Vougamalis v Commissioner for Consumer Affairs - [2012] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VOUGAMALIS v COMMISSIONER FOR CONSUMER AFFAIRS
[2012] SADC 98
Judgment of His Honour Judge Costello
2 August 2012
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS - OTHER CALLINGS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INCORPORATION OF OTHER STATUTORY PROVISIONS
Appeal pursuant to s 11 of Security and Investigation Agents Act 1995 against Commissioner's decision to refuse appellant's application for Security Agent's Licence - application refused because inter alia appellant convicted of offences against Firearms Regulations 1993 - offences disentitling an applicant to a licence included offences against Firearms Act 1977 - appellant argued that offences against Firearms Act 1977 did not include offences against Firearms Regulations 1993 - Acts Interpretation Act 1915 defines the phrase "the Act" to include the Regulations "unless the contrary intention appears" - appellant argued that the terms of Schedule 1 to the Security and Investigation Agents Regulations 2011, which sets out the classes of disentitling offences, evinced an intention to exclude offences against the Firearms Regulations 1993 so as to displace the presumption in the Acts Interpretation Act - meaning of "contrary intention" considered - contrary intention not demonstrated - Commissioner entitled to have regard to offences against Firearms Regulations 1993 - no cogent reason to interfere with Commissioner's decision - appeal dismissed.
Security and Investigation Agents Act 1995; District Court Act 1991; Security and Investigation Agents Regulations 2011; Firearms Act 1977; Firearms Regulations 1993; Acts Interpretation Act 1915; Listening and Surveillance Devices Act 1972; Listening and Surveillance Devices Regulations 2003, referred to.
Commissioner for Consumer Affairs v Standley (1998) 71 SASR 152; Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132; Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104; Pollitt v Police (2007) 251 LSJS 306, considered.

VOUGAMALIS v COMMISSIONER FOR CONSUMER AFFAIRS
[2012] SADC 98
Introduction

This is an appeal pursuant to the provisions of s 11 of the Security and Investigation Agents Act 1995 (“the SIAA”) against a decision of the Commissioner for Consumer Affairs (“the Respondent”) to refuse the appellant’s application for a security agent’s licence (“the licence”).
The Commissioner determined to refuse the application upon the basis that the appellant had been convicted of a particular class of offence (specified in Schedule 1 to the Security and Investigation Agents Regulations 2011) (“the SIAR”) in relation to the functions of a security agent and that he was not a fit and proper person to hold a licence.
The Appeal
The appeal to this Court is (as I have said) brought pursuant to s 11 of the SIAA. The conduct of the appeal is governed by the provisions of ss 42E and 42F of the District Court Act 1991 which provide as follows:
42E—Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)     The Court, on an appeal—
(a)     is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
42F—Decision on appeal
The Court may, on an appeal—
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
The Grounds of Appeal
The appellant framed his Grounds of Appeal in the following terms:
1.That the convictions of the appellant for the offences of Fail to keep Class A or B Firearm Secured and Fail to Store Ammunition in Locked Container on 10 June 2008 were not convictions for offences within the meaning of Clause 1(1)(c) and 1(2)(d) of Schedule 1 to the SIAR.
2.That the convictions of the appellant were not relevant to the duties of a Security Agent.
3.That there was otherwise not a ground upon which the respondent was entitled to be satisfied that the appellant was not a fit and proper person to be licensed under the Act.
Considerations on the Appeal
It is common ground that on 10 June 2008 the appellant was convicted of failing to keep secured a class A or B firearm and of failing to store ammunition in a locked container, separate from the firearm, contrary to Regulations 29(1) and 32(1) of the Firearms Regulations 1993[1] (“FR”).
[1] Although the Firearms Regulations 1993 have been superseded by the Firearms Regulations 2008 the regulations pertinent to my considerations have not been materially altered. As a result the parties were content to argue the appeal on the basis of the 1993 Regulations and any reference to the FR is to the 1993 Regulations.
