Burton v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2018-10-22|Before: Dr J

REASONS FOR DECISION

The issue in these proceedings is whether the refusal of Mr Burton's application for a permit to use a silencer for recreational shooting is the correct and preferable decision. This turns upon the question of whether recreational shooting requires the possession or use of a silencer.
There is an issue as to whether this question is to be assessed having regard to Mr Burton's circumstances, or whether it is a purely objective question. My view is that it the statutory question does not involve consideration of an applicant's circumstances.
I have found that, irrespective of whether the question is considered on a subjective or an objective basis, recreational shooting does not require the possession or use of a silencer. Accordingly, I have affirmed the decision to refuse Mr Burton's application for a permit.

Background

Silencers are prohibited weapons: Weapons Prohibition Act 1998 (NSW), s 4(1) and Sch 1, item 4(3). It is an offence to possess or use a prohibited weapon unless authorised to do so by a permit: Weapons Prohibition Act, s 7(1).
The Commissioner of Police ("Commissioner") may not issue a prohibited weapons permit unless "the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon": Weapons Prohibition Act, s 11(1).

Does Mr Burton have a genuine reason for possessing or using a silencer?

Mr Burton identified a number of reasons why he needs to possess and use a suppressor for recreational or sporting purposes. Mr Burton shoots feral animals on his rural property. Mr Burton also suffers from tinnitus. He said a suppressor significantly reduced the muzzle blast from a rifle and would cause far less disturbance to his neighbours and their livestock; that it would reduce disturbance to surrounding game and farmers' stock; and that it would ensure that his hearing was not degraded further.
Section 11(2) of the Weapons Prohibition Act provides: (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.
The table following s 11(2) contains, amongst others, the following reason: 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.
The Tribunal must consider whether Mr Burton is able to produce evidence that he satisfies the requirements specified in respect of the reason of "recreational/sporting purposes," being that he must demonstrate that the shooting of animals (including pests) requires the possession or use of a silencer (Weapons Prohibition Act, s 11(2)(b)).

Proper construction of the requirement for reason of recreational/sporting activity

