Killen and Commissioner Of Police
[2013] WASAT 118
•30 JULY 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: FIREARMS ACT 1973 (WA)
CITATION: KILLEN and COMMISSIONER OF POLICE [2013] WASAT 118
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 4 JULY 2013
DELIVERED : 30 JULY 2013
FILE NO/S: CC 285 of 2013
BETWEEN: SCOTT KILLEN
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Jurisdiction of Tribunal to conduct review of refusal to issue firearm licence Is the decision by licensing officer that a firearm 'closely resembles' a category D firearm reviewable by the Tribunal?
Legislation:
Firearms Act 1973 (WA), s 6, s (1), s 6(1a), s 7, s 11(1)(a), s 11B, s 11C, s 22, Sch 3
Firearms Regulations 1974 (WA), reg 25, reg 26
Result:
Application dismissed
Summary of Tribunal's decision:
The Commissioner of Police refused to approve an application by Mr Killen to be licensed to hold a category B .308 calibre firearm, on the ground that the firearm 'closely resembles' a category D firearm. A category D firearm is defined as a selfloading centre fire rifle designed or adapted for military use.
Mr Killen is seeking a review of the decision.
A preliminary issue arose, namely, whether the Tribunal had the jurisdiction to review the decision of the Commissioner of Police to refuse the application.
Senior Constable Bagley, who appeared for the Commissioner of Police, contended that the application was refused pursuant to reg 26B(2)(a) of the Firearms Regulations 1974 (WA) and that the decision is not open to review as a result of the working of s 6(1) and s 6(1a) of the Firearms Act 1973 (WA). Senior Constable Bagley said that s 6 of the Firearms Act 1973 (WA) provides for certain firearms to be prohibited by regulation, and s 6(1a) of the Firearms Act 1973 (WA) provides that a decision pursuant to such regulation is not reviewable since such a decision is not regarded as an 'exercise of any power' pursuant to s 22 of the Firearms Act 1973 (WA).
Mr Marsh, who appeared for Mr Killen, contended that the decision of the Commissioner of Police to characterise the firearm as a type that 'closely resembles' a category D firearm was reviewable. Mr Marsh contended that:
a) reg 26B of the Firearms Regulations 1974 (WA) had not been made pursuant to s 6 of the Firearms Act 1973 (WA) but pursuant to s 11C of the Firearms Act 1973 (WA);
b) a decision pursuant to s 22 of the Firearms Act 1973 (WA) is reviewable; and
c) the decision to categorise a firearm as one that 'closely resembles' a category D firearm is therefore a reviewable decision.
The Tribunal found that reg 26 and reg 26B of the Firearms Regulations 1974 (WA) arise from the power granted in s 6 of the Firearms Act 1973 (WA) for regulations to be made to prohibit certain firearms. The power exercised by the licensing officer pursuant to reg 26B(2) to refuse the application was therefore not open for review by the Tribunal.
The application was therefore dismissed since the Tribunal did not have jurisdiction to review the decision of the licensing officer.
Category: B
Representation:
Counsel:
Applicant: Mr P Marsh
Respondent: Snr Constable S Bagley (Acting as Agent)
Solicitors:
Applicant: Waterside Legal
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Is the refusal by Senior Sergeant Hawkins of an application for a firearm to be licensed, on the basis that the firearm 'closely resembles' a category D firearm, reviewable by the Tribunal?
Background
Mr Killen applied to be licensed to possess a calibre .308 rifle bolt repeater firearm (Firearm). The Firearm is, according to its calibre, a Category B firearm of which a senior sergeant is the delegated officer to perform licensing functions (reg 25 of the Firearms Regulations 1974 (WA) (Firearms Regulations).
The Commissioner of Police, by letter of Senior Sergeant Hawkins, informed Mr Killen on 7 January 2013 that the application had been refused. The reason for the refusal comprised various aspects:
•Senior Sergeant Hawkins was of the opinion that to approve the application would be contrary to the regulations under s 11B and s 11C of the Firearms Act 1973 (WA) (Firearms Act);
•Senior Sergeant Hawkins also formed the opinion that the application cannot be approved since the Firearm 'closely resembles' a firearm that is prohibited pursuant to reg 26 of the Firearms Regulations; and
•Senior Sergeant Hawkins says the Firearm 'substantially duplicates' in appearance Subcategory D1 firearms as per Sch 3 of the Firearms Act.
