Sporting Shooters Association (SSA) v Commissioner of Police, NSW Police

[2006] NSWADT 300

Set aside by Appeal: Set aside by Appeal on 7 March 2007: Commissioner of Police, New South Wales Police v Macdonald (GD) [2007] NSWADTAP 13

CITATION:	Sporting Shooters Association (SSA) v Commissioner of Police, NSW Police [2006] NSWADT 300
DIVISION:	General Division
PARTIES:	APPLICANT Sporting Shooters Association of Australia (NSW) Illawarra Branch Inc RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063056
HEARING DATES:	22 June 2006
SUBMISSIONS CLOSED:	09/30/2006
DATE OF DECISION:	10/26/2006
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms (General) Regulation 2006 Firearms Act 1996
CASES CITED:	Commonwealth v Baume (1905) 2 CLR 405 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153.ALR.490 R v Berchet (1688) 89 ER 480 Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231238;[1978] 1 All ER 948
REPRESENTATION:	S Mainstone, solicitor A Vendetti, agent
ORDERS:	The decision under review is set aside.; Mr MacDonald’s application for firearms dealers licence, limited to category A and B firearms and authorising him, in his capacity as club armourer, to undertake the activities specified in s.8 that may be conferred on a club armourer, at the address specified in his application, is granted.

1 The Sporting Shooters Association of Australia (NSW) Illawarra Branch Inc is a sporting shooters association in the Illawarra region. Mr Clyde MacDonald has been the club armourer for some five years. He personally holds a category AB firearms licence and has storage facilities in his home, which it is agreed offer Level 1 safe keeping, sufficient for the requirements of his firearms licence.

2 There is no dispute that as club armourer Mr MacDonald’s principal function has been to oversee the lawful purchase, sale and transfer of firearms belonging to club. This involves him facilitating the transfer of A and B class firearms, by inspecting them, sighting and verifying licence and registration documentation, completing necessary records, and overseeing the transfer of ownership and payment as between members. The club has 800 to 900 members.

3 In the period he has acted as club armourer there have been only a few occasions, not more than five, where he has been required to secure a firearm being transferred at his premises overnight. This has occurred when club members were purchasing firearms from out of the state. When this occurred, the firearms were stored in Mr MacDonald’s secure gun safe, along with his own registered firearms.

4 Mr MacDonald has not, and does not want to, undertake any of the other tasks that a club armourer may undertake. He does not want to buy or sell firearms, he does not want to test repair, manufacture or convert them. He simply wants to provide club members with the service of overseeing the lawful transfer of firearms. The club supports him in this view. Mr MacDonald told the Tribunal that he offers club members a convenient, cheap service facilitating the transfer of firearms. The only other alternative service in the area is offered by a Sporting Store and gun shop which is expensive and only available during business hours.

5 Until June 2004 Mr MacDonald held a Commissioner’s Permit under the Firearms Act 1996 allowing him, as club armourer, to transfer ownership between club members. In April 2004, when the permit was due to expire, Mr MacDonald reapplied for a Commissioner’s permit. On 14 July 2004 that application was refused on the ground that the functions that he wished to be issued a permit for were functions he could perform, if he held a club armourer’s licence.

6 On 25 August 2004 Mr MacDonald, as club armourer, applied for a firearms dealer licence. That application was refused on 25 January 2006 on the basis that issuing such a licence to Mr MacDonald would not be in the public interest because Mr MacDonald’s safe storage arrangements for firearms “do not meet the Level 3 standard, as required by all dealer/club armourer licence applications.”

7 On 3 February 2006 Mr MacDonald as club armourer sought an internal review of that decision. On 13 February 2006 an internal review officer affirmed the decision to refuse Mr MacDonald a Club Armourer’s licence. In reaching that decision the review officer wrote:

“I note that on 2 February 2005 the Registry advised you that a Certificate of Inspection certifying Level 3 safe storage was required in support of your application for a Club Armourer's licence, but that this requirement may be waived.

I agree that the Commissioner has discretion regarding the issue of a Club Armourer licence. However, I place weight on the fact that in accordance with Clause 34 of the Firearms (General) Regulation 1997 the Commissioner must not issue a licence to a Club Armourer unless satisfied that adequate provision exists for the safekeeping and security of firearms.

