Vilcins v The Registrar of Firearms - [2017] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
VILCINS v THE REGISTRAR OF FIREARMS
[2017] SADC 42
Judgment of His Honour Judge Tilmouth
27 April 2017
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Appeal allowed against a decision of the Registrar of Firearms declining to vary the appellant's firearms licence to enable him to acquire a class C firearm for the purpose of competitive skeet and clay trap shooting. History and proper construction of clay target shooting provisions of the Firearms Act considered and discussed.
Acts Interpretation Act 1915 (SA) s 21; District Court Act 1991 (SA) s 42E(3), s 42F, s 42G(2); Firearms Act 1977 (SA) s 5(1), s 6(1), s 12(6), s 15A(1), s 15A(3)(b)(i), s 15A(3)(b)(ii), s 26B, s 26C, s 35A; Firearms Regulations 2008 (SA) reg 21(1)(d), reg 21(3), reg 21(4), reg 21(5), reg 23(1)(e), reg 57; Registrar of Motor Vehicles v Thiele (2012) 280 LSJS 288; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72; Johnson v Registrar of Firearms (2001) 79 SASR 353; R v Gasmier [2011] SASCFC 43; Pollitt v Police (2007) 251 LSJS 306; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; Wotton v Queensland (2012) 246 CLR 1; Thompson v Goold & Co. [1910] AC 409; Marshall v Watson (1972) 124 CLR 640; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; Australian Securities and Investments Commission (ASIC) v DB Management Pty Ltd (2000) 199 CLR 321; Registrar of the Veterinary Surgeons Board of South Australia [2009] SADC 62; Commissioner for Consumer Affairs v McMurray [2017] SASCFC 16; Marksman Training Systems Pty Ltd v The Registrar of Firearms [2014] SADC 150, referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied.

VILCINS v THE REGISTRAR OF FIREARMS
[2017] SADC 42
Overview

The appellant is a current serving Senior Sergeant First Class with the South Australian Police,[1] in which he has served for over 30 years. He has a longstanding and abiding interest in clay target shooting. For that purpose he has held firearms licences since at least 1986.
[1] Hereafter SAPOL.
In May 2015, he applied to the Registrar of Firearms for a variation of his current licence to authorise him to possess a class C firearm, so as to more effectively pursue this interest. He was advised in January 2016 that the application was refused. These reasons explain why the Registrar of Firearms erroneously construed the applicable provisions of the Firearms Act 1977 (SA) too narrowly and why the decision to refuse the application must be rescinded.
Background Circumstances
Sergeant Vilcins has been a member of SAPOL since January 1976. He was decorated several times for ‘ethical and diligent’ service to police and the community. His current firearms licence authorises him to possess classes A and B firearms used for the purpose of membership of shooting clubs and hunting. He previously owned self-loading shotguns used for trap and skeet shooting. These were surrendered in a gun buy-back scheme implemented during 1996 and 1997 in the wake of the Port Arthur massacre. Had he not done so, he would have been entitled to be issued with a class C licence for those firearms under a ‘grandfather clause’ in a National Firearms Agreement developed by the Australasian Police Ministers’ Council.
Sergeant Vilcins is a longstanding member of the South Australian Clay Target Association Inc. (SACTA), the Australian Clay Target Association Inc. (ACTA), and of the Monarto/Alexandra Clay Target Club Inc., which is affiliated with both of these organisations. The sport of clay target shooting involves a number of disciplines, and is an activity requiring ‘intense training’. Sergeant Vilcins was involved in the administration of clay shooting with ACTA on a continuous basis from 1984.
Recently he retired from this activity so as to concentrate on competition shooting. It is this change in circumstances that led him to bring the application to vary his licence. He previously participated in clay shooting competitions, including the World Championships between 2007 and 2014, the National Trap Championships five times, and the National Skeet Championships twice. He was a member of South Australian teams a number of times, the South Australian Olympic Skeet Team, and he participated in International and Australasian police competitions between 1994 and 2015.
The Application Process
The application for variation of the licence was lodged with the Registrar of Firearms on 15 April 2015. The reasons furnished for seeking the application were these:[2]
For use in clay target competition. Holder of class C1 licence prior to 1997.
I am a member of the South Australian Clay Target Association and Australian Clay Target Association.
I do not have any other class ‘C’ firearms.
I am an active member of the Monarto/Alexandra Clay Target Club. I am also a financial member of the MACTC and SACTA and the ACTA.
