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High Court of Australia |
CHAPMAN v. SUTTIE [1963] HCA 9; (1963) 110 CLR 321
Constitutional Law (Cth)
High Court of Australia
Dixon C.J.(1), Taylor(2), Menzies(3), Windeyer(4) and Owen(2) JJ.
CATCHWORDS
Constitutional Law (Cth) - Freedom of Inter-State trade commerce and intercourse - What constitutes interference with freedom - State statute prohibiting sale of firearms except on production of certificate - Grant of certificate at discretion of police officer and on appeal of magistrate - Sales of firearms to be sent to persons in other States - Certificate under State statute not produced - The Constitution (63 & 64 Vict. c. 12), s. 92 - Firearms Act 1958 (Vict.), ss. 17 (1)*, 22 (2)***, 24 (1)****, 43****.
HEARING
Melbourne, 1962, May 18, 21;DECISION
1963, April 2.2. Section 7 describes what a person desiring to carry on business as a gun dealer shall do. He must make an application in a prescribed form and furnish the prescribed particulars to the Chief Commissioner of Police or some authorized officer of police and the Chief Commissioner or officer may issue a licence provided he is satisfied that the applicant can be permitted to carry on or continue the business without danger to the public safety and that the premises are not unsuitable. The licence remains in force until the last day of June of the financial year for which it is issued. The gun dealer must keep or store any firearms at the premises for which the gun dealer's licence is in force. (at p326)
3. Section 17 provides for the keeping of a register, at the premises, of transactions, in a prescribed form; for the entry in the register of the particulars required by a Schedule, and it provides, by s. 17 (1) (d), that in the case of a sale of any firearm the holder of the gun dealer's licence shall at the time of the transaction require the purchaser, if not known to him, to furnish particulars sufficient for identification, and immediately enter the said particulars in the register, and in the case of a sale of a firearm within the meaning of Pt III of the Act shall require the purchaser to produce and deliver up to the said holder the firearm certificate entitling the purchaser to purchase the firearm unless the purchaser gives reasonable proof that he is by virtue of the Act entitled to purchase the firearm without having such a certificate. (at p326)
4. The defendants in this case are licensed gun dealers and some of the charges were laid under s. 17 (1) (d). The firearm certificate mentioned in the section is dealt with under Pt III, ss. 21-28. Section 22 provides that, subject to the provisions of the Act "no person shall purchase or have in his possession or carry a firearm unless he holds a firearm certificate authorizing him so to do granted under this Part and in force at the time". Sub-section (2) of s. 22 provides that the Chief Commissioner of Police or any authorized officer of police, on application in the prescribed manner, shall grant a firearm certificate if he is satisfied of three facts. The first is that the applicant has good reason for purchasing or having in his possession the firearm or firearms in respect of which the application is made. The second is that the applicant is not a person who by the Act or any law is prohibited from purchasing being in possession of or carrying such a firearm or firearms. The third is that the applicant is not a person of intemperate habits or unsound mind or otherwise unfitted to be entrusted with such a firearm or firearms. It is provided by s. 43 (1) that any person who feels aggrieved by the refusal of the Chief Commissioner of Police or any authorized officer of police to issue renew or transfer a gun dealer's licence or to grant or renew a firearm certificate or by the grant of a limited firearm certificate or the imposing of any special condition in any such certificate may within one month appeal to the court of petty sessions held nearest to the usual residence or the place of business of the person aggrieved and consisting of a stipendiary magistrate sitting without other justices. Notice is to be given to the Chief Commissioner of Police or authorized officer of police and the clerk of petty sessions and the court may make such order therein as it thinks just. (at p327)
5. Section 24 (1) provides that a person shall not sell to any other person any firearm unless the purchaser produces to the seller a firearm certificate authorizing the purchaser to purchase such a firearm or unless the purchaser gives reasonable proof that he is by virtue of the Act entitled to purchase such a firearm without producing such a certificate. Section 26 (1) contains a list of exemptions and no doubt s. 24 (1) contemplates the exemptions. The convictions which were not made under s. 17 (1) (d) were made under s. 24 (1). (at p327)
6. It was contended that s. 17 (1) (d) should receive a restricted interpretation. The contention was that it should be limited in its application to sales made, so to speak, over the counter, the reason being, so it was said, that the context showed that the whole transaction must be in the store or premises licensed. There seems to me to be no logical ground for an implication so restricting the operation of the section. If the sale is made at a place or in circumstances which would make it impossible to comply with the directions contained in s. 17 (1) so much the worse for the holder of the gun dealer's licence. It would be entirely false reasoning to suppose that that made it possible for him to sell without complying with the section. (at p328)
7. For the appellants it was sought to place a construction on s. 24 (1) which confined the prohibition it contains to cases where the purchaser actually received the firearm in Victoria. It is not necessary to traverse the argument which to some extent was based upon the enlargement of the natural meaning of the word "sell" by the definition of the word contained in s. 3 (1). Whatever reasons there might be for saying that a particular transaction was outside s. 24 (1) because of its extra-territorial character, there seems to be no basis for placing upon the sub-section a meaning restricted by some implication of actual intention. (at p328)
8. I now turn to the facts of the particular cases and the considerations
which I think govern the disposal of the appeals with
respect to them.
