Martin v Commissioner of Police, New South Wales Police Force

Applicable law

1. Clause 34(3) to (6) of the Firearms Regulation 2006 provides as follows: 3) In accordance with section 20 (a) of the Act, a firearms collector licence is subject to the condition that any prohibited firearm (being a rifle to which a category D licence applies) that is part of the collection must be rendered permanently incapable of being fired in the following manner: (a) a bore diameter mild steel rod must be inserted into the barrel of the firearm extending for the full length of the barrel, (b) the steel rod must be fully welded to: (i) the muzzle and finished flush, and (ii) the chamber of the firearm (if applicable), (c) the barrel must be welded to the receiver to prevent the barrel from being removed, (d) the firing pin must be removed and the firing pin hole welded closed, (e) any internal springs or components that can be removed without detracting from the external appearance of the firearm must be removed, (f) any trigger of the firearm must be welded in a fixed position to prevent the trigger from working, (g) the internal components of the firearm must (if possible) be welded to prevent the firearm from working, (h) any bolts and external hammers must be welded in a fixed position, (i) any other mechanism or action in respect of the firearm must be welded in a closed position to prevent the firearm from working. (4) In accordance with section 20 (a) of the Act, a firearms collector licence is subject to the condition that any prohibited firearm (being a shotgun to which a category D licence applies) that is part of the collection must be rendered permanently incapable of being fired in the following manner: (a) a bore diameter mild steel rod must be inserted into the barrel of the firearm for a distance of 5 cm, (b) the steel rod must be welded flush to the muzzle, (c) a 5 cm long steel plug must be inserted into the chamber and fully welded flush, (d) the barrel must be welded to the receiver to prevent the barrel from being removed. (5) Despite subclauses (3) and (4), any such prohibited firearm may be rendered permanently incapable of being fired by being sectionalised (that is, by milling away the external parts of the firearm to expose its internal mechanisms) in an approved manner. (6) For the purposes of subclauses (3) and (4), and in addition to the requirements of those subclauses: (a) any welding required to be done must: (i) be substantial and, wherever practicable, not be done by way of spot welding, and (ii) be done by way of gas metal arc, gas tungsten arc, manual arc electrode or gas fusion with steel wire, and (b) if a firearm has a component of a non-ferrous composition that cannot be satisfactorily welded but is required to be welded, that component may be glued and pinned to prevent it from working, and (c) the barrel of a firearm that is constructed of material unsuitable for welding may be plugged with a mild steel rod and welded by gas brazing or a similar method, and (d) any nipple of a firearm must be welded so that it is blocked.
2. Clause 68 of the Firearms Regulation 2006 provides as follows: 68 RSL display permit (cf 1997 cl 58) (1) The Commissioner may, on application by the secretary or other relevant office holder of: (a) the RSL, or (b) any club or association that is an affiliated member of the RSL or a member of the RSL and Services Clubs Association Limited, issue a permit (referred to as an RSL display permit) authorising the RSL, club or association to possess and display, on the premises or other location specified in the permit, a firearm or firearms of a kind that has or have been used as a weapon of war. (2) An RSL display permit is subject to the following conditions: (a) any prohibited firearm subject to the permit must be rendered permanently inoperable in the same manner as a prohibited firearm that is subject to a firearms collector licence, (b) any other firearm subject to the permit must be rendered temporarily inoperable by removing the bolt or firing mechanism and keeping it separate from the firearm in a locked container of an approved type, or by using a trigger lock of an approved type, (c) all firearms subject to the permit must be displayed subject to such conditions concerning the security of the firearms as may be imposed by the Commissioner. (3) In this clause: RSL means the Returned and Services League of Australia (New South Wales Branch).
3. Under the heading "General power to issue permits", s 28 relevantly states that "The Commissioner may issue permits for any one or more of the following purposes:….(g) to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate".
4. Also relevant to the applicant's submissions is the definition of "possession" in s 4 of the Act: "possession of a firearm includes any case in which a person knowingly: 1. has custody of the firearm, or 2. has the firearm in the custody of another person, or 3. has the firearm in or on any premises, place, vehicle, vessel or aircraft whether or not belonging to or occupied by the person".
5. Section 4A develops the concept of possession of a firearm further: 4A Meaning of "possession" of a firearm - proof of possession (1) Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that: (a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or (b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or (c) on the evidence before it, the person was not in possession of the firearm. (2) In this section, premises means any place, vehicle, vessel or aircraft.
6. The issues in this case were not stated explicitly, but would appear to be the following: 1. Do the requirements of cl 68 govern all and any displays held at an RSL club? 2. If No to (1), is the correct and preferable decision that permit No. 411520772 should be subject to a condition that prohibited firearms displayed pursuant to the permit be made permanently inoperable?

