CITATION: Petty v Commissioner of Police, New South Wales Police Service [2003] NSWADT 20 DIVISION: General Division APPLICANT PARTIES: Gregory Petty RESPONDENT Commissioner of Pol;ice, New South Wales Police Service FILE NUMBER: 023244 HEARING DATES: 24/01/2003 SUBMISSIONS CLOSED: 01/24/2003 DATE OF DECISION: 01/30/2003 BEFORE: Montgomery S - Judicial Member APPLICATION: Weapons Prohibition Act - prohibited weapons - issue of permit - Prohibited weapons - issue of permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Weapons Prohibitions Act 1998 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 CASES CITED: McDonald v Director General of Social Security (1984) 1 FCR 354 Tolefoa v COP (1999) NSWADT 9 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 APPLICANT REPRESENTATION: In person RESPONDENT C Capper, Advocate ORDERS: The decision of the Commission of Police, NSW Police Service to refuse the application by Mr Gregory Petty for the grant of a Prohibited Weapons Permit under the Weapons Prohibition Act 1998 is affirmed. Background 1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service ("the Commissioner") to refuse the application for a Prohibited Weapons Permit under the Weapons Prohibition Act 1998 ("the Act") brought by Mr. Gregory Petty on 6 May 2002. The application related to two slingshots that Mr. Petty attempted to import. A further slingshot that Mr. Petty purchased in Darwin has been confiscated. On 17 August 2002 a delegate of the Commissioner refused Mr. Petty's application. The reason give by the Commissioner's delegate was: "I am satisfied that you have failed to provide a Genuine Reason for the use of a Prohibited Weapon, namely a 'SLINGSHOT'. Accordingly, your application for a Prohibited Weapons Permit is refused." 2 On 3 September 2002 Mr. Petty applied for an Internal Review of the Commissioner's decision. The Internal review was finalised on 1 October 2002. The decision was taken that the Commissioner's original decision to refuse Mr. Petty's application is to stand. The Commissioner's delegate who made the decision gave detailed reasons for the decision and Mr. Petty was notified of the outcome of the review and those reasons. Reviewable decision 3 The reviewable decision is that of the Commissioner to refuse Mr. Petty's application. On 28 October 2002 Mr. Petty applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal's President on 9 December 2002 at which time he made directions for the filing of documents and the matter was listed for hearing on 24 January 2003. Nature of proceedings 4 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 5 These are not adversarial proceedings in which Mr. Petty carries an onus of proof. Mr. Petty, by making the application, triggers a process of merits review by the Tribunal. Mr. Petty does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Petty and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 6 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and "there is no presumption that the decision of the [Commissioner] is correct" (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 7 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357). Applicable Legislation 8 The principles and objects of the Act are set out in section 3 of the Act which provides: "3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons. (2) The specific objects of this Act are as follows: (a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon, (b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons, (c) to provide an amnesty period to enable the surrender of prohibited weapons." 9 The Commissioner's decision is purportedly made pursuant to sections 10 and 11 of the Act. Those sections provide: "10 Issuing of permit (1) The Commissioner may, after considering an application for a permit: (a) issue a permit to the applicant, or (b) refuse to issue a permit to the applicant. (2) A permit must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of prohibited weapons without danger to public safety or to the peace, and (b) the applicant (including such authorised employees as are nominated by the applicant) has completed, to the satisfaction of the Commissioner, such training and safety courses as may be approved in relation to the kind of permit sought, and (c) the Commissioner is satisfied that such storage and safety requirements as may be approved (either generally or in a particular case) are capable of being met by the applicant. (3) A permit must not be issued to a person who: (a) has, within the period of 10 years before the application for the permit was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (b) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the permit was made, been subject to such an order (other than an order that has been revoked), or (c) is subject to a recognisance, granted in New South Wales or elsewhere, to keep the peace, or (d) is subject to a weapons prohibition order. (4) The Commissioner may refuse to issue a permit if the Commissioner considers that the issue of the permit would be contrary to the public interest. (5) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a permit. (6) Subsection (3) extends to offences that have been committed, or to apprehended violence orders that have been made, or to recognisances that have been granted, before the commencement of this section." "11 Genuine reason (1) The Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon. (2) Without limiting the reasons that the Commissioner may be satisfied are genuine reasons, the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon if the applicant: (a) states that he or she intends to possess or use the weapon: (i) for any one or more of the reasons set out in the Table to this subsection, or (ii) for any other reason prescribed by the regulations, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements (if any) specified in respect of any such reason. Table Reason: recreational/sporting purposes The applicant must demonstrate that the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought. Reason: business/employment purposes The applicant must demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use the prohibited weapon for which the permit is sought. Reason: film/TV/theatrical purposes The applicant must demonstrate that the film, television or theatrical activity concerned requires the possession or use of the prohibited weapon for which the permit is sought. Reason: weapons collection The applicant must demonstrate that the applicant's prohibited weapons collection has a genuine commemorative, historical, thematic or financial value. Reason: public museum purposes The applicant must demonstrate that the public museum concerned is involved in the collection and display of prohibited weapons. Reason: heirloom The applicant must demonstrate that the applicant has inherited the prohibited weapon for which the permit is sought and that the weapon has a genuine sentimental value. Reason: animal management The applicant must be a veterinary surgeon, or an organisation that has responsibilities for animal management, and demonstrate that it is necessary in the conduct of the applicant's responsibilities to possess or use the prohibited weapon for which the permit is sought. Reason: scientific purposes The applicant must demonstrate that the prohibited weapon for which the permit is sought is required for legitimate scientific purposes. (3) The possession or use of a prohibited weapon for personal protection, or for the protection of any other person, is not a genuine reason for the possession or use of the weapon. However, any such reason may constitute a genuine reason in the case of a prohibited weapon referred to in clause 4 (1) of Schedule 1 or in the case of a prohibited weapon that is of a kind prescribed by the regulations for the purposes of this subsection. (4) Subsection (3) does not limit the reasons that the Commissioner may determine are not genuine reasons for the purposes of possessing or using a prohibited weapon." 10 Schedule 1 to the Act identifies specified items which are classified as Prohibited Weapons. That schedule relevantly provides: "Schedule 1 Prohibited weapons … 2 Miscellaneous weapons … (6) A slingshot (being a device consisting of an elasticised band secured to the forks of a "Y" shaped frame), other than a home-made slingshot for use by a child in the course of play. (7) A Saunders "Falcon" Hunting Sling, or any other device in the nature of a hunting sling, catapult or slingshot that is designed for use with, or a component part of which is, a brace that: (a) fits or rests on the forearm or on another part of the body of the user, and (b) supports the wrist against the tension of elastic material used to propel a projectile." Mr. Petty's case 11 Mr. Petty presented evidence on his own behalf. His case is essentially based on the argument that the Commissioner's decision was not the correct and preferable decision because it failed to take sufficient account of his unique usage circumstances. 12 Mr. Petty seeks approval for a permit to possess and use slingshots licensed for the purposes of deterring and controlling introduced and feral vermin on his 6.8 acre property at Helensburgh. Mr. Petty's property adjoins the Royal National Park and deer from the National Park are common sightings at the rear of his property. These deer cause much distress to Mr. Petty's horses, pets and to other animals. 13 In recent times the district was terrorised by wild dogs. Mr. Petty's horse was attacked resulting in $250 of veterinary fees. Many other animals in the area were also attacked and many were killed. The matter was reported to the Helensburgh Police Station and Mr. Petty was advised that he should shoot the dogs. Mr. Petty's evidence is that he is afraid of guns and has no desire to shoot the animals. He considered that a slingshot would be an alternative means to deter the dogs and to protect his animals. He purchased a Slingshot when in Darwin but subsequently learned that it is a prohibited weapon in NSW. 14 Mr. Petty's property has been the subject of another series of attacks by three dogs. He wants to be able to protect his own animals and also those he cares for that have been brought to him by the Wildlife & Information Rescue Service. He argued that he has no faith in the ability of the National Parks and Wildlife Service ("NPWS") to manage these animals because of its actions of during recent bushfires. He does not believe that the NPWS would offer a viable solution if approached. 