Appeal No. 11 of 1962. (at p328)
9. The three appellants under the firm or name of E. Dark & Co. at Post Office Place, Melbourne, carried on business as licensed gun dealers. There is a fourth member of the firm, a lady, but she was not included in the proceedings. This appeal is from a conviction of the three appellants at Melbourne on 1st August 1961 for an offence against s. 24 (1). The offence was that they did (within the meaning of the Firearms Act 1958) sell one Luger pistol to J. J. Vaughan of Nicholson Station, Western Australia, such person not having produced to the defendants a firearm certificate authorizing him to purchase such firearm and not having given the defendants reasonable proof that he was by virtue of such Act entitled to purchase such firearm without producing such a certificate. It appeared from the firm's firearms register that a.38 calibre automatic Luger pistol was sold to J. J. Vaughan of Nicholson Station, Western Australia, via Alice Springs, and was sent by post, registered mail, on 1st August 1961. The defendant, Mr. G. F. Chapman, in the presence of the defendant Mr. Brian Chapman, admitted that no firearm certificate was produced and said that it was a mail order and as it was from another State no certificate was necessary. No formal evidence of the nature of a Luger pistol was given but it may be taken that everybody knew it as a heavy German pistol, carried in two world wars as a standard military arm. In peace time of course it might be carried as a weapon to be used in attack or defence or as a protection against any human conflict that might be feared. That, however, was not Mr. Vaughan's purpose in buying it. The transaction was opened by a letter from J. J. Vaughan dated 19th June 1961 and in that he wrote to E. Dark (sic), Melbourne, from Nicholson Station via Alice Springs: "I wish to purchase from you if possible a 9 m.m. Cal(ibre) side arm. By this I mean something in the order of a Lugar, P. 38, or Browning. If none of the above can be furnished then perhaps you could suggest something else in the hard hitting line though if possible nothing in the revolver line or 45 cal(ibre) auto(matic)s." The letter continues: "To help in your choice I shall explain my shooting conditions. I shoot cleanskin bulls off a horse in rugged country whilst mustering cattle. I bought a 45 auto from you recently but found the recoil of this weapon too great for my shooting conditions . . . . If you have the weapon you think is suited for my situation, then please put it aside for me and I shall send the required amount by return mail." E. Dark & Co. seem to have replied to him on 4th July by a letter which did not reach him at Nicholson Station until 23rd July 1961. Next he wrote to them saying: "Re the 9 m.m. Luger (sic) you have for me if it's not too late, I would still like to purchase the weapon and have enclosed a cheque for 23 pounds Os. Od. the extra 10s. being for postage to the following address: 'J. J. Vaughan c/- Nicholson Station W.A. via Alice Springs'." In a letter to E. Dark & Co., Melbourne, dated 21st August 1961, he acknowledges the receipt of "the Luger"; orders an extra Luger barrel with a length of 4 to 71/4 inches and a spare magazine, if they can be procured, and orders a Webley or standard.22 revolver. Evidence does not seem to have been given of the exact locality of Nicholson Station. Probably it lies in the Kimberleys to the west of the source of the Ord River. But it may be treated as certain that it is in the State of Western Australia and not in federal territory, notwithstanding that the weapon was to be consigned via Alice Springs. For not only the register and the mail order but the information gives the location as Western Australia. I mention this because it appears to me that when a claim is made by a defendant that s. 92 excludes the operation upon his case or a particular case of such a closely conceived scheme of control of lethal weapons, it must be shown affirmatively and with reasonable certainty that the transaction for which immunity is claimed is in fact one of commerce or intercourse with another State. Of course it has been decided (Lamshed v. Lake [1958] HCA 14; (1958) 99 CLR 132 ) that by s. 10 of the Northern Territory (Administration) Act 1910- 1961 it is validly enacted that the freedom of trade commerce and intercourse between the Northern Territory and the States is validly established and by reason of the fact that this is a law of the Commonwealth Parliament the jurisdiction of the Court of Petty Sessions would probably be federal. For presumably s. 39 (2) of the Judiciary Act would operate with reference to s. 76 (ii) of the Constitution as it would with reference to s. 76 (i) of the Constitution had the defence fallen directly under the application of s. 92. (at p330)
10. One thing that it is desirable, as it seems, to point out here is that
though it is a State Act which s. 92 is invoked to meet,
parallel legislation
(confined of course to inter-State trade and commerce and its incidents) under
s. 51 (i.) of the Constitution might meet with a like recourse to s. 92. I
mention these incidental questions because though they do not in the end
become material to the decision, I think it may prove
of more importance than
usual to show how this case works out. I proceed on the basis that it appears
with a sufficient degree of
certainty that the weapon was required by a man on
a cattle station in a wild part of another State for shooting cleanskin bulls
and for no purpose otherwise involving human safety, and that it was purchased
as a mail order and despatched in a corresponding
manner to the purchaser. Now
one of the purposes of the Firearms Act is to control the "distribution" of
firearms and to ensure that
anyone who manufactures, sells, deals in, repairs,
or tests or "proves" firearms by way of trade or business or otherwise carries
on business as a gun dealer shall have a licence as a gun dealer in respect of
the premises where he carries on business (s. 5) and
to require him to keep a
proper register accounting for the weapons and recording various matters but
specially the particulars of
the acquisition and disposition of the weapons.
Probably all this might have been worked out consistently with s. 92 without
serious
challenge. But unfortunately the statutory machinery chosen for the
purpose of control contained a provision going further than requiring
proper
records of acquisition and disposition: it was provided that the purchaser
must produce a certificate and one which it might
be impossible for him to
obtain if he dwelt in another State. It was provided that the selling of the
firearm should be unlawful
if the purchaser did not produce such a
certificate. The Act approaches the matter rather from the point of view of
making sure of
the purchaser: for s. 22 (1) says that, subject to the
provisions of the Act, no person shall purchase or have in his possession
or
carry a firearm unless he holds a firearm certificate authorizing him so to do
granted under Pt III (a Part headed "Firearms Certificates").