Respondent's evidence

1. The respondent presented his case first and called as a witness Senior Constable Wayne Jackson, who is responsible for firearms compliance coordination at the New South Wales Firearms Registry.
2. In examination-in-chief the witness adopted his statement dated 23 February 2017 (exhibit R3) and stated inter alia that all RSL clubs that have firearms as part of a commemorative display are required to have a "Commissioner's Permit" to authorize the activity. He outlined the requirements of cl 68 and the police fact sheet RSL and Museums Safe Storage, Premises and Display Firearms and Prohibited Weapons - Level 8. Its contents, briefly summarized, are as follows.
3. Before the Commissioner issues a permit, he must be satisfied that the premises are secure. They need to be a permanent structure, with secure locks on all openings. Security and storage of firearms within the structure of the premises must be assured, considering the nature of the activities, by means of a safe, strong room or other method. The structure must have solid walls providing a substantial barrier to forced entry. Windows should be covered by security screens. Any doors must be of solid material or be reinforced with steel. Deadlocks or hasp or barrel bolt and padlocks should be used. There must be a locked steel safe that cannot easily be penetrated.
4. An alarm system equalling the minimum standard of the firearm dealer's licence, level 7, must be in place. The displaying of firearms must meet the minimum standards in terms of the construction and security value. The security display cabinets must be bolted to the permanent structure, as outlined above. Display racks need to be of the standard that the Commissioner requires and must be mounted to brick, stone, or concrete, with masonry bolts of prescribed length and width.
5. The witness then stated that the minimum standards for building structure and display methods are designed to provide adequate external security protection of the firearms within the building that prevents persons from touching or removing them. They set a standard of external perimeter security, protecting the area in which the firearms are displayed. There is a second line of security, being the manner in which they are secured in a safe or in display cabinets that are fixed to the solid building. Those fixing points and manner of fixing are also regulated by the minimum standard set by the Commissioner, and are detailed in the fact sheet.
6. Those two layers of external and internal protection, coupled with the requirements of cl 34 of the Firearms Regulation 2006 are designed to provide some safety if the premises are breached and firearms are removed. A thief who breached the security barriers would only be stealing permanently inoperable firearms and would be unable to obtain spare parts from other firearms or by producing them, such as with a CNC [computer numerically -controlled] machine.
7. The witness thought that the manner in which the applicant was to display the firearms was in practical terms the same activity as that for which an RSL club or museum would be issued with a permit, but he would not be able to comply with the minimum standards of level 8 for an RSL club or museum as he would not have any external security or safe storage, nor would the internal display comply, as they could not be secured to a permanent structure. Consequently the final level of security, that the firearms have been made permanently inoperable, should be imposed, as it is already a requirement for every other RSL club and museum.
8. The permit application includes machineguns and other military weapons. Military firearms were used in the mass murders at Port Arthur, Strathfield, Queen Street and Hoddle Street between 1987 and 1996. The applicant has informed the Commissioner that he would have control and custody of the firearms and that they would be in display cases or racks or would be secured to tables and chairs with chains and ties (exhibit R1, p 8). Mr Martin has said that he believes the touching and holding of firearms under supervision is an acceptable form of display, but the only provisions permitting unlicensed persons to touch firearms are contained in s 6B of the Firearms Act. They can be handled only for official purposes of training for firearms safety or other club activities.
9. The witness understood that the applicant wished to use the firearms held on his Theatrical Armourer Dealer Licence for the intended displays. The weapons attached to that licence should already be converted so that they can fire only blank cartridges. Records held by the registry back to 2013 indicate that there are no permits issued to any theatrical production in which Mr Paul Martin was the nominated theatrical armourer. The witness had, however, only searched records of permits issued to production companies under cl 52, and was not saying that Mr Martin had not worked in theatrical productions using his own licence.
10. In cross-examination S/Cst Jackson said the law was clear, that RSL clubs had to satisfy levels 7 and 8 security. Theatrical weapons had to be modified to fire blanks only, as could be seen from the licence condition in the applicant's theatrical armourer dealer licence (exhibit R2, p 72). But they were not required to be permanently inoperable. Military firearms were defined in the schedule. Bolt action military rifles are category B, and are not necessarily prohibited.
11. The respondent also relied on the s 58 documents and other documentary evidence.