A person is entitled to be granted a licence upon satisfaction of the requirements specified in s 9 of the SIAA. For the purposes of this appeal, s 9 of the SIAA relevantly provides that a person is entitled to be granted a licence if:
9—Entitlement to be licensed
(1) Subject to section 9A, a natural person is entitled to be granted a licence if—
…
(b)the person has not been convicted of an offence of a class specified by regulation in relation to the functions to be authorised by the licence; and
…
(d)the person is a fit and proper person to be the holder of the licence
(my emphasis).
The classes of offences specified by regulation in relation to the functions to be authorised by the licence are those set out in Schedule 1 to the SIAR.
Schedule 1 applies, inter alia, to:
2(d) an offence against the Firearms Act 1977 other than offence against s 15C, 18, 21A, 21AB or 26 of that Act.
The offences with which the appellant has been convicted are not within the specified exclusions referred to above. Nor are they offences specified in any other section of the Firearms Act 1977 (“the FA”). As I have already observed they are offences against the FR.
Although the respondent in her decision appears to have relied upon another sub-section of s 9 of the SIAA, namely s 9(1)(d), the parties confined their arguments to Grounds 1 and 2 in the Notice of Appeal and the Court was invited to deal with the appeal on those grounds alone.
Accordingly the issue which falls for determination in this appeal is whether an offence against the FA includes an offence against the FR so as to disentitle the appellant to the grant of a licence.
The Relevant Legislation
Much of the argument in the appeal concerned the interpretation and application of three discrete pieces of legislation and the relationship of those pieces of legislation one to another.
It is therefore necessary to set out, in some detail, the relevant parts of those pieces of legislation so as to put the parties’ arguments in context.
The Acts Interpretation Act 1915 (the AIA)
Section 4(1) relevantly provides:
In this Act and in every other Act or statutory instrument, unless the contrary intention appears:
“this Act” when used in an Act includes statutory instruments in which the expression is used.
statutory instrument means—
(a) a regulation, rule, by-law or statute made under an Act
(my emphasis).
S 14 BA relevantly provides:
14BA— References to other statutory provisions include references to relevant statutory instruments
(1) A reference in an Act to some other Act (whether an Act of this State or of the
Commonwealth or a place outside this State) includes, unless the contrary intention appears, reference to statutory instruments made or in force under that other Act (my emphasis).
The Security and Investigation Agents Act 1995 (SIAA)
S 9 of the SIAA relevantly provides:
9—Entitlement to be licensed
(1)     Subject to section 9A, a natural person is entitled to be granted a licence if—
…
(b)     the person has not been convicted of an offence of a class specified by regulation in relation to the functions to be authorised by the licence.
…
(d)     the person is a fit and proper person to be the holder of the licence;
The Security and Investigation Agents Regulations 2011 (SAIR)
Schedule 1 to the SIAR relevantly provides:
Schedule 1—Offences preventing persons being licensed agents or process servers
1—Licences—section 9(1)(b) and 9(2)(b)(i)
(1) An offence to which this subclause applies is prescribed for the purposes of section 9(1)(b) and 9(2)(b)(i) of the Act in relation to any function to be authorised by a licence other than the function of controlling crowds[2] if—
[2]    Subclauses (3) and (4) of Schedule 1 are in the same terms with respect to the function of controlling crowds.
(a)     a sentence of detention or imprisonment of more than 30 months was imposed in respect of the offence; or
(b)     the offence was committed by a minor and—
(i) in the case of a minor dealt with in relation to the offence as an adult—the conviction was within the previous 10 years; or
(ii)     in any other case—the conviction was within the previous 5 years; or
(c)     the offence was committed by an adult and the conviction was within the previous 10 years.
(2)     Subclause (1) applies to the following offences:
(a)     an indictable offence;
(b)     common assault or an offence of violence;
(c)     an offence against the Controlled Substances Act 1984 involving a controlled
drug, other than a simple cannabis offence within the meaning of section 45A of that Act;
(d)     an offence against the Firearms Act 1977, other than an offence against section 15C, 18, 21A, 21AB or 26 of that Act;
(e) an offence against section 15 or 15A of the Summary Offences Act 1953;
(f)      an offence against the Police Act 1998;
(g)     an offence against the Listening and Surveillance Devices Act 1972;
(h)     an offence against the Telecommunications (Interception) Act 1979 of the
Commonwealth;
(i)      an offence against the Act or regulations made under the Act or the repealed Commercial and Private Agents Act 1986 or regulations made under that Act;
(j)      an offence substantially similar to any of the above offences against the law of the Commonwealth, another State or a Territory, or a place outside
Australia.