A certificate
may be obtained by any person on application to the Chief Commissioner of
Police (scil. of Victoria) or any officer
of police authorized by the Chief
Commissioner, if he is satisfied that the applicant has good reasons for
purchasing and having
in his possession the firearm in respect of which the
application is made, that the applicant is not a person who by the Act or any
law is prohibited from purchasing, being in possession of or carrying such a
firearm and that the applicant is not a person of intemperate
habits or
unsound mind or otherwise unfitted to be entrusted with such a firearm: s. 22
(2). By s. 43 (1) an appeal is given to a
person feeling aggrieved by, inter
alia, the refusal to issue a firearm licence. But the appeal is to be to the
Court of Petty Sessions
nearest to the residence or place of business of the
person aggrieved, which needless to say means a Court of Petty Sessions in
Victoria
and that would be rather absurd for a man living in the northern part
of Western Australia. Section 24, under which the information
is laid, forbids
among other things the "sale" of any firearm "unless a firearm certificate is
produced". A provision assuming the
sale and treating it as valid and lawful
but imposing a consequential obligation on one or other of the parties to see
that the transaction
received the support of a certificate might have caused
less difficulty; but in spite of the difficulties which exist in the present
form of the provision, I am not satisfied that the defendant appellants have
made out their case for immunity from the obligation
of s. 24 (1) in connexion
with this transaction. The only exculpation offered when the police, on going
through the firearm register,
challenged the transaction was that it was
inter-State and therefore outside the section. That might be so if it were a
"sale" outside
Victoria but on the whole I am satisfied that technically it
was a "sale" in Victoria and that delivery was in Victoria to a carrier.
Even
so it might be true that to observe s. 24 (1) would have been or involved an
impairment of the freedom of inter-State trade.
It was not shown, however,
that a firearm certificate could not have been obtained by or for Mr. J. J.
Vaughan on application and
indeed quite readily. If one likes to be very
precise it did not affirmatively appear that he did not in fact possess one
for a Luger
pistol. I may add that as to an application for a firearm
certificate I do not overlook the forms in the schedules to the regulations
containing references to signing at a place in Victoria and otherwise
localizing an application but it is just that sort of thing
that cannot stand
in the way of the lawful, if limited, operation of a statutory provision when
to any extent it may operate consistently
with constitutional limitations. Nor
do I overlook the answer given in evidence by the Senior Constable in charge
of the "staff engaged
in the registration of firearms" that it was
departmental policy not to issue a firearm certificate to a person residing
outside
Victoria. I see no foundation for such a policy; see s. 22: in any
event it was not brought into application in this case. All I
decide is that
without clear proof of a necessary infringement of the freedom guaranteed by
s. 92, a failure to comply with statutory
controls attempted in reference to
dangerous weapons should not be held lawful. In considering whether compliance
would mean an interference
with "freedom" of inter-State trade you cannot
disregard the fact that we are not concerned with the ordinary course of trade
and
commerce in commodities where delay and the like may form real
impediments. In this particular case (Appeal No. 11 of 1962) I think
that the
defendants' attempt to make out an immunity under s. 92 has failed. Appeal No.
11 should be dismissed.
Appeal No. 12 of 1962 (at p332)
11. In this appeal the charge is against the same three appellants and is
under s. 24 (1) of the Act. It is that on 1st August 1961
at Melbourne they
did sell one 30/36 Gerrand rifle to R. Parsons, Davenport (Street), Millicent,
South Australia, no such person
having produced to the defendants a firearm
certificate, and so on, as stated in s. 24 (1). The subject of this sale seems
to have
been a Gerrand U.S. Army weapon, calibre 30/36. It was sold to Mr.
Parsons in the shop and there paid for by him. He, however, instructed
the
defendants that the firearm should be sent to him at Millicent, South
Australia, and as it was an inter-State sale no certificate
was asked from
him. In my opinion no case for immunity under s. 92 was made out. The sale was
made in Melbourne and the only inter-State
element proved was the terms of the
consignment. I do not say that this meant necessarily that the transaction
fell outside s. 92
but I do say that left in that state the case did not show
that compliance with s. 24 (1) meant any interference with the freedom
which
s. 92 safeguards. I therefore think the appeal (No. 12 of 1962) should be
dismissed.
Appeal No. 13 of 1962. (at p332)
12. This appeal is from a conviction upon an information against all the
appellants. The charge in the information is that they
did on 31st August 1961
at Melbourne, sell a firearm to one C. Forbes of Wollombi, New South Wales.
Not much appears in evidence
about this transaction: the register is
defective. However, the weapon was a single shot B.S.A. rifle. The purchaser
wrote to E.
Dark & Co. at their premises in Melbourne: "A few weeks ago I
enquired if you could supply a cheap single shot rifle for exterminating
vermin on my property here. You advised a.310 Cadet rifle at a cost of 5
pounds Os. Od. Please forward rifle on to Cooma, N.S.W.,
at your earliest.
Payment enclosed herewith. Yours etc. Clyde Forbes." The letter bore no date
but was from Wollombi, Dalgety, N.S.W.
Here it seems likely that the
transaction formed inter-State commerce but the proofs are scant and in any
case it does not appear
that any interference would have resulted from an
attempt to comply with the requirements of s. 22. The appeal should therefore
be
dismissed.
Appeal No. 14 of 1962. (at p333)
13. Again all three appellants were convicted under s. 24 (1). The charge was
that on 1st July 1961 they did sell one.455 Colt pistol
to one A. L. Moore of
Brisbane, such person not having produced a firearms certificate. The weapon
was a Colt automatic bought by
the defendants from a dealer. Little appears
about this transaction except that the weapon was purchased from the
defendants and
that the purchaser paid in three or four instalments and
ultimately wrote from Fortitude Valley, Brisbane, enclosing the final payment
and requesting Dark & Co.: "Kindly forward the .45 calibre colt auto pistol,
which you are holding for me to above address".
Having
regard to what I have
already said it must follow that in this appeal the defence is not made out.
Accordingly the appeal
should
be dismissed.
Appeal No. 15 of 1962 (at p333)
14. This is a charge against one only of the defendants, namely Alfred Fulton
Chapman, but it relates to a purchaser who figured
in Appeal No. 11, namely J.
