Commissioner of Police, New South Wales Police v Macdonald (GD)

[2007] NSWADTAP 13

Appeal Panel - Internal

CITATION:	Commissioner of Police, New South Wales Police v Macdonald (GD) [2007] NSWADTAP 13 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT Commissioner of Police, New South Wales Police RESPONDENT Clyde Robert Macdonald
FILE NUMBER:	069071
HEARING DATES:	19 February 2007
SUBMISSIONS CLOSED:	19 February 2007
DATE OF DECISION:	7 March 2007
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063056
DATE OF DECISION UNDER APPEAL:	10/26/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996 Firearms Regulation 2006 Interpretation Act 1987
CASES CITED:	Sporting Shooters Association (SSA) v Commissioner of Police, NSW Police [2006] NSWADT 300 Toleafoa v Commissioner of Police [1999] NSWADTAP 9 O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150 Khan v Minister for Immigration and Ethnic Affairs (Federal Court of Australia 11 December 1987 unreported) Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998); 195 CLR 355 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 The Commonwealth v Baume [(1905) 2 CLR 405 R v Berchet (1688) 1 Show KB 106 [89 ER 480]
REPRESENTATION:	APPELLANT K Richardson of counsel instructed by M Dalla-Pozza, Crown Solicitor's Office RESPONDENT S Mainstone, solicitor, Mainstone Lawyers
ORDERS:	1. Decision under appeal set aside; 2. Application for review remitted for redetermination by the Tribunal differently constituted

1 This appeal concerns the way the Firearms Act 1996 (the Act) applies to club armourers in shooters clubs in New South Wales.

2 The Commissioner of Police, as administrator of the Act, has appealed against a decision of the Tribunal overturning his delegate’s refusal to grant a licence to Mr Clyde R Macdonald, armourer of the Illawarra Branch club of the Sporting Shooters Association of New South Wales: see Sporting Shooters Association (SSA) v Commissioner of Police, NSW Police [2006] NSWADT 300. (The parties have agreed that the internal review determination misnamed the applicant as the Sporting Shooters Association, and that error was repeated in the application for review to the Tribunal and in the Tribunal’s determination. The application for review and the notice of appeal have been amended.)

3 The appeal is brought under ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). An appeal may be made as of right on a question of law, and, by leave, the appeal can be extended to the merits. In this instance the appeal only concerns questions of law.

4 The order sought is that the Tribunal’s decision be set aside, and the review application be remitted for redetermination.

Authorities granted to Club Armourers

5 The club armourer is a functionary within a shooters club who handles members’ weapons for various purposes. The dictionary definition of ‘armourer’ that most closely approximates to the role of an armourer in a shooters club is the third of the following definitions given in the Macquarie Dictionary Online (2007):

‘1. a maker or repairer of armour. 2. a manufacturer of arms. 3. an official, soldier or sailor in change of the upkeep of small arms in a regiment or on a naval vessel.’

6 The role is recognised by s 4 of the Act:

‘ club armourer means a person:

(a) who is a member of a shooting club approved by the Commissioner in accordance with the regulations, and

(b) who, in the opinion of the Commissioner, is the club armourer for that club.’

7 In order to avoid committing the serious offence of possession of a ‘prohibited firearm’ (see s 7 and Schedule 1) when dealing with members’ weapons, an armourer must hold an appropriate authority from the Commissioner. An authority may be provided either by grant of a licence or grant of a permit.

8 Permits may be issued by the Commissioner to cover a variety of specific situations, as set out in s 28. The Commissioner also has an unfettered discretion to issue a permit in other situations. That power is conferred by s 28(g) which allows a permit ‘to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate’.

9 The various categories of licence include one which refers specifically to the situation of the club armourer. This licence is the second of two types described under the heading ‘firearms dealer licence’ in s 8(1):

‘(1) The categories of licences, the firearms to which they apply, and the authority they confer, are as follows:

… Firearms dealer licence

Firearms to which the licence applies:

• the kinds of firearms specified in the licence.

