Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Blacktown Pistol Club Ltd v Commissioner of Police, NSW Police Force (No 2) [2013] NSWADT 222 Hearing dates: 12 November 2012 Decision date: 11 October 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed. The decision is to take effect 28 days from the date of these reasons Catchwords: shooting range approval - condition imposed - control over the use of the shooting range - no control over the Range Danger Area - decision to impose condition affirmed Legislation Cited: Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006 Cases Cited: Blacktown Pistol Club Ltd v Commissioner of Police NSW Police Force [2013] NSWADT 164 Klein v Domus (1963) 109 CLR 467 Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 Category: Principal judgment Parties: Blacktown Pistol Club Ltd (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Mainstone Lawyers (Applicant) Crown Solicitors Office (Respondent) File Number(s): 123280 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant holds a shooting range approval issued by the Respondent under the Firearms Act 1996 ("the Act"). It has been in operation at its present location since 1963. Its Range operations are regulated by of the Act and the Firearms Regulation 2006 ("the Regulation") and any conditions imposed. The approval is also subject to 3 yearly inspections by staff of the Firearms Registry. 2In August 2012, Senior Constable Wayne Jackson of the Firearms Registry and Range Inspector William Jenkins carried out an inspection of the Applicant's range. Following the inspection Mr Jenkins completed a "variation of, revocation of or addition of range conditions" form to impose a condition on the Applicant's range approval that there be "no live firing until such time as procedures are put in place to ensure no member of the public is within the range danger area whilst shooting is in progress" ("the no live firing condition"). The no live firing condition was imposed pursuant to clause 87 of the Regulation. 3The Applicant has applied to the Tribunal for review of the decision to impose the no live firing condition on the Applicant's range approval. Background to the Application 4The background to the application is set out in my decision in Blacktown Pistol Club Ltd v Commissioner of Police NSW Police Force [2013] NSWADT 164. In that decision I dealt with the question of whether the matter should be reopened to allow the Respondent to provided further evidence that it considered relevant to the substantive application. 5As noted, the decision under review relates to the Range Danger Area of the Applicant's Range ("the Range Danger Area"). I permitted the Respondent to adduce evidence in regard to the issue of whether the Applicant has control over the Range Danger Area. 6The Range Danger Area is an area in which it could be expected that some danger might arise from ammunition fired from the range. The area is directly behind the targets and is cleared of personnel and then controlled whilst shooting occurs. The purpose of this land is to safely stop and contain any incorrectly aimed or unintentionally fired shot, so that the shot will safely fall into a sterile area, with no human injury and, at most, minimal property damage. 7The Applicant's club and range are on land that is privately owned by and leased from Air Services Australia. The Range Danger Area is also in land that is owned by Air Services Australia. The Applicant does not lease the Range Danger Area. 8At the time of the inspection of the Applicant's range in August 2012, the Firearms Registry officers found a large hole cut in the fence wire at the north-western corner of the Applicant's range complex and also observed a number of children on foot and motorcycles either entering or in the northern end of the Range Danger Area. 9The no live firing condition is the subject of interim orders made by the Tribunal. Applicant is able to continue its operations subject to conditions imposed by the Tribunal. The conditions required improved signage and monitoring of access to the Range and the Range Danger Area. The Applicant has introduced the use of two security guards as "lookouts" but asserts that this is impractical as a long-term option for the Club. It has decreased the amount of time the Range is open due the financial commitment of having to employ those guards. Applicable legislation 10The principles and objects of the Act are set out in section 3(1) which provides: "3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms ..." 11Part 8 of the Regulation deals with approval of shooting ranges. Clause 85(b), which falls within part 8, provides that a person must not operate an approved shooting range in contravention of any condition to which the approval is subject. 