Osmani v Commissioner of Police, NSW Police [2005] NSWCA 257 | Case summary

REASONS FOR DECISION Background 1 Introduction. Mr Osmani applied to the Commissioner of Police for a permit to possess and use a pistol. The Commissioner refused that application and Mr Osmani applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision and Mr Osmani has now appealed to the Appeal Panel. Mr Osmani trains dogs to be guard dogs. The dogs include Pit-Bull Terriers, Rottweilers, German Shepherds and Dobermans. He says he needs a pistol to control aggressive dogs in dangerous, and sometimes life-threatening, situations. The Firearms Act 1996 (the Act) allows the Commissioner to issue licences and permits for the use and possession of firearms including pistols. Mr Osmani applied for a permit, rather than a licence. 2 Licensing provisions. There are restrictions on people obtaining a Category H licence, which relates to pistols. The licensing scheme in the Act requires a person to demonstrate a "genuine reason" for owning, using or possessing a firearm: s 12. The only "genuine reasons" for having a pistol licence are sport/target shooting, business or employment and firearms collection: s 16(1)(a). If Mr Osmani had been applying for a licence, rather than a permit, he would have had to bring his circumstances within the "business or employment" reason for having a licence. He would have had to demonstrate that it was "necessary" in the conduct of his business or employment to possess or use a pistol: Table to s 12. The Appeal Panel has said in a previous case that "the question of what is necessary' for the conduct' of a `business' should be interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application." (Osborne -v- Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 at [46].) 3 If applying for a licence, Mr Osmani would also have had to demonstrate, in addition to having a genuine reason for the licence, that there is a "special need" for him to possess or use a pistol: s 16. The meaning of these two requirements, the necessity for a pistol in the conduct of a business and a special need for a licence, have been the subject of some consideration by the Tribunal in previous cases. (See, for example, Commissioner of Police v Snape [2004] NSWADTAP 15.) 4 Permit scheme. In addition to the licensing scheme, the Act allows the Commissioner to issue permits for certain purposes. Most of those purposes are specific, for example, to authorise the use of a firearm by a minor or for film or theatrical productions. There is also a general provision which allows the Commissioner to issue permits for "the possession or use of firearms in such circumstances as the Commissioner considers appropriate": s 28(g). That is the provision that Mr Osmani relied on when applying for a permit to possess and use a pistol. Section 29 and Clause 9 of the Firearms (General) Regulation 1997 (the Regulation) set out both mandatory and discretionary grounds for refusing to issue a permit. None of the mandatory grounds applies to the facts of this case. The two discretionary grounds for refusing to issue a permit which may be relevant to this case are in Cl 9(2) of the Regulation and s 29(4) of the Act. Clause 9(2) of the Regulation provides that: The Commissioner may refuse to issue a permit if the applicant intends to possess or use the firearm for: (a) personal protection or for the protection of any other person, or (b) the protection of property. 5 Section 29(4) states that: Despite any other provision of this section, the Commissioner may refuse to issue a permit if the Commissioner considers that issue of the permit would be contrary to the public interest. 6 The Commissioner's delegate appears to have based his decision to refuse to issue Mr Osmani with a permit on s 29(4). He said in his internal review decision dated 1 December 2003, that ". . . it is not in the interests of the public for your application to be granted." The Tribunal is not confined to considering the Commissioner's reasons for refusing Mr Osmani's application. (Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45].) Tribunal's decision 7 The Tribunal's decision to affirm the administrator's decision was based, in part on two previous decisions of the Appeal Panel, Commissioner of Police v Snape [2004] NSWADTAP 15 and Field v Commissioner of Police, New South Wales Police [2004] NSWADTAP 52. In Snape, the Appeal Panel was hearing an appeal against the Tribunal's decision to grant Mr Snape a pistol licence to use in his fishing business. Mr Snape caught sharks, as well as other fish, and said he needed a pistol to kill certain species of relatively large sharks before pulling them on board. One issue in that case was the identification of the core features of Mr Snape's business in order to determine whether a pistol was necessary for the conduct of that business. The Appeal Panel decided at [48] that while some of the "core features" identified by the Tribunal could be more accurately characterised as reasons for possessing a pistol, the Tribunal had not erred. The Appeal Panel said that the Tribunal was correct in assessing 'core features' to take account of the particular types of fish targeted, the methods appropriate to the catching of such fish and the scale of the business. 8 The case of Field concerned an application by a primary producer for a pistol permit to be used in connection with the management of a farm. The Appeal Panel examined the factors that the Tribunal at first instance regarded as relevant to the exercise of the discretion under s 28(g). With one exception, the Appeal Panel agreed that the factors listed by the Tribunal at first instance were relevant when deciding whether to exercise that discretion. 9 The Tribunal in the present case said that the Appeal Panel in Field regarded the following considerations as relevant to the exercise of the power to issue a permit: (a) whether the 'need' for a pistol rather than a long-arm is established. A pistol must be necessary, rather than merely desirable or convenient. The need must be real and not hypothetical based on an assumed future event; (b) the restrictive approach found in the licensing provisions to the grant of pistols as against shot-guns and rifles; (c) the extent to which the applicant has attempted to use alternative methods, even if less convenient; and (d) the risk to personal safety associated with alternative methods. 