Authority conferred by the licence:

In the case of a firearms dealer other than a club armourer, authorises the licensee and (subject to the conditions of the licence and the regulations):

(a) employees or directors of the corporation specified in the licence, or

(b) employees of the partnership so specified, or

(c) employees of the individual so specified,

who are eligible to be issued with a licence and who are authorised in writing by the Commissioner, to possess, manufacture, convert, purchase, sell, transfer, repair, maintain or test, in the course of carrying on the business of a firearms dealer, and only at the premises specified in the licence, any firearm to which the licence applies, and to possess, manufacture, purchase or sell ammunition for those firearms.

In the case of a club armourer, authorises the licensee to possess, manufacture, convert, purchase, sell, transfer, repair, maintain or test in the licensee’s capacity as a club armourer, and only at the premises specified in the licence, the firearms to which the licence applies, and to possess, manufacture, purchase or sell ammunition for those firearms.

The authority conferred by a firearms dealer licence issued to a club armourer is restricted to carrying out the person’s duties as club armourer for the club concerned.’

10 It will be seen that the first of the two types of firearms dealer licence addresses the situation of the commercial firearms dealer (called the ‘firearms dealer simpliciter’ in the decision under appeal), and the second addresses the situation of the club armourer. The characteristic which both types share is the reference to the wide range of functions that can be performed under the licence. On the other hand the description of the commercial firearms dealer licence refers to two matters not repeated in the description of the club armourer’s licence: the carrying on of business, and the undertaking of permitted activities by employees.

Background

11 Mr Macdonald held a Commissioner’s permit (our emphasis) in the period from 1999 to 2004. It conferred a limited authority, simply permitting him as club armourer to transfer firearm ownership between club members. It did not confer authority to exercise any of the other wide-ranging functions mentioned in s 8(1).

12 He applied to the Firearms Registry to renew the permit on these terms in April 2004. The application was refused in July 2004 on the ground that it was ‘not appropriate’ to grant a permit under s 28(g). No explanation was given as to why it was not appropriate. He was advised instead to apply for a ‘Club Armourer’s Licence’ under s 8. He did so.

13 At all points the authority sought, to use the words of the club, has simply been to enable Mr Macdonald to ‘transfer ownership of long arms for our members’. Neither Mr Macdonald nor the club has sought approval to undertake any of the other activities mentioned in s 8. Mr Macdonald does not wish to upgrade security and safe keeping at his home (the approved premises under the previous permit). His security set-up meets the standard known as Level 1. The standard now being required by the Registry is known as Level 3. He does not consider it necessary, given the limited amount of activity for which he is seeking permission, to upgrade to Level 3, with the necessity to make substantial alterations to his home.

14 The application is in the nature of an interim or transitional application. The licence application has been the subject of a protracted process of correspondence that has gone on from April 2004 to February 2006 involving Mr Macdonald, the Firearms Registry, the club and since September 2005 the club’s solicitor (Mr Mainstone).

15 In September 2005 the club wrote to the Registry, advising that once a new indoor range was constructed at the Wollongong Recreation Park, it would expect to apply for a ‘full armourers licence’ with Level 3 security. In that letter, the club supported Mr Macdonald’s application asking that favourable consideration be given to granting a ‘qualified approval such that a conditional Club Armourer’s Licence may be issued by the Firearms Registry’.

16 The Registry asserted in a letter of 15 September 2005 that a ‘conditional club armourer’s licence cannot be issued’. This assertion is repeated in the internal review determination of the Commissioner’s delegate dated 10 February 2006 which is the decision the subject of the review proceedings in the Tribunal.

17 This appears to be an administrative policy of the Registry’s making. It is plain that the Act does allow the Commissioner to issue licences subject to conditions: s 19(1). This provision and the broad discretion given to the Commissioner to issue permits under s 28(g) are both designed, we think, to provide the Commissioner and the Registry with the ability to be flexible in dealing with particular situations. We return to this point later in our reasons.