The case was conducted on the basis that Mr Burton's circumstances were relevant to the question of whether "the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought." I raised with the parties during the hearing whether this was correct.
The ordinary meaning of the text of the requirement for this reason in the table following s 11(2) of the Weapons Prohibition Act is that the possession or use of the prohibited weapon (here, a silencer) is required for the recreational or sporting activity, in a general sense. There is nothing in the text of that requirement which indicates that the test is whether the individual in question requires the prohibited weapon for the recreational or sporting activity. This may be contrasted with some of the other statutory reasons. For example, the reason of "business/employment purposes" has the requirement that "[t]he 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" (my emphasis). If the legislature had intended the provision to apply when the applicant required the prohibited weapon for the relevant activity, it would be expected that it would have used language referring to the applicant, such as that used for the reason of animal management ("is necessary in the conduct of the applicant's responsibilities…").
This issue of construction does not appear to have been the subject of submissions in previous Tribunal proceedings. I note that other members have considered an applicant's individual circumstances when determining whether this requirement has been met.
In Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29, the Tribunal stated that the applicant "must establish that [his hunting activities] require the use of a silencer" (at [67]). That would appear to be applying an objective test which does not have regard to the particular circumstances of the applicant. However, the Tribunal also considered whether the applicant needed to control feral animals (and so considered his circumstances). It reframed the question as being, "whether the Applicant is able to establish that the possession and use of a silencer is required for his hunting activities" (at [70]).
In Larsson v Commissioner of Police, NSW Police Force [2018] NSWCATAD 149 at [28] to [30], the Tribunal made the following comments (in the context of considering the reason of "recreational/sporting purposes"): 28 There has been some consideration by the Tribunal of whether, when determining if the possession or use of the prohibited weapon is necessary or required, the Tribunal should consider this subjectively (with reference to the applicant) or objectively (with reference to the applicant). 29 The relevant cases are Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148, Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29 and Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10. 30 From these cases I extrapolate that in making this determination, the Tribunal may take into account the applicant's particular circumstances, but this may not extend to allowing the applicant to rely on a desire to conduct the activity in a particular way that requires a silencer, or a personal preference for using a silencer (Osborne, at [48], Allen at [18]), Marando at [73)].
These remarks relate to the question of whether, in a range of different contexts, the requirement specified in respect of a reason should be considered with reference to the applicant. The remarks in Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 and Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148 were made in the context of the "business or employment" reason. The approach in Marando, which relates to the reason of recreational / sporting purposes, is discussed above. Larsson does not focus on the wording used in the requirement for this reason, which differs from that used in the requirement for the "business or employment" reason. The Tribunal in that case was making general remarks, which did not take into account the variation in language used between the requirements specified for different reasons.
In Burge v Commissioner of Police, NSW Police Force [2018] NSWCATAD 275, Mr Burge hunted on various rural properties to cull feral animals including deer and said he required a silencer to stop the deer shying away and so to more effectively cull them. Like Mr Burton, Mr Burge suffered from tinnitus and said that the use of a silencer would mitigate any further hearing loss.
The Tribunal considered "whether a silencer is necessary in the context of the core features of Mr Burge's recreational activity of hunting, not in the context of the way he chooses to conduct the business" (at [39]). This is, seemingly, to apply an objective or semi-objective test. However, the Tribunal did look at characteristics unique to Mr Burge, such as his tinnitus, and concluded that it was not satisfied that he needed a silencer for protection from hearing loss (at [47]). The Tribunal took into account evidence about the effect of using a silencer generally, but also looked at Mr Burge's particular circumstances.
An argument in favour of the view that the requirement specified in respect of the reason of recreational/sporting purposes has a subjective element, is that s 11(2)(b) refers to the applicant providing evidence "that he or she satisfies the requirements (if any) specified in respect of any such reason." The words "he or she satisfies" might suggest that the requirements in respect of each reason in the table are personal to the applicant, and that the requirement for the reason of "recreational/sporting purposes" should be interpreted accordingly.
On balance, however, I consider that the interpretation reflecting the ordinary meaning of the words in the requirement is to be preferred. That is, it is for the applicant to demonstrate that, generally speaking, "the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought." It is not a question of whether the particular applicant requires the weapon for the recreational or sporting activity because of circumstances peculiar to him or her. The words "he or she satisfies the requirements" in s 11(2)(b) do not necessitate the contrary interpretation; they may refer to the applicant producing evidence that the recreational or sporting activity in which he or she wishes to engage requires the possession or use of the relevant prohibited weapon. Thus, a person engaged in spear fishing might be able to establish that the activity requires the possession or use of a spear gun; or a person engaged in recreational crossbow shooting might be able to establish that the activity requires the possession or use of a cross bow (see Weapons Prohibition Act, Sch 1, cl 2, items 4 and 5).

Does recreational hunting require the possession or use of a silencer?

