Killen v Commissioner of Police
[2014] WASC 427
•14 NOVEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: KILLEN -v- COMMISSIONER OF POLICE [2014] WASC 427
CORAM: PRITCHARD J
HEARD: 14 MARCH 2014 & ON THE PAPERS BY FURTHER SUBMISSIONS OF 3 & 17 APRIL 2014
DELIVERED : 14 NOVEMBER 2014
FILE NO/S: GDA 12 of 2013
BETWEEN: SCOTT KILLEN
Applicant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :DR B DE VILLIERS (MEMBER)
File No :CC 285 of 2013
Catchwords:
Appeal - Application for leave to appeal - Jurisdiction of State Administrative Tribunal to conduct review of refusal to issue firearm licence - Whether Tribunal able to determine validity of decision made at first instance - Whether Tribunal's review jurisdiction excluded
Legislation:
Firearms Act 1973 (WA)
Firearms Regulations 1974 (WA)
Interpretation Act 1984 (WA)
Rules of the Supreme Court 1971 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Leave to amend grounds of appeal granted
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: Mr P J Marsh
Respondent: Ms J N Harman
Solicitors:
Applicant: Waterside Legal
Respondent: State Solicitor for Western Australia
Cases referred to in judgment:
Chin v Legal Practice Board Western Australia [2009] WASCA 117
Dunbar v Commissioner of Police [2007] WASAT 90; (2007) 51 SR (WA) 318
Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266
Killen and Commissioner of Police [2013] WASAT 118
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Re Adams and The Tax Agents' Board (1976) 12 ALR 239
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50
PRITCHARD J:
Introduction
Mr Killen made an application under the Firearms Act 1973 (WA) (the Act) for a firearm licence[1] in relation to a rifle (the rifle) for use for recreational hunting and shooting. A delegate of the Commissioner of Police (the respondent) refused that application.[2] Mr Killen then made another application for a firearm licence in respect of the rifle, for use in competitions as part of a gun club. The respondent refused that application also (the respondent's decision). The reason for the refusal of the application in both instances was the same, namely that the respondent was satisfied that the rifle resembled a firearm prohibited by reg 26 of the Firearms Regulations 1974 (WA) (the Regulations) and that therefore a licence could not be issued in relation to the rifle, by virtue of reg 26B(2)(a) of the Regulations.
[1] Under s 16(1)(a) of the Firearms Act 1973 (WA), a Firearm Licence entitles the holder to possess, carry and lawfully use the firearm named and identified in that licence, and ammunition for that firearm.
[2] The decision-maker was an officer within the categories of officers permitted by the Firearms Regulations 1974 (WA) to perform the functions of the Commissioner on an application for a licence: see s 5A of the Firearms Act 1973 (WA) and reg 25 of the Firearms Regulations 1974 (WA). An officer acting for the Commissioner is effectively deemed to be a delegate (see s 5A(2) of the Act) but the officer was not named as the respondent in the proceedings before the Tribunal or in this Court. No point was taken about that matter. For convenience, in these reasons for decision I refer to both the decision-maker, and the Commissioner, as the respondent.
Mr Killen sought a review of the respondent's decision in the State Administrative Tribunal (the Tribunal). The Tribunal dismissed the review application on the basis that the Tribunal did not have jurisdiction to review the respondent's decision.
Mr Killen seeks to appeal that decision, pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). He requires leave to do so.[3]
[3] State Administrative Tribunal Act 2004 (WA) s 105(2).
After the hearing of the appeal, Mr Killen sought leave to amend his grounds of appeal, to add a further ground of appeal, so as to better reflect the matters which had been the subject of argument at the hearing of the appeal. The respondent consented to that application, and I granted leave to amend and made orders giving the parties the opportunity to file further written submissions relating to that additional ground of appeal. Mr Killen then filed a Notice of Motion for leave to amend the appeal ground again, this time by substituting a fresh ground of appeal for all of the existing grounds of appeal. The further written submissions filed on his behalf dealt with that new ground of appeal. The respondent did not oppose that application and filed submissions addressing that new ground of appeal.
For the reasons set out below, leave to amend the grounds of appeal to substitute this new ground of appeal should be granted, and leave to appeal on the existing grounds of appeal should be granted, but the appeal should be dismissed.