18 The same point is made in Mr Mainstone’s letter to the Registry, dated 13 October 2005. In response the Registry stated that it did not intend to deal with Mr Macdonald’s application, or give formal reasons for refusal (letter, 28 October 2005). Understandably, Mr Mainstone protested and asked that the Registry proceed to deal with the application (letter, 9 November 2005).

19 Original Determination. On 27 January 2006 a delegate of the Commissioner issued a notice of refusal of the application giving the following reason for refusal:

‘I am satisfied that it would not be in the public interest for you to hold a Club Armourer Licence as your safe storage requirements do not meet the Level 3 standard, as required by all dealer/club armourer licence applications.’

20 The statement then recorded as the ‘applicable law’ s 11(7) of the Act and cl 34 of the Firearms (General) Regulation 1997 which has now been replaced (unamended) by cl 37 of the Firearms Regulation 2006.

21 Section 11(7) provides:

‘(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.’

22 Clause 37 provides:

‘ 37 Additional restrictions in relation to issuing firearms dealer licences

(cf 1997 cl 34)

(1) A firearms dealer licence that authorises a firearms dealer to carry on business at specified premises must not be issued unless the Commissioner is satisfied that:

(a) the applicant is carrying on or proposes to carry on the business of a firearms dealer at those premises, and

(b) those premises are suitable for carrying on the business of a firearms dealer.

(2) In considering whether or not premises are suitable for such purposes, the Commissioner is to have regard to the following:

(a) the nature of the activities proposed to be conducted on the premises,

(b) the kinds of firearms to which the licence relates,

(c) whether adequate provision has been made for the safe keeping of firearms by means of a safe or strongroom or otherwise,

(d) the security of the premises against unauthorised entry,

(e) in the case of a licence that authorises the testing of firearms on the premises—whether an efficient bullet recovery box or bullet stop is provided on the premises.’

23 Accompanying the formal notice of refusal was a letter to Mr Mainstone from Mr Capper, Manager, Firearms Registry. It explained that the Commissioner required a Level 3 Certificate of Inspection, and that had not been furnished. It referred to correspondence which indicated that Mr Macdonald’s storage facility did not comply with the Level 3 standard.

24 Internal Review Determination. The internal review determination was issued on 10 February 2006 (tab 11 of the Commissioner’s briefing folder). It concluded:

‘The Act is clear that a Club Armourer’s licence must not be issued if the Commissioner does not consider that the security and safe keeping of firearms can be met. As you cannot provide the Level 3 provisions deemed appropriate for a Club Armourer’s licence, in the interests of public safety I agree [with the original determination] that your application should be refused.’

25 This determination, like the original determination, relied on s 11(7) and cl 37.

26 It is against this background that this case has found its way to the Tribunal.

The Practical Issue

27 The uncontested evidence is that Mr Macdonald only deals with members’ weapons falling in the AB category for the purpose of sales between members; and there are only a few transactions of this kind in any year. Mr Macdonald has a personal AB firearms licence, and has the level of safe keeping required for that licence. Into the AB firearms category fall rifles and shotguns, including rim-fire and centre-fire, which are not self loading or pump action. The safe keeping standard for AB firearms storage requires a locked steel or hardwood cabinet, that is fixed to the wall, and with a separate fixed, locked container for storage of ammunition (see further s 40). This is the standard known as Level 1.

28 The impasse in this case results from the Registry’s insistence that the policy set out in its publication, NSW Police – Firearms Registry, Recommended Safe Storage of Firearms for Dealers, applies equally to both commercial firearms dealers and club armourers, a view that, it would seem, was not held in 1999. The policy recommends that firearms dealer premises have perimeter doors which are of solid construction, with mortices and deadlocks, that they have perimeter windows and skylights with security grilles, together with an intruder alarm system. The alarm system is to have special features such as ultrasonic movement detectors, and, wherever possible, a back to base landline to a private security company. This is the standard known as Level 3.

