Allen v Commissioner of Police, NSW Police Force

Applicable legislation

1. The policy and underlying principles of the WP Act are set out in s 3: 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.
2. A person seeking a permit to possess or use weapon or other item prohibited under the WP Act must have a "genuine reason" for doing so: 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: historical / re-enactment purposes The applicant must be a current member of a historic or commemorative club or society approved by the Commissioner in accordance with the regulations and which conducts activities or events requiring 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: (a) be a current member of a collectors' club or society approved by the Commissioner in accordance with the regulations, and (b) demonstrate that the applicant's 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 practitioner (within the meaning of the Veterinary Practice Act 2003), 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.
3. In the present case there is no suggestion that the issuance of a permit to the applicant would involve any risk to public safety, or would be contrary to the public interest, or that the applicant is not a fit and proper person to be trusted with a silencer, or for any other reason within s 10 of the Act. The only issue is whether the applicant is able to produce evidence demonstrating that it is necessary in the conduct of his business to possess or use a silencer.

Applicant's evidence

1. The applicant gave oral evidence at the hearing. He tendered and adopted an affidavit dated 11 August 2015 (exhibit A2). The respondent objected to a number of passages in the affidavit which he submitted constituted submissions rather than evidence. Those parts are omitted from the summary below. Other passages, in his submission, amounted to statements of conclusions rather than facts, and they had been given reduced weight.
2. In the affidavit Mr Allen stated inter alia that he is aged 66 years and has held a New South Wales firearms licence for at least twenty-six years, and currently holds a category ABC licence. He previously held a firearms licence in the Australian Capital Territory and before that used firearms when undertaking military service in the army. During the entire period he has held a licence, he has never been charged or cautioned in relation to any firearms or firearms-related offence. In fact, he has never been charged with any offence.
3. He is aware of the obligations upon him to ensure safe storage of firearms and ammunition at all times, as well as the added responsibilities upon him as a licensee living in a rural and remote area.

Feral animal depredations on the applicant's property

1. Together with his partner Julia Trainor, the applicant operates a business as a sheep grazier and private land manager across two separate but adjoining properties, "Spring Creek", of about 815 ha, and " Kurawong", of some 600 ha at Ingebarah in the Snowy River region of southern New South Wales. Both properties adjoin the Kosciusko National Park (KNP) and some 70 percent of the properties' external boundaries are common boundaries with the KNP.
2. Currently he runs approximately 200 sheep producing fine Merino wool in the 16 to 17 micron range, which is regarded as a high grade wool and a valuable product. Pasture and the natural vegetation in some areas of the properties are still recovering from extensive damage caused in the 2002 - 2003 alpine bushfires, which also damaged and destroyed fencing and other infrastructure. Much of the fencing and infrastructure damage has since been repaired and each successive season shows an increase in the area of pasture and vegetation on the properties that is available for use to provide stockfeed. The damage has not, however, been fully repaired so far. One reason for their relatively low stock numbers at present has been the restricted availability of native pasture.
3. The relatively low stocking rate is, however, mainly due to feral animal predation on the stock. Attacks by wild dogs are particularly frequent and costly. The applicant does not breed his own stock because of feral animal predation, as lambs are far more vulnerable to attack than older animals. His sheep are harried and attacked, and either injured or killed, on a regular basis. The reduced stocking rate puts additional financial pressure on the grazing business as it restricts the generation of farm income. Apart from wool production, he conducts no other commercial activity on the property. Feral predation on sheep directly results in reduced quantity of wool production, and also a reduction in the overall quality of the wool. It therefore causes significantly lower financial returns in the grazing business.
4. For many years he has suffered stock losses and property damage caused by feral animals, including feral pigs, wild dogs, wild horses and foxes. Historically, losses were seasonal in nature and in a very good year would have been around 3 percent to 5 percent of total stock numbers. More recently, however, the annual stock losses have been occurring year-round and at levels close to 25 percent to 30 percent. Wild dogs and feral pigs are mainly responsible, although on occasion foxes also. Stock that is attacked and injured, but not killed, requires additional time and care, as well as veterinary expenditure, to be returned to a productive condition. Because of those additional costs, and depending on the extent of the injury, it is common for injured stock to be destroyed. He attached to his affidavit a photograph of sheep on his property that had been attacked by wild dogs and a photograph of two wild dogs, the picture having been taken by means of a fixed remote camera.
5. Wild horses and feral pigs are mainly responsible for causing damage to boundary fencing, and occasionally gates, on his properties (remote camera photographs of such damage were attached). Fences and gates that are damaged or pushed over by wild horses allow other animals onto his properties, as well as allowing his sheep to wander off into the KNP and become lost. Feral pigs also damage wire strand fencing by pushing through the lower strands. Unlike the situation where a boundary fence is the boundary between two privately-owned properties, the cost of repairing damaged fencing along the boundary with a national park cannot be shared and he must bear 100 percent of the cost of repair. Feral pigs and wild horses are mainly responsible for causing environmental damage and destruction of pasture (remote camera photographs of mobs of feral pigs at various places on his property and of damage to soil and pasture were attached). Extensive areas of pasture are affected, and such disturbances to the soil and pasture typically take years to recover. During that period, apart from being unproductive, the disturbed areas are prone to erosion and weed infestation.
6. An annual stock loss of 25 to 30 percent will be reflected in a cost of around $8000 to $10,000 per year in lost wool production and the cost of purchasing replacement animals. That estimate does not include the costs of locating suitable replacement stock or arranging for the transport of new stock back to the properties, or the value of the stock killed. In addition to those increases in his operating costs, higher average costs arise from being able to offer only smaller numbers of bales on sale. That increases the average cost of production of each bale of wool. The resulting value of lost stock and replacement purchasing costs leads to an annual financial loss of up to $20,000 per season year. Sustained losses of that magnitude would push his business as a primary producer from positive to a negative cash flow, and thus rapidly into a loss situation.
7. Although loss and damage caused by feral animal pests has always been a feature of sheep grazing in his locality, the problem has been aggravating, especially in the last 4 to 5 years. The number of feral dogs and pigs coming onto the property has increased each year. As his grazing land is so close to the common boundary with the KNP, there is a continual movement of feral pest animals backwards and forwards. While not all feral pests originate within the KNP, and some do come onto his property via adjoining privately-owned land, the vast majority enter directly from the KNP.
8. The New South Wales National Parks and Wildlife Service (NPWS) does undertake some pest control and eradication within the KNP, but from his observation those efforts appear to have little overall effect. From his own observations, the NPWS activities cause many animals to be dispersed from the KNP onto private land. The methods used by the NPWS from time to time include aerial shooting, aerial baiting, ground baiting and some trapping and opportunistic shooting. Other NPWS management activity, such as hazard reduction burning and the use of machinery, are quite unrelated to feral animal control. Hazard reduction burning actually forces feral animals to move out of the KNP and onto adjoining private land seeking food, and to avoid the noise and activity within the KNP.
9. In his observation NPWS aerial shooting has a low impact rate on overall feral pig, dog and fox numbers. Aerial shooting of wild horses is apparently considered too sensitive an issue and is no longer undertaken. After aerial shooting, the NPWS does not recover any carcasses but leaves them to decompose. That of course provides a food source for scavengers such as pigs and dogs. Baiting and poisoning can on occasion achieve a better success rate, but the results are not consistent. In addition, there are always significant and visible losses of native animals after any baiting or poisoning activity. In particular, possums and the Spotted-Tailed Quoll (an endangered species that is endemic to his locality) are frequently found dead after consuming baits, or feeding on the carcasses of poisoned animals.