[2] Exhibit KH1 of Affidavit of Kym David Hand 14/9/16.
The application was initially delegated to Inspector Fisher of the Firearms Branch of SAPOL, on 10 September 2015. He formed the provisional view that he was not satisfied Sergeant Vilcins had a genuine need for a class C licence.[3] A further request for additional material was sent by Superintendent Hand, the Officer in Charge of the Firearms Branch of SAPOL, on 31 December 2015.[4]
[3] Exhibit KH4, p 4.
[4] Exhibit KH5.
Sergeant Vilcins was eventually advised on 22 January 2016, by Superintendent Hand as delegate of the Registrar, that the application for variation was refused.[5] The Registrar of Firearms is the Commissioner of Police: s 6(1) of the Firearms Act. No issue was taken as to the validity of the delegation in this instance: see Marksman Training Systems Pty Ltd v The Registrar of Firearms. [6]
[5] Exhibit KH11.
[6] [2014] SADC 150 [52]-[59].
A request for written reasons was made and were supplied by letter of 29 February 2016, signed by Superintendent Hand. The reasons for refusing the application appear in this passage taken from that letter:[7]
However, on the basis of the submissions and information provided by you, I am not satisfied that you have a “need” for a class C firearm pursuant to s 15A(3)(b)(ii) of the Act. Specifically, I am not satisfied that you have supplied evidence to establish a need for a Class C firearm, as opposed to a preference that you may have for use of the Class C firearm. The fact that you may obtain an advantage through use of a Class C firearm is insufficient to establish that you have a need for such a firearm.
It does not appear to be a stipulation or requirement by the Australian Clay Target Association that you do in fact need a Class C firearm in order to compete. Whilst they allow the use of such firearms mainly from overseas competitors it is still a personal choice for the individual.
[7] Exhibit KH11, p 2 of letter.
A review of this decision by the Firearms Review Committee was requested by Sergeant Vilcins on 23 March 2016, pursuant to s 26B of the Firearms Act.[8] On 13 April 2016 the Committee resolved to affirm the decision of the delegate, for these reasons:[9]
You have no genuine need to be granted further licence variations as you seem 100% fit and it would not be in the interest of the firearms legislation to see these requirements opened up further than at present. A view to the contrary would make firearms control more difficult to manage.
[8] Exhibit KH12.
[9] Exhibit KH13.
An Appeal to the District Court
By an appeal lodged with this Court on 26 May 2016, Sergeant Vilcins appeals on the compendious grounds that the delegate ‘misconstrued and/or misapplied the requirements’ of the Firearms Act. The right of appeal is conferred by s 26C of the Firearms Act, only after the decision of the Registrar is affirmed by the Firearms Review Committee.
Otherwise, the jurisdiction and powers of this Court are regulated by Part 6 Division 2 of the District Court Act 1991 (SA). This requires the Court to ‘… give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons’: s 42E(3). The powers of disposition contained in s 42F of the District Court Act are of affirmation, rescission and remission (with or without directions or recommendations).
It is necessary on such an appeal to examine the reasoning of the Registrar as well as that of the Firearms Review Committee: Registrar of Motor Vehicles v Thiele, [10] Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2).[11] It is equally necessary to bear steadily in mind that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang. [12]
[10] (2012) 280 LSJS 288, [47].
[11] [2016] SASCFC 72, [309]-[314].
[12] (1996) 185 CLR 259, 271-72.
Statutory Context
The overall scheme of the firearms regime established through legislative and regulatory-making powers, is designed to ensure and preserve the public safety: Johnson v Registrar of Firearms,[13] R v Gasmier.[14] Another reason is to heavily restrict and control the possession and use of firearms so as to prevent the proliferation of dangerous illegal weapons in the community, and to prevent them from falling into the hands of criminal elements: Pollitt v Police. [15]
[13] (2001) 79 SASR 353, [16].
[14] [2011] SASCFC 43, [17].
[15] (2007) 251 LSJS 306, [20].
The application for variation was brought pursuant to s 12 of the Firearms Act. Section 12(6) effectively requires the Registrar of Firearms to grant an application if ‘properly made’, in that he ‘may only refuse the application’ on various bases set out therein. None of these were relied on by the Registrar in this instance. It should be noted that s 12(6)(a)(ii) thereof permits the Registrar to refuse a licence if it would authorise the possession of a class C or D firearm, if the Registrar ‘would not be prepared to grant a permit to the applicant to acquire a firearm of that class’. This particular provision was not invoked by the Registrar either.