In these reasons for decision, I deal with the following matters:
1.The background facts and the decision at first instance;
2.The Tribunal's reasons for concluding that it had no jurisdiction to review the respondent's decision;
3.The original grounds of appeal, the application to amend, and the amended ground of appeal;
4.The statutory basis for the appeal and the grant of leave to appeal;
5.Why the appeal should be dismissed; and
6.Conclusion.
The background facts and the decision at first instance
The regulation of firearms under the Act and the Regulations
The Act and the Regulations comprehensively regulate the possession, use, storage, licensing, sale, and disposal of firearms and ammunition in Western Australia. One aspect of that regulation is achieved by establishing different categories of firearms and ammunition.[4] That categorisation has implications for various aspects of the regulation of firearms, such as their acquisition, sale and use[5] and for the penalty applicable to certain offences under the Act.[6] The categories of firearms are set out in sch 3 to the Regulations. Relevantly for present purposes, Category B firearms include various kinds of centre fire rifles, including repeating centre fire rifles, while Category D firearms include self‑loading centre fire rifles,[7] which include, but are not limited to, those
designed or adapted for military purposes or firearms that substantially duplicate firearms of that kind in design, function, or appearance.[8]
Mr Killen's application for a firearm licence
[4] Firearms Regulations 1974 (WA) reg 6A(1), sch 3.
[5] See, for example, Firearms Regulations 1974 (WA) reg 26.
[6] Firearms Regulations 1974 (WA) reg 6B.
[7] Firearms Regulations 1974 (WA) sch 3, cl 7, sub-category D1.
[8] Firearms Regulations 1974 (WA) sch 3, cl 7, sub-category D2.
In his second application for a firearm licence, Mr Killen indicated that he sought the licence in order to purchase a firearm falling within category B, for use as a member of a gun club in order 'to compete in Combined Services rifle shoots' at his local gun range. The firearm serviceability certificate which Mr Killen submitted with his application indicated that the firearm in question was a 0.308 calibre, DTA (Desert Tactical Arms) make, SRS (Stealth Recon Scout) model, Rifle Bolt Repeater with centre fire ammunition, falling within Category B.
The power to grant a licence for a firearm and the Tribunal's review jurisdiction
The Tribunal's review jurisdiction derives from s 22(2) of the Act, which permits a person aggrieved by a decision made by or on behalf of the Commissioner to apply to the Tribunal for a review. A 'decision' includes a restriction, limitation or condition imposed under the Act.[9] That is an inclusive, and not exhaustive, definition. Clearly, a decision to grant or refuse a licence constitutes a 'decision' for the purposes of s 22 of the Act.
[9] Firearms Act 1973 (WA) s 22(1).
The respondent's power to grant a firearm licence derives from s 18(6) of the Act. Whether a licence should be granted depends on the respondent being satisfied of a number of matters, namely that the requirements of s 18 have been satisfied, that there are no grounds upon which the application ought to be refused, and in the case of an application for the first issue of a firearm licence to a person, that the applicant has confirmed his or her desire to proceed with the application after 28 days have elapsed following the making of the application for the licence.[10]
[10] Firearms Act 1973 (WA) s 18(6).
Although the power to grant a licence in s 18 is not limited, on its face, to particular firearms, the Parliament expressly contemplated that certain kinds of firearms should not be licensed. Subsection 6(1a) of the Act indicates that firearms which require the exercise of special precautions may be named in regulations, which prohibit the grant of a licence in respect of those firearms. In so far as it is presently relevant, s 6(1a) provides:
… [T]he Governor … 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.
It is convenient at this point to set out the terms of reg 26B(2)(a) which provides that:
(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.
Under reg 26 of the Regulations, the acquisition, sale, possession or use of firearms specified in the table to that regulation is 'absolutely prohibited'.[11] That table includes a firearm of Category D.
The respondent's decision
[11] Firearms Regulations 1974 (WA) reg 26(1).
The respondent's decision was made on 7 January 2013. There appears to have been some confusion about the reason for his refusal to grant Mr Killen's application for a licence. By letter of 7 January 2013, the respondent stated that he refused the application 'in accordance with s 18(8) of the Act'. The respondent stated:
The reason for this decision is based on the fact I am satisfied it would be contrary to section 11(1)(a) of the Act to issue such a licence or permit.
In particular, under the provisions of Section 11C of the Act … I am satisfied the firearm subject of this application is a firearm of Category D as mentioned in Regulation 26 of the … Regulations.
