Shaun Bankowski is the holder of a Category ABDGH firearms licence. On 3 June 2019 Mr Bankowski applied to the Respondent for a permit to acquire a Six Corp Model KS-30 self-loading centre-fire rifle (KS-30), and on 30 July 2019, provided the Respondent with further information in support of his permit application. On 20 November 2019 his application was refused on the basis that the firearm in respect of which the permit was sought is a "prohibited firearm" within the meaning of item 5 of Schedule 1 to the Firearms Act 1996 (FA Act), and therefore not a firearm the Applicant is authorised to possess or use under the terms of his firearms licence. On 13 December 2019, Mr Bankowski sought review of the refusal decision.
The Respondent now seeks dismissal of the proceedings s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), asserting that the proceedings are misconceived as the Tribunal lacks jurisdiction to conduct administrative review of the decision. The issue therefore is whether the Tribunal has jurisdiction to conduct the administrative review Mr Bankowski seeks.
[2]
Legislative scheme
The jurisdiction of the Tribunal is not at large and is set out in s 28 of the NCAT Act. Section 28 provides that the Tribunal has "such jurisdiction and functions as may be conferred or imposed on it by under the Act or any other legislation." Relevantly, the Tribunal has administrative review jurisdiction over a decision of an administrator in the circumstances provided for by the Administrative Decisions Review Act 1997 (ADR Act): s. 30(1) NCAT Act. Section 9(1) of the ADR Act provides that administrative review jurisdiction is conferred under enabling legislation and s 4(1) defines "enabling legislation" as that which provides for applications to be made to the Tribunal with respect to a specified matter or class of matters. A decision over which the Tribunal has administrative review jurisdiction is an "administratively reviewable decision": s 7(1) ADR Act and s 30(3) NCAT Act. For the purposes of this matter the "enabling legislation" is the FA Act.
What decisions under the FA Act can the Tribunal review?
Section 75(1)(a) of the FA Act provides that a person may apply to the Tribunal for an administrative review under the ADR Act of a decision by the Respondent to refuse to issue a licence or permit. Importantly, decisions in relation to permits in respect of a prohibited firearm are specifically excluded by s 75(1)(a) from review by the Tribunal.
Section 8 of the FA Act prescribes the categories of licence that may be issued by the Respondent for the possession and use of firearms, one of which - a Category D licence - authorises the licence holder to possess or use, among other kinds of firearms, "self-loading centre-fire rifles". However, relevantly, any firearm referred to in item 5 of Schedule 1 of the FA Act (the Schedule) is excluded from the authority conferred by a Category D licence. Item 5 of the Schedule refers to "any self-loading centre-fire rifle of a kind that is designed or adapted for military purposes".
Section 28 of the FA Act confers a power on the Respondent to issue permits for various purposes, including for the purpose of authorising a person to acquire a firearm. Section 31(3)(a) of the FA Act provides that the Respondent must not issue a permit authorising a person to acquire a firearm unless the person is the holder of a licence or permit authorising the person to use or possess the firearm concerned.
The Respondent contended that the KS-30 is a "prohibited firearm" within the meaning of item 5 of the Schedule. It submitted that, consequently, the Tribunal has no jurisdiction to review the refusal decision as s 75(1)(a) of the FA Act provides that a person may not apply to the Tribunal for administrative review of a decision of the Respondent to refuse to issue a permit in respect of a prohibited firearm.
[3]
Evidence before the Tribunal
In support of the dismissal application, the Respondent relied on two reports of Detective Senior Sergeant Edward Schey (Detective Schey) dated 17 February 2020 and 17 June 2020, respectively. Detective Schey also gave evidence at the hearing. Detective Schey is the Coordinator of the Forensic Ballistics Investigation Section and the Weapons and Ordnance Disposal Unit, Forensic Evidence and Technical Services Command, New South Wales Police Force. In that capacity he advises the Firearms Registry.
Mr Bankowski provided comments in relation to Detective Schey's reports and engaged in spirited cross-examination of Detective Schey. (Detective Schey's evidence is discussed below.)
