Osborne v Commissioner of Police, New South Wales Police Service

[2000] NSWADTAP 10

Appeal Panel

CITATION:	Osborne -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10
PARTIES:	APPLICANT Leslie Paul Osborne RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	999023
HEARING DATES:	15/03/2000
SUBMISSIONS CLOSED:	03/15/2000
DATE OF DECISION:	07/10/2000
DECISION UNDER APPEAL:	Principal Matter
BEFORE:	O'Connor K - DCJ (President); Davidson R - Judicial Member; Bolt M - Member
CATCHWORDS:	no question of law identified - statutory interpretation
MATTER FOR DECISION:	Principal Matter
FILE NUMBER UNDER APPEAL:	993093
DATE OF DECISION UNDER APPEAL:	09/13/1999
LEGISLATION CITED:	Firearms Act 1966
CASES CITED:	Osborne v Commissioner of Police [1999] NSWADT 86 Mayhew v A [1999] NSWADT 1 R v A & B [1999] NSWADT 2 Woodside v Director General, Department of Community Services [2000] NSWADT 8 Valentine v Eid (1992) 27 NSWLR 615 Murphy & anor v Various Respondents (1997) ASC Mills v Meeking (1990) 91 ALR 16 Miller v Commonwealth (1904) 1 CLR 668 Wacal Developments Pty Ltd v Realty Development Pty Ltd (1978) 20 ALR 621 Kingston v Kenrose Pty Ltd (1987) 11 NSWLR 404 R v Young (1999) 46 NSWLR 681 Pearce & Geddes, ch 2; Halsbury, Laws of Australia, vol 24 Saraswati v R (1991) 172 CLR 1 Cooper Brookes (Wollongong) Pty Ltd v Fed Cmr Taxation (1981) 147 CLR 297 Oxley & Anor v Imperial Charter Pty Ltd (1996) NSW Conv R para 55-783 at pp 56,008-9 (NSW Commercial Tribunal)
REPRESENTATION:	P Naughtin, barrister G Doherty, solicitor
ORDERS:	The decision under appeal is affirmed.

1 The applicant, Paul Leslie Osborne, is a travelling firearms dealer. On 22 February 1999 he applied to the respondent, the Commissioner of Police, for a licence under the Firearms Act 1996 (the Act), s 8 to carry a pistol, a ‘Glock 27 in 40 S&W’, while working. The application was refused, a decision confirmed on internal review (decision dated 19 April 1999) by the Director of the Firearms Registry, the Commissioner’s delegate under the Act. Mr Osborne applied for review of the decision by the Tribunal. (The Tribunal acquired the review jurisdiction on 1 March 1999, following the repeal of the previous right of appeal to the Local Court.)

2 The Tribunal did not accept the Commissioner’s reasoning on two matters. First the Tribunal considered that there was, as Mr Osborne contended, a real risk that criminals might attempt to steal his firearms when in his custody while travelling alone. Secondly, the Tribunal also found, as also contended by Mr Osborne, that his motivation for applying for a licence was to protect his property and not, as found by the delegate of the Commissioner that it was primarily sought for personal protection. The Tribunal agreed with Mr Osborne that any protection of himself would occur incidentally while attempting to protect his property from being stolen. Though its findings of fact were more favourable to Mr Osborne’s application than those of the Commissioner, nevertheless the Tribunal proceeded to affirm the Commissioner’s decision: Osborne v Commissioner of Police [1999] NSWADT 86 (Gen Div, Hennessy DP, 22 September 1999).

3 Mr Osborne has now appealed to the Appeal Panel against that decision. Mr Osborne’s notice of appeal was the subject of points in reply by the Commissioner. Oral submissions were heard on 15 March 2000. Mr Naughtin of counsel represented Mr Osborne. His submissions were more extensive than the short point made in the notice of appeal. Mr Doherty, solicitor for the Commissioner, noted that he had no prior notice of a number of the submissions and then responded.

