Appeal Panel - Internal CITATION: Smith v Commissioner of Police, New Soth Wales Police (GD) [2007] NSWADTAP 45 APPELLANT PARTIES: Roy Anthony Smith for SSAA Pty Ltd RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 079018 HEARING DATES: 20 July 2007 SUBMISSIONS CLOSED: 20 July 2007 EXTEMPORE DECISION DATE: 20 July 2007 DATE OF DECISION: 27 August 2007 BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: Firearms - Shooters Range - Conditions on Approval - Firearms Act 1996 MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 063285 DATE OF DECISION UNDER APPEAL: 03/21/2007 LEGISLATION CITED : Firearms Act 1996 CASES CITED: Smith v Commissioner of Police, NSW Police [2007] NSWADT 61 APPELLANT Mr S Mainstone, solicitor, Mainstone Lawyers REPRESENTATION: RESPONDENT Mr W Pisani, solicitor, New South Wales Police ORDERS: Orders made 20 July 2007:; 1. Decision of the Tribunal dated 21 March 2007 set aside.; 2. Original decision of the Commissioner of Police affirmed.; 3. The Appeal Panel recommends to the Commissioner that there be consultation by the Firearms Registry with the appellant over the practical implementation of the condition.; 4. That consideration be given by the Registry to the circumstances that apply at indoor ranges as compared to an outdoor range when determining what is required by way of practical implementation. REASONS FOR DECISION 1 This appeal is brought against a Tribunal order, which on its face was beneficial to the appellant. 2 The appellant is the manager of an indoor Shooting Range conducted by a shooters' club at St Marys. It must hold an approval under the Firearms Act 1996 to operate lawfully. In June 2006 the Commissioner's delegate renewed the approval with an amended condition. The appellant applied to the Tribunal for review of the condition. The condition read: 'The range is not to operate unless a designated Range Officer or Firearms Instructor is in attendance and directly supervising all activities involving firearms.' (emphasis added) The key difference with the previous approval was the insertion of the word 'directly'. 3 In the past the appellant had interpreted the requirement that a range officer or firearms instructor be in attendance and 'supervise' activity as meaning it was sufficient that there be persons of that status present at the serving counter immediately in front of the three specific shooting ranges. These ranges are known as Range A, Range B and Range C. Range B is immediately behind the serving counter. Ranges A and C are off to the side and not immediately visible from the serving counter. Each of them takes the form of a concrete walled enclosure and is about 10 metres wide. There are 8 firing booths in each Range. There is a screen between each of the firing positions at the firing point to minimise distraction. 4 Mr Barney Jenkins, the senior officer of the Firearms Registry with responsibility for the shooters club area, had been concerned on a visit to the club over an instance of lack of adequate supervision by the members handling reception and processing. 5 This concern provides the background to the amended condition. The appellant had interpreted the amendment to mean that persons of the appropriate status would have to be in direct attendance at each of the three specific ranges. This would add to the cost of the club's operation, and was contested as an unnecessary degree of oversight. 6 The Tribunal held a hearing, which included an on-site visit. It ordered that this condition be replaced with the following condition: 'The range is not to operate unless a designated Range Officer or Firearms Instructor is in attendance and supervising all activities involving firearms: a) Where all participants are shooting only from Range B, and there are less than 5 customers waiting between the serving counter and Range B, supervision may be conducted from behind the serving counter provided that there are two designated Range Officers or Firearms Instructors present and at least one of the Range Officers or Firearms Instructors maintains a clear view of Range B at all times. b) In all other circumstances the designated Range Officer or Firearms Instructor must not conduct any other activities while responsible for range supervision and should regularly move between each range with shooters on it.' 7 The aim of these orders, as explained by the Tribunal in its reasons for decision (Smith v Commissioner of Police, NSW Police [2007] NSWADT 61) was to give the appellant greater clarity as to the way in which the requirement of 'direct supervision' might be implemented. It also involved a small degree of amelioration of the 'worst case' interpretation of the amended condition as put at that hearing by the appellant. The Tribunal's condition, in effect, required continuous surveillance of Ranges A and C, but allowed for the person at the desk to attend, in certain circumstances, to surveillance of Range B. Range B was located immediately behind the serving counter, and the Tribunal was satisfied that adequate surveillance could be maintained from the serving counter in times when the club was not busy. The appellant was concerned that the Tribunal's condition provided no real gain, and would in practice be difficult to administer, as it turned on how many people were in line at any time. 8 At the opening of the appeal hearing it emerged that the appellant would prefer to have restored the original condition, rather than being subject to the Tribunal's order. In its reply to the notice of the appeal, the Commissioner had opposed the appeal. 9 However, following discussion, Mr Pisani for the Commissioner indicated that it would be acceptable to have restored the original condition. Consequently the Appeal Panel made the following orders at the conclusion of the hearing. They include a recommendation to the Commissioner. 1. Decision of the Tribunal dated 21 March 2007 set aside. 2. Original decision of the Commissioner of Police affirmed. 3. The Appeal Panel recommends to the Commissioner that there be consultation by the Firearms Registry with the appellant over the practical implementation of the condition. 