Commissioner of Police v Thayli Pty Ltd
[2020] WASC 43
•19 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: COMMISSIONER OF POLICE -v- THAYLI PTY LTD [2020] WASC 43
CORAM: SMITH J
HEARD: 11 DECEMBER 2019
DELIVERED : 19 FEBRUARY 2020
FILE NO/S: GDA 6 of 2019
BETWEEN: COMMISSIONER OF POLICE
Appellant
AND
THAYLI PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: DR B DE VILLIERS, MEMBER
Citation: THAYLI PTY LTD and COMMISSIONER OF POLICE [2019] WASAT 34
File Number : CC 1935 of 2018
Catchwords:
Appeal from State Administrative Tribunal - Preliminary issue of law
Statutory construction - Firearms Act 1973 (WA) - Power of the Commissioner of Police to impose conditions on the approval of a shooting range not restricted to construction and maintenance of a range - Is the regulation making power in s 34(2) of the Firearms Act permissive or mandatory
The effect of the exemption in s 8(1)(m) of the Firearms Act to use and possess a firearm on an approved range considered
Proper construction of s 18 of the Firearms Act - Power of Commissioner to grant or issue an approval implied
Scope of power to impose conditions on an initial approval and reasonable conditions on an existing approval of a range pursuant to s 21 and s 20 of the Firearms Act in the absence of relevant regulations considered
Procedural fairness - Breach of hearing rule by determining the application on the merits without hearing further from the parties
Legislation:
Criminal Appeals Act 2004 (WA), s 23(1)(b), s 31
Firearms Act 1973 (WA), s 5A, s 5A(3), s 5A(3), s 8, s 8(1)(d), s 8(1)(m), s 8(1)(n), s 9A(1), s 11, s 11(1), s 11(8), s 11A, s 11A(2)(a), s 11A(2)(b), s 11A(2)(f), s 11A(6), s 11B, s 11C, s 17A, s 17B, s 18, s 18(4a), s 18(6), s 18(12), s 18(13), s 19(2)(c), s 20, s 20(1), s 20(1)(a), s 20(1)(b), s 20(1)(c), s 20(1)(d), s 20(1)(ac), s 20(1a), s 20(2), s 21, s 21(1), s 21(2), s 23(3), s 23B(5), s 23BA(1), s 23BA(2), s 31(1), s 34, s 34(2), s 34(2)(a), s 34(2)(b), s 34(2)(c), s 34(2)(d), s 34(2)(e), s 34(2)(f), s 34(2)(g) s 34(2)(h) s 34(2)(i), s 34(2)(j), s 34(3), s 34(3)(d)
Interpretation Act 1984 (WA), s 5, s 31(1), s 40, s 43(5), s 46(1), s 46(1a), s 56
State Administrative Tribunal Act 2004 (WA), s 31(1), s 46, s 47, s 48, s 51A, s 87(4), s 88, s 105(12)
Result:
Appeal allowed
Decision of the Tribunal set aside
Matter remitted to the Tribunal differently constituted
Category: B
Representation:
Counsel:
| Appellant | : | Mr D E Leigh |
| Respondent | : | Mr R K Williamson & Ms K J Louden |
Solicitors:
| Appellant | : | State Solicitor for Western Australia |
| Respondent | : | Ross Williamson |
Case(s) referred to in decision(s):
Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 (S)
Arabzadeh v Wasim [2018] TASSC 30
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Australian Unity Property Limited v City of Busselton [2018] WASCA 38
Bent and Commissioner of Police [2011] WASAT 143
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Cockburn Cement Ltd v Minister for Environment (WA) [2011] WASC 260
Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; (1981) 55 ALJR 434
Dainford Ltd v Smith [1985] HCA 23; (1985) 155 CLR 342
Defendi v Szigligeti [2019] WASCA 115
Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) MVR 306
DJC v Taylor [2019] WASC 235
GBT v The State of Western Australia [2019] WASCA 40
Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174
HFM043 v Republic of Nauru [2018] HCA 37; (2018) 92 ALJR 817
Hinkley v Star City Pty Ltd [2010] NSWSC 1389
John Nominees Pty Ltd v Dixon [2003] WASCA 51
Kazolis v Registrar of Firearms [2018] ACTSC 89; (2018) 331 FLR 395
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Knight v Commissioner of Police [2011] WASC 93
Lawson v The State of Western Australia [No 3] [2018] WASCA 129; (2018) 80 MVR 160
Lawson v The State of Western Australia [No 3] [2018] WASCA 129; (2018) 80 MVR 160
Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672
McGee v Chitty [2011] WASCA 125
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 163 ALD 38
Minister for Immigration and Citizenship v Szkti [2009] HCA 30; (2009) 238 CLR 489
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566
Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] [2004] FCA 107
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Brown; Ex parte Scudds (1995) 14 WAR 270
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Reid v Western Australian Planning Commission [2016] WASCA 181
Roddan v Walker (1996) 17 WAR 277
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Russell v Duke of Norfolk [1949] 1 All ER 109
Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245
Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291
Taylor v The Owners ‑ Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531; 88 ALJR 473
Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34
WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93
Ward v Williams [1955] HCA 4; (1955) 92 CLR 496
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293
Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 363 ALR 188
Table of Contents
1.0 The appeal and the result
2.0 Background
3.0 The question put to the Tribunal on the preliminary issue
4.0 The statutory text referring to the use of firearms on a range
4.1 Relevant statutory text
4.2 The term 'range'
5.0 The findings made by the Tribunal relevant to the disposition of the appeal
6.0 The grounds of appeal
6.1 Ground 1 - procedural fairness
6.2 Ground 2 - construction of the Firearms Act
7.0 Ground 2 of the appeal ‑ the construction issue - is an error of law demonstrated?
7.1 Principles of construction - general principles - a purposive approach
7.2 Did the Tribunal err in determining that the power of the Commissioner to impose conditions on the approval of a range is restricted by the operation of s 8(1)(m) of the Firearms Act?
7.3 The power to approve a range and to impose conditions in respect of the operation of a range and the scope of the power to impose conditions
7.3.1 One power to approve conditions or three distinct powers? - the parties' arguments
7.3.2 Is the regulation‑making power in s 34(2) of the Firearms Act permissive or mandatory?
7.3.3 Does the regulation‑making power conferred in s 34(2)(b) and s 34(2)(h) displace the power conferred on the Commissioner by s 21(1) and s 20(1) to impose restrictions, limitations and conditions on an approval of a range?
7.3.4 Should the power of the Commissioner to approve a range be implied in the Firearms Act?
7.3.5 The scope of the power of the Commissioner to impose restrictions, limitations or conditions on an approval of a range pursuant to s 21(1) (on an initial approval) and s 20(1) (on an existing approval)
8.0 Ground 1 of the appeal ‑ procedural fairness
8.1 The requirements of procedural fairness
8.2 Did the Tribunal breach the hearing rule?
9.0 Should the matter be remitted to the Tribunal differently constituted for reconsideration?
10.0 Conclusion – the orders of the court
SMITH J:
1.0 The appeal and the result
The Commissioner of Police seeks leave to appeal from a final decision of the State Administrative Tribunal.
The appeal arises from a decision by a delegate of the Commissioner under the Firearms Act 1973 (WA) to amend conditions on an existing approval of a shooting range.
Pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA), a party may appeal from a decision of the Tribunal on a question of law only with the leave of the court. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that leave be granted.[1] It will be relevant to consider whether an applicant seeking leave to appeal has shown that there is sufficient doubt with respect to the decision under appeal to justify the grant of leave.[2]
[1] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] ‑ [18] (Buss JA, Wheeler & Pullin JJA agreeing).
[2] Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].
For the reasons that follow, I would grant leave in respect of both grounds of appeal, allow the appeal and remit the matter to the Tribunal to be differently constituted to be heard according to law.
2.0 Background
The shooting range the subject of this proceeding is located on Ella Valla pastoral station. Thayli Pty Ltd is the leaseholder of Ella Valla. Ella Valla station is situated about 87 km south‑east of Carnarvon and is approximately 188,000 acres in size.
On 29 September 2015, Thayli Pty Ltd obtained approval from the Commissioner for the range on Ella Valla to be an 'approved range' within the meaning of the Firearms Act.
Mr Shane Aylmore operates a tourism business on Ella Valla and is the sole director of Thayli Pty Ltd. The business offers members of the public the opportunity to use the range for a fee. The public may use their own firearm (if licensed) on the range, or because the range is an approved range the public may use a firearm owned by Thayli Pty Ltd (who holds a corporate firearms licence) pursuant to the exemption conferred by s 8(1)(m) of the Firearms Act. The exemption authorises persons who are not licensed to use a firearm of a licensed person, or certain entities, on an approved range (approved by the Commissioner) that is properly constructed and maintained.
On 27 August 2018, Inspector J Andrijasevich (as a delegate of the Commissioner acting pursuant to s 5A(3) of the Firearms Act) issued a notice to vary the conditions imposed upon the Ella Valla station range.[3]
[3] Book of documents accompanying appeal, vol 2, pages 3 ‑ 10.
The varied conditions were issued to the approval holder, Mr Shane Aylmore, as director of Thayli Pty Ltd.
The varied conditions imposed by letter dated 27 August 2018, seek to regulate a number of matters and activities on the Ella Valla range that include:[4] the operating procedures according to which the range is to be operated (which include operational safety measures and bushfire management); the maintenance of a written sign‑in register; the type of firearms that may be used on the range; the construction of the range; maintenance of the range; the range to be operated and supervised by a suitably trained range safety officer; public liability insurance; and recording and making available information of persons who use the range to the Commissioner.
[4] Book of documents accompanying appeal, vol 2, pages 3 ‑ 10.
On 18 December 2018, Inspector Andrijasevich, as delegate of the Commissioner, reconsidered his decision (contained in his letter to Mr Shane Aylmore dated 27 August 2018) pursuant to an order made by the Tribunal on 4 December 2018 inviting the Commissioner to reconsider his decision pursuant to s 31(1) of the State Administrative Tribunal Act. The reconsidered decision dated 18 December 2018 was the subject of the review before the Tribunal.[5]
[5] Book of documents accompanying appeal, vol 2, pages 11 ‑ 14.
