Knight v Commissioner of Police - [2011] WASC 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KNIGHT -v- COMMISSIONER OF POLICE [2011] WASC 93

CORAM: EM HEENAN J

HEARD: 18 FEBRUARY 2011

DELIVERED : 13 APRIL 2011

FILE NO/S: GDA 12 of 2010

MATTER :State Administrative Tribunals Act 2004 Pt 5
AND
Matter Number CC273 of 2010 in the State Administrative Tribunal

BETWEEN: ANTHONY GLEN KNIGHT
Applicant
AND
COMMISSIONER OF POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :DR B DE VILLIERS (MEMBER)
Citation  :KNIGHT AND COMMISSIONER OF POLICE WASAT [2010] 104
File No  :CC 273 of 2010

Catchwords:

Administrative law - Application for leave to appeal from SAT - Appeal on question of law - Grounds for leave to appeal - Firearms Act 1973 (WA) s 11 and s 20 - Revocation of firearms licences by Commissioner of Police - Exercise of personal statutory power - Earlier prosecution for breach of Firearms Act, upon conviction refusal by magistrate to disqualify licensee from holding firearms licence Sentencing Act 1995 (WA) s 106 - Whether Commissioner's statutory power can be exercised following refusal by magistrate to disqualify licensee - Alleged res judicata - Alleged issue estoppel - Judicial power and executive power - Whether appellant a fit and proper person -

Legislation:

Firearms Act 1973 (WA), s 20(1)
Sentencing Act 1995(WA) s 106
State Administrative Tribunal Act 2004 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Applicant: Mr A P Skerritt
Respondent: Ms D Scaddan

Solicitors:

Applicant: Alana Padmanabham
Respondent: WA Police Legal Services

Case(s) referred to in judgment(s):

Blair & Public Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464
Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646
City of Enfield v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135
Coumbe v Whittaker [1999] WASCA 151
Enever v The King (1906) 3 CLR 969
Foley v Padley (1984) 154 CLR 349
Horsman v Bishop [2000] WASCA 316
Jackson v Goldsmith (1950) 81 CLR 446
Kanda v Government of the Federation of Malaya [1962] AC 322
Kioa v West (1985) 159 CLR 550
Kruger v Commonwealth (1997) 190 CLR 1
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Lockyer v Ferryman (1877) 2 App Cas 519
Marginson v Blackburn Borough Council [1939] 2 KB 426
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minitti v Commissioner of Police [2010] WASCA 198
NCSC v News Corporation Ltd (1984) 156 CLR 296
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; 33 WAR 361
Parkin v James (1905) 2 CLR 315
Penketh v Commissioner of Police [2010] WASC 254
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
R v Storey (1978) 140 CLR 364
Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246
Rogers v The Queen (1994) 181 CLR 251
Schamotta v The Queen [2002] WASCA 262
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Wignall v Commissioner of Police [2006] WASAT 206