Reason for possessing and using a silencer

1. As a sheep grazier, he must protect and foster the wool-producing animals. As a land manager, he aims to preserve the land and leave it in a better condition than when it was acquired. That objective is in part due to his personal convictions, and in part to the necessity to provide the environmental conditions needed for generating adequate income from fine wool production. That means dealing with plant and animal problems that might make grazing unsustainable. The physical threat to the well-being of the sheep caused by wild dogs and feral pigs is obvious. The environmental damage caused by feral pigs and horses includes significant damage to pasture and the soil, erosion and the spread of weeds. In his region, because of climate and the nature of the soil, revegetation and the regrowth of damaged pasture and native vegetation is slow.
2. It is generally understood that all land managers should carry out culling of feral pests on private property on a continuing basis; indeed they are legally obligated to control feral animals. The Department of Primary Industry and the South East Local Land Service (LLS) do not undertake any control work on private property. Previously, the Livestock Health And Pest Authority and the earlier Cooma Rural Lands Protection Board did employ trappers and undertook control work on Crown land, which has since become national park. Those activities are no longer carried out by those government bodies. Mr Mark McGaw, LLS team leader, has written in support of his application to use a silencer (exhibit A2, annexure H).
3. The applicant undertakes some trapping and also selectively lays baits on his property. Last year he put out around 800 dog baits provided to him at no cost by the LLS. Now, however, the LLS charges $1.50 per bait, and those costs are likely to increase. Most poisoning is directed at pigs and dogs and uses 1080 poison. While it is taking effect, an animal such as a pig or a dog can travel several kilometres and regurgitate lethal stomach contents. That is of particular concern, as any person laying 1080 baits is legally obliged to display warning signs and notify neighbours within a 1 km radius of the baiting. A poisoned animal can travel much further than that before succumbing, which results in an increased risk of secondary poisoning of domestic and native animals well away from the baiting site. There is much debate on the humaneness and effectiveness of poison baits, which degrade rapidly over time, particularly if affected by moisture. The success rate of baiting as a control measure is random. Trapping is a time-consuming activity that also has a low success rate. There are also arguments about its humaneness.
4. Shooting is widely considered to be the most humane, efficient and effective means of feral pest control, particularly when the target animals are not stressed by noise. The applicant believes that the use of a silencer greatly enhances its effectiveness as the primary tool for feral animal control. NPWS, including those engaged in and near the KNP, are issued with an authorization to use firearms fitted with silencers.
5. When his property was converted to freehold title, a specific covenant was inserted requiring the owner to control feral animals. One of the specific purposes of that requirement was to highlight the need for protecting the local population of native quolls. In order to protect his stock and minimize stock losses and property damage, he conducts regular pest eradication activities on his property totalling one or two days of his time each week. That includes time spent checking and repairing fences and gates, checking and raking sand patches and other areas for tracks, trapping, baiting, and monitoring remote surveillance cameras. He always carries a rifle in his farm vehicle when travelling around the property. The control of feral animal pests is a routine part of his everyday farm activities. Shooting is by far the most successful and efficient method available to him for feral pest control that threaten the financial viability of his grazing business.
6. From time to time he also carries out targeted pest control activities using a firearm by establishing a bait station in a known or suspected "hot spot" location. As the animals quickly become wary, however, that method can only be used sparingly. The purchase and setting of pig traps is expensive and time-consuming, and is not successful if over-used. Trap placement will always be unsuccessful unless the traps are located on commonly used animal pathways, but feral pigs in particular are usually not predictable in their movements. Wild dogs are extremely unpredictable in their movements and are notoriously wary of traps.
7. As well as controlling pest animal numbers within the boundaries of his property, his control activities benefit neighbouring properties. He also benefits from any control activities carried out on neighbouring properties. Given the size and topography of the KNP, it is unlikely that the NPWS can wholly eradicate the feral animal pests living and finding refuge in the park, but travelling outside it onto private land. The KNP is a large area, about 700,000 ha, and in addition is contiguous with large national parks in the Australian Capital Territory and Victoria. It consists mostly of rugged and largely unmanaged wilderness, in addition to more open country.
8. Wild dogs travel singly and in small packs of up to 3 to 4. Feral pigs generally move around as solitary boars or in family mobs ranging up to 20 animals or more. A common problem that he frequently encounters is that after he locates a group of feral animals and fires one shot at a pig or dog, the remainder of the animals in that group immediately disperse away in all directions, which limits the opportunity to eradicate more than one pest animal at a time. That limited opportunity to cull feral animals also has the disadvantage of "educating" the feral animals about the presence of a motor vehicle or a person travelling on foot, making them more wary, or causing them to seek cover at the first hint of an approach.
9. The use of a silencer (more accurately described as a sound suppressor or sound moderator) does not and cannot completely muffle the sound of a discharge. An attached diagram from an academic article (exhibit A2, annexure I) demonstrates how a silencer lowers and changes the noise signature of a firearm, such that observers downrange of a shooter turn their attention 45 to 180° away from the shooter, with confusion over the location of the shooter. That level of confusion is effective across the 150° arc in front of the shooter, which is obviously where all shooting activity takes place. Numerous conversations the applicant has had with professional shooters lead him to believe that the likelihood of being able to remove more than one pest animal at a time when presented with the opportunity is very significantly increased when a silencer is used by a rifle shooter.