3.0 The question put to the Tribunal on the preliminary issue
The following question of law was referred by the Tribunal to be heard as a preliminary issue pursuant to s 51A of the State Administrative Tribunal Act:[6]
Whether the Commissioner of Police is empowered under s 20 of the Firearms Act 1973 (WA) to impose conditions on an approval for a shooting range although no regulations are prescribed pursuant to s 34(2)(h) of the Act.
[6] The Tribunal, however, for a reason that is not explained amended the preliminary question by posing the question as: 'The preliminary issue for the Tribunal to determine is whether the respondent is empowered under s 20 of the Act to impose conditions the subject of this proceeding on an approval for the range on Ella Valla although no regulations are prescribed pursuant to s 34(2)(h) of the Act'. (emphasis added)
The Tribunal decided to deal with the preliminary question separately because it was accepted by the Tribunal that the parties would not, in the assessment of the Tribunal, be able to turn their mind effectively to the detail of the conditions until and unless the preliminary question was resolved.[7]
[7] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [9] ‑ [10].
The Tribunal determined that its task was to be completed by two separate hearings, whereby following the first hearing, reasons for decision would be delivered on the preliminary issue only. Thus, the first hearing was to be confined to a hearing of the preliminary issue as to whether the Commissioner is empowered under s 20 of the Firearms Act to impose the conditions the subject of the approval, and the second (and subsequent hearing following the determination of the preliminary issue) was to be a hearing as to the merit of each of the varied conditions imposed by the notice dated 18 December 2018.
Consequently, the issue required to be determined by the Tribunal was whether in the absence of regulations prescribed by the Governor pursuant to s 34(2)(h), it was open to the Commissioner to impose conditions on an approval granted of a shooting range.
The parties to this appeal agree the preliminary issue turns solely on the proper construction of the provisions of the Firearms Act.
4.0 The statutory text referring to the use of firearms on a range
4.1 Relevant statutory text
The following provisions of the Firearms Act were considered by the Tribunal when approaching the task of construction raised in the preliminary issue:
8. Exemptions from licensing requirements
(1)No licence under this Act is required ‑ …
(m)by a person who, with the permission of the owner of the firearm on an approved range that is properly constructed and maintained, has in his possession, handles or uses a firearm or ammunition for a firearm that is the property of, or is the property of a member of, an approved club or other approved organisation and is held by that owner under a licence or permit granted under this Act.
(2)In subsection (1) ‑ …
approved means approved by the Commissioner either generally by notice in the Gazette or specifically by notice in writing;
20. Revocation, cancellation, refusal to renew and variation
(1)Where the Commissioner is satisfied ‑
(a)that a person who is the holder of a licence, permit or approval under this Act ‑
(i)obtained it by fraud or deception; or
(ii)has breached or failed to observe a restriction, limitation or condition to which it is subject; or
(iii)could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it;
or
(aa)that harm may be suffered by any person as a result of a person retaining or regaining possession of a firearm or ammunition; or
(ab) that a licence or permit was issued, or an approval was given, incorrectly because of an administrative or procedural error; or
(ac) that to do so is in the public interest; or
(ad) that a person holding or applying for the renewal of a licence, permit or approval has ‑
(i)failed to comply with a regulation providing for the manner in which a photograph of that person's face is to be supplied for inclusion on an Extract of Licence; or
(ii)failed to give the Commissioner, when requested in writing by a member of the Police Force to do so, a statement in the prescribed form as to what the person has done to ensure that any firearms or ammunition in the person's possession are stored in accordance with this Act; or wash
(iii) contrary to section 23(9)(e), refused to permit a member of the Police Force to inspect storage facilities;
or
(b)that a particular firearm is unsafe or unfit for use; or
(c)that a particular place or premises, range or gallery does not comply with the requirements of this Act; or
(d)that the circumstances in which his approval under this Act was given in relation to any person or matter no longer prevail,
he may refuse to renew or may revoke any licence, permit or approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon.
(1a)Where the Commissioner, in writing, requests a person who is the holder of any licence, permit, or approval to ‑
(a)supply information, or further information, that the Commissioner considers to be necessary in order to determine whether or not the holder remains a fit and proper person; or
(b)make a submission to show cause why the power of revocation should not be exercised,
if that information is not supplied, or that submission is not made, to the Commissioner in a form acceptable to the Commissioner within 28 days, or such further period as the Commissioner may approve, the licence, permit or approval may be revoked.
(2)A restriction, limitation or condition imposed under this Act may be varied from time to time.
(3) The Commissioner shall give notice in writing to the holder, where any licence, permit or approval issued or granted under this Act is revoked or varied, of the reasons for the decision.
(4) Any licence, permit or approval issued or granted under this Act may be cancelled if the holder so requests.
21. Restrictions, limitations and conditions
(1)A licence, permit or approval issued or granted under this Act may be made subject to restrictions, limitations or conditions which shall be ‑
(a)either specified in the licence, permit or document evidencing the approval or, whether imposed at the time of issue or grant or subsequently, specified in a supplementary document; and
(b)entered in the Register.
(2)A person, whether or not the holder of that licence, permit or approval, who commits a breach of, or fails to observe, a restriction, limitation or condition to which a licence, permit or approval issued or granted under this Act was made subject, and who is a person who ought reasonably to have known of the existence of that restriction, limitation or condition, commits an offence.
Penalty: Imprisonment for 18 months or a fine of $6 000.
34. Regulations
(1)The Governor may make regulations in regard to any matter or for any purpose for which regulations are prescribed or contemplated by this Act, and may make all such other regulations as may in his opinion be necessary or expedient for giving effect to the provisions of this Act, and for the due administration thereof.
(2)Without limiting the general power conferred by subsection (1), the Governor may make regulations for or with respect to all or any of the following matters ‑
(a)the application for and the issue, grant, renewal, cancellation or revocation of licences, permits and approvals under this Act; and
(b)the restrictions, limitations and conditions that may be imposed on any licence, permit or approval; and
…
(h)the construction and conduct of shooting galleries and ranges; and
…
(j)any other purpose that the Governor deems necessary for safeguarding the public and the public interest in relation to firearms and ammunition.
(3)Regulations made under this Act may ‑
(a)be of general or limited application, according to time, place or circumstance;
(b)prescribe fees to be paid in relation to the issue, grant, variation or renewal of licences, permits and approvals, the fees that are payable in relation to other matters under this Act, the persons liable, and the method of recovery of amounts not duly paid either by the disposal of the firearms or ammunition to which they relate or otherwise;
(c)impose upon any person or class of person a discretionary authority;
(d)provide penalties, not exceeding $2000, for the contravention of any regulation.
4.2 The term 'range'
The term 'range' is not defined in the Firearms Act. The term 'range' appears only in s 8(1)(m), s 20(1)(c) and s 34(2)(h).
In the decision of the Tribunal, a 'range' was described as follows:[8]
In its widest description a range can imply any area or space where a firearm is discharged, for example, for target shooting or sighting. In the context of stations and farms, this may vary from a highly sophisticated range where high calibre firearms are discharged to a very rudimentary space where small calibre firearms or handguns are discharged.
…
Range in its most general description could refer to any space which is used to discharge a firearm or handgun. This could vary from a highly sophisticated rifle range where competitions are held to a rudimentary space where small calibre firearms or handguns are sighted or discharged. It would not be surprising if all stations and many farms in Western Australia have an area that falls within the widest definition of 'range'.
[8] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [18], [35].
The Commissioner does not take issue with this description. However, Thayli Pty Ltd contends that the description is too wide. It says that the word 'range' must take its meaning from the other provisions of the Firearms Act, in particular, s 8(1)(m) which refers to an approved club and an approved organisation. In this context it says a range that is capable of being a place that is an approved range is a place where organised shooting occurs with a degree of frequency and with a degree of attendance of shooters. Thus, it is said to follow that the intention of Parliament when empowering the Commissioner to approve a range is that such a provision should not apply to a location on a farm where a farmer sets up tin cans to shoot in a paddock on a Saturday afternoon.
In the context where the exemption in s 8(1)(m) is only to apply to an approved range that is properly constructed and maintained, the construction contended by Thayli Pty Ltd should be accepted. If an area or space is not capable of being properly constructed and maintained by an approval holder, such a range could not be capable of being approved by the Commissioner and thus constituting an 'approved range'.
It is accepted by both parties that there is no statutory requirement for a range to be approved by the Commissioner. It is also accepted that unless a range is approved by the Commissioner, the exemption in s 8(1)(m) of the Firearms Act does not apply.
5.0 The findings made by the Tribunal relevant to the disposition of the appeal
In written and oral submissions to the Tribunal on the preliminary issue, counsel for the Commissioner made a submission that it was open for conditions to be imposed on the approval of a range either by conditions imposed by the Commissioner pursuant to the power conferred by s 20, s 21 or by the making of regulations by the Governor pursuant to s 34(2) of the Firearms Act. The Tribunal misconstrued this submission as a submission that the Commissioner can elect as to whether the Commissioner wishes to regulate ranges by way of regulation or condition.
Thayli Pty Ltd made a submission to the Tribunal that if the Commissioner regulates a range, it must be by way of the legislative effect of regulations and that any condition imposed (on an approved range) must derive only from regulations.
The Tribunal rejected the arguments put by both parties and found that:
(1)Section 34(2)(h) of the Firearms Act specifically empowers the Commissioner to 'enact' regulations in respect to the 'construction and conduct' of ranges. The same power applies to shooting galleries. This power to regulate is in keeping with contemporary statutes where the leave of detail to regulate a particular activity is delegated to the responsible ministry, on condition that the subsidiary legislation is tabled in Parliament.[9]
[9] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [51].
(2)The Commissioner has not enacted regulations for ranges in general or for the range on Ella Valla in particular. The Commissioner has been encouraged by the Auditor General and the Law Reform Commission to address what appears to be a lacuna in the firearm regulatory scheme. It is agreed that: the conditions imposed on Ella Valla range have not been tabled in Parliament; the conditions are not made pursuant to regulations; the conditions have not been open to public comment and scrutiny; and the conditions imposed on Ella Valla do not have general application to all ranges.[10]
[10] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [52].
