Clema and Commissioner Of Police

[2006] WASAT 24

CLEMA and COMMISSIONER OF POLICE [2006] WASAT 24

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 24
Act:	FIREARMS ACT 1973 (WA)
Case No:	CC:2581/2005	Heard:	22 NOVEMBER 2005
Coram:	MR T CAREY (MEMBER) BRIG A WARNER (SENIOR SESSIONAL MEMBER) MS M ANGUS (SESSIONAL MEMBER)	Delivered:	8/02/06
No of pages:	15	Judgment Part:	1 of 1
Result:	1.   Application unsuccessful 2.   Decision affirmed
Category:	B
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Parties:	JOHN MATHIAS CLEMA COMMISSIONER OF POLICE
Catchwords:	Firearms Application to review revocation of dealer's licence Whether requirement for genuine reason applies in the case of a dealer's licence Requirement for firearms by a person in the course of the person's occupation Dealer as occupation Whether applicant a "dealer" Consequences for genuine reason test Whether revocation sustainable in public interest
Legislation:	Firearms Act 1973 (WA), s 11, s 11A, s 11A(1), s 11A(2), s 11A(2)(d), s 11A(3), s 11A(4), s 11B, s 11C, s 16, s 20, s 20(1)(a)(iii), s 20(1)(ac), s 22(2), s 31(2), s 32 Interpretation Act 1984 (WA), s 10(c)
Case References:	Beaton v Wray-Watts [2005] WASCA 114 Nil
Orders	1.   The application is dismissed.,2.   The decision of the respondent's delegate made on 10 May 2005 to revoke the applicant's dealer's licence 9993494 is affirmed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : CLEMA and COMMISSIONER OF POLICE [2006] WASAT 24 MEMBER : MR T CAREY (MEMBER)

BRIG A WARNER (SENIOR SESSIONAL MEMBER)
MS M ANGUS (SESSIONAL MEMBER)

HEARD : 22 NOVEMBER 2005 DELIVERED : 8 FEBRUARY 2006 FILE NO/S : CC 2581 of 2005 BETWEEN : JOHN MATHIAS CLEMA

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearms - Application to review revocation of dealer's licence - Whether requirement for genuine reason applies in the case of a dealer's licence - Requirement for firearms by a person in the course of the person's occupation - Dealer as occupation - Whether applicant a "dealer" - Consequences for genuine reason test - Whether revocation sustainable in public interest

(Page 2)

Legislation:

Firearms Act 1973 (WA), s 11, s 11A, s 11A(1), s 11A(2), s 11A(2)(d), s 11A(3), s 11A(4), s 11B, s 11C, s 16, s 20, s 20(1)(a)(iii), s 20(1)(ac), s 22(2), s 31(2), s 32

Interpretation Act 1984 (WA), s 10(c)

Result:

1. Application unsuccessful

2. Decision affirmed

Category: B

Representation:

Counsel:

Applicant : Mr R Williamson
Respondent : Mr N Monahan

Solicitors:

Applicant : Williamson & Co
Respondent : State Solicitor's Office

Case(s) referred to in decision(s):

Beaton v Wray-Watts [2005] WASCA 114

Case(s) also cited:

Nil


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant sought review of a decision to revoke his firearms dealer's licence. The licence was revoked based on the respondent's beliefs that the applicant was not engaged in the activity of dealing in firearms and that it was not in the public interest that a person with no intention of dealing in firearms should be permitted to hold them.

2 The applicant submitted that, on the correct construction of the Firearms Act1973 (WA) (the Act), the "genuine reason" requirement which applied to licensees for particular firearms did not apply to holders of a dealer's licence. However, if this requirement did apply, the applicant was under no obligation under the Act to deal in firearms to any particular minimum standard, and the requirement was met because any firearms possessed under the licence were required for the purposes of such dealing as was undertaken.

3 The Tribunal analysed the provisions of the Act relating to the licensing system for firearms and ammunition, and decided that the "genuine reason" requirement does apply, on the natural meaning of the provisions, to the commercial type licences of which dealer's licence is an example. That being so, the relevant criterion, in the exhaustive list contained in the Act where genuine reason is established, of firearms being required in the course of the person's occupation needed to be considered on the facts of the applicant's case. The facts, as found by the Tribunal, were that for many years the applicant had not engaged in the occupation of firearms dealer and he had no present intention of doing so. Therefore, the Tribunal concluded, it could not be said that firearms which are or might in the future come into his possession were required in the course of his occupation as firearms dealer. The decision of the respondent was the correct and preferable decision on the basis that the applicant was unable to establish a genuine reason for acquiring and possessing firearms under a dealer's licence.