In this regard I note the Recommended safe storage of firearms for Dealers, Collectors & Prohibited Firearms/Prohibited Weapons. This document outlines the detailed and specific Level 3 safe storage provisions deemed adequate for the issue of a Club Armourer's licence.

I believe it is relevant that the Inspection Certificate you provided with your application demonstrates that your safe storage provisions only comply with Level 1. Whilst these storage provisions are certainly appropriate for your personal Category AB firearms licence, they arc not considered sufficient for the licence for which you have applied.

…

… 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. For that reason, Level 3 safe storage is considered the most appropriate provision to cover the authority of the licence. Consequently, I find that Mr MacDonald is not being forced to alter his residence. Rather his application is being held to the security and safe keeping standards that the Commissioner has deemed applicable to all applications of the same type.

I also place significant weight on the advice of Mr Barry Wooton, President, SSAA Illawarra, (in his undated letter to the Firearms Registry) that there is "only one firearms retailer in our area who is also a sports store and facilitating firearms transfers is a time consuming chore for him and he charges accordingly". Mr Wooton further advises: "The club charges a small fee which helps the club and members can get good service and save annoying the local sports store". You also advised the Registry in your letter dated 14 April 2004, that some club members cannot get to the dealer due to shift work.

I believe these arguments represent commercial considerations and the personal preferences of club members. As such I do not find them sufficiently persuasive to convince me that legislative provisions should be circumvented to allow this licence to be issued.”

8 It should be noted that an information brochure has been published by the NSW Police – Firearms Registry entitled, “Recommended Safe Storage for Dealers, Collected & Prohibited Firearms/Prohibited Weapons.” The safe keeping requirements there described are what are elsewhere described as level 3 safe keeping. This brochure, while outlining the requirements, does not specify the legislative provision which the Commissioner considers the requirements are based on.

9 On 17 February 2006 the club filed an application in this Tribunal seeking to review the decision. The review was heard on 22 June 2006. The Tribunal’s jurisdiction to hear and determine this appeal can be found in s.75 of the Firearms Act 1996 and s.38 of the Administrative Decisions Tribunal Act 1997. The Tribunal’s task when reviewing the decision is to make the correct and preferable decision having regard to the material before it and any applicable written or unwritten law: s.63 Administrative Decision Tribunal Act 1997.

10 In the course of the hearing I heard evidence from Mr MacDonald. He wants to continue to be able to offer members of the club the service of overseeing the lawful transfer of their firearms.

11 The club is prepared to pay for the costs of upgrading the safe storage in his home so as to comply with the Level 3 safe keeping required by the Commissioner for firearms dealers. Quotes have been obtained for the cost of doing so that total over $3,500.00. They involve the conversion of a room in his house into a secure room: with secure solid core doors, the fitting of window grills to windows, and the installation of a security alarms system with sensors. Mr MacDonald said that while he understood and agreed that safe storage is necessary, he thought that the expense of having these alterations done is not warranted given the role he actually performs as club armourer. Perhaps more importantly, he does not want to “live in a fortress” and did not want to see his home converted into one.

12 Mr MacDonald said he was prepared to undertake and agree to conditions on any licence issued to him which would restrict his role to witnessing the lawful transfer of firearms and complying with the requirements that the Act imposes on firearms dealers and club armourers in respect of transfers. He would agree not to store any firearms being transferred at his premises, and would not undertake any of the other functions which a licensed club armourer is lawfully entitled to do.

13 At the conclusion of the hearing I reserved my decision.

The Legislation

14 In discussing the application of the Firearms Act 1996 it is important to bear in mind the principles and objects underlying the act set out in s.4 of the Act which provides:

(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

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

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

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

(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

15 Section 4 of the Act contains a number of definitions which are relevant to the present case:

“ club armourer means a person:
who is a member of a shooting club approved by the Commissioner in accordance with the regulations, and

who, in the opinion of the Commissioner, is the club armourer for that club.”

“ firearms dealer means a person who, in the course of carrying on a business or in carrying out the person’s duties as a club armourer:
(a) manufactures, purchases, sells, transfers, tests, repairs or converts firearms or firearm parts, and

(b) possesses firearms or firearm parts for the purpose of doing anything referred to in paragraph (a).”

