Andrew Burke (the applicant) holds a firearms licence under the Firearms Act 1996 (NSW) (Firearms Act) authorising him, among things, to possess and use a firearm for the purpose of vertebrate pest animal control. The applicant's work includes harvesting kangaroos. For this purpose, the applicant also holds a professional kangaroo harvester licence under the Biodiversity Conservation Act 2016 (NSW).
The applicant applied to the Commissioner of Police (the respondent) for a permit under the Weapons Prohibition Act 1998 (NSW) (WP Act) to authorise him to possess and use a silencer (the silencer permit application). The respondent refused to issue the permit.
The application before the Tribunal is an application under s 35 of the WP Act for an administrative review by the Tribunal of the respondent's decision to refuse to issue the permit. The applicant says the possession and use of a silencer is necessary in the conduct of his business.
A silencer is a prohibited weapon under the WP Act. The WP Act provides that the respondent "must not" issue a permit authorising the use or possession of a prohibited weapon unless the applicant has, in the opinion of the respondent, a genuine reason for possessing or using the weapon. One of the genuine reasons recognised by the WP Act is where the applicant can demonstrate that the possession or use of the prohibited weapon is necessary in the conduct of the applicant's business or employment.
I am satisfied the possession and use of a silencer would provide a practical benefit to the applicant in doing his vertebrate pest animal control work. However, I am not satisfied that the possession or use of a silencer is necessary in the conduct of the applicant's business in the sense required by the WP Act.
As a result, I have decided that the WP Act requires the Tribunal to affirm the respondent's decision to refuse to issue the applicant with a silencer permit because the applicant had not demonstrated the genuine reason on which he relies. These are my reasons for affirming the respondent's decision.
[3]
Legislative scheme regulating prohibited weapons
The principles and objects underlying the legislative scheme regulating prohibited weapons are stated in s 3 of the WP Act in the following terms:
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.
The provisions of an Act such as the WP Act should be interpreted in way that would promote the purposes or objects underlying the Act (whether or not the purposes or objects are expressly stated in the Act) rather than in a way that would not promote those purposes or objects: Interpretation Act 1987 (NSW) (Interpretation Act), s 33. As s 3(1) of the WP Act makes clear, the possession and use of a prohibited weapon is a privilege and not a right. In addition, the subsection states that strict controls are imposed on possession and use aimed at improving public safety. Consequently, the requirement for a genuine reason under the WP Act should be read and applied having regard to this context.
The WP Act defines "prohibited weapon" to mean anything described in Schedule 1 to the Act: WP Act, s 4 (1) (definition of "prohibited weapon"). Schedule 1, cl 4(3) lists as a prohibited weapon "[s]ilencers or any other device designed for attachment to a firearm for the purpose of muffling, reducing or stopping the noise created by firing the firearm".
Section 7(1) of the WP Act makes it a criminal offence for a person to possess or use a prohibited weapon unless the person is authorised to do so by a permit. It is a serious offence with a maximum penalty of imprisonment for 14 years.
The scheme for applying for and issuing permits is set out in Pt 2, Div 2 of the WP Act. Section 10(1) provides that the respondent may, after considering an application for a permit, issue a permit to the applicant or refuse to issue a permit to the applicant. Section 10(2)-(4) set out certain grounds that either require or allow the respondent to refuse to issue a permit. However, those grounds are not relied on by the respondent in support of the refusal to issue a silencer permit to the applicant.
Instead, the respondent relied on s 11 of the WP Act to refuse to issue a silencer permit to the applicant. The relevant provisions of s 11 are as follows:
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: 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.
…
I will refer to the genuine reason set out above as "the business/employment genuine reason".
The following matters should be noted about the operation of s 11.
Firstly, s 11(1) does not provide the respondent with a discretion to refuse to issue a permit. Rather, it imposes a duty on the respondent to refuse to issue a permit unless the applicant has, in the opinion of the respondent, a genuine reason for possessing or using the prohibited weapon for which the permit is sought. In other words, the respondent must refuse to issue a permit if the respondent does not consider that the applicant has a genuine reason.
Secondly, s 11(2) lists in a table several reasons that the respondent can use as the basis to be satisfied that an applicant has a genuine reason. However, the subsection is not intended to be an exhaustive list of genuine reasons as indicated by the introductory words to the subsection.
Thirdly, if a genuine reason listed in the table is relied on by an applicant, s 11(2)(b) makes it clear that the respondent may only be satisfied that the applicant has the genuine reason if the applicant is able to produce evidence to the respondent that the applicant satisfies the requirements (if any) specified for the reason. The paragraph expressly places an evidential or practical burden on the applicant to provide evidence in support of the reason: Commissioner of Police, NSW Police Force v Allen (Allen) [2016] NSWCATAP 148 at [22].
Fourthly, the applicant relied in the silencer permit application on the business/employment genuine reason. The applicant confirmed at the hearing this was the only genuine reason on which he relied. The reason expressly provides that "[t]he applicant must demonstrate" the stated requirements for the reason. Again, this suggests the applicant has the evidential or practical burden to provide evidence to show the requirements for the reason have been met. Whether the business/employment genuine reason has been demonstrated by the applicant will be considered below.
[4]
Background
The applicant has held a firearms licence under the Firearms Act since April 2011.