Tribunal’s Reasons

29 The reasons for refusal given by the Commissioner’s delegate referred to cl 37 of the Firearms Regulation as being part of the applicable law. The Tribunal examined the question of whether this clause did, properly construed, apply to club armourer licensees. This question had not been a matter of significant dispute between the parties prior to the hearing or at hearing. It was raised by the Tribunal after the hearing, and submissions were invited.

30 The Tribunal held that cl 37 was not applicable to club armourers, and only applied to commercial firearms dealer licences. We will not set out its reasons at length. The Tribunal then went on to consider the ultimate issue, of whether the Commissioner was correct in refusing to grant the application in the public interest. It said:

‘49 There is no suggestion on the material before me, or in the submissions made by the parties, that Mr MacDonald is other than a fit and proper person to be granted a firearms dealer licence. There is no evidence which raises any concern as to whether he can be trusted to have possession of firearms without danger to the public safety, or to the peace. There is no suggestion he has, or will have, any close associates who are not fit and proper. There is agreement that he has access to safe keeping facilities suitable for the holder of a class AB firearms licence at his home, which is where he proposes to carry out his role as club armourer. He seeks a firearms dealer licence (club armourer) limited to those categories of firearm. I am therefore satisfied that Mr MacDonald satisfies the requirements of s.11 [restrictions on issuance] and s.17B of the Firearms Act 1996 [fit and proper person requirement].

50 The Commissioner refused Mr MacDonald’s application on the basis that he was unable to satisfy the safe keeping requirements set out in clause 34 of the Firearms (General) Regulation 1997, now clause 37 of the Firearms (General) Regulation 2006. I have found that that provision does not apply to a person who holds a firearms dealer licence authorising them to undertake activities in the capacity as club armourer. There is therefore no requirement that Mr MacDonald comply with safe keeping requirements of clause 37. For that reason alone the decision of the Commissioner must be set aside.

51 The other basis upon which the Commissioner refused Mr MacDonald’s application for a firearms dealer licence was by an exercise of the Commissioner’s discretion, granted by s.11(7), to refuse the application in the public interest. The underlying public interest there in issue was Mr MacDonald’s inability to meet the safe keeping requirements of clause 34 (now 37). Because he could not meet those requirements “in the interest of the public” his application was refused. As I have found those safe keeping requirements do not apply in Mr MacDonald’s case, the public interest relied on by the Commissioner in making that decision falls away: it was illusory. I can see no public interest basis on the material before me for exercising the discretion to refuse Mr MacDonald’s application.

52 In my view the correct and preferable decision in this case is to set aside the decision under review and in its place grant Mr MacDonald a firearms dealer, licence limited to category A and B firearms, authorising him in his capacity as club armourer to undertake the activities specified in s.8 which may be conferred on a club armourer, at the address specified in his application.’

The Appeal

31 The Commissioner appeals on the following grounds:

1. The Tribunal erred in deciding that cl 37 did not apply to persons who held firearms dealers licences as a club armourer. In particular the Tribunal erred in:

a. concluding that s 8 of the Firearms Act establishes two types of mutually exclusive firearms dealers licences;

b. that cl 37 cannot apply to club armourers because a club armourer is necessarily excluded from carrying on a business; and

c. concluding that the interpretation of cl 37 was not ambiguous and therefore failing to have regard to the objects of the Firearms Act as required by s 33 of the Interpretation Act 1987

2. The Tribunal erred in concluding that, if cl 37 does not apply, the Commissioner is not obliged to consider the public interest in the safe storage of firearms. In reaching this view, the Tribunal failed to have regard to ss 3 (objects) and s 11(7) of the Firearms Act.

Assessment

32 In our view the Tribunal’s decision was in error in two respects, both related to the second ground of appeal. One, it erred in para [50] in concluding that because there was no requirement that Mr Macdonald comply with the safe keeping requirements of cl 37 that the Commissioner’s decision must be set aside. Two, it erred in not explaining more precisely its decision favouring the grant of the application. It did not explain adequately whether it favoured the grant of a restricted, conditional licence or the grant of a full, unrestricted licence. If the latter, it needed to explain more clearly why Level 1 security might be seen as adequate for the grant of a full, unrestricted licence. As to the Commissioner’s first ground of appeal, we do not think that it erred in its conclusion as to the non-applicability of cl 37 to club armourer licence applications.

