HK Systems Australia Pty Ltd v Ashley
[2007] FMCA 2157
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HK SYSTEMS AUSTRALIA PTY LTD v ASHLEY & ANOR | [2007] FMCA 2157 |
| ADMINISTRATIVE LAW – Error of law – declaration. |
| Customs (Prohibited Imports) Regulations1956, sch.6 Customs Act 1901 Administrative Decisions (Judicial Review) Act1977 |
| Chief Executive Officer of Customs v Granite Arms Pty Ltd [2005] HCA 51; (2005) 222 CLR 159; (2005) 221 ALR 137 |
| Applicant: | HK SYSTEMS AUSTRALIA PTY LTD (ACN 094 079 544) |
| First Respondent: | SUPERINTENDENT WAYNE ASHLEY |
| Second Respondent: | COMMONWEALTH OF AUSTRALIA |
| File number: | MLG 1232 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 5 November 2007 |
| Date of last submission: | 21 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 23 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Hurley |
| Solicitor for the Applicant: | Balmer and Associates |
| Counsel for the First Respondent: | Ms K.E. Judd SC |
| Solicitor for the First Respondent: | Victorian Government Solicitor |
| Counsel for the Second Respondent: | Mr Gray |
| Solicitor for the Second Respondent: | Australian Government Solicitor |
THE COURT DECLARES THAT:
The Heckler and Koch SL 8-R rifle, serial number 135-000352, is a repeating action firearm within the meaning of Item 2 of Schedule 6, Customs (Prohibited Imports) Regulations 1956 (Cth).
THE COURT ORDERS THAT:
The Applicant be at liberty to apply for consequential relief, if required.
The Second Respondent pay the Applicant's costs of the application as agreed and failing agreement as taxed under the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1232 of 2007
| HK SYSTEMS AUSTRALIA PTY LTD (ACN 094 079 544) |
Applicant
And
| SUPERINTENDENT WAYNE ASHLEY |
First Respondent
And
| COMMONWEALTH OF AUSTRALIA |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
The central question in this application is whether or not a particular rifle falls within the meaning of item 2 of sch.6 of the Customs (Prohibited Imports) Regulations1956. A second and associated question is whether or not the decision of the First Respondent, a Victorian Police officer, to issue a police authorisation certificate is determinative of the item number that the rifle would fall within under the Customs Regulations.
Background
The background to the matter is set out in the affidavit of Mr Kilfoyle. He explains that the Applicant is a licensee in Australia of a firm of arms manufacturers, Heckler and Koch GmbH of Germany. The applicant is licensed as a Class 1 Firearms Dealer in Victoria under the relevant Victorian legislation and conducts a business of trading in firearms in Australia and importing firearms. It carries on this business not only for community interest groups, such as sporting shooters and the like, but also to supply the military and the police.
As a result of the changes to the Firearms Regulations some years ago, the company developed (with Heckler and Koch in Germany) a firearm they believed would fit within the definition of Category B of s.3 of the Victorian legislation and thus be legally able to be sold on the civilian market in Australia. They had a prototype manufactured and it was brought into the country on 20 October 2004. Various approvals were given, both for the authorisation of possession in Victoria by the Victorian Police and the importation by Customs.
The purpose of this prototype and its importation was to ensure that it would be able to come into Australia in accordance with the existing legal framework. The firearm was delivered to the Licensing Services Division of the Victorian Police to enable them ample time to inspect it and left with them for several weeks. The applicant understood that the authorisation and import decisions were favourable and proceeded to order the manufacture of 250 rifles in the same form as the prototype.
The one difference appears to be that the prototype was described as an "SL 8-R" whereas the 250 manufactured rifles were described as "SL R-8". It is not suggested that the rifles now sought to be imported are different to the prototype. Both the prototype and one of the 250 that are in the control of Customs were tendered during the course of the hearing and demonstrated in evidence.
When the applicant sought to import the 250 rifles, the Applicant was unable to obtain the appropriate certification from the Victorian Police to confirm the authorisation to possess the rifles under Victorian law and, as such, was unable to obtain a Customs clearance. An authorisation from the Victorian Police is an essential part of the conditions for the importation of an item within item 2 of the Customs Regulations.
The reason that the Victorian Police declined to issue the authorisation certificate was that they were advised in an email from an officer of Customs that Customs had taken the view that the rifle more appropriately fell within item 6 of the Regulations rather than within item 2.