The applicant made an application to the respondent on 2 November 2023 for a permit under the WP Act to authorise the applicant to possess and use a silencer. At the time of the application, the applicant's firearms licence authorised the applicant to possess or use a firearm for the genuine reasons of sport/target shooting and recreational hunting/vermin control. However, the licence did not authorise the applicant to possess or use a firearm for the genuine reason of vertebrate pest animal control.
In his silencer permit application, the applicant stated that he was a professional wild game harvester who was engaged in shooting on several properties in his local area and its surrounds. The application indicated that the genuine reason on which the applicant relied was the business/employment genuine reason.
On 28 November 2023, a delegate of the respondent made the decision to refuse to issue the applicant with a permit for a silencer (the original refusal decision). The respondent has power to delegate to relevant persons the function of making decisions concerning the issuing of permits: WP Act, s 41. If the function to make the decision is duly exercised by the respondent's delegate, it is taken in law to have been exercised by the respondent: Interpretation Act, s 49(6). Accordingly, the refusal of the delegate can be treated as being the refusal of the respondent.
The reason given for the original refusal decision was that the applicant had not demonstrated that the silencer was required for vermin control on rural land or necessary for the genuine reason for which the applicant's firearms licence was issued. The refusal notice stated that "[w]hilst a silencer may be desirable this does not reach the degree of necessity which the word 'requires' implies".
The applicant then made an application to the respondent on 29 December 2023 for an internal review of the original refusal decision. The respondent accepted the application even though it was made more than 28 days after the original refusal decision. Ordinarily an internal review application must be made within the period of 28 days after the decision concerned, but the administrator may allow the application to be made after the the period ends: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 53(2)(d).
After the original refusal decision was made, the applicant applied to the respondent for the genuine reason of vertebrate pest animal control - contract shooter to be added to his firearms licence. The reason for the application was that the applicant became aware that his firearms licence did not appear to authorise him to carry out the business on which he relied to make his silencer permit application. The applicant acknowledges this oversight, which he says arose because he did not realise his licence was insufficient to cover the work he was doing. In any event, the additional genuine reason appears to have been added by the respondent before the internal review application was determined.
During January and February 2024, the respondent invited the applicant to make further submissions concerning his application. There were also telephone discussions with the applicant about what the WP Act required for a permit to be issued.
In the statement of reasons for the internal review dated 14 March 2024, the internal reviewer affirmed the original refusal decision because the reviewer was not satisfied that the applicant had sufficiently demonstrated that a silencer was a necessary requirement in the conduct of the applicant's recreational activities or for business/employment purposes.
[5]
Jurisdiction of the Tribunal
The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) or any other legislation: NCAT Act, s 28(1). Its jurisdiction includes administrative review jurisdiction: NCAT Act, s 28(2). The Tribunal has administrative review jurisdiction if enabling legislation enables a person to make an application to the Tribunal for an administrative review under the ADR Act of a decision of an administrator: ADT Act, s 9: NCAT Act, s 30(1).
Section 35(1) of the WP Act confers administrative review jurisdiction on the Tribunal over certain decisions of the respondent under the Act. For present purposes, it provides that a person may apply to the Tribunal for an administrative review under the ADR Act of the refusal or failure by the respondent to issue a permit to the person. Also, s 55(3) of the ADR Act generally requires an application for an internal review of decision to be duly made, and for the internal review to be finalised, before an application for an administrative review of the decision can be made to the Tribunal.
As mentioned above, the respondent decided to refuse to issue a silencer permit to the applicant and the respondent's decision was affirmed by an internal review made on the application of the applicant. Accordingly, I am satisfied that the Tribunal has jurisdiction to deal with the application before the Tribunal.
[6]
Role of Tribunal on an administrative review
In determining an administrative review application, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the decision-maker: ADR Act, s 63(2). In making the determination, the Tribunal effectively stands in the shoes of the decision-maker who made the decision under review: NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181 at [86].
Section 63(3) of the ADR Act provides that the Tribunal may determine an administrative review application by affirming or varying the decision under review, by setting the decision aside and making a decision in substitution or by setting the decision aside and remitting it to the administrator for reconsideration.
The Tribunal is not bound by the rules of evidence when it conducts an administrative review: NCAT Act, s 38(2). However, as the Appeal Panel noted in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [81]−[83]:
"54 Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on 'logically probative material', and not on 'mere suspicion or speculation', as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ('Pochi') at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ('Sullivan') at [5]−[8], [15]−[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.
……
81 Section 140 of the Evidence Act [1995 (NSW)], which sets out the standard of proof in civil cases to which that Act applies, is for Tribunal guidance only, and ordinarily a party seeking administrative review of government action is not required to establish its case on the balance of probabilities: Bronze Wing Ammunition v SafeWork NSW (No 2) [2016] NSWSC 988 at [76]-[77]; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127].
82 Rather, in an administrative review case, the parties put on such evidence as they wish and, in a matter of this kind involving the exercise of a discretion, it is a matter for the Tribunal to properly consider all relevant materials and ignore all irrelevant matters in exercising the power of the relevant administrator in review proceedings. This is especially the case where a decision has been taken on a discretionary basis in light of the public interest.
83 Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on 'logically probative material': Pochi at 62, 68; Sullivan at [5]−[8], [15]−[17]."
