Category D Licence Refusal Due to Lack of Authorised Campaign Participation

The Deputy President of the Administrative Decisions Tribunal affirmed the Commissioner's decision to refuse a Category D firearms licence to the claimant, finding that the claimant was not participating in an authorised campaign as required by the Firearms Act 1996.

CITATION: [NAME] -v- Commissoner of Police, New South Wales Police Service [2002] NSWADT 5 DIVISION: General Division APPLICANT PARTIES: [NAME] RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 013245 HEARING DATES: 17/01/2002 SUBMISSIONS CLOSED: 01/17/2002 DATE OF DECISION: 01/21/2002

BEFORE: [NAME] (Deputy President) APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit MATTER FOR

DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms Act 1996 Rural Lands Protection Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT [NAME], solicitor ORDERS:

1. The decision of the Commissioner to refuse to grant [NAME] a Category D firearms licence is affirmed.

Introduction 1 The Commissioner of Police (the Commissioner) refused [NAME]'s application for a Category D firearms licence. [NAME] has Category A, B and C firearms licences but says that a Category D licence is necessary for the control of vertebrate pests (wild pigs) on his sugar cane property. A Category D licence would allow him to use a "semi auto centre-fire" weapon. He has been issued with a Category D licence (or its equivalent) in the past under legislation which is identical to the current legislation. 2 On 10 October 2001, [NAME] applied to the Tribunal for a review of the Commissioner's decision. Under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act) the Tribunal must decide whether the Commissioner's decision not to grant [NAME] a Category D licence was the "correct and preferable" decision. Evidence 3 [NAME] filed documents which stated that he needs a Category D licence to protect his sugar cane crop "from total destruction by wild pigs." In support of his application [NAME] forwarded the following documents: - Letter from [NAME] to [NAME] dated 27 March 2001 in support of his application; - Letter from [NAME], Member for Ballina, to the Hon P Whelan, Minister for Police, dated 24 April 2001 in support of [NAME]'s application. The letter notes that there is no "authorised campaign" being conducted by the [NAME], largely because of the success of people like [NAME] in tackling the feral pig population. - Letter from [NAME], Member for Ballina, to the Commissioner of Police dated 26 April 2001 in support of [NAME]'s application for an internal review. - Letter from [NAME] dated 9 April 2001 in support of [NAME]'s application. The letter states that [NAME] requires the ability to destroy feral pigs with a firearm. The letter goes on to conclude that "the potential of feral pigs to cause injury to humans, leads to the recommendation that a self loading, centre fire rifle would be the most appropriate weapon". 4 There is also a letter on the Department's file from the [NAME] to the Firearms Registry dated 25 May 2001. That letter states that "this Board is not currently running any organised eradication campaigns targeting large feral animals in the vicinity of [NAME]'s property. . . " 5 I find that [NAME] has a sugar cane property which, because of its location near a national park, is prone to infestation by feral pigs. I also find that the local Rural Lands Protection Board is not currently running an "authorised campaign" to eradicate large feral animals. Legislation 6 The starting point for considering the requirements for the granting of a Category D firearms licence is s 15 of the Firearms Act 1996 (the Act). That section states that: The Commissioner must not issue a category D licence to any person unless: (a) the genuine reason established by the person for being issued with the licence is that of [NAME], and (b) in addition to establishing any such genuine reason, the person produces evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a firearm to which a licence category D applies, and (c) in the case of a person referred to in paragraph (c) of the genuine reason of [NAME], the person produces evidence to the Commissioner's satisfaction that any such special need cannot be met by any other means (including by the authority conferred by a category A, category B or category C licence, or by engaging the services of a professional contract shooter). 7 In order for an applicant's genuine reason to be [NAME], he or she must meet the requirements in relation to that reason set out in s 12 of the Act. So far as it is relevant to this case, that section states that: (1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. Reason: [NAME] The applicant must be: (a) a professional contract shooter engaged or employed in controlling vertebrate pest animals on rural land, or (b) a person employed by or in, or authorised by, a government agency prescribed by the regulations that has functions relating to the control or suppression of vertebrate pest animals, or (c) a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and who is participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are affected by brucellosis or tuberculosis. 8 The combined effect of these legislative provisions when applied to [NAME]'s circumstances is that in order to be granted a Category D licence he must meet the following requirements: - his "genuine reason" for applying for a Category D licence must be [NAME]; and - he must have a special need to possess or use a firearm to which a licence category D applies; and - he must be a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production; and - he must be participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are affected by brucellosis or tuberculosis. 9 Section 180 of the Rural Lands Protection Act 1989 gives the Rural Lands Protection Board the authority to conduct campaigns. That sections states that: (1) A board may conduct (or participate in the conduct of) campaigns for the eradication of pests and may make any necessary arrangements and take all necessary steps for carrying out such campaigns. (2) Arrangements under this section may be made with other boards, with the occupiers or owners of land or persons within the board's district or with the government of this or any other State, the Commonwealth or a Territory. Issue 10 The Commissioner accepted that [NAME] is a primary producer for the purpose of s 12 of the Act. The Commissioner did not accept that [NAME] was "participating in an authorised campaign conducted by or on behalf of a government agency or public authority to eradicate large feral animals or animals that are affected by brucellosis or tuberculosis." [NAME] is participating in such a campaign, the Commissioner is not able to grant him a Category D licence and the Tribunal must conclude that he has made the correct decision. The fact that the Commissioner has incorrectly granted [NAME] a firearms licence in the past is not relevant. Reasons and decision 11 The documents produced by [NAME] from the Rural Lands Protection Board establish that an authorised campaign within the meaning of that term in s 12 of the Act, is not being conducted at the moment. Consequently the Commissioner has made the correct and preferable decision in refusing to grant [NAME] a Category D firearms licence. Order 12 The decision of the Commissioner to refuse to grant [NAME] a Category D firearms licence 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.