EM HEENAN J: This is an application for leave to appeal and, if leave is granted, the hearing of the appeal from a decision of the State Administrative Tribunal (SAT) dismissing Mr Anthony Knight's application for review of a decision made by the Commissioner of Police, acting under s 20(1) of the Firearms Act1973 (WA) (the Act), to revoke the applicant's firearms licence.
On 22 April 2008 in the Magistrates Court at Karratha the appellant pleaded guilty to two charges of failing to ensure the safe keeping of a firearm and ammunition contrary to s 23(9)(a) of the Firearms Act. He was thereupon convicted and her Honour, Magistrate Campione, heard submissions in relation to the sentences to be imposed. The police prosecutor sought the revocation of the appellant's firearms licence pursuant to s 106 of the Sentencing Act 1995 (WA) and pointed out that these latest convictions meant that the appellant then had four convictions for firearms offences under that Act. Submissions were made in mitigation by counsel for the appellant, including a submission that there should be no order for revocation or disqualification of the firearms licence under s 106 of the Act. Her Honour reserved her decision on penalty until 29 April 2008, but on that date fined the appellant $1,500 for each of the two offences and ordered him to pay costs fixed at $110.20. Her Honour refused the application by the prosecution for the disqualification or suspension of the appellant's firearms licence on the basis that her Honour was satisfied that he was a sports shooter; that the value of the rifles and ammunition concerned was considerable; and that the appellant had not been involved in any dishonest or criminal activity but had failed to meet the safe keeping standards of the weapons and ammunition through ignorance.
On 23 September 2009 Mr Knight made an application for an addition to his firearms licence for two additional firearms, a Taurus self‑loader repeater ‑ 9 mm handgun, and another rifle. After considering these applications, on 17 February 2010 a delegate of the Commissioner determined that the appellant was not a fit and proper person to hold a firearms licence pursuant to s 11(3)(a)(iii) of the Firearms Act and, accordingly, revoked the appellant's existing firearms licence pursuant to s 20(1)(a)(iii) and also refused to license the two additional firearms.
The basis for this conclusion that the appellant was not a fit and proper person to hold a firearms licence was the appellant's prior record of convictions, including the two convictions of April 2008. There had been no material changes in the appellant's circumstances, conduct or record of convictions between April 2008 and February 2010. This led to the submission that the respondent had revoked the appellant's firearms licences in February 2010 upon grounds which were indistinguishable from those which had been put to the magistrate in April 2008 in support of the application for the suspension or disqualification of his firearms licences, which the magistrate then refused.
Accordingly, the appellant now submits that the respondent was not at liberty to revoke his licence in February 2010, being prevented from doing so by the doctrine of res judicata or, alternatively, because of an issue estoppel. Those contentions were rejected when the appellant sought a review of the respondent's decision in the State Administrative Tribunal. The Tribunal affirmed the respondent's decision on 19 July 2010, and it is from that decision of the SAT that the appellant now seeks leave to appeal to this court pursuant to s 105(3)(b) of the State Administrative Tribunal Act 2004 (WA).
In the circumstances of this case, by virtue of s 105(2) of the SAT Act, an appeal can only be brought on a question of law and, by s 105(1), only if this court grants leave to appeal. Leave to appeal will be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave ‑ Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [16]; 33 WAR 361. For a grant of leave, it is necessary for the applicant to identify a question of law upon which there are reasonably arguable prospects that the appeal may succeed, in the sense that there is sufficient doubt about the decision of the SAT to justify the grant of leave and to show that substantial injustice would occur if the error of law were to go uncorrected ‑ Minitti v Commissioner of Police [2010] WASCA 198 [3].
The appeal notice lodged in this court on 27 July 2010 advances four proposed grounds of appeal, namely:
(1)the learned member erred in law in failing to apply the doctrine of res judicata;
(2)the learned member erred in law in denying the appellant natural justice by denying the appellant the right to be properly heard;
(3)the learned member erred in law in failing to apply the proper legal test for a fit and proper person in respect of the firearms licence; and
(4)the learned member denied the appellant natural justice and thus erred in law in failing to consider relevant considerations and by considering irrelevant considerations.
On 12 September 2010 Jenkins J made orders and gave directions upon the papers in relation to the application for leave to appeal. Her Honour then ordered that the application for leave to appeal be listed for hearing at the same time as the appeal and made a series of directions about the procedure to be followed.
The appellant did not pursue ground 4 of the proposed grounds of appeal, relying only upon the preceding three grounds. I was satisfied that if any of these were to be made out, that would constitute an error of law by the Tribunal, and I was also satisfied that the course of proceedings have given rise to reasonably arguable bases for contending that errors of the kinds alleged may have occurred. For that reason, I am satisfied that leave to appeal should be granted in respect of each of those three grounds.
By virtue of s 105(9) of the SAT Act the powers of this court when dealing with an appeal provide that this court may:
(a)affirm, vary or set aside the decision of the Tribunal;
(b)make any decision that the Tribunal could have made in the proceedings; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate
and, in any case, make any order that the court considers appropriate.
The orders sought by the appellant, in the event that this appeal were to succeed, are that:
(1)the appeal be allowed;
(2)the order affirming the decision of the respondent revoking the appellant's firearms licence made by the State Administrative Tribunal on 19 July 2010 be set aside;
(3)the respondent be ordered to grant the appellant a firearms licence; and
(4)the respondent pay the appellant's costs of the appeal.

