Legislation cited: Firearms Act 1996 ss 33, 34, 35, 42, 140A, 275

Firearms Amendment Act 2008 s 62

Legislation Act 2001 ss 138, 139, 230

Prohibited Weapons Act 1996 ss 3, 4, 4A, 4B, 5, 6, 9, 17, 19, Sch 1, Sch 2

Prohibited Weapons Act 1989 (NSW) Sch 1

Weapons Prohibition Act 1998 (NSW)

Subordinate

Legislation: Prohibited Weapons Regulation 1997 ss 5, 12

Cases cited: Commonwealth of Australia v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1998] FCA 1655; (1998) 83 FCR 511

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

Minister for Immigration and Citizenship v Li [2013] HCA 18

R v Scheele [2014] ACTSC 317

Re Brian Lawlor Automotive Pty Ltd Collector of Customs (1978) 1 ALD 167

Re McKie and Minister for Immigration, Local Government and Ethnic Affairs (1988) 8 AAR 90

Re Walsh and Commissioner of Taxation [2012] AATA 451; (2012) 130 ALD 200

Secretary, Department of Social Security v Alvaro [1994] FCA 1124; (1994) 50 FCR 213

1. The applicant, Gareth Crook, is the principal of GC Precision Developments Pty Ltd (GC Precision), which carries on a business supplying, manufacturing and developing firearms. For the purpose of carrying on the business, Mr Crook holds a firearms dealer licence.

2. By letter dated 1 December 2015, Victoria Police, Special Operations Group, requested GC Precision to provide "for trial and evaluation" precision bolt action rifles with seven features that included:

If successful in the supply of these rifles, it will be an ongoing relationship, requiring further developmental testing by GC Precision, as well as ongoing support for these weapons when required.

4. In order to fulfil the request from Victoria Police, by application dated 17 January 2016, Mr Crook applied to the ACT Registrar of Firearms (the Registrar) for a permit under Part 3 of the Prohibited Weapons Act 1996 (ACT) (the PW Act) authorising him to display, possess and use several "telescopic + folding stocks and pistol grips". Mr Crook and the Registrar accepted that the proposal was for the folding stocks to be "fully adjustable" to fulfil the request from Victoria Police, but nothing turns on that issue for the purpose of this proceeding.

5. Mr Crook accepted that to 'use' the folding stocks, he intended to attach them to the rifles and 'use' them by way of testing before providing the rifles to Victoria Police.

6. By separate application also dated 17 January 2016, Mr Crook applied for a permit authorising him to display, possess and use 'suppressors'. Mr Crook accepted that to 'use' the suppressors he similarly intended to attach them to the rifles and then 'use' them by way of testing before providing the rifles and suppressors to Victoria Police.

7. By letter dated 27 January 2016, a delegate of the Registrar determined both applications. In summary, he refused the applications for permits authorising 'possession and use' of the folding stocks and suppressors on the basis that these items are prohibited articles, as defined in section 4B of the PW Act, so that the Registrar was not able to authorise their use. The Registrar stated he would, however, issue Mr Crook with the following permits to authorise Mr Crook's possession and display of these articles:

(a) A 12 month permit to possess two folding and telescopic stocks to allow Mr Crook to provide these items to Victoria Police.

(b) A two year permit to possess and display two further folding telescopic stocks with pistol grips for display purposes, with a view to permitting Mr Crook "to display two different stocks to your customers".

(c) A 12 month permit to possess two suppressors to allow Mr Crook to provide them to Victoria Police.

(d) A two year permit to display three further suppressors to allow Mr "to display various suppressors to your customers".

8. The Registrar placed conditions on the possession and display of the stocks and suppressors that relevantly included that the stocks and suppressors not be attached to a firearm. This of course prevented their use.

9. By application for review to the Tribunal dated 15 February 2016, Mr Crook sought review of the Registrar's "refusal to grant permits for possession and use of prohibited articles". I infer him to mean the folding stocks and suppressors.

10. By application for interim orders, Mr Crook sought permits to 'use' these articles for the limited purpose of testing them in a manner that would be "sufficient to enable him to meet the Victoria Police request ... in a timely and professional manner".

11. Both applications raised the preliminary question whether the Registrar (and now the Tribunal on review) has power to issue Mr Crook with permits to use a folding stock or a suppressor, even if 'use' is limited in the manner Mr Crook proposes in his interim application, before addressing the more subjective question of whether Registrar (and now the Tribunal) should exercise that power.

12. On 29 February 2016, the Tribunal ordered that this jurisdictional point be determined as a preliminary issue. On 4 March 2016, I conducted a hearing in relation to that preliminary issue. Mr Crook appeared for himself assisted by his father, Mr David Crook. Mr Archer of counsel appeared for the Registrar.

13. By way of evidence, I received and took into account the documents compiled and submitted by Mr Crook as attachments to his application for review; additional documents 1 - 5 (pages 1 - 44) compiled by Mr Crook and submitted on 2 March 2016; documents 1 - 5 (pages 1 - 52) compiled and submitted by the solicitor for the Registrar on 3 March 2016; and documents 1 - 8 (pages 1 - 74) compiled and submitted by the solicitor for the Registrar in related proceeding AT 1/2016.