Legislative Scheme

4 The scheme of regulation under the Firearms Act differentiates the categories of weapons for which a licence or permit may be sought. An application for a licence to carry a pistol belongs to Category H of the scheme. As relevant, section 8(1) provides:

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

… Category H licence (pistols)

Firearms to which the licence applies:
pistols (including blank fire pistols and air pistols).

Prohibited firearms are excluded from this licence category.
Authority conferred by the licence:

The licensee is authorised to possess or use a registered pistol, but only for the purpose established by the licensee as being the genuine reason for having the licence.’

5 The Genuine Reason Requirement: The need for licence applicants to establish a ‘genuine reason’ in support of their case to be permitted to carry and use a weapon is a key feature of the legislative scheme. Most of the specific categories set out in s 8(1) refer to that factor.

6 The importance attached by Parliament to the ‘genuine reason’ requirement is reinforced by s 12(1) which imposes a duty on the Commissioner not to issue a licence that authorises the possession and use of a firearm ‘unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.’

7 What the Commissioner is permitted to regard as a ‘genuine reason’ is also addressed in s 12(1). It is provided that:

‘(2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons:

(a) personal protection or the protection of any other person,
(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section).’

8 That provision makes it clear that personal protection is not in itself a genuine reason. Originally the Commissioner’s delegates had construed Mr Osborne’s reasons in support of his application in that way. The Tribunal differed, agreeing with Mr Osborne that his reasons in support did fall into the property protection category. But as can be seen from s 12(1)(b) nor is property protection in isolation a sufficient reason. It is only a sufficient reason if it is accompanied by one of the genuine reasons appended to s 12 by way of the Table (the s 12 Table).

9 The Tribunal concluded that Mr Osborne could not fit his circumstances within one of these genuine reason categories. The Tribunal’s interpretation and application of its interpretation is the subject of this appeal.

10 The genuine reasons set out in the s 12 Table involve activities unconnected with the protection of property or self-protection. The genuine reason categories are: sport/target shooting (requiring membership of an approved shooting club); recreational hunting/vermin control; primary production (for example suppression of vertebrate pest animals); occupational requirements relating to rural purposes; animal welfare; firearms collection (requiring membership of an approved collectors’ society). Only one category departs (arguably) from this characterisation, the category in issue in this case being ‘business or employment.’

11 The provision in the Table is as follows:

‘ Reason: business or employment
The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the firearm for which the licence is sought.’

12 The Table 12 categories are cut back in the case of applications for Category H licences, pistol licences. Only three of the categories can provide a basis for a pistol licence application. Section 16 provides:

‘Category H licences - restrictions on issue

The Commissioner must not issue a category H licence to any person unless:

(a) the genuine reason established by the person for being issued with the licence is any one or more of the following:

(i) sport/target shooting
(ii) business or employment
(iii) firearms collection, and

(b) in addition to establishing any such genuine reason, the person produces evidence to the Commissioner’s satisfaction that there is a special need for the person to possess or use a pistol.’

13 Proof of ‘special need’ is also a key feature of the licensing scheme. Section 17 goes on to provide that the regulations may specify the sort of evidence that may be produced in order to satisfy the Commissioner as to special need.

14 Mr Osborne’s Case: In essence Mr Osborne said that he needed a pistol for personal protection and protection of the goods in his possession while travelling alone because of the risk of armed robbery. He referred to the fact that he carried large quantities of valuable weapons by car to prospective customers in rural areas and to various regional gun fairs. He did not have a fixed place of business, his business was an itinerant one and he normally carried his stock with him.

15 In the review proceedings before the Tribunal, Mr Osborne produced the report of a licensed security consultant as to the degree of risk to which his business was exposed, in relation to assault or armed robbery. It was assessed as high. He produced a report from a security officer who regularly escorts people carrying cash or jewellery which referred to the deterrent effect that he believes is provided by carrying a handgun on his hip. The president of the State firearms dealers association referred to the increased concern that firearms retailers and dealers have about being robbed since the passage of the 1996 legislation.