Statutory background

This narrative has already illustrated the existence of two separate statutory provisions which may result in the revocation, suspension or cancellation of a firearms licence. In this present case, the first attempt to invoke such a statutory power was the unsuccessful application by the prosecutor in the Magistrates Court in April 2008 following the appellant's convictions. That submission sought to invoke the court's powers under s 106 of the Sentencing Act which, so far as they are material, are:
106Firearms licence etc.: disqualification
(1)A court sentencing an offender for an offence specified in subsection (4a) may order that, for a term set by the court, the offender be disqualified from holding or obtaining a licence or a permit or an approval, or any particular licence, permit or approval, under the Firearms Act 1973.
(2)The term is concurrent with the term of any other such order which the offender is subject to, unless the court orders that it is to be cumulative on any such term.
(3)When an order is made under subsection (1), by force of this subsection any relevant licence, permit or approval held by the offender under the Firearms Act 1973 ‑
(a)is suspended and has no effect for so long as the disqualification order is in force; or
(b)if the order so specifies, is cancelled.
(4)The court must ensure that details of the offence and the order are made known to the Commissioner of Police.
(4a)This section applies to ‑
(a)a firearms offence;
(b)an offence involving assault with a weapon;
(c)an offence involving violence.
Plainly, the powers conferred upon the court under s 106 can only be exercised in the event that the holder of the firearms licence has been convicted and is being sentenced for a particular offence or offences by that court. Accordingly, any order made by a court in the exercise of that power will be a judicial decision and will form part of the sentence which the court imposes for a particular offence or offences which are then being dealt with.
By contrast, the power exercisable by the Commissioner of Police under the Firearms Act, which was the subject of review by the decision of the SAT and which is now under appeal to this court, is not a power conferred upon any court or judicial officer. Nor is it exercisable in, or in connection with, any judicial proceedings. It is an express statutory power conferred upon the Commissioner who, subject to the responsibility of the Minister, has the carriage of the administration of the Firearms Act ‑ s 5(1) and (2). By its long title, the Firearms Act 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, and for incidental and other purposes. It is, therefore, part of a regulatory regime for the control and licensing of firearms which, additionally, creates a series of offences.
In relation to the licensing and control of firearms, s 16 of the Firearms Act provides for a variety of different types of licences which may be granted to eligible applicants and s 18 sets out a procedure to be followed by a person who wishes to apply for a licence or permit under the Act. Section 9A provides for the duration and renewal of licences which have been granted, and the duration of different types of licences varies. However, for firearms licences of the type held by the appellant, these are valid for a period of 12 months from the day on which they were issued or last renewed under s 9A(3). That implies that the appellant's firearms licences must have been renewed, without apparent objection, at least once between the date of his last convictions in the Magistrates Court in April 2008 and the revocation of those licences and the refusal of the application for additional licences in February 2010.
The Firearms Act proceeds on the basis that the issue of firearms licences is a discretionary power of the Commissioner. Section 11, insofar as presently material, provides:
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.
(2)Where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold an approval, permit, or licence.
(3)The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner ‑
(a)is satisfied that at any time within the period of 5 years before the person applies for the approval, permit or licence ‑
(i)the person was convicted of an offence involving assault with a weapon;
(ii)the person was convicted of an offence involving violence;
(iii)the person was convicted of any offence against this Act; or
(iv)a violence restraining order was made against the person,
whether in this State or in any other place;
(b)is satisfied that the person fails to meet standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence; or