…
… I am satisfied the firearm sought … substantially duplicates a self‑loading centre fire rifle designed or adapted for military purposes as it duplicates such a firearm in design and appearance as described in Sub‑category D1 of Schedule 3 ‑ Category D firearms.
In the course of proceedings before the Tribunal, the Tribunal referred the matter to the respondent for the purposes of clarifying the respondent's decision, and the basis upon which that decision was made.
In a further letter dated 1 July 2013, an officer acting on behalf of the respondent advised that:
The application is refused pursuant to regulation 26B(2)(a) of the [Regulations] on the basis that a licence cannot be issued because in the opinion of the Commissioner, the firearm closely resembles a firearm that is prohibited under regulation 26 of the Regulations.
On the basis of the Respondent's clarified decision, it is the Respondent's respectful submission that the Tribunal has no power to review the decision made pursuant to regulation 26B(2)(a) of the Regulations, because section 6(1) and (1a) of the Act makes reference to regulations that, for the purposes of review under section 22 of the Act, 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.
…
It is submitted therefore that the provision under which the decision was made namely, regulation 26B(2)(a) of the Regulations, to refuse the application by the Applicant, sits within those regulations referred to in section 6(1) and (1a) of the Act.
Mr Killen sought a review of the respondent's decision by the Tribunal pursuant to s 22 of the Act. As is apparent from the respondent's letter of 1 July 2013, the respondent contended that the Tribunal had no jurisdiction to deal with the review. The question whether the Tribunal had jurisdiction to review the respondent's decision was dealt with as a preliminary question.
The Tribunal's reasons for concluding that it had no jurisdiction to review the respondent's decision
The Tribunal concluded[12] that the respondent's decision was not open to review, for the following reasons.[13] First, it had been argued before the Tribunal that reg 26 and reg 26B of the Regulations were in fact made pursuant to s 11C of the Act. The Tribunal held that simply because there was no statement in the Regulations that reg 26 and reg 26B were made pursuant to s 6 of the Act, it could not be concluded that those regulations were made pursuant to s 11C of the Act. Secondly, the Tribunal concluded that the prohibition of firearms and ammunition under reg 26 of the Regulations was consistent with the power granted under s 6 of the Act. Thirdly, the Tribunal held that the powers exercised by the respondent pursuant to reg 26B(2)(a) of the Regulations derived from s 6, and not from s 11C, of the Act and the respondent was exercising the power in reg 6B to refuse Mr Killen's application because he had formed the opinion that the rifle closely resembled a firearm which was prohibited under reg 26. Finally, the Tribunal held that a decision made pursuant to reg 26B(2)(a) of the Regulations was not open to be reviewed pursuant to s 22 of the Act, by virtue of s 6(1a) of the Act.
[12] Killen and Commissioner of Police [2013] WASAT 118.
[13] Killen and Commissioner of Police [2013] WASAT 118 [26].
In summary, the Tribunal found that the respondent was the decision‑maker who was permitted to form the requisite opinion for the purposes of the respondent's decision (this was not a matter in dispute at the hearing), that the respondent was authorised to form an opinion pursuant to reg 26B(2)(a) of the Regulations that the firearm closely resembled a firearm prohibited under reg 26, that the power exercised by the respondent arose from reg 26B(2)(a) of the Regulations which in turn was enacted pursuant to s 6 of the Act, and as a result the respondent's decision was not open to review by virtue of s 6(1a) of the Act.[14]
The original grounds of appeal, the applications to amend, the grounds, and the amended grounds of appeal
[14] Killen and Commissioner of Police [2013] WASAT 118 [27].
Mr Killen initially sought leave to appeal against the respondent's decision on two grounds:
The Tribunal erred in law when it held that:
(1)The opinion of the Respondent formed for the purpose of reg 26B(2)(a) [of the Regulations] was excluded from review by the Tribunal by s 6(1a) [of the Act] when it should have held:
(i)that the formation of the opinion was not an exercise of any power pursuant to reg 26B; and/or
(ii)that the question posed by reg 26B(2)(a) is a question of whether the firearm under consideration fell within a description given in the Regulations and on the proper construction of s 6(1a) the answer to that question determines if s 6(1a) excludes review by the Tribunal or not.