15 A neighbour has offered to shoot the dogs if Mr. Petty advises him when they are around but the neighbour is not always available and, further, Mr. Petty is concerned about harming the animals. He had personally taken one of the dogs to the pound when it had been hit by a car. He said that if he was able to use a slingshot he could have deterred the dogs. 16 Mr. Petty used Macadamia nuts in his slingshot and stated that the slingshot is being used as a deterrent not a weapon. No animals have actually been hit. His son uses the slingshot as a toy. He has had a lot of fun and put holes in Mr. Petty's water tank but has not caused any other damage. An exemption applies for home-made slingshots for use by a child in the course of play. Mr. Petty argued that in the circumstances his son, who is sixteen years old, should be permitted to retain a slingshot for play purposes. 17 Mr. Petty argued that the slingshot could in no way be perceived as a deadly or other threat. He said he considered it ironic that "an application for a gun type firearm where I could kill or injury wildlife could be approved" whereas he seeks to be responsible and caring and yet his application was not approved. 18 Mr. Petty said that he is of good character and has a responsible attitude to firearms. There should be no concern that a permit would be abused. The Commissioner's case 19 The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner's case is essentially that outlined in the reasons provided following the internal review. There is no suggestion that Mr. Petty is not a person of good character but rather there is a public interest issue to be considered. 20 In so far as they are relevant to these proceedings, the reasons given following the internal review and upon which the Commissioner relies provided: D. REASONING PROCESS: The Weapons Prohibition Act 1996 ('Act') sets up a scheme for licensing people to possess and use weapons. There are several provisions, which allow the Commissioner to refuse a permit. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application. After fully and independently considering all relevant matters I make the following fresh determination. In considering your application to be issued with a permit to possess a prohibited weapon I have given careful consideration to your stated reasons for making this application and I have weighed them against the underlying principles of the Act … I note that your application was made on the basis of wishing to import, possess and use two Slingshots. The Act provides a Schedule (Schedule 1) that identifies certain weapons deemed 'prohibited'. Specifically, items 6 and 7 of that Schedule prohibit the possession and use of slingshots … When determining whether or not a permit authorising the possession or use of a prohibited weapon should be issued to an individual, the Commissioner must not do so unless, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon has been established. … Without limiting the reasons that the Commissioner may be satisfied are genuine reasons, the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon if the applicant states that he or she intends to possess or use the weapon for any one or more of the reasons set out in the Table to Section 11 of the Act. I note your submission that you require the Slingshots to deter and control feral vermin (i.e. rabbits, deer and wild dogs) from your rural property. However, given that Slingshots are silent in their operation, I find your claim that the device is used to deter animals inconsistent with the stated use. I also note your advice that your horses have suffered an attack from wild dogs in the past and that this incident directly influenced your purchase of a Slingshot in Darwin. You further submit that Slingshots are not prohibited in other States. Despite your advice, Sergeant Herald (OIC, Firearms and Policy and Records Unit, Northern Territory Police) advises that.' Slingshots' are classified as a prohibited weapon in the Northern Territory. Notwithstanding your stated reasons for requiring use of Slingshots I am not satisfied that they could be classed as 'genuine reasons' as required by the Act. Moreover, I have formed the view that it would be contrary to public interest to issue a permit for such purposes. Acting Inspector Wayne Hoffman from NSW Police Forensic Ballistics advises that Slingshots have been categorised as prohibited weapons for a number of reasons including because they have the potential to inflict injury or possible lethal injury to persons or animals. Further, it is believed that Slingshots are a prohibited weapon of stealth, they are silent in their operation, they are easily concealed, it is easy to obtain any form of improvised projectile such as ball bearings and the speed of the projectile is considerable. Moreover, it is a weapon that can provide a form of accuracy after practice, however it is basically a crude weapon that may be difficult to control depending on the user, distance, direction, wind and the many forms of ready-made projectiles. In addition, Police state that improper use of illegally obtained hunting slings in the metro area of Sydney have been used to propel steel ball bearings at moving trains carrying passengers and the windows of blocks of flats. Another issue for consideration is the alternatives for management of feral vermin (foxes and rabbits) such as: - baiting, calici virus, use of noise making devices and the throwing of stones to deter. Moreover, you have the option of consulting with the Department of Agriculture for further alternatives to alleviate any problems caused by such feral