BURTON v COMMISSIONER OF POLICE, NSW POLICE FORCE (2019) NSWCATAD 14
This decision handed down by NCAT in January 2019 is a classic example of the reason why I have warned against people running ill-considered appeals, that only serve to make the situation worse for shooters, because we now have a decision that looks both objectively and subjectively at whether a silencer is necessary when undertaking recreational hunting and finds that it is not, and affirmed the decision under review accordingly.
In order to have a Prohibited Weapons Permit granted to possess a silencer one needs to have a genuine reason. The provisions refer to a table that provides that for a silencer to be granted for recreational or sporting activities ‘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 extrapolated from the following NCAT decisions involving appeals from a decision by a delegate of the Police Commissioner: Allen (at 18), Osborne (at 48) and Marado (at 73) that ‘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’.
In Burge, the Tribunal considered whether a silencer was necessary in the context of the core features of Mr Burge’s recreational activity of hunting. The Tribunal seemed to apply an objective or semi objective test, but went on to discuss Mr Burge’s tinnitus, and concluded that a silencer was not needed for protection against hearing loss.
On balance the tribunal considered that an interpretation reflecting the ordinary meaning of the requirement is preferred, that is to say the applicant must demonstrate that generally speaking the recreational or sporting activity requires the possession or use of the prohibited weapon for which the permit is sought, it is not a question of whether a particular applicant requires the weapon for reasons particular to him or her.
The Tribunal was not satisfied that recreational hunting requires possession of a silencer using her preferred objective standard.
She then went on to consider Mr Burton’s evidence. Mr Burton’s evidence was that he wore ear muffs but found them uncomfortable. This points to the conclusion that a silencer may be desirable for comfort but not that it is necessary.
The Appeal Panel in the Allen decision found that a non-technical word like ‘necessary’ should be given its natural and ordinary meaning. The word includes meanings like ‘to make necessary or indispensable’ (which was the reason I believed at that point that further appeals by typical recreational hunters were a waste of time).
Recreational shooting does not ‘require’ the possession or use of a silencer due to its impact on nearby people. This might be ‘desirable’ but is hardly ‘necessary’.
The Tribunal found on the basis of evidence from Alexandar Kristic, a former Detective Senior Sgt with experience as a professional hunter, and licensed wildlife controller (and past Victorian Hunting Advisory Committee member) that domestic livestock do not react to gunfire.
Mr Burton’s preference for not using ear muffs was not something that that the Tribunal was entitled to consider on the Larrson approach.
In respect to submissions regarding the non-use of silencers in crime, the Tribunal commented that the Tribunal’s role is not to consider whether Parliament should have designated silencers as prohibited weapons.
This latter comment sums up why the Tribunal is not the place for the agitation of this issue. In the absence of some truly exceptional circumstances, nothing good, shall come from the further conduct of Appeals against decisions by the Commissioner’s delegate in respect to silencer matters lodged by recreational shooters.
I know some people, who figure they ‘know better’, despite not having any legal qualifications, are going to be critical of me for this view. However, they need to be aware that if they continue to flood the system with hopeless appeals, they shall, via further interpretation of the legislation, only serve to make the matter worse and not better.
Before complaining at what I have written, they also need to consider why would I recommend against appeals that I can make money out of, unless I genuinely considered such appeals not to be in the interests of an individual client and our sport?
Future action needs to focus on direct political lobbying.
National Firearms Lawyer
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Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.
He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.
This article is written for general information only and does not constitute advice.
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