12Clause 86 of the Regulation provides: 86 Application for approval of shooting range (1) A person may apply for the approval by the Commissioner of a shooting range ... (3) The Commissioner must not grant an approval unless: (a) the applicant is of good character and repute (including in the case of a corporation or a club, each director or office holder), and (b) the shooting range meets the standards accepted by the Commissioner, and (c) except in the case of a moveable range, the range is, in the opinion of the Commissioner, situated at a suitable location, and (d) the applicant has control over the use of the shooting range, and (e) the shooting range has been approved by the local consent authority. 13Clause 87 of the Regulation provides: 87 Approval of shooting range (1) The Commissioner may approve a shooting range either unconditionally or subject to such conditions as the Commissioner thinks fit (such as conditions relating to the control, administration, management, use and inspection by a police officer, or such other person as may be approved, of the shooting range, and the preservation of public safety). ... (3) The Commissioner may vary or revoke any conditions subject to which an approval has been granted or attach to any such approval additional conditions. ... 14Clause 132 of the Regulation provides: 132 Offence of trespassing on a shooting range A person must not enter a shooting range unless the person: (a) is the owner or occupier of the shooting range or has the permission of the owner or occupier to enter the range, or (b) does so with a reasonable excuse or for a lawful purpose. The Respondent's Position 15The Respondent relies on the evidence of Senior Constable Jackson and Range Inspector Jenkins. Each provided statements and also attended and gave evidence at the hearing on 12 November 2012 and was cross-examined. 16The Respondent also seeks to rely on the evidence of Richard Oakley, a Range Inspector with the Firearms Registry who to adjudicates on existing and new shooting range applications. Mr Oakley provided a statement dated 2 July 2013 that addresses the Respondent's contention that shooting ranges must have control of the entire Range Danger Area whilst shooting takes place. 17The Applicant has objected to the admission of Mr Oakley's evidence on the basis that the re-opening of the case was only to adduce further evidence in the form of Senior Constable Jackson's statement of 2 May 2013. For reasons that will become apparent I do not need to resolve that issue. 18Mr Jenkins gave evidence of the circumstances in which the condition was imposed on the range approval. On 31 August 2012, he and Senior Constable Jackson attended the Blacktown Pistol Club, as part of an Inspection process. They conducted an external check of the fence line and found a large hole in the north-western corner of the fence line. They then conducted a further check of the perimeter and the most western ranges, until reaching the locked internal fence line. He observed a number of children on foot and on a motorcycle, who were entering the Range Danger Area. 19He is of the opinion that the public safety can only be maintained if the Range Danger Area is controlled by four separate picquets. Two stationary picquets should be located at the southern end, to the east and west of the Club, and two roving picquets covering the northeast and northwest corners of the Range Danger Area. 20Senior Constable Jackson gave evidence of his inspection of the Applicant's range and the Range Danger Area. He explained the circumstances in which he and John Howcroft, the Firearms Registry's Manager Registration and Ranges, visited the range prior to a meeting between Senior Constable Jackson and the Applicant's president, Craig Ginger, and vice President, Allan Harriman. At the time they visited the range Mr Ginger had conducted a check of the Range Danger Area and there were two security guards, performing the role of piquet's, at the eastern and western sides of the range. 21Mr Howcroft entered the Range Danger Area and remained there undetected while Senior Constable Jackson and Mr Harriman drove into and inspected various parts of the Range Danger Area. 22After ascertaining that both Mr Ginger and Mr Harriman were satisfied that the Range Danger Area was clear and that the area was safe so that shooting could commence, Senior Constable Jackson invited them back into the Range Danger Area and introduced them to Mr Howcroft. 23Senior Constable Jackson's evidence is that during the conversation that followed Mr Ginger had remarked "See all you have proven is that we can't check this area". 24Senior Constable Jackson also gave evidence of a conversation that he had with Arthur Hicks, one of the security guards who were on duty at the range. His evidence is that he recorded notes of that conversation with Mr Hicks and that Mr Hicks had said that over the time he had been on duty (Saturdays and Sundays over 5-6 weeks) he had observed 30 to 35 children entering the Range Danger Area between 1:30 to 4:00pm. Most were riding bikes or motorbikes. Not many were on foot. When he saw them entering the area he would call the range and warn them and they would stop firing until the area was cleared. The clearance to recommence firing was on the basis of sound only as the children could not be seen. 25In Senior Constable Jackson's opinion, it is a near impossible task to clear the Range Danger Area because