4 The decision was also correct, according to the Tribunal, based on the public interest against permitting a dealer's licence to remain current where the licensee was not, and had no present intention of, dealing.

Introduction

5 The applicant seeks review under s 22(2) of the Firearms Act 1973 (WA) (the Act) of a decision of a delegate of the respondent made

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10 May 2005 to revoke the applicant's dealer's licence 9993494 (decision).

6 Notice of the decision was contained in a letter dated 10 May 2005 signed by the delegate, which the applicant received on 17 May 2005. The letter outlined the reasons for the decision, based on the delegate's satisfaction that:

"1. You could not, because of section 11 [of the Act] as read with section 11A(2)(d), be granted a dealer's licence if you were now applying for such a licence as you do not have a 'genuine reason' for wanting to possess firearms under a dealer's licence. You are not, in the ordinary course of your business, buying, selling or trading in firearms.

2. Revocation of your dealer's licence is in the public interest. A person who has no intention to deal in firearms should not be permitted in the interests of public safety to accumulate a cache of firearms."

7 The two matters referred to are based upon the permissible grounds of revocation contained in s 20(1)(a)(iii) and s 20(1)(ac) of the Act respectively.

8 The applicant has held his dealer's licence since 1991. He has also held a firearm licence and firearm collector's licence since 1985.

9 At the hearing, the applicant, who was represented by Mr R Williamson of counsel, was granted leave to amend the grounds of his application to the following:

"1. That the applicant complies with the requirements of the Act relating to dealer's licences.

2. If the genuine reason test does apply, the applicant satisfies it."

10 Based on the submissions of both parties, both in written and oral form, the issues for determination are:

(a) whether an applicant for a dealer's licence is required to satisfy the requirement of "genuine reason";

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(b) whether, if the answer to issue (a) is "yes", the applicant does satisfy it;

(c) whether the licence should be revoked in the public interest in any event.

Does the "genuine reason" test apply to applications for firearm dealers' licences?

11 It is necessary to set out a number of sections, or portions of sections of the Act.

12 Section 20 vests the power of revocation in the Commissioner. Relevantly for present purposes it states:

"20. Revocation, etc.

(1) Where the Commissioner is satisfied –

(a) that a person who is the holder of a licence, permit or approval under this Act –

…


(iii) could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it;

…
he may refuse to renew or may revoke any licence, permit or approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon."

13 Section 11, which is concerned with exercise of the Commissioner's discretion, provides relevantly:

"11. Exercise of Commissioner's discretion

(1) The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that –

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(a) to do so would be contrary to section 11A or regulations under section 11B or 11C; …"

14 Section 11A contains the heading "Genuine reason required in all cases". Subsections (1), (2), (3) and (4) are reproduced here:

"(1) An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioner's opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit, or licence is sought.

(2) A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if —


(a) it is for use by the person as a member of an approved shooting club and the person is an active and financial member of the club;

(b) it is for use by the person as a member of an organisation approved under this paragraph;

(c) it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting;

(d) it is required by the person in the course of the person's occupation;

(da) in the case of a prescribed paintball gun, it is required by the person to conduct or engage in paintball in accordance with this Act;

(e) it is to form part of a genuine firearm collection or genuine ammunition collection; or

(f) it is for another approved purpose.


(3) A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or

(Page 7)

ammunition but also that the particular kind of firearm or ammunition can be reasonably justified.

(4) The reasons described in subsection (2)(e) are not genuine reasons for acquiring or possessing a firearm or ammunition under a licence other than a Firearm Collector's Licence or an Ammunition Collector's Licence."

15 Section 11B, which is headed "Genuine need required in some cases", provides:

"(1) The regulations may provide that, for prescribed categories of firearms or ammunition, an approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm or ammunition of that category.

(2) The regulations may make provision as to the circumstances in which a person can or cannot be considered to have a genuine need to acquire or possess a firearm or ammunition of a particular category."

16 Section 11C is headed "Other restrictions" and provides:

"The regulations may restrict the grant, issue, or renewal of licences, permits, or approvals under this Act."