animals. Given the advice of Acting Inspector Hoffman, a Ballistics expert and for the fact that you have other options to control feral animals at your disposal I have formed the view that your reasons are not extenuating and can not be classed as 'genuine reasons' for possessing and using a Slingshot. When considering whether it is in the public's interest for you to be issued this Permit, I accept that you are of good character however; the issue of public interest is operated in the absence of character defects with respect to exercising discretion adversely to an individual. I refer to Tolefoa v COP (1999) NSWADT 9, which provides: "(Public interest,) is an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended the public interest discretion to operate in areas to which the character Found was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant objection." With respect to the issue of public interest there is a concern that should such a weapon be involved in an accident or be used by the criminal element there is a real potential risk to public safety. The need for you to be issued with a permit to possess the stated prohibited weapon is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681, provides: "The purpose of the reference to `public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation." Further, the underlying principles of Act are to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety.' Therefore, having considered the aforementioned, and with a focus upon public safety, I have decided against varying the decision to refuse your application to be issued a Prohibited Weapons Permit to import, possess and use Slingshots to control and deter feral animals." 21 With respect to Mr. Petty's stated reason for wanting the permit, Mr. Capper argued that Mr. Petty has other options open to him to control feral animals. His neighbour has offered to shoot the wild dogs. Mr. Petty has not approached the NPWS for assistance and in any event, the use of a slingshot is unlikely to act as a deterrent for the feral animals. 22 With respect to Mr. Petty's son, Mr. Capper argued that a sixteen year old male is not a child for the purposes of the Act. Therefore, no exemption should apply to allow Mr. Petty's son to use a slingshot for the reasons stated by Mr. Petty. 23 It follows, in his submission, that the Commissioner's decision is the correct and preferable decision and should be affirmed. Findings 24 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues: - Mr. Petty's personal circumstances and the fact that there is no suggestion that Mr. Petty is not a person of good character; - that Mr. Petty purchased a slingshot from a shopkeeper in Darwin and his evidence that slingshots are readily available for sale in the Northern Territory; - that Mr. Petty wishes to use slingshots for the purposes of deterring and controlling feral animals on his property in Helensburgh; - that Mr. Petty's property adjoins the Royal National Park and that Mr. Petty has no faith in the ability of the NPWS to control feral animals in the park; - that feral animals, including wild dogs, prevent a threat to the animals cared for by Mr. Petty; - that Mr. Petty's neighbour has offered to shoot the wild dogs to prevent them causing further damage to Mr. Petty's animals; - that Mr. Petty used macadamia nuts in the slingshot when it was in use; - that Mr. Petty's son used the slingshot as a toy and has never actually hit an animal with the slingshot; and - that Mr. Petty intends to use the slingshot as a deterrent not a weapon; 25 The relevant provisions of the Act are found in sections 10 and 11 of the Act. Section 10 of the Act sets mandatory criteria for the issue of a permit. Before a permit is issued, the Commissioner is to be satisfied that the applicant is a fit and proper person and can be trusted to have possession of prohibited weapons without danger to public safety or to the peace; that the applicant has completed any approved training and safety course; and that the approved storage and safety requirements will be met. 26 The Tribunal stands in the shoes of the Commissioner and has no additional powers to those possessed by the Commissioner. While there is no suggestion that Mr. Petty is not a person of good character, there is no evidence before me with respect to whether Mr. Petty has completed any training and safety course. Permit holders are required to take all reasonable precautions to ensure the safekeeping of the prohibited weapon, that it is not lost or stolen, and that it does not come into the possession of a person who is not authorised to possess it. There is no evidence before me with respect to what provisions Mr. Petty has made regarding storage and safety. 27 I agree with Mr. Capper's submission that at sixteen years of age Mr. Petty's son is not a child within the meaning of that term in Schedule 1 clause 2 (6) of the Act. It follows that any use of a slingshot by Mr. Petty's son is not "use by a child in the course of play" and therefore no exemption applies under that exclusion. 