(3)Section 8(1)(m) does not seek to regulate ranges in general. The subsection specifically identifies a category of persons who are exempted from the requirements of being licensed to use or possess a firearm on an approved range. Several subcategories of persons are exempted by s 8 of the Firearms Act, including those who with the permission of the owner of the firearm on an approved range that is properly 'constructed and maintained', is in possession or uses a firearm: s 8(1)(m). This provision does not refer to the fit and properness of the owner of the land on which the range is situated. The subsection refers to the owner of the firearm that the exempted person is intending to use on a range that had been approved.[11]
[11] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [63].
(4)The primary effect of s 8(1)(m) is to identify categories of persons that are exempted from being licensed. The subsection does not constitute a basis to issue general conditions on a range. The approval power of the Commissioner pursuant to s 8(1)(m) of the Firearms Act is enlivened not by the owner or lessee of land seeking approval of a range, but rather by the owner of a firearm seeking exemption of a category of persons to handle its firearm at an approved range. From this flows that any conditions on a range remain binding only for as long as the exemption sought is applicable to the particular range.[12]
[12] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [64].
(5)The Commissioner may exempt a category of persons after having inspected and approved a range. This explains why there is no general prescribed process for an owner or lessee of land on which a range is located to obtain approval, licence or permission for the range pursuant to s 8(1)(m) of the Firearms Act. It is the holder of the firearm licence who seeks exemption of a category of persons, who must identify an applicable range for purposes of approval.[13]
[13] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [65].
(6)The approval of the range by the Commissioner and any conditions imposed in regard to the range are limited to the construction and maintenance of the range for the purpose of the exemption sought.[14]
(7)The establishment and general operation of a range is not regulated by the Firearms Act other than pursuant to s 8(1)(m) of the Firearms Act. In s 8(1)(m) of the Firearms Act the relevant power only deals with the construction and maintenance of the range and that approval only applies if an application is sought for an exemption.[15]
(8)The authorisation of the Commissioner is to approve the range if the Commissioner is satisfied that the range is 'properly constructed and maintained'. These words do not import a general power for the Commissioner to impose conditions on Thayli Pty Ltd (approval holder) of the nature, scope and scale as it is seeking to do in this proceeding.[16]
(9)The condition‑making power of the Commissioner (to impose conditions on an approval of a range) is narrowed by the working of s 8(1)(m) of the Firearms Act. The words 'properly constructed and maintained' must be taken within their ordinary meaning as referring to the physical characteristics of the range and the ongoing maintenance of the range.[17]
(10)Three curious aspects arise from s 8(1)(m), namely: the subsection does not refer to the fit and properness of the person on whose land the range is located; it is the range that is approved only in regard to its construction and maintenance; and the approval of the range is only current for as long as an exemption pursuant to s 8(1)(m) of the Firearms Act is sought.[18]
(11)On proper construction the 'approval' under s 8(1)(m) is therefore limited to the range itself and more specifically to the construction and maintenance thereof.[19]
(12)The Tribunal does not accept the contention of Thayli Pty Ltd that no conditions may be imposed on Ella Valla unless it is done pursuant to regulations.[20]
(13)On the proper construction of s 20 of the Firearms Act, the Commissioner may approve and impose conditions on the range on Ella Valla, but those conditions are limited in scope by s 8(1)(m) which relate to the construction and maintenance of the range for purposes of an exemption from firearm licensing requirements. The conditions only apply if and for as long as the range is sought to be used by persons exempted.[21]
(14)The Tribunal does not accept the construction proposed by the Commissioner that pursuant to the public interest (s 20(1)(ac)), a general source of condition‑making power is available for the Commissioner.[22]
(15)The Tribunal accepts that the Commissioner may impose conditions that are directly applicable to the construction and maintenance of the range on Ella Valla for use by an exempted category of persons, but the Commissioner has exceeded the scope of its powers by also seeking to regulate on the basis of 'public interest', a wide range of other matters that bear no resemblance to the construction and maintenance of the range.[23]
[14] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [66].
[15] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [67].
[16] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [68].
[17] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [69].
[18] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [70].
[19] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [71].
[20] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [74].
[21] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [86]; see also [75], [90] and [91].
[22] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [87].
[23] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [87].
Despite the fact that the only issue before the Tribunal for determination was the preliminary issue, the Tribunal without notice to the parties went on to find that all of the conditions of the approval must be set aside, and made a final order that the matter be referred back to the Commissioner to reconsider in light of his statutory powers.
6.0 The grounds of appeal
6.1 Ground 1 - procedural fairness
In ground 1, the Commissioner contends the Tribunal erred in law by denying him procedural fairness in circumstances where:
(a)the Tribunal had stated that the preliminary question to be determined would be whether the Commissioner is empowered under s 20 of the Firearms Act to impose conditions on an approval for a shooting range although no regulations are prescribed pursuant to s 34(2)(h) of the Firearms Act;
(b) the Commissioner had written to the Tribunal to confirm the preliminary question; and
(c)the Tribunal had confirmed the preliminary question at the commencement of the hearing, and the Tribunal then decided matters additional to the preliminary question, being:
(i)the scope of the power to impose conditions on an approval for a shooting range under the Firearms Act; and
(ii)whether the conditions imposed on the approval the subject of the review application were within the scope of any such power,
without notifying the Commissioner that it intended to decide those additional matters, or affording him an opportunity to make submissions in respect of those additional matters.
6.2 Ground 2 - construction of the Firearms Act
In ground 2, and in the alternative to ground 1, the Commissioner contends that the Tribunal erred in law by determining that the only conditions that may be imposed by the Commissioner on the approval of a shooting range under the Firearms Act are those that are consistent with s 8(1)(m) of the Firearms Act, namely conditions in relation to the construction and maintenance of the range for as long as access to the range is sought by exempted persons.
7.0 Ground 2 of the appeal ‑ the construction issue - is an error of law demonstrated?
7.1 Principles of construction - general principles - a purposive approach
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[24] The importance of construction of legislation is to begin in the text itself by regard to its context and purpose. Statutory context within immediate provisions and the whole of an Act is to be considered from the beginning of the task.
[24] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) MVR 306, 317 [46] (Buss P, Murphy JA & Beech J agreeing).
The Court of Appeal summarised these well-known principles in Australian Unity Property Limited v City of Busselton:[25]
The first aspect is the imperative to give primacy to the language which the legislating body has chosen to use. As the plurality observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.'
This focus on the statutory text may be seen as an aspect of the rule of law. It recognises and preserves the role of the legislature, acting within constitutional constraints, in identifying the policy which legislation is to pursue by requiring that effect be given to the chosen text. This point was noted by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:
'The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of the acts of the Legislature' … it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.'
Additionally, focus on the statutory text facilitates the comprehension of the meaning of legislation by persons whose conduct it regulates. As French CJ observed in Alcan:
'The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [(1991) 172 CLR 319 at [340] as:'
"'dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.' In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy."
[25] Australian Unity Property Limited v City of Busselton [2018] WASCA 38 [79] ‑ [81] (footnotes omitted).
Thus, context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.[26]
[26] See also CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 [408] (Brennan CJ, Dawson, Toohey, Gummow & Gaudron JJ agreeing); Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) MVR 306 [47] (Buss P, Murphy JA & Beech J agreeing); see also Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102 [85] ‑ [87] (Buss P & Beech JA).
Regard must also be given to the purpose and object of the text to ascertain the intention of the legislature in making the law in question. Recently, Gageler J described the responsibility of a court in this regard in Work Health Authority v Outback Ballooning Pty Ltd:[27]
'[O]ne of the surest indexes of a mature and developed jurisprudence' is 'to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning'. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly 'to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. That a finding of purpose can involve a 'contestable judgment' only heightens that responsibility.
'The words "intention", "contemplation", "purpose", and "design" are used routinely by courts in relation to the meaning of legislation' and 'are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked'. Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of a constructional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making a constructional choice, is to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to 'the constitutional relationship between courts and the legislature'.
[27] Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 363 ALR 188 [76] ‑ [77] (footnotes omitted).
However, in construing a legislative provision the task is not to have regard to any assumptions about the desired operation of the relevant provisions of an Act.[28]
7.2 Did the Tribunal err in determining that the power of the Commissioner to impose conditions on the approval of a range is restricted by the operation of s 8(1)(m) of the Firearms Act?
[28] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J); see also Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
The parties are united in that they both say the answer to this question is yes.
However, the parties diverge in their approach to the construction of the power of the Commissioner to issue or grant conditions, restrictions and limitations that are to apply to the approval of a range.
The Commissioner points out that it is not entirely clear from the reasons for decision given by the Tribunal whether it considered s 8(1)(m) or s 20(1) to be the source of the power.[29]
[29] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 [75], [86], [90], [91] and [102].
Thayli Pty Ltd contends that the power of the Commissioner to impose conditions on an approved range can only arise if regulations are made pursuant to s 34 of the Firearms Act.
Thayli Pty Ltd also makes a submission that whilst it concedes that the Commissioner has power to approve a range, the power to do so does not arise under, or pursuant to, any express provision of the Firearms Act. The Commissioner says this power is inferred. I return to this issue in [7.3.4].
Whilst the Tribunal in determining the preliminary issue started with a consideration of the text of the Firearms Act, where the Tribunal fell into error was that it attributed a meaning to s 8(1)(m) that cannot be found within its text, and within the context and purpose of the Firearms Act. In particular, the Tribunal failed to properly have regard to the purpose of the provision itself within the immediate context of s 8 and by regard to the context of the scheme of the Firearms Act, that is, by reference to the language of the whole of the Firearms Act.
The long title of the Firearms Act provides that it is an Act to make provision for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with, or manufacturing firearms and ammunition, the repeal of the Firearms and Guns Act 1931 (WA), and for incidental and other purposes. Consequently, the purpose of the Firearms Act is to make provision for, inter alia, 'control and regulation'. 'Control' means 'to exercise restraint or direction over' and 'to hold in check'.[30] Regulation in the context that it appears in the long title must necessarily mean to 'regulate'. To 'regulate' in this context is to impose constraints on the authority to use firearms and ammunition by the enactment of the provisions that follow the long title and any regulations made under the Firearms Act.