J. Vaughan of Nicholson Station, Western Australia. This time the weapon is
a.22 revolver. The charge
is that on 25th August 1961 at Melbourne the
defendant A. F. Chapman did sell to Vaughan a revolver without requiring him
to produce
and deliver up a firearms certificate entitling him to purchase the
firearm and without his giving reasonable proof that he was by
virtue of the
Act entitled to purchase without a certificate. The margin of the information
refers to s. 17 (1) (d) as the source
of the charge and there are words in the
information taken from that provision, but s. 17 (1) (d) deals with the holder
of a gun
dealer's licence. It provides that in the case of a sale of any
firearm he, that is the holder of the gun dealer's licence, shall
at the time
require the purchaser, if not known to him, to furnish particulars and so on.
In fact the charge, at all events as framed,
cannot be supported unless under
s. 24 (1). When the evidence is looked at it appears that Vaughan wrote a
letter dated 21st August
1961 as from Nicholson Station to E. Dark & Co.
saying that he wished to add to his collection either a Webley or the
standard.22
revolver somewhere in the vicinity of 30 pounds. "I have enclosed
a cheque for 33 pounds Os. Od. and I trust you will forward the
excess money
plus whichever revolver you have in stock to the following address:". His
address as before was then stated. When the
informant Suttie asked questions
of the Chapmans concerning this transaction it was not Mr. A. F. Chapman whom
he interrogated. I
think that probably the defence under s. 92 is not made out
but at the same time in all the circumstances I fail to see how on any
strict
construction this conviction could be supported on the evidence independently
of s. 92. Apparently it is clear that the magistrate
was exercising federal
jurisdiction. I would allow this appeal on grounds 2 and 3 of the notice of
appeal.
Appeal No. 16 of 1962. (at p334)
15. This appeal arises out of a conviction under an information against Brian
Fulton Chapman alone, and it is in respect of the
same.22 revolver. The margin
attributes the charge to s. 17 (1) (d). It is framed in a similar manner to
that dealt with under Appeal
No. 15. I think the appeal should be decided in
the same way as Appeal No. 15 and for the same reasons. Appeal No. 16 should
therefore
be allowed.
Appeal No. 17 of 1962. (at p334)
16. This appeal is by Graham Fulton Chapman against whom an information was
laid as under s. 17 (1) (d) in respect of the same transaction
as was the
subject of the last two appeals. Not all the observations there made are
applicable to it; particularly since G. F. Chapman
was the person questioned.
But the conviction could not be supported just as it stands and on the whole I
think the better course
is to dismiss the information.
Appeal No. 18 of 1962. (at p334)
17. This appeal is by Alfred Fulton Chapman against a conviction upon an
information laid against him alone, marked as laid under
s. 17 (1) (d). The
information charges that he did, on 22nd August 1961, sell one.303 rifle to
one R. W. Davies, Tooronga Station,
New South Wales, without requiring him to
produce and deliver up a firearm certificate entitling him to purchase such
firearm, and
so on. It is, for the reasons given in relation to Appeal No. 15,
badly framed. It could not be supported under s. 17 (1) (d). The
extract from
the register book of the firm shows that the rifle was a Lee Enfield obtained
from Army Disposals but there seems to
be very little evidence about the
transaction. Apparently it was left at the simply putting in of the letter
ordering the.303 rifle
(Exhibit marked "D"). No doubt the defence under s. 92
is not made out but again I think we should not let the conviction stand.
The
appeal should be allowed and the conviction set aside.
Appeals Nos. 19 and 20 of 1962. (at p335)
18. The first of these appeals is against the conviction of B. F. Chapman
which is referred to s. 17 (1) (d), and the second against
the conviction of
G. F. Chapman, both concerning the same transaction. I think they should be
dealt with as in the case of Appeal
No. 18.
Appeal No. 21 of 1962. (at p335)
19. The defendant charged upon the information with which this appeal is
concerned is A. F. Chapman alone. The weapon was a.22 Rimfire
Marlin Magnum.
The provision referred to was s. 17 (1) (d). According to the firearms
register this weapon was disposed of to Mr.
Parsons, Davenport Street,
Millicent, South Australia. It did not appear from the evidence which of the
three partners was questioned
by the informant Suttie about this transaction
but his answers were to the effect that Mr. R. Thomson of Barham, N.S.W.,
bought it,
the date of the sale being recorded as 14th August 1961, and that
no firearm certificate was obtained because it was an inter-State
sale.
Apparently there was some confusion in recording the sale with Mr. Parsons of
Davenport Street, Millicent, South Australia,
who, as appeared in Appeal No.
12, bought an automatic Gerrand. The information in this appeal is referred to
s. 17 (1) (d) but is
not properly framed under that section. There are
elements of s. 24 in the information but for reasons which appear I do not
think
this conviction should be supported on the materials in the record. I
would allow the appeal on the grounds appearing in grounds
2 and 3 of the
notice of appeal.