Senior Constable Bagley, who appears for the Commissioner of Police, contends that the Tribunal does not have jurisdiction to review the decision of Senior Sergeant Hawkins.
Mr Marsh, for Mr Killen, filed a brief reply dated 2 July 2013 to the contentions of Senior Constable Bagley. Mr Marsh says, in essence, that the Tribunal does have jurisdiction to review the decision of Senior Sergeant Hawkins. Mr Marsh says there are, in summary, two elements to his contention, namely:
a)Senior Sergeant Hawkins was the properly delegated person to make a decision pursuant to reg 25 and reg 26B(2)(a) of the Firearms Regulations in regard to the Firearm; and
b)the decision of Senior Sergeant Hawkins is open to review since his assessment that the Firearm closely resembles a category D firearm is a matter for the Tribunal to ultimately determine.
Mr Marsh rejected the contention that any decision pursuant to reg 26B(2)(a) of the Firearms Regulations is excluded from a review by the Tribunal.
The application for review of the decision was received on 5 March 2013 and the matter was set down for a directions hearing on 28 March 2013. The Commissioner of Police was ordered to file and serve its statement of issues, facts and contentions so as to enable Mr Killen to better understand the reasons for the decision. At the next directions hearing that took place on 2 May 2013, Mr Killen was subsequently ordered to file a reply to the Commissioner of Police's papers. The Commissioner of Police was also ordered to file coloured and clear photographs of the Firearm the subject of the proceeding so as to assist the Tribunal to understand why, in the view of the Commissioner of Police, the Firearm applied for is said to closely resemble or substantially duplicate a category D1 firearm. At the third directions hearing, which took place on 31 May 2013, the matter was referred back to the Commissioner of Police, with the invitation to clarify the basis of the decision. In a submission dated 1 July 2013, the Commissioner of Police contended that the decision to refuse the application pursuant to reg 26B(2) of the Firearms Regulations fell outside the jurisdiction of the Tribunal. Senior Constable Bagley proposed that the application be dismissed.
A hearing took place on 4 July 2013 to hear further submissions in regard to the preliminary question. Both parties indicated that they only wished to make oral submissions. The Tribunal took the written and oral submissions into account in making its decision.
The decision about jurisdiction was reserved on the same day.
Statutory framework
The statutory framework against which the question of jurisdiction is determined is, relevantly, as follows:
Firearms Act
…
6. Prohibition
(1)The Governor, on the recommendation of the Commissioner, may make regulations to prohibit the acquisition, sale, possession, or use of any Firearm, silencer or other contrivance of a similar nature, or ammunition, whether licensed under this Act or not, either
(a)absolutely; or
(b)except upon and subject to such conditions, restrictions, and limitations, for such purpose or purposes, and in such place or places, as the Governor considers desirable in the public interest,
having regard to the especial potentially dangerous nature of that kind of Firearm, contrivance or ammunition and the need to exercise special precautions in relation thereto, or otherwise in the public interest.
(1a)Notwithstanding that any licence may have been issued, permit granted, or approval given under this Act in relation to any Firearm or ammunition of that kind, the Governor, on the recommendation of the Commissioner, may, in relation to any Firearm or ammunition which is, because of its nature or characteristics, of a kind requiring the exercise of special precautions and which is named, or falls within a description given in, or is otherwise identified by, those regulations, make regulations
(a)directing that no licence, permit or approval relating thereto shall be issued or given;
(b)directing that no licence, permit or approval relating thereto shall be capable of being renewed after a date specified in the regulations; or
(c)otherwise making such provision as may be expedient in relation thereto,
and for the purposes of section 22 the exercise of any power pursuant to those regulations shall not be taken to have been a decision made by or on behalf of the Commissioner.
…
11. Exercise of Commissioner’s discretion
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that ‑
(a)to do so would be contrary to section 11A or regulations under section 11B or 11C;
(b)it is not desirable in the interests of public safety; or
(c)the person is not a fit and proper person to hold the approval, permit, or licence.
…
11C. Other restrictions
The regulations may restrict the grant, issue, or renewal of licences, permits, or approvals under this Act.
Firearms Regulations
6A. Categories of firearms (Sch. 3)
(1)For the purposes of these regulations a Firearm is of the category indicated in Schedule 3.
…
25. Delegations
In respect of a type of Firearm set out in an item in the Table, the Commissioner's functions set out in that item may be performed by an officer of the Police Force set out in that item.