10. Other benefits include protection against hearing damage and reduction of the noise of gunfire when shooting among stock animals, which reduces stress among those animals as well as minimizing general environmental disturbance. That is especially significant as it is a very time-consuming and costly exercise to muster stock away from areas known to be visited by pest animals, or where bait stations have been established, in the hope or expectation of attracting pigs or dogs to that location. It is simply not feasible to exclude or move stock away from areas known to be visited by wild dogs, for example, as they are very mobile and extremely wary, and in fact it is the very presence of the stock that usually attracts their attention.
11. Even though a sizeable number of NPWS employees in his region have been issued with silencer permits, it is simply not realistic to believe that they will be able significantly to control the numbers of feral animals within the KNP or prevent their movement onto private property.
12. In his oral evidence at the hearing, Mr Allen reiterated those points and explained that the KNP is mainly covered by native vegetation which has become denser since the fires. His property is in a rain shadow and thus partly dry. The granite soils on the property are easily eroded. In recent years feral dogs, horses and pigs have increased in numbers. A decade ago there were no pigs, but now that they are present in mobs, threatening livestock, damaging fences, attacking, injuring and killing sheep. The pigs attack sheep when they are in full wool and find it difficult to get up once they have been pushed over. The pigs also plough up the native pasture. He has to spend one or two days every week at least, and now often 3 or 4 days, in animal control, and without it would be out of business. Stock losses are now at an all-time high and almost continuous. Some areas can no longer be used because the feral animals come out of the KNP, as his fixed camera monitoring shows. While the NPWS has taken some steps that have had some effect, he is experiencing a bigger influx of ferals. There are two tracks leading into the KNP that NPWS staff can use, but they do not reach the major areas where the ferals are.
13. Many primary producers have feral problems, but the steepness of the country and the proximity of the KNP and wilderness area mean that the rangers remain on the tracks, so that the NPWS efforts do not help much. A silencer would help him to reduce feral numbers. While it was not necessary in earlier times, it is now needed.
14. In cross-examination the applicant agreed that the article from which he had reproduced the diagram referred to above did not deal with culling and measured perceptions by humans, but pointed out that humans are in that sense animals. While there might be movement by other animals if one of their number were shot using a silencer, they would not run as far as they would otherwise. Shown some YouTube clips by Mr Mattson depicting some feral animals moving away after one was shot with a suppressed rifle, he said that they appeared to be in open country, whereas his area was rugged. The frame of the picture was very narrow and made it impossible to see how far the other animals had run. Further, there was nothing to indicate the level of hunting pressure the ferals were under.

The MacCarthy report

1. The applicant tendered a recent 92-page research paper titled An Investigation into the use of Sound Moderation for Hunting and Game Control by Dr Martin MacCarthy, Professor Martin O'Neill and Dr Helen Cripps, of Edith Cowan University, Western Australia. It was prepared for Professor Robert Mulley, research committee chairman of the Game Council of New South Wales (for convenience it will be referred to as the MacCarthy report).
2. Mr Mattson objected to the report in its entirety on the ground of relevance, as the report had been prepared for the purpose of encouraging legislative change in relation to silencers. He pointed out that the tribunal is required to apply the legislation as it is currently drafted. Mr Mattson also submitted that the conclusions and opinions expressed in the report were not sourced or based on any identified expertise or experience.
3. The fact that the MacCarthy report makes recommendations that include legislative change is not a sufficient reason for dismissing it. It is very common for scientific and scholarly research to conclude that change of one kind or another is needed; indeed if alterations in scientific knowledge, legal interpretations, historical narratives, philosophical arguments or other aspects of society's intellectual stock were not required or the subject of debate, there would scarcely be a need for academic research. The question is always whether the arguments advanced are seen to be factually based and logically argued, whatever may be the conclusions to which they lead. The MacCarthy report is documented with an 18-page bibliography and is written in a logical, measured and scholarly style, as one would expect from three university academics, including one full professor. The applicant does not rely on it in order to argue that the tribunal should not apply the legislation as it is currently drafted which, as Mr Mattson submitted, would be a legal impossibility, but uses its discussion of the effects of suppressor use on animal management as rational arguments to support his contention that he needs a permit for the purposes of his grazing operations. The report was therefore admitted into evidence, subject to a suitable degree of judicious circumspection.
4. The report states inter alia that the use of a suppressor will reduce the sound level from a hunting rifle by between 14 and 28 dB (p 41) out of an unsuppressed total of 160 dB maximum or 148 dB from the side (p 44) and produces a marginal increase in accuracy by reducing elliptical barrel whip (p 45-46). Further, the tendency of vermin animals to react to the sound of a gunshot by fleeing is "axiomatic", and often only one vermin animal is potentially culled because the rest flee on hearing the un-moderated rifle report. "The term 'potentially' is deliberately used as the first shot on location will likely be 'cold-bore' shooting using an estimation of windage and elevation and with a cool barrel. Unlike popular media portrayal, the first 'cold-bore' shot is usually the least accurate of a subsequent string of shots, and for this reason is often discounted when shooting to establish the firearm's MPI [mean point of impact] and/or group (accuracy) data. With the first shot being the least accurate, the shooter has the least chance of hitting the target on the first shot…. With moderated firearms in the right condition, the animals are more likely to remain in place, enabling any cold-bore misses to be rectified by subsequent shots" (p 47).
5. The authors point out that any reduction in the stress experienced by animals about to be culled is without doubt a humane act. "Ergo, any vacillation in the implementation of a device that more humanely dispatches animals is a cost in cultural reputation that is borne by society, and reflects poorly on Australia internationally" (p 48). "The corollary effect of slightly enhanced accuracy using moderators (including, as mentioned earlier, increased accuracy from reduced recoil) is more humane animal husbandry" (p 50).