Appeals Nos. 22 and 23 of 1962. (at p335)
20. These appeals relate to the same transaction. No. 22 is by B. F. Chapman against an information charging him alone. No. 23 is an appeal by G. F. Chapman against an information charging him alone. In each case the charge is laid as under s. 17 (1) (d). The information is not framed properly under that section and the evidence is deficient. I would not regard the proofs under s. 92 as sufficient to support the defence under that provision of the Constitution but again I think each appeal should be allowed under the other grounds of the notice of appeal. In the case of Appeal No. 22 that means grounds 2 and 3 and again in the case of Appeal No. 23 it means grounds 2 and 3 of the notice of appeal. (at p336)
21. It is perhaps desirable to add that an information under s. 17 should allege that the defendant is the holder of a gun dealer's licence. Of course the informations laid as if they were under s. 17 (1) might have been amended but there was a deficiency of evidence even so, and the amendments would extend to the bodies of the informations if they were to be brought into exact accordance with s. 17 (1) (d). Inasmuch as in this case the gun dealer's licence was granted to the partnership, it was necessary to any charges under s. 17 (1) (d) against any single member of the partnership to show, secundum allegata et probata, upon what his responsibility rested, whether simply as a partner or as the person actually responsible in connexion with the acts and omissions complained of. (at p336)
TAYLOR AND OWEN JJ. Section 24 (1) of the Firearms Act 1958 (Vict.) provides that a person shall not sell to any other person any firearm unless the purchaser produces to the seller a firearm certificate authorizing the purchaser to purchase such a firearm or unless the purchaser gives reasonable proof that he is by virtue of the Act entitled to purchase such a firearm without producing such a certificate. Section 17 requires every holder of a gun dealer's licence to keep a register of transactions and to make therein entries of prescribed particulars. In addition it provides, by sub-s. 1 (d), that in the case of the sale of a firearm within the meaning of Pt III of the Act the holder of a gun dealer's licence shall at the time of the transaction require the purchaser to produce and deliver up to him the firearm certificate entitling the purchaser to purchase the firearm unless the purchaser gives reasonable proof that he is by virtue of the Act entitled to purchase the firearm without having such a certificate. The appellants were at all material times licensed gun dealers within the meaning of the Act and they made, in Victoria, seven separate sales of firearms without observing these statutory requirements concerning the production of a firearm certificate. In these circumstances thirteen informations were exhibited alleging offences on the part of the appellants or some one or other of them. Four of the informations alleged a breach of s. 24 (1) and the remainder alleged breaches of s. 17 (1) (d). There were convictions in each case and these appeals are now brought pursuant to s. 73 of the Constitution and s. 39 of the Judiciary Act 1903-1959 (Cth). (at p336)
2. The principal ground upon which it is alleged that the appeals should succeed is that each of the sales was made in the course of inter-State trade and that, in relation to any such sale, the provisions of ss. 24 (1) and 17 (1) (d) could not validly operate. There is, of course, no doubt that the transactions were within the literal import of those provisions but the contention is that, in so far as they are literally capable of application to sales in the course of inter-State trade, they infringe s. 92 of the Constitution and should be read down pursuant to s. 3 of the Acts Interpretation Act 1958. (at p337)
3. In these circumstances it is necessary to make some examination of the facts relating to the several sales. But they exhibit common features and there is no need to deal separately or in detail with each transaction. First of all it should be observed that the purchaser in each case was a resident of another State. In each case except one the firearm had been ordered by the purchaser from his home State by post and the terms of the offer required that it should be forwarded from Melbourne by post or rail to the purchaser in the State where he resided. In the exceptional case the purchaser happened to be in Melbourne and placed his order at the appellants' place of business there. But, again, it was a term of the agreement for sale that the firearm should be forwarded by rail to the purchaser in the State where he resided. In fact the firearm in each case except one was forwarded by rail or post from Melbourne to the purchaser in his home State. In one instance the firearm was delivered to the purchaser in his home State by an employee of the defendants who happened to be making an inter-State visit at the time. Finally there is not the slightest suggestion that any sale possessed any feature which took it out of the ordinary course of business or that, in any case, the firearm was required for any purpose that could be regarded otherwise than as legitimate. (at p337)
4. Upon these facts it is beyond question, if firearms may properly be regarded as articles of commerce, that the sales fell within the description of trade and commerce among the States as that expression is used in s. 92. That this is so is abundantly clear from pronouncements made in W. & A. McArthur Ltd. v. State of Queensland [1920] HCA 77; (1920) 28 CLR 530 and Wragg v. State of New South Wales [1953] HCA 34; (1953) 88 CLR 353, at pp 394-396 . In the earlier case it was explicitly said that an agreement made in one State for the sale of goods to persons in that State which required that the goods should be brought to the purchaser from another State was "distinctly an inter-State transaction" and this proposition was accepted expressly in Wragg's Case [1953] HCA 34; (1953) 88 CLR 353 (see also Mansell v. Beck (1956) 95 CLR 550, at p 593 ). Factually the present case presents a slightly different aspect for it is concerned, not with agreements which call for the delivery of goods from a State other than that in which the contract was made but with agreements which require the delivery of goods to another State. But in principle there is no distinction and it would be quite anomalous to hold that transactions of the former character were comprehended by the expression trade and commerce among the States but that those of the latter character were not. Nor, in our view, are there any valid grounds upon which it can be asserted generally that firearms are not legitimate articles of commerce or that those who deal in them are not engaged in trade and commerce. Accordingly we hold the view that the sales in question were sales in the course of inter-State trade and that it is, therefore, necessary to determine whether the impugned sections, if given their full literal significance, would impair the freedom guaranteed by s. 92. (at p338)