10 The first consideration listed above, namely the "need" for a pistol, rather than a long-arm and the necessity, rather than mere desirability, for a pistol, is based on the licensing provisions of the Act. If the pistol is to be used in the applicant's business, the applicant "must demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use the firearm for which the licence is sought": s 12. In addition, an applicant must demonstrate that there is a "special need" for the person to possess or use a pistol: s 16. 11 The Tribunal went on to say that all the considerations listed above must be balanced against the considerations of public safety and the public interest. The Tribunal concluded at [13] to [16], that: It is important to analyse what is necessary in the conduct of Mr Osmani's business. The focus is on the type of business activity undertaken, rather than the specific way that Mr Osmani undertakes that business. Two questions are relevant - firstly, what are the core features of businesses of the type that are the subject of Mr Osmani's application and secondly, is possession of a pistol directly required of that business?: Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15. 14 The core feature of Mr Osmani's business is the training of guard dogs. As part of his operations he also has offered general dog training sessions for members of the public. The nature of the animals involved in the business and their unreliability is the basis upon which Mr Osmani seeks the issue of a permit. I accept Mr Osmani's evidence regarding the potential risks associated with the business. I also accept that he has cause for concern for the safety of his staff and the members of the public who attend training sessions that he offers for training of pets. However, I do not agree that the possession of a pistol is directly required of his business. Notwithstanding the fact that Mr Osmani considers it desirable to use a pistol, it is possible to conduct his business without one. I therefore do not believe that the use of a pistol is essential to any of the core features of his business. Accordingly it is my view that Mr Osmani does not satisfy the first of the considerations relevant to the exercise of the power to issue a permit limb of the requirements. Having formed this view I need not consider the other factors that I have referred to above... Grounds of Appeal 12 Mr Arden represented Mr Osmani. He submitted that the Tribunal did not analyse the evidence and address each of the four relevant points raised in Field. In relation to the issue that the Tribunal did address, namely the 'need' for a pistol, Mr Arden said that the Tribunal erred when it found that the core feature of Mr Osmani's business was the training of guard dogs. According to Mr Arden, dog training is the kind of business Mr Osmani operates, not its core feature. He said the core features are as follows: (a) It is the only business of its kind in Australia (b) The dogs brought to be trained are special (i) Their background is often unknown (ii) They can exhibit speed strength and ferocity (iii) They can and do exhibit dominant aggression to other dogs and trainers (iv) Two dogs have attacked humans and have been stopped by destruction with a pistol (v) Pitt Bulls, German Shepherds, Dobermans and Rottweilers and crosses of these are dogs commonly involved (c) the dogs are not in the pet category (d) the dogs are not from recognized sources (e) Mr Osmani has supplied dogs overseas to Police organisations (Sri Lanka) 13 Finally Mr Arden submitted that the Tribunal's reasoning process is not sufficient to enable an appellate court to determine the precise findings of fact and law on which the judgement is based. He then cites Australian Timber Workers' Union v Monaro Sawmills Pty Ltd 1980 29 ALR 322 as authority for the proposition that a failure to give reasons may be an error of law. Appeal Panel's reasoning and conclusion 14 The role of the Tribunal is to determine whether the Commissioner had made the "correct and preferable" decision when refusing to grant Mr Osmani's application for a pistol permit: s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act). The Commissioner's decision was to refuse to exercise his discretion under s 28(g) to authorise Mr Osmani to possess or use a firearm. The basis for that decision was that it was not in the public interest for Mr Osmani to have a firearm: s 29(4). As we have said, the Tribunal is not bound by the administrator's reasons when deciding whether the decision itself is correct. An appeal to the Appeal Panel against a decision of the Tribunal is as of right in respect of a question of law. It may only extend to the merits of the decision by leave of the Appeal Panel. See s 113(2) of the ADT Act. Mr Osmani did not apply for leave to extend the appeal to the merits of the Tribunal's decision. 15 Apart from the mandatory reasons for refusing a permit, which do not apply to the circumstances of this case, the discretion in s 28(g) is unfettered. The Act does not expressly state the considerations which are to be taken into account when exercising that discretion. We agree with the two principles of law relating to the exercise of an open or unfettered discretion, enunciated by the Appeal Panel in Field. The first is that there are narrow occasions when the exercise of that discretion will involve an error of law: House v The King (1936) 55 CLR 505. We also agree with the Appeal Panel in that case that while the constraints found in the Act in connection with the granting of pistol licences may inform the Commissioner's discretion to grant a permit, they do not govern it. Ineligibility for a pistol licence does not mean that an applicant is automatically excluded from obtaining a pistol permit. 16 The Tribunal's reasoning discloses that it was under the impression that Mr Osmani had to demonstrate that the use of a pistol was essential to the core features of his business before he could be granted a pistol permit. The following passages are relevant: I therefore do not believe that the use of a pistol is essential to any of the core features of his business. Accordingly it is my view that Mr Osmani does not satisfy the first of the considerations relevant to the exercise of the power to issue a permit limb of the requirements. Having formed this view I need not consider the other factors that I have referred to above. 17 Section 16 of the Act requires the Commissioner to refuse an application for a Category H (pistol) licence unless an applicant has a genuine reason and a special need for the licence. There are no such requirements for the granting of a permit. Ineligibility for a pistol licence is merely one relevant factor which may be taken into account in determining whether or not to issue a permit. Mr Arden submitted that the Tribunal did not analyse the evidence and address each of the four points raised in Field.