Table
| Item | Type of Firearm | Functions | Officer who may perform function |
| 1. | Firearm described in Schedule 2 | Grant a permit without conditions | Any officer |
| 2. | Firearm described in Schedule 2 | Issue a Firearm licence without conditions Refuse to grant a permit (as referred to in item 1) or issue a licence | Any officer employed in the Department to carry out licensing functions in respect of Firearms |
| 3. | Firearm or ammunition other than a Firearm of category D | Grant a permit or approval, or issue a licence, without conditions Grant a permit or approval, or issue a licence, with conditions Refuse to grant a permit or approval, or issue a licence | Any officer holding the rank of, or performing the functions of, senior sergeant or holding a commission under the Police Act 1892 section 6 and employed in the Department to carry out licensing functions in respect of Firearms |
| 4. | Firearm of category D | Issue a licence without conditions Issue a licence with conditions Refuse to issue a licence | Assistant Commissioner of Police responsible for licensing functions in respect of Firearms |
26. Prohibited firearms and ammunition
(1)Subject to subregulations (2), (2a), (2BA), (2BB) and (2BC), the acquisition, sale, possession or use of a firearm or ammunition specified in the Table to this regulation is absolutely prohibited.
(2)This regulation does not apply to a member of the armed forces of the Crown in the performance of his duties, or to any other member of a disciplined force approved by the Commissioner, or to the acquisition or possession of such a firearm or ammunition by The Western Australian Museum for purposes authorised by the Museum Act 1969.
(2a)This regulation does not apply to a firearm of category D if the firearm is licensed under the Act and what is done is in accordance with the licence.
…
| Table of prohibited firearms and ammunition | |
| a firearm of category D | |
| a machine gun, or ammunition for it | |
| a hand grenade | |
| a mortar gun, or ammunition for it | |
| a bazooka gun, or ammunition for it | |
| a fully automatic firearm | |
| a firearm designed to discharge tear gas, or ammunition for it | |
| a 'forward venting' blank firing imitation firearm | |
| ammunition the missile from which includes any high explosive, smoke, chemical, lachrymatory agent, or flechettes | |
| tracer ammunition | |
| incendiary ammunition | |
| armour piercing (hard steel core) ammunition | |
| imprint free (accelerator) ammunition | |
| frangible ammunition | |
| ammunition the missile from which has a calibre of 20 mm or more[.] |
Section 26B of the Firearms Regulations states:
Certain licences, permits and approvals not to be issued, granted or given
(1)In this regulation ‑
revolving rifle means a rifle the ammunition for which is loaded into and fired from a revolving cylinder or revolving chamber.
(2)A licence, permit or approval relating to a firearm cannot be issued, granted or given if ‑
(a)in the opinion of the Commissioner, the Firearm closely resembles a firearm that is prohibited under regulation 26; …
Schedule 3 ‑ Categories of Firearms in the Firearms Regulations states:
…
7. Category D Firearms
Each firearm described in the Table is a category D firearm.
Table
Sub-category
Description
D1
a self loading centre fire rifle designed or adapted for military purposes or a firearm that substantially duplicates such a firearm in design, function, or appearance
D2
A self loading centre fire rifle that is not of sub‑category D1
D3
A self loading shotgun with a magazine capacity more than 5 rounds
D4
A pump action shotgun with a magazine capacity more than 5 rounds
D5
A self loading rim fire rifle with a magazine capacity more than 10 rounds
D6.
a combination firearm made up of a shotgun and a rifle at least one of which would individually be of category D
D6.2
a rifle combination made up of rifles at least one of which would individually be of category D
…
Consideration
This proceeding considers a preliminary issue, namely, whether the decision of Senior Sergeant Hawkins to refuse the firearm application of Mr Killen is open to be reviewed by the Tribunal. The Tribunal is a creature of statute and can only exercise such powers that are bestowed on it by statute. It does not have an inherent review jurisdiction over all administrative decisions. If it is found that the decision as per the letter dated 7 January 2013 is not open to review, the application must be dismissed. If, however, it is found that the decision can be reviewed, the question whether, in the opinion of the Tribunal, the Firearm 'closely resembles' a category D firearm, will be considered.
The regulating regime that applies to a category D firearm is, as was pointed out by the parties during the hearing, rather confusing.
