This article reflects upon the laws relating to farmers possessing handguns in NSW and Queensland. In so doing, I shall also comment upon the recent decision of Shaxson v Queensland Police Service (2014) QCAT 309, in Queensland, and comment on whether or not this marks any change in approach.
New South Wales
In NSW, under s16 (1) of the Firearms Act, the Commissioner must not issue a category H licence to a person unless the person establishes a genuine reason of sport/target shooting, business or employment or firearms collection.
As S16 makes no mention of recreational hunting /vermin control, vertebrate pest control, or primary production under category H, there was no scope to grant a licence for a pistol to a primary producer other than by discretionary permit.
Prior to a change of policy on August 27, 2003, the Commissioner would exercise his discretion and issue a permit to use and possess a pistol to primary producers who were of good character, otherwise complied with the law, had raised no concerns, and who could demonstrate a special need.
In doing this he would also have regard to s29 (1) and 29(4). The former provides that a permit must not be issued unless the applicant is ‘a fit and proper person’ and can be trusted to have possession of firearms without danger to public safety and the peace. The latter provides that the Commissioner may refuse to issue a permit if he considers that the issue of a permit would be contrary to ‘public interest’.
Under the revised policy, the Commissioner decided to refuse all future applications for permits on the basis that it was tantamount to allowing by permit an outcome that could not be achieved through the grant of a licence.
A number of appeals followed, and it was clear that the Tribunal had no difficulty with the grant of permits to possess pistols, as there is nothing in the Act and Regulations that prevents this course of action. See for example Clyne v Commissioner of Police NSW (2004) NSW ADT 52.
On March 16, 2004, the Commissioner issued a revised policy that amounted to a partial back down, in which he said that he did not consider it appropriate to issue a permit unless ‘exceptional circumstances exist’.
The Queensland Weapons Act 1900 offers a somewhat more straightforward approach, having only recreational and occupational categories of relevance under this heading. As in NSW, it is clear, however, that ‘exceptional circumstances’ must exist before a farmer shall be granted a licence for a category H firearm.
Shaxton v Harm
It is interesting to compare the recent Shaxton decision to a previous Queensland Tribunal decision in Harm v Queensland Police Service (2010) QCAT 518 (‘Harm’) Mr Harm occupied 16,400 hectares as opposed to Mr Shaxson’s 604 hectares and his farm had a carrying capacity of 450 breeding cows whereas Mr Shaxson only ran between 50 and 150 cattle.
Both properties were rough and hilly. Mr Shaxton reported having trapped only six dogs in the previous 18 months. Nevertheless, the issue was a real one, and not a hypothetical one.
Mr Harm was granted a category H licence, Mr Shaxton was not.
Can any conclusions be drawn from the Harm and Shaxton decisions? Does Shaxton represent a change in the approach in respect to the licensing of pistols for primary production purposes in Queensland.
Variations commonly arise between Court or Tribunal decisions, because no two sets of facts are identical, and as a consequence of different members being involved in the determination of the matters.
Tribunal decisions are not binding upon decision makers in the way that District or Supreme Court decisions are, and thus do not give rise to that body of law that lawyers refer to as ‘common law’ or ‘precedent law’.
This is not to say that a Tribunal decision may not be regarded as highly influential or persuasive by a Government Department that is seeking to administer the law, and this is particularly the case when a decision is well argued, is from a President, Deputy President or Judicial member of the Tribunal, or where the decision suits the interpretation of the legislation favoured by the Department.
A Department can often pick and choose in its acceptance and rejection of Tribunal decisions as, on a lot of subjects, one can find Tribunal decisions going either way, offering little guidance.
When I worked for the Commonwealth Government, I would occasionally approach the Commonwealth Administrative Appeals Tribunal and request that the matter be listed before either the President or a member who is also a Judge as a means of generating some guidance. This approach is particularly common in the Commonwealth arena where, for example, a different approach may appear between the treatment of a particular type of matter in different registries around the country.
Here a Member of the Tribunal decided Shaxton, and a Senior Member decided Harm. Neither decision is therefore binding on other Tribunals, nor are the decisions necessarily very influential, as both decisions appear to have been decided on their facts.
One significant difference between the cases was one of scale. Interestingly in the matter of Finlay v Commissioner of Police NSW Police Service (2004) NSW ADT 152, the Tribunal found that once a need had been established, frequency or constancy ought not to be considered an additional requirement (see paras 42-3).
While this case is a NSW one, and is not binding on the QACAT and addresses a different piece of legislation, it would have been interesting to have heard the Tribunal’s response to having this decision quoted to it in respect to the number of dogs Mr Shaxton had killed in the previous 18 months.
One reason for this is that the Finlay decision was made by a particularly strong NSW Tribunal, comprising in part of Judge O’Connor DCJ, a District Court Judge, sitting as the President of the ADT on the Appeal of an earlier ADT decision, and is very well reasoned. It could not be so easily dismissed.
Clearly however, it is only in exceptional circumstances that a primary producer will be granted access to a handgun for primary production purposes, in either Queensland or NSW.
While handguns were commonly owned by farmers in the years following the 1930s when stringent handgun laws were first introduced, and some latitude was extended to existing owners, there has been a tightening of Police attitudes since, so that it is now only in extreme cases where a handgun licence will be granted to a farmer.
I have always considered the position of Police to be rather unreasonable, given criminals seem able to get whatever guns they want, whereas the law abiding, are effectively denied legal handguns even when they have a legitimate reason to possess one.
This situation has to my knowledge led to some farmers accessing handguns illegally out of desperation.
A lot of the views advanced by Police during hearings or in submissions have also revealed little understanding of farming practice, or indeed of wildlife, or of the size and layout of many farms and the difficulty covering steep terrain.
Clearly a farmer, who is working a trap line in a remote part of a property, that may offer poor accessibility, or who is trying to euthenase bogged cattle, is not going to be well served by a long arm that is going to get in the way.
However, before applying for a category H licence, I would suggest that a primary producer consider options and first try using something like a lever action carbine in a pistol calibre.
Another approach: The TC Contender
I believe that there is an alternative firearm that may satisfy both Police and the community at large: single shot pistols like the TC Contender.
The Contender is a single shot handgun that coincidentally is also available in carbine form. It is a hinged firearm that takes only one shot.
I have owned a TC Carbine since the 1980s. Mine has three 21 inch barrels in .22LR, .223 and 30-30 Ackley Improved. However, in handgun form it is available with pistol barrels of varying lengths.
I have never heard of an incident where a TC Contender Carbine has been shortened and used by criminals, or indeed where a Contender pistol has ever been used in crime, though I recall that the US Bureau of Alcohol Tobacco & Firearms did at one stage get worried about the possibility of someone fitting a TC Pistol barrel to a Contender Carbine stocked frame, creating a shortened firearm.
While the US Bureau of Alcohol Firearms & Tobacco were obviously not capable of approaching this matter initially with any level of commonsense, I recall this hypothetical problem was resolved in a commonsense fashion by the Courts.
There is good reason for the lack of criminal interest in this firearm. It cannot be turned into a repeater because, as it was designed and built as a single shot from day one, there is nothing to reverse engineer, reloading is a slow, two handed affair that would preclude a criminal operating a vehicle, or carrying a bag of ill gotten gains, while loading the gun.
However, to a primary producer looking to euthanase an angry pig or dog restrained by a trap, speed of fire is not an issue.
If a sensible and realistic dialogue with Police can be entertained, I believe that the Contender type of firearm could meet the needs of all concerned.