of the dense nature of the bushland, and undulating topography of the land, including minor watercourses and the poor condition of the un-maintained tracks. Further, if the Range Danger Area could be cleared, it would be difficult to ensure that the integrity of the area was maintained after clearance because there are many access points from the east that, that would bypass piquet points, allowing entry into the land. 26In his statement dated 2 May 2013 Senior Constable Jackson referred to a request that he made to the Applicant in December 2012 asking for the Applicant to provide a "Permissive Shooting Rights" letter from Air Service Australia. The requested letter was to provide the Applicant with permission to use, enter and clear the land, and give a declaration that Air Service Australia had an understanding of the existence of the Applicant's Range Danger Area Template overshadowing its land and that it may withdraw permission at anytime. 27Senior Constable Jackson's evidence is that every club is required to have a "Permissive Shooting Rights" letter for their approval to be formalised and confirms that the Club has control of the land that they shoot over. 28Senior Constable Jackson referred to a conversation that he had with Mr Craig Bartle, the Manager of the Federal Government Air Services Australian Properties. Senior Constable Jackson's record of the conversation is that Mr Bartle indicated that Air Services Australia would not provide the Applicant with a "Permissive Shooting Rights" letter and wouldn't give the Applicant permission to enter Air Services Australia's land. 29Mr Bartle subsequently wrote to Senior Constable Jackson as follows: As discussed on the phone earlier today Airservices will not be providing a letter providing Permissive Shooting Rights to Blacktown Pistol club. Airservices will cooperate with the NSW Police Force to the extent that we are able to. The Respondent's Submissions 30Mr McDonnell submitted that the Respondent's discretion to impose conditions pursuant to clause 87(3) of the Regulation is broad. However, the discretion must be exercised in such a way as is consistent with, and has regard to, the underlying purpose of the legislation that confers the power. In Minister for Immigration and Citizenship v Li (2013) 297 ALR 225, the majority of the High Court (consisting of Hayne, Kiefel and Bell JJ) reiterated at [67] the comments of Dixon CJ in Klein v Domus (1963) 109 CLR 467 at 473, stating: "[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object." 31Mr McDonnell further submitted that, having regard to the stated underlying principles of the Act in section 3(1), it is evident that the overwhelming intention of the legislature was to ensure the public safety, including "by imposing strict controls on the possession and use of firearms". Mr McDonnell relies on the decision in Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 where the Tribunal's Deputy President Hennessy stated at paragraphs [27] - [28]: 27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. ... 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. 32The Respondent acknowledges the Applicant's concerns regarding the expenses associated with complying with the condition imposed on the range approval. However, the Respondent contends that where public safety may be at stake it has a clear obligation to give precedence to that concern, at the cost, if necessary, of the Applicant's business interests. 33Mr McDonnell submitted that it is impossible for the Applicant to control the Range Danger Area for a number of reasons. These include the size, terrain and vegetation of the Range Danger Area; ownership issues in relation to the Range Danger Area; demographic changes to the area resulting in the constant presence of children in and around the Range Danger Area; the futility of the use of picquets; and the ineffectiveness of signage. 34In the Respondent's submission, the evidence filed by the parties demonstrates: * misdirected shots fired from the Applicant's range may fall within the Range Danger Area; * persons are known to be in the habit of entering the Range Danger Area, including through holes in the surrounding fence. These include young persons who use the area for riding dirt bikes; * the dimensions of the Range Danger Area are such that, even with four picquets stationed at its boundaries, the Applicant would be practically unable to conduct a satisfactory patrol of the borders of the Range Danger Area; * given the Applicant has not been granted any power by the owner of the land to exercise control over the Range Danger Area, even if it was able to conduct a satisfactory patrol of the borders of the Range Danger Area, it would lack any power to physically prevent persons from entering the Range Danger Area; * moreover, if persons were discovered to have gained access to the Range Danger Area despite the presence of picquets, the Applicant would be unable to enter the Range Danger Area in order to compel or persuade such persons to leave; and * although the Applicant has made an effort to post signs around the boundary of the