Respondent's evidence

1. The respondent called no oral evidence, but instead relied on the s 58 documents (exhibit R1) and two written statements, the first by Timothy Snow (exhibit R2), a Detective (Technical) Sergeant of police attached to the Forensic Ballistics Investigation Section, Forensic Services Group, Sydney. He has specialized knowledge and expertise in ballistics, firearms identification and the examination of crime scenes.
2. His statement consists essentially of a brief commentary on the applicant's affidavit. He states that the use of firearms fitted with a silencer does reduce, or suppress, the sound of a shot being fired by approximately 25 to 30 dB. It may also reduce recoil and muzzle climb because of the additional weight at the muzzle end. The use of a silencer cannot improve the accuracy of a particular shooter. In his view there is no evidence to prove that the use of a silencer will confuse target animals. Firing .308 Winchester [7.62 mm] calibre firearms fitted with a silencer with the trajectory parallel to a large hard surface such as a wall, building, or even a dense stand of trees, would create reflections of sound that may conceal the source of a shot. "However, in a bushland scenario, depending on the density of vegetation, when firing a firearm, with or without a silencer, may also cause this sound reflection [sic]. The fact that the remainder of a group of target feral animals disperse after one animal is shot is likely to be as a result of seeing the target animal drop after having been shot". He could not comment on the diagram from the Aimee Lister article, not having had access to it. He further stated that professional shooters had been successfully culling feral animals for many years without the use of silencers. He did not think the use of a silencer would significantly enhance the ability of a shooter to remove more than one pest animal at a time. That would depend more on the skill of the individual shooter. Further, hearing protection was desirable in any event.
3. The respondent also relied on a statement dated 2 October 2015 (exhibit R3) signed by Bettina Walker, currently the manager of the licensing, probity checks and authorities unit at the Firearms Registry. Ms Walker stated that currently no New South Wales primary producer had a prohibited weapon permit for a silencer. One such permit had been issued in 2013, but was cancelled after a review of the applicant's genuine reason. NPWS has a prohibited weapons permit for a silencer for animal management purposes in the Northern Illawarra Wild Deer Management Program. When approving the permit, consideration was given to the constant noise of gunshots disturbing the sleep and peace of residents in residential premises backing onto the national park where deer had established a corridor. "As far as I am aware, the approval for a permit was given based on those above considerations, and the Respondent was satisfied that it had been demonstrated, in those circumstances, that it was necessary to use a silencer", Ms Walker said.
4. A silencer permit had also been issued to NPWS for use in the KNP for vermin control purposes, especially rabbits, in areas frequented by the public. When undertaking the shoots, the NPWS also implements strict risk management processes and procedures.