I am not satisfied that recreational hunting requires the possession or use of a silencer, applying my preferred (objective) construction of the requirement.
Mr Burton's evidence was that he had engaged in recreational hunting for over 30 years without using a silencer. This strongly suggests that a silencer is not required for recreational hunting. Mr Burton also accepted that he engaged in clay shooting without a silencer, because he was not permitted to use it. When clay shooting, he used ear plugs and ear muffs. He said that, when engaged in recreational hunting, he wore ear muffs, but that walking around all day in the heat with ear muffs was unpleasant. This points to the conclusion that recreational hunting does not require the possession or use of a silencer, albeit that this may be desirable from the point of view of the shooter's comfort.
Mr Burton submitted that fitting a suppressor to a firearm was the only way to effectively reduce the harmful sound pressure generated when a firearm is discharged. The evidence before the Tribunal, including that of Mr Burton, supports the proposition that a suppressor may reduce the noise generated by the muzzle blast, but not other noise such as sonic crack.
I accept Senior Sergeant Schey's expert evidence that, whilst a silencer (properly called a "suppressor"), can reduce the sound emanating from a firearm during discharge, the degree of reduction of noise is governed by many variables, including suppressor type and firearm type. An effective suppressor may reduce the need to wear ear-muffs when using a firearm (although this can depend upon the interaction of the variables). I also accept Senior Sergeant Schey's evidence that the risk of hearing loss in using a firearm can be managed in other ways, such as by wearing ear plugs and/or ear muffs. I do not accept Mr Burton's submission that a suppressor is the only way to effectively reduce harmful sound pressure upon discharge; Senior Sergeant Schey's contrary evidence on this point is consistent with that of the clinical audiologist, Benjamin Hoddinott, and there is little evidence in support of Mr Burton's view.
Mr Burton submitted that it is a "requirement" that, because the sound of shooting impacts on his neighbours, the noise associated with shooting be reduced to the greatest extent. I have considered the matter in more general terms, posing the question of whether the sport of recreational shooting requires the possession or use of a silencer due to the impact on people in the immediate environment.
The Appeal Panel in Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148 at [8] indicated that a non-technical word such as "necessary" in the Weapons Prohibition Act should be given its natural and ordinary meaning. The same is true of the word "requires" (see Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29 at [67] and Larsson v Commissioner of Police, NSW Police Force [2018] NSWCATAD 149 at [27]). The word includes the meanings "to have need of; need" and "to make necessary or indispensable" (Macquarie Dictionary). Like the word necessary, it can have shades of meaning (Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148 at [9], citing Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, Basten JA at [45]).
The recreational activity of shooting does not "require" the possession or use of a silencer due to its impact on nearby people; whilst a silencer might be desirable (from those people's point of view or from the point of view of a shooter not wishing to disturb them), this does not reach the degree of necessity which the word "requires" imports.
For the same reasons, I do not consider that recreational shooting requires the use or possession of a silencer to reduce disturbance of stock animals. Whilst stock may be disturbed by the noise of gunfire, as Mr Burton suggests, I accept Alexandar Krstic's evidence that the degree of disturbance varies according to a number of variables and many domestic livestock demonstrate little or no reaction to gunfire. Mr Krstic is a former detective senior sergeant with experience as a professional hunter and licensed wildlife controller, who is also a firearms consultant and a past member of the Victorian Hunting Advisory Committee. I also accept Mr Krstic's evidence that, for those animals which do react to gunfire, this reaction may occur even with the discharge of a suppressed weapon. There is no evidence of a technical or expert nature which satisfies me that a silencer is required so as to reduce disturbance to stock animals. Even if the evidence established that a silencer would generally reduce such disturbance, this does not mean that recreational shooting requires the use of a silencer.
Mr Burton made many submissions which went to the policy of including silencers on the list of prohibited weapons. He submitted that it was "difficult to include suppressors in" the list of prohibited weapons "because as a standalone item a suppressor is no more dangerous than a 205mm length of steel water pipe." He also contended that there was no empirical data which demonstrated that suppressors were used in crimes or that a firearm fitted with a suppressor and used for recreational or sporting purposes provided any type of threat to public safety. Further, he said that suppressors reduced noise pollution and reduced dangerous noise level exposure for shooters and others.
The Tribunal's role is not to consider whether Parliament should have designated silencers as prohibited weapons. It is to consider whether the Commissioner's refusal of Mr Burton's permit application is the correct and preferable decision (see Administrative Decisions Review Act, s 63(1)). This is1 to be determined by applying the relevant statutory provisions. In my view, Mr Burton's policy submissions are of little if any relevance to the application of these provisions.
Mr Burton sought to rely upon a report entitled An Investigation into the Use of Sound Moderators on Firearms for Game and Feral Management in New South Wales, by Martin MacCarthy, Martin O'Neill and Helen Cripps (2011, Game Council for NSW). This report supported Mr Burton's view about the lack of connection between silencers and criminal activity, and argued that "the benefits pertaining to moderator use by the civilian, hunting, law enforcement and military communities points to a need for a more informed debate on legislative change within NSW" (p iv). I upheld the Commissioner's objection to this report at the hearing and, for reasons given orally, did not admit it.
The evidence does not establish that recreational shooting requires the possession or use of a silencer, in an objective sense.

Does recreational shooting require the possession or use of a silencer, in Mr Burton's circumstances?