Applicant's evidence

1. The applicant on 20 December 2016 filed a document in the form of a detailed letter or submission, signed by his advocate Mr Cuddy and accompanied by attachments. It commenced with the words "I respectfully request that the following information be read into evidence" (exhibit A1). It is appropriate to treat it as a witness statement.
2. It states inter alia that for many years the applicant has enjoyed displaying firearms and other historical artefacts that he has collected over a lifetime, for the education and information of others. He has in more recent times been conducting displays in schools and for other community groups as Paul Martin's Australian Military History, which is also licensed as a firearms and also prohibited weapons theatrical armourer dealership. Displays are artistic and their educational value is often enhanced by the inclusion of theatre.
3. Although he had had some disagreement with the Firearms Registry in relation to his prohibited weapons licence in 2006 and 2007, the issue of displaying firearms had not previously been questioned, provided that it did not occur in schools. The tribunal had decided the prohibited weapons controversies in Mr Martin's favour.
4. In early 2015 the applicant was requested to conduct a Centenary of Anzac Day display on behalf of, and in cooperation with, Camden RSL Sub-Branch. On discussing the proposal with Mr Mark Burgess of the registry, he was informed that he now needed a permit to display firearms and prohibited weapons. The two permits were obtained for that event, which allowed the applicant to use his theatrical armourer firearms and some relevant firearms from other owners for the purposes of the display. Among the conditions imposed was a proviso that all firearms were to be rendered temporarily inoperable, except those that were category C or D prohibited firearms that formed part of a collection. Weapons in that category were required to be permanently inoperable in the manner described by cl 34 of the Firearms Regulation. A commemorative bound pictorial album of the display (part exhibit A2) was produced.
5. After that display, discussions with Mr Burgess established that the applicant's prohibited weapons collected display permit allowed him to continue displaying prohibited weapons, but a firearms display permit, available for a five-year period, was required. Mr Martin applied for such a permit on 18 August 2015 but, following the departure of Mr Burgess from the registry, further discussion and correspondence with registry personnel led to the permit not being issued until August 2016, with limits being placed on the organizations in which he could display, and a requirement that all prohibited firearms on display be rendered permanently inoperable. That was the subject of a request for an internal review in October 2016, which was rejected, and no internal review was conducted. An earlier request for an internal review had also been rejected as not meeting the requirements of s 75 of the Firearms Act relating to reviews by the tribunal.
6. The statement then deals with the registry's refusal to authorize a number of organizations at which the applicant had previously conducted displays. He conceded most of them in order to expedite the matter, but believes there is a legitimate demand for temporary displays at the request of RSL clubs for certain commemorations. The registry had refused this part of the application on the basis that cl 68 allows RSL clubs to make their own applications for permits to possess and display firearms. Clause 68 is not, however, limiting. It does not prevent or create any legal obstacle to RSL clubs being provided with temporary displays that include military firearms used in wars, firearms that the clubs do not possess but can be provided by the applicant.
7. The registry insists in condition 6 that all prohibited firearms displayed must be rendered permanently inoperable in the manner described in cl 34, parts 3 to 6. That particular clause, however, relates to category D prohibited firearms possessed by an authorized collector, pursuant to s 20 of the Act. The permit issued by Mr Burgess for the Camden event (part exhibit A1) made that clear (condition 3), as Mr Martin also used firearms belonging to other licensed persons.
8. The applicant's theatrical armourer dealer licence authorized him to possess all the firearm types in the prohibited firearms schedule, schedule 1 of the Firearms Act. Condition 6 was not necessary, the statement continues, nor is it applicable to the permit in question, which limits the firearms to be displayed to those registered to the applicant's theatrical armourer dealer licence. Permanently deactivating the prohibited weapons would drastically impair their value. The schedule of valuations obtained from authorized Victorian dealers (part exhibit A1) showed, for example, that a non-deactivated Owen gun was valued at $7000, while a deactivated example was worth only $4000.
9. As neither the applicant nor Mr Cuddy had lodged a sworn statement, they were not required for cross-examination. On the day of the hearing, Mr Martin was unable to give oral evidence as he had a broken tooth and had difficulty in speaking. As the applicant's case therefore included no sworn evidence, the respondent submitted that it could be given no weight at all. The tribunal can, however, receive unsworn evidence, subject to relevance and weight. Further, most of the facts of this case are not in dispute, the controversy concerning essentially a value judgment on risk and appropriate precautions. In addition, much of the applicant's case is corroborated by the documentary evidence, known facts and the tribunal's findings in previous matters between the same parties. The applicant's case must therefore be regarded as having substance.