A club armourer is therefore a firearm dealer for the purposes of the Act.

16 The authority conferred on a club armourer and a firearms dealer by a firearms dealers licence is set out in s.8:

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.

17 Section 10 of the Act is concerned with applications for a licence under the Act. Section 11 is concerned with the issue of licences. Relevantly, it provides:

“(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

(3A) …

(6) Except in the case of a firearms dealer licence or where the applicant’s genuine reason is business or employment, a licence must not be issued to a person who is not a natural person.

(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.

(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.”

18 Section 17B contains special provisions relating to the issue of firearms dealer licences:

“The Commissioner must not issue a firearms dealer licence if the Commissioner:
(a) is of the view that a person who (in the opinion of the Commissioner) is or will be a close associate of the applicant is not a fit and proper person to be a close associate of the holder of a firearms dealer licence, or

(b) is not satisfied that the applicant is to be the person primarily responsible for the management of the business to be carried on under the authority of the licence.”

19 Section 19 is concerned with the issue of licences:

“(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2) Without limiting subsection (1), each licence is subject to the following conditions:

(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,

(b) the licensee must not permit any other person to possess or use any firearm in the licensee’s possession if that other person is not authorised to possess or use the firearm,

(c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee’s facilities in respect of the storage and safe keeping of the firearms in the licensee’s possession,

(d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner,

(e) the licence cannot be transferred to another person.

(3) A licence is subject to such other conditions as may be prescribed by the regulations.”

20 There is no suggestion that Mr MacDonald’s safe keeping arrangements do not comply with the requirements of Part IV of the Act insofar as they relate to his category AB firearms licence.

21 The Firearms (General) Regulation 1997 and the Firearms (General) Regulation 2006 contain special provision dealing with firearms dealers, found in Part IV of both Regulations. The Firearms (General) Regulation 2006 commenced operation during the period in which the decision in this matter was reserved, on 1 September 2006. Clause 34 of the Firearms (General) Regulation 1997 and clause 37 of the Firearms (General) Regulation 2006 are identical. They specify additional restrictions on the issuing of firearms dealer licences.

“(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 safes or strongrooms 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.”

22 The Act and Regulations contain a large number of provisions imposing duties and requirements on firearm dealers and club armourers. They are required to record all transactions and dealing with firearms or firearm parts, which records are to contain prescribed information (s.45). Records of transactions are to be supplied to the Commissioner (clause 33 of the 1997 Regulation and clause 36 of the 2006 Regulation.). They are also required to provide quarterly return relating to transactions to the Commissioner (s.46).

Oral Submissions

23 The hearing proceeded on the basis that there was no dispute that Mr MacDonald’s present safe keeping arrangements do not meet the Commissioner’s requirements for a firearms dealer.

24 The real issue in contention arose from the fact that Mr MacDonald only carries out one of the functions which a club armourer’s licence would authorise him to do: the oversight of the lawful transfer of weapons in accordance with the requirement of the Act. He has not in the past and has no desire in the future to manufacture, purchases, sell, test, repair or convert firearms or firearm parts. He is willing to agree to not store firearms for the purpose of transferring them, which he concedes he has done occasionally in the past. As a consequence he considers that requiring him to comply with the general requirements for safe keeping for firearms dealers and club armourers to level 3 classification is unreasonable. When his individual circumstances are considered they will cause an unwarranted intrusion in his enjoyment of his home and put the club to unnecessary expense.

25 For Mr MacDonald, Mr Mainstone submitted that Section 19(1) empowers the Commissioner to issue licences on such conditions as the Commissioner thinks fit. Mr Mainstone submitted that in reviewing the decision to refuse Mr MacDonald’s application, the Tribunal should, in the exercise of that discretion, determine to issue him with a licence upon the strict conditions that he only transfer firearms and not engage in any of the other activities authorised by an armourer’s licence, and that in doing so he should not store any firearms being transferred. Mr Mainstone submitted that if Mr MacDonald were issued with an armourer’s licence on those conditions, I could be satisfied that there was no need for him to comply with the Level 3 safe keeping requirements applicable to holders of firearms dealers licences. I could also be satisfied that his existing Level 1 provisions for safe keeping satisfied the safe keeping requirements of the legislation, and the safety of the public would not in any way be compromised.