16 Mr Osborne gave evidence referring to the quantity of weapons he carries and his itinerant way of doing business. He sometimes travels on remote country roads and stays overnight on the way to customers or fairs. He said he needed a pistol rather than a rifle because it would be too difficult if under threat to manoeuvre a rifle in the confined space of a car.

17 As noted earlier, the Tribunal was satisfied as to a number of aspects of Mr Osborne’s contentions.

Firearms Dealers Carrying Pistols

18 The Firearms Act represented a further tightening of firearms regulation after the tragedy of the random killings at Port Arthur in April 1996. The Appeal Panel understands from the background information given by Mr Naughtin and Mr Doherty that prior to the 1996 legislation in circumstances like the present firearms dealers of good repute often were granted a permit to carry a pistol.

19 But since the 1996 legislation commenced, the Commissioner has interpreted the new provisions as not providing a basis for granting licences to firearms dealers to carry pistols. As noted earlier, prior to the transfer of the review jurisdiction to the Tribunal in March 1999, there had been a right of appeal to the Local Court against the Commissioner’s refusal. Mr Naughtin said that a number of appeals under the 1996 Act on behalf of firearms dealers of good repute had been successful.

20 This case represents something of a test case as to the impact of the legislation on the ability of firearms dealers to be granted licences to carry pistols.

Tribunal’s Reasoning

21 In examining the applicable law, the Tribunal referred to the objects clause of the Firearms Act (s 3), to ss 8, 11(7), 12(1), the Table pursuant to s 12(1)(b) and s 16. (The Commissioner’s original case and his reply to the appeal was not conducted on the basis of the general public interest ground for refusing an application that might otherwise be acceptable. This is the possibility covered by s 11(7) and it is not considered in this decision.)

22 The Tribunal approached the question of interpretation of the ‘business and employment’ genuine reason by noting in [21] that the ‘legislation does not give any guidance on the circumstances where a firearm is necessary in the conduct of a person’s business or employment.’

23 Early in its decision at [15], the Tribunal referred to the aims of the legislation. Its detailed reasons for rejecting Mr Osborne’s application and affirming the Commissioner’s decision appear at [18] and following. The full text of the Tribunal’s reasoning is as follows:

‘18 The applicant submitted that the exception in paragraph (b) [of s 12(1)] applies to both personal protection and the protection of property. I disagree. The exception in paragraph (b) clearly relates only to that paragraph.

19 The Table sets out several exceptions including one related to business or employment which states that "The applicant must demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use the firearm for which the licence is sought."

20 Section 16 provides a further restriction in relation to Category H licences. In addition to establishing a genuine reason for being issued with the licence, the applicant must produce "evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a pistol."

21 The legislation does not give any guidance on the circumstances where a firearm is necessary in the conduct of a person's business or employment, however the Second Reading Speech made by the Hon J W Shaw, Attorney General and Minister for Industrial Relations, on 25 June 1996 makes it clear that the Act implements the Resolutions of the Australasian Police Ministers' Council in Canberra on 10 May 1996 (Hansard, Legislative Council, 25 June 1996 at 3560); for the text of the Resolutions, see Firearms/100596.html. One of those resolutions, Resolution 3 was:


(a) that personal protection not be regarded as a genuine reason for owning, possessing or using a firearm
(b) that the following classifications be used to define the "genuine reason" an applicant must show for owning, possessing or using a firearm:
• persons with an occupational requirement, eg primary producers, other rural purposes, security employees and professional shooters for nominated purposes;
22 The legislation reflected this resolution in the Table by providing that a genuine reason includes possessing or using a firearm because it is "necessary in the conduct of the applicant's business or employment." The specific examples mentioned in the resolution were not included in the legislation, however given that the Act was intended to implement the resolutions, it should be interpreted consistently with those resolutions wherever possible.