Respondent's submissions

1. On behalf of the respondent Mr Zoppo made oral submissions in which he contended inter alia that while s 28 contained a general power for the Commissioner to issue permits, part 6 of the Firearms Regulation dealt with specific issues, such as heirlooms and paintball guns. One of those specific topics was cl 68, which applied to RSL displays. The applicant was seeking a permit to conduct displays at RSL clubs, but in such a case the decision-maker had to refer to the categories in part 6. Consequently, he had to comply with cl 68, and cl 68(2)(a) required that prohibited weapons be made permanently inoperable.
2. The permit issued to the applicant to conduct a display, including prohibited military weapons such as Maxim-type medium machine guns, at Camden Civic Centre (exhibit R2, p 67) related to different circumstances. It was not an RSL display, but a display presented by the local council in conjunction with the RSL. Permits issued for arms fairs under cl 65 were also distinguishable. S/Cst Jackson had explained that the conditions were different for fairs and similar occasions because of the substantial and detailed planning involved and the security arrangements in place.
3. The permit issued to the applicant on 8 November 2002 for the Canterbury Racecourse arms fair (see exhibit R2, p 33) expressly applied only to weapons and ammunition authorized by his firearms dealer licence 405030398, which did not cover prohibited firearms. The permit in issue in the present proceedings was very different from that applicable to an arms fair.
4. Some problems had arisen at the Canterbury fair, however. A police check showed that a number of dealers, including the applicant, had not secured their firearms in the prescribed manner, which required a chain or a multi-strand steel cable attachment. All dealers had rectified the situation once the matter had been drawn to their attention. Police interviewed the fair organizer, a Mr Burton, about that and other matters, and it appeared that he had failed to draw to the attention of dealers the need for a cable attachment, which was just a new requirement.
5. Mr Zoppo added that the respondent was not raising that incident as a contravention by the applicant, but as an illustration of the risks that could arise when depending on individuals. For that reason the weapons had to be made permanently inoperable. In order to reduce risk, prohibited weapons needed to be made permanently inoperable in case they were stolen.
6. The only evidence that the applicant had made use of his theatrical armourer dealer permit for theatrical purposes was exhibit A3. Consequently, it was difficult to know, even in light of his firearms possession list (exhibit R4), what effect permanent inoperability would have on the applicant's business.
7. While there was no evidence that any temporarily inoperable firearms had been used in terrorist attacks or for other criminal purposes, it had to be borne in mind that the mass murders that occurred between 1987 and 1996 took place under the old law, under which semi-automatic military weapons were not prohibited.
8. The applicant had argued that the possibility of manufacturing missing working parts on a CNC machine was far-fetched and that a person so equipped would not need to bother with manufacturing parts but could produce entire weapons, bearing in mind that detailed drawings and manufacturing instructions for making a fully-automatic Sten gun were freely available on the Internet. Nevertheless, temporary measures to make a firearm inoperative could readily be reversed. Similarly, firearms used for theatrical purposes were required to be modified to take blanks only, but those measures could also be reversed and might not greatly reduce risk. The conditions laid down in the permit were quite appropriate and it was up to the applicant what firearms he displayed.

Consideration

1. At an earlier stage in these proceedings there was some disagreement about whether the tribunal had jurisdiction to review a decision on such a matter as the scope of condition 6 in the subject permit and whether it required permanent inoperability of all prohibited firearms. The Commissioner had taken the view that the Firearms Act s 75 provides no right of review in such cases and that, as a consequence, the applicant was not entitled to an internal review either (letter 6 October 2016, exhibit R1, p 74). Section 75 of the Firearms Act states, however, that "(1) A person may apply to [this tribunal] for a review of any of the following decisions:… (b) a condition imposed by the Commissioner on a licence or permit issued to the person". There can be no doubt that jurisdiction is conferred on the tribunal by that provision.
2. The crux of this case lies in issue (1) set out above, the interpretation of cl 68 and whether it establishes an exclusive régime for displays at RSL clubs. If it does, Mr Martin's application must fail, as the condition requiring permanent inoperability of prohibited firearms in cl 68(2)(a) plainly and inescapably applies to the permit issued to him. If it does not, it becomes necessary to consider issue (2) above, whether the correct and preferable decision is that the permit issued to him should be subject to the requirement of permanent inoperability of all prohibited weapons in condition 6.