Mr Bankowski also relied on an email from an American collector of Chinese Commercial SKS rifles, Salvatore Mennella dated 11 April 2019. Mr Mennella wrote that the commercial models are firearms that were sold specifically for the civilian market. He noted that there are two types of commercial Chinese SKS weapons, some of which are old surplus military SKSs that have been refurbished and altered into different configurations, to make them more attractive for civilian export sales. The other type of commercial SKS, were brand new production firearms, made new specifically for the civilian export market, the first of which came out in 1988. Mr Mennella wrote that the KS-30 is a new production rifle, made in 1989 for the civilian export market. Major features of this model are that it takes removable AK-47 magazines, has a 16" barrel (vs 20" on a military SKS), and has no bayonet or bayonet lug. He said that the KS-30 is very rare in the US, because the KS-30 was specifically made to be exported to Australia.
Mr Bankowski also attempted to raise issues in relation to consistency within the firearms registry, indicating that he knew of people who, with the knowledge of the firearms registry, he said, possessed KS-30s. He also asserted that there were other weapons with similar characteristics that were not "prohibited firearms". He also contended that every centre-fire weapon originated as a military weapon. I reminded Mr Bankowski that, as disturbing as his contention might be, the present matter solely related to the Tribunal's jurisdiction in relation to the refusal of his permit in relation to the acquisition of a KS-30.
[4]
Consideration
The Tribunal's administrative review jurisdiction is dependent on the existence of enabling legislation that provides for applications to be made to the Tribunal for administrative review of decisions. Mr Bankowski seeks review of the decision to refuse his application for a permit to acquire a KS-30. Section 75(1)(a) of the FA Act however, provides that a person may apply to the Tribunal for administrative review of "the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person".
I agree with the Respondent's submission that a permit to acquire a prohibited firearm is plainly a permit "in respect of a prohibited firearm". The only question for the Tribunal at this stage, therefore, is whether the KS-30 is a "self-loading centre-fire rifle of a kind that is designed or adapted for military purposes" as specified in the Schedule. If so, the Tribunal has no jurisdiction to review the decision to refuse Mr Bankowski permission to acquire that weapon.
[5]
Is the KS-30 a "self-loading centre-fire rifle of a kind that is designed or adapted for military purposes"?
In addressing this question, the Respondent relied on Detective Schey's evidence. Detective Schey holds a Bachelor of Applied Science in Applied Chemistry and a Diploma in Policing. He has completed a Certificate IV course in Forensic Investigation facilitated by the New South Wales Police Force Forensic Evidence and Technical Services Command. He holds a Diploma of Public Safety in Forensic Investigations and has been accredited by the Australasian Forensic Field Sciences Accreditation Board under the auspices of the National Institute of Forensic Science as an expert in the science of forensic firearms examination. He is a Forensic Ballistics Investigator and has examined and tested thousands of firearms, weapons and ammunition components, firearm discharge residues and prohibited weapons. He has studied techniques in the field of firearms identification and the identification of ammunition components by comparative microscopy and has undertaken independent proficiency testing relating to the identification of firearms, ammunition components, tool marks via comparative microscopy and the examination of crime scenes involving firearms, weapons and ammunition components through the National Institute of Forensic Science (Australia) and Collaborative Testing Services (Virginia, USA). He has successfully completed courses conducted by a number of firearms manufacturers in relation to their firearms, and has undertaken various other courses in relation to firearms. All his duties are performed within a National Association of Testing Authorities Australia laboratory accredited under ISO 17025 and this laboratory. He personally holds or has held a firearms licences of a number of different categories.
Detective Schey explained that the KS-30 is a variant of the Chinese Type 56 self-loading carbine (Type 56), which itself is a direct copy of the Soviet model SKS-45 self-loading carbine (SKS). Each of these three firearms is a "self-loading, centre-fire rifle".
Mr Bankowski sought to draw a distinction between "civilian" and "military" SKS variants, contending, essentially, that the KS-30 is a "civilian" firearm, and therefore not a prohibited firearm.
Detective Schey's evidence was that the SKS was designed specifically for use by the Soviet Red Army, and remained the Red Army's frontline weapon until it was replaced by the AK-47. The SKS was manufactured in Russia, Albania, Peoples Republic of China, East Germany, North Korea, North Vietnam, Romania and Yugoslavia and was "widely distributed by the Soviet Union as military aid during the cold war": Kehaya, S & Poyer, J (2008), The SKS Carbine 4th Revised and Expanded Edition, Tustin, USA, North Cape Publications Inc. Detective Schey noted that the SKS was adopted as a military firearm in multiple countries.
Detective Schey said that the Type 56 is an exact copy of the SKS and is marketed by China North Industries Corporation (NORINCO). While current manufacture of the Type 56 is for commercial sales, within China's military it is used to arm reserve units and is also in limited military service in Albania and Southeast Asian nations including Cambodia.