Mr Marsh and Senior Constable Bagley acknowledge that the following difficulties arise in regard to interpreting the relevant parts of the Firearms Act and the Firearms Regulations:
•There are several sources for regulations to be made under the Firearms Act ‑ see, for example, s 6, s 11B and s 11C of the Firearms Act. Unless a regulation clearly states pursuant to which section of the Firearms Act it is made, the Tribunal must construe the Firearms Act and the Firearms Regulations so as to make a determination that complies with the principles of statutory interpretation.
•Although s 6 of the Firearms Act authorises the making of regulations to 'prohibit' certain firearms, it is not obvious from the Firearms Regulations which, if any, regulations have been made pursuant to s 6 of the Firearms Act.
•Although s 11C of the Firearms Act authorises the making of regulations that may 'restrict' the grant, issue or renewal of firearm licences, it is not obvious from the Firearms Regulations which, if any, regulations have been made pursuant to s 11C of the Firearms Act.
•The delegations set out in reg 25 of the Firearms Regulations do not set out with absolute clarity who the responsible officer is to consider an application of a category B firearm that may 'closely resemble' a category D firearm.
•Regulation 26 of the Firearms Regulations contains an 'absolute prohibition' against certain firearms, including category D firearms, but it is not clear if reg 26 arises from the powers bestowed by s 6 or s 11C of the Firearms Act.
•Although reg 26(1) of the Firearms Regulations provides that certain types of firearms in the Table of Prohibited Firearms (including category D firearms) are 'absolutely prohibited', reg 26(2a) nevertheless envisages that category D firearms may be licensed.
•The Table of prohibited firearms and ammunition includes reference to 'a firearm of category D'. Category D firearms include, according to Sch 3 of the Firearms Act, seven subcategories of firearms. Subcategory D1 is the only subcategory that contains the phrase 'a firearm that substantially duplicates such a firearm in design, function, or appearance'.
•Regulation 26B of the Firearms Regulations provides that a licence permit or approval of a firearm that is prohibited under reg 26 cannot be issued, granted or given if 'in the opinion of the Commissioner, the firearm closely resembles' such a prohibited firearm. Regulation 26B of the Firearms Regulations does not state if the regulation was promulgated pursuant to a power arising from s 6 or s 11C of the Firearms Act, nor does it state who the delegated person is to form an opinion on behalf of the Commissioner of Police that a firearm closely resembles a category D firearm.
Who is the appropriate delegated officer to have made the decision?
On the one hand, the delegations set out in reg 25 of the Firearms Regulations are straightforward; namely, that the Assistant Commissioner of Police is responsible for licensing functions in respect of category D firearms (subregulation 4). On the other hand, the same delegations provide that the licensing function of a category B firearm, the calibre similar to the Firearm the subject of this proceeding, is to be performed by a senior sergeant (subregulation 3). The question therefore is: who has the delegated power to make a decision pursuant to reg 26B(2) of the Firearms Regulations?
The answer to the question posed above is not made easier by the test that is applied by a senior sergeant and Assistant Commissioner of Police respectively when a firearm application of a category D firearm is considered. In the case of the powers of a senior sergeant, reg 26B(2) of the Firearms Regulations provides that a licence 'cannot be issued … if …in the opinion of the Commissioner of Police, the firearm closely resembles a firearm that is prohibited under regulation 26 …' (emphasis added). However, when one refers to the definition contained in Sch 3 of the Firearms Act, a category D1 firearm is defined as a self‑loading centre fire rifle, or a firearm that 'substantially duplicates such a firearm in design, function or appearance' (emphasis added) (Sch 3, s 7 of the Firearms Act).
In this proceeding, it is not disputed by the parties that Senior Sergeant Hawkins was the delegated officer, pursuant to reg 25 of the Firearms Regulations, to form an opinion as to whether the Firearm 'closely resembles' a category D firearm. During the hearing, the Tribunal enquired from Mr Marsh whether he took any issue with the authority of Senior Sergeant Hawkins, and Mr Marsh replied in the negative. The Tribunal also enquired from Senior Constable Bagley whether, in his view, the Assistant Commissioner of Police should have made the decision, and Senior Constable Bagley replied in the negative, saying that the Commissioner of Police is satisfied that Senior Sergeant Hawkins was the duly authorised delegate to make the decision.