The application was refused pursuant to s 15A of the Firearms Act. So far as relevant, this provides as follows:
15A—Reasons for refusal of permit
(1) Subject to this section the Registrar may refuse an application for a permit to acquire a firearm of any class if he or she is satisfied that—
(a) the firearm is particularly dangerous by reason of its design, construction or any other factor; or
(b) the firearm can easily be converted to an automatic firearm; or
(c) the firearm is, by reason of its size or any other factor, more readily concealed than other firearms of the same class and is for that, or any other reason, particularly suited to unlawful use; or
(d) the applicant has in the past acquired a firearm that he or she has failed to produce to the Registrar for registration in accordance with this Act or has been guilty of any other offence against this Act.
…
(3) The Registrar must refuse an application for a permit to acquire a class C firearm unless—
…
(b) the following requirements are satisfied:
(i) the applicant is a member of The South Australian Clay Target Association Incorporated or the Australian Clay Target Association Incorporated and is also a member of a recognised firearms club affiliated with either of those associations; and
(ii) the Registrar is satisfied that the applicant needs the firearm for the purpose of an activity of the club conducted in accordance with the rules of the Australian Clay Target Association Incorporated and in accordance with regulations under this Act
…
It was the application of s 15A(3)(b)(ii) that was invoked by the Registrar, as is apparent from the extract from the reasons quoted above. He was otherwise expressly satisfied Sergeant Vilcins had the necessary memberships to satisfy s 15A(3)(b)(i). As seen above, the appellant was a member of SACTA and ACTA. The Registrar clearly refused the application on the basis of understated ‘needs’, pursuant to s 15A(3)(b)(ii). The issue of ‘needs’ formed the focus of attention in this appeal.
It can be seen that the essence of refusal was the delegate’s considered view that the evidence fell short of establishing a requisite need, ‘as opposed to a preference for acquiring a class C firearm’. Allied to this was the conclusion that an acquisition of a class C firearm was a matter of ‘personal choice’, coupled with the fact that it did:
… not appear to be a stipulation or requirement by the Australian Clay Target Association that you do in fact need a Class C firearm in order to compete.
Section 15A(3)(b)(ii) – Proper Construction
The Statutory and Regulatory Regime
The verb ‘needs’ is protean. Not much is to be gained by reference to other cases interpreting this statutory expression, as so much depends on the context in which it appears. In this particular instance, the question of ‘needs’ is directly referable to ‘the purpose of an activity of the club conducted in accordance with the rules of [ACTA]’ and ‘in accordance with regulations under this Act’.
A class C firearm is defined in s 5(1) of the Firearms Act as follows:
(a)     self-loading rim fire rifles having a magazine capacity of 10 rounds or less; and
(b)     self-loading shotguns having a magazine capacity of five rounds or less; and
(c)     pump action shotguns having a magazine capacity of five rounds or less,
and includes receivers of firearms defined as class C firearms by a preceding paragraph but does not include revolving chamber rifles or receivers of revolving chamber rifles
In addition, the term ‘self-loading’ firearms is further defined in s 5(1) as follows:
(a) a firearm that is designed to fire a round when the trigger is brought to the firing position and to continue to fire one or more rounds by releasing the trigger and returning it to the firing position to fire each additional round; but
(b) does not include a double barrel shotgun that is not designed to hold additional rounds in a magazine
Pump action shotguns are further defined in s 5(1) as:
… a shotgun that is reloaded manually by moving the forward hand grip which is part of the loading mechanism of the gun backwards and then forwards
There is no issue that the firearm in question falls within the definition of class C. It may be observed that unlike s 15A(3)(a)(ii) of the Firearms Act, there is no requirement to demonstrate that there is ‘no satisfactory alternative to using a firearm of that class’ in s 15A(3)(b). As can be seen from s 15A(3)(b)(i), ACTA and SACTA are implicitly recognised by express reference. These are the sole references to those Associations in the Firearms Act, which are not otherwise defined therein.
So far as the former is concerned, there is no doubt that the shooting rules of the ACTA are permissive of the use of a class C firearm. So far as the first rider to s 15A(3)(b)(ii) is concerned, the shooting rules of ACTA provide:[16]
[16] Second Affidavit of Senior Sergeant Vilcins, p 40.
4.08   FIREARMS
(a)     The term “Magazine gun” applies alike to self loading or pump action firearms and other firearms not directly dependent on hand loading and are permissible for clay target shooting.