17 Section 16 provides for the various types of licences which may be issued. Subsection (1) refers, amongst other licences, to:

"(1) The licences which may be issued under this Act are -

(a) a Firearm Licence, which entitles the holder to possess, carry, and lawfully use the firearm named and identified in that licence, and ammunition for that firearm;

(b) a Firearm Collector's Licence, which entitles the holder to possess, but not to carry or use, the firearm named and identified in that licence;

(c) …

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(d) a Dealer's Licence, which entitles the holder to deal in firearms and ammunition on the premises named and identified in that licence, to receive firearms for the purpose of their being dismantled for parts, and to arrange for the repair or servicing of firearms by the holder of a Repairer's Licence, and authorises the holder or an employee or partner of the holder to have in his possession, and to carry in the ordinary course of the business of that dealer, any such firearm or ammunition or to use it for the purpose of testing it or of demonstrating it to a prospective purchaser;

(e) a Repairer's Licence, which entitles the holder to -


(i) repair firearms belonging to persons who are authorised by this Act or any other law to possess them; and

(ii) possess ammunition for those firearms,


on the premises named and identified in that licence, and authorises the holder or an employee or partner of the holder to have in his possession, and to carry in the ordinary course of the business of that repairer, any such firearm or ammunition and to use any such firearm or ammunition for the purpose of testing it;

(f) a Manufacturer's Licence, which entitles the holder to manufacture firearms or ammunition of the kind specified in that licence on the premises named and identified in that licence and to sell and dispose of such firearms and ammunition at those premises, and authorises the holder or an employee or partner of the holder to have in his possession, and to carry in the ordinary course of the business of that manufacturer, any such firearm or ammunition and to use any such firearm or ammunition for the purpose of testing it or of demonstrating it to a prospective purchaser;

(g) a Shooting Gallery Licence, which entitles the holder to conduct a shooting gallery in accordance

(Page 9)

with the regulations on the premises specified in that licence; and

(h) …"

18 The applicant asserted that s 11A of the Act did not apply to an application for a dealer's licence, based on the construction of the words in s 11A(1) "a genuine reason for acquiring or possessing the firearm or ammunition for which the … licence is sought". According to the applicant's submission, a dealer's licence applicant does not seek a licence for acquiring or possessing a firearm (or ammunition). That description is apposite to applications for other licences such as a firearm licence, a firearm collector's licence and an ammunition collector's licence, where the licence applied for relates to a single, specified firearm; it is not apposite in the case of the "commercial licences" provided for in s 16 (dealer's licence, repairer's licence, manufacturer's licence and shooting gallery licence) which are concerned with the future acquisition of firearms. Mr Williamson described as "nonsensical" speaking of any "purpose" for acquiring or possessing a firearm in the dealer's licence context.

19 Mr Williamson pointed to some other provisions in the Act as lending currency to his primary submission. He observed that s 11A(3) could relate only to particular firearms or ammunition. Section 11B is similarly limited. Section 11C, which authorises the making of regulations to "restrict the grant, issue, or renewal of licences …", would apply to commercial licences, but no such regulations have been made.

20 According to the applicant, there is no difficulty arising from the construction he places on these sections of the Act. Limitations on the rights of holders of licences to which s 11A applies are set out in s 11A(2). Section 11A(2)(d) would allow the issue of a licence in respect of particular firearms and ammunition to persons who are, for example, farmers or kangaroo shooters. On the other hand, the commercial licences are subject to a different regime imposed by other sections of the Act and the public interest is served by the security provisions within those sections.

21 We do not agree with the construction that the applicant has sought to place on s 11A of the Act. That construction, in our opinion, attributes an overly limited meaning to the words "the firearm … for which the … licence is sought". There is no reason for superimposing on the section a requirement that the firearm be specified or identified. Bearing in mind

(Page 10)

that s 10(c) of the Interpretation Act 1984 (WA) deems that in any written law words in the singular include the plural, use of the singular "firearm" in s 11A(1) lends no weight to the applicant's argument. Further, although it is true that some of the types of licences may be distinguished from others by reference to the fact that some licences are applied for and granted in respect of specific firearms (see Beaton v Wray-Watts [2005] WASCA 114 at [24]), that is not to say that the other licences having a commercial purpose, and granted prospectively, are licences to which the requirement for a genuine reason for acquiring or possessing any firearm in the future might not attach. In our view, any firearm acquired and dealt with by a holder of a dealer's licence during the currency of the licence falls within the natural meaning of "firearm for which the licence (was) sought", despite the fact that the firearm was incapable of identification at the time the licence was applied for. The reason for the licensee obtaining the licence was to enable him to acquire such firearms. This construction, in our view, is also consistent with the clear policy of the Act that any firearm acquired by or in the possession of a person should be so acquired or possessed only where the person has a genuine reason for doing so.

22 We agree with the respondent's submission in response to the applicant's contention based on s 11A(3) of the Act. That submission was that this subsection applies only in cases of applications for licences of a particular kind, namely, licences enabling the acquisition or possession of firearms or ammunition of a particular kind. In such a case, the genuine reason requirement applies to the particular kind of firearm or ammunition in respect of which the licence is sought. Section 11A(3) would not apply to an application for a dealer's licence for the reason that the licence applicant is not seeking any such permission. We do not consider that the subsection assists the argument of the inapplicability of the section to the commercial type licences.