26 Mr Vendetti for the Commissioner conceded that there was a discretion vested in the Commissioner to issue licences on condition. He submitted that I should approach this matter in the light of the statement of the objects and principles of the Act, which show a clear parliamentary intention that public safety and the safe keeping of firearms are of the highest priority in the administration of the Act.

27 Mr Vendetti referred me to s.8 which sets out the types of licences which the Commissioner may issue, and the authority they confer. He submitted that it was paramount, in the interest of public safety, that safe keeping requirement applicable to firearms dealers and club armourers are met by all licence holders and are applied across the board. Because Mr MacDonald’s safe keeping arrangements do not meet the Commissioner’s requirements in respect to the storage of firearms and the security of his premises (Clause 34(2)(c) and (d)), he submitted that both the Regulation and the public interest require that Mr MacDonald’s application be refused.

Request for Later Submissions and Submissions Received

28 In the course of preparing my reasons for decision I encountered a question regarding the proper interpretation of clause 34 (now clause 37) of the Regulation which I considered may have a significant impact on my decision in this case. I decided that the correct course was to advise the parties of the issue and seek their submissions on it. On 31 August 2006 the Registrar, at my request, wrote to the parties in the following terms:

“Judicial Member Molony has asked me to write to the parties in this proceeding to seek their submissions on an issue he has encountered in the course of preparing his reasons for decision, which was not addressed at the hearing.

That issue is whether the provisions of clause 34 of the Firearms (General) Regulation 1997 apply to the issue of a firearms dealer licence to a club armourer.

In raising the issue Judicial Member Molony notes that s.8 of the Firearms Act 1996 specifies the authority conferred by a firearms dealer licence, which expression includes club armourers: s.4. In doing so, s.8 makes a distinction between the authority conferred by a firearms dealer licence as it applies to firearms dealer simpliciter, and such a licence as it applies to club armourers. A firearms dealer licence simpliciter authorises a licensee to carry on “the business of a firearms dealer, and only at the premises specified in the licence.” On the other hand a firearms dealer licence (club armourer) authorises the licensee to deal with firearms in their “capacity as a club armourer, and only at the premises specified in the licence.” That authority “is restricted to carrying out the person’s duties as club armourer for the club concerned.”

Judicial Member Molony invites your written submissions as to:

Whether you accept that s.8 makes the distinction between a firearms dealer licence simpliciter and a firearms dealer licence (club armourer) referred to above, and, if not, why not?

If it is found that there is such a distinction, whether the provisions of clause 34 of the Firearms (General) Regulation 1997 (which is expressed to apply to “a firearms dealer licence that authorises a firearms dealer to carry on business at specified premises”) on their proper construction apply only to the issue of a firearms dealer licence simpliciter, and not to the issue of a firearm dealers licence (club armourer)? If not, why not?

If so, what is the correct and preferable decision in this case? Why?

Judicial Member Molony has directed that any submissions you wish to make be filed and served by 20 September 2006.”

29 Both parties have filed submissions in accordance with that request. In their submissions both parties accept that s.8 makes a distinction between what I have referred to as a firearms dealer licence simpliciter and a firearms dealer licence (club armourer). The Commissioner added that, notwithstanding the distinction, both hold a firearms dealer licence.

30 With respect to the second question I posed concerning clause 34 the Applicant submits:

“The clause, which provides for additional restrictions on issuing firearms dealer licences, also specifically uses the phrase “…to carry on business…” There is no reference in the clause to a firearms dealer licence (club armourer).

These additional restrictions relate to the specified premises at which the carrying on of the business occurs and the level of security required. I submit that these security requirements, which the Respondent contends must be to Level 3, relate only to a firearms dealer licence simpliciter and not a firearms dealer licence (club armourer).

The Applicant’s submission is supported in the fact that Section 8 specifically distinguishes the carrying on of the business of a firearms dealer as separate from that of a club armourer. I submit that given there is such a distinction, the provisions of clause 34 of the Firearms (General) Regulation 1997, on their proper construction, apply only to a firearms dealer licence simpliciter and not to the issue of a firearms dealer licence (club armourer).”