33 Reasons at para [50]. The Tribunal’s approach was influenced by the way the review officers had expressed their reasons. In our view, the Commissioner’s response to the application did not, contrary to the apparent views of the review officers, depend on it being established that cl 37 was applicable to club armourer applicants.

34 The Commissioner’s ultimate decision was one made in the exercise of the public interest discretion. The ‘public interest’ is ‘an inherently broad concept’ allowing an administrator ‘to have regard to a wide variety of factors’: Toleafoa v Commissioner of Police [1999] NSWADTAP 9 at [25]. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216, Mason CJ, Brennan, Dawson, Gaudron JJ said:

‘The expression ‘in the public interest’ when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’”.
(Where the public interest lies is a question of fact and degree: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 395.)

35 Were there no cl 37 it would still be open, as we see it, for the Commissioner to have regard to the matters of the kind listed in cl 37. As the Commissioner’s counsel submitted to us, safe keeping lies at the heart of the public interest considerations that bear on the use of firearms in the community, as reflected in the objects of the legislation: see s 3(1)(b)(i) and (ii). Clause 37 does not prescribe or preclude the issuance of guidelines or policies on this subject. It is noteworthy that the policy guideline issued by the Registry makes no reference to cl 37.

36 Reasons at paras [52]-[52]. We do not agree with the Commissioner that in paras [51]-[52] the Tribunal went so far as to exclude entirely safe keeping as a public interest consideration. The Commissioner’s case is built on the use by the Tribunal of the expression ‘illusory’. When the Tribunal used the word ‘illusory’ in para [52], we think the Tribunal was saying, in a short-hand way, that the case made by the Commissioner suggesting that Level 3 standards must be applied was ‘illusory’ and that in the circumstances the level of safe keeping Mr Macdonald did have – Level 1 – was sufficient and acceptable.

37 The review officers’ reasons were infected by inflexibility, and the reasons of the Tribunal at [51] and [52] were, in our view, responding to this. As we have noted, the Registry had, from the outset of its dealings with Mr Macdonald over the renewal, cut off the possibility of dealing with this case by the reissue of a circumscribed permit, and later, by a circumscribed licence.

38 The internal review determination issued 10 February 2006, continuing this approach, asserts that ‘once a Club Armourer’s licence is granted, the licence holder is authorised to perform all these functions, irrespective of whether or not the licence holder chooses to perform them.’ As we have already noted, this is wrong. The Commissioner’s delegate in the internal review determination also asserted that the policy was mandatory, though some of the earlier correspondence from the Registry had raised the possibility of waiver (see Commissioner’s briefing folder, tab 6).

39 It is obvious that the holders of firearms dealer licences (whether they are commercial dealer licensees or club armourer licensees) may come in various shapes and sizes. A blanket application of a fixed policy may not be appropriate in all cases. There may well be cases where a much higher standard than the general standard reflected in the policy is required in the public interest. There may be cases where a lesser standard is acceptable.

40 There is a well-known body of law which prohibits the inflexible application of policy without regard to the specific circumstances of an application: see for example, Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640 per Brennan J; Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150 at 155 per Spender J; and Khan v Minister for Immigration and Ethnic Affairs (Federal Court of Australia 11 December 1987 unreported) per Gummow J; generally, Aronson, Dyer & Groves, Judicial Review of Administrative Action (3rd ed, 2004), 275-282. The case-law also emphasises that tribunals should have regard to the policies issued by experienced administrators. The case-law recognises the role that policies play in guiding the exercise of discretion, and ensuring that like cases are treated alike.

41 In our view the policy guideline has as its primary focus the type of safe keeping that is normally to be expected of commercial firearms dealers. We can imagine circumstances, on the other hand, where the range of weapons used, the range of activities undertaken by the armourer and the regularity of storage of those weapons in a shooters club may mean that standards equal to those normally expected of commercial dealers would be quite appropriate.