(See [9] above.) That is not entirely correct. While the Tribunal came to its conclusion on the basis of only the first of the four factors listed in Field, the Tribunal did go on to mention other factors and ultimately reached its conclusion having balanced those factors with the public interest and public safety considerations. The Tribunal said at [16] and [17]: However, I note that I agree with the Commissioner's concerns in relation to the risks to public safety if a pistol were used in the circumstances that Mr Osmani has outlined as examples of his need. I also note that the Act has adopted an approach to the possession and use of pistols that makes them harder to obtain than long arm rifles. The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The circumstances in which a permit for a pistol will be issued should be viewed with considerable caution and in light of the paramount considerations of public safety and the public interest. It is my view that when the core business of Mr Osmani and his desire for a pistol in relation to that business is weighed up against considerations of public safety and the public interest, the balance falls against Mr Osmani. The correct and preferable decision in the circumstances is that Mr Osmani's application should be refused. Accordingly, the Commissioner's decision should be affirmed. 18 One question for the Appeal Panel is whether the Tribunal made an error of law by not considering all the factors mentioned at [10] above. Mr Arden submitted that the Tribunal had not given proper weight to the evidence that suggested alternate methods of control could result in breaches of legislation and aggravate life threatening situations. It is a fundamental principle of law that in exercising discretionary power a decision maker must take into account relevant considerations and must not take into account irrelevant considerations. The leading Australian case in this area is Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 C L R 25. Justice Mason summarised the important principles at p 39 and 40. So far as is relevant to this case, those principles are that: (a) the ground of failure to take into account a relevant considerations can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision; (b) if the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication the he is bound to do so is to be found in the subject-matter, scope and purpose of the Act; (c) not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision; (d) it is generally for the decision maker and not the court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising statutory power. 19 The Act does not expressly state the considerations which are to be taken into account when exercising the discretion under s 28(g). The list of factors in Field is not determinative or exhaustive of the matters which may be relevant when exercising that discretion. Mr Arden did not submit that the subject-matter, scope and purpose of the Act mean that the Tribunal was bound to take into account certain considerations. In our view the Tribunal did not fail to consider any considerations that it was bound to take into account. 20 Mr Arden submitted that the Tribunal erred in the manner in which it characterised the "core features" of Mr Osmani's business. We agree with Mr Arden that "the training of guard dogs" is a description of the Mr Osmani's business rather than a core feature of that business. However, it is apparent from the Tribunal's decision that it did understand and appreciate the core features of Mr Osmani's business. The Tribunal acknowledged that Mr Osmani's application for a permit was based on the nature of the animals involved in the business and their unreliability. The way in which the Tribunal characterised the core features of Mr Osmani's business did not lead it into error. 21 The final question raised by Mr Arden's submissions is that the Tribunal did not give adequate reasons for coming to some of its conclusions. In particular, Mr Arden submitted that the Tribunal gave no reasons for coming to the following conclusions: However, I do not agree that the possession of a pistol is directly required of his business. Notwithstanding the fact that Mr Osmani considers it desirable to use a pistol, it is possible to conduct his business without one (at [15]). However, I note that I agree with the Commissioner's concerns in relation to the risks to public safety if a pistol were used in the circumstances that Mr Osmani has outlined as examples of his need (at [16]). It is my view that when the core business of Mr Osmani and his desire for a pistol in relation to that business is weighed up against considerations of public safety and the public interest, the balance falls against Mr Osmani (at [17]). 22 Mr Arden relied on the decision in Australian Timber Workers' Union v Monaro Sawmills Pty Ltd (1980) 29 ALR 322 as authority for the proposition that a judge should give reasons for his or her decision which are sufficient to enable the appellant court to determine the precise finding on fact and law upon which the judgement is based. The decision under consideration in that case consisted of five sentences, only two of which contained the Court's reasoning or conclusion. In contrast, the reasons in the present case consisted of seventeen paragraphs. The Tribunal is obliged to give adequate reasons for its decisions. In relation to the first passage quoted above, the Tribunal made a finding of fact that the possession of a pistol is not directly required for Mr Osmani's business. He could conduct his business without a pistol. The Tribunal did not make an error of law by failing to elaborate on that finding. In relation to the second passage quoted above, the Tribunal recorded its agreement with the concerns of the Commissioner. It is sufficient to agree with reasons provided by one of the parties, rather than repeating those reasons or concerns in the written decision. In relation to the third passage, the public interest or public safety concerns were obvious. The Tribunal did not err by failing to say expressly that people may be injured or killed if a pistol is used in the course of Mr Osmani's business. Order 23 Appeal dismissed.

Osmani v Commissioner of Police, NSW Police

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