14. By way of submission, I received and took into account Mr Crook's submissions in his letter dated 17 January 2016 to the Registrar; his further submissions in his letter dated 28 January 2016 to the Office of the ACT Government Solicitor; his supplementary submissions dated 4 March 2016 by way of response to the Registrar's submissions; his oral submissions at hearing; and his supplementary statement (being a submission) dated 11 March 2016 provided after the hearing.

15. For the respondent by way of submission, I received and took into account the Registrar's written submissions dated 3 March 2016, together with Mr Archer's oral submissions at hearing.

16. Section 5(1) of the Prohibited Weapons Regulation 1997 (the PW Regulation) provides:

(1) The registrar must not issue a permit unless satisfied that the applicant is a fit and proper person to have possession of a prohibited weapon or prohibited article without danger to public safety or to the peace.

17. In his letter dated 27 January 2016 the Registrar stated that for the purposes of section 5(1) of the PW Regulation Mr Crook is a fit and proper person to have possession of folding stocks and suppressors as requested by Victoria Police without endangering public safety or the peace.

18. At hearing, Mr Archer confirmed that view. He stated:

Mr Crook is a person who is conscientious, is engaged in legitimate activities and that is respected and acknowledged.

19. The Tribunal endorses the Registrar's views of Mr Crook.

20. The question arising in this case is not Mr Crook's suitability to possess and use folding stocks and suppressors as features of the rifles he wishes to provide to the Victoria Police, but whether the applicable legislation gives Mr Crook a lawful pathway for him to do so.

21. In light of the Registrar's position, a useful starting point is to set out the relevant legislation that, according to the Registrar, does not authorise the Registrar (or the Tribunal in his place) to issue Mr Crook with a permit authorising possession and use of folding stocks and/or suppressors.

22. The PW Act distinguishes between prohibited weapons, defined under section 4A and listed in schedule 1, and prohibited articles**,** defined under section 4B and listed in schedule 2.

23. A prohibited article is defined in section 4B of the PW Act as follows:

(iii) something declared to be a prohibited article under section 4L; and

(2) However, prohibited article does not include something declared not to be a prohibited article under section 4L.

(a) by adding the name or description of an article; or

(b) by amending a name or description of a prohibited article to more accurately describe the article; or

(c) by omitting the name and description of a prohibited article.

_modified prohibited article means an article that would be a prohibited article if - _

(a) it did not have something missing from it, or a defect or obstruction; or

24. Referring to section 4B(1)(a)(i), schedule 2 to the PW Act is a list of 11 items.

an article or device intended for use to muffle, reduce or stop the noise created by firing a firearm

a folding, detachable, telescopic or collapsible stock.

27. Pursuant to section 5 of the PW Act, it is an offence to possess or use a prohibited weapon, as defined, unless authorised by a permit or otherwise under the PW Act.

28. Pursuant to section 6 of the PW Act, it is an offence to possess or use a prohibited article, as defined, unless authorised by a permit or otherwise under the PW Act. Section 6 provides:

6 Offence - unauthorised possession or use of prohibited articles

(b) is not authorised by a permit, or otherwise under this Act, to possess or use the article.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

29. Section 9 of the PW Act sets out the Registrar's power to issue permits authorising the possession or the possession and use of a prohibited weapon and the possession of a prohibited article. It provides:

_(1) The registrar may issue a permit authorising - _

(a) the possession or the possession and use of a prohibited weapon; or

(2) The regulations may provide for mandatory or discretionary grounds for refusing the issue of a permit.

(3) A permit may be issued subject to conditions.

(4) The conditions may provide for the expiration of the permit, limit the authority it confers and impose requirements on the person to whom the permit is issued.

(5) The registrar may, for any reason the registrar considers sufficient, cancel a permit by causing written notice of its cancellation to be served on the person to whom the permit was issued.

(6) A person to whom a permit was issued may surrender the permit for cancellation.

30. The Registrar submits that when the PW Act is read as a whole, and the above-mentioned provisions in particular, it becomes clear that for the purposes of section 9, the legislature intended to empower the Registrar to issue a permit authorising "the possession or the possession and use" (emphasis added) of a prohibited weapon but a permit authorising only "the possession" of a prohibited article.

31. 'Possession' and 'possession and use' have been used as independent concepts. 'Possession' is defined under section 3 of the PW Act in a way that gives no scope for 'using' a prohibited weapon or a prohibited article. The Registrar, and the Tribunal on review, must have regard to that deliberate legislative choice.

32. Accordingly, the Registrar says, he did not have power to issue a permit authorising Mr Crook to possess and use folding stocks or suppressors because both those items, per items 3 and 11, are prohibited articles.

33. Mr Crook advanced many arguments for why the Registrar has power to issue a permit authorising 'possession and use' of these prohibited articles despite the apparent lack of ambiguity in section 9(1) of the PW Act. I have tried to summarise and address each of the arguments in turn.

34. Mr Crook correctly observed that a person does not commit an offence under the PW Act, and relevantly section 6, because the person does something (ie uses a prohibited article) "in the exercise of the person's functions as a member of" the entities described in section 4(1)(a) - (g). The entities described in section (4)(1)(a) include the Victoria Police.