Issue (1): Does cl 68 establish an exclusive régime for displays at RSL clubs?

1. The starting-point for the interpretation of New South Wales legislation is s 33 of the Interpretation Act 1987: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
2. The principles and objects provision of the Firearms Act 1996 is s 3, which makes it clear that the overriding need to ensure public safety is the guiding principle of the legislation.
3. For present purposes the meaning of cl 68 and s 28 is clear; there is consequently no need to proceed to apply s 34 of the Interpretation Act by referring to extrinsic evidence such as the Minister's second reading speech. In fact, neither party referred to such material. The matter in controversy is primarily the relationship between those provisions, not their textual meaning.
4. The Commissioner's general power to issue permits for various purposes is contained in s 28 of the Act, and relevantly for present purposes in s 28(g): "The Commissioner may issue permits for any one or more of the following purposes:…(g) to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate". The respondent's position is that in circumstances where an RSL club seeks a permit to present a display of firearms, that general power is restricted by cl 68 and any permit issued must be subject to the conditions set out in cl 68(2). For these purposes, "RSL" means the Returned and Services League (New South Wales Branch).
5. That submission appears to invoke the maxim of statutory interpretation generalia specialibus non derogant, the principle that provisions of general application give way to specific provisions when in conflict, notably where there is an internal conflict between sections of the same Act: Perpetual Executors and Trustees Association of Australia Ltd v FCT (1948) 77 CLR 1, 29. Drafters often indicate an intention for that to be so by including such words as "subject to this Act" in a general provision.
6. The maxim is less strictly observed where the conflict is between provisions of separate enactments. But as is explained below, for the purposes of statutory construction, an Act and the regulations made under it can be regarded as one enactment. Nevertheless, a regulation would not normally control the scope and meaning of a section of the principal Act under which it is made, unless some wording such as "subject to the regulations" is used in the Act, as in the Environmental Planning and Assessment Act 1979, s 78A(1). By whatever means, it must be made clear that there is an intention to permit regulations to override an Act.
7. A "direct and unambiguous authority" is needed, not least in a case such as the present one where the interpretation argued for would have the effect of restricting the Commissioner's clear and general discretionary power. Regulations cannot interfere with the operation of a statute except with the antecedent authority of Parliament itself: Combined State Unions v State Service Coordinating Committee [1982] 1 NZLR 742, 745; Pearce, Delegated Legislation in Australia 4th edn 2012, 292. Further, the maxim generalia specialibus should only be called in aid where "contrariety is manifest": Reseck v FCT (1975) 133 CLR 45, 53. For the reasons set out below, that does not appear to be the case here.
8. In the present circumstances, therefore, the preferable approach is not to lean on the maxim, but to construe the provisions in the context of the Act as a whole, in accordance with established principles: Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355. As the High Court noted in Minister for Immigration v Nystrom (2006) 228 CLR 566, 586-92, [54], "whilst 'rules' or principles of construction may offer reassurance, they are no substitute for consideration of the whole of the particular text…its subject, scope and purpose".
9. When it is the effect of delegated legislation that is being construed, the general requirement that legislation be interpreted in accordance with its context carries the footnote that the context includes the Act under which the delegated legislation is made: One.Tel Ltd v Australian Communications Authority (2001) 110 FCR 125, 141.
10. Following that approach, one notes first of all that cl 68 does not in terms purport to lay down an exclusive procedure for all displays at RSL clubs. Similarly, the other provisions of part 6 of the regulation, which all appear under the heading "Additional types of permits", are not expressed to preclude the issuance of more than one type of permit to the same applicant. For example, a public museum holding a permit under cl 51, which does not permit the actual firing of weapons in the collection, would appear to be eligible to apply for a permit under cl 67 if it were planning to engage in legitimate scientific research. That permit would allow the actual use (firing) of firearms by the permit holder or an employee.
11. Further, it is difficult to see a cogent rationale for treating cl 68 as a kind of exhaustive code for RSL displays. In an RSL club the military firearms on display may be in the effective custody of staff, none of whom is licensed or the holder of any kind of firearms permit. Office-holders and managers may be preoccupied with other matters. Importantly, also, there is no other form of supervision by licensed persons as there is in the case of arms fairs (cl 65) or shooting club open days (cl 66). Club members and guests, none of whom may be licensed, will normally be circulating throughout the premises and may be examining the weapons on display.
12. In such circumstances it can be seen as reasonable for the firearms to be rendered permanently inoperable so as to prevent their rehabilitation in the event of theft. But that would not appear to justify requiring the same condition in permits, for example, for a temporary commemorative display under the control and supervision of one or more licensed or approved persons.
13. As a matter of statutory interpretation, therefore, I conclude that cl 68 does not preclude the Commissioner's issuing a different kind of permit on different conditions for the holding of a commemorative display at an RSL club. It therefore becomes necessary to consider issue (2).