The Applicant then commenced proceedings against the Victorian Police and, quite properly, the Commonwealth was joined in the proceedings.
Firearms Importation Scheme
The regulatory scheme that the proceedings relate to is a joint scheme between both the Commonwealth and the States. The Commonwealth has power to control the borders of the nation and the import and export of items across those borders. The States have power to regulate the possession of items by citizens within each of the States of Australia.
Through meetings of the various Attorneys-General, a scheme was put in place whereby both the States and the Commonwealth enacted or amended legislation so as to effect a general prohibition on the import of firearms in the Commonwealth legislation, with a list of specific exceptions. Using the existing Customs Act powers, the scheme was put into effect by the Commonwealth promulgating sch.6 to the Customs (Prohibited Imports) Regulations. The States, for their part, put specific legislation in place or amended legislation that was in force to provide for various categories and licensing schemes generally in accordance with the agreements of the Attorneys-General.
I pause here to note that it appears that the licensing and possession regulations in the various States may not be exactly the same or identically worded, nor do they precisely match the items in the schedule of the Commonwealth scheme. However, there is significant interaction between the legislation of the States and that of the Commonwealth, particularly in the area where firearms may be being made available to general consumers within the broader population.
The way in which the legislation deals with importation is to ensure that any person who wishes to import a firearm that falls within item 2 of the Customs Regulations demonstrates to the CEO of Customs that they have an appropriate licence according to the law of the State to possess firearms in this category. This allows the Commonwealth legislative scheme to respect the State scheme by ensuring that the Commonwealth will not allow the importation of a firearm if a particular State where the firearm is headed does not authorise the possession of that firearm by the person who is going to receive it. This was the issue that appeared in Chief Executive Officer of Customs v Granite Arms Pty Ltd [2005] HCA 51; (2005) 222 CLR 159; (2005) 221 ALR 137 and was the subject of some discussion in the High Court.
Whilst the Commonwealth legislation makes specific provision for ensuring that those in the States who are importing firearms have a licence to possess them, it does not appear to me that the Commonwealth scheme is subjugated to the decisions of the States about possession of particular firearms. Rather, it appears to me, that the Commonwealth scheme allows the Commonwealth the right to restrict import of firearms as the Commonwealth sees fit.
It may well be the case that the Commonwealth chooses to restrict the importation of firearms that the States would otherwise allow citizens to possess. However, the scheme is such that, at least with respect to consumer category firearms, the Commonwealth will not allow the importation if the States have restricted the possession of those firearms by the importer. Thus, there remains the theoretical potential for either the Commonwealth or the States to have much more restrictive gun control laws than one or the other, but that the scheme will ensure that the Commonwealth will not allow importation of a firearm unless the citizen has a right to possess it in their state.
Under the Commonwealth scheme, it does not appear that any specific power is delegated to the State police. The regulations simply contemplate a certificate or authorisation as to the licensing requirements of the States and whether they have been complied with. Such certificate is to be issued by the relevant State police officer. This is a practical aspect of the scheme, as it would only be the State police who would have ready access to the information about State licensing requirements. It is well accepted that there are many members of the community who, for various good reasons, will be denied the right to possess a firearm as part of the State licensing scheme, even if it is a firearm that is otherwise generally available to members of the community.
There is nothing that I can see in the regulations that indicates that the decision, under the relevant State legislation by the State police, as to whether or not somebody should be licensed to possess a particular firearm in that State ought to bind either the Commonwealth or the CEO of Customs in exercising the powers under the Customs Act and Regulations to determine what category the firearm falls within and as to whether or not the Commonwealth should nonetheless allow that firearm across the border. The reverse is different if the State will not allow a citizen in possession of the firearm; the Customs Regulations will assist the State in enforcing that decision by prohibiting the particular person from importing the firearm.
It appears to me that the reality of the authorisation certificate is no more than to provide evidence about whether or not a person holds a relevant licence in a State, which is a relevant fact or circumstance for the CEO of Customs in making the ultimate decision about whether or not to permit the importation of the particular firearm.
Much was made in argument of the fact that at this stage, under the Regulations, it appears the certificate is only relevant to item 2. The point was made that if the firearm is not an item 2 firearm, there is no point in issuing the State authorisation certificate, as it will not assist a person in the importation of the firearm. That, of itself, does not appear to me to demonstrate that there is such a significant shift in power and authority under the Regulations. To the extent that it is said there is any uncertainty, it does not appear to me that it could be said that an authority to possess a firearm in a particular State, even if certified or confirmed by the State police, in any way determines which item number the firearm falls within sch.6. That must necessarily be determined by the CEO of Customs when the item reaches Australia's borders.