35. As best I can understand it, Mr Crook submitted that because members of the Victoria Police will be the users of the rifles that he has been asked to provide (with features including folding stocks and suppressors), so the exemption from an offence under section 6 applies also to his testing and provision of these items. In other words, pursuant to section 4(1)(a) of the PW Act, Mr Crook would not be committing an offence under section 6 by using the folding stocks and suppressors for this limited purpose without a permit.

36. I reject the submission. The relevant determinative factor under section 4(1) is that the person does something as a member of one of the entities described in that section. Mr Crook does not have such membership. In my view, the fact that the end users of the rifles might be members of the Victoria Police does not cause Mr Crook to be doing 'something' (i.e. testing the rifles fitted with folding stocks and suppressors) as a member of the Victoria Police or any other relevant body. Accordingly, the exemptions under section 4 of the PW Act are irrelevant.

37. Mr Crook submits that the Registrar is not entitled to delegate (or sub-delegate) his powers under the PW Act because the PW Act does not provide for delegation (or sub-delegation) of the Registrar's functions under that Act. The matter was not fully argued, and the Tribunal was not provided with an instrument evidencing the Registrar's delegations under the PW Act, but Mr Crook's submission seems to be correct.

38. Per the Dictionary to the PW Act, registrar means the registrar of firearms, whom I accept is the police officer appointed as the Registrar of Firearms under section 33 of the Firearms Act 1996 (the Firearms Act). That is made clear by section 34 of the Firearms Act, which provides that the Registrar has functions given to the Registrar by the Firearms Act "or any other law of the Territory", which must include the PW Act.

39. Section 35 of the Firearms Act permits the Registrar to delegate the Registrar's functions "under this Act", meaning the Firearms Act, but makes no mention of an entitlement to delegate his functions under any other law of the Territory. Where sections 34 and 35 are written in this way, with section 34 referring to "any other law of the Territory", but section 35 not doing so, principles of statutory interpretation suggest a legislative intention to permit the Registrar to delegate his functions under the Firearms Act, but not his functions under any other law of the Territory including the PW Act.

40. This conclusion is consistent with the Registrar's limited power under section 17(2) of the PW Act to delegate his functions under section 17(1) to a police officer. If the Registrar had a general power to delegate his functions under the PW Act, section 17(2) would be purposeless.

41. The absence of a power of delegation is also consistent with the fact that the PW Act is concerned with the significant issue of prohibited weapons and prohibited articles.

42. For these reasons, Mr Crook's reference to the Legislation Act 2001, Part 19.4, dealing with delegations, is irrelevant because, under section 230, Part 19.4 "applies if a law authorises or requires an entity (the appointer) to delegate (or sub delegate) a function." As best I can ascertain, there is no such law in the PW Act.

43. I make no finding, but if the Registrar lacked power to delegate his function under section 9 then the decision under review (and the other decisions to issue the permits referred to in paragraph 7 above) would be invalid. However, the validity or otherwise or otherwise of the decision now under review does not assist Mr Crook on the preliminary issue before me. Even if the decision to refuse to issue Mr Crook with a permit to possess and use the relevant prohibited articles was invalid on the grounds that the person who made the decision was not the Registrar personally, it is still a reviewable decision under Part 3A of the PW Act.[1]

44. Von Doussa J of the Federal Court, in a decision shared by Spender J and French J (as it then was), summarised the tribunal's power on review of the defective decision in Secretary, Department of Social Security v Alvaro [1994] FCA 1124; (1994) 50 FCR 213 at 219 as follows:

16. In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in all respects validly made. The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it is wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice.

17. The purpose of a review provided for by the Act is to allow the reviewing authority to correct error and substitute a new decision where error is detected.

45. The Tribunal is required under Part 3A of the PW Act to conduct a de novo review of the decision, 'standing in the shoes' of the Registrar rather than the police officer who purported to make the decision. That being so, the lack of delegation does not make any relevant difference. The Tribunal returns to the preliminary question whether the Registrar, and now the Tribunal, has power to issue permits authorising position and use of the relevant prohibited articles.

46. Mr Crook referred the Tribunal to regulation 12 of the PW Regulation that permits the 'possession and use' of a prohibited article known as "soft body armour". Regulation 12 provides:

12 Possession and use of soft body armour

_(1) An employee of a security organisation that holds a permit to possess soft body armour is authorised to possess and use that armour if the armour is - _

(a) owned or leased by the security organisation of which the employee is an employee; and

(b) in his or her possession for use in the course of that employment; and

(c) when not in use, stored securely and in a way that it is not visible.

(2) A permit authorising a security organisation to possess soft body armour is subject to the following conditions:

(a) each use of the armour must be recorded in a register;

(b) the armour must be inscribed in a permanent way with an ) identification number;

(c) the permit-holder must not possess more soft body armour than specified for the purpose by the permit.

Note If a form is approved under the Act, s 18 for the register, the form must be used.

soft body armour means an article commonly known as soft body armour.

47. In my view, questions arise about the validity of regulation 12 because nothing in the PW Act, so far as I can ascertain, authorises or contemplates a regulation creating exceptions or modifications to the ambit of permits issued under section 9 of the PW Act. Under section 19(1) of the PW Act, the executive may make regulations for the PW Act but, under section 19(2), those regulations must concern contravention of the regulations and penalties for those contraventions. Regulation 12 concerns neither.