(2)The opinion of the Respondent formed for the purpose of reg 26B(2)(a) is excluded from decisions reviewable by the Tribunal by s 6(1a) [of the Act] without consideration of the basis for that opinion when it should have held:
(i)The opinion of the Respondent required by reg 26B(2)(a) is (relevantly) a precondition to the Respondent's exercise of a power pursuant to that regulation.
(ii)The holding of the opinion on a lawful and proper basis is necessary if reg 26B is to apply.
(iii)The lawful and proper basis of the Respondent's opinion is a jurisdictional question for the Tribunal.
Shortly after the hearing of the appeal, Mr Killen's solicitors filed a minute of consent orders, seeking leave to amend the grounds of appeal by adding a further alternative ground of appeal. As I have already noted, I granted leave to amend the grounds of appeal. The third ground of appeal was expressed in the following terms:
(3)The Tribunal erred in law by finding that the [respondent's decision] was not a reviewable decision because the decision was made in the exercise of a power in regulation 26B(2)(a) of the [Regulations] which power was excluded from reviewable decisions by s 6(1a) of the [Act] when it should have found that the decision was a reviewable decision because:
(a)The decision had been made by the Respondent in the exercise of the power to refuse an application for a firearm licence arising from s 18 of the [Act];
(b)(i)Regulation 26B(2)(a), on its proper construction, prohibited the Respondent from issuing a firearm licence if the Respondent was satisfied the relevant firearm was as described in the sub-regulation and did not provide any power to the Respondent within the meaning of the words
… 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
that appear in s 6(1a) of the [Act].
Or;
(ii)Even if Regulation 26B(2)(a) did involve the exercise of a power caught by those words the result was irrelevant to the jurisdiction of the Tribunal because the decision was not made in the exercise of that power and whether it falls within s 22 of the [Act] or not is irrelevant to the jurisdiction of the Tribunal.
After the hearing of the appeal, Mr Killen's solicitors applied for orders that a different ground of appeal, in the following terms, be substituted for all other grounds:
1.The Tribunal erred in law by finding that the [respondent's decision] was not a reviewable decision on the grounds the decision was made in the exercise of a power in reg 26B(2)(a) of the [Regulations] which power was excluded from reviewable decisions by s 6(1a) of the [Act] when it should have:
(a)Found that the decision had been made by the Respondent in the exercise of the power to refuse an application for a firearm licence arising from s 18 of the [Act]; and
(b)Found that the question of whether the Respondent had in fact formed the opinion required by reg 26B(2)(a) was a jurisdictional question for the Tribunal because:
(i)If that question was answered yes, the Respondent had acted pursuant to the Regulation in refusing the licence and the decision was excluded from review by s 6(1a) of the Act;
(ii)If that question was answered no, the Respondent had not acted pursuant to the Regulation, the decision was not caught by s 6(1a) and was a reviewable decision.
(c)And then considered and answered that question on its substantial merits and proceeded in accordance with the answer.
In making that application to amend, Mr Killen relied on O 21 r 7 of the Rules of the Supreme Court 1971 (WA). In the exercise of the discretion to permit an amendment, the overriding principle is whether it is in the interests of justice for leave to amend to be granted. A wide range of considerations may be relevant, such as the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences to the parties of the grant or refusal of leave to amend, the merits of the proposed amendments, and in a case of the present kind, whether the ground of appeal reflects a matter advanced at first instance.
In the present case, the substituted ground of appeal is, in essence, a further refinement of the argument advanced at the hearing. Although the application to amend was made after the hearing, the respondent did not oppose the application to amend nor suggest any prejudice as a result of the proposed amendment, and the respondent filed submissions addressing why the proposed new ground of appeal should not be upheld. The focus of the proposed ground of appeal is on issues which do not appear to have been specifically ventilated before the Tribunal, and that is a factor which militates against the grant of leave. However, the proposed substituted ground of appeal raises questions of law relating to the construction of the Act and the Regulations and those questions, in broad terms, were raised before the Tribunal, and were not so devoid of merit as to warrant leave to amend being refused. Furthermore, it is in the interests of justice for the Court to deal with the nub of the legal issues that Mr Killen seeks to advance in challenging the respondent's decision. Taking all of these factors into account, I have concluded that leave to amend the grounds of appeal should be granted.
The statutory basis for the appeal and the grant of leave to appeal
A party to a proceeding before the Tribunal may appeal from a decision of the Tribunal, subject to the grant of leave to appeal.[15] Mr Killen seeks that leave. An appeal under s 105 may only be brought on a question of law.[16]
[15] State Administrative Tribunal Act 2004 (WA) s 105(1).