The Firearms Act 1977 (FA)
The FA relevantly provides:
15C—Obligations of prescribed person
(1) A prescribed person who witnesses the transfer of possession of a firearm for the purposes of this Division must—
(a)     satisfy himself or herself by inspecting the relevant permit and licence that the person acquiring the firearm is entitled to acquire and possess it; and
(b)     record—
(i) the name and address of the person transferring and the person acquiring the firearm and the number of each of their firearms licences; and
(ii) the class, make, calibre and serial number or other identification of the firearm; and
(iii) where the firearm is lent or hired—the duration and the terms of the loan or hire; and
(iv)    such other information as is prescribed by regulation; and
(c)     provide the Registrar with the information recorded under paragraph (b) within one month after possession of the firearm is transferred.
(2) If a prescribed person is unable to comply with subsection (1) because a person refuses or fails to produce a licence or permit for inspection or to provide information required by subsection (1)(b), the prescribed person must prepare and submit a report to the Registrar setting out such information as the Registrar requires in relation to the matter.
(3) A prescribed person may refuse to witness the transfer of possession of a firearm as required by this Division if he or she is not first paid the fee prescribed by regulation.
(4) A licensed dealer in firearms or a responsible officer of a recognised firearms club authorised by the Registrar to witness the transfer of possession of a firearm for the purposes of this Division who contravenes or fails to comply with a requirement of this section is guilty of an offence. Maximum penalty: $5 000.
(5)     In this section—
prescribed person has the same meaning as in section 15B.
18—Records
A dealer who—
(a)fails to keep prescribed records in relation to the firearms or ammunition in which the dealer deals; or
(b)fails to submit prescribed returns to the Registrar in accordance with the regulations, is guilty of an offence.
Maximum penalty: $5 000.
21A—Notice of change of address
The holder of a licence who fails to give the Registrar notice in writing of a change of his or her address within 14 days of the change is guilty of an offence.
Maximum penalty: $2 500.
21AB—Return of licence to Registrar
(1)The former holder of a licence that has been suspended or cancelled who does not forthwith return the licence to the Registrar is guilty of an offence.
(2)The holder of a licence who does not return the licence to the Registrar in accordance with the directions of the Registrar in order for endorsements on the licence to be made or altered is guilty of an offence.
(3)     The maximum penalty for an offence against this section is $5 000.
26—Notice of change of address
The owner of a registered firearm who fails to give the Registrar notice in writing of a change of his or her address within 14 days of the change is guilty of an offence.
Maximum penalty: $2 500.
The Firearms Regulations 1993 (FR)
The FR relevantly provide:
15–Records of firearms purchased and sold
(1)A dealer must compile records in duplicate of firearms purchased and sold in a form approved by the Registrar for that purpose.
(2)Within seven days after the end of each month the dealer must deliver the original records in respect of that month to the Registrar.
(3)The duplicate copy of the records must be kept for at least three years at the dealer’s premises.
(4)Where no firearms have been purchased or sold by a dealer during a month the dealer must deliver a copy of the appropriate form to the Registrar with “Nil Return” written across it.
15A–Transfers of firearms through agency of dealer
(1)Where the possession of a firearm is transferred through the agency of a licensed dealer under section 15B(9)(b) of the Act the dealer must
(a)     satisfy himself or herself by inspecting the relevant permit and licence that the person acquiring the firearm is entitled to acquire and possess it; and
(b)     record–
(i)the name and address of the person transferring and the person acquiring the firearm and the number of each of their firearms licences; and
(ii)the class, make, calibre and serial number or other identification of the firearm; and where the firearm is lent or hired–the duration and the terms of the loan or hire; and
(c)     provide the Registrar with the information recorded under paragraph (b) within one month after possession of the firearm is transferred.
(2)The dealer must not transfer the firearm unless he or she has complied with subregulation (1)(a) and (b).