23 We also do not believe that s 11B and s 11C of the Act assist the applicant. In relation to s 11C, the capacity for regulations to restrict the issue of licences is a stand-alone provision which does not bear upon the proper construction of s 11A.

Does the applicant have a genuine reason for acquiring or possessing firearms the subject of his dealer's licence?

24 The Tribunal has found that s 11A applies in the case of applications for a dealer's licence, and therefore requires licence applicants to have a genuine reason for acquiring and possessing firearms the subject of the licence. The only example of genuine reason to be found among the

(Page 11)

exclusive list in s 11A(2) which might apply to dealers' licences is paragraph (d), that is, if the licence "is required by the person in the course of the person's occupation". In the context of a dealer's licence, the occupation in question must necessarily be that of dealer, which is defined by s 4 of the Act as "a person who in the ordinary course of business buys, sells or trades in firearms or ammunition".

25 On a review by the respondent of the conduct of the holder of a dealer's licence, it would be a relevant matter that there had been an absolute or relative failure to deal in firearms for a considerable period. In such a circumstance, the conclusion might be open that the firearms acquired or possessed, or to be acquired or possessed, under the licence are not required in the course of the licensee's occupation, for the reason that the licensee is not in fact engaging in the occupation of firearms dealer. Having arrived at such a conclusion, the respondent would be entitled to revoke the licence under s 20 on the basis that had the licensee been then applying for the licence, he would be prevented by s 11(1) from obtaining it.

26 The respondent led evidence of the paucity of the applicant's level of dealing in firearms for a number of years. The evidence, which was not seriously contested, was to the effect that the applicant engaged in no transactions relating to firearms (purchasing or selling) between August 1997 and January 2005. During the period December 1991 to August 1997, the applicant sold a total of two firearms, imported 33 firearms from the United States (most, if not all of which, the applicant retained until he was required to relinquish them in consequence of the decision) and engaged in the sale, sale-back and re-sale of a particular firearm. The applicant's dealings were to be compared with licensed dealers operating from business premises who had a monthly average of 50 – 100 transactions and licensed dealers operating from home who had a yearly average of 33 transactions.

27 The applicant filed a statement in which he referred to his occupation as a geologist for 40 years and his membership and fellowship of a number of professional organisations. He is also the member of some organisations concerned with firearms, including the Winchester Collectors Association. He said he is a consultant geologist and a director of five private companies with interests in mining tenements in WA. In the past five or six years, he has spent a lot of time as a vendor/promoter of a base and precious metal deposit in WA, which was recently floated as a public company.

(Page 12)

28 The applicant's statement went on to refer to his dealer's licence, and in particular, that when he applied for his licence in 1991, he told the police of his object to operate a "hobby business". The statement referred to the initial refusal of the police to grant the licence and of his successful appeal against that decision, and of the 1997 revocation of his licence which was overturned on appeal. The applicant's statement indicated his continuing commitment to his geological work by commenting, "I have been in any event since then even busier than I had been before".

29 At the hearing, the applicant gave evidence about his dealings under his dealer's licence, and also of his intention of his future involvement in such activity. He agreed that he had not engaged in any dealings in firearms between 1997 and March 2005. Although in examination in chief he said that had he understood there existed a need to conduct a minimum number of transactions in order to maintain his licence, he would have been able to achieve five or six dealings over the next 12 months, under cross-examination he displayed some equivocation about this response. He said that there was a limited market for the particular firearms which he had procured under the dealer's licence. At one point, he admitted that he originally sought the dealer's licence to enable him to obtain Winchesters, which are his first love in firearms, without the need to apply on each occasion to the police station.

30 The applicant said that since receiving the letter which notified him of the decision, and motivated by the letter, at least in part, he had dealt in five firearms, in each case in March 2005 involving selling a firearm to another dealer whom the applicant acknowledged would find it easier to sell to the public. His ability to spend time in his dealing activities was severely constrained by his full-time occupation as consultant geologist, which involved substantial periods of travel. He said under cross-examination that he is "some time off" retiring from his full-time work.

31 Mr Williamson's primary submission on the subject of a licensee's use of his dealer's licence, is that such a person is under no obligation to deal in firearms to a minimum extent. This, in our view, begs the question as to whether in exercising its revocation power the respondent is entitled to have regard to a lack of dealing in reaching a finding about the licensee's requirement for firearms in the course of his occupation, a question which we have determined in the affirmative.