The Tribunal, when dealing with an administrative review application, is required to consider the matter afresh, with neither party bearing an onus of proof except for a practical onus on the party who asserts a fact to prove its existence: Collins v Department of Fair Trading [2019] NSWCATAP 199 at [47]. Also, as mentioned above, for present purposes the WP Act expressly places an evidential or practical burden on the applicant to produce evidence to support the business/employment genuine reason.
[7]
Material considered by the Tribunal
In addition to the application forms, I have considered the material in the following documents lodged with or provided to the Tribunal by the parties:
1. The document marked for identification as A1 that was lodged by the applicant headed "Evidence and Submissions by Andrew Burke" and dated 2 July 2024 (Applicant's original evidence and submissions).
2. The document lodged by the respondent headed "Respondent's Submissions" and dated 25 July 2024 (Respondent's written submissions).
3. The document marked for identification as R1 that was lodged by the respondent headed "Affidavit of Edward Ernest Schey affirmed on 24 July 2024" (Schey affidavit).
4. The document marked for identification as R2 headed "Brief of s 58 documents", which also forms Annexure B to the Schey affidavit, that was lodged by the respondent under s 58 of the ADR Act (Section 58 documents).
5. The document marked for identification as A2 that was lodged by the applicant headed "Evidence and Submissions in Reply by Andrew Burke" and dated 14 August 2024 (Applicant's reply evidence and submissions).
6. A photocopy of the applicant's professional kangaroo harvester identification card marked for identification as A3 that was handed up by the applicant at the hearing.
The parties did not object to me considering any of the material contained in these documents, although submissions were made concerning what weight (if any) I should give to some of the material.
[8]
Material relied on by applicant
The applicant relies on excerpts from his bank statements indicating payments from Campaspe Meat Company to show that the applicant derives income from commercial transactions for vertebrate pest animal control work, including kangaroo harvesting: Applicant's reply evidence and submissions, Annexure 1. He also relies on commercial tag advices for tags issued by the Department of Climate Change, Energy, Environment and Water and record sheets prepared in connection with his kangaroo harvesting work: Section 58 documents, pp 85-87. Additionally, the applicant points to his current ABN registration as a sole trader: Section 58 documents, p 72.
The applicant relies on the following documents in support of his contention that a silencer is necessary in the conduct of his business as a contractor for vertebrate pest animal control:
1. a letter from Michael Murphy (the Murphy letter): Section 58 documents, p 78;
2. a letter from Brent Twaddle (the Twaddle letter): Section 58 documents, p 79;
3. a letter from Matthew Bailey (the Bailey letter): Section 58 documents, p 80;
4. a letter from Brian and Julie Evans (the Evans letter): Applicant's original evidence and submissions, Annexure 3.
The applicant also relies on certain technical reports, published material and an expert witness report to show the use of a silencer "is 'likely to result in an increased number of shooting opportunities due to reduced noise level disturbance to animals' and will improve my ability to cull higher numbers of vertebrate pests more effectively": Applicant's reply evidence and submissions at [10], Annexures 3−5.
In particular, the applicant relies on an expert witness report by Mr Daniel Shaw (the Shaw report) dated 13 August 2024: Applicant's reply evidence and submissions, Annexure 5. Mr Shaw holds various qualifications concerning vertebrate pest animal control. Mr Shaw has government experience in the area and has held offices with various professional organisations with an interest in vertebrate pest animal control. Mr Shaw is also the managing director of a company that manufactures "suppressors" and provides services including professional ground and aerial shooting of vertebrate pest animals.
I note that the terms "silencer" and "suppressor" are often used interchangeably in this area, although it appears that the term "suppressor" is the technically correct term because these kinds of devices do not eliminate all noise made by a firearm. Even so, the term used in the WP Act is "silencer" and permits are issued under the Act using that term. Nevertheless, I will use the term silencer/suppressor in these reasons where appropriate.
The Shaw report says it is for "an upcoming matter of Mr Butler to be heard by the NSW Civil Administrative Appeals Tribunal". At the hearing, Ms Tipene, who appeared for the respondent, questioned whether the report related to the applicant. The applicant indicated that Mr Roy Butler, who is a member of the Legislative Assembly of the NSW Parliament, commissioned the report on behalf of the applicant. Ms Tipene accepted this explanation and did not object to me considering the report.
The respondent did not seek to cross-examine Mr Shaw on the contents of his report.
The applicant also relied on the following documents (Applicant general silencer/suppressor documentation) that deal in general terms, rather than specifically with the applicant's work, with the efficacy of silencers/suppressors:
1. National Parks and Wildlife Service - Silencers presentation, prepared by the NPWS Pest and Weed Team, which outlines the use of silencers/suppressors by the Service: Applicant's reply evidence and submissions, Annexure 4;
2. Elizabeth Brueck, "Assessment of firearm moderators (short report) HSL/2004/01", http://artikel.jagd-mitschalldaempfer,de/HSE Assessment of firearm moderators.pdf;
3. Pasi Hakkonen, "Firearm Suppressors - Structures and Alternative Materials", Master of Science Thesis, 3 November 2010, https://core.ac.uk/download/pdf/196553835.pdf.
The respondent did not object to me considering this documentation.
[9]
Material relied on by respondent
The Schey affidavit was affirmed by Acting Inspector Schey. He is an Acting Inspector of Police and a Manager at the NSW Police Force Firearms Registry. His substantive position is as a Senior Sergeant of Police and the coordinator of the Ballistics Investigation Section, Forensic Evidence & Technical Services Command in the NSW Police Force. He holds various qualifications relating to the use of firearms and ballistics.