The Tribunal is in agreement with the parties; namely, that the person who, in accordance with the delegations, can form an opinion on behalf of the Commissioner of Police pursuant to reg 26B(2)(a) of the Firearms Regulations was Senior Sergeant Hawkins. This is because the Firearm is, in calibre, a category B firearm, and a senior sergeant such as Mr Hawkins can perform the functions pursuant to reg 26B(2) of the Firearms Regulations.
Is reg 26B of the Firearms Regulations made pursuant to s 6 or s 11C of the Firearms Act?
The Commissioner of Police cannot, pursuant to s 11(1)(a) of the Firearms Act, approve an application if he is of the opinion that to do so would be contrary to the Firearms Regulations under s 11B or s 11C of the Firearms Act.
Section 11C of the Firearms Act authorises the making of regulations that may 'restrict' the grant, issue, or renewal of firearm licences. Section 11C of the Firearms Act does not make mention of the power to make regulations that 'prohibit' certain firearms. A decision made by or on behalf of the Commissioner of Police pursuant to s 11C of the Firearms Act is subject to review by the Tribunal (s 22 of the Firearms Act). The Commissioner of Police, in its letter of refusal dated 7 January 2013, informed Mr Killen that he had a right of review pursuant to s 22 of the Firearms Act. The Commissioner of Police later revisited its position and now says that the decision is not open to review.
Not all decisions by the Commissioner of Police or his delegate are necessarily open to review. The Tribunal, as a creature of statute, must be bestowed powers of review; otherwise, it cannot review a decision. The Tribunal does not have an inherent power to review all administrative decisions.
Section 6 of the Firearms Act provides that the Governor may make regulations to 'prohibit' the acquisition, sale, possession, or use of any firearms, and that the exercise of any power pursuant to such regulations are, for the purposes of s 22 of the Firearms Act, not taken to be a decision made by the Commissioner of Police or his delegate ‑ in other words, a decision made pursuant to regulations enacted under s 6 of the Firearms Act is not open for review by the Tribunal.
Senior Constable Bagley contends that reg 26 (prohibited firearms and ammunition) of the Firearms Regulations are consistent with the powers granted in s 6 of the Firearms Act and that any firearm that falls within the Table of Prohibited Firearms and Ammunition is prohibited unless such a firearm is licensed under the Firearms Act. In the case of a category D firearm, Senior Constable Bagley says that only the Assistant Commissioner of Police can license such a firearm. Senior Constable Bagley says that the power exercised by Senior Sergeant Hawkins pursuant to reg 26B(2)(a) of the Firearms Regulations derives from s 6 of the Firearms Act, and not from s 11C of the Firearms Act. In this case, therefore, Senior Sergeant Hawkins formed the opinion that the Firearm closely resembles a prohibited category D firearm and the decision is not open to review.
Mr Marsh contends that there is no indication that reg 26 or reg 26B of the Firearms Regulations have been made pursuant to s 6 of the Firearms Act; the exclusion of a review pursuant to s 22 of the Firearms Act therefore does not apply to the decision of Senior Sergeant Hawkins; and the opinion formed by Senior Sergeant Hawkins that the Firearm closely resembles a category D firearm is therefore open to review. Mr Marsh emphasises that restrictions of this nature should be read in the least restrictive manner and, unless it is apparent that reg 26B of the Firearms Regulations was made pursuant to s 6 of the Firearms Act, it should be presumed that it was made pursuant to s 11C of the Firearms Act and that the decision is therefore open to review.
The Tribunal, for the reasons that follow, finds that the decision of Senior Sergeant Hawkins is not open to review by the Tribunal.
The reasons for this finding are:
1)The Tribunal does not accept the contention that reg 26 and reg 26B of the Firearms Regulations must be assumed to arise pursuant to s 11C of the Firearms Act since there is no explicit mention in the Firearms Regulations that reg 26 and reg 26B were made pursuant to s 6 of the Firearms Act. While it may have facilitated the interpretation of the Firearms Act and the Firearms Regulations if it was clearly stated which regulation is made pursuant to which section of the Firearms Act, there is no principle of statutory construction that requires a regulation to specify under which section of the Firearms Act it is made. The mere fact that reg 26 and reg 26B of the Firearms Regulations do not make reference to s 6 of the Firearms Act cannot be taken as presuming the regulations were made pursuant to s 11C of the Firearms Act. The Tribunal is called upon to interpret the Firearms Act and the Firearms Regulations in a manner consistent with the ordinary and grammatical meaning of the text and the principles of statutory interpretation, even if the consequence may be that the outcome restricts the right of review. The construction given by the Tribunal must also seek to promote the purpose or object underlying the Firearms Act and the Firearms Regulations, with the Act and the Regulations being read as a whole. With this in mind, it cannot be said that the absence of some statement in the Firearms Regulations that specifically provides that reg 26 and reg 26B were made pursuant to s 6 of the Firearms Act is to be taken that the said regulations were made pursuant to s 11C of the Firearms Act.
