a long-arm on a motorcycle has existed since the 1940s. In this regard Detective Inspector Hoffman provided the Tribunal with a picture from a book "Fighting Gear of World War 2 – Equipment and Weapons of the American G.I." which showed a US officer on a motorcycle with a scabbard attached to the front fork of the motorcycle and a rifle contained inside the scabbard. He also stated that scabbards are commercially marketed today as being for the use at the side of a motorbike, and that on his enquiries, the firearms dealer in Bathurst not only sells these but has a range of different types available for sale. (e) He stated that he had examined the Commissioner's brief and acknowledged that Mr Bennett's property had some rough terrain on it. However, he adhered to what was contained in his advice, namely, a pistol was not suitable for Mr Bennett's circumstances and a rifle was all he needed. He also acknowledged that the terrain of Mr Bennett's property was such that he needed to use a motorbike. However, in his opinion, there were adequate commercially available alternatives to carrying a handgun while using his motorbike. It was also acknowledged that Mr Bennett needed a firearm for his primary producing business. (f) In respect of the report of Colin MacRae, Detective Inspector Hoffman conceded that it took extra time to use a rifle in comparison to using a handgun. However, in his opinion the extra time was not very much longer. He also pointed out that Mr Bennett had not contended in his application that time was a critical factor as to why he carried a handgun with him. He acknowledged that carrying a rifle in a scabbard on a motorcycle would result in both the scabbard and the rifle being knocked around. This, however, would be addressed by constant maintenance of both the rifle and the scabbard. He also acknowledged that it was not easy to shoot at point blank range with a telescopic rifle, but in his opinion this would be solved by having detachable scopes. Furthermore, an accomplished shooter would be able to fire a rifle accurately with or without a scope. He also, in general, agreed with the contention of Mr MacRae that a rifle fired at point blank range travels much faster than a handgun, but he did not agree a pistol fired at short range was less dangerous. In his experience from crime scenes, a handgun fired at point blank range can equally result in a ricochet of the bullet and/or shrapnel damage to the operator. 31 In cross-examination Detective Inspect Hoffman agreed that he had never been a farmer, but again emphasised that he had hunted all over Australia and that he had hunted for a variety of different types of animals. He also acknowledged that he had used a pistol in shooting animals. 32 Finally, it was Detective Inspector Hoffman's conclusion that, having regard to the terrain of Mr Bennett's property and the circumstances in which he described he used a firearm, in his opinion a rifle was the most suitable firearm to control feral pigs and wild animals. In his opinion, a shooter has much better control over a rifle, and a pistol was not as safe. He pointed out that vets do not use pistols and that the National Parks and Wildlife officers cull wild and feral animals by using rifles. He also stated that, to his knowledge, abattoirs used rifles or a captive bolt gun, and did not use any handguns. He acknowledged that a handgun is accurate up to 50 metres, but in his opinion a pistol was not essential to Mr Bennett's activities, and the safety aspects far outweighed Mr Bennett's need for a pistol. SUBMISSIONS 33 Mr Bennett submitted that he had established that he had a genuine reason and a special need for a category H pistol. Furthermore, from the beginning, he had provided the Commissioner with all the material he had requested in order to support his application for renewal of his permit. His application was supported by the local police after an inspection of his property. He had always used his firearms, including his pistol, in a safe manner. There was no dispute that he needed a firearm to control wild animals and feral pigs that inhabited his property and caused damage to his property, and killed his livestock. His experience was that carrying a rifle on his motorcycle was more dangerous than carrying a pistol. 34 Mr McLaughlin, on behalf of the Commissioner, relied on the matters referred to in the Commissioner's internal review determination. In particular, 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 Bennett. 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. 35 It was also contended that the issue of a permit to Mr Bennett would be contrary to the policy of the Firearms Registry as set out in a letter by Mr Richmond dated 4 September 2003. 36 Finally, Mr McLaughlin submitted that in the event the Tribunal were to find that the Commissioner had power to issue the permit to Mr Bennett 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 Bennett 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 Detective Inspector Hoffman, together with his oral evidence, were outweighed by the evidence given by Mr Bennett. In this regard, he pointed out that Mr Bennett has given evidence that he has previously used a rifle, and has used it effectively, and that effective alternative measures were available to Mr Bennett to eradicate wild and feral animals. He contended that the evidence of Mr Bennett demonstrated that the use of a pistol was a more convenient form for Mr Bennett to eradicate such animals. That is, Mr Bennett conceded that losing his pistol had no impact on his eradication of wild or feral animals. Convenience, he argued, was not a basis of special need. REASONS AND DECISION 37 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. 38 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 Bennett 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, is a valid policy and, if a valid policy, whether the issue of a permit to Mr Bennett 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 Bennett, whether, having regard to the circumstances of this case, a permit should issue to Mr Bennett to possess and use a pistol. 39 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 40 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. 41 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. . 42 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 Bennett 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 Snape (GD) [2004] NSWADT AP 15). 43 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. 