The applicant did not seek to cross-examine Mr Schey on the contents of his affidavit.
[10]
Submissions of the parties
The applicant submits that the Murphy, Bailey and Evans letters confirm that he is required to use a silencer/suppressor to carry out shooting work on the properties of the letter writers. He also submits the Twaddle letter confirms that Mr Twaddle, who is a professional contract shooter, needs the applicant to use silencers/suppressors to be engaged as a subcontractor to shoot on the Cadia Mine site. The applicant submits these letters show he has a genuine reason for a silencer permit because he has demonstrated that the possession and use of a silencer/suppressor is necessary in the conduct of his business. In addition, the applicant submits that he is conducting a legitimate business from which he derives income.
The respondent submits that the applicant has not provided sufficient evidence to show that he has derived income as a result of carrying on a business in relation to his contract shooter activities. Even if the applicant is carrying on such a business, the respondent submits the business does not necessitate the use of a silencer/suppressor. The use of a silencer/suppressor merely facilitates noise reduction of the applicant's contract shooting activities and improves his ability to cull higher numbers of vertebrate pest animals more effectively. However, this does not make a silencer/suppressor "necessary" for the purposes of the business/employment genuine reason.
[11]
Consideration
As mentioned above, the role of the Tribunal is to determine what the correct and preferable decision is concerning whether to issue a silencer permit to the applicant. For this purpose, the Tribunal may have regard to whatever material is currently before it even though the material may not have been before the respondent originally. In making its determination, the Tribunal may exercise all the functions that the respondent has in relation to the silencer permit application.
The central issue in the application before the Tribunal is whether the applicant has a genuine reason to possess or use a silencer/suppressor because the applicant can "demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use [a silencer]": WP Act, s 11, table, item headed "Reason: business/employment purposes".
It follows that for the applicant to succeed, I must be satisfied that the applicant has demonstrated both of the following:
1. that the applicant is conducting a business;
2. that it is "necessary" in the conduct of the applicant's business to possess or use a silencer/suppressor.
I will deal with each of these issues in turn because the second issue only arises if the applicant is conducting a business.
[12]
Is the applicant conducting a business?
The term "business" used in the business/employment genuine reason is not defined in the WP Act. In my view, it should be given its ordinary meaning because there is nothing in the context in which it is used to suggest differently.
As Mason J observed in Hope v Bathurst City Council (1980) 144 CLR 1 at 8−9, the term, when used in is ordinary or popular sense, denotes "activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis". Consequently, a person will not ordinarily be treated as conducting a business if they carry out one-time activities on a sporadic basis. Also, the work done by an employee for an employer will not ordinarily be regarded as the conduct of a business by the employee. The text of the genuine reason supports the exclusion of work by employees from the concept of conducting a business because it refers both to "the conduct of the applicant's business or employment" (emphasis added).
With this ordinary meaning in mind, I am satisfied based on the following evidence that the applicant is conducting a business whose core features include work as a professional contractor engaged in vertebrate pest animal control:
1. The Murphy letter states that the applicant "currently works on my property to undertake pest control/ wild game harvesting". Mr Murphy describes the applicant as a "professional harvester" who has worked for him for several years.
2. The Evans letter states that the applicant "has been a big part of our feral animal control program, for some years now, on our farming enterprise" and "his work in pest control is extremely important to the viability of our farm".
3. The Twaddle letter states that the applicant "is one of my part time shooters and he is also a Professional Roo Shooter" engaged to do work for Mr Twaddle at the Cadia Gold Mine near Orange. Mr Twaddle say he is the professional contract shooter for the mine who hires other shooters from time to time to assist in eradication work.
4. The respondent agreed to add the genuine reason of vertebrate pest animal control - contract shooter to the applicant's firearms licence. The genuine reason headed "Reason: vertebrate pest animal control" in the table in s 12 of the Firearms Act requires an applicant to show that the applicant is "a professional contract shooter engaged or employed in controlling vertebrate pest animals on rural land". The addition of the genuine reason suggests that the respondent was satisfied that the applicant was, or at least was intending to become, a professional contract shooter.
5. The applicant has produced evidence that he has been registered for an ABN (Australian Business Number) since 14 July 2023 under the entity type "Individual/Sole Trader". A person is entitled to have an ABN if the person is carrying on or starting an enterprise in Australia: A New Tax System (Australian Business Number) Act 1999 (Cth), s 8(1). An enterprise includes an activity, or series of activities, done in the form of a business: A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 9.20.
6. The applicant holds a current licence under the Biodiversity Conservation Act 2016 (NSW) to engage in professional kangaroo harvesting, as evidenced by the copy of his professional kangaroo harvester identification card produced to the Tribunal at the hearing.
7. The applicant has produced several completed Letters of Authority/ Permission to Shoot forms and landholder consent forms authorising the applicant to do pest animal eradication work: Section 58 documents at pp 81-84.
At the hearing, Ms Tipene submitted for the respondent that the applicant has not provided evidence of contracts with clients. In a sense, this is true. There was no direct evidence provided of written contracts. Contracts may be verbal as well as written, with arrangements for carrying out work sometimes made on an informal basis. It seems to me that the Murphy, Evans and Twaddle letters clearly show that the applicant was doing professional shooter work for the letter writers. Given it is professional shooter work, the obvious inference is the work was being done for payment. This inference is supported by the bank statements provided by the applicant evidencing payments from the Campaspe Meat Company.