15B–Records of transfers of firearms
(1)A dealer must compile the records referred to in regulation 15A and a dealer or an authorised officer (as the case requires) must compile the records referred to in section 15C of the Act in duplicate in a form approved by the Registrar.
(2)Within 7 days after the end of each month the dealer or authorised officer must deliver the original records referred to in subregulation (1) in respect of that month to the Registrar.
16–Other records
(1)A dealer must compile records of firearms received by the dealer for repair, consignment or safe keeping in a form approved by the Registrar for that purpose.
(1a)A dealer must, if required to do so by the Registrar, compile records of ammunition purchased by the dealer and ammunition sold by the dealer in a form approved by the Registrar for that purpose.
(2)     The records must be kept for at least three years at the dealer’s premises.
53–Offence
A person who contravenes, or fails to comply with a provision of these regulations is guilty of an offence.
Maximum penalty: $2 500.
The Appellant’s Contentions
I trust I do no disrespect to the appellant’s arguments if I paraphrase them in the following way:
·Schedule 1 to the SIAR specifies only offences against the FA. It does not specifically refer to the FR nor does it attempt to exempt particular provisions in the FR dealing with similar or the same subject matter as that specified in the exempted FA offences. It would be a curious outcome, it is submitted, if offences dealing with particular conduct were exempted under the FA but nevertheless caught under the FR so as to disentitle an applicant to the grant of a licence.
·Schedule 1 makes specific reference to offences against both the SIAA and SIAR. The express reference in the same Schedule to offences against both an Act and a Regulation supports an inference that Parliament intended, by referring only to the FA and not the FR, to limit the class of disentitling offences only to those under the FA.
·The range of offences referred to in Schedule 1 should be interpreted and understood as being limited to offences which are not only serious but also to offences which are connected to an applicant’s suitability to hold a licence. The nature of the offences covered in the FR together with the relatively minor penalties ascribed to them should lead to a conclusion that Parliament did not intend a breach of the FR to disentitle a person to a licence.
·The existence of a power on the part of the Registrar (in r 34 of the FR) to exempt a person, from compliance with the very regulations with which the appellant was convicted of breaching, supports the inference that Parliament did not intend offences against the FR to be offences of a class disentitling a person to a licence.
In response the Commissioner contended that these matters did not, when considered either individually or in combination, evince an intention on the part of Parliament to exclude offences against the FR. It is necessary, it was submitted, to demonstrate such an intention, in order to displace the presumption, created by the AIA, that a reference to the phrase “the Act” is intended to include the Regulations.
Discussion
A useful starting point in the resolution of the issues raised in this appeal is an examination of the statutory scheme surrounding the appellant’s application for a licence.
In Commissioner for Consumer Affairs v Standley[3] the former Chief Justice had occasion to consider the provisions of s 9(1)(b) of SIAA and of Schedule 1 (as it then was) to the SIAR.
[3] (1998) 71 SASR 152
His Honour said:[4]
The Act and the Regulations together constitute a scheme for occupational licensing of a kind that is well known these days. A common concern of such laws, and of this scheme, is the fitness of the licence applicant to hold the licence sought.
[4] (1998) 71 SASR 152, 156
His Honour went on to say:[5]
As to subcl (a) [which referred to “an indictable offence”], the submission was that that subclause could embrace offences that had no relevance to the suitability of a person to hold a licence under the Act. Accordingly, it was submittcd that subcl (a) went beyond power. The submission advanced is more easily illustrated by reference to other subclauses of the schedule. However, for present purposes, I am prepared to assume that, if the statute book and the common law were canvassed, indictable offences could be found which, had they been committed by a licence applicant, would not cause one to regard the person as in any way unsuitable to be a licence holder under the Act.
The power conferred by s 9(1)(b) is a wide one. No limits are specified. As well, it is to be noticed that s 9(1d) of the Act deals specifically with the question of whether the person is a fit and proper person to be the holder of a licence. It is therefore not to be assumed that the power to specify offences is a power limited to offences that would make a person not a fit and proper person to hold a licence. While that may be the underlying idea, Parliament must have intended to confer a power which enabled the maker of the Regulations to determine, at least within certain limits, that the commission of an offence of a certain class was relevant to the suitability of a person to hold a licence.