Issue (2): Is the correct and preferable decision that permit No. 411520772 should be subject to a condition that all prohibited weapons on display should be rendered permanently inoperable?

1. The role of the tribunal is to review the decision that is the subject of Mr Martin's application, standing in the shoes of the original decision-maker, and making the correct and preferable decision: s 63(1) Administrative Decisions Review Act 1997 (ADR Act).
2. The applicant has for many years carried on the business of a theatrical armourer. He has arranged displays of firearms and other historical artefacts that he has collected over a lifetime for the information and education of others. In more recent times he has been conducting displays for various community groups and schools (although firearms are not displayed in schools) through his business, Paul Martin's Australian Military History Pty Ltd, which is licensed to possess firearms and prohibited weapons and also has a theatrical armourer dealership permit.
3. The applicant has previously made two applications to this tribunal or its predecessor, the Administrative Decisions Tribunal, seeking review of decisions by the respondent under the firearms legislation. They are Martin v Commissioner of Police, New South Wales Police (CoP) [2007] NSWADT 69, the respondent's appeal against that decision, CoP v Martin (GD) [2007] NSWADTAP 61, and Martin v CoP [2014] NSWCATAD 20. In all of those matters Mr Martin was successful.
4. In the 2014 decision, the tribunal noted that the applicant has been authorized for firearms in New South Wales on a personal basis since at least 1989. Over the years he has held a wide variety of licences. In 1996 his company was issued with his first firearms dealer licence and he successfully reapplied for that licence subsequently. The tribunal also referred to his long history as an expert in firearms and military memorabilia. His stock included items of historical significance, such as Henry Lawson's rifle, a pistol manufactured by the notorious career criminal Darcy Dugan while in prison and a 1905 Lee Enfield rifle as used by the Australian Light Horse Regiment (at [26]).
5. The applicant has no convictions and is well regarded in the community. His only safety contravention has been the incident at the Canterbury Racecourse Arms Fair in 2002 when he did not comply with a new requirement that weapons be secured by a multi-strand cable or chain. It appeared that the fair organizer had failed to notify participating dealers of the new provision. There does not appear to have been any actual threat to safety involved.
6. It is not disputed that Mr Martin is a fit and proper person to hold a display permit and does not present a threat to the public safety or the peace. He is well regarded as a lecturer on Australian military history. The Commissioner has issued him with a 5-year Military Commemorative Display Permit, No. 411520772, and would not have done so if he had not been satisfied of the applicant's fitness and propriety or that his holding a permit would be consistent with the public interest. It is condition 6 in the permit, requiring that all prohibited weapons be made permanently inoperable, that is in controversy.
7. In relation to the Act's emphasis on the overriding need to ensure public safety, reference is usually made to Ward v CoP [2000] NSWADT 28, [28], in which Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would not pose any risk to public safety. Indeed, her Honour could not have been totally satisfied of that, as the applicant had been convicted of an offence of violence and had been the subject of an apprehended violence order. Some other cases to a similar effect are reviewed in Green v CoP [2014] NSWCATAD 59, [72] - [79].
8. In Webb v CoP [2004] NSWADT 110, for example, Montgomery JM when considering the question of public safety stated that, "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration": [32].
9. The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety.
10. The respondent's main point as regards safety was that unless all prohibited weapons in the display were made permanently inoperable, it was possible that if one of them were stolen, the missing parts could be manufactured, perhaps using a CNC machine. The applicant viewed that as a far-fetched, worst case scenario and countered that if a wrongdoer had access to a CNC machine (which he said were large and expensive), he could just as easily manufacture a complete weapon.
11. Nevertheless, the reactivation of a temporarily deactivated firearm does remain at least a theoretical possibility. But in practice, there is no evidence of any crime having been committed with a temporarily deactivated prohibited weapon, whether by manufacturing parts on a CNC machine or otherwise. Nor is there any evidence that any temporarily inactivated prohibited weapon has actually been restored to working order through the manufacture of missing parts or by any other means.