It is therefore my view that the applicant has demonstrated he is conducting a business whose central features include work as a professional contractor engaged in vertebrate pest animal control.
[13]
Is it "necessary" in the conduct of the applicant's business to possess or use a silencer?
I must now determine whether the possession or use of a silencer/suppressor is "necessary" in the conduct of the applicant's business.
[14]
Case law
The respondent's submissions referred the Tribunal to several decisions of the Tribunal and the former Administrative Decisions Tribunal (ADT) concerning the meaning of "necessary" in the business/employment genuine reason in the WP Act and in its counterpart in s 12 of the Firearms Act. It is useful to begin by summarising these decisions and their reasoning.
In Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10 (Osborne), an Appeal Panel of the ADT considered the counterpart in the Firearms Act to the business/employment genuine reason in the WP Act.
Mr Osborne was a travelling firearms dealer. He applied for a licence to carry a pistol to deter criminals from stealing his firearms. He argued that possessing a pistol was necessary in the conduct of his business. The Appeal Panel held that the critical issue was not whether "necessary" meant "reasonably" or "absolutely" necessary; it was whether it was necessary for Mr Osbourne to carry a pistol when he personally chose to travel alone carrying firearms in isolated locations: Osborne at [44]. The Appeal Panel decided it was not necessary because Mr Osborne could have conducted his business to avoid exposing himself to a high risk of robbery. In the Appeal's view, the possession of the pistol "was not directly required of the business": Osborne at [46]. Also, "[i]t [was] not essential to the process of dealing in firearms to do business in this way": Osborne at [49].
In Allen, an Appeal Panel of this Tribunal considered the meaning of "necessary" in the business/employment genuine reason in the WP Act. Mr Allen had applied for a silencer permit under the WP Act. He was a sheep grazier who used a firearm to shoot pest animals on his rural land. The Tribunal at first instance held that Mr Allen had demonstrated the possession and use of a silencer was necessary in the conduct of his business. The Appeal Panel dismissed the respondent's appeal.
In dismissing the appeal, the Appeal held:
1. The word "necessary" is an ordinary, non-technical, term and should be given its plain and ordinary meaning unless the contrary is shown: at [7]-[8].
2. The Appeal Panel in Osborne was not using the words "directly required" or "essential" to suggest that the word "necessary" had a fixed meaning in the context of s 11(1) of the WP Act. Rather, the Appeal focused on the way the business was conducted and held that the firearm must be necessary in the context of the core features of the business, not in the context of the way a person chooses to conduct the business: at [16].
3. One of the core features of Mr Allen's business was that he needed to control feral animals. Mr Allen was not conducting his business in a particular manner that made it more or less necessary to use a silencer. The business features, including the location of his property and the extent of infestation of feral animals, were factors beyond his control. The facts in Osborne could be distinguished on that basis: at [17].
4. The reasoning in Osborne did not preclude the Tribunal from taking into account Mr Allen's particular circumstances. This is because the reasoning in Osborne distinguished between the manner in which a person conducts their business and the way other businesses of that kind are conducted: at [18].
The respondent also referred to the following passage in Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29 (Marando) at [68] in which Allen was distinguished:
"In my view, the circumstances outlined in Allen are quite different to those in this matter and do not assist the Applicant. One of the core features of Mr Allen's business is that he needs to control feral animals. In contrast, the Applicant does not own the properties where he shoots and therefore does not have the same obligations and needs to control feral animals. It is possible that the owners of the properties could establish the need for the possession and use of a silencer; however the Applicant merely has a desire to help the owners control feral animals."
In is important to note that the genuine reason considered in Marando was not the business/employment genuine reason. Rather, the passage was directed to whether the applicant in those proceedings could demonstrate the genuine reason mentioned in the table to s 11 of the WP Act "that the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought that". As the Tribunal noted in Marando at [70] "[u]ltimately, the issue in this case is whether the Applicant is able to establish that the possession and use of a silencer is required for his hunting activities".
Nevertheless, the approach taken in Marando was followed by the Tribunal in Henney v Commissioner of Police, NSW Police Force [2018] NSWCATAD 174 (Henney). That case involved an application for a silencer permit where the applicant relied on the business/employment genuine reason. The Tribunal affirmed the decision of the respondent to refuse to issue the permit. In relation to Marando, the Tribunal held at [50]:
"Mr Marando applied for permission to use a silencer for the culling of feral animals and vermin on his property to avoid damage to his fruit and vegetables and loss of lifestock. The words "vermin control" do not appear in s 11 of the Act. It is of little consequence that Mr Marando elected "recreational/sporting purposes" as genuine reasons as opposed to "business/employment purposes". The test remains essentially the same. The current Applicant must demonstrate that it is necessary in the conduct of his business (emphasis added) to possess or use the prohibited weapon for which the permit is sought."
The Tribunal in Henney decided that the applicant could not rely on the business/employment genuine reason because the Tribunal was not satisfied Mr Henney was conducting a business: Henney at [51]. In addition, the Tribunal held at [52]:
"If I have erred, and the evidence is capable of establishing that the Applicant is carrying on a business, I am not satisfied that the Applicant has established that it is "necessary in the conduct of the Applicant's business to possess or use the prohibited weapon for which the permit is sought". I am not satisfied on balance, that the evidence is capable of establishing that the use of a suppressor silencer effectively minimises animal harm, or significantly increases the ability to control vermin."
