![NSW Police Force v Allen [2016]](https://www.fglaw.com.au/wp-content/webp-express/webp-images/uploads/2023/05/livestock-g5af059453_1920-e1683263994895.jpg.webp)
By Hayden Nelson
Case Summary of Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148
Summary:
The Commissioner of Police (the Appellant) refused Mr Allen’s (the Respondent) application for a permit to use a silencer with his firearm to help him protect his sheep from pest animals on his land.[1] On appeal, the overarching question for the Appeal Panel was to consider whether the Tribunal had concluded in error that the silencer was necessary in the conduct of his sheep grazing business.[2] The Appeal Panel decided that Tribunal had not erred in its interpretation of the word ‘necessary’.[3] Ultimately, the Appeal Panel found that the necessity of a weapons permit for one’s business is dependent on the subjective circumstances of each applicant.[4]
Factual Background/Procedural History:
Under the Weapons Prohibition Act (WPA),[5] silencers are prohibited.[6] Section 11(1) states that the Commissioner of Police is incapable of issuing a prohibited weapons permit unless it is within their opinion that the applicant has a ‘genuine reason’.[7] Mr Allen, in this case, claimed it was for ‘business/employment purposes’[8] as he shot pests to protect his livestock.
Upon the Commissioner of Police refusing Mr Allen’s application due to a lack of demonstration that it was necessary for the conduct of his business,[9] Mr Allen applied to the Tribunal for administrative review who subsequently set aside the Commissioner’s decision. Following this, the Commissioner then appealed to the Appeal Panel on five questions of law as well as on grounds other than questions of law.[10]
There were five questions of law that the Appeal Panel had to consider on appeal.
Question 1: Incorrect Construction of the words ‘necessary in the conduct of the applicant’s business’
Mr Allen had argued that the silencer was necessary for business/employment purposes.[11] The Commissioner argued that the word ‘necessary’[12] had been misconstrued by the Tribunal.
The Commissioner argued that, following Osborne,[13] the word ‘necessary’ meant that the silencer was either ‘directly required’ or ‘essential’ for the sheep grazing business within the context of the Prohibited Weapons Act.[14]
In that case, Mr. Osborne, a travelling firearms dealer, applied for a license to carry a pistol to deter robbers.[15] His license was ultimately rejected as the Tribunal concluded he could carry out his business in a way that did not present a high risk of robbery.[16]
However, the Appeal Panel distinguished the facts of Osborne, as a core feature of Mr. Allen’s business is controlling feral animals. The extent of the pest infestation and his property’s location were factors beyond Mr Allen’s control and were not just due to how he conducted his business.[17]
Question 2: Shifting the burden of proof to the Commissioner
The Commissioner argued that the Tribunal had shifted the burden of proof from Mr Allen to the Commissioner.[18] The Appeal Panel stated that ultimately the Tribunal’s job is to decide on the preferable decision based on the material presented to it.[19] Following the interpretation of similar provisions, it is not the applicant’s role to prove the administrator’s decision is wrong[20] and, generally speaking, neither party bears a legal burden of proof.[21]
While section 11(2)(b) of the WPA states that Mr Allen has an evidentiary burden to satisfy since Mr Allen had no legal burden of proof, there was no shifting of the burden onto the Commissioner.[22]
Question 3: Denial of Procedural Fairness
The Commissioner also argued that the Tribunal had denied the Commissioner procedural fairness ‘by upholding his objections to the admissibility of certain evidence and then relying on that evidence in its reasons’.[23] As a consequence of relying on the Tribunal’s ruling, the Commissioner did not cross-examine Mr Allen on some evidence and would have cross-examined Mr Allen more thoroughly on other evidence if it had been admitted.[24]
In particular, the Commissioner objected to a diagram in an academic article about the use of silencers[25] (the Lister Diagram) and evidence given by Mr Allen about conversations he had had with professional shooters.[26] In both cases, the Appeal Panel found that there was no breach of procedural fairness.[27]