48. However, the validity of regulation 12 is a question I need not consider further because, in my view, its validity or otherwise does not assist Mr Crook.

49. Regulation 12 gives the Registrar power to issue a permit authorising the 'possession and use' of soft body armour, notwithstanding section 9 of the PW Act, noting that soft body armour is a prohibited article under schedule 1, item 1. It has nothing to do with items 3 or 11.

50. At best, notwithstanding my reservations about its validity, Mr Crook submits that if the executive can pass a regulation allowing the Registrar to issue a permit authorising the possession and use of soft body armour, so the executive can pass a similar regulation in relation to folding stocks and suppressors. That might be so, but it does not overcome the simple fact that the executive has not done so.

51. Mr Crook submits that where the executive has passed a regulation permitting the possession and use of soft body armour, so "it is only reasonable" that permits can (and presumably should) be issued for other prohibited articles for proper purposes, meaning folding stocks and suppressors in order to fulfil a proper purpose of supplying these items to members of a police force. Again, that may be so, but it is a matter for Mr Crook to take up with the legislature. The Tribunal must apply the law that is, not what Mr Crook contends it should be.

52. Mr Crook submits that nothing under the PW Act prevents him from possessing and/or using pistol grips or requires he hold a permit authorising him to possess and/or use pistol grips. At hearing, Mr Archer agreed. A pistol grip, by itself, is not a prohibited article or a prohibited weapon and so is not in any way the subject of the PW Act_._

53. Likewise, nothing under the Firearms Act prevents Mr Crook from possessing and/or using a pistol grip, by itself.

54. However, these observations do not assist Mr Crook in this case.

55. The problem is not the pistol grips but the folding stocks to which Mr Crook wishes to attach them. He agreed that "the only place that the grip could go is on the stock". A folding stock is a prohibited article, regardless of whether it has a pistol grip. The application for a permit to use "folding stocks and pistol grips" was refused not because Mr Crook sought a permit authorising him to use stocks "and pistol grips" but because he sought authorisation to use "folding stocks". The words 'and pistol grips' were used in the Registrar's decision, in my view, merely to match the description of the proposed permit.

56. It follows from this analysis that it is not an offence under the PW Act to attach a pistol grip to a fixed or rigid stock, and a permit is not required under the PW Act to use a pistol grip attached to a fixed or rigid stock. However questions arose during the hearing as to whether that was of any practical benefit to Mr Crook in circumstances where use of a pistol grip can only occur when used as part of a firearm.

57. Schedule 1 to the Firearms Act contains a list of items, mostly different kinds of firearms, which are 'prohibited firearms' for the purposes of that Act.

11. a firearm to which there is attached any article or device capable of muffling, reducing or stopping the noise created by firing a firearm.

12. a firearm, not being a pistol, fitted with a pistol grip or a stock that is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis.

60. For the reasons discussed below, in my view classification of a firearm as a prohibited firearm under items 11 or 12 eliminates it as a kind of firearm that a person may possess or use under any category of licence including a firearms dealer licence.

61. It is clear that item 12 applies to a firearm (not being a pistol) fitted with a stock that is readily detachable or can operate on a swivel, folding or telescopic basis. Debate occurred however about whether these features apply equally to a firearm (other than a pistol) fitted with a pistol grip.

62. The issue turned upon the correct or preferable construction of item 12, and whether a firearm (other than a pistol) fitted with a pistol grip is a prohibited firearm per item 12 regardless of any features about the pistol grip, or whether item 12 only applies where the pistol grip "is specially designed so as to be readily detachable". As Mr Crook succinctly put it:

My main product line is a product that doesn't have a folding stock, or a readily detachable stock. It does have a pistol grip, however. So it would be good to get clarification whether there's an issue or not with that, under my current deal.[2]

63. Earlier in the hearing, Mr Archer raised the same question, submitting that whether a firearm is as described in item 12 is a question of fact. Regarding a pistol grip, the following exchange occurred:

Mr Archer: If it is readily detachable, it would fall within [item] 12 and, therefore, not within the category C firearms. I asked those who instruct me as to whether or not the situation would be different if the pistol grip was moulded into the stock, that is not readily detachable.

Tribunal: Even if you use the phrase "not readily detachable" does that make a difference?

Mr Archer: Yes, and it may do, so if it's moulded into the stock and its [not] readily detachable, then it may as a question of fact not fall within item 12.

Tribunal: The "readily detachable" part seems to be either to the firearm or at large [for example to the stock]. That means, given what we are talking about here, that it's fairly precise stuff. [3]

Mr Archer: It's from the firearm, yes, so if it's moulded, it may not fall within the prohibition in [item] 12.

64. The issue did not arise for determination of the question whether the Registrar has jurisdiction to issue a permit under the PW Act authorising Mr Crook to use suppressors and folding stocks, but it arises in the context of Mr Crook's application to use "folding stocks with pistol grips".

65. As discussed in paragraph 66 below, many of the relevant provisions in the PW Act and the Firearms Act replicate the Prohibited Weapons Act 1989 (NSW) now repealed. Schedule 1 to that Act set out the kinds of firearms that were prohibited weapons for the purposes of that Act. Item 4 described a firearm fitted with a suppressor or silencer. Item 5 described a firearm fitted with a certain kind of stock. It read as follows:

(5) a firearm, not being a pistol, fitted with a stock which is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis.