…
I proceed on the basis that, to be valid, subcl (a) of the schedule must specify a class of offences that could reasonably be considered to have a connection with the suitability of a person to hold a licence, or with the appropriateness of granting a licence to a person.
…
The other consideration that must be borne in mind is that, while the width or range of the class of offence specified is a relevant consideration, validity of the regulation does not depend upon every instance of the regulation’s operation having the necessary connection.
Approaching the matter in that way, it is my opinion that subcl (a) of the schedule is within power. In my opinion the commission of an indictable offence, which is usually a relatively serious offence, has an obvious connection tot the suitability of a person to hold a licence under the Act. It could reasonably be considered that such a conviction indicated either that the person was unsuitable, or that a person with such a conviction should not be held out to the public as an appropriate person to hold a licence under the Act.
[5] (1998) 71 SASR 152, 159

The above analysis, although directed to only one class of offence, namely indictable offences, nevertheless has application to the class of offence in question here. Generally speaking what emerges from His Honour’s observations is that, for a class of offence to be relevant to a consideration under s 9 of the SIAA, the offences must be reasonably considered to have a connection with the suitability of a person to hold a licence although the regulation would not be invalid if in every instance of the regulation’s operation the necessary connection was absent.
It is not so easy to discern, from His Honour’s observations, an intention to confine the class of offences only to those that might be seen to be “relatively serious”. Clearly the nature of the class of offences, under consideration by His Honour, was likely to be so but it is more difficult to reach that view here when the nature of some of the offences in the FA (which are not exempted) is considered.[6]
[6] Offences against ss 25, 29C, 31, 31A, 35A, 35B, 35C, 35D all carry relatively modest maximum monetary penalties and have no obvious connection to the issue of suitability to hold a licence.
It seems to me that this (and only this) can be gleaned from His Honour’s remarks. The class of offences will generally have a connection with one’s suitability to hold a licence but it is not every instance of the schedule’s operation (or every single offence in the class) that must necessarily be so connected.
With those general observations in mind I turn to a consideration of the more specific issues in dispute.
Absence of Reference to FR in the Schedule
Schedule 1 deals specifically with offences against the FA. It also curtails the class of offences “caught” by the FA by exempting from its purview a number of offences which might be categorised as “a failure to keep records or notify” type offences.
Does the exclusive reference in the Schedule to offences under the FA coupled with the express references to specified exempted offences evince an intention to exclude offences under the FR?
I am not satisfied that it does. The AIA (ss4 and 14BA) make it clear that a reference to the words “this Act” or “the Act” is to include the regulations “unless the contrary intention appears”.
In approaching my consideration of this issue, it is relevant to observe that although a contrary intention does not necessarily require express words, sections, such as those to which I have just referred, serve:
an important function in an era in which legislative change is frequent and interconnection between Acts is not always the express consideration by the drafters of legislation.[7]
[7] Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132 at para 29 per Spigelman CJ with respect to a section in the NSW AIA dealing with amended Acts and instruments.
I am not persuaded that the absence of a reference to the FR, even when coupled with a specific reference to some exempted sections in the FA, is sufficient to displace the presumption. Accordingly without more I would conclude that the reference to the FA in the Schedule includes the FR.
Reference to Other Regulations
However the appellant points to a specific reference by the draftsman in the same Schedule to not only offences against an Act but to offences against the Regulations made under that Act.
In my view there might have been more force in this submission if the draftsman had included a reference (to both the Act and the Regulations), with respect to some of the other pieces of legislation listed in Schedule 1 rather than the SIAA and the SIAR.
It is perhaps understandable that the draftsman (when dealing with offences which might disentitle a person from obtaining a licence) would choose to specifically identify both the SIAA and the SIAR in order to make it clear that the range of disentitling offences relevant to the duties of a security agent would be those in both the SIAA and the SIAR. Although this form of drafting might be seen to be both clumsy and unnecessary, I am not satisfied that specific reference to the offences under the SIAR is sufficient to evince the requisite contrary intention.