In cases where there is some uncertainty as to which item number the firearm falls within, it may be the case that the State police will issue an authorisation certificate confirming that the particular firearm could be possessed by the person within the State on an appropriate licence, and leave it to the CEO of Customs to determine whether or not the firearm falls within item 2. If the firearm is within item 2, the certificate will be an essential ingredient to obtaining the lawful importation and if it falls within a different item number, the certificate will be of no use or value to the potential importer. Prudence may dictate a change to the relevant form to make it clear that the State police are not determining the item number as they have no power to do so.
If it was obvious that the firearm did not fall within item 2, there would be no warrant for the issue of the certificate at all. For example, if the firearm was obviously a machine gun, it would not be a circumstance where the State police would be required to issue an authorisation certificate because there would no purpose to it. If the State police refused to issue an authorisation certificate on the basis that the firearm is not within item 2, then the case is likely to come before the Courts on review of both the Customs decision, if there is a Customs decision, or on the basis of conduct by Customs that indicates a decision under the various sections of the Administrative Decisions (Judicial Review) Act 1977.
This brings us back to the central question in the hearing, and that is which item number this firearm falls within under sch.6.
Schedule 6 Firearm Items
The potential item numbers are 2, 6 and 12, which are in the following terms:
Column 1
Item
Column 2
Firearm, firearm accessory, firearm part, firearm magazine, ammunition, component of ammunition or replica
Column 3
Requirements
2
Any of the following firearms, other than a firearm that is:
(a) fitted, whether by original design or by modification, with a folding or detachable stock; and
(b) capable of being fired when the stock is in the folded position or removed.
Muzzle‑loading firearm.
Single shot centre fire rifle.
Double barrel centre firing rifle.
Repeating action centre fire rifle.
Break‑action shotgun/rifle combination.
Repeating bolt action shot gun.
Lever action shot gun.
The importation must comply with at least 1 of the following tests:
(a) the official purposes test;
(b) the specified purposes test;
(c) the specified person test;
(d) the Police authorisation test.
If the firearm was manufactured on or after 1 January 1900, the firearm must bear a unique serial number.
If item 1 of Part 3 of this Schedule applies to the firearm, the firearm must comply with the safety requirements set out in the item.
6
Any of the following firearms, unless:
(a) fitted, whether by original design or by modification, with a folding or detachable stock; and
(b) capable of being fired when the stock is in the folded position or removed.
Self‑loading centre fire rifle.
Self‑loading rimfire rifle fitted with a firearm magazine of a capacity greater than 10 rounds.
Self‑loading shotgun fitted with a firearm magazine of a capacity greater than 5 rounds.
Pump action repeating shotgun fitted with a firearm magazine of a capacity greater than 5 rounds.
The importation must comply with at least 1 of the following tests:
(a) the official purposes test;
(b) the specified purposes test;
(c) the specified person test;
(d) the returned goods test.
If the firearm was manufactured on or after 1 January 1900, the firearm must bear a unique serial number.
If item 1 of Part 3 of this Schedule applies to the firearm, the firearm must comply with the safety requirements set out in the item.
12
Firearm, not being a firearm to which item 1, 2, 3, 6 or 9 applies.
The importation must comply with at least 1 of the following tests:
(a) the official purposes test;
(b) the specified purposes test;
(c) the returned goods test.
If the firearm was manufactured on or after 1 January 1900, the firearm must bear a unique serial number.
Meaning of technical terms
The terms are technical terms that have accepted meanings within the section of the community that is familiar with and deals in firearms. The Commonwealth, in one of its emails, provided a generally accepted description of the meanings of each of the terms, stating:
Self Loading Action – a repeating firearm which uses the energy of the discharge of a round of ammunition to perform a portion of the operating cycle, and requires a separate pull of the trigger to fire each single shot. Also called or referred to as Semi-Automatic. In this system the sequence of operation of loading, locking, cock, unlocking, extraction, and ejection are carried out by the firearm using energy from the ammunition discharge. Only the manual application of the trigger is carried out by the shooter to fire each shot. Examples of firearms that use this system of operation include; a self loading rifle, a self loading shotgun, or a self loading pistol.