23 The examples given in the resolution are of occupations which could not be carried out without the possession or use of a gun. This is not the case for the applicant's business. Even though possessing a firearm is, in his view, desirable in order to prevent firearms from falling into the wrong hands, he does not need it to conduct his business.

24 Any other interpretation would mean that every person who stores or transports valuable property such as cash, firearms or jewellery, would be entitled to carry a firearm. This was not the Act's intention.’

24 The key proposition of the Tribunal in relation to its approach to that interpretation was ‘given that the Act was intended to implement the resolutions, it should be interpreted consistently with those resolutions wherever possible.’

Contentions

25 Under the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) s 113(1) appeals must first be made in relation to a question of law. Once an error is found, leave may be granted for the appeal to extend to the merits. See generally, Mayhew v A [1999] NSWADT 1, R v A & B [1999] NSWADT 2 and Woodside v Director General, Department of Community Services [2000] NSWADT 8.

26 Mr Naughtin, representing Mr Osborne, relied on two grounds: one, that the decision was not consistent with Local Court decisions in similar matters since the passage of the 1996 legislation; and two, that the Tribunal had misconstrued the scope of the ‘genuine reason: business and employment’ exception thereby committing an error of law. (The Appeal Panel notes that the second matter was not a ground referred to in the notice of appeal filed on 3 October 1999.)

27 As to the first ground, there is no point of law. The Tribunal is not bound by principles of comity or rules as to binding precedents to adopt the reasoning of a Local Court in similar matters dealt with there prior to the transfer of the relevant jurisdiction to the Tribunal. Moreover the Tribunal has been established with the avowed purpose of providing a specialist forum for the resolution of certain classes of disputes, in this instance applications for merits review of the decisions of administrators. Whilst it has the status of an inferior court or tribunal, it stands outside and above Local Courts in the hierarchy of courts and tribunals in the State: see further Valentine v Eid (1992) 27 NSWLR 615; also Murphy & anor v Various Respondents (1997) ASC para 56-363 at pp 57,218-9 (Commercial Tribunal).

28 The second ground raises a more arguable issue. The question raised concerns the process of statutory construction, including the issue of the weight to be given to extrinsic materials in construing the meaning of a statutory provision.

29 The process of reasoning adopted by the Tribunal has been described. It will be seen that no independent attempt is made to construe the meaning of the text of the ‘business and employment’ exception in the Table. The course is adopted of moving immediately to look at the kind of situations seen as reasonable in the extrinsic materials and reasoning back from the starting point.

30 This approach is not, as we see it, strictly in accordance with that required by general principles of statutory interpretation.

31 In our view, there should first be an attempt to construe the text free of the extrinsic material. The Interpretation Act 1987 provides in s 33:

‘ Regard to be had to the purposes or objects of Acts and statutory rules

33. In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.’

32 Provisions of this kind were introduced into legislation in most Australian jurisdictions in the 1970s and 1980s and were a reaction to undue reliance by the Court on the literal approach to the construction of statutes: see generally Pearce & Geddes, Statutory Interpretation in Australia (4th ed. 1996) para 2.2. While the rule contained in s 33 is seen as having overridden the literal and purposive approaches as developed at common law, there is a continuing discussion in the case-law as to what the appropriate approach to construction should now be.

33 Perhaps the leading exposition of the modern approach is given by Dawson J in Mills v Meeking (1990) 91 ALR 16 at 30-31 where his Honour says:

‘The requirement that a court look to the purpose of object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v Commonwealth (1904) 1 CLR 668 at 674; Wacal Developments Pty Ltd v Realty Development Pty Ltd (1978) 20 ALR 621 at 630. The approach required by s 35 [the equivalent provision to s 33 in Victoria] needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of the purposes.’

See also Kingston v Kenrose Pty Ltd (1987) 11 NSWLR 404 at 421-424 per McHugh JA; R v Young (1999) 46 NSWLR 681 per Spigelman CJ; Pearce & Geddes, ch 2; Halsbury, Laws of Australia, vol 24 at [385.145].