Range Danger Area indicating the proximity of the range, subsequent inspections have found that these have been removed, presumably by persons accessing the Range Danger Area. 35The Respondent now submits that in all of the circumstances, the posting of picquets around the boundaries of the Range Danger Area would be insufficient to render the range appropriately safe. The use of picquets is simply not a practical solution to the danger to the public that is presented by the proximity of the range to the Range Danger Area. 36The Respondent now accepts that there do not appear to be any steps that the applicant could implement in order to reach this assurance. It submits that the only way to safely control the Range Danger Area is by making it a no danger range through the installation of baffles. 37In the circumstances, the Respondent submits that the Tribunal should exercise its powers under section 63(3)(b) or (c) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), by varying or, in the alternative, setting aside the decision of the Respondent to impose a condition in the terms expressed. In variance or substitution, the Tribunal ought to impose a condition requiring the Applicant to take steps to render its range a no danger range. 38The Respondent submits that this is not a case in which the usual rule, that each party should bear its own costs, ought to be disturbed. The Applicant's Position 39The Applicant relies on the evidence of its Vice President, Mr Harriman. 40The evidence is that the Applicant has been in operation at its present location since 1963, During that time there has been no reported incidents of any person, be it a member of the Club on the Club premises, or a member of the public in the Range Danger Area being killed or injured as a result of the use of the Club's Range. 41Mr Harriman provided a statement and two reports. Mr Harriman's report of 3 October 2012 addressed the financial impact of the range closure on the Applicant. Mr Harriman's report of 8 October 2012 addressed the Applicant's response to issues concerning the Range Danger Area. Mr Harriman also attended and gave evidence at the hearing on 12 November 2012 and was cross-examined. 42In his statement of 31 October 2012 Mr Harriman outlined the communication that he and Mr Ginger had with officers of the Firearms Registry following the decision to impose the condition. He stated that the first time that he was advised that the Applicant was required to control the entire Range Danger Area was on 18 September 2012. 43It appears that the Applicant has conceded that it is unable to control the Range Danger Area. However, it disputes the Respondent's interpretation of the legislation. It contends that it is only obligated to control the Range and the Range Danger Area is not part of the Range. The Applicant's Submissions 44The Applicant contends that it has complied with all requirements in accordance with the NSW Firearms Registry Range Users Guide February 2011, version 8. This compliance includes geographical considerations and stop butts as well as fencing and signage. The purpose of signage and fencing of the area is to ensure that it is reasonable to assume anyone approaching the fence will see at least one sign. The fence itself needs to be of the standard of a normal rural fence. Additionally the purpose of the fencing is "to stop people unintentionally walking into an area whereby unintentional fired shots may hit an unsuspecting person. " 45Mr Mainstone further submitted that persons who enter onto land that is owned by Air Services Australia, including that portion of land within the Range Danger Area, are committing an offence of entering inclosed lands pursuant to the Inclosed Lands Protection Act 1901. He further submitted that if the Range Danger Area also forms part of the Applicant's Range, then persons entering that portion of land are also committing an offence of trespassing on a shooting range pursuant to Section 132 of the Firearms Regulation 2006. If people intentionally walk into this area then they are committing offences. 46The Applicant also contends that it has increased the signage over and above that required by the Respondent in the Range Users Guide. This was done as a condition of the stay of the decision under review. The Applicant also continues to make inspections of the fencing around the Club premises and repairs any damage to the fencing prior to live firing commencing. 47Mr Mainstone further submitted that the inspection carried out by Senior Constable Jackson and Mr Jenkins on 31 August 2012 was done at a time when the Range was not operating. He argued that there is no evidence before the Tribunal of persons on foot, on motorbikes or on horseback in the Range Danger Area during times when the Applicant is using the Range. He submitted that It would be reasonable to assume that when the Applicant's Range was in use, a person nearing the area would hear the sound of continuous gunshots, which would also alert them that it was dangerous to enter that area. 48Mr Mainstone further submitted the Respondent provides no evidence of any projectile leaving the range area, nor provides any expert evidence to establish the likely trajectories needed for a projectile to leave the Range and enter the Range Danger Area. 49As noted above, the Applicant has introduced the use of picquets. The Applicant submits that it is not practical to extend the use of picquets and that it will not increase public safety relevant to the operation of the Shooting Range. Further, the evidence is that this is impractical as a long-term option for the Club. Such a requirement would place the long term viability of the Club in jeopardy. 