42 The Commissioner had, as we have noted, run the case on the basis that an ‘all or nothing’ licence was under consideration.

43 Our difficulty with the Tribunal’s decision, and final order, is that it could be read as the grant of a full licence covering all the activities listed as permissible for exercise by club armourers in s 8 (i.e. possess, manufacture, convert, purchase, sell, transfer, repair, maintain or test). If that was the case then the Commissioner’s concern, reflected in the second ground of appeal, that the Tribunal gave no, or insufficient, weight to safety considerations is justified.

44 On the other hand if it was the Tribunal’s intention to grant the limited kind of authority requested by Mr Macdonald there may be no real problem with the level of safe keeping proposed (Level 1), but this needed to be explained. If that was the Tribunal’s view, it was important that it spell out more clearly, for the benefit of the administrator in particular, why, in the circumstances, it considered that Mr Macdonald’s safe keeping arrangements were adequate.

45 This is the kind of case that might well have been suitable to the grant of a licence subject to conditions of the kind that had applied to the permit. For example, the range of permitted activities could have been limited to purchase and sale, and a condition imposed as to the level of safe keeping considered appropriate. That did not occur. The Tribunal’s order left unclear whether it was directing the issue of a full, unrestricted licence. The Tribunal needed to frame an order which spelt out precisely what kind of authority was to be granted. It did not do so. Consequently, the decision should also be set aside on this basis.

The Clause 37 Issue

46 As the cl 37 issue received considerable attention in the submissions and at hearing, we will make some brief comments.

47 The Act and the Regulation contain general provisions applying to all categories of licence or permit; and have a number of special provisions applying to particular categories. In the case of ‘firearms dealer licences’ there are special provisions in the Act at Part 5 and in the Regulation at Part 4.

48 Part 5 includes several provisions which apply to ‘licensed firearms dealers’, and we see no reason for treating them as inapplicable to club armourers. These provisions are: ss 43 (general offence provision), 45 (recording of transactions), 46 (quarterly returns), 47 (additional requirement for dealers), 49 (interstate transactions for dealers).

49 None of them use potentially limiting words of the kind found in ss 44 (Information about close associates of firearms dealers) and 44A (Prescribed persons not to be involved in firearms dealing business). These provisions follow on from s 17B (Firearms dealer licences – restrictions on issue). Section 17B provides that the Commissioner must not issue a firearms dealer licence if the applicant has a ‘close associate’ who, in the opinion of the Commissioner, is not a fit and proper person. Arguably, these provisions are confined in their sphere of operation to firearms dealers of the traditional kind.

50 While it has been the Commissioner’s practice to include a ‘close associates’ question in the club armourer’s application, it is difficult to see how a club armourer could have a ‘close associate’ as that term is defined in s 4B of the Act:

‘ 4B Meaning of “close associate” of firearms dealer

(1) For the purposes of this Act, a person is a "close associate" of an applicant for, or the holder of, a firearms dealer licence if the person:

(a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or licence holder, and by virtue of that interest or power is or will be able to exercise a significant influence over or with respect to the conduct of that business, or

(b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or licence holder.

(2) In this section:

"relevant financial interest", in relation to a business, means:

(a) any interest in the capital or assets of the business, or

(b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise.

"relevant position", in relation to a business, means a position whose holder participates in the management of the business (whether in the capacity of a director, manager or secretary or in any other capacity).

"relevant power" means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others:

(a) to participate in any managerial or executive decision, or

(b) to elect or appoint any person to any relevant position.’

51 In our view, this definition clearly has in mind a firearms dealer in a business setting. The terminology used in this provision is not apt to the operation of a not-for-profit club. A club armourer, as we see it, is not the target of the provisions found at ss 44, 44A and 4A of the Act. We make these points by way of reply to the Commissioner’s submission that all special provisions applying to ‘licensed firearms dealers’ apply equally to commercial firearms dealers and to club armourers.