Coincidentally, in coming to this conclusion, the Tribunal preferred evidence given in an affidavit by Mr Schey to the effect that the use of a silencer/suppressor would not reduce disturbance to stock because subsonic ammunition cannot eliminate flight noise, or the noise created by the mechanical action of the firearm or the sound of the bullet hitting the target: at [56].
The case that is perhaps most closely analogous to the application before the Tribunal is Formosa v Commissioner of Police, NSW Police Force [2024] NSWCATAD 132 (Formosa).
The applicant in Formosa also relied on the business/employment genuine reason in circumstances where the applicant held a firearms licence under the Firearms Act for the genuine reason of vertebrate pest animal control - contract shooter. Mr Schey also provided evidence for the respondent. A significant difference between the current application before the Tribunal and the application before the Tribunal in Formosa is that the applicant in Formosa was proposing to establish his business, with evidence produced from a potential client called Pentarch Forestry (Pentarch). Pentarch sought to impose a contractual requirement on the applicant to use a silencer when conducting pest animal control on its property.
Relevantly, the Tribunal held at [27]−[32]:
"27 While Senior Sergeant Schey's evidence was to the effect that using the Applicant's firearms with silencers fitted will not remove the noise impacts on the target species and the surrounding environment, this is largely irrelevant to the contractual arrangements Pentarch seeks to impose on the Applicant.
28 In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, Basten JA said 'The meaning of 'necessary' 'depends on the context in which it is used'. Ultimately, the Applicant must establish that possession and use of a silencer is necessary in the conduct of his business: Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 at [42]. It is for the Tribunal to focus on the way the business is conducted and that the firearm must be necessary in the context of the core features of the business, not in the context of the way a person chooses to conduct the business: per Allen at [16].
29 I accept that for the reasons he set out in his application the Applicant may find it beneficial to use a silencer. The Applicant's evidence that he may be able to more effectively shoot vermin with the use of a silencer does not, however, demonstrate that it is "necessary" in the conduct of his business to possess a silencer: per Henney at [37].
30 Further, it is clear that the Applicant has carried out these activities, albeit on a volunteer or virtually volunteer basis for some years without the assistance of a silencer.
31 One potential client, Pentarch, has indicated that once the Applicant had "all his insurances and a suppressor permit" the company could commence his employment. Firstly, it is unclear if the Applicant in fact has in place "all his insurances", but I accept this impediment to his employment can readily be overcome if the Applicant takes appropriate steps to arrange them. Mr La Spina specifically wrote, and I accept, that a silencer permit is required for the Applicant to be engaged by Pentarch. That the benefits of the use of a silencer may be dubious having regard to Senior Sergeant Shey's evidence, I accept that it is a condition of the Applicant's engagement that he have a permit for a silencer. While not all the work he may be required to undertake for Pentarch may require the use of a silencer, it is the fact that his contract is likely to require it, is what is relevant.
32 That does not mean though that the only work the Applicant could do in his business requires a silencer. 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 wrote of the prohibited weapon as needing to be 'directly required' in the business. 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 his business: per Marando at [53]. I agree with the submission of the Respondent that the fact that one client requests or even demands use of a silencer is not determinative of whether a silencer is necessary for the Applicant's role in the business of vermin control. The Applicant has the evidential burden to provide evidence on that issue and, in my view, he has not satisfied that burden."
[15]
Dictionary meaning
Before determining what the correct and preferable decision is having regard to the WP Act, case law and the evidence, I note that the respondent also pointed to the definition of the term "necessary" in the Macquarie Dictionary. It defines the term as:
adjective 1. That cannot be dispensed with: a necessary law.
2. happening or existing by necessity.
3. acting or proceeding from compulsion or necessity; not free; involuntary: a necessary agent.
Care needs to be taken in using dictionaries to provide meanings for words used in a statute. As Justice Leeming noted in South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [79]:
"A dictionary will give a range of meanings of a word. The task of a court is to identify, from text, context and purpose, the particular meaning that a statutory provision bears. The function of a dictionary and the function performed by a court construing a statute are utterly different. It must be borne in mind that the meaning of any word used in a statute depends on the context and purpose of the legislation in which it appears".
The context in which "necessary" is used in the business/employment genuine reason, along with the purposes for which the WP Act was enacted, remain the surest guides to the meaning of the term. I approach the determination of the correct and preferable decision with this in mind.
[16]
The correct and preferable decision.
As mentioned above, a central purpose of the WP Act is to impose strict controls on the possession and use of prohibited weapons aimed at improving public safety. The expression "necessary in the conduct of the applicant's business" in the business/employment genuine reason should therefore be read strictly. In my view, the expression requires an applicant to demonstrate that the possession or use of the prohibited weapon concerned is essential, indispensable, imperative or directly required to the conduct of the applicant's business: Formosa at [32]. This would be demonstrated, for example, if the evidence showed that an applicant's business could not be conducted on a viable basis without possessing or using the weapon.