Respondent's submissions

1. At the hearing the respondent adopted his outline of submissions dated 29 September 2015 in which he stated inter alia that the genuine reason advanced by the applicant for the permit was that possession and use of a silencer was for the purposes of his primary producing business. To be issued with a permit, the applicant must be able to demonstrate that it is necessary in the conduct of his business or employment to possess or use the prohibited weapon for which the permit is sought: WP Act s 11(2). The present application therefore concerned the proper interpretation of s 11 and whether a silencer is necessary (within the meaning of s 11) for the conduct of the applicant's primary producing business. The respondent's position was that it was not. The WP Act regime should be interpreted strictly: Petty v Commissioner of Police, New South Wales Police Service [2003] NSWADT 35.
2. After outlining the applicable principles of statutory interpretation, the respondent submitted that the proper approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law that the mischief that the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.
3. The underlying principles of the WP Act emphasize that possession of prohibited weapons is a privilege conditional on the overriding need to ensure public safety. The Act places strict restrictions on the issue of such permits, and s 8(1) requires that an applicant establish a genuine reason for possessing or using the prohibited weapon. Section 10(4) states that the Commissioner may refuse to issue a permit if the Commissioner considers that to do so would be contrary to the public interest, and s 11 provides that a person must demonstrate a genuine reason for possessing a prohibited weapon, and then elaborates on what would be a genuine reason.
4. The onus is on an applicant to demonstrate and produce evidence of a genuine reason, and what constitutes a genuine reason is not left undefined, as significant guidance is provided in the Table to s 11(2). The genuine reasons set out in s 11(2) are narrowly focused: Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10, [42].
5. Ultimately, the issue in this case is that the applicant must establish that possession and use of a silencer is necessary in the conduct of the business of primary production. It is accepted that the meaning of the word "necessary" will depend on the context in which it is used and in the setting of s 11 cannot be equated with something that is advisable, desirable, of assistance, useful or of some value. In Osborne, which dealt with an application for a pistol permit by a licensed firearms dealer who conducted part of his business on a travelling basis, the appeal panel spoke of the prohibited weapon as needing to be "directly required" in the business. It therefore adopted a stricter approach to the interpretation of the genuine reason of "necessary". The applicant must therefore be able to demonstrate that the use of a silencer would be necessary (in this stricter sense of essential, indispensable, imperative or directly required) to the conduct of a primary producing business. But the matters raised by the applicant in themselves said nothing about the necessity for a silencer. A silencer is not directly required for the business of primary production.
6. The applicant submits that a silencer will demonstrably enhance his capacity to carry out his activities as a sheep grazier in a more efficient, productive and businesslike manner, and would assist him to comply more comprehensively with the obligations imposed on him as a land manager. That same reasoning would, however, apply to every primary producer. While the applicant might be assisted and gain some advantage by using a silencer, that did not meet the definition of necessary, which is to be interpreted strictly. A silencer is not directly required by the business of a primary producer. The obligation to control feral pests is not special; the applicant is to suppress or destroy any pest by any lawful method.
7. At the hearing the respondent reiterated those points and stressed that the issue in the present case was whether a silencer was "necessary" for the applicant's primary production business. There was no issue of public safety, public interest or whether the applicant was a fit and proper person to hold a permit.
8. Damage to fences, land and stock caused by feral animals was not uncommon in primary production and other options were available for dealing with it, including baiting, poison, trapping and shooting. Contract shooters could be employed, while neighbours and recreational shooters could assist. NPWS control activities, the applicant conceded, had enjoyed "moderate success".
9. It was common ground that silencers do not actually silence a gunshot and the wearing of ear protection while shooting was still recommended. There was no evidence that feral animals would not scatter if shot at with a suppressed rifle. There is no way of knowing if a shooter could get in more than one effective shot if a silencer were used. The applicant only believes it would help but does not actually know. The diagram from the Lister article was a "nonsense", as it related to measuring the perceptions of humans. The Game Council report supported a particular view of law reform and lacked any evidence of expertise and experience. It did not mean that the applicant had met the "necessary" threshold. The letter from Mr McGaw of LLS South East was not reliable and only expressed the opinion that the use of a silenced firearm "may be of use".
10. The regulatory scheme was designed to help primary producers and provides other means for coping with feral animals. The applicant had used the same reasons for applying for a C licence in 1997 and 2007 as he was now advancing in relation to a silencer permit. The WP Act is emphatic that possession of prohibited weapons is a privilege and imposes strict controls upon the issuance of permits. In Osborne the appeal panel had said that the permitted reasons for obtaining a permit were narrowly focused and the requirements it had laid down had not been relaxed since. There had been decisions adopting a broader interpretation in different contexts, but that simply showed that the meaning of the word "necessary" was derived from its context, including the nature of the legislative scheme.
11. Osborne is binding on the tribunal at first instance and is correct as regards the ordinary meaning of the word. In that case the appeal panel had not looked at the individual's particular business or personal circumstances, but only at the type of business and its core features. From that viewpoint a pistol licence was not directly required by the nature of the applicant's business. A narrow approach was indicated by the approach of the legislation, and that would be true a fortiori in the case of the WP Act. Consequently, "necessary" must mean "essential" or "directly required". "Essential" is the plain meaning of the word "necessary". Primary production does not directly require the use of a silencer. As other options are available, such as contract shooting and baiting, the silencer could not be necessary. There was no evidence that the applicant would be able to deliver more than one effective shot with a silencer or that animals would not run after the first shot were fired. The YouTube clips showed that the other animals had bolted after one had been brought down. The applicant might think that a silencer would help, but that was supposition, and he had not "demonstrated" that a silencer was necessary.