66. Until 2008, the description in item 12 of schedule 1 to the Firearms Act was materially identical to item 5 in the NSW Act. The words "pistol grip or" were inserted into item 12 (albeit item 11 at the time) pursuant to section 62 of the Firearms Amendment Act 2008. The Explanatory Memorandum to the Amendment Act states that this change to (now) item 12 and to two other items in schedule 1 were made to "clarify descriptions of items already in the schedule".

67. In lay, simple terms, and referring particularly to rifles, a pistol grip is attached perpendicular to the stock and allows a person to hold, carry and fire the firearm with one hand as though it were an oversized pistol. It adds to the size and bulk of the overall firearm.

68. As a matter of statutory interpretation, I initially formed the view that the legislature's intention, when adding the words 'pistol grip', was to cause "a firearm, other than a pistol, fitted with a pistol grip" to be a stand-alone descriptor of a prohibited firearm for the purposes of item 12. In other words, the additional descriptive words "that is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis" limit the kinds of stocks that, when fitted to a firearm other than a pistol, cause it to be a prohibited firearm per item 12 but bear no relationship to a firearm, other than a pistol, fitted with a pistol grip.

69. To resolve an ambiguity of meaning, section 139(1) Legislation Act provides:

In working out the meaning of an Act, the interpretation that best achieves the purpose of the Act is to be preferred to any other interpretation.

70. Three factors have caused me to conclude that the additional descriptive words in item 12 apply equally to a pistol grip and a stock, such that a pistol grip or stock, as the case may be, must have those descriptive features in order for the firearm to be a prohibited firearm under item 12.

71. First, many if not most of the items in schedule to the Firearms Act 1 involve a firearm, and then provide a description or a feature about the firearm which causes it to be a prohibited firearm. When reading schedule 1 as a whole, if the stand-alone feature of having a pistol grip was intended by itself to be enough for a firearm to be a prohibited firearm, it would have been stated as such as a separate item in the schedule. Instead, the legislature has folded 'pistol grip' into item 12, suggesting that the descriptive words were intended to apply equally to a pistol grip.

72. Second, in my view, the purpose of schedule 1 is to list certain kinds of firearms which, by their features, the legislature determined ought be prohibited or at least limited in their usage referenced to categories of licence. Some categories of licence permit the licence holder to use some prohibited firearms but not others. Referring to item 12, a rifle with a feature that enables its stock to be readily detached, swivelled or folded enables the rifle to be readily reduced in size which in turn enables its carriage to be more readily obscured from view. This characteristic, as I understand it, causes it to be classified as a prohibited firearm. Noting that a pistol grip similarly increases the bulk and size of a firearm, features that enable it to be readily detached, swivelled or folded appear equally relevant to a pistol grip.

73. Third, the Explanatory Memorandum states that the words 'pistol grip' were added only 'to clarify' the ambit of item 12, not add an additional feature. In other words, the legislature was 'closing a loophole', rather than adding an additional feature, to clarify that if a pistol grip is readily detachable, then the firearm is a prohibited firearm in the same way that a firearm with a readily detachable stock is a prohibited firearm.

74. For these reasons, and noting Mr Crook's comment that the only place a pistol grip can go is on the stock, it follows that Mr Crook's 'main product line' per paragraph 62 above is not a prohibited firearm under item 12 provided the pistol grip is not readily detachable from the stock - being part of the firearm - and is not otherwise able to be operated on a swivel, folding or telescopic basis.

Firearms Act, section 275

75. Mr Crook relied on section 275 of the Firearms Act, which permits certain licence holders to possess and use certain prohibited firearms for taking part in a shooting competition or practising for the competition. Section 275 provides as follows:

275 Authorised possession or use of prohibited firearms with pistol grips for sport or target shooting

_(1) The holder of a category B licence issued for the genuine reason of sport or target shooting is authorised to possess and use a registered prohibited firearm (other than a prohibited pistol fitted with a pistol grip) for the purposes of - _

(a) taking part in any kind of approved shooting competition; and

(b) practising on an approved shooting range for the competition.

_(2) The holder of a category B licence issued for the genuine reason of sport or target shooting is authorised to possess and use a registered prohibited rifle fitted with a pistol grip for the purposes of - _

(a) taking part in an approved specialised target shooting competition; and

(b) practising on an approved shooting range for the competition.

approved_, for a competition, means a competition that is - _

(a) conducted or organised by an approved shooting club of which the licence holder is a member; and

76. With reference to section 275, Mr Crook contends:

Since ACT licence holders must source firearms from or through an ACT licenced Firearms Dealer, this section by its very nature permits an ACT Firearms Dealer to possess and use such items to supply to ACT target shooters.

77. The submission has a number of difficulties. Nor does section 275 assist Mr Crook in this case.

78. I reject the underlying proposition that because section 275 authorises certain category B licence holders to possess and use certain registered prohibited firearms, so an ACT firearms dealer is lawfully able to use those firearms in order to supply them to ACT target shooters. There is nothing in section 275 from which that inference can or should be drawn.