52 Part 4 of the Regulations is headed ‘Firearms Dealers – Special Provisions’. Of the clauses 35-44, most, like the sections of the Act mentioned at para [52] simply place obligations on ‘licensed firearms dealers’. There is nothing in their internal contents to suggest that they might not apply equally to both types of licence-holders. Into this group we place cl 36 (recording of transactions), cl 38 (storage of ammunition), cl 39 (requirement to check stock on arrival), cl 40 (inspection of certain firearms), cl 41 (advertising by licensed firearms dealer) and cl 42 (notice of unidentified firearms or spare barrels).

53 On the other hand cl 44 links back to s 44A of the Act (referred to above), and lists various offences, in addition to those listed in s 44A, which render an employee a prescribed person. Clause 43 is another example of a provision that has no obvious application to club armourers and is focussed on commercial dealers. This is a special provision dealing with employees of a dealer who are under 18 or employees in State border areas outside New South Wales. This provision is clearly directed at the environment of a commercial dealer, and link back to the special provisions relating to the nomination of employees found in the licence description in s 8.

54 Clause 37 does not simply attach itself to ‘licensed firearms dealers’. It relates the Commissioner’s responsibility under that provision to a licence which ‘authorises a firearms dealer to carry on business’ (our emphasis) at a specified address. The Tribunal saw the provision as one restricted to commercial firearms dealers (or as the Tribunal called them ‘firearms dealers simpliciter’).

55 The Commissioner objects to this conclusion, and this is the basis for the first ground of appeal. The Commissioner’s argument again is that all the firearms dealer licence provisions in the Act are equally applicable to both types of licence-holder.

56 Therefore, it is submitted that references to ‘business’ and ‘carrying on business’ should be read in a generous and ambulatory way, with the result that the references to ‘business’ and ‘carrying on business’ would be extended to include the activities carried on by an armourer.

57 A statute’s meaning is primarily to be found by having regard to the terms of the statute, to the context in which the provision in issue appears, and by paying due regard to the statute’s objects and purpose: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998); 194 CLR 355. See per McHugh, Kirby, Gummow and Hayne JJ at [69]-[71] (footnotes omitted):

‘69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume [(1905) 2 CLR 405 at 414] Griffith CJ cited R v Berchet [(1688) 1 Show KB 106 [89 ER 480]] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".’

58 Here the expression ‘carry on business’ is used to qualify the reference to licensed firearms dealer in contradistinction to the position, as we have noted, in respect of many of the other special provisions in the Act and Regulation bearing on firearms dealers.

59 The ordinary or usual meaning of the expression under notice should not be disregarded. The words ‘carry on business’ and variants on it such as ‘carrying on business’ have a long history in the law. In our view the expression ‘business’ is usually understand to be a reference to the conduct of a commercial activity involving trade in goods or services, and ‘carrying on’ is a reference to the undertaking of that activity on a repetitive basis. This understanding is reflected in the case-law annotations given in Stroud’s Judicial Dictionary of Words and Phrases (2000), vol 1 (‘Carry On’).

60 In our view, the Commissioner’s interpretation of cl 37 can not be sustained. There is a distinction drawn in s 8 between two types of licence, and only one allows as its purpose the carrying on of business. This would appear to be the type of licence being referred to in the opening words of cl 37 – it is (our emphasis) ‘a firearms licence that authorises a firearms dealer to carry on business at specified premises’. Had this provision been intended to apply universally to both types of licence, the Parliament could simply have referred to the ‘premises specified in a licence’, and then laid down the criteria to which the Commissioner is to have regard.

61 We do not agree with Ms Richardson’s submission that the words ‘carrying on business’ are used simply to describe the activities that are undertaken under a firearms dealer licence, whether the holder is a firearms dealer or a club armourer. If Ms Richardson’s submission is correct, then the drafting expedient adopted, we think, would simply have been to define ‘licensed firearms dealer’ to include a club armourer, and leave it at that. Instead in the s 8 description, the purpose ‘carrying on business’ does not appear in the otherwise identical description of the range of activities an armourer may be authorised to engage in, and there is this additional paragraph, again differentiating the club armourer from the commercial dealer.