[30] Bent and Commissioner of Police [2011] WASAT 143 [45].
In McGee v Chitty,[31] Mazza J relevantly observed that the purpose of the Firearms Act as a whole is to protect the public from the harm that firearms may cause, while recognising that the ownership and use of firearms is to be highly controlled by those in the community who have a legitimate reason for owning or using a firearm. In particular, his Honour said:[32]
[31] McGee v Chitty [2011] WASCA 125.
[32] McGee v Chitty [2011] WASCA 125 [30] ‑ [41] (Pullin & Newnes JJA agreeing).
It scarcely needs to be said that, in the wrong hands, firearms are potentially dangerous and lethal things which can be misused in many different ways with potentially catastrophic consequences. However, there are those in the community who have a legitimate reason for owning or using a firearm. Accordingly, firearms are not totally banned. Rather, their ownership and use is highly controlled and regulated in the Act and the Regulations.
The Act primarily controls the ownership and use of firearms by a system of licences, permits and approvals. For the purposes of this case, it is only necessary to refer to licences.
Unless exempted by s 8 of the Act, a person or organisation must have a licence under s 16 to possess, carry, use, deal, repair, manufacture or collect a firearm. The power to issue a licence is in the discretion of the Commissioner of Police (the Commissioner) or his delegate: s 5 and s 5A.
The Commissioner cannot issue a licence if he or she is of the opinion that it is undesirable in the interests of public safety or the person is not a fit and proper person to hold a licence: s 11(1)(b) and s 11(1)(c). Nor can a licence be issued to a person who is not shown to have a genuine reason for acquiring or possessing the particular firearm for which the licence is sought: s 11A(1), s 11A(2) and s 11A(3). A genuine reason for having a firearm includes membership of an approved shooting club, hunting or shooting of a recreational nature on land when the owner has given written consent, and when a firearm is required in the course of a person's occupation.
Before a firearm licence is issued, the appellant must be mentally and physically fit: s 11(3)(b) and s 18(4b).
The Commissioner may refuse an application for a firearms licence if an applicant fails to provide, when requested, a statement as to what the applicant has done or intends to do to ensure that any firearms in the applicant's possession are stored in accordance with the Act: s 11(7)(b).
The Commissioner is empowered to revoke a firearms licence in certain circumstances, including when he or she is satisfied that harm may be suffered by any person as a result of a person retaining possession of a firearm: s 20(1)(aa).
The Act contains a number of regulation‑making powers. Amongst them is s 11C which provides that regulations may restrict the issue or renewal of a licence. Section 34(2) includes the power to make regulations for the safe custody and control of firearms. It is under this power that reg 11A was created.
The Act was extensively amended and strengthened by the Firearms Amendment Act 1996 (WA) (the Amendment Act). The Amendment Act was passed in the wake of the tragic events which occurred at Port Arthur in Tasmania on 28 April 1996. Following those events, the Australasian Police Ministers' Council convened a special meeting on 10 May 1996 and passed various resolutions, with the aim of achieving more stringent and uniform firearms laws in the Australian States and Territories. Amongst the resolutions which were passed, was a resolution that all firearms be stored in secure conditions. The ministers agreed that legislation should be effected in each jurisdiction requiring firearms to be stored in a locked receptacle or safe. Further, when the firearms were temporarily away from their usual place of storage, it was agreed that the legislation should provide that reasonable precautions be taken for their safekeeping: Australasian Police Ministers' Council, Special Firearms Meeting, Canberra, 10 May 1996, resolution 8. Subsequent meetings of the counsel amended some aspects of the resolutions passed on 10 May 1996, but no amendment was made to the resolution concerning the storage of firearms.
Following the Australasian Police Ministers' Council meeting, a Bill to amend the Act was introduced into the Western Australia Parliament which, in due course, became the Amendment Act. The then Minister for Police, Mr R Wiese, said, in his second reading speech on 26 September 1996 in the Legislative Assembly, that the Bill was designed to rectify 'numerous existing anomalies and inadequacies' in the Act, and to incorporate the resolutions made by the Australasian Police Ministers' Council: Western Australia, Hansard, Legislative Assembly, 26 September 1996, 6301.
Section 23(9) was amended by the Amendment Act. A comparison of s 23(9) prior to and after this amendment reveals a marked difference. Unlike the old s 23(9), the new s 23(9) imposed duties with respect to the storage and safeguard of a firearm.
Having regard to the Act as a whole and its recent history, it is clear that its purpose is to protect the public by, amongst other things, imposing the most stringent requirements for the security and storage of firearms: Turner v Keegan [2001] WASCA 9 [17].
EM Heenan J in Knight v Commissioner of Police[33] also relevantly observed that the dominant purpose of the licensing scheme provided for in the Firearms Act is to protect public safety (in the context of considering the necessary elements the Commissioner is to be satisfied of when determining that an applicant is a 'fit and proper person' to be granted a firearms licence). In making this observation his Honour said:[34]
[T]he decision of the SAT in Wignall v Commissioner of Police [2006] WASAT 206 contains a detailed review of the elements which, in that particular case, were necessary for the Commissioner to be satisfied that the applicant was a 'fit and proper person' to be granted a firearms licence taking into account his general background and character. In refusing the review sought by the applicant and upholding the decision of the Commissioner to refuse to grant the firearms licence in that case, the joint reasons of the SAT, of which Barker J was president, at [320], said that it was not desirable in the interests of public safety that that applicant be issued with a firearms licence. This is an illustration of how the focus of considerations relating to the grant or revocation of a firearms licence under the Firearms Act is on public safety. That under the Firearms Act the dominant purpose for disqualification of holding a licence is public safety was stated expressly by McKechnie J in Coumbe v Whittaker [1999] WASCA 151. In Schamotta v The Queen [2002] WASCA 262 [11] the observations of Murray J in Horsman v Bishop [2000] WASCA 316 at [31] were cited with approval for the proposition that a disqualification order under pt 15 of the Sentencing Act which forms part of the sentence clearly had a punitive content. However, also in Schamottaat [13] Murray and Wheeler JJ and Burchett AJ referred to the dominant purpose of disqualification in relation to the powers under the Firearms Act 1973 (WA) being for public safety before going on to say:
'the purpose of securing public safety must be understood in a broad sense, as extending to justify a disqualification for unfitness demonstrated by disregard of legal obligations relevant to the use or possession of firearms, and of course, any propensity which might make such use or possession potentially dangerous.'
[33] Knight v Commissioner of Police [2011] WASC 93.
[34] Knight v Commissioner of Police [2011] WASC 93 [30] (footnotes omitted).
Section 8 contains a lengthy list of exemptions from licensing requirements in the Act.[35] As a provision that creates exemptions, or put another way exclusionary provisions (among other exclusionary provisions),[36] it is a provision that contains a number of express qualifications to the provisions of the Firearms Act that prescribe the requirements to enable persons to obtain a licence, permit or approval to possess, use, deal with, or manufacture, firearms and ammunition.
[35] I recently considered the effect of s 8 of the Firearms Act, in DJC v Taylor [2019] WASC 235 [11] ‑ [12], in determining whether leave of the court should be granted to set aside a conviction against DJC, of having delivered firearms to an agent of Australia Post while such a person (to whom the firearms were delivered) was not the holder of a licence or permit pursuant to the Firearms Act, entitling them to possess the firearms, and was not a person to whom s 8 and s 30(2) applied; and observed that s 8 provides for a lengthy list of the circumstances pursuant to which persons are exempted from the requirement to hold a licence under the Act.
[36] See for example s 12(2), s 12(3) and s 12(4) and s 30(2).
It is within this context that the work that s 8(1)(m) has to do can be ascertained. Where the exemption in s 8(1)(m) applies, following the grant or issue of an approval of a range, a person in possession of a firearm within the circumstances prescribed in this subsection is excused from holding a licence and such possession (in these circumstances) would constitute a defence to a charge of an offence under s 19 of the Firearms Act.
The express words creating the exemption from licensing requirements in s 8(1)(m) are:
(a)a person who has in his possession, handles or uses a firearm or ammunition for a firearm;
(b)on an approved range that is properly constructed and maintained; and
(c)with the permission of the owner of the firearm, that is the property of, or is the property of a member of, an approved club or other approved organisation, and is held by that owner under a licence or permit granted under the Firearms Act.
Each of the three requirements of s 8(1)(m) prescribes the preconditions for the exemption from the requirement for a licence. Unless the preconditions are met, the exemption does not apply.
Counsel for Thayli Pty Ltd describes the exemption in s 8(1)(m) as the 'club exemption'. Such characterisation is a misnomer as the exemption does not apply to an approved club or an approved organisation, but to a person who is in the possession of, or who handles or uses a firearm that is owned by a member of an approved club or by an approved organisation, and the owner of the firearm (being either the member of the approved club or the approved organisation) holds a licence or permit under the Firearms Act.
It emerges from the express words of s 8(1)(m) that until the Commissioner has approved a range that this provision has no work to do. Consequently, this provision contemplates that there must be a prior approval in place before the provision can operate according to its terms. It is also clear that s 8(1)(m) does not expressly confer upon the Commissioner a power to approve a range.
As the Commissioner points out in his written submissions, the legislative purpose embodied in the requirement in s 8(1)(m) for approved ranges to be properly constructed and maintained is that persons who are not the holders of a licence under the Firearms Act (and, presumably, are likely to be less experienced users of firearms) should not be able to use a firearm otherwise than on properly constructed and maintained ranges. The effect of s 8(1)(m) is that it exempts users of an approved range from the restrictions of the Firearms Act, so long as the range is also properly constructed and maintained.