12. In its decision on the applicant's 2007 application, the Appeal Panel stated that the discretions under the Act (in that instance the discretion to specify weapons for a permit) "must be exercised in a fair and reasonable way, cognisant of the usual way in which the trade (whether weapons dealer or prohibited weapons dealer) is practised". The Appeal Panel concluded that the Commissioner's actions were unreasonable (at [67] - [68]). It does not, of course, follow that the respondent's actions in the present case have been unreasonable, but the Appeal Panel's remarks do indicate that some weight should be given to the manner in which a business such as the applicant's is conducted.
13. In this case it appears that many of the weapons which the applicant proposes to display are for practical purposes irreplaceable, being prohibited imports. Some would be commercially regarded as antiques, being over a century old. Once a firearm has been made permanently inoperable, it can no longer be used for blank fire and consequently is useless for the making of historical motion pictures. The respondent contended that Mr Martin's holdings included some firearms that were duplicated, so that he could keep one in reserve for film-making. The applicant replied that from a realism point of view, film producers had to recognize that in action, weapons such as medium machine-guns had often been grouped in nests, and therefore more than one example needed to be available.
14. In deciding the applicant's 2007 application, Handley DP noted that "Mr Martin conducts his business by offering access to a reasonable stock of prohibited weapons in order to meet industry demands" (at [25]), the industry in question being film-making. In the present case, the applicant tendered a number of letters from motion picture studios in relation to his provision of historical firearms and ancillary services. Mr Trevor Pride, director of a special effects company called Pride Studios, wrote that Mr Martin's "extensive knowledge in regards to military firearms and weapons has proved to be incredibly useful in researching projects and his unique and extensive collection of historical firearms and weapons has proved to be a real and tangible asset to the film armourers' community in NSW" (part exhibit A3).
15. Mr Daniel Martin, director of another special effects company, Arms and FX Pty Ltd, confirmed in August 2016 that the applicant had supplied firearms for a television series, two short films and a music video. Mr Nathan Colquhoun, an independent film-maker, stated that Mr Martin had worked as an armourer on his independent feature film "The Challenge Letter" and on his independent television pilot film in 2015. "Paul was constantly attentive to each firearm used in the scenes. He did an excellent job as an armourer and he clearly instructed the actors and crew on firearm and weapon safety. Paul worked well with the guns and provided the actors in each scene the knowledge on holding and operating the firearms".
16. A letter from Mr David Sander, owner of a production company called Surfaces Rendered, dated 3 October 2014, stated that the writer wanted "to thank you [the applicant] profusely for your efforts as armourer on the film shoot of 28th September. Thanks to your efforts, Ghosts of War ran smoothly, as we transitioned 11 different actors, all posing with myriad weapons, many of them authentic, in a very short space of time, all without even minor incident".
17. Mr Martin wishes to continue making firearms, including prohibited weapons, available for film-making, and appears from the evidence to be highly esteemed in that business. He submits, however, that production companies are now arranging to make their films in Queensland and Victoria, rather than negotiate what he views as the over-strict administration of the law in New South Wales, and that is affecting his business. In its decision on his 2007 appeal, the Appeal Panel stated that the Firearms Registry's decision-making had been "unreasonable" with the result that "a practical advantage [was] delivered to his competitors" (at [71]). The panel continued: "Mr Martin, rightly in our view, expressed concern over the impact [of] variations in relation to the range of weapons permitted which would have the effect of advantaging some armourers over other armourers in getting work" (at [73]).
18. In the present case, the applicant submits that he would be placed at a competitive disadvantage as against theatrical armourers in other States if he had to make the prohibited firearms used for his displays permanently inoperable, and therefore useless for theatrical purposes, especially as they are for practical purposes irreplaceable. He did not produce any evidence to corroborate that assertion, but I note that the Appeal Panel was of the view that in fairness particular regard had to be paid to the nature of the competitive pressures in the industry and of the applicant's "established trading pattern involving a variety of weapons" (at [68]). The applicant's submission appears quite plausible.