I am somewhat reinforced in this view by the verbiage use in Clause 1(2)(j) of Schedule 1 namely:
an offence substantially similar to any of the above offences against the law of the Commonwealth, another State or a Territory, or a place outside Australia (my emphasis).
I would apprehend the reference to “the law” here to mean and include inter alia, offences against regulations. If Parliament did not see fit to exclude behaviour which might constitute an offence against regulations interstate it is unlikely, without more, to have intended to exclude offences against the FR in this State.
I also note that the Regulations to the Listening and Surveillance Devices Act 1972 contain an offence relating to, inter alia, copying or destroying records without authority.[8] If the reference to this Act is to be understood in the way the appellant contends, it is not immediately apparent to me as to why Parliament would have chosen to exclude this particular offence bearing in mind the fact that the maximum penalty for its breach is $5000.00, a penalty equivalent to that imposed for some offences against the FA which were not excluded.
[8] Listening and Surveillance Devices Regulations 2003 - Regulation 9
Same or Similar Offences in FR included
The appellant next asserts that it would be an odd result if behaviour, constituting an offence against the FR, which mirrors behaviour constituting an exempted offence in the FA, could nevertheless constitute an offence which would disentitle a person from obtaining a licence.
It was suggested by counsel for the respondent that the “conduct” referred to in the FR[9] which mirrored conduct constituting an exempted offence in the FA is not intended to constitute an offence against the FR. Rather the wording used in those particular regulations is merely wording e.g. prescribing the records which must be kept and their manner of keeping.
[9] Regulations 15, 15A, 15B, 16 and 19
It is difficult to accept such an argument given the wording of Regulation 53 which makes it an offence “to fail to comply with a provision of these regulations”.
An answer, to the “odd result” suggested by the appellant, is to read, the reference to the exempted sections of the FA identified in Schedule 1, “to mean and include those Regulations in the FR which mirror the exempted offences in the FA”.
As a result an offence against any of those Regulations would not disentitle an applicant as it would be presumed to be an offence exempted from the specified class. Whilst such an approach is again somewhat clumsy, on balance, I am satisfied that it does provide an answer to the appellant’s concerns.
Registrar’s Power to Exempt
Finally the appellant points to the power in Regulation 34 of the FR to exempt a person from compliance (with that part of the Regulations containing the offences with which the appellant has been convicted) as an indication of the relatively minor nature of those offences.
Whilst the existence of such a power of dispensation might arguably be construed as meaning that the offences are relatively minor it is equally capable of being understood as no more than a recognition by Parliament of the need for a degree of flexibility to be given to the Registrar to exempt some individuals with respect to security of firearms and ammunition.
Ultimately, however, the issue is not whether there may be possible explanations or answers as to why parts of the Schedule or the FR have been worded in a particular way, but rather whether the concerns advanced by the appellant, considered collectively, evince an intention on the part of Parliament to exclude, from the Schedule’s reach, offences against the FR.
Put another way, does the context and wording of Schedule 1 disclose a contrary intention sufficient to displace the presumptions articulated in ss 4 and 14BA of the AIA?
Contrary Intention
The issue of what amounts to a contrary intention has been the subject of judicial comment over the years.
In Deputy Commissioner of Taxation v Mutton[10], Mahoney JA said:[11]
There is, of course, no simple formula for determining what is a “contrary intention” for this purpose. Such an intention may be displayed where the definition provides that one thing shall be done and the Act or section in question provides that another shall be done: see, eg, Bennett v Minister for D Public Works (NSW) (1908) 7 CLR 372 at 385; R v Brewer (1942) 66 CLR 535 at 550. But it is not limited to such a case. A definition section and its application must be considered in the context of the Act as a whole: see Lennon v Gibson & Howes Ltd (1919) 26 CLR 285 at 289-290; Stevens v Colonial Sugar Refining Co Ltd (1920) 28 CLR 330 at 340 (the “commanding effect to the general scheme of the Act”); Blue Metal Industries Ltd v Dilley [1970] AC 827 at 846. A contrary intention may be inferred from a particular E provision if, were the definition to be applied, the provisions of or the procedure established by the section would not appropriately work: see Brown v Brook (1971) 125 CLR 275 at 276, 292; where, if the definition applied, it would require a lender to take specified steps in respect of his “business of money-lending” where he had no such business. It is, I think, not necessary that what is laid down by the section in question be impossible of operation; it is sufficient if the result of the application of the definition to a F section results in the operation of the section in a way which clearly the legislature did not intend. Thus, in Dealex Properties Ltd v Brooks [1966] 1 QB 542 at 551, Harman LJ referred to the “fearful confusion” that would follow the application of the statutory definition.