When the effect of s 8(1)(m) is understood within its context and purpose, it is clear that the provision cannot properly be construed as a provision which limits the power of the Commissioner to approve a range. However, for the reasons considered below, regard is to be had to s 8(1)(m) when construing the scope of the Commissioner's power when initially approving a range subject to restrictions, limitations or conditions (under s 21(1)) or imposing reasonable restrictions, limitations or conditions on an existing range approval (under s 20(1)).
For these reasons, an error of law in the reasoning of the Tribunal is established. However, a finding on this point does not dispose of the appeal, as the central issue in the preliminary question is whether the source of the power of the Commissioner to approve a range, and the scope of conditions that can be imposed by the Commissioner on an approval, is to be found only in regulations made pursuant to s 34(2) or may also be found in s 20(1) and s 21(1) of the Firearms Act.
7.3 The power to approve a range and to impose conditions in respect of the operation of a range and the scope of the power to impose conditions
7.3.1 One power to approve conditions or three distinct powers? - the parties' arguments
As the central issue in contention between the parties in the hearing of the preliminary issue before the Tribunal was whether the Commissioner is empowered under s 20(1) of the Firearms Act to impose reasonable conditions on an existing range approval, it is important that this court rule on the arguments put by the parties before the matter is remitted to the Tribunal.
Section 34(2) provides that the Governor 'may make regulations for or with respect to all or any of the following matters'. One matter enumerated is found in s 34(2)(h) which provides for 'the construction and conduct of shooting galleries and ranges'. Pursuant to s 60 of the Interpretation Act 1984 (WA), the Governor can only make regulations with the advice and consent of the Executive Council. However, no such regulations as may be specified by the subject matter of s 34(2)(h), have been made by the Governor.
The Commissioner argues that:
(a)in the absence of any regulations, the initial approval of any range is to be granted pursuant to the general power conferred by s 21(1) of the Firearms Act to grant an approval which may be made subject to restrictions, limitations or conditions which are required to be either specified in the document evidencing the approval or specified in a supplementary document and entered in the Register;[37]
(b)the power to impose conditions on an existing approval of a range is conferred by s 20(1) of the Firearms Act. The effect of this provision is that where the Commissioner is satisfied of one of the listed circumstances in s 20(1)(a) to s 20(1)(d) he may refuse to renew or may revoke any approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon; and
(c)as is evident from the text of s 20(1), the power to impose conditions on an existing approval can only be exercised when the Commissioner is satisfied that one or more of the circumstances in s 20(1)(a) to s 20(1)(d) arises; and the conditions imposed must be reasonable.
[37] Pursuant to s 31(1) of the Firearms Act, the Commissioner is required to cause to be compiled and maintained in the prescribed manner a register or registers of all applications made for a licence, permit or approval under the Act specifying whether or not the application was refused, the reasons for any refusal, and any such other particulars as are prescribed.
Thayli Pty Ltd argues that:
(a)whilst the Commissioner has power to approve a range, the effect of the omission to make regulations, for the construction and conduct of ranges, is that ranges are, and have always been, unregulated;
(b)the identification of the power to make regulations for 'the construction and conduct of shooting galleries and ranges' in s 34(2)(h) reveals Parliament intended that the regulation of the construction and conduct of shooting galleries and ranges (that is, the conditions that are to attach to any approval by the Commissioner of a range) are to be made and take effect only by regulations;
(c)section 34(2)(h) is a typical example of an Act of Parliament laying down only the main outlines of policy and indicating an intention of leaving it to the Governor to work out that policy by specific regulation.[38] That is to say, the Firearms Act envisages that a breach of an enforceable rule relating to the construction and conduct of a shooting range will be a breach of a regulation dealing with that subject matter; and the breach would make the offender liable to a penalty prescribed under s 34(3)(d);
[38] Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402, 410.
(d)if the argument put by the Commissioner is accepted then he is able by administrative action (by the exercise of a power to condition a range approval) to achieve the same regulatory objectives as that intended to be achieved by regulation. Such a construction would have the effect of displacing the role of the Governor's regulation‑making power. In the absence of express words that confer such an intention, it is said that such a construction is not open, and if accepted would result in an odd, if not perverse, result;
(e)because a range approval merely identifies a place at which an activity is approved, an approval (by the Commissioner) cannot purport to, and cannot impose conditions on the conduct of an approved place (the range). It is only the approval itself that can be conditioned. The Commissioner's argument presupposes, wrongly, that a stipulation about the conduct of a shooting range can actually be a 'condition, restriction or limitation' of a range approval. But, by definition, a 'restriction, limitation or condition' of an approval can only restrict, limit or condition that which is approved. Whatever the source and scope of the power to condition an approval of a shooting range, a stipulation that purports to regulate the construction or conduct of a shooting range does not condition, restrict or limit the approval of the range. This is because a range approval merely identifies a place. An approval does not purport to and does not permit the construction of a range or any shooting on it;
(f)the source of the Commissioner's claimed power to impose conditions on or in respect of an approval of a range is the creation of obligations by administrative action (by private rule) that is by way of a private document (a notice) that is inconsistent with the creation of an enforceable rule by way of regulations that are open to scrutiny by the public through the regulation‑making process;
(g)if the source of a rule is in a private document the rule could only be enforced by s 21(2), which creates the offence of breaching or failing to observe a restriction, limitation or condition to which a licence, permit or approval was made subject, the content of the rule would be a matter of fact. The prosecution could use the averment provisions of s 29(1)(d) of the Firearms Act to prove that a particular approval issued or granted was, at a particular time, subject to a particular restriction, limitation or condition. An element of the offence under s 21(2) is that the offender 'is a person who ought reasonably to have known of the existence of that restriction, limitation or condition'. Parliament intended that the only rules regulating the conduct of shooting ranges and galleries (and other matters described in s 34) are to have the status of law, (and be the subject of a criminal offence) are restrictions, limitations or conditions created by subsidiary legislation, ignorance of which is no excuse;
(h)the Commissioner is attempting to control the conduct of shooting on an approved range by an indirect and circuitous route, that is, by purporting to make the availability of the s 8(1)(m) exemption (from the requirement to have a firearms licence when in possession of a firearm) subject to certain provisos. His method is to purport to condition, restrict or limit one of several factual preconditions that, together, enliven the exemption: that the possession be on an 'approved range'. The method fails because the purported conditions do not in fact condition, limit or restrict the range approval. But that does not mean the Firearms Act does not permit the regulation of the construction and conduct of shooting ranges. That objective is achieved by clear and orthodox means by the making of regulations pursuant to s 34(2)(h);
(i)section 21(1) does not empower the Commissioner to impose restrictions, limitations or conditions on an approval, permit or licence. The text of this subsection does not contain any words conferring power upon the Commissioner. Furthermore, the words, 'A licence, permit or approval issued or granted under this Act may be made subject to restrictions, limitations or conditions …' are cast in the passive voice, which is consistent with an intention not to bestow power;
(j)the power conferred to impose reasonable restrictions, limitations or conditions by s 20(1)(ac) where the Commissioner is satisfied that to do so is in the public interest, must be construed as confined to matters of public interest that arise out of the matters referred to in s 20(1)(a) to s 20(1)(ab), that is the discovery of fraud or deception; the breach or failure to observe a restriction, limitation or condition; or change of circumstances; or risk of harm that may be suffered by a person as a result of a person retaining or regaining possession of a firearm or ammunition;
(k)the text of s 21(1) reveals a twofold purpose. First, its purpose is declaratory and procedural: it declares that a licence, permit or approval issued or granted under the Firearms Act may be made subject to restrictions, limitations or conditions. Second, it requires those restrictions to be specified in the licence or other 'supplementary document' and entered in the Register;
(l)the words, 'A restriction, limitation or condition imposed under this Act may be varied from time to time' in s 20(2) are also cast in passive voice, which results in the provision having declaratory and procedural effect. However, s 20(1) uses active words that plainly confer power upon the Commissioner to impose reasonable restrictions, limitations or conditions;
(m)when the regulation‑making power in s 34 is read together with s 21(1) and s 20(1) and s 20(2) the effect of these provisions is that regulations are to be made which deal with the issue or grant of a licence, permit or approval subject to restrictions, limitations or conditions which may afterwards be varied from time to time by the Commissioner, if satisfied of the matters referred to in s 20(1)(c) (that is, 'a particular place or premises, range or gallery does not comply with the requirements of this Act … he may refuse to renew or may revoke any licence, permit or approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon'); and
(n)the reference to 'the requirements of this Act' in s 20(1)(c) is to be construed as a reference to requirements imposed by regulations made under the Firearms Act. Consequently, it is argued that it is in this way the Commissioner has concurrent but quite different powers to restrict, limit or condition an approval of a range. The first power arises by the making of regulations, if made; and the second arises only if regulations have been made and where only the limited preconditions set out in s 20(1)(c) are met; and
(o)the control of shooting, by the imposition of conditions on a range to control a public activity (in contrast to conditions that apply to a private activity such as a driver's or firearm licence) is an activity that Parliament intended to regulate only by the making of regulations.
7.3.2 Is the regulation‑making power in s 34(2) of the Firearms Act permissive or mandatory?
It is notable that s 34(2)(a), s 34(2)(b) and s 34(2)(h) have stood unamended since the enactment of the Firearms Act in 1973.
The issue is whether in the absence of the making of any regulations pursuant to s 34(2)(h), what effect, if any, does such absence have on the power of the Commissioner to approve a range, subject to restrictions, limitations or conditions.
The critical question is whether the exercise of the power conferred by s 34(2) to make regulations in respect of the subject matter specified in s 34(2)(h) is permissive or mandatory.
Determining the legal effect of a failure to make regulations prescribing matters contemplated by an enabling Act is a question of construing the enabling Act. This issue has arisen in a number of different contexts, and the outcome depends on the language, purpose, structure and context of the particular provision.[39]
[39] GBT v The State of Western Australia [2019] WASCA 40 [46].