19. It is instructive to compare the requirements of cl 68 with the conditions of some of the other special permits provided for in part 6. Permits for public museums under cl 51 require the firearms on display only to be made temporarily inoperable, and prohibited weapons are not excluded. Permits for scientific purposes under cl 67 require no level of inoperability and authorize the designated person both to possess and use the firearm. At arms fairs held pursuant to cl 65, the firearms on display also do not need to be even temporarily inoperable, although, as S/Cst Jackson explained, a good deal of planning, preparation and security is involved in those occasions. On a club open day held under cl 66, firearms need not be inoperable. Subject to certain conditions, unlicensed persons may possess and fire them.
20. The only provisions requiring permanent inoperability appear to be those relating to collectors (s 20), heirloom weapons (cl 50) and RSL collections (cl 68). The common relevant feature linking those categories and that serves to explain their stricter treatment in that respect is that they all involve collections or displays that are, or may be, unsupervised by licensed or approved persons. The military commemorative display permit in issue in these proceedings, however, does not require the permit-holder to arrange for supervision. Construction of part 6 as a whole thus suggests that the absence of required supervision could explain the imposition of the permanent inoperability stipulation in the subject permit. Classifying RSL displays with collections and heirlooms, which are likely to be permanent or long-term arrangements, also suggests that the drafter intended cl 68 to apply to permanent RSL displays, not to temporary commemorative functions.
21. The distinction between supervised and unsupervised displays is further illustrated by the permit issued for the joint RSL-Camden Council memorabilia display on 14 and 15 March 2015. Headed "Commissioner's permit - General", it requires any prohibited firearm on display to be permanently inoperable, but only if it forms part of a firearms collection. That stipulation was apparently inserted for consistency with the collector licence provisions of s 20. All other firearms (i.e. those not forming part of a collection) were to be rendered temporarily inoperable by removing the bolt or firing mechanism or using an approved trigger lock.
22. In addition, however, a condition of the Camden Civic Centre permit is that "The permit holder must ensure [that] TWO unarmed security guards employed by Secure Events & Assets Pty Ltd are present for the duration of the display to ensure the security of any firearms" [emphasis in the original]. The presence of proper supervision, therefore, was evidently seen as removing the need for prohibited firearms on display to be permanently inoperable. That decision was consistent with the objectives and requirements of the Firearms Act.
23. The Camden Civic Centre permit in my view constitutes a useful precedent for the permit in issue in the present case. The conditions imposed are generally similar to those in the subject permit and ensure that prohibited firearms sourced from a collection be made permanently inoperable pursuant to s 20. The conditions make specific provision for full-time supervision of the display. That display took place without any difficulty or any kind of incident that might have threatened public safety. The supervision requirement in the permit for the Canterbury Racecourse arms fair in 2002 used not dissimilar language: "The permit holder and/or any employee must exercise and maintain close supervision of the firearms and ammunition as well as any other articles at all times". Apart from the communication breakdown mentioned above, that function also unfolded without any safety incident.
24. I therefore conclude that the correct and preferable decision should involve substituting close supervision for the permanent inoperability of prohibited weapons on display. Commissioner's permit 411520772 is thus to be varied by deleting condition 6 and substituting the following new condition: "6. The permit holder must ensure that any prohibited firearm on display that is sourced from a collection is rendered permanently inoperable as prescribed by clause 34(3)-(6) of the Firearms Regulation 2006". Condition 8 should consequently be varied by deleting the word "other". Condition 7 should be varied by adding the following: "The permit holder and/or any employee or security guard or guards reasonably required by the Commissioner must exercise and maintain close supervision of the firearms as well as any other articles at all times".

Orders 1. Commissioner's permit - Military Commemorative Display Permit No. 411520772 (the permit) is varied by deleting condition 6 and substituting the following: "6. The permit holder must ensure that any prohibited firearm on display that is sourced from a collection is rendered permanently inoperable as prescribed by clause 34(3) - (6) of the Firearms Regulation 2006". 2. Condition 7 of the permit is varied by adding the following: "The permit holder and/or any other employee or security guard or guards reasonably required by the Commissioner must exercise and maintain close supervision of the firearms as well as any other articles at all times". 3. Condition 8 of the permit is varied by deleting the word "other". 4. In all other respects the decision under review 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: 30 March 2017