Bankstown Chatswood Rifle Club Inc v Commissioner of Police NSW

[1999] NSWSC 901

CITATION:	Bankstown Chatswood Rifle Club Inc v Commissioner of Police NSW [1999] NSWSC 901
CURRENT JURISDICTION:	Administrative Law List
FILE NUMBER(S):	30035/99
HEARING DATE(S):	01/09/99
JUDGMENT DATE:	10 September 1999
PARTIES :	Bankstown Chatswood Rifle Club Inc (Plaintiff) v Commissioner of Police NSW (Defendant)
JUDGMENT OF:	Barr J at 1

COUNSEL :	Plaintiff: A Leslie QC / A Leslie Defendant: G Willis
SOLICITORS:	Plaintiff: Steve Masselos & Co Defendant: G Doherty (Legal Services, NSW Police Service)
CATCHWORDS:	Firearms Act and Regulation - approval of club by Commissioner of Police - whether Commissioner entitled to revoke approval
ACTS CITED:	Firearms Act 1996 Pt 2 Firearms (General) Regulation 1997 Pt 9 Association Incorporations Act 1984
CASES CITED:	Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Buck v Bavone (1976) 135 CLR 110 Bruce v Cole (1998) 45 NSWLR 163
DECISION:	Summons dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

GRAHAM BARR J

Friday, 10 September 1999

30035/99 - BANKSTOWN CHATSWOOD RIFLE CLUB INC v COMMISSIONER OF POLICE NSW

JUDGMENT
1   HIS HONOUR: The plaintiff has the benefit of certain approvals made by the Commissioner of Police (“the Commissioner”) under the provisions of the New South Wales Firearms (General) Regulation 1997 (“the Regulation”). The Commissioner has stated an intention to revoke those approvals. The plaintiff claims an order prohibiting the Commissioner from doing so.

2 By each of three instruments signed on 25 September 1997 by the Director of the Firearms Registry of the New South Wales Police Service, the Commissioner approved the plaintiff under the provisions of Pt 9 of the Regulation as a Target Shooting Club, as a Hunting Club and as a Collecting Club.

3 Pt 9 of the Regulation is in the following terms -

Approval of clubs
77 Definition
In this Part:
club means:
(a) in relation to the genuine reason of sport/target shooting—a shooting club, or
(b) in relation to the genuine reason of recreational hunting/vermin control—a hunting club, or
(c) in relation to the genuine reason of firearms collection—a collectors’ society or collectors’ club,
that has been established for not less than 3 months.


78 Approval of club


(1) An application for the Commissioner’s approval of a club may be made by the secretary of the club (or other relevant office holder if there is no secretary) by lodging with the Commissioner an application in the approved form, together with:

(a) a certificate given by the applicant in the approved form setting out the full name, date of birth and residential address of each member of the club, and

(b) a copy of the rules of the club, and

(c) such other information and documents as the Commissioner may require.

(2) The Commissioner may:

(a) grant the approval either unconditionally or subject to such conditions as the Commissioner thinks fit, or

(b) refuse the application.

(3) The Commissioner must not grant an approval unless;


(a) the club concerned consists of 10 or more members, and

(b) the club’s rules are appropriate in the Commissioner’s opinion, and

(c) the Commissioner is satisfied that:

(i) the club has a genuine and proper constitution, and

(ii) the club will conduct its activities with proper regard to the preservation of public safety or the peace, and

(iii) the club will conduct regular meetings and activities; and

(iv) the club will maintain adequate public liability and member insurance, and

(d) the club is affiliated with one of the following associations and the association concerned has recommended the granting of the approval:

(there follows a list of associations including National Rifle Association of Australia Limited and NSW Rifle Association Inc.)

(4) In considering whether to grant an approval, the Commissioner may have regard to any training activities undertaken by the club.

(5) Despite clause 78 (3) (d), the Commissioner may grant an approval if the club concerned:

(a) operates outside New South Wales, and

(b) meets all the other criteria for approval under this clause.