Consideration

1. Under s 63 of the Administrative Decisions Review Act 1997, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
2. The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 No 2 (s 29) and the WP Act, including the Commissioner's refusal to issue a permit (s 35(1)(a)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-general of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. As the use of the word "may" in s 10(1) and 11(2) makes clear, the Commissioner has a discretion whether or not to issue a licence.
3. Neither party referred the tribunal to any prior case dealing with refusal of a silencer permit, as opposed to licence revocation for unlawful possession of a silencer. This therefore appears to be a case of first impression.
4. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3, which declares that prohibited weapons possession and use is "a privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the respondent the power to refuse to issue a permit in circumstances where he is not satisfied that the applicant has been able to (in this case) "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".
5. Silencers are listed in schedule 1 of the WP Act under the heading "Miscellaneous articles", rather than under "Miscellaneous weapons" or some other heading. But the fact that a silencer on its own is not in itself a weapon is of no legal consequence, as the WP Act treats such items in the same way in all respects as the weapons and other articles listed in schedule 1 (French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221, [44] - [45]).
6. In this case the Commissioner does not suggest that the applicant is not a fit and proper person who can be trusted to have possession of a silencer within the meaning of s 10(2). Aged 66 years, he has held a New South Wales firearms licence for at least 26 years, and was previously licensed in the Australian Capital Territory. He had firearms training and experience while in army national service. At no time in his entire shooting career has he ever been charged or cautioned in relation to any firearms or related offence, or any other offence. He has passed all safe storage audits.
7. The respondent has also specifically stated that the application raises no issue of public safety.
8. Nor does the respondent suggest that issuing a permit would be contrary to the public interest within the meaning of s 10(4). D/Sgt Snow's evidence does not state or imply that the applicant's possession, storage and use of a silencer would create a risk that criminal elements might obtain possession of it, or indeed that criminals were actually using silencers in the commission of crime. Similarly, in French an expert police witness did not appear to know of any instances in which silencers had actually been used for criminal purposes (at [42]). Again, the MacCarthy report notes that in the United States, where silencers are freely available (subject to a tax), or the United Kingdom, where they may be obtained with little difficulty subject to certain restrictions, the use of silencers in crime has in practice been negligible. A criminological study of their use by criminals concluded that "Silencers probably are more threatening to their victims on a psychological level when used in crimes such as armed robbery" (at [28] - [29]).
9. The rarity of their use in crime may owe a good deal to the fact that, contrarily to what might be called their "Hollywood" depiction, silencers do not eliminate, or substantially eliminate, the sound of a firearm, as the respondent's own review decision points out. MacCarthy reports (see paragraph 36 above) a maximum reduction in sound level from the shooter's position using a hunting rifle, when expressed as a percentage, of 13.75 percent, or 12.16 percent from the side. D/Sgt Snow estimates a 25 to 30 dB sound reduction but without indicating the unmoderated base from which he calculates it. Assuming that he proceeds, like MacCarthy, from a base of 160 dB from the shooter's position or 148 dB from the side (a rather bold assumption), that would represent a maximum reduction of 18.75 percent from the shooter's position or 20.27 percent from the side.
10. Thus the controversy in this case revolves around whether the applicant is able to satisfy the s 11 requirements of his reason for obtaining a silencer, which is "business/employment purposes". To do so he must "demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use the prohibited weapon".
11. The applicant's case relates to his two properties, totalling 1414 ha, adjoining Kosciusko National Park, where he runs some 200 sheep producing high-grade Merino wool. That relatively low stocking rate is due to predation on his stock by wild dogs, pigs and occasionally foxes, which also prevents him from breeding his own stock because lambs are much more vulnerable to attack. Pigs and wild horses cause extensive damage to fences and even gates. Whereas previously stock losses were seasonal in nature and in a good year might have totalled approximately 3 to 5 percent, they are now occurring year-round and at levels close to 25 to 30 percent. Injured stock require veterinary care and must often be destroyed. The result has been reduced quantity and quality of wool production, leading to significantly lower returns from the grazing business. Fences and gates damaged by wild horses allow other animals onto the properties as well as permitting his sheep to wander off into the park wilderness. Feral pigs and wild horses cause environmental damage and destruction of pasture over extensive areas, including soil erosion and the spread of weeds. Damaged land takes years to recover. His annual financial loss from these causes reaches $20,000 per season year, a rate liable to push his business as a primary producer into a loss situation.
12. The problem has been aggravating, especially in the last 4 to 5 years, with the number of feral dogs and pigs increasing each year. From being a seasonal matter some years ago, it has become a year-round plague. NPWS control and eradication efforts within the KNP have had little overall effect and cause many animals to be dispersed onto private land. Hazard reduction burning has the same effect. Baiting and poisoning produce inconsistent results and cause significant losses of native animals.
13. That is only a brief summary of the applicant's evidence about the depredations of feral animals onto his properties, but it is enough to show that the applicant as a grazier faces a serious and worsening problem that is not of his making and which, if it continues unchecked, could prove fatal to his business. It is important to note that the respondent does not dispute any of that evidence, apart from suggesting in cross-examination a more favourable estimate of the success of NPWS control efforts.
14. As a primary producer he is legally required to control feral animals. Last year he placed about 800 dog baits provided to him free of charge by the LLS, but the LLS now charges $1.50 per bait and those costs are likely to increase. Most poisoning is directed at pigs and dogs and uses 1080 poison, but it creates a serious risk of secondary poisoning to domestic and native animals well away from the baiting site. The humaneness and effectiveness of poisoned baits, which degrade rapidly over time, is much debated, as is the humaneness of trapping, which has a low success rate.
15. Shooting is by far the most effective method of controlling feral infestations, and he makes regular and extensive use of it. A common problem, however, is that after one shot is fired at a pig or dog, the remainder of the animals in that group immediately disperse in all directions, limiting the opportunity to eradicate more than one pest animal at a time. That limited opportunity to cull also has the disadvantage of educating the ferals about the presence of a motor vehicle or a person travelling on foot, making them more wary.