31 The Commissioner’s submissions took a contrary view. I think it worth setting them out in some detail.

“An issue seems to arise from the Tribunal and the Applicant's submissions placing weight on the fact that clause 37 of the Firearms Regulation 2006 is framed to include the following, "...authorises a firearms dealer to carry on business at specified premises ..." which would then lend support to the view that the clause only applies to a firearms dealers licence simpliciter and not a firearms dealers licence for a club armourer.

The Respondent respectfully disagrees with such a construction as a firearms dealers licence simpliciter and a firearms dealer's licence (club armourer) pursuant to section 8 of the Firearms Act 1996 comes within the terms of a "firearms dealers licence" for the purposes of the Firearms Act and Regulations. Furthermore, pursuant to section 4 of the Firearms Act 1996 a firearms dealer includes a club armourer for the intents and purposes of the Firearms Act and Regulation.

It can be seen that clause 37 of the Firearms Regulation 2006 expressly applies to a "firearms dealer licence that authorises a firearms dealer" and does not specifically make a distinction as evident within section 8 of the Firearms Act 1996. This lends support to the view that Part 4 of the Firearms Regulation 2006 does not make a distinction for the purposes of the Regulations and is to apply to a firearm dealer as defined (including a club armourer). If the Tribunal was to construe clause 37 in a manner that renders it inapplicable to club armourers, then effectively this would render club armourers outside the ambit of Part 4 of the Firearms Regulation 2006 which is in terms of applying to "firearm dealers". The Respondent respectfully submits that such a restrictive construction goes against the intents and purposes of the legislation which must be viewed as a whole and not independently. On this note, I make particular reference to section 3 (1) (a) & (b) & (2) of the Firearms Act 1996.

Furthermore, pursuant to section 8 of the Firearms Act 1996, a firearms dealers licence authorises a firearms dealer simpliciter and a club armourer to "possess, manufacturer, convert, purchase, sell, transfer, repair, maintain or test" firearms and "only at the premises specified in the licence". The point of issue seems to centre around the additional wording found within section 8 of the Firearms Act 1996 when referring to a firearms dealer licence simpliciter referring to "...in the course of carrying on the business of a firearms dealer" and clause 37 of the Firearms Regulation 2006 referring to "...carry on business at specified premises". It is clear that the common denominator in the section is that it applies to the "premises specified in the licence.

The Respondent respectfully submits that such a point of issue does not bear on the fact that clause 37 of the Firearms Regulation 2006 specifically applies to a firearms dealer as defined in section 4 of the Firearms Act 1996 as including a club armourer. Furthermore, the authority bestowed upon a club armourer as indicated in section 8 of the Firearms Act 1996 is clear indicators of carrying on a business. To be able to "possess, manufacture, convert, purchase, sell, transfer, repair, maintain or test ..." are indicia's of someone carrying on a business.

The Respondent respectfully submits that for the above reasons, clause 37 of the Firearms Regulation 2006 applies to these proceedings and should be considered by the Tribunal in determining the application currently before it.

Both parties proceeded at the Hearing to address the Tribunal on the clause and its relevance to the factual matters heard during the course of the hearing. Of particular note, I refer the Tribunal to a letter from the Applicant's legal representative dated 3 February 2006 which specifically addresses the applicability of clause 37 of the Firearms Regulation 2006 to this particular application and proceeds to address the same (behind Tab 9 — Respondent's Brief). It is the Respondent's respectful submission that this further supports the view that clause 37 of the Firearms Regulation 2006 applies to these proceedings.

32 With respect to my third question both parties urged me to make a decision based, essentially, upon the acceptance of their submissions with respect to the second question.

Does Clause 37 Apply to Club Armourers?

33 I have substantial difficulty with the Commissioner’s submissions which, in my view, are circuitous in their nature and do not adequately address the meaning to be given to the opening words of the clause (in both its incarnations): “A firearms dealer licence that authorises a firearms dealer to carry on business at specified premises.”