44 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 45 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 46 In my opinion, Mr Bennett 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 Bennett is a person of good character. (b) Mr Bennett holds a Category A, B and C firearms licence for the genuine reason of primary production activities on his property. (c) That Mr Bennett has been a holder of a firearms licence since 1993 (11 years) and he has been the holder of a pistol permit since April 1995 (10 years). (d) Mr Bennett has been the holder of firearms licence and pistol permit without incident. (e) Mr Bennett's application for a Commissioner's permit has been supported by local police on the basis of having inspected Mr Bennett's property and having interviewed Mr Bennett. (f) Mr Bennett and his family has farmed and lived on his property for almost 70 years. (g) Mr Bennett is engaged in the business of primary production for profit as a sheep and goat farmer. The sheep and goats graze throughout Mr Bennett's property, some of which is in steep terrain that is densely timbered and vegetated. His property is fenced, including that portion of his property that is in steep terrain. (h) Mr Bennett's property is surrounded by other properties which are not farmed. Mr Bennett's property is inhabited with wild and feral animals that damage his fencing and kill his sheep and goats. This results in considerable economic loss for Mr Bennett. (i) Mr Bennett can only access proportions of his property by means of a motorbike. When accessing his property by motorbike, Mr Bennett is required to carry tools and materials for repairing the fences. (j) It is not practical for Mr Bennett to carry a rifle on his motorbike when he is working in that part of his property, which is in steep terrain. Furthermore, a scabbard is not a practical means of carrying a rifle on his style of motorbike. (k) Mr Bennett needs a firearm when he is working in the rough terrain of his property so that he can kill wild and injured feral animals as well as injured and ill stock. (l) While being authorised to possess and use a pistol, Mr Bennett 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 Bennett has had to kill wild animals and livestock that are ill or injured by using stones or a knife. (m) Mr Bennett 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, and the most effective means of killing such wild animals is with the use of a firearm. (n) The terrain on a portion of Mr Bennett'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. (o) Mr Bennett 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. 47 While Mr Bennett described his needs as "shots of opportunity", in my opinion, having regard to the evidence he put before the Tribunal, he was merely saying that when working in the rough terrain of his property, he needs a firearm so that he can shoot any wild or feral animal he comes across and that it is only practical for him to carry a pistol for that purpose. In respect to Mr Bennett's evidence that the loss of his pistol had not seriously impacted on his control of vermin. In my opinion, this is not an admission that he does not have a need for one. Indeed, his evidence indicates that he has maintained the same level of control with what he has available to him, including a knife or stones. This, in the long run, must affect his level of control. 48 I also accept the evidence of Detective Inspector Hoffman that a pistol was developed for personal protection and not hunting. I also accept his evidence that it is possible to fit a scabbard to a motorbike so that the driver can carry a rifle. However, the WWII photo is of limited assistance in determining whether such a device would be practical for Mr Bennett's motorbike in the steep terrain of his property. Nor is the fact that scabbards are available for sale at the local firearms dealer. What is in issue is what is practical for Mr Bennett, having regard to the topography of his property and his special needs as a result of that topography. Mr Bennett's evidence in this regard was not, in my opinion, effectively challenged. Indeed it was supported by licensing Officer Cash and Mr MacRae, both of whom had independently inspected Mr Bennett's property. Issue of permit 49 For the reasons stated above, subject to any entitlement that Mr Bennett 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 Bennett 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]). 50 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". 51 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 Bennett has a genuine reason for using and possessing a Category H pistol. The next matter to consider is whether Mr Bennett 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. 52 On the basis of the abovementioned findings, I am satisfied that Mr Bennett 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. 53 I am also satisfied that Mr Bennett 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 Bennett'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 evidence of Detective Inspector Hoffman and that of the Commissioner. Notwithstanding these opinions, on the basis of my findings, set out above, I accept the evidence of Mr Bennett that he has a special need for a pistol. 54 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 Detective Inspector Hoffman and the opinion of the Commissioner. However, on balance, I am satisfied on the evidence before the Tribunal that Mr Bennett'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. 55 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". 56 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. 57 Accordingly, for the reasons set out above, in my opinion the Commissioner's decision to refuse Mr Bennett's application for a permit is not the correct and preferred decision. I am also of the opinion that Mr Bennett's application should be remitted back to the Commissioner to determine what appropriate conditions (if any) that reflect Mr Bennett'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. 58 For the reasons stated above, in any opinion, the decision of the Commissioner to refuse Mr Bennett his application for a permit to possess and use a Category H pistol is not the correct and preferred decision. 59 Accordingly, the Tribunal orders: (a) The Commissioner's decision to refuse Mr Bennett's application for a permit to posses and use a category H firearm is set aside. (b) Mr Bennett'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 Bennett be issued with a permit under s.28(g) of the Act; and (ii) in consultation with Mr Bennett, the Commissioner is to consider appropriateness of imposing a condition on the permit that limits Mr Bennett'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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.