(c)suspects, on the basis of an intelligence report or other information held in relation to the person, that the person is a threat to public safety.
…
(5)The Commissioner may form an opinion that a person is a fit and proper person to hold an approval, permit or licence under this Act in a case in which the Commissioner has a sufficient ground under subsection (3) for forming the contrary opinion.
(6)Subsection (3) does not limit the Commissioner’s ability, when forming an opinion as to whether a person is a fit and proper person to hold an approval, permit or licence under this Act, to take into account ‑
(a)a conviction or order made outside the period of 5 years referred to in paragraph (a) of that subsection; or
(b)anything else that could have been taken into account if that subsection had not been enacted.
The Firearms Act also provides, by s 20, extensive powers for the Commissioner to refuse to renew or to revoke any licence, permit or approval granted under the Act or to impose restrictions, limitations or conditions upon that licence or to cancel the licence. So far as presently material, s 20 provides:
20. Revocation etc.
(1)Where the Commissioner is satisfied ‑
(a)that a person who is the holder of a licence, permit or approval under this Act ‑
...
(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;
…
he may refuse to renew or may revoke any licence, permit or approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon.
Obviously, section 20(1)(a)(iii) enables the Commissioner to revoke any such licence, permit or approval if he is satisfied that, under s 11(1)(c), that person is not a fit and proper person to hold the approval, permit or licence ‑ which are the grounds relied upon by the Commissioner for the revocation of the appellant's licences in the present instance.
However, this abbreviated summary of the provisions of s 20 of the Firearms Act must not be regarded as implying that those are the only circumstances or considerations which might lead to the exercise by the Commissioner of his statutory power under s 20 to refuse to renew, or to revoke, any such licence, permit or approval or to impose restrictions. The provisions of s 20(1)(a), (aa), (ab), (ac), (ad) to (d) and s 20(1a) provide for many other instances in which the power of revocation or refusal to renew or the imposition of restrictions may arise including, expressly under s 20(1)(ac), that to do so would be in the public interest.
For present purposes, the significance of this breadth of the power of revocation is to demonstrate that it may arise and be exercised by the Commissioner in many instances which would not involve the licensee committing an offence against the provisions of the Firearms Act or other laws, and without the alleged conduct of the licensee, or the circumstances said to give rise to the power of revocation, refusal to renew or the imposition of restrictions, becoming cognizable by a court. It follows from this that the statutory power of revocation, or refusal to renew a firearms licence or to impose restrictions upon it granted to the Commissioner by s 20 is far more extensive and ample than the power granted to a court when sentencing an offender for a firearms offence as conferred by s 106 of the Sentencing Act.
Section 22(2) of the Firearms Act provides that a person aggrieved by a decision made by or on behalf of the Commissioner under that Act may apply to the SAT for a review of the decision and such a decision includes a restriction, limitation or condition imposed under the Act. This is the provision which confers the statutory power of review of the exercise of the Commissioner's power under s 20 by the SAT. This is in itself significant because it is a clear recognition that the Commissioner's power is not a judicial power but an administrative one and that, accordingly, the express right of review so conferred should be undertaken by an administrative rather than a judicial tribunal. This does not, of course, mean that such powers, even if reviewable by the SAT, cannot be the subject of judicial review proceedings by way of prerogative remedies or by declaratory judgment or otherwise, such as, for example, by injunction, although the provisions of s 19 of the SAT Act will prevent or limit the possibility of situations where there might, otherwise, be parallel proceedings in train where one set of proceedings is seeking administrative review and the other judicial review. Nevertheless, the provisions of s 22 of the Firearms Act are yet another example that the power conferred on the Commissioner by s 20 of that Act is an express statutory power which is not a judicial power, in contrast to the power conferred upon a court under s 106 of the Sentencing Act.