(b)     Release trigger firearms shall only be used on registered ACTA grounds, subject to the following conditions:
(i)ACTA shooters wishing to use a release trigger shall make application to a Rules Supervisor for approval. The Rules Supervisor shall, by whatever means he determines, have the applicant examined on his understanding of the use of a release trigger device. Where a Rule Supervisor has satisfied himself that the applicant understands the use of a release trigger device the shooter shall be included on the master register of release trigger users and his ACTA Record Card shall be marked accordingly by the ACTA.
(ii)No ACTA shooter other than those authorised by this rule shall use a release trigger firearm.
(iii)All release trigger firearms used by ACTA shooters and overseas visitors shall be clearly labelled in a conspicuous place near the breech.
(iv)Release trigger firearms shall not be left in gun racks or in positions where they can be handled but shall be constantly under the control and supervision of the user.
(c)     No firearm which has a gauge larger than 12 gauge is permitted nor shall any barrel(s) length be shorter than 63 centimetres overall.
(d)     The use and carriage of military style shotguns is prohibited on ACTA grounds at all times.
(e)     A maximum of two cartridges are allowed in any gun at any one time
This is a sole reference within these rules referable to class C firearms.
So far as the second rider to s 15A(3)(b)(ii) is concerned, regs 21(3), (4) and (5) of the Firearms Regulations 2008 (SA) provide:
21—Conditions of firearms licences
…
(3) It is a condition of a firearms licence that authorises the possession and use of a class C firearm that the holder of the licence may only use a firearm of that class if the requirements set out in 1 or more of the paragraphs of section 15A(3) of the Act or in regulations under section 15A(3)(a) are satisfied and then only if his or her use of the firearm is consistent with the relevant paragraph or regulation.
(4) If the only paragraph of section 15A(3) of the Act satisfied by the holder of a firearms licence authorising the possession and use of a class C firearm is paragraph (b) (membership of The South Australian Clay Target Association Incorporated or the Australian Clay Target Association Incorporated and membership of a recognised firearms club affiliated with either of those associations), it is a further condition of the licence that the holder must be an active member of the club.
(5) For the purposes of subregulation (3), the requirements of paragraph (a) of section 15A(3) of the Act will not be taken not to be satisfied on the ground that the holder of the licence has possession of 2 or more class C firearms if his or her possession of those firearms is consistent with another paragraph of section 15A(3) or with a regulation under section 15A(3)(d).
Regulation 23(1)(e) of the Firearms Regulations further provides:
23—Exemption from requirement to be licensed
(1) An offence is not committed against section 11 of the Act in the following circumstances:
…
(e)by a person who has possession of or uses a class C firearm on the grounds of a recognised firearms club that is affiliated with The South Australian Clay Target Association Inc. or the Australian Clay Target Association Inc. for the purpose of shooting in an activity of the club conducted in accordance with the rules of the Australian Clay Target Association Inc. if that person is with, and is under the continuous supervision of, a person who holds a firearms licence authorising possession of the firearm for the purpose for which it is being used;
The offence under s 11 of the Firearms Act to which this regulation refers, is the offence of possessing a firearm without a firearms licence authorising possession of the firearm in question.
Historical Background

It is evident from the history of firearms legislation in general and clay target shooting in particular, that references to ACTA in the Firearms Act arose following the Port Arthur massacre in May 1996. This massacre led to a series of resolutions passed by the Australasian Police Ministers’ Council with respect to the proposed uniform regulation of firearms.[17] Categories of firearms were developed to standardise the definition of gun categories across Australasia. Those preliminary resolutions were made in the absence of consultation with parties potentially affected by the proposed changes, including primary producers and clay target shooters. Initially it was suggested that the use of class C firearms be limited to primary producers[18]. On 10 July 1996, the Firearms (Miscellaneous) Amendment Bill 1996 (SA) was introduced into the House of Assembly, which allowed for no exception for clay target shooting.
[17] Exhibit KH10, Affidavit of Kym David Hand 14/9/16.
[18] Exhibit KH10, pp 155-156.
It is apparent that following lobbying by various Australia-wide organisations thereafter, a subsequent meeting of the Australasian Police Ministers of July 1996 resolved in principle to further examine the question of access to category C firearms for clay target shooters. The reason for this was: [19]
… in order to ensure effective representation by Australian competitors in Olympic, Commonwealth and other recognised national and international events.
[19] House of Assembly Debates, 23 July 1996, pp 2005, 2018.