34 The interaction between the process of statutory construction and the calling-in-aid of extrinsic materials is governed by Section 34 of the Interpretation Act 1987. Section 34 provides:

‘(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer,

(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,

(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(d) any treaty or other international agreement that is referred to in the Act,

(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

(h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.’

35 As we interpret ss 33 and 34, the method to be adopted has two steps with the second step, the s 34 step, subordinate to the first step, the s 33 step. First an attempt should be made to ascertain the meaning of the text. That step can be informed by having regard to the objects and purpose of the legislation and the content of the legislation as a whole. The second step, the s 34 step, is ancillary. Section 34 provides a variety of options. Under sub-s (1), the ancillary step may involve considering the extrinsic material ‘to confirm’ that the meaning attributed as the ordinary meaning of the provision is consistent with the extrinsic materials; or to ‘determine’ the meaning of the provision if it is ambiguous or obscure; or to resolve the meaning if the ‘ordinary meaning conveyed by the text … leads to a result that is manifestly absurd or is unreasonable.’

36 By virtue of sub-s (2) the second reading speech, or other extrinsic material, may be ‘considered’ in the interpretation of the provision of an Act. But in our view it is not appropriate to proceed to a consideration of the second reading speech, or other extrinsic document, without first seeking to interpret the provision in issue. It is necessary first to examine and analyse the provisions of the Act for the purpose of determining whether or not there are good reasons to resort to the second reading speech, or other extrinsic document: see esp. Saraswati v R (1991) 172 CLR 1 at 23 per McHugh J; Cooper Brookes (Wollongong) Pty Ltd v Fed Cmr Taxation (1981) 147 CLR 297 per Gibbs CJ at 304 and 305; and for a useful discussion see also Oxley & Anor v Imperial Charter Pty Ltd (1996) NSW Conv R para 55-783 at pp 56,008-9 (NSW Commercial Tribunal).

37 Mr Naughtin submitted that an unduly strict meaning had been attached by the Tribunal to the word ‘necessary’ in the relevant provision in the Table, which to reiterate, stated:

‘Reason: business or employment

The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the firearm for which the licence is sought.’

38 He noted, as has the Appeal Panel, that the Tribunal did not spell out its interpretation. He submitted that the Tribunal must be taken to have interpreted it as meaning ‘absolutely necessary’ rather than construing it as meaning ‘reasonably necessary’. He drew the Appeal Panel’s attention to dictionary definitions of ‘necessary’ and to a passage from Stroud’s Judicial Dictionary of Words and Phrases (5th ed. 1993) at 228-230.

39 In examining the text Mr Naughtin dealt with the words ‘necessary’ and ‘conduct’ separately. He submitted that the term ‘conduct’ can be interpreted to take into account the particular way in which the specific applicant carries on his or her business. The question then becomes - what is reasonably necessary to carry on a business conducted in that way.

40 Rather than breaking this test up into separate components, and examining the meaning of the key words ‘necessary’ and ‘conduct’ independently, our view is that the provision should be read as a whole.

41 It is significant, we consider, in approaching this question that the legislative scheme does not accept as a genuine reason the claim that it is necessary to carry a pistol for personal protection, arguably a more-justifiable reason than protection of property.

42 As we construe the position, personal protection is never a genuine reason. Property protection is never a genuine reason unless circumstances of the kind set out in the s 12 Table can be shown. All but one of the categories are narrowly focussed, traversing sport, farming, pest control, gun collecting and animal welfare. The ‘business and employment’ category is the least focussed.

43 In the present context the question to be asked is whether the applicant has demonstrated that it is necessary in the conduct of the applicant’s business to possess or use a hand-held pistol.