Whilst I have concluded that recreational hunting does not generally require the possession or use of a silencer, I have also considered an alternative question, being whether it requires the possession or use of a silencer, having regard to Mr Burton's particular circumstances. I have done this in case I am wrong about the construction of the requirement for the reason "recreational/sporting purposes" and that it has a subjective element. I now approach the requirement on the basis set out in Larsson at [30], by taking into account the applicant's particular circumstances, but not taking into account any desire of the applicant to conduct the activity of recreational shooting in a particular way that requires a silencer, or any personal preference for using a silencer.
There is nothing in Mr Burton's particular circumstances which would lead me to conclude that his recreational shooting requires the possession or use of a silencer, due to the impact of the noise on neighbours or stock animals.
The main issue relevant to Mr Burton's personal circumstances is that he suffers from tinnitus. This is confirmed by an audiology assessment report dated 27 April 2018 and signed by Josephine Reynolds, an audiologist. That report indicates that Mr Burton has "normal hearing in both ears except a mild/moderate loss at 16kHz" and recommends, as treatment for his tinnitus, self-management. The report states: "Mr Burton has been working with firearms both professionally and recreationally and always wears hearing protection. He also reported bilaterally tinnitus which is likely due to history of noise exposure (ie: firearms). He noticed the tinnitus worsen in the recreational shooting where a suppressor was not used in the firearm despite having adequate hearing protection. As such, measure [sic] such as firearm suppressor (on top of adequate hearing protection) can be effective to further minimise loud noise exposure and help prevent his tinnitus from worsening."
Benjamin Hoddinott, a clinical audiologist with a Masters in Audiology Studies from the University of Queensland, gave evidence that suppressors can reduce the noise generated by the release of expanding gases from the chamber of a firearm by 3.5dB to 32dB. His opinion was that, insofar as a suppressor was effective to attenuate the peak intensity of a gunshot, it would reduce the risk of hearing damage to the shooter.
Mr Hoddinott also gave evidence that academic studies showed that attenuation values for earplugs, earmuffs and a combination of the two, for exposure to high peak noise levels, was up to 180dB. He said that, in the best case scenario, where firearm gunfire was measured at 132dB and a single gunshot was fired, there would be no need for hearing protection, or a suppressor. However, in an extreme case scenario, with a gunfire level of 171.5 dB, even the best suppressor would not provide adequate protection for auditory damage. He said properly fitted hearing protection would be required in order to reduce the peak output level to below the safe exposure limit, being 140dB. During cross examination, Mr Hoddinott agreed that, if a gunshot measured 160dB, it would be possible for the noise to be reduced to a safe level (below 140dB) for the shooter by use of a silencer.
I accept Mr Hoddinott's evidence.
I am not satisfied that recreational shooting requires the use of a silencer, in Mr Burton's circumstances, due to his tinnitus. Mr Burton's evidence was that he only shoots recreationally once or twice a year. It would be unlikely (although possible) that much damage would be done on such limited occasions. Further, as discussed above, and consistently with Mr Hoddinott's evidence, wearing ear muffs and/or ear plugs significantly reduces noise levels and helps to protect against hearing loss. Mr Burton's preference for not using ear muffs is not a matter which I am entitled to consider on the Larsson approach, as this is not relevant to what the recreational activity "requires." Mr Burton's own audiologist recommends the use of a suppressor "on top of adequate hearing protection." Mr Burton's evidence was that he did not wish to wear ear muffs and wanted to use a suppressor instead. This does not accord with the recommendations in his audiologist's report.
I note that Mr Burton's audiologist stated that his "tinnitus is likely due to history of noise exposure (ie. firearms)." This appears within a passage which clearly repeats information coming from Mr Burton. The audiologist, Ms Reynolds, was not made available for cross examination and Mr Burton did not provide the Tribunal with her curriculum vitae or details of her qualifications or experience. I am not prepared to accept, on the basis of this report, that Mr Burton's tinnitus was caused by the use of firearms. Even if it was, I do not consider that his recreational shooting requires the use of a silencer, given that there are effective alternative forms of hearing protection available to Mr Burton. This conclusion is consistent with that reached by the Tribunal in similar circumstance in Larsson at [55].

Correct and preferable decision

For these reasons, I do not consider that Mr Burton has discharged the evidentiary burden of demonstrating that the recreational or sporting activity concerned (that is, recreational shooting) requires the possession or use of a silencer, on either construction of the requirement.
He therefore does not have a "genuine reason" for possessing or using a silencer, within s 11(1) of the Weapons Prohibition Act, because he does not satisfy s 11(2)(b). In these circumstances, the Commissioner (and the Tribunal, standing in the Commissioner's shoes) is subject to the prohibition in s 11(2) upon issuing the applicant with a prohibited weapon permit.
It follows that the correct and preferable decision is to refuse Mr Burton's application for a permit.

Orders

I make the following order: 1. The respondent's decision to refuse to issue a prohibited weapon permit to the applicant is affirmed.

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: 11 January 2019

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