[16] State Administrative Tribunal Act 2004 (WA) s 105(2).
In determining whether leave to appeal should be granted, the first question for consideration is whether the appeal raises a question of law. Once it is determined that that is so, leave to appeal should be granted if, in all of the circumstances, it is in the interests of justice to do so.[17] Whether it is in the interests of justice to grant leave to appeal will be informed by a variety of considerations, including the importance of the question of law, whether there is sufficient doubt about it to justify the grant of leave and whether substantial injustice would result if the error of law were not corrected.[18]
[17] Chin v Legal Practice Board Western Australia [2009] WASCA 117 [12] (Pullin & Newnes JJA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 [16] (Buss JA, Wheeler JA & Pullin JA agreeing).
[18] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 [17] ‑ [18] (Buss JA, Wheeler JA & Pullin JA agreeing).
The ground of appeal clearly raises questions of law. It raises questions about the proper construction of the Act, and it is in the interests of justice that leave to appeal be granted.
Why the ground of appeal should be dismissed
The ground of appeal raises three issues: the basis for the respondent's decision, the meaning of the words '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' in s 6(1a) of the Act, and whether the Tribunal was required to determine whether the respondent's decision constituted a valid exercise of power pursuant to reg 26B(2)(a) of the Regulations, in order to determine whether the Tribunal's review jurisdiction was excluded.
The basis for the respondent's decision
Paragraph 1(a) of Mr Killen's ground of appeal contends that the Tribunal should have found that the respondent's decision was made under s 18 of the Act. The precise basis on which Mr Killen contended that the Tribunal could do this was not entirely clear. Counsel for Mr Killen simply asserted that the respondent's decision constituted the exercise of a power under s 18 of the Act.[19]
[19] Appellant's Additional Outline of Submissions, 3 April 2014 [15].
In this case, the respondent initially indicated that the decision was made under s 18 of the Act. As I have noted, later clarification was provided, to the effect that the respondent's decision to refuse Mr Killen's application was in fact made pursuant to reg 26B(2)(a) of the Regulations. In the face of the respondent's reliance on reg 26B(2)(a) of the Regulations as the statutory basis for the respondent's decision, there was no basis on which the Tribunal could have made a finding that as a matter of fact the respondent's decision was made under s 18 of the Act.
Further, there may occasionally be cases where the Tribunal forms the impression that a decision‑maker may have made a mistake in the expression of his or her reasons for decision, by indicating that a decision was made pursuant to a particular provision when it appears that the decision was actually made pursuant to another provision. In a case of that kind, it is open to the Tribunal to invite the decision‑maker to reconsider the decision,[20] or to clarify the basis for the decision (as appears to have occurred here). But where there is no doubt about the statutory basis on which a decision‑maker claims to rely, it is not open to the Tribunal to disregard that basis, and effectively to re‑cast the decision in question as a decision made pursuant to some other statutory power. The Tribunal's review jurisdiction depends on an enabling Act granting the Tribunal jurisdiction to deal with the exercise of a particular statutory power.[21] To re‑cast a decision under review as having been made under a different statutory provision would be wholly inconsistent with that premise for the Tribunal's review jurisdiction.
[20] State Administrative Tribunal Act 2004 (WA) s 31(1).
[21] State Administrative Tribunal Act 2004 (WA) s 17(1).
In addition, it is not open to the Tribunal to deal with a matter that is different in essence from the matter which was before the decision‑maker[22] or, in the course of a review, to exercise a power different from the statutory power said to have been exercised by the decision‑maker.[23] Yet to treat the respondent's decision as having been made in the exercise of the power under s 18 of the Act, when the respondent had relied on the power in reg 26B(2)(a) of the Regulations, would have been to do precisely that.
[22] State Administrative Tribunal Act 2004 (WA) s 29(9)
[23] Cf Dunbar v Commissioner of Police [2007] WASAT 90; (2007) 51 SR (WA) 318, 321 [19] (Deputy President Chaney); referred to with approval in The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50, [18] ‑ [19] (Pullin JA, Newnes JA & Murphy JA agreeing).