79 Revocation of approval of club
(1) The Commissioner may revoke an approval of a club for such reason as the Commissioner thinks fit.
(2) Without limiting subclause (1), the Commissioner may revoke an approval if:
(a) the Commissioner is satisfied that the number of active members of the club is less than 10, or
(b) the Commissioner is satisfied that the club is not being conducted with proper regard to the preservation of public safety or the peace, or
(c) the Commissioner is satisfied that any conditions to which the approval is subject have not been complied with, or
(d) any member of the club is convicted of an offence under the Act or this Regulation, or any previous firearms law of New South Wales, or an offence under the firearms law of any other jurisdiction (being an offence that, had it been committed in New South Wales, would be an offence under the law of New South Wales), and the member has not been disqualified by the club as a member, or
(e) the Commissioner becomes aware that any member of the club has, within the period of 10 years before the approval was granted, been convicted of an offence referred to in paragraph (d) and has not been disqualified by the club as a member.
(3) The revocation of an approval of a club may be recommended to the Commissioner by the association in respect of which the club is affiliated.
(4) Revocation of an approval takes effect when written notice of it is served personally or by post on the secretary or other relevant office holder of the club concerned.

4   After giving his approval, the Commissioner gave further consideration to the provisions of cl 78(3)(b) and (c)(i). On 6 May 1998 the Director of the Firearms Registry wrote to the plaintiff in the following terms, formal parts omitted -

I refer to your application for the above club to be recognised as an approved target/hunting/collecting club in terms of clause 78 of the Firearms Regulations, 1997.
A closer review of your club’s constitution reveals the disciplines of hunting and collecting are not provided for. It will therefore be necessary for the constitution to be appropriately amended.
The approvals issued to your club on 26 March, 1998 for hunting and collecting will remain operative for a period of three (3) months i.e. 31 July, 1998, after which time the approvals will be withdrawn.
Should you wish to continue with the approvals for hunting and collecting, you should submit an amended constitution for review by this office.

5   There followed an exchange of letters. The plaintiff asserted that its constitutional powers were sufficient but the Director was not persuaded and said that notices of revocation would be served on the plaintiff. So the plaintiff brought this summons.

6 The plaintiff is a voluntary association of riflemen and was originally organised at the beginning of this century under Commonwealth defence legislation, now repealed. On 3 April 1996 application was made under the Associations Incorporation Act 1984, New South Wales, for the incorporation of the plaintiff. The applicant stated that the objects of the association were -

to promote rifle skills for defence; and
to promote membership of the National Rifle Association, NSW Rifle Association, State, Territorial and District Rifle Associations and Military Rifle Associations.

7   The principal activities of the association were stated to be -

Rifle Competition and Instruction

8 The applicant stated that the rules of the association were to be the model rules provided for by the Associations Incorporation Act.

9   The plaintiff was duly incorporated on 3 April 1996 and on 28 July 1997 changed its name to its present name.

10 By s 19(1) Associations Incorporation Act the objects of the plaintiff became those stated in the application for incorporation. By s 19(2) the model rules became its rules. The model rules say nothing about the objects of an association to which they apply other than to provide for their alteration, etc: rule 38.

11 The scheme of licensing persons to possess, use and collect firearms and of approving clubs of such persons for particular purposes is set out in the Firearms Act 1996 (“the Act”) and the Regulation.

12 The principles and objects of the Act are set out in s 3, which is in the following terms -

3. Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

13   S 7 provides that a person must not possess or use a firearm unless authorised to do so by a licence or permit. The section provides penalties for those who contravene its provisions.

14   S 4 defines certain terms, including the following -

“ possession ” of a firearm includes any case in which a person knowingly:

(a) has custody of the firearm, or
(b) has the firearm in the custody of another person, or
(c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.
“ use ” a firearm means fire the firearm or hold it so as to cause a reasonable belief that it will be fired, whether or not it is capable of being fired.

15   S 8 provides for certain categories of licences and specifies the firearms to which they apply and the authority they confer. Three kinds of licences are relevant for present purposes and they are set out in the section as follows -

Category A licence

Firearms to which the licence applies:

· air rifles
· rimfire rifles (other than self-loading),
· shotguns (other than pump action or self-loading)
· shotgun/rimfire rifle combinations.

All prohibited firearms are excluded from this licence category.

Authority conferred by the licence:

The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.

Category B licence

Firearms to which the licence applies:

· muzzle-loading firearms (other than pistols)
· centre-fire rifles (other than self-loading)
· shotgun/centre-fire rifle combinations.

All prohibited firearms are excluded from this licence category.

Authority conferred by the licence:

The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.

Firearms collector licence

Firearms to which the licence applies:

· the kinds of firearms specified in the licence.