Section 34(1) of the Firearms Act confers on the Governor a general discretionary power by the use of the word 'may' to make regulations in regard to any matter or for any purpose for which regulations are prescribed or contemplated by the Firearms Act, and may make all such other regulations as may in his opinion be necessary or expedient for giving effect to the provisions of the Firearms Act, and for the due administration thereof. Such a provision is common and widely used in legislation. Such a power has been construed as not to empower the making of regulations that extend the scope or general operation of an enactment, but is strictly an ancillary power to authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and cover what is incidental to the execution
of the specific provisions of the statute.[40][40] Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245, 250; approved in Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293, 298 (Barwick CJ, Menzies, Windeyer, Owen, Walsh & Gibbs JJ); Project Blue Sky Inc v Australian BroadcastingAuthority[1998] HCA 28; (1998) 194 CLR 355 [61 (McHugh, Gummow, Kirby & Hayne JJ).
The power to make regulations for specific purposes conferred by s 34(2) opens with the expression 'Without limiting the general power conferred by subsection (1)', the effect of which, pursuant to s 43(5) of the Interpretation Act, is that the enumeration of the special purposes specified in specific provisions are to be construed as not to derogate from the generality of the powers conferred with reference to the general purpose.[41] Consequently, the effect of the specification of the power to make regulations in respect of specific purposes or subject matter is not to limit the general regulation‑making power. This point is however not relevant to the disposition of this appeal.
[41] See the discussion in John Nominees Pty Ltd v Dixon [2003] WASCA 51 [19] (Parker J).
Where the word 'may' is used in statutory text, in ascertaining the intention of the legislature, the court is to begin with the prima facie presumption that the permissive or facultative expressions operate according to their ordinary natural meaning.[42]
[42] Ward v Williams[1955] HCA 4; (1955) 92 CLR 496, 505.
The words that follow the opening expression in s 34(2) are that 'the Governor may make regulations for or with respect to all or any of the following matters'.
The word 'may' in the context it appears in s 34(2) has to be construed with the words that follow conferring the power to 'make regulations for or with respect to all or any of the following matters'. The use of the word 'may' in this context suggests that the Governor was not obliged to make regulations in respect of any of the specified matters, but has a discretion to do so.
By the use of the word 'may' in s 34(2) when read together with the words 'all or any of' is to be construed as a discretionary power conferred on the Governor to make regulations 'for or with respect to' any of the specific matters (purposes) set out in s 34(2)(a) to s 34(2)(j). Such a construction is supported by s 40 and s 56 of the Interpretation Act. Section 40 of the Interpretation Act expressly refers to written laws that provide subsidiary legislation that 'may' or 'shall' be made. Consequently, this provision contemplates that a power to make regulations may be conferred by a statute as a discretionary (permissive) power, or an obligation (imperative), to make regulations. Section 56 provides that when the word 'may' is used as conferring power it implies that the power may be exercised or not at discretion. Pursuant to s 5 of the Interpretation Act 'power' is defined as including 'any privilege, authority, or discretion' and 'function' is defined as including 'powers, duties, responsibilities, authorities, and jurisdictions'.
Having found that the regulation‑making power conferred by s 34(2) is permissive, the next issue that requires consideration is whether the regulation‑making power in s 34(2)(b) and s 34(2)(h) displaces the power conferred on the Commissioner by s 21(1) and s 20(1) to impose restrictions, limitations and conditions on an approval of a range.
7.3.3 Does the regulation‑making power conferred in s 34(2)(b) and s 34(2)(h) displace the power conferred on the Commissioner by s 21(1) and s 20(1) to impose restrictions, limitations and conditions on an approval of a range?
It is notable that s 21(1) and s 20(1) are not expressed to be subject to any other provision of the Firearms Act.[43] Yet this does not answer the question posed in this constructional task.
[43] Contrast s 9A(1), s 17A and s 17B of the Firearms Act 1973 (WA).
For the reasons that follow, when the scheme relating to the grant or issue of licences, permits and approvals provided for in s 34(2)(b), s 34(2)(h), s 21(1) and s 20(1) of the Firearms Act is properly construed, it is clear that the legislature intended that the power to impose restrictions, limitations and conditions on licences, permits or approvals, is not restricted to the making of regulations for this purpose but can be imposed by three different pathways. Further, that the scope and extent of each pathway by their subject matter and purpose are different.
The first is by way of regulation by the making of delegated legislation by the Governor on the advice of Executive Council, pursuant to the power conferred by s 34(2)(b) and s 34(2)(h). The second is by the exercise of the broad general power conferred on the Commissioner when issuing or granting an initial licence, permit or approval pursuant to s 21(1). The third is by the exercise of the power conferred on the Commissioner pursuant to s 20(1) to impose reasonable restrictions, limitations and conditions during the currency of a licence, permit or approval.
It is established that the breadth of a general power to take particular action conferred by statutory text may be displaced by a specific power conferred in another provision of the Act. This principle is known as the Anthony Hordern principle.[44] In Leon Fink, Mason J explained the Anthony Hordern principle as follows:[45]
It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. In Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia Gavan Duffy CJ and Dixon J said:
'Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when s 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing. When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.'
See also R v Wallis; Ex parte Employers Association of Wool Selling Brokers.
[44] Dainford Ltd v Smith [1985] HCA 23; (1985) 155 CLR 342, 361 ‑ 362 (Brennan J). See also Minister for Immigration and Citizenship v Szkti [2009] HCA 30; (2009) 238 CLR 489 [44] (French CJ, Heydon, Crennan, Kiefel & Bell JJ).
[45] Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672, 678 (Mason J).
The Anthony Hordern principle requires an analysis of whether a general power and a special power is conferred in respect of the same subject matter or whether two (or more) powers are to be construed as two or more special powers (and thus not to encroach on each other). In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, Gummow and Hayne JJ explained this point:[46]
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power', or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
[46] Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 [59].
The apparent scope of a section may also be limited by other sections in an Act. Courts have said that different sections must be read in such a way that they will fit together.[47] The plurality in Project Blue Sky Inc v Australian Broadcasting Authority observed that conflicting statutory provisions should be reconciled so far as possible and may require the court to determine which is the leading provision and the subordinate provision.[48] Under the heading 'Conflicting provisions should be reconciled as far as possible', their Honours said:[49]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[47] Pearce D, Statutory Interpretation in Australia (9th ed, 2019) 4.3.
[48] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70], [46] (McHugh, Gummow, Kirby & Hayne JJ).
[49] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70] (McHugh, Gummow, Kirby & Hayne JJ).
The scheme and purpose of the Firearms Act, does not make a distinction between a right to any licence, permit or approval that creates a private or a public right. The Firearms Act creates a scheme that applies to the control, possession and regulation of firearms and ammunition by way of the issue or grant of licences, permits, and approvals to persons who have an occupational need to use firearms and ammunition or wish to engage in professional, sporting or recreational shooting.
The Firearms Act creates numerous exemptions from licensing requirements. For example, a member of the Police Force is exempt from the requirement to power or use a firearm or ammunition in preparation for, or for use in the performance of his or her duties.[50] The Firearms Act also strictly regulates the control, possession and use of firearms and ammunition by the creation of statutory offences.
[50] Firearms Act 1973 (WA) s 8(1)(d).
Section 34(2)(a) confers a power to make regulations for or with respect to the application for and the issue, grant, renewal, cancellation or revocation of licences, permits and approvals, and s 34(2)(b) confers a power to make regulations for or with respect to the restrictions, limitations and conditions that may be imposed on any licence, permit or approval.
Insofar as s 34(2)(a) provides for regulations to be made for or in respect to specific matters, those matters relate to all classes of licences, permits and approvals that can be issued, granted, renewed, cancelled or revoked under the Firearms Act. Similarly, s 34(2)(b) provides for regulations to be made for or in respect to the restrictions, limitations and conditions that may be imposed on all classes of licences, permits and approvals.
Section 34(2)(h) by its terms is not exclusively concerned with the imposition of restrictions, limitations or conditions of an approval of a shooting range. Instead, it empowers the Governor to make regulations for or with respect to the 'construction and conduct of shooting galleries and ranges'. There is nothing in the statutory text of this provision to suggest that regulations concerning the construction and conduct of ranges would necessarily have to have effect by way of conditions that only attach to an approval of a range. However, the statutory text of s 34(2)(h), when read together with the regulation‑making power in s 34(2)(b), can be construed to contemplate that regulations may be made for, or with respect to, the 'construction and conduct of shooting galleries and ranges' and take effect as restrictions, limitations or conditions attaching to an approval of a range.
The meaning of the word 'construction' when used in the context of a shooting range is well understood to mean the acts or processes comprising building or erecting a range. As Thayli Pty Ltd points out, a regulation could be made for this purpose to permit the police to require a range to have a minimum height backstop (to collect bullets). Section 34(2)(h) is not however confined to the making of regulations for or with respect to the construction of ranges. The subject matter of this power also includes the power to make regulations for or with respect to the conduct of ranges. The word 'conduct' when used as a noun is defined by the Oxford English Dictionary as among other meanings as:[51]
The action or manner of conducting, directing, managing, or carrying on (any business, performance, process, course, etc); direction, management … of the business, or thing.
[51] OED Oxford English Dictionary online.
Regulations cannot be made that are inconsistent with or repugnant to any provisions of the Firearms Act. In Plaintiff M47/2012 v Director‑General of Security, Hayne J observed that where there are competing (inconsistent) sections of a statute and where a regulation and a provision of a statute are inconsistent, whereas in the former case it is necessary for the court to determine which is the leading provision, in the latter, the provision of the statute will always take primacy over the regulation.[52]
[52] Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 [210] ‑ [211]; see also Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402.
Thayli Pty Ltd claims that, on the Commissioner's construction, administrative action to impose conditions on an existing approval would have the effect of displacing regulations. This contention is not correct. The power to impose conditions under s 21(1) and s 20(1) must be reconciled with s 34(2), the latter section (the regulation‑making power) being a leading provision must necessarily prevail over any conditions made administratively by the Commissioner pursuant to s 21(1) or s 20(1).
It would not be open to the Commissioner to impose limitations, restrictions or conditions pursuant to s 21(1) or reasonable limitations, restrictions or conditions pursuant to s 20(1), that are inconsistent with any provisions of the Firearms Act or inconsistent with any regulations made pursuant to the Firearms Act. The latter is so because in the hierarchy of delegated legislation a lower level instrument that is inconsistent with a higher level instrument must give way to the higher level instrument.