It is true that the Tribunal may set aside a decision that is being reviewed and substitute its own decision or send the matter back to the decision‑maker for reconsideration.[24] But the Tribunal's power to set aside a decision depends on it reaching the conclusion, in the exercise of its review jurisdiction, that the original decision did not represent the correct and preferable decision in the exercise of the same statutory discretion as was exercised by the decision‑maker at first instance.[25]
[24] State Administrative Tribunal Act 2004 (WA) s 29(3).
[25] State Administrative Tribunal Act 2004 (WA) s 27(2).
What is at the heart of this part of the ground of appeal, however, is the contention that the respondent's decision was not one which could be said to have been made, or validly made, under reg 26B(2)(a), so that it should have been characterised as a decision made under s 18 of the Act. I deal with that contention below.
The meaning of the words in s 6(1a) of the Act
It is trite law that as a creature of statute, the Tribunal has only the jurisdiction conferred on it by legislation.[26] As I have noted, the Tribunal has power to review a 'decision' of the respondent pursuant to s 22 of the Act. The question for present purposes is whether that review jurisdiction is excluded by virtue of the operation of s 6(1a) of the Act.
[26] State Administration Tribunal Act 2004 (WA) s 13(1).
Subsection 6(1a) operates in two ways. First, the subsection contains a grant of a regulation-making power. The regulations able to be made under s 6(1a) include regulations which will effectively exclude the power to grant a licence under s 18 of the Act with respect to certain firearms identified in those regulations. That is because s 6(1a) contemplates that the regulations which it permits to be made may direct that no licence relating to particular firearms be given, whereas the power to grant a licence under s 18 contains no limitation by reference to the firearms which may be licensed. (In that sense, s 6(1a) may be characterised as, or as analogous to, what is commonly known as a 'Henry VIII clause' because it constitutes a power to amend the Act by regulation.[27]) Secondly, s 6(1a) excludes the Tribunal's review jurisdiction in respect of certain decisions, namely those made in the exercise of power pursuant to the regulations made under s 6(1a) of the Act.
[27] See the discussion in Pearce D and Argument S, Delegated Legislation in Australia (4th ed, 2012) 292 ‑ 293 [19.8] and 22 ‑ 23 [1.23].
There was no dispute between the parties that reg 26B of the Regulations is a regulation of the kind contemplated in s 6(1a) of the Act. I accept that that is so. Regulation 26B, like reg 26, relates to firearms that are evidently thought to require the exercise of special precautions, having regard to their nature or characteristics. In the case of the firearms the subject of reg 26B, the special precaution imposed is a direction that a licence, permit or approval cannot be issued, granted or given in respect of those firearms. The firearms the subject of that special precaution are described or identified in reg 26B, and include those firearms which in the respondent's opinion closely resemble firearms that are prohibited under reg 26.
The question raised by the ground of appeal is whether the respondent's decision constituted 'an exercise of any power pursuant to those regulations' so as to be excluded from the Tribunal's review jurisdiction under s 22 of the Act. The word 'power' includes 'any privilege, authority or discretion'.[28] On the formation of the opinion that a firearm closely resembles a firearm that is prohibited under reg 26 of the Regulations, the Commissioner is prohibited from granting a licence, permit or approval relating to that firearm. In that sense, the Commissioner has the authority (that is, the power) to decline an application for a licence for that firearm, and indeed must do so, even if all of the requirements of s 18 of the Act are met and there are no other grounds under the Act on which the licence should be refused.
[28] Interpretation Act 1984 (WA) s 5.
The case advanced by Mr Killen is that the words 'pursuant to' mean 'in accordance with' or 'consequent on'. I accept that the ordinary and natural meaning of the words 'pursuant to' means 'in accordance with'.[29] The respondent's decision, as clarified, indicated that Mr Killen's application for a firearm licence was refused 'pursuant to' reg 26B(2)(a) of the Regulations on the basis that the respondent had formed the opinion that the rifle closely resembled a firearm prohibited under reg 26 of the Regulations. In my view, the respondent's statement that he had formed that opinion, and that that was the reason why he would not issue a licence for the rifle, was sufficient to indicate that the respondent's decision constituted an exercise of power pursuant to reg 26B(2)(a). As that regulation was made under s 6(1a) of the Act, the respondent's decision was not a 'decision' of the kind which is subject to the review jurisdiction of the Tribunal.
Whether the Tribunal was required to ascertain whether the respondent's decision constituted a valid exercise of power under reg 26B(2)(a)
[29] Oxford English Dictionary, full online edition, definition B2.