On 24 July 1996, the Deputy Premier and Police Minister at the time introduced an amendment to the original bill, inserting what became s 15A(3)(b).[20] This was identical to the current version of that section, except the words ‘and in accordance with regulations under this Act’ were not then present. Those words were later inserted at the request of the Legislative Council.[21]
[20] House of Assembly Debates, 24 July 1996, p 2085.
[21] Legislative Council Debates, 31 July 1996, p 1934.
The purpose for these changes to the original Bill was explained in the Second Reading Speech to the Firearms (Miscellaneous) Amendment Bill in the following terms:[22]
It is important to point out that legitimate approved firearms clubs are not affected by the proposed changes except to the extent that they cannot use firearms subject to prohibition. Indeed, one of the genuine purpose classifications for owning, possessing or using firearms under categories A, B and H is membership of an approved club.
The Commonwealth Government has made it clear that the proposed gun law reforms will not affect the Olympic Games or Commonwealth Games disciplines. The Commonwealth Government has been advised that the only such discipline allowing the use of a prohibited firearm relates to Clay Target Shooters and it has given assurances that these people will be accommodated.
A member of the South Australian Clay Target Association or the Australian Clay Target Association who is also a member of a recognised club affiliated with either of those associations and who can satisfy the Registrar that he or she needs a class C shotgun for the purpose of shooting in accordance with the rules of the Australian Clay Target Association.
[22] Legislative Council Debates, 30 July 1996, p 1849 at 1851.
These materials provide the ‘context of the provision that is being construed’: Project Blue Sky Inc v Australian Broadcasting Authority,[23] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[24]
[23] (1998) 194 CLR 355, [69].
[24] (2009) 239 CLR 27, [47].
Analysis
It was submitted by Mr McDonald on behalf of Sergeant Vilcins, that the proper construction of s 15A(3)(b)(i) and (ii) of the Firearms Act required a ‘genuine subjective desire to possess a class C firearm for the purposes of clay target shooting … based upon an objectively reasonable justification by reference to the characteristics of the firearms in question’.[25]On the other hand, it was put by Mr Keane on behalf of the Registrar, that the provisions stood to be construed so as to require something more than mere membership of the requisite associations or a desire to participate in clay target shooting. He submitted that a ‘compelling justification … for the grant of such a licence’ was necessary, as well as a substantial reason for needing a class C firearm.[26] He cited Mulholland v Australian Electoral Commission[27] and Wotton v Queensland.[28]
[25] Written Submissions of the Appellant, [44].
[26] Respondent’s Summary of Argument, [13].
[27] (2004) 220 CLR 181, [42].
[28] (2012) 246 CLR 1 at [88]-[90].
To construe those provisions in either way, is simply to read in a gloss which is not there. No clear necessity to read into an Act of Parliament words that are not there was identified: Thompson v Goold and Co.,[29] Marshall v Watson,[30] Parramatta City Council v Brickworks Ltd, [31] Taylor v Owners - Strata Plan No 11564.[32] No occasion to construe ‘needs’ as implying a meaning to it of ‘essential’ or ‘unavoidable’ arises: Mulholland v Australian Electoral Commission.[33] The duty of a court is to give the words of a statutory provision the meaning the legislature is taken to have intended them to have: Project Blue Sky Inc. v Australian Broadcasting Authority.[34] This process begins with the consideration that the Registrar is required to grant applications for firearms licences ‘properly made’, unless not satisfied of the matters contained in s 12(6) of the Firearms Act. None of these apply here. Refusal may also occur pursuant to s 15A(1), and yet once again, is not applicable here.
[29] [1910] AC 409, 420.
[30] (1972) 124 CLR 640, 649.
[31] (1972) 128 CLR 1, 12.
[32] (2014) 253 CLR 531, [37]-[39].
[33] (2004) 220 CLR 181, [39]-[40].
[34] (1998) 194 CLR 355, [78].
In contrast, the licensing of class C firearms is generally prohibited, except in the case of primary producers and legitimate clay target shooters. Section 15A provides comprehensively for the ambit of both those exemptions.
Proper Construction - Analysis
As so construed, once it appears that an application for a permit to acquire a class C firearm is properly made, the exclusions contained in s 15A(1) and s 15A(3)(iv) are not activated, and once it is demonstrated that an applicant is an active member of SACTA or ACTA, that the application for the firearm is for the legitimate purpose of an activity conducted in accordance with the rules of ACTA (as is the case here), and that the application is otherwise in accordance with regulations under the Firearms Act (as is also the case here), the application should be granted without further qualification or threshold requirement being met.