16. The diagram from the Lister article (exhibit A2, annexure I) showed how a silencer lowers and changes the noise signature of a firearm, such that observers downrange turn their attention 45 to 180° away from the shooter, with confusion over the location of the shooter over a 150° arc in front of the shooter. Professional shooters have frequently told Mr Allen that there is a much better chance of removing more than one pest animal at a time when a silencer is used. Other benefits include reducing stress among stock animals through gunfire noise and minimizing general environmental disturbance. While a silencer was not required in earlier times, the increased influx of feral animals has now made it necessary. He proposes to fit it to his bolt-action .308 Winchester calibre (effectively 7.62 X 51 NATO) rifle.
17. The applicant also relied on the MacCarthy report, which concluded that use of a silencer both reduces the tendency of vermin animals to flee at the sound of a gunshot and increases the accuracy of the first shot from a cold bore by restricting elliptical barrel whip, thereby increasing the likelihood of destroying more than one feral animal at a time.
18. The respondent's challenge to the applicant's case consisted in effect of three main propositions: 1. Use of a silencer on the .308 would not increase the effectiveness of culling feral animals by shooting; 2. Other options for controlling feral animals are available to the applicant; and, therefore, 3. Applying Osborne, the use of a silencer has not been shown to be necessary, i.e. essential, for the purposes of the applicant's business as a sheep grazier.
19. In relation to (1) the respondent criticized the use of the diagram from the Lister article in the applicant's affidavit as showing that silencer use could cause confusion about where a shot had originated, on the ground that it was based on recording the perceptions of humans. To apply it to the reactions of animals was "nonsense", Mr Mattson said.
20. Yet the respondent's own evidence draws the same parallel. D/Sgt Snow's comments state that "Firing .308 Winchester calibre firearms fitted with a silencer with the trajectory parallel to a large hard surface (such as a wall, building or even a dense stand of trees) would create reflections of the sound of a shot that may conceal the source of a shot. This is a common tactic used by various military forces throughout the world". The passage is clearly referring to the perceptions of humans.
21. D/Sgt Snow doubts that a silencer would improve the accuracy of a particular shooter, but acknowledges that it would confer some accuracy benefits by reducing recoil and consequent muzzle rise. He does not, however, refer to the reduction of elliptical barrel whip.
22. While D/Sgt Snow undoubtedly possesses advanced knowledge and experience in firearms operation, ballistics, firearms identification and crime investigation, he claims no particular expertise in relation to hunting or feral animal control. His comments on the applicant's affidavit are brief and of a general nature. That is not a criticism of him, as the email request for a statement from the Firearms Registry Case Management Unit (exhibit R2, annexure A) apologises for the "very short notice" and agrees that "the limited time-frame within which this request is being made, is unacceptable". His remarks are therefore inevitably somewhat laconic and impressionistic.
23. The MacCarthy report proposition that if moderated firearms are used, animals are more likely to remain in place, enabling any cold-bore misses to be rectified by subsequent shots (p 47), is based on observations of animal behaviour. As was explained above (paragraph 35), there is no good reason to reject the report's propositions on that point, or generally. In French it appeared that in New Zealand it is accepted that silencers make it possible to shoot vermin without disturbing nearby animals (at [37]). Apparently some New Zealand farmers will not allow shooting on their properties unless a suppressor is used (MacCarthy at p 64).
24. The respondent submitted that the two YouTube clips showing feral animals starting away when one of their number was shot with a moderated rifle led to the conclusion that a silencer was of no help in vermin control. When the clips were shown to Mr Allen in the witness box, he commented that the frame of the video was very narrow and, moreover, there was no way of knowing what hunting pressure the animals had been under. As the frame shown was no more than 3 or 4 metres wide, it was not possible to know how far they had moved away. The clips were not of great assistance.
25. Ms Walker's statement declared that NPWS had been issued with a permit for a .22 silencer for use in the KNP. Attached was the permit, authorizing six officers to use the silencer, and correspondence showing that the application had been made because rabbit populations were currently increasing around the Perisher Valley ski fields. Another had been issued in connection with the Northern Illawarra Wild Deer Management Program, and of course must have involved a weapon much more powerful than a .22. Neither the permit for that purpose nor any correspondence was attached. However, and it would appear that Ms Walker's evidence about it was in effect undocumented double hearsay. As such it cannot be accorded decisive weight.
26. On the other hand, persuasive evidence supporting the effectiveness of silencers for feral animal control emerges in the police Firearms Registry's own fact sheet on silencer permits (Version 1.3, October 2013, exhibit A2, annexure A): What genuine reason would apply to a permit for a silencer? A person who is authorised by a licence or permit to possess and use firearms and who can provide evidence that establishes that they require to possess and use the silencer for an occupational/business purpose such as the control of feral animals. The applicant must establish that there is a genuine requirement to muffle the noise of gunshots, either from a public safety perspective, a personal perspective or where the situation requires that other animals in the vicinity are not disturbed by the sound of gunshot. Who would be able to establish a genuine reason to possess and use a silencer? A person employed by a government agency, such as an employee of National Parks and Wildlife or the Livestock Health and Pressed Authority and who is required to control feral animals or vermin by use of a firearm, OR A person who is a licensed contract shooter and contracted to control feral animals or vermin on behalf of a government agency or on behalf of another person by use of a firearm, OR …. [Emphases in the original].
27. The respondent's Firearms Registry thus acknowledges that silencers have a role in feral animal control and specifically recognizes that there is a genuine requirement for silencer use "where the situation requires that other animals in the vicinity are not disturbed by the sound of gunshot". That evidence strongly corroborates the applicant's contentions and the findings of the MacCarthy report. To a similar effect is the letter from Mr Mark McGaw, team leader at LLS South East, based at Goulburn (exhibit A2, annexure H). Though criticized by Mr Mattson because it states only that a silencer "may be of use" and not that it is necessary or essential, the letter does make it clear that a silenced firearm can assist "where multiple targets are encountered and to humanely destroy the pest".
28. The respondent's proposition (2) is that the applicant has other options for controlling the feral animal and vermin problem, the first being the control activities of NPWS. Ms Walker's statement shows that the NPWS has undertaken feral deer control in the Illawarra region and silencer-suppressed rabbit shooting around the Perisher Valley resorts. Apart from that, however, the respondent adduces little evidence of the nature or extent of NPWS feral animal and vermin control activity.