However, Mr Killen's ground of appeal goes one step further. His case is that in order to ascertain whether it had jurisdiction, the Tribunal had to form a view as to whether the respondent had in fact formed the opinion required by reg 26B(2)(a). The contention appeared to be that the Tribunal had to determine whether the respondent correctly formed the opinion which founded the exercise of the power in reg 26B(2)(a) and thus to determine whether there was a valid exercise of that power. The argument proceeded that if the respondent's decision was not one made under reg 26B(2)(a), it could not be described as a decision which was excluded from the Tribunal's jurisdiction by virtue of s 6(1a) of the Act,[30] and that would have the result that the Tribunal would have jurisdiction to undertake a review of the respondent's decision. Those contentions cannot be accepted, for three reasons.
[30] Appellant's additional outline of submissions, 3 April 2014 [18].
First, in ascertaining whether it had jurisdiction to conduct a review of the respondent's decision, it was necessary for the Tribunal to form an opinion about the limits of its own authority.[31] Accordingly, the Tribunal had to ascertain whether the respondent's decision constituted a 'decision' for the purposes of s 22 of the Act. In determining that question, it was incumbent upon the Tribunal to construe s 6(1a) of the Act so as to understand what was excluded from its jurisdiction, and then to ascertain whether the respondent's decision was a decision of the kind excluded by s 6(1a). To do that, it was sufficient for the Tribunal to be satisfied that in making the respondent's decision, the respondent had exercised (or purported to exercise) a power in the regulations referred to in s 6(1a).
[31] Re Adams and The Tax Agents' Board (1976) 12 ALR 239, 242 (Brennan J); see also Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266, 271 [21] (Deputy President Chaney).
Nothing in the SAT Act or the Act confers jurisdiction on the Tribunal to make determinations about the validity of a decision made by a decision‑maker at first instance. Furthermore, the terms of s 6(1a) militate against the contrary conclusion. The words 'for the purposes of section 22 the exercise of any power pursuant to those regulations shall not be taken to have been a decision' clearly convey the Parliament's intention that the Tribunal would not engage in any review (that is, any merits review) of a decision made in the exercise of a power under reg 26B(2)(a). The conclusion that the Tribunal could make a determination of the validity of a decision said to have been made in the exercise of that power would sit uncomfortably with that intention.
Secondly, for the Tribunal to undertake the task of determining whether the respondent's decision was a valid exercise of the power under reg 26B(2)(a) would be tantamount to the Tribunal engaging in judicial review. The SAT Act draws a clear distinction between judicial review, and the merits review which the Tribunal exercises in its review jurisdiction.[32] It is clear from the terms of the SAT Act as a whole, and s 19 in particular, that the Tribunal does not have jurisdiction to engage in judicial review and to pronounce, with any legal effect, on the validity of the acts of the decision‑makers whose decisions it is called upon to review.
[32] State Administrative Tribunal Act 2004 (WA) s 19.
Thirdly, the flaw in the contentions advanced on Mr Killen's behalf can be illustrated by looking to the outcome if those contentions were correct. Even if the Tribunal were to conclude that the respondent's decision was not validly made in the exercise of power under reg 26B(2)(a) of the Regulations, it would necessarily follow that the Tribunal would regard the respondent's decision as, in effect, no decision at all.[33] The logical consequence of that conclusion, however, would be that there would be no decision for the Tribunal to review. For the reasons set out above, the Tribunal could not then approach the respondent's decision as though it were a decision made under s 18 of the Act, so as to enable the Tribunal to proceed to conduct a review of that decision.
[33] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476, 506 [76] (Gaudron, McHugh, Gummow, Kirby & Hayne JJ); Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 614 ‑ 615 [51] (Gaudron & Gummow JJ), 618 [63] (McHugh J), 646 ‑ 647 [152] (Hayne J).
Conclusion and orders
In my view, there was no error in the Tribunal's approach. It construed s 6(1a) of the Act, concluded that reg 26B(2)(a) of the Regulations was a regulation of the kind contemplated in s 6 of the Act, and concluded that the respondent's decision was an exercise of power under that regulation. Consequently, the Tribunal correctly concluded that it had no jurisdiction to review the respondent's decision. Any challenge Mr Killen may have wished to make to the validity of the respondent's decision should have been pursued through an application for judicial review.
The appeal should therefore be dismissed.
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