28 Pursuant to section 11 of the Act, the Commissioner must not issue a permit unless Mr. Petty has a genuine reason for possessing or using the weapon. The Table provided under section 11 of the Act gives some guidance as to what would constitute a genuine reason. The reasons provided for are: recreational/sporting purposes; business/employment purposes; film/TV/theatrical purposes; weapons collection; public museum purposes; heirloom; animal management; scientific purposes. The reason proffered by Mr. Petty for wanting the permit does not fall within any of the reasons set out in the table with the possible exception of animal management. However, with respect to that reason the table further provides: "The applicant must be a veterinary surgeon, or an organisation that has responsibilities for animal management, and demonstrate that it is necessary in the conduct of the applicant's responsibilities to possess or use the prohibited weapon for which the permit is sought." 29 Mr. Petty is neither a veterinary surgeon, nor an organisation that has responsibilities for animal management. I note that in the second reading speech upon the introduction of the Bill for the Act into the NSW Legislative Council on 11 November 1998, the responsible Minister, the Hon. J. W. SHAW, Attorney General, Minister for Industrial Relations, and Minister for Fair Trading, stated with respect to these reasons: "The Weapons Prohibition Bill confirms that the possession and use of prohibited weapons in New South Wales is a privilege. The bill aims to make New South Wales a safer place in which to live. The Weapons Prohibition Bill contains the toughest controls on the use and possession of prohibited weapons ever enacted in Australia. … The bill will improve public safety by imposing stricter controls on the possession and use of prohibited weapons. In addition, the bill provides tough penalties for a range of prohibited weapons offences. The underlying principles of the bill are that the possession and use of prohibited weapons should be a privilege, and not a right, that is conditional on an overriding need to ensure public safety. The bill requires each applicant for a prohibited weapons permit to prove a genuine reason for possession or use of a prohibited weapon. It provides strict requirements that must be satisfied in relation to the possession and use of prohibited weapons, and it provides an amnesty period for the surrender of prohibited weapons to encourage their removal from the community. … This Government recognises that there are some legitimate purposes for the possession of some prohibited weapons ... There are nine genuine reasons. The first reason is recreational-sporting purposes. … The seventh is animal management. The applicant must be a veterinary surgeon or an organisation with responsibilities for animal management, and must show that the prohibited weapon is needed to fulfil those responsibilities. For example, a fauna park may require a blow-gun and darts to tranquillise sensitive wild game which react adversely to the use of noisier tranquilliser firearms. The eighth is scientific purposes. The applicant must show that the prohibited weapon for which the permit is sought is required for legitimate scientific purposes. For example, a university may require the use of a high-powered slingshot to shoot ropes up trees to enable research to be conducted into tree-dwelling animals." 30 In my view it is the intention of Parliament that a strict interpretation is to be given to the requirement that an applicant for a Prohibited Weapons Permit prove a genuine reason for possession or use of a prohibited weapon. I do not accept that Mr. Petty has satisfied this requirement. 31 Notwithstanding that the reason proffered by Mr. Petty does not fall within any of the reasons set out in the table, a permit can still be issued if Mr. Petty intends to possess or use the weapon for any other reason prescribed by the regulations, and he is able to produce evidence that he satisfies the requirements (if any) specified in respect of any such reason. The relevant regulation is the Weapons Prohibition Regulation 1999, however there are no other reasons prescribed under that regulation which can assist Mr. Petty's application. 32 In my view, Mr. Petty does not satisfy the prerequisites of the Act that would allow him to be issued with the permit that he seeks. He does not fall within any of the categories which are provided for by section 11 of the Act. Consequently, the Commissioner had no option but to refuse to issue the permit sought. As the Tribunal stand in the shoes of the Commissioner, it follows that the Tribunal has no discretion which would allow it to issue Mr. Petty with the permit he seeks. 33 I agree with Mr. Capper's submissions that it would be contrary to public interest to issue a permit for the purposes proffered by Mr. Petty. I also agree that the protection of family or animals is not a genuine reason for the grant of a permit under the Act. However, given my finding that the Tribunal has no discretion to issue the permit, I do not need to consider those issues further. 34 It follows that on the evidence before me, I cannot be satisfied that Mr. Petty has a genuine reason for possessing or using the Prohibited Weapons. It also follows in my view that the correct and preferable decision is to refuse his application for a Prohibited Weapons Permit. Accordingly I affirm the Commissioner's decision to refuse Mr. Petty's application. Order 1. The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr. Gregory Petty for the grant of a Prohibited Weapons Permit under the Weapons Prohibition Act 1998 is affirmed. 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.