Also, the Tribunal relied on evidence in the decision French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221, which found that it was accepted in New Zealand that silencers could facilitate the shooting of pests without disturbing animals nearby.[28] The Commissioner objected as the Tribunal did not warn the parties that it sought to rely on that evidence.[29] However, The Appeal Panel rejected the Commissioner’s objection as the Tribunal was ‘merely making a passing reference to that material’.[30]
Question 4: Lack of rationally probative evidence
The Commissioner argued that the Tribunal significantly relied on evidence that was not “rationally probative”. This included the aforementioned Lister diagram and conversations with professional shooters.[31] Only if there was no evidence or no probative evidence (regarding the finding that the use of a silencer was necessary in the conduct Mr Allen’s business), would the Tribunal have made an error.[32] All evidence requires consideration, not just what was relied upon by Mr Allen.[33]
The Appeal Panel found that even if the evidence had low probative value, it was simply untrue that the Tribunal’s decision was founded on no probative evidence.[34]
Question 5: Manifest Unreasonableness
The Commissioner argued that there was manifest unreasonableness in the Tribunal’s decision due to the deficient material relied upon by the Tribunal. The Commissioner argued that the Tribunal erroneously relied on conversations with professional shooters and the Lister diagram. The Commissioner further argued the Tribunal’s decision was unreasonable due to it relying on the prediction that the silencer would resolve the feral pest problem in the future.[35]
The Appeal Panel rejected the Commissioner’s argument that the Lister diagram was excluded by the Tribunal and did not think the predictive nature of the Tribunal’s decision warranted it being regarded as manifestly unreasonable.[36] The Appeal Panel stated that even if some of the evidence had a low probative value, the decision ‘does not lack an evident or intelligible basis’.[37]
Appeal on grounds other than questions of law
Other than questions of law, the Commissioner also sought leave to appeal on other grounds via the NCAT Act[38] s80(2).[39] The ground the Commissioner appealed on was very similar to that of Ground 4 mentioned above.[40]
Collins v Urban[41] summarizes the general principles for granting leave regarding this ground. The Appeal Panel found that there were no ‘issues of principle, questions of public importance, matters of administration or policy which might have general application or an injustice which is reasonably clear’.[42] Further, the Tribunal made no mistaken findings, and despite not allowing the Commissioner an opportunity to cross-examine Mr Allen regarding the conversations with professional shooters, the Tribunal appropriately conducted its fact-finding process.[43]
Orders
All grounds of appeal, including those around questions of law and other grounds, were refused by the Appeal Panel. The appeal was dismissed.
Hence, the Tribunal’s decision stood as Mr Allen had adequately demonstrated the necessity of possessing a silencer in the conduct of his sheep grazing business.
Foulsham and Geddes notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Foulsham and Geddes are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
[1] Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148, [1].
[2] Ibid.
[3] Ibid [17].
[4] Ibid [18].
[5] Weapons Prohibition Act 1998 (NSW).
[6] Ibid s7(1); Allen (n 1) [2].
[7] Weapons Prohibition Act (n 3) s 11(1).
[8] Ibid s 11(1); Allen (n 1) [2].
[9] Allen (n 1) [3].
[10] Ibid [4].
[11] Ibid [6].
[12] Ibid [6].
[13] Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10.
[14] Allen (n 1) [13].
[15] Ibid [14].
[16] Ibid [15].
[17] Ibid [17].
[18] Ibid [19].
[19] Ibid [21]; Administrative Decisions Review Act s 63.
[20] Allen (n 1) [21]; Rol Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
[21] Allen (n 1) [21], Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1, 17 ([40]).
[22] Allen (n 1) [22].
[23] Ibid [23].
[24] Ibid [23].
[25] Ibid [25].
[26] Ibid [32].
[27] Ibid [30], [41].
[28] Ibid [42].
[29] Ibid.
[30] Ibid [43].
[31] Ibid [46].
[32] Ibid.
[33] Ibid.
[34] Ibid [53].
[35] Ibid [55].
[36] Ibid [56].
[37] Ibid.
[38] Civil Administrative Tribunal Act 2013 (Cth).
[39] Ibid [57].
[40] Ibid.
[41] Collins v Urban [2014] NSWCATAP 17, [84].
[42] Allen (n 1) [59].
[43]Ibid.