This construction is consistent with the operation of s 11(1) of the Firearms Act which provides that the Commissioner cannot grant an approval or permit or issue a licence if the Commissioner is of the opinion that to do so would be contrary to regulations made pursuant to s 11B (regarding genuine need to acquire or possess a firearm or ammunition of prescribed categories) or s 11C (other restrictions on the grant, issue, or renewal of licences, permits or approvals).
This construction is also consistent with s 11A(2)(f) and s 11A(6) which enables regulations to be made under s 34 to limit the purposes that can be raised as a genuine reason for acquiring or possessing a firearm or ammunition.
Further, if regulations have been made pursuant to s 34(2)(b) that prescribe restrictions, limitations and conditions that may be imposed in respect of the same subject matter (in this matter, those that may be imposed on the approval of a range) then subject to the scope of the regulations, the restrictions, limitations and conditions the Commissioner could impose on an initial approval of a range, pursuant to s 21(1) may be limited by the effect of those regulations, pursuant to the principle that regulations are a higher level instrument than an approval granted or issued by the Commissioner pursuant to s 21(1).
For the same reasons, regulations could be made pursuant to s 34(2)(b) that restrict the scope of the Commissioner's power to impose reasonable restrictions, limitations or conditions pursuant to s 20(1) on an existing licence, permit or approval.
The scope of the subject matter of the regulation‑making power in s 34(2)(b), and the subject matter of s 21(1), the latter of which contemplates that a licence, permit or approval may be made subject to restrictions, limitations or conditions, is different to the power conferred by s 34(2)(b).
Whilst regulations made under s 34 may be of general or limited application, according to time, place or circumstance and impose upon any person or class of person a discretionary authority,[53] s 34(2)(b) contemplates that regulations may be made which would specify particular restrictions, limitations and conditions that may be imposed on any licence, permit or approval by the Commissioner.
[53] Firearms Act 1973 (WA) s 34(3).
The subject matter of s 20(1) and s 21(1) are phrased differently and is different in scope to s 34(2)(b). The powers conferred by s 20(1) and s 21(1) do not expressly contemplate (in the same way that the regulation‑making power in s 34(2)(b) does) that the power of the Commissioner to impose restrictions, limitations or conditions is limited to particular or specific restrictions, limitations or conditions. This is because the power conferred in s 34(2)(b) is to specify a class or categories of restrictions, limitations or conditions that the Commissioner can impose under s 20(1) or s 21(1). If the subject matter of s 21(1) is prescribed by regulations, such regulations could limit the power of the Commissioner to impose particular limitations, restrictions or conditions on a range approval if the regulations so limit the power of the Commissioner.[54]
[54] For an example where a regulation‑making power has been construed to operate as a limitation, if so prescribed, GBT v The State of Western Australia [2019] WASCA 40 [44].
Each of the subsections of s 20(1) confer a separate and alternative power for the Commissioner to impose reasonable restrictions, limitations or conditions on an approval, providing that the Commissioner is satisfied of the matters specified in the subsection relied upon. It is clear from the opening words of s 20(1) 'Where the Commissioner is satisfied' followed by the specified circumstances by which the Commissioner is to be satisfied in each separate subparagraph, followed by the word 'or', at the end of each subparagraph that that the power conferred in this provision is to be construed disjunctively.
Consequently, the exercise of the Commissioner's discretion conferred by s 20(1)(ac) upon being satisfied that to impose such reasonable restrictions, limitations or conditions is in the public interest, is not restricted to the matters specified in any of the other subsections of s 20(1).
In Woolworths Ltd v Director of Liquor Licensing, the Court of Appeal was called upon to consider a provision that required the appellant to satisfy the Liquor Licensing Commission that the granting of an application was in the public interest.[69] In that matter, Buss JA explained that:[70]
It is not uncommon for statutes to provide that a decision‑maker shall or may take certain action if 'satisfied' of the existence of specified matters. See Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118 (Gibbs J). The expression 'in the public interest', when used in a statute, imports a discretionary value judgment. See O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson & Gaudron JJ). If the statute provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion by reference to the criterion of 'the public interest' will ordinarily be confined only by the scope and purposes of the statute. See O'Sullivan (216).
[69] Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227.
[70] Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 [48].
When regard is had to the dominant purpose of the Firearms Act to secure public safety, when considering the public interest, and when determining reasonable restrictions, limitations or conditions on a range approval, such consideration must necessarily encompass:
(a)the risk to the safety of those who use firearms on the range and those who may be close by on the range or in close proximity to the range; and
(b) the licensing scheme and exemptions that apply pursuant to the provisions of the Firearms Act that authorise the possession and the safe handling and use of firearms and ammunition.
Also, whilst the scope of the power conferred by s 21(1) to impose restrictions, limitations and conditions on the approval of a range is not confined to any specific subject matter by the text of this provision, the subject matter of this condition is informed at least in part by the effect of s 8(1)(m) in that the latter provision contemplates that an approved range should be properly constructed and maintained. When regard is had to this context and the purpose of s 8(1)(m) (which provides for an exemption), one of the purposes of s 8(1)(m), when read together with the power of the Commissioner pursuant to s 21(1) (to impose restrictions, limitations and conditions on an initial range approval) or (reasonable restrictions, limitations and conditions) under s 20(1) on an existing range approval is by the imposition of such that at least some of those restrictions, limitations and conditions should address the proper construction and maintenance of the range in question.
If an approved range not subject to any relevant restrictions, limitations or conditions in respect of construction and maintenance imposed under s 21(1) or s 20(1) were to fall into disrepair, the exception in s 8(1)(m) would have no scope to operate and a licensed person providing their firearm to an unlicensed person to use at that range would contravene s 19(2)(c) of the Firearms Act. Also, the unlicensed person receiving the firearm would contravene s 23(3) of the Firearms Act.
Insofar as the purpose of securing public safety applies to the approval of shooting ranges, public safety is able to be protected by a construction of the Firearms Act that gives effect to the broad scope of the power conferred in s 21(1) and s 20(1) on the Commissioner. Consequently, when the Commissioner is called upon to determine whether the approval of a range should be subject to restrictions, limitations or conditions regard should be had to a number of relevant considerations that arise under the provisions of the Firearms Act. Such considerations would also include a consideration of the effect of the exemption in s 8(1)(m) will only apply if a particular range is properly constructed and maintained.
The effect of s 8(1)(m) should be taken into account by the Commissioner (among other relevant matters that include public safety and the suitability of the approval holder) when determining under s 20(1) whether restrictions, limitations or conditions are reasonable to impose, on an approval of a range. In doing so, the Commissioner should have regard to the particular characteristics of the range in respect of which approval is sought (or held) by an approval holder, and have regard to any relevant regulations made under s 34(2) that apply to the possession, use or handling of a firearm or ammunition.
It is clear from the observations made by EM Heenan J in Knight v Commissioner of Police in respect of the scope and breadth of the subject matter of s 20(1)(a) to s 20(1)(d) that the imposition of restrictions, limitations or conditions by the Commissioner in respect of an existing approval of a range are not confined to the matters referred to in s 20(1)(c) which requires that the Commissioner is satisfied that a particular place or premises, range or gallery does not comply with the 'requirements of this Act'.
The words 'requirements of this Act' should be construed as referring to other provisions of the Firearms Act and any relevant regulations but not to conditions imposed by the Commissioner pursuant to s 20(1), as s 20(1)(a)(ii) empowers the Commissioner to refuse to renew, or revoke any licence, permit or approval or impose reasonable conditions, limitations or conditions thereon, if a person who is a holder of a licence, permit or approval has breached or failed to observe [an existing] restriction, limitation or condition.
Section 5 of the Interpretation Act defines 'Act' to mean in written laws:
[A]ny Act or Ordinance passed by the Parliament of Western Australia, or by any Council previously having authority or power to pass laws in Western Australia, such Act or Ordinance having been assented to by or on behalf of Her Majesty
'Written law' is defined in s 5 of the Interpretation Act to mean 'all Acts for the time being in force and all subsidiary legislation for the time being in force' and s 46(1) and s 46(1a) of the Interpretation Act provides:
46. Reference to written law includes reference to subsidiary legislation made under it
(1)A reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under that written law.
(1a)An example of the operation of subsection (1) is that a reference in an Act to 'this Act' includes a reference to any subsidiary legislation made under the Act.
In the absence of any indication in the Firearms Act of the contrary intention, it necessarily follows that the words 'the requirements of this Act' in s 20(1)(c) are to be construed to apply only to any provision of the Firearms Act or any regulation made pursuant to the provisions of the Firearms Act.
For all of these reasons, ground 2 of the appeal is made out, and the decision of the Tribunal should be set aside and sent back to the Tribunal for reconsideration.
8.0 Ground 1 of the appeal ‑ procedural fairness
In light of my findings as to ground 2 of the appeal, it is not strictly necessary to deal with ground 1.
Irrespective of whether I am right or wrong in my findings in respect of ground 2, I would in any event uphold ground 1 of the appeal, set aside the decision of the Tribunal and send the matter back to the Tribunal, differently constituted, for reconsideration as to whether any of the conditions of the approval imposed on the Ella Valla range, by notice dated 18 December 2018, are within the power of the Commissioner to impose.
8.1 The requirements of procedural fairness
A power conferred by statute is to be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power.[71]
[71] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 [97] (Gummow, Hayne, Crennan and Bell JJ); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [39] ‑ [41] (Gaudron & Gummow JJ).
The requirement of a court or a tribunal to accord natural justice includes an obligation to accord procedural fairness. The principles of procedural fairness require that a party be given an opportunity to present their case and be heard (the hearing rule).
The requirements of procedural fairness are not fixed or immutable.[72] Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[73] As such, whether, for example, the failure or refusal to adjourn a hearing amounts to a denial of procedural fairness will depend upon the particular circumstances of the case.[74]
[72] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156] (Hayne, Crennan, Kiefel & Bell JJ); Defendi v Szigligeti [2019] WASCA 115 [48].