The use of the possessive case in the business/employment genuine reason (that is, "the applicant's business") is also significant when deciding whether the reason is demonstrated. It suggests that the question of necessity is directed to the applicant's actual business rather than to a generalised, abstract notion of a comparable business. The Appeal Panel in Allen recognised this when it held that Osborne did not preclude the Tribunal from taking into account Mr Allen's particular circumstances: Allen at [18]. The Appeal Panel also indicated that the focus of the inquiry should be the core features of the business: Allen at [16]. However, the possession or use of a prohibited weapon will not be necessary in the conduct of the applicant's business if the applicant merely chooses to conduct the business by possessing or using the weapon if it is possible for the business to be conducted on a viable basis without possessing or using the weapon: Allen at [16]; Formosa at [28].
[17]
Expert evidence
Both the applicant and respondent have provided evidence to the Tribunal concerning the efficacy of using a silencer/suppressor for the purposes of pest animal control.
The Shaw report, which was relied on by the applicant, states the following:
1. Silencers/suppressors are largely viewed as being an essential or more directly a mandatory workplace requirement for commercial shooters undertaking vertebrate pest control and harvesting: at [10].
2. The use of silencers/suppressors protects against hearing loss, which is a real risk with this kind of work and a workplace health and safety issue: [12]−[15].
3. A silencer/suppressor will lead to greater pest control and harvest outcomes because "it will remove all or almost all the muzzle blast which significantly decreases the directional orientation for the target species to identify where the shot has come from and significantly reduces the fear and flight response of the animal or group of animals being targeted": at [16].
4. A silencer/suppressor will also "reduce the risk of adverse effects to domestic animals and livestock through unnecessary sudden and loud noise which causes fear, flight, and other adverse outcomes": at [19].
5. The use a silencer/suppressor on a .17 HMR calibre rifle usings standard factory ammunition is beneficial: at [23]−[24]. The use of a firearm suppressor on a .22 Rimfire calibre rifle using standard factory ammunition is considered essential across the commercial shooting industry: at [25]. (I note that the applicant is registered to use firearms with these calibres).
6. Although a suppressor does not make a firearm totally silent, it reduces the sound pressure wave. This mitigates the adverse impacts and associated risks to the shooter and persons in the proximity. It also provides for productivity gains in managing invasive species and harvest-based control work using firearms: at [31].
The Applicant general silencer/suppressor documentation also supports the view that the use of a silencer/suppressor can be beneficial for hunting work.
The Schey affidavit, which was relied on by the respondent, states the following:
1. A silencer/suppressor is a device that is specifically designed to reduce the noise associated with the discharge of a firearm. However, the more technically correct terminology is suppressor. A silencer/suppressor does not silence a firearm, it only suppresses, muffles or reduces the noise created during discharge of the firearm: at [9].
2. The noise made by a firearm can be broken down into the following elements: (a) the pressure wave; (b) the supersonic crack; (c) the flight noise; (d) the mechanical action of a firearm; and (e) the sound of the discharged bullet hitting an object: at [15].
3. Although in some cases a silencer/suppressor can reduce the sound emanating from a firearm during discharge, the degree of reduction of noise from the discharge of a firearm is governed by many variables: at [17]−[18].
4. A silencer/suppressor can have an impact on the accuracy of a firearm: at [19]−[21].
5. The use of a silencer/suppressor would not solve the issues raised by the applicant concerning the impact of the noise of his firearms on the families of property owners and their stock in the paddocks or the applicant's ability to cull higher numbers of wild game. The use of a silencer/suppressor would reduce but not eliminate the noise made by the rifles used by the applicant because the sonic or supersonic velocity of the bullets fired by them: at [22]−[25].
6. The letters relied on by the applicant do not, in the opinion of Mr Schey provide evidence that the use of a silencer/suppressor is necessary: at [26]−[31].
7. A more suitable solution to the eradication of multiple targets in a short period of time is to obtain a Category D licence and purchase a self-loading firearm. This would enable the applicant to discharge many shots in rapid succession without manually reloading between shots as he would need to do with the firearms he currently owns: at [32].
8. The strict regulation of silencers/suppressions is important feature of the WP Act. However, Mr Schey was unable to point to any specific statistics about the extent to which they are used in criminal activity: at [33]−[39].
As mentioned above, neither party sought to cross-examine the witness of the other.
Both Mr Shaw and Mr Schey agree that the use of a silencer/suppressor would likely reduce, but not entirely eliminate, the noises involved in shooting the firearms that the applicant is registered to use. However, they disagree on the extent to which the use of a silencer/suppressor would be essential or at least beneficial for the conduct of the applicant's shooting work.
Ultimately, I do not consider the evidence of Mr Shaw or Mr Schey to be decisive. This is because their evidence does not, of itself, provide a conclusive answer to the central question in the application before the Tribunal, namely, whether the possession or use of a silencer/suppressor is necessary for the applicant to conduct his actual business. In my view, the letters relied on by the applicant, and what they say is required from the applicant by his clients, provide a firmer foundation for answering that question.
[18]
Letters produced by the applicant
The Murphy letter states that "[a]fter discussing with [Mr Burke], we determined that it is necessary for him to have a suppressor to be able to efficiently complete his work". The letter is signed "Michael Murphy".
The use of "we" is ambiguous. One interpretation is that the need for a silencer/suppressor was agreed between Mr Murphy and the applicant. The other interpretation is that the operators of the Murphy farm agreed between themselves that it was necessary. The applicant submits that "we" refers to a decision made by Mr Murphy in consultation with his wife and father, who are partners in the farm: Applicant's reply evidence and submissions at [8]. The applicant has provided a printout of an ABN registration to support his submission that the farm is a family partnership: Applicant's reply evidence and submissions, Annexure 2.