Mr Bankowski observed, and Detective Schey agreed, that the KS-30 was manufactured in China and marketed specifically for commercial sale and not for use by military forces.
In relation to Mr Bankowski's contention that the KS-30 is a rare firearm imported into Australia in the late 1980's, and that its limited number is a good indication that the model was never meant for military service, Detective Schey agreed that the KS-30 was imported into Australia in the 1980's, but said it is not a "rare" firearm. The Forensic Ballistics Investigation Section has nine examples in its Firearm Reference Library (Firearms Library), and the Weapons and Ordnance Disposal Unit (which is under Detective Schey's command) disposes of KS-30 and Type 56s regularly.
Detective Schey conducted a comparison between a Type 56 and a KS-30 held the Firearms Library. He observed that there are some differences between the between the Type 56 and the KS-30, but apart from these differences, Detective Schey said, the Type 56 and the KS-30 are identical. In summary, he said the differences are:
Barrel length is 112mm shorter on KS-30
Cleaning rod is 111mm shorter on KS-30
No bayonet or lug on KS-30
No bayonet groove on timber buttstock of KS-30
His evidence was that the fact that the KS-30 has a shorter barrel, no bayonet and has a shorter cleaning rod does not detract from its functionality. He considered these variations to be of "degree", not "kind", and that the KS-30 is identical to the Type 56 in terms of its operation and functionality. Accordingly, in his view, for all practical purposes, the design of the KS-30 is a military design.
Mr Bankowski submitted that because the KS-30 does not have a bayonet lug or bayonet, that is a good indication that the firearm was never meant for military service. Detective Schey, however, said that the fact that the KS-30 is not fitted with a bayonet or bayonet lug does not impact on the weapon's functionality. He noted that most military firearms do not have a bayonet permanently fitted to them; many have the ability to have a bayonet fitted and have a bayonet lug either on, or close to, the muzzle. The bayonet itself is generally carried or worn by the soldier in a scabbard and fitted if required.
Mr Bankowski claimed that the Type 56 was originally made with a "stripper clip feed" cut out at the top of the bolt carrier. Detective Schey agreed that sometimes the Type 56 had a machined groove to hold cartridges to ease the filling of magazines for the military. He agreed that the KS-30 does not have that groove. Mr Bankowski claimed that absence of a groove indicated that the firearm was never meant for military service. Detective Schey said the appearance was very slightly changed by a groove, but there was no impact upon functionality.
Detective Schey also noted that the following parts are interchangeable between the Type 56 and the KS-30:
Detachable box magazine
Handguard and gas cylinder
Gas piston
Piston extension and return spring
Receiver
Bolt carrier
Bolt (including firing pin and other internal components)
Recoil spring and guide
Entire trigger group assembly
These parts cover the entire moving and fixed parts that are critical to the operation of the firearm, he said. In Detective Schey's view, the interchangeability of any and or all these parts and the common manufacture, clearly show that the KS-30 is "functionally identical" to the Type 56 as regards its operation and its ability to discharge ammunition.
Mr Bankowski speculated that other (non-prohibited) weapons may also have parts that are interchangeable with the Type 56/KS-30. Mr Bankowski also asserted that the Type 56 uses a 10 round magazine, whereas the KS-30 uses a 30 round magazine. Mr Bankowski added that some models of the Type 56 were converted to take a 30 round magazine. Detective Schey was asked to comment on any variations in magazine type and capacity pertaining to the SKS and Type 56, compared with the KS-30. The variations include a fixed box magazine of at least two capacities and detachable box magazines of a number of capacities. Differently configured magazines are not necessarily interchangeable.
Detective Schey considered that the ability to use a detachable 30-round magazine with the KS-30 does not detract from the KS-30 being a firearm "of a kind that is designed or adapted for military purposes". In any event, Detective Schey did not consider that magazine capability was determinative in that each of the weapons is designed the same, and their parts are generally interchangeable. The parts that are not necessarily interchangeable between models are the magazine, bayonet and cleaning rod. All other working components that the firearm needs to function are otherwise interchangeable. He explained that by "function", he meant the operation of the firearm and its ability to discharge ammunition.