Any degree of necessity inherent in the verb ‘needs’ is referrable to the requirements of compliance with membership of ACTA, and that the activity is conducted in compliance with its rules and with the regulations. The ‘needs’ criterion is not an empirical measure lying outside these requirements.
It was vigorously submitted on behalf of the Registrar that so construed, s 15A is rendered nugatory and far too permissive of acquiring class C firearms, which as a general rule are heavily restricted to few. There are however, substantial protective mechanisms within the firearms regime to enforce lawful compliance and ensure that these provisions are not abused. In the first place, the application must be genuinely made for the stated purpose by active members of the requisite associations, as required by reg 21(4) of the Firearms Regulations. In addition to this, the protection of the community through the tight regulation of safe storage and transportation to and from competition venues, is tightly controlled by means of s 35A of the Firearms Act, as well as regs 21(1)(d) and 57 of the Firearms Regulations. Otherwise, the licence holder is subject to compliance with all other applicable requirements of the Firearms Act and Firearms Regulations, in both respects.
The Registrar further submitted that since one of the purposes of the legislative scheme is to limit the proliferation of certain types of firearms, refusal of a licence to possess a class C firearm is the ‘default position under the Act’.[35] Ergo, the primary concern of the regime is the ‘strict control of the possession and use of … dangerous weapons in the community’, of which class C firearms are one.
[35] Respondent’s Summary of Argument, [6].
This premise may be accepted since the primary concern is the protection of the public, enforced by means of rigorous safeguards, together with an assumption that class C firearms are prohibited, with two narrow exemptions. The consequence contended for does not however flow from the premise. It is of little assistance in establishing the ambit of the exemptions, ‘to invoke a general presumption against the very thing which the [exemptions set out] to achieve’: Australian Securities and Investments Commission (ASIC) v DB Management Pty Ltd.[36] Expressed in another way, to allow the major premise to control the secondary premise, is to impermissibly erode or compromise the secondary premise virtually out of existence and thereby fail to give due effect to the plain meaning of the words of the exemption: Project Blue Sky v Australian Broadcasting Authority[37] and s 21 Acts Interpretation Act 1915 (SA).
[36] (2000) 199 CLR 321, [43]
[37] (1998) 194 CLR 355, [71]
Reading into s 15A(3) of the Firearms Act requirements that are simply not there was to misconstrue the section too narrowly. This occurred by requiring something more than a ‘preference’ to use a class C firearm for competition purposes, and finding that the rules of ACTA did not require a class C firearm ‘in order to compete’. The ‘needs’ in question attach to genuine membership, and compliance with ACTA rules and with the regulations. They are not referable to some other extrinsic standard established outside the scope of s 15A(3).
This construction constituted a failure to give due effect to the exemptive limb contained in s 15A(3)(b) of the Firearms Act in light of the historical course of events bringing it into existence.
For its part the Firearms Review Committee erred in taking an even more restrictive view of s 15A(3) of the Firearms Act. There is no disability-based exemption at all. The observation that it was ‘not in the interests of the firearm legislation … to see these requirements opened up further than at present’, is premised on a policy judgment. The reasoning process is flawed fundamentally because it precedes rather than succeeds the proper construction of the legislation, as it should have been. So much was conceded by the respondent.[38]
[38] Respondent’s Summary of Argument, [27]-[28].
Conclusion and Orders
It follows that the Registrar has misconstrued the provisions relating to the acquisition of class C firearms for genuine clay target shooting purposes. This is an error of law giving rise to ‘cogent reasons’ to depart from the decision of the Registrar: Registrar of the Veterinary Surgeons Board of South Australia v Moody,[39] Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2).[40] That being so, no further question of giving ‘due weight’ to the decision of the delegate arises: Marksman Training Systems Pty Ltd v The Registrar of Firearms,[41] Commissioner for Consumer Affairs v McMurray.[42] The decision of the Registrar must therefore be rescinded and the application for variation sought by Senior Sergeant Vilcins granted: s 42F(b) of the District Court Act.
[39] [2009] SADC 62, [26].
[40] [2016] SASCFC 72, [197].
[41] [2014] SADC 150.
[42] [2017] SASCFC 16, [47].
There appears to be no reason to depart from the statutory principle that each party should bear their own costs: s 42G(2) of the District Court Act. However, the parties have liberty to apply should they be so advised in order to seek any different order.