5. On this point there can, we think, be no doubt. Section 24 (1) expressly prohibits any sale unless the purchaser produces a firearm certificate or unless he gives reasonable proof that he is entitled to purchase such a firearm without producing such a certificate. Such a prohibition, per se, strikes directly and immediately at the very heart of the trade and must be taken to constitute an infringement of s. 92 unless it appears that there is a right to the grant of a certificate except in circumstances where a refusal would not constitute an impairment of the constitutional freedom. But the provisions of the Act relating to the granting of certificates leave it to the Chief Commissioner of Police in the first instance, at least, to determine, inter alia, whether the applicant has good reason for purchasing a firearm and whether he is a person who is fit to be entrusted with a firearm. Presumably, also, it leaves to the Chief Commissioner the right to determine what constitutes "good reason" for purchasing or possessing a firearm and what constitutes fitness or unfitness in relation to the purchase or possession of firearms. Probably the provisions of s. 22 were framed purely for the purpose of restricting and regulating the sale of firearms to persons in Victoria and without regard to s. 92. This view receives some support from s. 43 of the Act which provides that any person who feels aggrieved by the refusal of the Chief Commissioner of Police to grant a firearm certificate may within one month appeal against the refusal to the court of petty sessions held nearest to the usual residence or the place of business of the person aggrieved. One may well doubt whether it was intended that the Chief Commissioner of Police should, in effect, control the purchase of firearms by persons resident and, at the time of the purchase, present in another State or that, in the event of an application by such a person for a certificate and its subsequent refusal, he was intended to have a right of appeal to the court of petty sessions held nearest to his usual residence or place of business. The reference to a court of petty sessions must, of course, be taken to mean a court of petty sessions in Victoria and we should think that the section contemplates an applicant whose usual residence or place of business is in that State. It would, indeed, be strange if a resident of a more or less remote part of Western Australia - as one of the purchasers in this case was - should be taken to have a right of appeal to the court of petty sessions in Victoria nearest to his usual residence. The provisions of ss. 22 and 43 lend some colour to the proposition advanced on behalf of the appellants that the general provisions of ss. 24 (1) and 17 (1) (d) were not intended to deal with sales such as those in question here. But the proposition has many difficulties not the least of which is that if one were to incline to the view that the general provisions of those sections ought to be held to be constrained by a process of interpretation based upon some presumed intention of the legislature as gathered from a consideration of the Act generally, it would be quite impossible to say with any degree of precision what that intention was and, consequently, how or in what manner the general language of those sections should be constrained. That being so we have no alterative but to understand the language of those sections according to its literal import. On that view s. 24 (1) expressly forbids any sale of a firearm whether in the course of inter-State trade or not. But it is a conditional provision and, as already pointed out, would not infringe s. 92 if the Act gave a right to the grant of a firearm certificate except in cases where a refusal would not impair the constitutional freedom accorded to inter-State trade. The Act, however, does not do this; on the contrary it denies that freedom whenever the Chief Commissioner is not satisfied that the purchaser has a "good reason" for purchasing a firearm or that the purchaser is not a person fit to be entrusted with a firearm. It is true that s. 43 purports to give a right of appeal to a court of petty sessions but how far this may be availed of by a purchaser living in another State is open to doubt. It is, however, unnecessary to resolve this doubt for a provision which leaves to the Chief Commissioner of Police in one State and, ultimately, to a court of petty sessions in that State, to say whether or how far a person in another State has a "good reason" or is fit to become the purchaser of a firearm in the course of inter-State trade must be regarded as repugnant to s. 92. (at p340)
6. Like considerations apply in the case of s. 17 (1) (d) and, though we would have no doubt that a provision which simply required gun dealers to keep records of their purchases and sales would not infringe s. 92, the provisions of s. 17 (1) (d) which impose upon a gun dealer an obligation to require a purchaser to produce a firearm certificate must share the same fate as s. 24 (1). (at p340)
7. For these reasons we are of the opinion that the appeals should be allowed and the convictions quashed. (at p340)
MENZIES J. The defendants, or one or other of them, have been convicted by a magistrate on thirteen charges of offences under the Firearms Act 1958 of the State of Victoria. These charges all arise out of seven transactions whereby the defendants (who are members of a partnership of licensed gun dealers) sold firearms to persons in States other than Victoria who by letter had ordered the firearms for despatch to them in those other States. All the contracts of sale were made in Victoria and, with one possible exception, delivery was also made in Victoria to a carrier for carriage to the purchasers. Four of the charges were laid under s. 24 (1) of the Act for selling firearms to persons who had not produced firearm certificates authorizing them to make the purchases. Nine of the charges were laid under s. 17 (1) (d) of the Act for failing to require the purchaser to produce and deliver up firearm certificates authorizing the purchases of the firearms sold. (at p340)
2. Although Dr. Coppel (for the appellants) relied upon a number of grounds in contesting the convictions of his clients, I am of the opinion that the only sound ground is that s. 92 of the Constitution precludes the application of ss. 24 and 17 (1) (d) of the Act to the transactions under consideration. (at p340)
3. I reject the arguments that upon the construction of the Act neither section applies to a sale to a person who is resident outside Victoria and that s. 17 (1) (d) applies only to "over-the-counter" transactions. It may be that the regulations made under the Act have been drawn upon the assumption that the operation of the Act itself is limited in some such way but, if so, so much the worse for the regulations. They cannot control the construction of the Act itself and, having regard to the language used in ss. 24 and 17 (1) (d), I cannot find anything in the Act that would take any sale in Victoria outside the operation of these sections. A provision such as s. 43 is altogether too weak a peg upon which to hang such an implication. (at p340)