2)The Tribunal accepts that reg 26 of the Firearms Regulations that deals with prohibited firearms and ammunition is consistent with the power set out in s 6 of the Firearms Act, whereby the Governor may issue regulations that prohibit the acquisition, sale, possession or use of any firearm. This conclusion is consistent when the Firearms Act as a whole is read. The power in s 6 of the Firearms Act to enact regulations that prohibit certain firearms gives rise to reg 26 of the Firearms Regulations which prohibits certain firearms. Although s 11C of the Firearms Act also provides for regulations that may 'restrict' the grant, issue or renewal of a firearm licence, there is no reference in s 11C of the Firearms Act to the 'prohibition' of firearms. The 'prohibition' of firearms and ammunition pursuant to reg 26 of the Firearms Regulations and the Table of prohibited firearms and ammunition are, in the view of the Tribunal, consistent with the power arising under s 6 of the Firearms Act. Section 6 of the Firearms Act is the only section that explicitly deals with the 'prohibition' of certain firearms, and reg 26 of the Firearms Regulations gives practical effect to the powers that are provided for in s 6 of the Firearms Act. Regulation 26(1) of the Firearms Regulations prohibits certain firearms unless, in the case of a category D firearm, it is licensed pursuant to subregulation 26(2a) of the Firearms Regulations. The discretion to license a category D firearm is that of the Assistant Commissioner of Police.
3)The powers exercised by Senior Sergeant Hawkins pursuant to reg 26B(2)(a) of the Firearms Regulations also derive from s 6 of the Firearms Act. Regulation 26B of the Firearms Regulation is the only regulation, other than reg 26, in which reference is made to a 'prohibited' firearm under reg 26 of the Firearms Regulations. Although the heading of reg 26B does not refer to prohibited firearms in the same way as the heading to reg 26 does, the heading of reg 26B should be construed within the context of the powers arising under reg 26B(2)(a); namely, that a firearm licence cannot be issued if, in the opinion of the delegated officer, the firearm closely resembles a firearm prohibited pursuant to reg 26 of the Firearms Regulations. These two regulations, reg 26 and reg 26B of the Firearms Regulations, in the assessment of the Tribunal, are to be read as both deriving from s 6, and not from s 11C, of the Firearms Act. In essence, reg 26 prohibits certain firearms and reg 26B provides that a firearm that closely resembles a prohibited firearm cannot be licensed. Senior Sergeant Hawkins therefore acted within his powers to refuse the application on grounds that, in his opinion, the Firearm 'closely resembles a firearm that is prohibited under regulation 26'.
4)A decision made pursuant to reg 26(2)(a) of the Firearms Regulations by the Commissioner of Police or a person delegated by him is therefore not open to be reviewed pursuant to s 22 of the Firearms Act, since such a decision is not, for the purposes of s 22 of the Firearms Act, a 'decision made by or on behalf of the Commissioner' (s 6(1a) of the Firearms Act).
Findings
The Tribunal therefore finds as follows:
•The person who can form an opinion on behalf of the Commissioner of Police pursuant to reg 26B(2)(a) of the Firearms Regulations was Senior Sergeant Hawkins, since the Firearm is, in calibre, a category B firearm.
•Senior Sergeant Hawkins was authorised to form an opinion, pursuant to reg 26B(2)(a) of the Firearms Regulations, that the Firearm closely resembles a firearm that is prohibited under reg 26.
•The power discharged by Senior Sergeant Hawkins arose from reg 26B(2)(b) of the Firearms Regulations which, in turn, was enacted pursuant to s 6 of the Firearms Act.
•The decision of Senior Sergeant Hawkins is not open to be reviewed as a result of s 6(1a) of the Firearms Act.
The application for review of the decision dated 7 January 2013 must therefore be dismissed since the decision falls outside the jurisdiction of the Tribunal.
Order
1.The application is dismissed.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
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