In the end, what the court does when it decides whether there is a “contrary intention” is to decide whether it was the intention of the legislature that the statutory provision as to interpretation or definition should apply to the particular section: see Gibb v Federal Commissioner of G Taxation (1966) 118 CLR 628 at 635. The legislative intention may, perhaps, be more easily seen where the function of the interpretation section is, by providing a simple verbal formula, to avoid the repetition of a “multiplicity of verbiage”: or where the statutory definition adds to or subtracts from what, apart from the definition, would be the meaning of the particular word in the statutory command: see, eg, R v Brewer, YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395. In the present case, the definition of “tax”, if given the effect suggested for the taxpayer, goes further and qualifies the general operation which otherwise would, I think, be given to s 209.
The Privy Council has formulated and approved a method of determining the legislative intention which has a particular relevance in this case. It has been said the intention was that the statutory provision or definition shall not apply where, in effect, the legislature would, had its attention been directed to the question, have made clear that it should not. Thus, in Sin Poh Amalgamated (HK) Ltd v Attorney-General of Hong Kong [1965] 1 WLR 62 at 67; [1965] 1 All ER 225 at 228, Lord Pearce, in delivering the advice of the Privy Council said:
“¼ There is nothing in the context of the Ordinance which could make the power to appoint a single commissioner seem to be out of accord with the intentions of the legislature. Such a power would seem to be a useful means of carrying out the general purposes and intention expressed in the Ordinance; and the fact that certain matters of procedure are drafted to suit the appointment of more than one commissioner appears to be attributable to no more than the fact that the Ordinance is drafted in plural terms. The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the bill, would have rejected it. Here their Lordships cannot find any such reason.” (my emphasis)
[10] (1988) 12 NSWLR 104
[11] (1988) 12 NSWLR 104 at pp 108 and 109
In this case I am not satisfied, when viewing the Schedule in the context of the Act as a whole, that the licence application procedure will not work if offences in the FR (such as those with which the appellant was convicted) are included as disentitling offences.
Nor do I think that if those FR offences are included the licence scheme would operate in a way not intended by the legislature.
I have considered the question posed by the Privy Council, namely if Parliament had had its attention drawn to the question of whether if the AIA applies and the FA were to include the FR (and offences against FR 29 and FR 32) it would have said they should not be so included.
In Pollitt v Police[12] Gray J had occasion to consider the offences under consideration here. In that context His Honour said:[13]
[12] (2007) 251 LSJS 306
[13] (2007) 251 LSJS 306 at para 20-23
Consideration of the Issues
The overriding policy of the Firearms Act is to protect the public from the unsafe or criminal use of firearms. The legislative scheme was considered in Johnson v Registrar of Firearms, and in Offe v Police. The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:
Designed to introduce stricter controls upon the possession and use of firearms. The rapid increasing the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.
It is clear to me that these offences, being offences which have the potential to undermine Parliament’s aim of creating a stricter regime for gun control, in the interests of public safety, are not minor offences.
I am also satisfied that they could be reasonably viewed as being connected to a person’s suitability to hold a licence.
Understood in this way, I do not believe that Parliament would have intended to exclude these offences from the class of offences identified in the Schedule as being relevant to the Commissioner’s consideration under s 9 of the SIAA. In short, I do not discern from the scope, nature or subject matter of the Schedule, the necessary “contrary intention” required to displace the statutory presumptions erected by ss 4 and 14BA of the AIA.
Conclusion
I am therefore not satisfied that the Commissioner erred in law by taking into account the appellant’s offences when considering his application for a licence. As such I am not satisfied that there is cogent reason to interfere with the Commissioner’s decision.
Accordingly the appeal is dismissed.