79. The categories or kinds of firearms that a firearms dealer may possess or test among other things, and I accept that 'test' includes 'use', is determined solely by "the categories of firearms stated in [the dealer's] licence".[4]

80. As a matter of practice, the 'categories of firearms' in a dealer licence are determined by reference to the firearms to which other categories of licences apply. So, for example, Mr Crook applied for (and was granted) a firearms dealer licence that authorises him "to deal in any of the following firearm categories" and then lists licence categories A, B, C and H. None of those licence categories, nor any other licence category, permits a licence holder to possess (or use) prohibited firearms of the kinds described in schedule, 1 item 11 or 12, of the Firearms Act.

81. Mr Crook's dealer licence authorises him to deal in category B firearms, and it is by that means (not section 275) that Mr Crook can test and use firearms available to be used by a category B licence holder. That includes the kinds of prohibited firearms available to be used by a category B licence holder.

82. Mr Crook argued that "the intention behind Part 15 of the Firearms Act was to permit a dealer to possess and use any type of firearm included in their licence (including prohibited firearms), and that the term 'any' needs to be interpreted broadly. He spoke about different dealers acting as agents (or dealers) for specific brands of firearms, and submitted that the Registrar should not place conditions on a dealer to limit their supply of some brands but not others. I do not understand the Registrar to suggest otherwise.

83. I agree that the word 'any' in item 7, column 5, should be interpreted broadly and indeed in absolute terms. Mr Crook's difficulty is not with the word 'any' but with the words 'to which the licence applies', meaning presently in his case firearms available to be possessed and used by persons holding licences under categories A, B, C and/or H.

84. Whilst nothing in item 7, column 3, concerning a firearms dealer licence restricts the categories or kinds of firearms (including prohibited firearms) that the Registrar may state in the licence, it is plainly sensible for the Registrar to state categories by reference to categories of firearms that prospective purchasers may possess and use under their 'end user' licences.

85. Mr Crook submitted that an additional category of firearms could be added to his dealer licence to facilitate his supply and manufacture of the categories or kinds of firearms requested by Victoria Police. As stated, nothing in item 7 restricts the categories of firearms that may be stated in a dealer licence. Whether to add the kinds of firearms requested by Victoria Police is a future matter for the Registrar, not the Tribunal in this proceeding, but I doubt the Registrar would state a kind or category of firearm in Mr Crook's dealer licence (ie prohibited firearms of the kinds described in schedule, 1 item 11 or 12, of the Firearms Act) where Mr Crook could not lawfully use them under the PW Act. The two Acts must work together.

86. The limited categories "to which [Mr Crook's] licence applies" also explains why the Registrar placed a condition on the permits issued to Mr Crook under the PW Act that he not attach the suppressors or folding stocks to a firearm. If that occurred, Mr Crook would be in possession of prohibited firearms of the kind or kinds described in schedule 1 item 11 or 12, of the Firearms Act without authorisation under his licence and so be committing an offence under section 42 of the Firearms Act, which makes it an offence for a person to possess (or use) prohibited firearms if not authorised by a licence, permit or otherwise under the Firearms Act.

87. In his supplementary submission dated 11 March 2016, Mr Crook submitted that a licensed firearms dealer is exempt from many of the offence provisions in Part 15 of the Firearms Act, including the manufacture of prohibited firearms. In my view, that statement oversimplifies the legislation.

88. The exemption for a dealer is not at large. For many of the offence provisions, by inclusion of the words "authorised by a licence" or "authorised by a firearms dealer licence", the exemption applies only in relation to "the categories of firearms stated in [the] licence", per schedule 3, item 7, column 3 of the Firearms Act. The exemptions apply to that extent because, under schedule 3, item 7, column 5, authority is conferred on the firearms dealer to "acquire, dispose of, possess, repair, maintain, test, manufacture, or store ... any firearm to which the licence applies" (emphasis added).

89. In other cases, for example sending firearms by mail outside the ACT, the exemption from the offence provision is not so qualified, but that does not override the requirement that the firearms dealer may possess (in order then to send by mail) only firearms of the categories stated in his/her licence.

90. Relevant to this case therefore, Mr Crook is not exempt from the offence provisions for firearms of the kind or kinds described in schedule 1, item 11 or 12, of the Firearms Act.

91. Even if section 275 implied permission for a firearms dealer, to use prohibited firearms in order to supply them to category B licence holders, that is not to whom Mr Crook wishes to supply them in this case. Section 275 therefore does not assist.

92. Under section 6 of the PW Act, Mr Crook would commit an offence if he used folding stocks or suppressors unless authorised by a permit or otherwise under "this Act", meaning the PW Act. Section 6 does not allow for use authorised under any other Act, and in particular section 275 of the Firearms Act.

93. It follows in my view that section 275 must be read down to permit category B licence holders to use only those kinds of prohibited firearms that may be lawfully used under the PW Act (after issue of a relevant permit). In other words, section 275 does not permit category B licence holders to use prohibited firearms of the kinds described in items 11 and 12 of schedule 1 to the Firearms Act, being firearms to which prohibited articles of the kinds described in items 3 and 11 of the PW Act are attached, because use of those articles would be an offence under section 6 of the PW Act.

