Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Blacktown Pistol Club v Commissioner of Police, NSW Police Force [2013] NSWADTAP 55 Hearing dates: 12 December 2013 Decision date: 18 December 2013 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President P Molony, Judicial Member M Bolt, Non-Judicial Member Decision: 1. The Tribunal's decision is set aside. 2. The matter is remitted to the Tribunal to be heard and decided again. Catchwords: MERITS REVIEW - decision of Commissioner of Police to add a condition to the Blacktown Pistol Club's 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"- whether Tribunal's decision was 'unreasonable' - whether Tribunal asked itself the wrong question - Legislation Cited: Firearms Act Firearms Regulation Category: Principal judgment Parties: Blacktown Pistol Club Ltd Commissioner of Police, NSW Police Force Representation: Mr J Brown (Appellant) Mainstone Lawyers (Appellant) Crown Solicitors Office (Respondent) File Number(s): 139044 Decision under appeal Citation: Blacktown Pistol Club Ltd v Commissioner of Police, NSW Police Force (No 2) [2013] NSWADT 222 Date of Decision: 2013-10-11 00:00:00 Before: General Division File Number(s): 123280 reasons for decision Introduction 1The Blacktown Pistol Club Ltd has operated a shooting range since 1963. On 31 August 2012 officers from the Firearms Registry inspected the range and imposed a condition on its approval. The condition was 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". According to Police, the Range Danger Area is includes: . . . those areas of land or water, together with specified air space, within which danger to life, limb or property may occur arising from the firing of specified ammunition. (Firearms' Range Users Guide, April 2013, version 9 at p 8 2The Club applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision and the Club has appealed to the Appeal Panel. Grounds of appeal and conclusion 3An appeal can be made on any question of law and, with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision: Administrative Tribunal Act 1997 (ADT Act), s 113(2). The Club appeals on two questions of the law: (1)that the Tribunal applied the wrong provision when determining the matter. (2)that the addition of the condition was so unreasonable that no reasonable body would have reached it. 4The Club also sought leave to extend the appeal to a review of the merits of the appealable decision. 5We find that the Tribunal applied the wrong test when determining this matter. It regarded non-compliance with Clause 86(3)(d) of the Firearms Regulation 2006 as determinative of the issue as to whether the imposition of a condition under Clause 87(3) was the correct and preferable decision. Both parties agree that the Tribunal made that mistake. In those circumstances it is not necessary to address the Club's second ground of appeal. Tribunal's decision 6The Tribunal asked itself what the Club had to do in order to comply with Clause 86(3)(d) of the Firearms Regulation 2006. That provision states that: The Commissioner must not grant an approval unless: (d) the applicant has control over the use of the shooting range 7Clause 86(3)(d) applies to the approval process, not to the imposition of conditions after the approval had been granted. 8In construing that provision, the Tribunal reasoned, at [54] to [63] that: In order to determine the correct and preferable decision it is necessary to consider the proper construction of Clause 86(d) of the Regulation. It 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). The 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. The definition of 'shooting range' in Clause 3 is not helpful. It states: shooting range includes a moveable shooting range The 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. I agree with that view. Where public safety may be at stake the Respondent, and therefore the Tribunal, must give precedence to that concern. In 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. In 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. It is a matter for the Applicant how it achieves that outcome. 9It is not necessary for us to determine whether this analysis and conclusion is correct because we have decided that the Tribunal was addressing the wrong question. Reasoning 10In the Firearms' Range Users Guide, April 2013, version 9 at page 17, the following text appears under the heading Planning/Construction Phase: The Range Inspectors of the FAR (Firearms Registry) should then be consulted to carry out a preliminary investigation of the viability of the Range as far as siting and control of the area affected by the use of the Range. The following should be provided to the FAR to allow this to happen: . . . Copies of any lease agreements or documentary proof of ownership of the land the Range will occupy. Bear in mind the Range Inspectors will apply a Range Danger Area Template to the map provided and will insist upon the Range User having control or permissive shooting rights over the land shadowed by that template. The withdrawal of permissive shooting rights by a landowner at a later date will see the Authority to operate the Range revoked. Organisations should strive towards buying or leasing the entire area the Range Danger Area Template shadows. (Words in brackets added.) 11Through the Range Users Guide, the Commissioner of Police purports to require either that a club obtain "permissive shooting rights" or that the club itself has control of (that is, owns or leases) the entire Range Danger Area. The term "permissive shooting rights" does not appear in the legislation. It refers to a letter from the owner of the land, not controlled by the Club, shadowed by the Range Danger Area. The permissive shooting rights letter was described by Senior Constable Jackson in a statement dated to May 2013 as providing permission to use and enter the land and clear the land. The adjoining owner would also give a declaration that they understand the existence of the club's Range Danger Area template overshadowing their land. According to Senior Constable Jackson, every club is required to have this for their approval to be formalised. He says that it confirms that the club has control of the land that they shoot over. 12In this case the Club could not obtain such a letter. The question the Tribunal should have asked itself is not whether the Club was required to have control of the Range Danger Area but whether the Commissioner of Police made the correct and preferable decision when he added the live firing condition. The relevant provision is Cl 87(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. 13This discretion should be read with s 87(1) which gives the Commissioner power to approve a shooting range either unconditionally or subject to conditions: 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). 14The parties agreed that the Commissioner has a discretion to add a condition to an approval if, for example, the purpose of that condition is the preservation of public safety. Conclusion 15Contrary to the submission by the Commissioner of Police, the Tribunal would not necessarily have come to the same conclusion if it had asked itself the right question. Clause 87(3) gives the Commissioner a broad discretion to attach approval conditions. Such conditions may be directed to the preservation of public safety. When determining whether the imposition of the live firing condition is the correct and preferable decision, whether the club controls the land overshadowed by the Range Danger Area or has a "permissive shooting rights" letter are relevant considerations. But they are not determinative of the issue. The requirements, as set out in the Range Users Guide, are not the law. It is not a statutory instrument and there is nothing in the legislation that requires a club to obtain either a permissive shooting rights letter or to own or lease the land covered by the Range Danger Area. 16Other relevant considerations when determining whether the Commissioner made the correct decision when imposing the condition include: the likelihood of ammunition being misfired or incorrectly fired so that it lands outside the area of land leased by the club, the seriousness of any injury or damage likely to be inflicted from such ammunition, the frequency of members of the public entering the land either legally or illegally, the practicality and effectiveness of measures to deter entry and the availability of other measures to address safety concerns. 17The Tribunal has heard the evidence and is in the best position to reconsider it when applying the correct test. The matter should be remitted to the Tribunal as originally constituted to determine whether the imposition of the "no live firing" condition is the correct and preferable decision. The admission of fresh evidence is a matter for the Tribunal. Orders 1. The Tribunal's decision is set aside. 2. The matter is remitted to the Tribunal to be heard and decided again. ********** 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: 18 December 2013