Accountability for exercise of personal statutory power

Despite the breadth of the power conferred upon the Commissioner by s 20, it is not unconfined nor is it unreviewable. As Mason J said in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 39 ‑ 40, with regard to relevant considerations which an administrative decision‑maker is obliged to take into account and, similarly, with respect to irrelevant considerations which the administrative decision‑maker was obliged to avoid:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors ‑ and in this context I use this expression to refer to the factors which the decision-maker is bound to consider ‑ are not expressly stated, they must be determined by implication from the subject‑matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …
So it has been said that 'all public power has its limits' ‑Aronson, Dyer & Groves, Judicial Review of Administrative Action (4th ed) [3.10] and in this respect see also Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. In Kruger v Commonwealth (1997) 190 CLR 1, 36 Brennan CJ observed that:
when a discretionary power is statutorily conferred on the repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised …
On an earlier occasion in Foley v Padley (1984) 154 CLR 349, 367 ‑ 368 Brennan J (as he then was) had also said:
The plethora of administrative discretions nowadays created by subordinate legislation constitutes a large well of power. But the well is not fed by unexaminable springs. The source of discretionary power can always be traced to the statute …
In the case of Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476, 513 Gaudron, McHugh, Gummow, Kirby and Hayne JJ explained how, at least in the federal sphere, a grant of an unconstrained discretion upon a minister or a public official may be invalid because, among several other reasons, it would lack that hallmark of the exercise of legislative power, namely, the determination of the content of a law as a rule of conduct or a declaration as to a power, right or duty. There seems to be reason to accept that similar reasoning would lead to invalidity of an attempt to confer such an unconfined discretion upon a State officer under any particular legislative provision, because an attempt to confer such a power without limitation would be irreconcilable with the specific purposes for which the empowering statute was enacted, whether these be stated expressly or whether they emerge only by implication from the statute considered as a whole.

Potential consequences of having two independent sources of power to revoke firearms licences

The mere existence of two separate sources of power enabling, in designated circumstances, a firearms licence to be suspended, revoked or cancelled, is enough to demonstrate the potential that different consequences, and even inconsistent consequences, may result if the different repositories exercise that power, in respect of a particular licensee, either in relation to the same or different circumstances or at proximate times. This case is an example in point of how different consequences for a licensee can arise by different repositories exercising their distinct powers in different ways. Underlying the issues raised by the parties in this appeal is the more fundamental question of whether these powers can only be exercised consistently with each other or, if one of the powers is exercised, no different use of the other power may be exercised except if there are materially changed circumstances.
The perspective from which these underlying questions have been viewed by the appellant is by submitting that the employment of the power by the Commissioner under s 20 of the Firearms Act in this case was impermissible because of the doctrines of res judicata or, alternatively, issue estoppel. It is necessary, therefore, to turn to the principles applying under those doctrines.