[73] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ), [48] (McHugh & Gummow JJ); Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] [2004] FCA 107 [28] (French J); Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291 [30] (Maxwell P, Warren CJ agreeing); Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51] (Newnes JA, Pullin & Murphy JA agreeing). See, also, Kazolis v Registrar of Firearms [2018] ACTSC 89; (2018) 331 FLR 395 [50].
[74] See Arabzadeh v Wasim [2018] TASSC 30 [10] (Pearce J).
The hearing rule requires a decision-maker to provide a party to proceedings a reasonable opportunity of presenting his or her case.[75] A breach will give rise to practical injustice where the breach results in the denial of an opportunity to make submissions and that denial is material to the decision made by the decision-maker.[76]
[75] Russell v Duke of Norfolk [1949] 1 All ER 109, 118.
[76] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 163 ALD 38 [38] (Bell, Gageler & Keane JJ).
Cases have acknowledged that the content of procedural fairness is affected by the 'nature' of the 'decision' of which review is sought.[77] This includes the consequences or effect of the 'decision'. Proceedings before the Tribunal may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular litigants, and whether the particular proceeding is in the Tribunal's original or review jurisdiction.[78]
8.2 Did the Tribunal breach the hearing rule?
[77] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J); WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93 [45] (RD Nicholson J); Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174 [31] (Maxwell P, Eames & Nettle JJA agreeing); Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422 [12] (Dixon J).
[78] Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 [56] (Buss JA).
In circumstances where the Tribunal had (pursuant to s 51A of the State Administrative Tribunal Act) directed that an aspect of the proceeding be heard and determined separately by the determination of a preliminary issue of law, the Tribunal in finding that the conditions of the approval of the Ella Valla range must be set aside and ordering that the application for review of the conditions on the range on Ella Valla pastoral station succeeds without a hearing of the merits, constitutes a breach of the hearing rule.
In light of the finding that the Commissioner had power to impose conditions on the Ella Valla range in regard to the construction and maintenance of the range, the Tribunal did not give either party an opportunity to be heard as to whether any of the conditions contained in the notice to vary the conditions on 18 December 2018 came within the scope of the power to impose conditions on an approval of a shooting range.
It is clear from the face of the conditions that were imposed on 18 December 2018 that it was arguable that at least some of the conditions may be capable of being characterised as conditions that arise pursuant to, or relate to, the construction and maintenance of the range. In particular, it is arguable that the following conditions could prima facie answer such a description:[79]
(a)the distance of firing lines to target, number of firing points, range width, target frames and range boundary and safety signs and flags (specified in condition 9);
(b)a requirement to properly maintain the range to the same standard as when approved, including regular maintenance of the range complex to remove or cover all hard material and regular maintenance of target/stands (specified in condition 10).
[79] Book of documents accompanying appeal, vol 2, pages 12 ‑ 13.
For these reasons, ground 1 is made out.
9.0 Should the matter be remitted to the Tribunal differently constituted for reconsideration?
In this matter the Tribunal has already expressed a view upon matters to be determined in the rehearing, in particular whether or not the conditions imposed by the delegate of the Commissioner are within the Commissioner's statutory power to impose. The Tribunal also made programming orders as to payment of costs.
Section 88 of the State Administrative Tribunal Act limits the power of the Tribunal to make orders as to costs in respect of review proceedings. Section 88 provides that if the matter before the Tribunal the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal cannot make an order that all or any of the costs of a proceeding be paid by a party unless:
(a)the party brought or conducted the proceeding frivolously or vexatiously; or
(b)section 87(4) applies to the party (whether the decision‑maker genuinely attempted to make a decision on its merits); or
(c)circumstances have arisen in which the Tribunal could make an order under s 46 (dismissal of proceeding on withdrawal or for want of prosecution), s 47 (frivolous, vexatious, misconceived or lacking in substance or a proceeding is being used for an improper purpose or a proceeding that is otherwise an abuse of process) or s 48 (proceeding is being conducted to cause disadvantage).
The Tribunal made an order enabling Thayli Pty Ltd to make a submission that the Commissioner pay its costs of the application for review of the conditions and made programming orders for submissions on the issues of costs and listed a hearing for costs for a duration of three hours.
The principles that apply to a remittal or by the court to the Tribunal is differently constituted for reconsideration of a matter were recently considered by Chief Justice Quinlan in Aloi Holdings Pty Ltd v John Nominees Pty Ltd:[80]
[80] Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 (S) [12] ‑ [16].
The court's powers when dealing with an appeal under s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) are in the broadest possible terms and contemplate orders that the Tribunal on any reconsideration should be differently constituted. Orders in those terms are commonplace in appeals from the Tribunal to this Court and to the Court of Appeal.
Ultimately, whether such an order is made must be determined by reference to the interests of justice in the particular case. This necessarily involves the exercise of a broad discretion. The interests of justice in that context include the 'appearance of justice' in the particular case. Some guidance in relation to the exercise of the discretion may be found in the decision of the New South Wales Court of Appeal in Seltsam Pty Ltd v Ghaleb.
In that case, Mason P said:
'The power to direct a hearing by other than the original judicial officer is used sparingly and only when it appears to the appellate court that it is appropriate in the interests of justice (see Minister for Immigration and Multicultural Affairs at 538 [62], 556 [123] and authorities there cited). Something more than error, to which all are prone, must be demonstrated. Where the proceedings below have been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground such an order. But the power is not limited to such a situation.
There can be cases where a complicated process of fact-finding has miscarried through a combination of factors. The interests of justice, including its appearance, may require that the new trial take place before a differently constituted court or tribunal. This is particularly so where, as in the present case, the first trial resulted in a judgment turning upon credibility-based findings. To remit the matter for a new trial before a similarly constituted tribunal of fact would almost inevitably trigger an application that the judge recuse in light of the principles in Australian National Industries Ltd v Spedley Securities Ltd (in liq). Instances where this Court has given a direction designed to avoid this possibility include Curnuck v Nitschke [2001] NSWCA 176 and Mkari v Meza [2005] NSWCA 136.
This is not to imply that the former decision-maker might start the new trial with the disposition in favour of the party originally successful. Indeed, there may be risks of compensatory bias or its appearance (cf my paper on 'Unconscious Judicial Prejudice' published in (2001) 75 ALJ 676) that may properly be taken into account. This Court's concern lies with avoiding the appearance of pre-judgment.
I agree with Basten JA that the power should be exercised with caution and with respect for the authority of the judicial officer or officers in the court or tribunal below who have authority to assign cases. But where this Court is seized of a matter that persuades it as to the propriety of making a direction of this nature, the power should be used. It should not be left to the President, Chief Judge or List Judge of the court or tribunal below to have to make enquiries and form a judgment on such matters. Rather, absence of a direction should be read as a signal that it is open (but not obligatory) to assign the new trial to the original judicial or other officer.
In the present case there needs to be a new trial on all issues. In my view, the parties should be offered a fresh start before a fresh fact-finder.'
In concurring reasons on this issue, Ipp JA said, with reference to Basten JA's dissenting judgement expressing caution with respect to making an order that the rehearing be by a Tribunal differently constituted:
'It is not an extraordinary occurrence for this Court to order that the case be heard afresh by a different judge. Mason P has referred to examples of cases where this has occurred. Where a judge has made credibility findings and has indicated a preference for a particular witness or witnesses or has failed to accord a party procedural fairness, the proper administration of justice may require the making of such an order. The need to do so will then arise not because of any established or presumed bias on the part of the judge but simply because of the public interest in providing the appearance of impartial justice. Often, the Court will make such an order of its own motion without hearing the parties. This practice recognises that the identity of the judicial officer who is to hear a particular case should not be regarded as a matter that could benefit or prejudice a particular party. It is not a requirement of procedural fairness that the parties be informed that the remitted trial be heard before a new judge. Moreover, it would often be invidious for a party to seek such an order.'
I agree with Mason P, together with the additional remarks made by Ipp JA.
Unfortunately, the Tribunal in this matter breached the rules of procedural fairness.
The Tribunal without hearing from the parties, went beyond the determination of the preliminary issue and found that the conditions of the approval as varied must be set aside.
It also appears that the Tribunal may have offended the principle of apprehended bias. By the making of programming orders for a hearing as to costs, it could be open to an independent bystander to form the view that the Commissioner has behaved in some way improperly that is worthy of the sanction of an adverse costs order. Whilst there is no allegation of actual bias, a layperson may perceive that the Tribunal has a predisposition towards a particular conclusion and will not approach a hearing, as to the issue whether the varied conditions of approval of the Ella Valla range are within the scope of the power conferred on the Commissioner to vary (within the meaning of s 20(1) of the Firearms Act), with an open mind.
In these circumstances, it is not appropriate to send the matter back to the Tribunal to be determined as originally constituted.
I do not see that there will be any difficulties in remitting the matter to a differently constituted Tribunal as the issues for determination are confined, and the Tribunal has not yet heard evidence as to the question of whether the varied conditions dated 18 December 2018 impose reasonable restrictions, limitations or conditions, within the meaning of s 20(1) of the Firearms Act.
In all the circumstances, it is in the interests of justice, including the interest that justice be manifestly seen to be done, that reconsideration by the Tribunal be by a differently constituted quorum.
10.0 Conclusion ‑ the orders of the court
For the foregoing reasons, the following orders should be made:
(1)Leave to appeal on grounds 1 and 2 be granted.
(2)Grounds 1 and 2 be upheld and the appeal allowed.
(3)The appellant (the Commissioner) pay the costs of the respondent (Thayli Pty Ltd), to be taxed if not agreed.[81]
[81] The effect of s 105(12) of the State Administrative Tribunal Act 2004 (WA) is that where the court grants leave to appeal to a decision‑maker it is on condition that the costs of each other party are to be met by the decision‑maker, unless the court considers it would be unjust or unreasonable.
(4)The decision of the Tribunal be set aside and the matter sent back to the Tribunal, differently constituted, for determination according to law, whether the varied conditions of approval of the Ella Valla range, dated 18 December 2018 impose reasonable restrictions, limitations or conditions, within the meaning of s 20(1) of the Firearms Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith19 FEBRUARY 2020
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