62 There is, in our view, a qualitative difference between the ‘carrying on of a business’ in firearms dealing, and the activities of a club armourer, as we have understood them from the material filed and submissions made in this case. The ordinary connotation of ‘carrying on business’ is, as reflected in the many examples in the Judicial Dictionary, the conduct of trading activity, usually on a commercial basis with the object of deriving income and making a profit or surplus.

63 The club armourer is not engaged in the ‘carrying on of a business’. The club armourer’s relationship is a service relationship to the members of the club. The club is carrying on a recreational activity. It is, in our view, a forced interpretation to ascribe to these words the words ‘carry on business’ the meaning of carrying on the activities of a club armourer. As we understand the situation, the club armourer’s role is one limited to the giving of expert, technical assistance to members of the club in the maintenance and management of their weapons, and facilitating the disposal and acquisition of firearms for members.

64 In our view, the drawing of a distinction in some of the provisions found in the Act and the Regulation is not a surprise. The traditional dealer is in business for profit, and will have a commercial business structure and orientation. The traditional dealer deals with the public at large. While the club armourer may have dealings with the general public it is only incidental to his or her responsibilities in service of the members of the club.

65 On the other hand, and to this extent, we agree with the submissions of Ms Richardson, cl 35 is, we think, a provision intended to be of general application even though it also uses the word ‘business’. Clause 35 provides:

‘ 35 Change of premises

(cf 1997 cl 32)

(1) The holder of a firearms dealer licence may apply to the Commissioner to change the premises to which the licence relates.

(2) Any such application is to be made in the approved form and be accompanied by the fee specified in clause 99 (1) (r) for inspecting the new premises.

(3) After taking into account the same relevant matters as would have to be considered in assessing an application for a firearms dealer licence, the Commissioner may approve or refuse the application.

(4) A refusal may be made on any of the grounds on which an application for a firearms dealer licence may be refused.

(5) If the application is approved, the Commissioner is to impose a new condition on the licence changing the premises at which the business is to be carried on.’

66 This provision, as we see it, requires a club armourer licence-holder to notify any change of specified premises. In this instance we are inclined to accept Ms Richardson’s submission that the word ‘business’ in s 35(5) should not be read so restrictively as to, for example, prevent the Commissioner from issuing an approval for change of premises to a club armourer and noting that on the licence as a new condition.

67 We note that in the provisions governing the regulation of shooters clubs (see Regulation, Part 9) the Commissioner is responsible for the approval of clubs, and clubs are required to furnish detailed information to the Commissioner on such matters as details of the membership, including changes of address and the like. It is through these provisions that the Commissioner is assisted in achieving the transparency that the provisions dealing with commercial dealers, their associates and their employees are also seeking to achieve.

Conclusion

68 It is most regrettable that this application is still unresolved, almost three years after Mr Macdonald and the club first tried to have his permit renewed.

69 This case has now dragged on since 2004, and should, we think, have been resolved through some sensible dealing by the Firearms Registry with the armourer and the club. There is no indication of any history of difficulty over the club’s previous arrangements. The request was, essentially, short term and transitional in nature, pending the club’s move to the new shooting range.

70 In its correspondence with the applicant, the Registry gives no substantive reason for not dealing with the application as had occurred in the past, by way of a Commissioner’s permit. Nor at any time has any explanation been given as to why it is considered in the particular circumstances of this case that Level 1 security is no longer sufficient. It is the kind of regulatory approach that does little to instil confidence among those regulated that are being dealt with in a fair and reasonable way.

71 We think it preferable to remit the matter to the Tribunal differently constituted.

Orders

1. Decision under appeal set aside.

2. Application for review remitted for redetermination by the Tribunal differently constituted.

22/05/2007 - to replace word 'applicable' with 'inapplicable' - Paragraph(s) 48