4. That consideration be given by the Registry to the circumstances that apply at indoor ranges as compared to an outdoor range when determining what is required by way of practical implementation. 10 These reasons have been issued to explain more fully the Appeal Panel's reasons for making the above orders and recommendations. 11 At hearing before the Tribunal and again on appeal, the appellant, assisted by his solicitor Mr Mainstone, explained that two members managed entry to the three specific ranges. They did checks on licences, and sought to satisfy themselves as to the experience and competence of the member or visitor. They then made a decision whether to permit the person to proceed onto the range. They ensured that any specific supervision requirements that attach to the use of particular weapons, such as handguns or pistols, were observed. They did not, as we understand the appellant's explanation and the evidence before the Tribunal below, engage in close surveillance or supervision of persons using the range who were experienced and trustworthy. The club's interpretation of the changed condition was that it now required that there be full-time surveillance of all shooting activity. 12 On one view, this may mean that it would be necessary to engage three new persons to undertake this activity, as depending on how busy the day was, it might not be possible for one person to monitor all three ranges. As we understood the explanation and the evidence before the Tribunal, there were also issues relating to sightlines that counted against using a single person. 13 Mr Pisani explained at the Appeal Panel hearing that the Firearms Registry only had in mind that there be one person acting as a supervisor of the shooting activities. 14 Mr Pisani and the appellant both referred to specific circumstances that had led to the strengthening of the condition. The appellant indicated that he accepted the desirability of a general condition relating to supervision. 15 He had seen the previous general condition as only requiring active surveillance of shooters on the specific Ranges if at reception some concern was held about the inexperience of the shooter. He saw an indoor facility as having features that meant that there did not need to be the stringency of monitoring and surveillance that, he accepted, was appropriate in the more typical shooters club. The more typical club operates in an open-air setting, say on Crown land or farmland. 16 There are issues, he said, in an open-air range setting relating to safety that warrant a high level of monitoring and surveillance. For example, in an open-air range there is the risk of bullets going astray and hitting other shooters, objects or animals. In the closed indoor setting this is not possible as each of the specific ranges takes the form of a concrete-walled alley. Most importantly, shooters do not cross the shooting line and go forward to adjust their targets, something that does occur in the open-air ranges. Target adjustment at an indoor range is done automatically by technology wired into the premises. 17 Mr Pisani drew our attention to Tab 8 in the documents filed by the Commissioner before the Tribunal. This Tab contains guidelines in relation to the duties of a range officer issued by the Firearms Registry to shooters' clubs. Guideline 5 does require clubs to ensure that all shooters can be observed without distraction from a single location. Guideline 9 requires the club to ensure that every firearm is made safe before leaving the firing line. 18 In our view, it is desirable that there be a consistent interpretation of these requirements applicable to all shooters' clubs taking account of the differences that might apply in respect of safety considerations as between open-air and indoor ranges. The mere insertion of the word 'directly' into the previous condition does not, in our view, provide sufficient direction. Had more specific direction been given, these proceedings may well have been avoided. 19 What we think would be desirable in this case is for the Firearms Registry to hold discussions with interested parties with a view to giving more specific direction as to what is seen as required by way of 'direct supervision' in the context of an indoor range of this kind. The appellant said that there were only two indoor ranges in New South Wales, his club's and a commercial range operated for profit at Auburn. 20 We should indicate that, like the Commissioner and the Tribunal below, we do think that it is in the public interest that there be continuous monitoring of activity at the shooting points across the three Ranges. We formed the impression listening to the appellant that he wanted an outcome that made it unnecessary for there to be any form of continuous monitoring of activity. 21 In our view, similarly to the Commissioner and the Tribunal below, the question is one of detail, as to what is a reasonable way of obtaining an acceptable level of continuous monitoring (it may be, for example, that a walk-by every 15 minutes is acceptable). This is the kind of issue that should be able to be resolved at regulatory level, without there being a need for recourse to the Tribunal. 22 There were detailed submissions filed by the appellant alleging various errors of law in the Tribunal's reasoning; and similarly detailed submissions filed in reply by the Commissioner. It has not been necessary to consider them. Orders Orders made 20 July 2007: 1. Decision of the Tribunal dated 21 March 2007 set aside. 2. Original decision of the Commissioner of Police affirmed. 3. The Appeal Panel recommends to the Commissioner that there be consultation by the Firearms Registry with the appellant over the practical implementation of the condition. 4. That consideration be given by the Registry to the circumstances that apply at indoor ranges as compared to an outdoor range when determining what is required by way of practical implementation. 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