Repeating Action – a firearm that requires the manual actuation by the shooter of the operating mechanism to carry out all the operating cycle for each shot. The firearm must also be fitted with a magazine. In this system the cycle of operation of loading, locking, cocking, firing, unlocking, extraction, and ejection, are carried out manually by the shooter. Examples of firearms that use this system of operation include, the bolt action repeating rifle, lever action repeating rifle, or a pump action repeating shotgun, those of which are fitted with a magazine.
The classification of the Rifle
At the hearing of the matter the expert for the Commonwealth accepted that no energy from the discharge of the firearm was used as part of the process of the operating cycle and that therefore, despite an earlier opinion to the contrary, the firearm in question could not fall within item 6. The question then became whether or not the firearm fell within item 2 or, as was developed at the hearing, it would then fall within the catch-all provisions of item 12.
It is appropriate at this point to provide some description of the way in which the particular firearm works. Firearms generally have what is known as an operating cycle. It is convenient to begin with the point of firing the firearm. The cycle is generally then (a) fire, (b) extract, (c) eject, (d) cock, (e) feed, (f) load, (g) lock.
Not every part of this operating cycle is always performed in this precise order, although certainly the firing, ejection, loading and locking must occur in that order. Where the firing pin is cocked during the course of the cycle may vary.
In a traditional bolt action rifle, after the rifle is fired a lever, often to the right‑hand side of the bolt is lifted up or twisted so as to allow it to be released from the barrel. It is then slid back and, as part of the mechanism, the machinery extracts the empty cartridge and ejects it from the breech. Often at this point the firing pin is also cocked. By that I mean, compressed back against a spring, ready to be released and strike the base of the new cartridge. The bolt is then slid forward and, in the process of doing this, picks up the edge of a new cartridge from a magazine, slides it out of the magazine and up into the barrel. The bolt is then twisted back down by pushing the lever back towards the gun, which allows it to lock in place, so that when the cartridge is fired the bolt does not move.
To make automatic firearms, this process had to be altered. There are a number of alterations that have been developed. Relevantly for this case, one alteration is to create what is called a “straight pull bolt action”. This obviates the need for the operator to twist the bolt, to lock it or to twist the bolt to unlock it. The machinery or mechanism within the bolt is designed in such a way that the forward motion of the bolt towards the barrel allows it to twist and lock without the operator having to change the direction of motion of the bolt.
Other variations are a “lever action” rifle, commonly seen in old western movies, and the “pump action” shotguns or rifles now commonly seen on television. To make automatic firearms, part of the energy from firing the cartridge is used to drive the bolt backwards and then forwards for the purpose of the carrying out the cycle of extracting, ejecting, cocking, feeding, loading and locking. A number of different mechanisms have been designed over the years for this, utilising different forms of energy from firing such as some of the gas that is released on firing the shell, the recoil energy from when the firearm fires, or sometimes the blow‑back energy. On all of these versions, the energy is generated from the firing of the cartridge.
In the particular rifle that is the subject of this action, the bolt operates on a straight pull system. It does not need to be manually twisted to lock it into position or to unlock it. The operator, after firing the rifle, must pull back on the bolt which twists it out of the locked position, extracts and ejects the cartridge and then cocks the firearm.
The operator need not manually push the bolt forward as the process of pulling it back allows the operator to manually provide sufficient energy into a spring behind the bolt which will then push it forward and hold it in the locked position ready for firing. It is clear that none of the energy that comes from firing the firearm is utilised as part of or to assist with any of the movement of the bolt, either back or forward.
Two arguments were put on the part of the Commonwealth. The first was that as not all of the motive force to reload the firearm was direct manual energy, it cannot be said that the whole of the cycle was carried out manually by the shooter or operator. In most firearms, the mechanical processes that are carried out to undertake what is the relatively complex task of extracting an empty shell, ejecting it so it does not foul the firearm, pulling the firing pin back so that it has enough compressed energy to fire against the base of the shell to fire the next cartridge, pushing the next cartridge in to the breech and locking the bolt back into position, is carried out by a system of springs and levers.
For the purpose of this judgment, I do not need to go to the detail or the names of the various parts of firearms, and it is sufficient to note that there are various mechanical elements that carry out this task and that those elements must be powered either manually from the operator or from some other energy source.