32 The applicant's counsel's ancillary submission is that the applicant does comply with s 11A(2)(d), because the firearms are required by him

(Page 13)

in the course of his (in Mr Williamson's words) "admittedly miniscule" occupation as firearms dealer. In our view, this approaches the issue to be resolved from the wrong direction. It is not sufficient that the applicant satisfy the self-fulfilling requirement that any firearm which he holds under his dealer's licence be one which a person engaged in the occupation of dealing might have. Consideration of the person's occupation must come first.

33 We are satisfied on the evidence that the applicant has not engaged in the occupation of firearms' dealer for many years and that he has no present intention of doing so. The number and nature of the transactions conducted under his licence are such that he falls well short of the definition of "dealer" in the Act. His evidence of the number of dealings he anticipated he could achieve if required was unconvincing and inconsistent with the applicant's previous record of "dealing" over many years, but even assuming that he could achieve the number given of five or six per year, this would not be sufficient in our mind for the applicant to engage in the occupation of firearms dealer. Reflecting on the applicant's own description to police at the time he originally applied for the licence, his interest in firearms has been a "hobby" rather than a "business". Such an interest is capable of being pursued within the licensing scheme of the Act by applying for a firearm collector's licence in relation to particular firearms.

34 In these circumstances, it cannot be said that any firearms in the applicant's possession or to be acquired in the future under his dealer's licence are required in the course of the occupation of firearms dealer. Consequently, the applicant would be unable to establish a genuine reason for acquiring or possessing firearms under a dealer's licence if he were now applying for one under s 11A, and could not, because of s 11, be issued such a licence. On this basis, we have reached the conclusion that the correct and preferable decision is that the application be dismissed and the respondent's decision be affirmed.

35 Mr Williamson further submitted that if it were necessary that the applicant engage in dealing in order to establish his entitlement to retain the licence, he would do so, and the respondent would be entitled to revoke at some future time if he failed to do so. This submission is also rejected. Apart from its inherent acknowledgement that the revocation power might be invoked in the case of a failure to deal, it is only as good as the level of anticipated dealing to which the applicant was prepared to commit himself in evidence (namely five or six dealings per year). As we

(Page 14)

have found, such a level is insufficient to qualify the applicant's anticipated activity as the occupation of dealer.

Should the applicant's licence be revoked in the public interest?

36 The respondent's decision was based on the further ground, contained in s 20(1)(a) of the Act, that revocation was in the public interest. The respondent's submission in support of this ground, in paraphrased form, was that the Act evinces a purpose to closely regulate firearms in the public interest, and that this was achieved by establishing a licensing system for firearms under which licence applicants can apply for particular types of licences subject to applicable restrictions. It would be contrary to that purpose (and the public interest) for a licence to be held by a person who does not carry on the activity that the issue of the licence contemplated.

37 The applicant's counsel considered it a "bizarre" proposition that a dealer's licence might be revoked on the basis that he was not dealing in firearms, with the prospect that firearms held by him in the secured facilities in which he is required under the Act to keep them are transferred to less secure facilities required of holders of other licence types. The response to the suggestion that it was contrary to the public interest for the holder of a dealer's licence to continue to hold the licence where he was not dealing in firearms was that the provisions of the Act themselves protected the safety of the public for so long as the licence continued to be held, and s 32 and s 31(2) were referred to in this regard. These provisions, it was submitted, formed one of the ways in which the Act resolved the conflict between the threat to the public posed by firearms in the wrong hands and the Parliament's decision to permit private use of firearms. Moreover, insistence on a dealer actually dealing at some minimum level would lead to the result that there would be more firearms in the community, which might be thought inimical to the public interest.

38 We prefer the respondent's submission on the public interest issue to that of the applicant. In our view, the applicant's argument focuses upon the immediate, microeconomic consequences of a decision to revoke his licence, rather than the effect in terms of the purpose of the Act referred to in our paraphrasing of the respondent's submission. In considering the public interest, the correct focus is in our view the clear statutory purpose sought to be achieved. Given the Act's purpose of limiting firearms in the community by means of a licensing system based on the concept of genuine reason, we consider that it would not be in the public interest to

(Page 15)

permit the holder of a dealer's licence who has not for some years in fact been dealing, and who has no present intention to commence dealing, to continue to hold a dealer's licence. We would affirm the respondent's decision on this additional basis.

Order

39 The Tribunal makes the following orders:

1. The application is dismissed.

2. The decision of the respondent's delegate made on 10 May 2005 to revoke the applicant's dealer's licence 9993494 is affirmed.









I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.









___________________________________

MR T CAREY, MEMBER