29. The applicant's affidavit states that the Department of Primary Industry and LLS South East do not undertake any control work on private property. Previously, the Livestock Health and Pest Authority and the earlier Cooma Rural Lands Protection Board did employ trappers and undertook control work on Crown land, but since that land has become a national park they no longer do so. NPWS pest control and eradication within the KNP have had some success but produced little overall effect. Their activities cause many animals to be dispersed from the KNP onto private land, while NPWS hazard reduction burning and the use of machinery force feral animals to move out of the KNP and onto adjoining private land seeking food, and to avoid the noise and activity within the KNP. Baiting and poisoning can on occasion achieve some success, but the results are not consistent and significant losses of native animals result. Given the size and topography of the KNP, it is unlikely that the NPWS can wholly eradicate the feral animal pests living and finding refuge in the park but travelling outside it onto private land. Besides being a large area, about 700,000 ha, it adjoins large national parks in the Australian Capital Territory and Victoria.
30. The other options suggested by the respondent include encouraging shooting by neighbours or sporting shooters, but that could only be a partial remedy for a problem that requires 1 or 2 days of the applicant's work time per week, and up to 4 or 5 days. Presumably also, guest shooters would face the same problems of feral animals scattering after the first shot. Again, in current conditions contract shooters would need to be employed on an almost continuous basis, which would probably present unmanageable cost burdens for an operation running only some 200 Merinos. In addition, the above options encounter the objection that it is the applicant, as freehold owner, who has the strongest incentive to control the feral problem and thereby protect, or enhance, the capital value of his property. That is an everyday and common sense observation. It may be not be irrelevant to note, however, that the science of economics has long recognized that the environment is best protected where the land user has secure title to the land, whereas lessees, licensees and those with no proprietary interest may even have incentives in the opposite direction, to use up the property as quickly as possible while they can (see A Alchian, W Allen, Exchange and Production: Competition, Co-ordination and Control, Belmont, Cal. 1977, 427; E Furobotn, S Pejovich (eds), The Economics of Property Rights, Cambridge, Mass 1974, passim; G Liebecap, "Property Rights in Economic History: Implications for Research", 23 Explorations in Economic History 227 (1986).
31. As regards the other options advanced, baiting, poisoning and trapping, the respondent does not dispute the applicant's evidence that while those practices can have some success, they are unreliable, inhumane and potentially destructive of native animals, including the endangered quoll. It is acknowledged that shooting is the most effective and humane method of feral animal and vermin control.
32. The respondent's proposition (3) is that, assuming that either of propositions (1) or (2) is accepted, a silencer permit cannot be "necessary in the conduct of the applicant's business". Osborne, which binds the tribunal at first instance, had held that "necessary" means "essential or directly required". The respondent acknowledged that since Osborne was decided, the High Court and the Court of Criminal Appeal have given the word "necessary" a more flexible meaning, in Thomas v Mowbray [2007] HCA 33, [101] and Fairfax Digital Australia & NZ Pty Ltd v Ibrahim [2012] NSWCCA 125, [46], but argued that as those cases arose in different contexts, Osborne was still the applicable authority.
33. The Appeal Panel in Osborne held that the core features of the business of dealing in firearms did not require the applicant to keep a pistol and declined to take into account the particular features of the way in which the applicant conducted that business, namely as a travelling operation. Similarly, the core features of business as a primary producer did not require the use of a silencer.
34. The Appeal Panel began by noting that "Rather than breaking this test up into separate components, and examining the meaning of the key words "necessary" and "conduct" independently, our view is that provision should be read as a whole" (at [40]). The learned members then went on to say: The critical issue of interpretation is not, in our view, related to whether the use is "reasonably" necessary or "absolutely" necessary, but whether the reference to "the applicant's business" is to be construed as a reference to businesses of the kind conducted by the applicant….Our conclusion is that the question of what is "necessary" for the "conduct" of a "business" should be interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application. The business under examination is that of dealing in firearms…. None of these features in themselves suggest that it is necessary for the conduct of the trade that dealers carry live [sic] pistols…. The test should be read so as to focus on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes that business…. The way Mr Osborne has chosen to undertake his business involves him in travelling alone and carrying these dangerous goods to isolated locations. It is not essential to the process of dealing in firearms to do business in this way (at [44] - [49]).
35. Mr Osborne had thus chosen to do business in a way that exposed him to an increased risk of armed robbery and thereby gave rise to his perceived need to carry a handgun. His exposure to increased risk was the result of his own choice. He could have continued business of firearms dealing without operating a travelling basis.
36. The present case is quite different. As Mr Connor pointed out, Mr Allen did not choose to invite greater feral incursions and destruction. The threat had come to him. The fact that farmers and graziers in other parts of New South Wales might have no need for a silencer does not mean that it is not "necessary in the conduct of the applicant's business" for him to have one. His properties are immobile, and in that location the feral animal and vermin problem is so acute as to threaten the survival of his business and the conservation of the environment. As Osborne is thus plainly distinguishable, it is not necessary to decide what effect, if any, Thomas and Fairfax Digital have on the authority of Osborne.
37. Other methods of dealing with the feral and vermin problem on Mr Allen's property have failed to make a substantial difference or are inhumane, destructive to native animals or uneconomic. Shooting is the most efficient and humane method but comes with the problem of groups of ferals scattering at the sound of the first shot. Cogent evidence from more than one source shows that use of a silencer may mitigate that problem. That is in part a prediction rather than an established fact, but it is a rational prediction based on objective evidence. It could not reasonably be suggested that Mr Allen should have to wait until he is bankrupt and the environment is devastated before he can be taken to have demonstrated the necessity of moderating the sound of his rifle fire. Thus none of the respondent's three central propositions can be sustained.
38. Parliament has made it clear in s 3 that the objects of the Act are to ensure public safety and to administer strict controls on the possession of prohibited weapons for that purpose. The legislation must therefore be interpreted in that light. The plain meaning of the section is clear and there is no need to over-interpret it.
39. In this case it is common ground that Mr Allen is a fit and proper person to be entrusted with a prohibited weapon and that the issuance of a permit to him presents no risk whatever to public safety. Nor is it suggested that his possession and use of a silencer would be contrary to the public interest. The controversy centres solely on the necessity of his having one.
40. I find that the evidence establishes that possession and use of a silencer is necessary for the applicant's business as a sheep grazier in his area. He has satisfied the requirements in s 11 for demonstrating that he has a genuine need to possess and use a silencer. Order: The decision under review is set aside. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 27 October 2015