However, the suggested necessity for a silencer/suppressor for work on the Murphy farm loses some of its force having regard to what it is stated later:
"Currently, the use of a traditional, non-supressed firearm, reduces the ability to effectively cull feral animals, as one shot will send large numbers back into the safety of the National Park. I would expect that a firearm suppressor will reduce the number of visits Andrew requires to undertake to our property, allowing larger numbers to be killed in one visit, while still ensuring sustainability and animal welfare targets are met."
I note the use of "I would expect" rather than "we would expect" suggests that Mr Murphy alone was expressing the views contained in the letter. Also, there is no suggestion in the letter that Mr Murphy would not continue to use the applicant's services if he could not use a silencer/suppressor. Indeed, the documentation before me includes a Letter of Authority/Permission to Shoot for the purposes of Recreational Hunting/Vermin Control signed by Mr Murphy dated 19 December 2023: Section 68 documents, p 82.
The Twaddle letter states the following:
"I need [Mr Burke] to be set-up with suppressors on his rifles for two reasons. 1/ We need 10 be able to eradicate as many given animals as possible without chasing them away and 2/ we also need to keep the noise down so the workers at the mine don't panic, go on strike and shut the mine down.
I have suppressors on my rifes and they work so well. E.G. recently I was on a job and came across a mob of six roos. I was able to eradicate all six because of the suppressor. Where before without a suppressor, I would only shoot one.
[Mr Burke] Is a registered professional Roo Shooter. For this he only requires a Category A & B licence. Working for me he only requires his A & B licence but he does require suppressors. He does not require his Professional Contract Shooters licence and the use of semi auto firearms at this point (he may apply tor that in the future). I feel he would be best to have the opportunity to have a permit for FOUR suppressors to have them set-up, sighted in and left on the required rifles."
The tenor of the Twaddle letter suggests that the applicant would not be engaged as a subcontractor unless he had the ability to use silencers/suppressors. However, the letter uses the present tense to indicate the applicant "is one of my part time shooters". This suggests the applicant has been doing work at the mine even without a silencer/suppressor.
The Bailey letter is largely an expression of an opinion about the benefits of using silencers/suppressors. It states:
"In my option [sic] especially in the last few years feral animals are getting wiser smarter and more crafty to avoiding detection and with the use of thermal imaging and using a suppressor enables [the applicant] to offer a whole integrated management strategy which enables his operation to become more efficient, less impact on the environment complete works in a more timely manner with minimal to no impact around sensitive stock such as horses and cattle without spooking which then causes other issues of broken fences, and introducing parasites to neighbouring stock.
With more and more 'lifestyle blocks and absentee landholders 'it' also allows to still operate this essential service but also reduces any impacts on neighbouring families as any noise will be minimal and would not be herd which benefits everyone in the surrounding areas including complaints."
In the Evans letter, the writers state:
"We wish to bring to your attention the necessity for [Mr Burke] to have access to a suppressor for controlling feral animals on farming land. When someone is shooting a mob of animals, without the suppressor they can only have one shot before the mob takes off because of the shot noise.
To be able to provide effective pest control it is a mandatory requirement that when [Mr Burke] (or anyone else) is shooting on our property they have a suppressor fitted. Without a suppressor, it only allows tor the disposal of one animal and the rest leave to come back later. Use of a suppressor also places less stress on our farmed animals as the loud shot noises most definitely do have a detrimental effect on cattle and sheep."
The Evans letter is, on its face, emphatic in its assertion that the use of a silencer/suppressor is a "mandatory requirement" for all shooters on the Evans property. However, the documentation before me also includes a Letter of Authority/Permission to Shoot for the purposes of Recreational Hunting/Vermin Control signed by Mr Evans dated 19 December 2023: Section 68 documents, p 81. This suggests the applicant has not been precluded from doing work on the Evans property even though he is currently unable to use a silencer/suppressor.
[19]
Conclusion
Based on the evidence currently before me, I cannot be comfortably satisfied that the possession or use of a silencer/suppressor is necessary in the conduct of the applicant's business as a professional contract shooter of vertebrate pest animals. The evidence suggests that the applicant is continuing to conduct his business even though he is currently unable to use a silencer/suppressor.
I am satisfied that the use of a silencer/suppressor would provide a practical benefit to the applicant by enabling him to conduct his professional shooter work efficiently and that some of his clients would like him to use a silencer/suppressor. However, this does not meet the strict test of necessity required by the WP Act. My decision would have been different if the applicant had produced unequivocal evidence that he could not get sufficient work to conduct a viable professional shooter business in his locality because he was unable to use a silencer/suppressor.
Consequently, I have decided that the correct and preferable decision is to refuse to issue the applicant with a permit under the WP Act to possess or use a silencer.
[20]
Conclusion and order
As I have decided that the correct and preferable decision is to refuse to issue the applicant with a silencer permit, the appropriate order for the Tribunal to make is to affirm the decision of the respondent to refuse to issue the permit.
Accordingly, the order of the Tribunal is that the decision of the Commissioner of Police to refuse to issue the applicant with a silencer permit under the Weapons Prohibition Act 1998 (NSW) is affirmed.
[21]
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: 03 September 2024