50The Applicant further submits that should the decision of the Respondent be held to be the correct or preferable decision, the Club will cease to exist. 51The Applicant submits that it does have control over the use of the shooting range and complies with Clause 86(3) of the Regulation. 52The Applicant accepts that the Tribunal must be satisfied there is "virtually no risk" to the public in determining whether the decision is the correct or preferable decision in keeping with the decision in Ward v Commissioner of Police, NSW Police Force. It submits that given the lengthy history of the Club and Shooting Range without any incident relevant to the Range Danger Area; its compliance with the Respondent's Range Users Guide regarding geography of the area, stop butts, signage and fencing; that persons entering the Range Danger Area are trespassing and that there is no evidence of persons entering the Range Danger Area during live firing; the Tribunal would be satisfied there is virtually no risk to the public. 53The Applicant submits the decision of the Respondent should be set aside and substituted with a decision that the Applicant is to operate its Range pursuant to the Range Approval issued by the Respondent on 31 July 2012. Consideration 54In order to determine the correct and preferable decision it is necessary to consider the proper construction of Clause 86(d) of the Regulation. 55It is common ground that it is impossible for the Applicant to control the Range Danger Area. The question arises as to whether the legislation requires that the Applicant is able to do so in order to comply with Clause 86(d). 56The Respondent contends that in order to comply with Clause 86(d) the Applicant must have control over the Range Danger Area. This urges the construction of the term 'shooting range' as including the whole of the area that comprises the Range and Range Danger Area. The Applicant does not agree. 57The definition of 'shooting range' in Clause 3 is not helpful. It states: shooting range includes a moveable shooting range 58The Respondent contends that the overwhelming intention of the legislature was to ensure the public safety. A construction that furthers the underlying principles and objects of the Act is to be preferred. 59I agree with that view. 60Where public safety may be at stake the Respondent, and therefore the Tribunal, must give precedence to that concern. 61In my view, in order to comply with Clause 86(d) the Applicant must have control over the Range and any area in which it could be expected that some danger might arise from ammunition fired from the Range. 62In the present matter, the no live firing condition has the effect that the Applicant must be able to ensure that no members of the public are within that area whilst shooting is in progress. In my view that condition is reasonable for the protection of public safety. 63It is a matter for the Applicant how it achieves that outcome. 64There does not appear to be a legislative basis for the Respondent's requirement of a "Permissive Shooting Rights" letter. However, some evidence would be necessary to demonstrate that the Applicant is able to ensure that members of the public are not able to be present in the area whilst shooting is in progress. It is not sufficient that members of the public would be trespassing or in breach of other legislation by entering the area. 65The Respondent has urged the Tribunal to impose a condition requiring the Applicant to take steps to render its range a no danger range. I do not propose to make that order but I accept that it may be the inevitable consequence of my findings. 66In my view, the Applicant should have the opportunity to pursue other avenues that might allow it to have control over the Range Danger Area. It may be possible to reach some agreement with Air Service Australia that achieves that outcome. However, in my view the condition should remain in place if that control cannot be achieved. 67In the circumstances, I am not satisfied that the Applicant is able to comply with Clause 86(d) of the Regulation. That being the case, the correct and preferable decision is to impose the no live firing condition. The decision to do so should therefore be affirmed. The conditions of the stay should remain in place until such time as this decision takes effect. Order The decision under review is affirmed. The decision is to take effect 28 days from the date of these reasons. ********** 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. Decision last updated: 11 October 2013