44 The critical issue of interpretation is not, in our view, related to whether the use is ‘reasonably’ necessary or ‘absolutely’ necessary, but whether the reference to ‘the applicant’s business’ is to be construed as a reference to the way in which the specific applicant conducts his or her business or is to be construed as a reference to businesses of the kind conducted by the applicant. If the former approach is taken then the applicant may have an arguable case that a hand-held pistol should be permitted to issue as there are findings in his favour that he is exposed to a reasonable risk of armed robbery while travelling alone with his stock of weapons. If on the other hand the question is whether businesses of the type conducted by the applicant necessitate the possession of a hand-held pistol, the position is more problematic.

45 The narrower view should, we consider, be preferred. The purpose of the legislation is to reduce the use and possession of firearms in the community. If a broader view were to be taken not only would that lead to a greater number of firearms circulating in the community, but it would tend to mean that types of businesses where a real choice existed as to how they were conducted would be more able to make a claim for the possession of a hand pistol the less safely it was conducted. Such an interpretation would defeat the objects of the legislation.

46 Adopting that approach, our conclusion is that the question of what is ‘necessary’ for the ‘conduct’ of a ‘business’ should be interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application. The business under examination is that of dealing in firearms. The trade involves regulated goods which can be lethal to innocent people if they fall into the wrong hands. The trade often involves the possession of great quantities of these goods, with commensurate value. None of these features in themselves suggest that it is necessary for the conduct of the trade that dealers carry live pistols. The possession of a pistol is not directly required of the business or employment. The position might be different if the business was one of, say, training in the use of pistols or provision of bodyguard services to heads of state.

47 The question this case poses is whether, even though the typical form of the relevant business does not necessitate the carrying of a pistol, the way in which the applicant has chosen to conduct the business means that it is ‘necessary’ for the ‘conduct’ of the ‘applicant’s business’ that he be allowed to have a pistol. We do not consider that the provision should be read in this broader way. In the present case Mr Osborne argues that the way he does business, and has done for many years, provides the justification for carrying the pistol.

48 The test should be read so as to focus on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes that business. To accede to the proposition would allow for categories of business that ordinarily have no case for possession and use of a pistol to be conducted in a high-risk way that might found a claim by the operator to have access to a pistol. This would run contrary to the objects of the legislative scheme designed to restrict the circulation of weapons in the community.

49 The way Mr Osborne has chosen to undertake his business involves him in travelling alone and carrying these dangerous goods to isolated locations. It is not essential to the process of dealing in firearms to do business in this way.

50 The Commissioner’s task is to look at the type of business conducted by the applicant, and ask whether for that type of business the nominated firearm should be regarded as necessary. The instances that would justify possession of a pistol for the protection of the business’s property, applying that test, would be rare. That outcome is consistent with the social purpose of the legislation.

51 While we consider that the Tribunal erred in not first proceeding to seek to interpret the relevant provision free of the extrinsic material before taking into account the extrinsic material, it will be evident that we agree with the conclusion ultimately reached.

52 In these circumstances there is no error justifying interference with the Tribunal’s decision.

53 We noted in the course of argument that the Act and the Firearms (General) Regulation 1997 contain, not surprisingly, detailed provisions regulating firearms dealers: see Part 4, Firearms Dealers, Special Provisions. The failure to refer in that scheme of detailed regulation to the specific issue raised by this case - the dangers faced by the itinerant trader in firearms carrying his stock with him - also, we consider, lends support to the likelihood that the Parliament did not intend the general provisions of the Act to provide a basis for addressing this problem.

54 By the nature of their activity, firearms dealers must be closely regulated if circulation of lethal weapons is to be confined to responsible persons and to socially accepted uses. Their representatives must necessarily remain in close consultation with Police and Government to assist in the achievement of the objective of minimising the circulation of firearms. If there is justification for a more flexible position to be taken in relation to the possession of pistols by itinerant dealers in firearms, it is better addressed in that context.

55 As the appeal on the question of law has not been successful, the application for extension to the merits fails.

56 The decision under appeal is affirmed.