Mr Bankowski provided a photograph of the actual KS-30 firearm he seeks to acquire (the Applicant's weapon), which looked somewhat different to the KS-30 depicted in other photographs Detective Schey had reproduced in his report dated 17 February 2020. Notably, it had a different buttstock and had been fitted with a telescopic riflescope and the timber surrounding the gas cylinder had been painted black. Detective Schey explained these differences in appearance. He observed that the buttstock fitted to the Applicant's weapon is of Australian manufacture and that the Firearms Library has such a buttstock fitted to a NORINCO SKS self-loading rifle. This buttstock is designed to be fitted to all types of SKS, Type 56 and KS-30 self-loading rifles irrespective of manufacturer, magazine capacity or type and bayonet type (or absence thereof). The buttstock modification did not alter his opinion that the KS-30 is a "self-loading centre-fire rifle of a kind that is designed or adapted for military purposes". Similarly, the fitting of a riflescope did not alter his view. Presumably, the painting of the timber surrounding the gas cylinder is cosmetic only.
Detective Schey said that the SKS/Type 56 self-loading carbines were designed and manufactured to perform military combat quickly, efficiently, reliably and were mass produced and exported all over the world. In summary, it was his opinion that the KS-30 falls within the "family" of SKS/Type 56 self-loading carbines that were designed for military purposes.
[6]
Conclusion
It follows that the Tribunal lacks jurisdiction to review the Respondent's decision to refuse Mr Bankowski's application for a permit to acquire a KS-30, because a decision to refuse a permit in respect of a prohibited firearm is expressly excluded as an "administratively reviewable decision" under s. 75(1)(a) of the FA Act. His application is therefore dismissed.
[7]
Order
The application for review is dismissed for lack of jurisdiction.
[8]
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: 08 July 2020
The Respondent submitted that, in light of the experience and specialised knowledge of Detective Schey, the Tribunal should accept his expert opinion that the KS-30 is a firearm of a kind designed for military purposes, and therefore one which falls within the terms of the Schedule, that is, it is a "prohibited firearm". I accept that Detective Schey is a senior police officer of some years' experience, especially in the field of forensic ballistics investigations and as the coordinator of the Forensic Ballistics Investigation Section of the NSW Police Force. I accept that he has numerous tertiary qualifications and is an accredited expert of the Australasian Forensic Science Assessment Body. I accept that Detective Schey has relevant expertise in relation to the KS-30.
Detective Schey's firm view was that KS-30 is a "self-loading centre-fire rifle of a kind that is designed or adapted for military purposes". Det Schey did not dispute that the KS-30 was manufactured in China for commercial sale and not for use by military forces. He was of the opinion, however, which I accept, that the KS-30 is functionally identical to the Type 56 in terms of its operation and ability to discharge ammunition; in his opinion, all of the moving and fixed parts that are critical to the operation of both the KS-30 and the Type 56 are interchangeable.
The Respondent was unable to assist as to any authority as to the meaning of "of a kind" in the context of the Schedule, or otherwise, and submitted that the term should be given its natural meaning. The Oxford Dictionary defines "kind" as: "a group of … things that are the same in some way; a particular variety or type." The definition is not altogether helpful, but it is not for the Tribunal to put a gloss on the provisions of the Schedule. I observe though that one of the objects of the FA Act is to prohibit the possession of all automatic and self-loading rifles except in special circumstances: s 3(2)(a) of the FA Act. Consequently, "of a kind" in this context should, in my view, be construed broadly. Detective Schey, while referring to the dictionary definition also described the KS-30 and the Type 56 as being in the same "group" or "class" of firearms belonging to a small subclass because of their origin.
There was no dispute that the KS-30 was manufactured for the civilian market. The Schedule, however, does not prescribe that the kind of firearm referred to there must be manufactured for military purposes. I agree with the Respondent's submission that "of a kind that is designed or adapted for military purposes" directs attention to the function and operation of the firearm, not to the purpose for which the specific firearm was manufactured, as the Applicant asserts. It is sufficient that the firearm be of a kind "designed" for military purposes to satisfy the description. The Type 56 has been, and still is, in use by military forces. It is a close or even exact copy of the SKS which has been in use by military forces. The KS-30 is the same weapon sold commercially with minor modifications. I do not consider that the modifications made to the Type 56 for the commercial market, that is, for the production of the KS-30, to amount to a different "design". In coming to this view I particularly took account of the evidence as to the weapon's functionality, the interchangeability of all critical parts with it military counterparts, its usual appearance and its heritage. Consequently, I find the KS-30 to be of a kind designed for military purposes. As a result, the KS-30 is a prohibited firearm pursuant to the Schedule.