94. For these reasons, in my view section 275 does not permit Mr Crook to use suppressors and/or folding stocks attached to a firearm.

95. Mr Crook contended that the provisions of the PW Act and the Firearms Act that prohibit use of a "folding, detachable, telescopic or collapsible stock" are invalid to the extent of their inconsistency with the Customs (Prohibited Imports) Regulations 1956 (Cth) which no longer controls those types of stocks. Mr Crook contends that other jurisdictions, but not the ACT, made corresponding amendments to their applicable legislation to ensure consistency with the Commonwealth Law.

96. Again, Mr Crook faces insurmountable difficulties with this submission.

97. First, the Tribunal must interpret and apply legislation as it is. It may form an opinion about the validity or otherwise of legislation, which might bear upon the actions it takes (for example it may refer a question concerning the validity of legislation to the Supreme Court), but that is the full extent of the Tribunal's power. It does not have power to make a decision on the basis that applicable legislation or any part of it is invalid. That is a function of the courts. [5]

98. Second, as I understand it, the Customs (Prohibited Imports) Regulations 1956 is concerned with importation of goods, rather than their subsequent use. I accept that possession is a necessary function of importing, and Mr Crook has been issued with a permit authorising his possession of the items in question. I do not accept that freedom to import a good, and a folding stock in this case, necessarily permits its use. I expect Mr Crook to say that it would be a nonsense to construe the Commonwealth legislation as permitting a person to import a good and possess it, but not use it. That opinion is understandable, but it does not in my view cause the Territory legislation to be invalid. As Mr Crook notes from his reference to the High Court's decision in Commonwealth of Australia v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441, inconsistency giving rise to invalidity requires a circumstance where the Territory law "cannot operate with the federal law to any extent".

99. It is, in my view, reasonable to construe the Commonwealth regulation as a law concerning importation of an item and the Territory legislation as a law governing use of the item subsequent to its importation in the same way that Commonwealth legislation, for example, governs safety and other requirements as preconditions to the importation of motor vehicles, and State and Territory legislation governs their subsequent use upon the roads.

100. Mr Crook queried why contractors engaged in recent kangaroo culling programs in the ACT were able to use suppressors on their rifles for what, he acknowledged, were legitimate reasons yet he is denied a permit to use suppressors for his equally legitimate albeit different reason.

101. Mr Archer properly acknowledged the inconsistency, but explained it on the basis that no one appreciated at the time suppressors were used to conduct the kangaroo cull that the use may not have been, and was probably not, in accordance with the law. Mr Archer acknowledged that a category D licence under the Firearms Act "is the relevant category of licence" for vertebrate pest animal control and referred the Tribunal to the kinds of firearms to which that licence category applies. In particular, he noted that a category D licence does not permit the licence holder to use a firearm of a kind mentioned in schedule 1, item 11, meaning a firearm fitted with a suppressor.

102. Section 140A of the Firearms Act, which permits temporary recognition in the ACT of interstate category D licences, does not address the deficiency because it only applies to an individual who, among other things, "holds an interstate licence that corresponds to a category D licence". An interstate licence permitting use of a suppressor, by definition, does not correspond to a category D licence.

103. Mr Archer also acknowledged that the inability of the Registrar to grant a permit under the PW Act to use a suppressor, it being a prohibited article, has prompted the Registrar to review the legislation with a view to recommending legislative change in order to permit use of suppressors for proper and legitimate purposes such as kangaroo culling.

104. It may well be that the use of suppressors for other proper and legitimate purposes, such as those proposed by Mr Crook, will also become permissible uses but that is not the law as it presently stands. As Mr Archer correctly noted, "it is not the role of the Registrar to make legislation."

105. The issue resolves to the fact that even if the use of suppressors during previous kangaroo culling was not in accordance with the law, that circumstance does not now enable the Registrar, or the Tribunal on review, to issue Mr Crook with a permit authorising his use of suppressors.

106. Mr Crook took the Tribunal to section 138 of the Legislation 2001 which provides:

Meaning of working out the meaning of an Act - pt 14.2

(a) resolving an ambiguous or obscure provision of the Act; or

(b) confirming or displacing the apparent meaning of the Act; or

(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the Act in any other case.

107. He submitted that when "working out the meaning" of section 9 of the PW Act, to construe the section as giving the Registrar power to issue Mr Crook with a permit to possess folding stocks and suppressors but not use them "leads to a result that is manifestly absurd and unreasonable". As he stated at the hearing, such an approach would permit him to use the stocks and suppressors as nothing more than paperweights.

108. He submitted it was "absurd" that bodies such as the Australian Federal Police (being the ACT's police force) and relevantly the Victoria Police have a need for rifles fitted with these features and yet the PW Act gives no scope for anyone in the ACT to supply them.

109. Mr Crook stated that he is considering contracts that would involve his company "manufacturing of up to 5,000 suppressors per annum for the Australian Law Enforcement, Defence and Invertebrate Pest Control industries", and that it is absurd and unreasonable that he cannot obtain a permit authorising him to test (meaning use) these suppressors in order to ensure their quality and suitability before supplying them to the market.