Any pistol manufactured after 1 January 1946 is excluded from this licence category.

Any prohibited firearm (other than those firearms to which a category C licence or category D licence applies) is excluded from this licence category.

Authority conferred by the licence:

The licensee is authorised to possess the firearms to which the licence applies for the purpose of a firearms collection.

16   The genuine reasons that s 3(2)(c) requires possessors or users of firearms to have are dealt with in ss 4 and 12.

17   By s 4 a genuine reason means a genuine reason as referred to in the Table to s 12.

18   S 12 is entitled Genuine reasons for having a licence and, relevantly, provides as follows -

(1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

…

(4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant:

(a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and
(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

19   There follows a table in which available reasons are set out, together with certain requirements applying to applicants for licences who cite those reasons. The ones relevant to this summons are as follows.

Reason: sport/target shooting

The applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought.

Reason: recreational hunting/vermin control

The applicant must:

(a) be the owner or occupier of rural land, or
(b) produce proof of permission given by the owner or occupier of rural land, or by an officer of the National Parks and Wildlife Service, the Department of Land and Water Conservation, the Forestry Commission or other authority prescribed by the regulations, to shoot on rural land, or

(c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations.

The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on rural land, incur any liability merely because the person gives the applicant permission to shoot on the land concerned.

Reason: firearms collection

The applicant must:

(a) demonstrate that the applicant's firearms collection has a genuine commemorative, historical, thematic or financial value, and
(b) be a current member of a collectors' society or club approved by the Commissioner in accordance with the regulations.

20   It was submitted by counsel for the Commissioner that an individual applicant for a licence has to have a genuine reason for possessing, using or collecting a firearm. If the genuine reason is sport/target shooting, the applicant has to be a member of a shooting club approved by the Commissioner under the Regulation. If the genuine reason is recreational hunting/vermin control the applicant must, unless other conditions are satisfied which are not relevant here, be a member of a hunting club so approved by the Commissioner. If the genuine reason is firearms collection the applicant must be a member of a collectors’ society or club so approved. The Commissioner is prohibited from issuing a licence unless he is satisfied that these conditions have been met.

21   Cl 77 categorises clubs by reference to the genuine reasons of sport/target shooting, recreational hunting/vermin control and firearms collection provided for by the table to s 12. If a club cannot bring itself within the appropriate category the Commissioner cannot approve it. Under cl 78(2) the Commissioner must not give approval to a club unless he is satisfied, among other things, that the club’s rules are appropriate in his opinion and that it has a genuine and proper constitution.

22   Although the requirement that the club has a genuine and proper constitution may mean no more than that the constitution should ensure that the business of the club will be conducted in a lawful and proper manner, the requirement that the rules of the club are appropriate must be read in the legislative context, particularly cl 77. For the purposes of cl 78(3)(b) the plaintiff’s rules are wider than the model rules, which are to be construed in the light of other relevant documents, including the statement of objects in the application for incorporation. So construed, the rules provide for sport/target shooting but do not provide for hunting or collecting. The Commissioner would have been justified in withholding approvals of the plaintiff as a hunting club and as a collectors’ club. For the same reason, the Commissioner is justified in revoking those approvals.

23   Counsel for the plaintiff acknowledged the responsibility of the Commissioner to look widely at the model rules and the other documents but asserted that the issue was really one about the power of the plaintiff to carry out the activities of a hunting club and a collectors’ club.

24 Counsel relied on s 17 Associations Incorporation Act, which invests an incorporated association with the rights, powers and privileges of a natural person and, it was submitted, abolishes the common law doctrine of corporate ultra vires in its application to incorporated associations. The fact that an incorporated association does an act prohibited by its rules may be asserted or relied on only in the limited circumstances set forth in s 18(5), namely where a person is prosecuted for an offence against the Act, in proceedings against the association by a member, in proceedings by the association or the member against a present or former officer and in an application by the Commissioner or by a member of the association to wind it up. So the assertion that the conduct of the activities of the plaintiff are beyond its powers is wrong in law and manifestly unreasonable in the administrative sense. Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

25   The Commissioner is unable to come to the opinion that the rules of the plaintiff are appropriate. For present purposes that is tantamount to a decision that they are not appropriate. Such a decision is reviewable by the Court if the Commissioner appears to have acted arbitrarily or capriciously or has misdirected himself in law or has failed to consider matters that he ought to have considered or has taken irrelevant matters into account. In the absence of any of those factors, the Court may interfere if the decision reached by the Commissioner appears so unreasonable that no reasonable authority could properly have arrived at it. Buck v Bavone (1976) 135 CLR 110 per Gibbs J at 118; Bruce v Cole (1998) 45 NSWLR 163 per Spigelman CJ at 184-185.