34 The Commissioner is undoubtedly correct in submitting that the term “firearms dealer licence” encompasses a firearms dealer licence issued to a club armourer: this is made clear by the definition of those terms in s.4. The Commissioner acknowledges that s.8 makes a distinction between the authority conferred by a firearms dealer licence on a firearms dealer other than a club armourer, and on a club armourer. For the sake of convenience I have adopted the terms ‘firearms dealer licence simpliciter’ and ‘firearms dealer licence (club armourer)’ when referring to those differing authorities. A firearms dealer licence simpliciter authorises the licensee 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 contrast a firearms dealer licence (club armourer) authorises a 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 underlined words represent the difference between the authority conferred by a firearms dealer licence simpliciter and a firearms dealer licence (club armourer). In the case of a firearms dealer licence simpliciter the authorised activities are to be carried on “in the course of carrying on the business of a firearms dealer,” while with a firearms dealer licence (club armourer) the activities are authorised in “the licensee’s capacity as a club armourer.”

35 Clause 37 (clause 34 of the 1997 Regulation) applies to “A firearms dealer licence that authorises a firearms dealer to carry on business at specified premises.” The interpretation pressed by the Commissioner would result in the words I have underlined being given no meaning and having no effect. Such a result would be contrary to the basic canons of statutory interpretation. In Commonwealth v Baume (1905) 2 CLR 405 at 414, Griffith CJ cited the 1688 case of R v Berchet (1688) 89 ER 480 to illustrate for how long it had been

“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.”
See more recently Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490. It is well established that all the words of a provision being interpreted should be given their plain and ordinary meaning.

36 The Commissioner accepts that there is a distinction between the authority conferred by s.8 on the holder of a firearms dealer licence simpliciter and firearms dealer licence (club armourer). When that distinction is borne in mind the meaning of the words, “A firearms dealer licence that authorises a firearms dealer to carry on business at specified premises,” become clear. The provision requires one to look at the firearms dealers licence concerned and see if it confers on the holder authority to carry on business at specified premise. If the licence is a firearms dealer licence simpliciter it will confer such authority. If it is a firearms dealer licence (club armourer) it will not: rather it will confer authority on the holder to undertake activities in the capacity as a club armourer, and only at specified premises.

37 In submissions the Commissioner argued that the other provisions of Part IV of the Regulation do not make a distinction between a firearms dealer licence simpliciter and a firearms dealer licence (club armourer). It was submitted that the Regulation should be construed as a whole. It is I think helpful to consider the other provisions of that Part, and associated provisions of the Act.

38 Clause 35 (clause 32 in the earlier Regulation) is concerned with a change in the premises to which a licence relates, and applies to the “holder of a firearms dealer” without any other limiting or qualifying words. The clause does not require the reader to have regard to the authority conferred by the licence. Clause 35 therefore applies to all firearms dealer licences. Clause 36 (clause 33 in the earlier Regulation) is concerned with record keeping and imposes requirements with respect to records to kept by “a licensed firearms dealer.” Again there are no limiting or qualifying words, and the same conclusions apply. Similarly, clauses 37 and 38, which are new provisions relating to the storage of ammunition and a firearms dealers obligations when ordering a firearm from elsewhere, apply to a “licensed firearms dealer.” So too, the provisions of clauses 40 (inspection of firearms) and 42 (which requires the Commissioner to be notified of unidentified firearms and barrels) apply to a “licensed firearms dealer” only. They mirror the provisions of clause 35 and 37 of the 1997 Regulation. Each of these provision on a plain reading apply to firearms dealer licences, whether simpliciter or club armourer.

39 Other provisions of Part IV of the Regulation, apart from clause 37, contain words which indicate a different legislative intention, by use of words which require a consideration of the authority given to the licensee by the firearms dealer licence to which they apply. Clause 41 (clause 36 of the old Regulation) provides:

“A licensed firearms dealer must, in any advertisement relating to the business of the firearms dealer that is displayed by or on behalf of the dealer, state or display the number of the firearms dealer’s licence.”

40 The words, “in any advertisement relating to the business of the firearms dealer” limit the application of this clause to holders of a firearms dealer licence simpliciter. This is so because their authority enables them to undertake the activities set out in s.8, “in the course of carrying on business as a firearms dealer,” whereas the holder of a firearms dealer licence (club armourer’s) authority is limited to activities undertaken in the “capacity of club armourer.” A person who holds a firearms dealer licence (club armourer) and conducts a business as a firearms dealer, including advertising it, would be acting outside their authority.