4. The transaction of sale and purchase of conventional firearms is, however, an ordinary trading transaction and, as such, s. 92 of the Constitution says that where such a transaction forms part of inter-State trade it shall be absolutely free. The appellants have nevertheless been convicted on four charges of selling in contravention of s. 24 firearms to be sent to purchasers in other States. A sale of which it is a term that the goods sold shall be sent to the purchaser inter-State is itself inter-State trade: W. & A. McArthur Ltd. v. State of Queensland [1920] HCA 77; (1920) 28 CLR 530, at pp 540, 560 , and there is a finding, which I accept, that all the transactions in question were in the course of inter-State trade. If, as seems likely, no provision has been made for a would-be purchaser outside Victoria to obtain a firearm certificate without the production of which s. 24 forbids the sale of any firearm, then the sale by a Victorian firearm owner to a customer outside Victoria is altogether forbidden - at any rate, unless the customer should come to Victoria and, contrary to the evidence relating to police practice, there obtain the necessary certificate. Such a law cannot be reconciled with s. 92. Assuming, however, that it were possible for a person who desires to buy a firearm which is in Victoria from a vendor in Victoria for despatch to the purchaser in another State to obtain a firearm certificate, I would nevertheless regard the requirement that he must do so before the Victorian vendor can sell the firearm for despatch as aforesaid as infringing s. 92. This is because the right to grant or refuse a firearm certificate is a matter for the discretion of the Chief Commissioner of Police in Victoria or one of his authorized officers (s. 22). It is, therefore, put within the competence of the police to prevent inter-State trade taking place. Police action may sometimes quite legitimately prevent inter-State movement (e.g. the arrest of a person carrying obscene pictures from one State to another State and the seizure of the pictures): it is, however, beyond the power of a State to authorize its officers to license inter-State trade in goods which are clearly trading goods notwithstanding that in criminal hands they may be instruments of lawlessness. Axes, carving knives, explosives and motor cars are obvious examples. It seems to me that ordinary firearms fall within this category and it is at this point that I differ, with respect, from the view taken by the Supreme Court of South Australia in Coghlan v. Fleetwood (1951) SASR 76 . The decision of this Court and of the Privy Council in Hughes and Vale Pty. Ltd. v. State of New South Wales [1953] HCA 14; (1953) 87 CLR 49; (1955) AC 241; (1954) 93 CLR 1 establishes that to attempt to authorize the licensing of inter-State trade at the discretion of an official of a State is an infringement of s. 92 of the Constitution and I have not been able to find any exception to this general rule that would take s. 24 of the Firearms Act outside its scope. I am, therefore, of the opinion that the prohibition against sale in s. 24 of the Firearms Act does not apply to sales which form part of inter-State trade and that the convictions of the appellants under that section ought to be set aside. (at p342)
5. It is not so obvious that there is conflict between s. 92 of the Constitution and s. 17 (1) (d) of the Firearms Act. My reading of s. 17 (1) (d) is that it does not prohibit the sale there referred to but requires, subject to an immaterial exception, that when a sale is made and before it is completed the licensed gun dealer who is the vendor should require the purchaser to produce and deliver up to him "the firearm certificate entitling the purchaser to purchase the firearm". I would see no objection to a State law requiring the vendor of dangerous articles such as firearms to keep a record and make a return of sales including those in the course of inter-State trade and, if s. 17 did no more than facilitate the supervision of dealings in firearms, I would not be inclined to regard it as contrary to s. 92. I have, however, come to the conclusion that s. 17 (1) (d) goes further and that its direct operation is to prevent the completion of a transaction in the course of inter-State trade unless and until a firearm certificate is produced and delivered up. The operation accorded to it by the learned magistrate - viz. that it prohibits the holder of a gun dealer's licence from carrying out a contract which requires the delivery of a firearm to a carrier for carriage to the purchaser in another State unless that purchaser has produced and delivered up a certificate - is one that would bring it into conflict with s. 92. It must, therefore, be read as not applying to such a transaction. (at p342)
6. Taking the view that I do that all the transactions before us, although Victorian sales, were, as the learned magistrate found, transactions in the course of inter-State trade and considering that ss. 24 (1) and 17 (1) (d) would, if applied, prohibit the sales in question or the delivery of firearms pursuant thereto, I have reached the conclusion that the convictions cannot be allowed to stand because each one of them is for doing something which s. 92 protects. (at p342)
WINDEYER J. The Firearms Act 1958 (Vict.) is designed to aid the police in controlling the use and possession of firearms in Victoria. Only persons who are approved by the police are to be permitted to obtain and carry firearms, the aim obviously being to prevent firearms getting into the hands of criminals or others who, in the words of the Act, are "unfitted to be entrusted with a firearm or firearms". The Act has a far-reaching application, because "firearm" is defined to mean "any lethal firearm or other weapon of any description from which any shot, bullet or other missile can be discharged and includes a pistol . . .". Blowpipes, and bows and arrows are thus, it seems, included. But, of course, what the Act is mainly aimed at are true firearms such as may readily be used for criminal purposes. For this reason smooth bore shotguns, not less than thirty inches in length and with barrels of not less than sixteen inches, are expressly excluded from the operation of the Act; and so too are some air guns and air rifles, and also certain industrial tools which, in any event, would not ordinarily be called weapons. (at p343)
2. The method of the Act is to provide for the Chief Commissioner of Police or an authorized police officer issuing "firearm certificates"; and to prohibit anyone purchasing, or having in his possession, or carrying, a firearm unless he has a firearm certificate authorizing him to do so. It is an offence to sell any firearm other than a pea rifle except to a person producing to the seller a firearm certificate or giving reasonable proof that he is, by virtue of the Act, entitled to purchase a firearm without producing a certificate. The Act also provides for the licensing of gun dealers, and obliges the holder of a gun dealer's licence to keep a register of his dealings. In the case of sales of any firearm a gun dealer must make the required entries in the register; and where the firearm is one for the purchase of which a certificate would be required he must require the purchaser to produce and to deliver up his certificate unless he gives reasonable proof that he is, by virtue of the Act, entitled to purchase the firearm without a certificate. (at p343)
3. The draftsman of the Act and the draftsman of the regulations under the Act seem to have limited their vision to Victoria and not to have thought at all that Victoria is a part of the Commonwealth of Australia and that someone in another State might wish to buy a firearm from a gun dealer carrying on business in Victoria or from a resident of Victoria. But, although the State legislature seems to have concerned itself only with the purchase and possession of firearms by people living in Victoria, the Act is not expressly so restricted and I do not think it is to be construed as so restricted. In terms it applies to all sales in Victoria of firearms in Victoria and to all agreements for sale made in Victoria of firearms in Victoria. The appellants were therefore, I consider, rightly convicted of offences against s. 24 (1) and s. 17 (1) (d) of the Act, unless on constitutional grounds the Act did not operate in respect of the transactions in question. (at p344)