Indeed even ejection of the cartridge from a firearm, whether it be a bolt action or a breech action, involves sprung levers which gain their energy from the operator pulling upon a lever (such as the lever action, breaking open the firearm or pulling back on the bolt) so as to store energy into those sprung levers, such that they clip the base of the shell and throw it from the firearm once the point of no return is reached.
In this case, the entirety of the energy or the cycle comes from the manual energy of the operator. None of the energy from firing the firearm is stored or utilised in the process. There is no energy from recoil that is utilised or stored. There is no energy from blow-back or gas that is utilised or stored. Indeed, there is no energy from any external source that is utilised in the process.
The entirety of the energy that is required after firing the firearm for the repeating action process is generated manually by the operator in pulling upon the lever that is connected to the bolt. To the extent that it is arguable that there is energy stored in the firearm for it to then proceed to undertake part of the cycle process, the entirety of that energy is applied manually after firing and is entirely used up before firing the firearm a second time. It is not a situation where the operator can add that energy to the spring at the commencement of a series of cycles and not have to add it each time the rifle is fired or that there is some energy stored that assists in the process cycling between firing each round.
To this extent, it appears to me that the firearm must be considered to be one where the cycle of operation is carried out manually by the shooter. The definition must be seen in a practical context, including a distinction from a single shot firearm, and a firearm that utilises energy from elsewhere to carry out the repeating action through the mechanical process.
The second argument that was put was that the design of this firearm was not contemplated by the legislation at the time but a new design and therefore should not be considered to fall within item 2 but go to the default item, item 12.
The use of springs and levers for the efficient manually driven cycling of a firearm appear to me to be the essential feature of a repeating action firearm, as distinct from a single shot firearm that is manually reloaded, and a semi-automatic or self-loading action firearm that uses energy from the discharge to drive the process. In this sense, it does not appear to me that this firearm, which requires the input of significant energy from the manual operation of the operator, is outside the nature of firearms that were contemplated by the repeating action definition.
If it were that any part of the cycle used energy from the discharge, or indeed energy from any other source, or energy stored from before firing the round, it would seem to me to be a form of hybrid that would not bring it within either item 2 or item 6, and therefore be likely to fall within item 12.
It was also put in argument that one witness had raised the point that the firearm still required two hands to operate. This test does not seem to me to relate to the technical meanings of the phrases referred to in the Regulations or definitions. However, it is interesting in that it shows a practical gloss upon the effect of the two definitions on the user of a firearm: that is whether the firearm can be operated in such a way that only one hand is needed to repeatedly fire the firearm, rather than two.
I am not persuaded that this assists in the determination of this case, although arguably it shows the real practical issue that the definitions are aimed at. It may also show that if new designs of firearms allow single-handed operation without utilising energy from the discharge of a round, they too may be so radically different from the existing designs as to be outside of item 2 and item 6 and fall within item 12.
There is no evidence that the variation in the mechanism, by adding a spring which gains its energy from pulling back on the bolt to assist in pushing the bolt forward, had any impact upon the speed of operation of the firearm.
Conclusion
I am of the view that the rifle in this case is a repeating firearm within item 2. It is therefore appropriate to make a declaration that the Heckler and Koch R-8 rifle, serial number 135000352, is a repeating action firearm within the meaning of item 2 of sch.6 of the Customs (Prohibited Imports) Regulations. I also make an order giving the Applicant liberty to apply for consequential relief if required. However, given the nature of the parties who are Respondents, and the statements from the bar table, it does not seem to me that at this stage it is necessary to draft a particular consequential relief as it is most likely that the parties will process various applications in accordance with the declaration that has been made today, subject to any delay that might occur if the parties are appealing.
Costs
The real issue in this case was about the interpretation of item 2. The First Respondent had acted as he did on advice from the Commonwealth and maintained throughout that he would comply either with the advice from the Commonwealth or the declarations of the Court. In those circumstances the real contradictor was the Commonwealth. It is appropriate for the Commonwealth to pay the successful Applicant's costs.
As to the question of whether the Commonwealth should meet any of the First Respondent’s costs, it seems to me it was also open to the First Respondent, if he saw fit, to simply enter an appearance to abide by the order of the Court and leave the Commonwealth to run the case as they saw fit, given that the First Respondent’s position is that the Applicant had a licence and that he was not able to determine the item number.
The First Respondent did not add anything significant to the costs of the proceedings. He was ultimately not successful in maintaining his original position. I find that he should bear his own costs in the circumstances of the case.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: 18 March 2008
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