110. Mr Crook also relied on the fact, he claimed, that "in any other state in Australia this wouldn't be a problem." Mr Archer provided me with copies of the Prohibited Weapons Act 1989 (NSW) (repealed) and the Weapons Prohibition Act 1998 (NSW) that seem to confirm Mr Crook's position.

111. The former Act distinguished between possession and use of prohibited weapons, on the one hand, and possession of prohibited articles on the other, in materially the same way as occurs under section 9 of the PW Act. However a suppressor and a folding stock were both classified as prohibited weapons per schedule 1, items 4 and 5, not prohibited articles, such that a permit could be issued for their possession and use.

112. Although the legislative structure has changed under the present NSW Act, provision to issue a permit for possession and use of a suppressor (or silencer) remains. The Weapons Prohibition Act 1998 does not seem to provide at all for folding stocks.

113. Mr Crook makes a strong case for legislative amendment, but that does not permit the Registrar or the Tribunal to depart from the plain and unambiguous words used in section 9, and in schedules 1 and 2 to the PW Act that distinguish between prohibited weapons and prohibited articles. Whether these words lead to "absurd" or anomalous results is, as the Registrar submitted, "in the eye of the beholder".

114. As the Registrar noted in his written submissions, the High Court commented in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 at [42]:

The court should not strain to give a meaning to statutes which is artificial or departs markedly from that ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints on the courts its choice should be respected even if the consequence is constitutional validity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen.

115. Even if I were to 'strain' the meaning of 'possession' in section 9 as an ordinary word to include use, that would not assist because section 3 of the PW Act sets out a meaning of 'possession' that cannot sensibly be read as including use. Also, to construe 'possession' as including 'use' would render purposeless the additional words 'possession and use' in section 9(1)(a).

116. The Tribunal is obliged to apply the law regardless of the seemingly incongruous or 'absurd' results that might follow. Only where the language of the section is unclear, ambiguous or reasonably open to different interpretations can section 138 of the Legislation Act be applied to "work out the meaning of the Act". In my view, that is not this case.

117. The ACT Supreme Court, per Penfold J, made a similar observation in R v Scheele [2014] ACTSC 317 at [24]:

24. It seems likely that the legislative intention was to include the relevant replica and imitation firearms within the definition of prohibited firearms, but a presumed legislative intention to include those items is not sufficient to override the legislature's failure to do so, especially since that failure is, in my view, clear on the face of the legislation. This is not a question of legislative ambiguity, it is a question of the clear operation of the words of the Act.

25. In Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 at [62], McHugh J said:

A court should not disregard clear words and interpret a legislative provision so as to extend the scope of criminal liability even if it thinks that, by inadvertence, the legislature has failed to deal with a matter. That is so even if the court thinks that the legislature would probably have dealt with the matter if it had been drawn to the legislature's attention. Jordan CJ put the relevant principle succinctly in delivering the judgment of the Full Court of the New South Wales Supreme Court in Ex parte Fitzgerald; Re Gordon [(1945) [1945] NSWStRp 2; 45 SR (NSW) 182 at 186]:

"If conduct of a particular kind stands outside the language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits."

118. Applying these principles, the Tribunal cannot construe section 9 as permitting the use of folding stocks and/or suppressors for the uses proposed by Mr Crook even if it were to regard that as sensible or conclude that the legislature would probably have given permission for those uses had they been drawn to its attention.

119. Whilst I recognise Mr Crook's frustration at the legislative effect, I accept Mr Archer's submission that I must apply the words of the legislation. Mr Archer took me to the Federal Court's decision in Esso Australia Resources Ltd v Federal Commissioner of Taxation [1998] FCA 1655; (1998) 83 FCR 511, where the Court said:

It can be accepted that where a literal or grammatical meaning of a statutory provision does not conform to the legislative purpose as ascertained from the statute as a whole, including the policy which may be discerned from its provisions, a court is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision: see Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 22 per McHugh J. However, it is not apparent that any identifiable legislative purpose is served by the addition of the words suggested by the AAT. Indeed, in my view, the addition of those words tends to defeat, rather then give effect to, the legislative purpose of encouraging the provision of child care facilities at business premises of an employer

120. Mr Crook referred the Tribunal to the High Court's decision in Minister for Immigration and Citizenship v Li [2013] HCA 18, where the Court determined a decision was invalid on the grounds that it was unreasonable. Li does not assist: it concerned a decision of the Migration Review Tribunal, not legislation.

121. For these reasons, whilst I sympathise with Mr Crook's circumstances, I have determined that the Registrar correctly found he does not have power to issue Mr Crook with a permit authorising him to use a folding stock or a suppressor in the context of manufacture or otherwise.

122. My determination of the preliminary issue means that the decision under review must be confirmed. I so order.

[1] Re Brian Lawlor Automotive Pty Ltd Collector of Customs (1978) 1 ALD 167

[2] Transcript of Proceedings 4 March 2016 page 62, lines 15 - 18

[3] Transcript of Proceedings 4 March 2016 page 56, line 43 to page 57, line 18

[4] Item 7, column 3, schedule 3 to the Firearms Act

[5] Re McKie and Minister for Immigration, Local Government and Ethnic Affairs (1988) 8 AAR 90 at 96; Re Walsh and Commissioner of Taxation [2012] AATA 451; (2012) 130 ALD 200 at [19]