4. Regulations made under the Act, prescribing matters that s. 24 (2) and (3) contemplate will be prescribed, seem to have been made on the assumption that sales of firearms in Victoria will be made only to residents of Victoria. In the result, it is virtually impossible for a Victorian gun dealer or resident to sell a firearm to a person outside Victoria and comply with the Act and regulations unless the purchaser resorts to Victoria and obtains a firearm certificate. And, according to the evidence of the police officer who at Police Headquarters in Melbourne was in charge of the regulation of firearms, a firearm certificate would be refused to anyone coming from another State. No provision exists in the Act and regulations for a purchaser in another State obtaining a firearm certificate or being exempted from the necessity of doing so. There is in this a direct impairment of the freedom of trade and commerce among the States that s. 92 assures and protects. For that reason these appeals should, I consider, be allowed. (at p344)
5. The transactions in question were bona fide transactions of inter-State commerce. In every case, with perhaps one exception, a contract for the sale and purchase of a firearm was made in Victoria, to be performed by the despatch of the article to the buyer in another State. The evidence was not quite explicit in all cases; but that that was its effect was not strongly contested before us. The question on which the case was made to turn was the effect of s. 92. This does not, I think, depend on whether firearms are to be described as articles of commerce, or are to be regarded as in some special category of dangerous, or potentially dangerous, things to which s. 92 does not apply. Poisons and drugs are as much subjects of commerce as are pickles and soft drinks, guns as much so as motor cars and sheep. Traffic in one, as much as in another, is within the assurance and protection that s. 92 affords. The question is whether in fact commercial traffic in the goods in question is impeded in such a way that s. 92 is infringed. I have elsewhere expressed my view that the interpretation of the Constitution does not depend upon purely analytical reasoning from the meaning of words. The character of the goods sold may be an element in determining the nature of the control that is exerciseable before freedom of trade in them is invaded. But the character of the goods is only a part of a totality of circumstance that must be considered. Section 92 is not an abstract and logically absolute proposition. To it, no less than to other parts of our Constitution, it is appropriate to apply the remarks of O. W. Holmes J. concerning the provisions of the Constitution of the United States: "Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth": Gompers v. United States [1914] USSC 151; (1914) 233 US 604, at p 610 [1914] USSC 151; (58 Law Ed 1115, at p 1120) . (at p345)
6. A law that goods of a particular kind can only be bought by persons who have a licence to do so, does not necessarily impair the freedom of which s. 92 speaks, any more than does a law requiring a motorist to have a licence to drive a motor car or a drover to have a travelling-stock permit to move sheep. If, for example, a law said that certain drugs might be sold only on a medical man's prescription; or that some poisons might only be had with the approval of a State health authority, no impairment of the freedom of inter-State trade would result from its application to inter-State sales - provided that buyers in all States could apply for the necessary prescription or approval and that the grant or refusal was referable to some general test and not made dependent upon State boundaries. (at p345)
7. I do not found my conclusion on the requirement that a buyer must have a firearm certificate, but on the obstacles the Act and regulations place in the way of anyone resident outside Victoria getting one. (at p345)
8. I do not think that the imprecise character of the matters of which, under s. 22 (2), the officer of police must be satisfied before he grants a firearm certificate, makes the law invalid. I am prepared to assume that the decision to grant or refuse an application for a certificate depends upon his unfettered discretion in the sense that what is a "good reason" for purchasing a firearm is not defined. But, as I read the Act, it means only that the applicant does not want the firearm for some nefarious use in Victoria. I do not think that par. (c) of s. 22 (2) is of itself objectionable. A State law that prohibits persons in Victoria selling firearms to drunkards, lunatics, criminals or other persons unfit to be entrusted with firearms, wherever such persons reside and carry on their lawful, or unlawful, activities, seems to me no different from a State law prohibiting the sale of drugs to drug addicts. The fact that the addict lived in another State would not, in my view, render State law powerless to prevent persons in Victoria selling or sending drugs to him. In short I am inclined to think that the administrative discretion conferred by s. 22 (2) is not unfettered. It is limited by the apparent policy and purpose of the Act. If s. 43 had not provided for an appeal to a magistrate, the exercise of the police officer's discretion would, I think, have been judicially reviewable and controllable: see Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746, at pp 756-758 . However the appeal to the stipendiary magistrate probably supplants other possible forms of judicial control of the police officer's decision. But this appeal must be made to the court of petty sessions nearest to the applicant's usual residence. This seems to mean that only a resident of Victoria can appeal, for the nearest court of petty sessions means a court of petty sessions of Victoria. If a resident of Perth went to Melbourne and there applied for a firearm certificate which was refused - as we were told it probably would be - surely the Act does not mean that he should apply to the court of petty sessions in western Victoria nearest to Perth? The only sensible conclusion is, I think, that only a resident of Victoria can appeal. This emphasizes the obstacles that the Act imposes on inter-State transactions. It also, I am inclined to think, brings the Act into collision with s. 117 of the Constitution. The Chief Justice referred to this aspect of the question; but as the matter was not pursued in argument I do no more than mention it. (at p346)
9. The Acts Interpretation Act 1958 (Vict.), s. 3, requires that the Firearms Act be read and construed subject to the Constitution and so as not to exceed the legislative power of the State Parliament. As it and the regulations under it now stand, they can conflict with s. 92 of the Constitution. I consider that they must be regarded as inoperative in cases of sales of firearms by persons in Victoria to buyers in other States whenever the firearms sold are sent away from Victoria to the buyers, they or their agents not being at any relevant time in Victoria. I refer, of course, to bona fide inter-State transactions. I would allow the appeals. (at p346)
ORDER
Appeals (Nos. 11 to 23) allowed with costs. Convictions set aside and informations dismissed.
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