41 Clause 44 prescribes offences for the purposes of s.44A(3)(b) of the Act. Persons convicted within the preceding 10 years of those offences are prescribed persons for the purposes of that s.44, sub-section (1) of which provides:

(1) If a licensed firearms dealer:
(a) employs a prescribed person in the business that is authorised by the licence, or

(b) permits a prescribed person to act as an agent for, or participate in the management of, that business,

the firearms dealer and the prescribed person are each guilty of an offence.
Maximum penalty: imprisonment for 14 years

42 Because s.8 does not confer authority on the holder of a firearms dealer licence (club armourer) to carry on business as a firearms dealer, I am unable to see how s.44 can apply to the holder of such a licence. Section 8 when specifying the authority conferred by a firearms dealer licence, by use of the words “other than a club armourer,” makes it clear that only the holder of a firearms dealer licence simpliciter has authority to employ eligible persons, and to undertake activities “in the course of carrying on business of a firearms dealer.

43 Mention should also be made of clause 43 (clause 37 of the old Regulation) which extends the authority conferred by a “firearms dealer licence” to employees of the licensee who are under 18 or live in another State in certain defined circumstances. The authority conferred on a firearms dealer licence (club armourer) by s.8 does not envisage a club armourer having employees, or grant to a club armourer authority to employ people, whereas the authority conferred by that section on the holder a firearms dealer licence simpliciter does both.

44 As a result of these considerations, I am satisfied that there is a distinction drawn in both the Act and the Regulation between the authority conferred by a firearms dealer licence on a person who is authorised to undertake activities while carry on the business of a firearms dealer at specified premises, and a person who is authorised to undertake those activities in their capacity as a club armourer at specified premises. That distinction in the authority conferred is an important one. It is used in both the Act and the Regulation as a means of differentiating between whether certain provisions apply to all holders of firearms dealer licences, or only those upon whom specific authority is conferred.

45 When considering clause 37 of the Regulation (clause 34 of the 1997 Regulation) I am of the opinion that the words “a firearms dealer licence that authorises a firearms dealer to carry on business at specified premises” make it clear that the provision is intended to apply to persons who hold licences conferring such an authority only. These are persons who hold a firearms dealer licence simpliciter, and are authorised to carry on the business of a firearms dealer at specified premises. Clause 37 does not on its terms apply to holders of a firearms dealer licence (club armourer), because they are not authorised to carry on the business of a firearms dealer.

46 In my view the words of clause 37 when read literally are neither unclear nor ambiguous. Their meaning is clear. That meaning is not at odds with the other provisions of the Regulations, and is not inconsistent with the object and purposes of the Act. The clause recognises the distinction between the authority given by a firearms dealer licence simpliciter and that granted by a firearms dealer licence (club armourer). It makes provision for the safe keeping arrangements of those who are given authority to carry on business as a firearms dealer. I can see no reason from giving the provision other than its plain meaning. In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421 McHugh JA said:

“Where the text of the legislative provision which embodies the proposition is grammatically capable of only one meaning and neither the context, the purpose of the provision nor the general purpose of the Act throws any real doubt on that meaning, the grammatical meaning must be taken as representing Parliament's intention as to the meaning of the law. A court cannot depart from the grammatical meaning of a provision because that meaning produces anomalies or injustices where no real doubt as to the intention of Parliament arises: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305, 320 and Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 234-235, 237, 238;[1978] 1 All ER 948 at 951, 954, 955.

47 Finally, and briefly, mention should be made of the Commissioner’s submission that that authority conferred on club armourers by s.8 to manufacture, convert, purchase, sell, transfer and repair firearms, are each “indicia's [sic] of someone carrying on a business.” This submission is, in my view, without merit. The relevant question posed by the wording of clause 37 is not what a licence holder might do, but what their licence authorises them to do. Holders of a firearms dealer licence (club armourer) are not authorised to carry on a business: their authority is limited to undertaking activities in their capacity as club armourer.

48 As a result, I conclude that the safe keeping requirements of clause 37 of the Regulation do not apply to firearms dealer licences issued to club armourers.

Conclusion

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 and s.17B of the Firearms Act 1996.

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 safekeeping 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.

Orders

I make the following orders:

1. The decision under review is set aside.

2. Mr MacDonald’s application for firearms dealers licence, limited to category A and B firearms and authorising him, in his capacity as club armourer, to undertake the activities specified in s.8 that may be conferred on a club armourer, at the address specified in his application, is granted.