26   It is implicit in the submissions of counsel for the plaintiff that if the plaintiff has power to perform a function there is no need for rules which provide for the performance of that function. It is unnecessary to decide whether, as a general proposition, that is correct. I think that the submission confuses the questions whether the plaintiff has power to perform a function and whether it is obliged by cl 78(1)(b) to furnish to the Commissioner rules which provide for the performance of that function.

27 Many kinds of organisations of individuals may apply to the Commissioner for approval as clubs. The Act and the Regulation say nothing about how clubs may or must be constituted. They do not need to be corporations or incorporated associations. There is no special requirement of formality. Although an applicant club must furnish written rules under the provisions of cl 78(1)(b), the legislation does not prescribe the form or content of such rules.

28   I accept the submissions of counsel that when considering the appropriateness of the rules of an applicant club the Commissioner is concerned with more than just whether the rules have legal validity. The Commissioner must consider the whole of the circumstances before him.

29   In considering whether a club’s rules are appropriate the Commissioner must have in mind the purposes of the legislation. Relevantly, they are to ensure public safety by imposing strict controls on the possession and use of firearms by promoting the safe and responsible storage and use of firearms.

30   The Commissioner is obliged to satisfy himself about the matters enumerated in cl 78(3) and is bound to withhold a grant of approval unless he is satisfied. The rules which the Commissioner must consider might ordinarily be expected to deal with a number of such matters. They might, for example, say something about the manner in which the club carries out its activities with regard to the preservation of public safety or the peace (subcl(3)(c)(ii)), about the regularity of its meetings and activities ((3)(c)(iii)), or about insurance ((3)(c)(iv)). They might say something about affiliation with any of the associations listed in subcl(3)(d). They might something of the club’s training activities ((4)).

31   Cl 81 of the Regulation places conditions on licensees who are members of approved clubs. During any period of twelve months a member of a shooting club must participate in no fewer than four shooting competitions and attend a range no fewer than four time (subcl(b)); during any period of twelve months a member of a hunting club must participate in no fewer than two events organised by any approved hunting club involving hunting, shooting or firearms safety training ((c)); a member of a collectors’ club must attend the club’s annual meeting or at least one other meeting over any period of twelve months ((d)).

32   S 12 requires a shooting club to conduct competitions and activities requiring the use of the firearm for which any applicant seeks a licence.

33   All these are matters which may be provided for in the rules of clubs. To the extent to which they are or are not so provided for, the Commissioner may be assisted in coming to a decision whether the rules are appropriate.

34   The rules of a club may stand alone and complete or they may be understandable only by reference to other documents, as it the case here. The model rules say nothing about shooting or hunting or collecting firearms. For the purposes of cl 78(1)(b) and (3)(b), therefore, the plaintiff’s rules must be taken to comprise not only the model rules but also the objects and principal activities stated in the application for incorporation.

35   They make the plaintiff a club whose object is to promote rifle skills for defence by rifle competition and instruction. It is not a matter of contention that the Commissioner construes the rules as of a shooting club.

36   However, nothing in the statement of objects or principal activities states expressly or impliedly that the plaintiff is or may also be a hunting club or a collectors’ club. The subjects of recreational hunting, vermin control and firearms collection are nowhere mentioned.

37   Contrary to the submission of counsel for the plaintiff, there has been no confusion of corporate power and corporate purpose. There has been no assertion by the Commissioner that the plaintiff’s conduct and activities are beyond its powers. Those are not matters about which the Commissioner is or needs to be concerned. It does not seem to me that, in deciding that the rules are not appropriate to a hunting club or a collectors’ club, the Commissioner has acted other than in good faith, has misdirected himself in law, has failed to consider relevant matters or has considered irrelevant matters. I do not think it possible to say that no reasonable authority could properly have arrived at the opinion of the Commissioner.

38   The summons is accordingly dismissed. The plaintiff must pay the Commissioner’s costs in an amount to be agreed or assessed.

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Last Modified: 09/16/1999