McIver v Commissioner of Police, NSW Police [2004] NSWADT 204

CITATION: McIver v Commissioner of Police, NSW Police [2004] NSWADT 204 DIVISION: General Division APPLICANT PARTIES: Irvin Thomas Baird McIver RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 043126 HEARING DATES: 2/07/2004 SUBMISSIONS CLOSED: 07/02/2004 DATE OF DECISION: 07/02/2004

BEFORE: Rice S - Judicial Member APPLICATION: Firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Firearms Act 1996 Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 CASES CITED: Field v Commissioner of Police, New South Wales Police [2004] NSWADT 82 Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99 APPLICANT REPRESENTATION: In person RESPONDENT A Arnott, solicitor ORDERS: Decision of the Commissioner of Police is set aside and remitted to the Commissioner for consideration in accordance with direction.

REASONS FOR DECISION - Ex tempore 1 Mr McIver, I am going to read out some reasons, and for these reasons I am going to set aside the Commissioner's decision. I am going to remit the decision to the Commissioner for consideration in accordance with the direction I am going to make, and with a recommendation I am going to make. 2 The direction I am going to make is effectively that you be issued with a permit, for these reasons. 3 I reject the Commissioner's submission that the circumstances that the Commissioner can consider under section 28(g) of the Firearms Act 1996 as appropriate for the issue of a permit of a category H firearm are defined by and limited to the circumstances that are described in section 16(1) as those in which a licence may be issued for a category H firearm. 4 As this Tribunal has said previously, the Commissioner's discretion is properly informed by the fact that the circumstances for enabling the possession and use of a category H firearm are very limited. But the very existence of a permit regime, alongside a licensing regime, allows for the possibility of there being exceptional circumstances that warrant a person's possession and use of a category H firearm other than as allowed by the licensing regime. 5 The Internal Review Statement of Reasons acknowledges this when it sets out, as a consideration in that internal review: that unless exceptional circumstances exist the Commissioner of Police does not consider it appropriate for a permit to be issued. 6 The issue therefore is whether in this case there are such exceptional circumstances. 7 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 objects of the Act and the paramount consideration of ensuring public safety. 8 I am satisfied on his uncontested evidence that Mr McIver from time to time finds himself, in the ordinary course of his work, necessarily in highly dangerous circumstances. Those circumstances are when cattle have strayed in heavily forested terrain, and responds to Mr McIver's attempts to recover them by charging at him. He related in some detail two occasions when his physical safety was at serious risk and was preserved only through the use of a category H firearm in circumstances where a 'long-arm' rifle would not have been effective. 9 I am satisfied on his uncontested evidence that Mr McIver would not in those circumstances have been able to preserve his physical safety had he had with him only a category A/B firearm. The circumstances of his dealing with angry and charging cattle in close quarters made the use of a category H firearm necessary. 10 I accept Mr McIver's uncontested evidence that he has not been into the heavily forested areas looking for stray cattle in the six months that he has not had use of a category H firearm, and that he would not go into those areas looking for stray cattle without one. He is thereby unable to recover lost and strayed cattle of some value to his livelihood. 11 Mr McIver has been in such a situation of danger to his physical safety, as I have described, some three or four times in 30 years. 12 He acknowledges that there are occasions when he uses a category H firearm when he could instead use a category A/B firearm, and that it is on those occasions a matter of convenience. This Tribunal has said before that that alone is an insufficient basis for allowing the use and possession of a category H firearm in light of the principles and objects of the Act and the paramount consideration of ensuring public safety, and Mr McIver does not rely on those occasions in his application. 13 Mr McIver's situation is distinguishable on the facts, as I have found them, from other matters such as Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99, Field v Commissioner of Police, New South Wales Police [2004] NSWADT 82 and Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52 where the applicants were not seeking possession and use of a pistol to protect themselves from danger and harm, but as a preferred alternative means of dealing with the needs arising from primary production, such as culling feral animals or sick stock. I said in Clyne that my view in that case might have been different had the alternatives for Mr Clyne been inherently dangerous; in this matter I find that the alternative to Mr McIver's using a category H firearm is, in the circumstances he has described, inherently dangerous. 14 I note that Mr McIver agrees with the views expressed by Senior Sergeant Hoffman as to the appropriateness of using a long-arm rifle rather than a pistol for hunting. Mr McIver's point is that he does not want a pistol for hunting, he wants it for what Sgt Hoffman says a pistol is for, and I quote from Sgt Hoffman's document: Handguns were designed for carrying on the person for close personal protection. 15 I am satisfied on his uncontested evidence that Mr McIver's use of a category H firearm in the circumstances he describes poses little or no risk to public safety. Further, I am satisfied that were he to continue to use a category H firearm as he has been doing, there is little or no risk to public safety. 16 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 difficult 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. 17 I note the power that I believe exists under section 30 of the Act, and section 22 of the Firearms General Regulation, enabling the Commissioner to impose conditions as he thinks fit on a permit. 18 Accordingly, I set aside the Commissioner's decision to refuse the application for a permit, and I remit the application for consideration by the Commissioner in accordance with this direction: the Commissioner's consideration shall give effect to my view that exceptional circumstances exist such that the issue of a permit to Mr McIver under section 28(g) is appropriate. 19 Further, I remit the application for consideration by the Commissioner subject to this recommendation: that the Commissioner discuss with Mr McIver, and consider the appropriateness of, imposing a condition on the permit that limits Mr McIver's use of a category H firearm to situations when he is engaged in retrieving lost or strayed cattle from heavily wooded areas on or near the property of Yugilbah.