Attempts to distinguish between nature of powers

A series of submissions was advanced by counsel for the respondent in an attempt to show that the powers available to a magistrate under s 106 of the Sentencing Act were different in character or nature from the powers available to the Commissioner under s 20 of the Firearms Act and, therefore, that any exercise of the former power by a magistrate did not in any way inhibit the exercise of powers by the Commissioner under the latter. In support of that submission counsel cited Penketh v Commissioner of Police [2010] WASC 254, which was a case dealing with an appeal to this court from a decision of the SAT refusing an application to review and affirming a decision of the Commissioner of Police to revoke firearms licences and, in particular, dealing with what constituted an appropriate test for a 'fit and proper person' under s 11(1)(c) of the Firearms Act. At [97] of his reasons Simmonds J addressed a submission for the unsuccessful appellant that the SAT had been in error by approaching the revocation of the appellant's firearms licences on the basis that such revocation was an appropriate punishment for the licensee's conduct in committing a series of other offences. With regard to that submission, his Honour said [97]:
It was not in contest that such an approach, had it been adopted, would have involved an error of law, with which I agree. The authorities on disqualification from holding or obtaining a firearms licence imposed for an offence under Sentencing Act s 106 indicate that such disqualification is to be viewed as a matter of penalty for the offence, even though the considerations guiding its imposition 'in general' are those of 'public safety'. See Schamotta [v The Queen [2002] WASCA 262] [8] - [13] and authorities cited there (the last paragraph is the source of the quotations); and see Binns [v Gardiner [2004] WASCA 275] [42]. The power of revocation under the Firearms Act s 20(1)(a)(iii), by contrast with the power of disqualification under the Sentencing Act s 106, does not depend on the commission of an offence. Nor is there any indication in any of the authorities on the exercise of the power of revocation where the holder had committed offences which were taken into account that revocation can be approached as punishment for those offences.
By way of counterpoint, the 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.
These authorities demonstrate some differences in the objects or purposes of the powers to disqualify a person from holding a firearms licence, as those powers exist, respectively, under the Sentencing Act and under s 20 of the Firearms Act. Clearly, the powers under the Sentencing Act can only ever be exercised as part of the process of sentencing an offender for an offence of which he or she has been convicted and the exercise of that power will inevitably have in view the principles of sentencing contained in s 6 of the Sentencing Act, which includes punishment, deterrence and protection of the community ‑ s 6(1) and (2) and s 39. Yet those purposes cannot readily be distinguished from the purpose of the protection of the public, which is the dominant object of the powers available to the Commissioner under the Firearms Act. Indeed, the punishment of offenders by the imposition of a sentence commensurate with the seriousness of the offence, and the pursuit of policies of deterrence and protection of the community, all have, as their ultimate objective, the safeguarding and protection of the public, although the subsidiary purposes of the imposition of punishment to achieve that end are features of the powers under the Sentencing Act but not under the powers available under s 20 of the Firearms Act.
Accordingly, as Simmonds J acknowledged in Penketh, it would be an error of law for the Commissioner to approach the exercise of his powers under s 20 of the Firearms Act with the object of punishment of an applicant or licensee in view of the commission of previous offences. That aspect apart, there is still a very large overlap between the objects and purposes to be served by the exercise of powers under these two statutory sources.
It must be noted, in the present case, that Mr Knight's case on his review before the SAT, and again on his application for leave to appeal before this court, was not advanced on the basis that the decision to exercise the Commissioner's power of revocation of the existing licences and the refusal of the new licence applications in February 2010 had been undertaken for an improper purpose or for the object of punishing the appellant further for the offences of which he had been convicted in April 2008 or previously. Rather, the principal submission for the appellant was that his sentence for those April 2008 offences had expressly involved a rejection of an application for suspension of his firearms licences under s 106 of the Sentencing Act and, that being the case, the doctrines of res judicata and issue estoppel prevented any different result from occurring from the later employment by the Commissioner of his powers under s 20, unless in the intervening period there had been a material change of circumstances.
It would follow from the authorities examined in earlier paragraph that if the Commissioner or his delegate did exercise the powers of revocation and disqualification or refusal available under s 20 of the Firearms Act with a view to punishment of the licensee, even generally, or because the Commissioner or his delegate was dissatisfied with the sentence imposed by a court for a firearms offence, that would be to exercise the power for an impermissible purpose or to do so by taking into account an irrelevant collateral consideration and so would constitute an error of law. Such a decision would be amenable to review on the merits by the SAT or by judicial review for error of law under the prerogative remedies and other powers.
Accordingly, there are remedies and safeguards available for any such misuse of power by the Commissioner if it were ever to occur. However, for such a challenge to succeed it would require satisfactory proof that the power had been misused for the improper purpose or with the impermissible collateral object in view. That would require a scrutiny of the facts and circumstances of the exercise of the power in order to lead to a finding whether or not the alleged contamination of the exercise of the power had, in fact, been established. See City of Enfield v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135.
No such allegation was made in the present case before the SAT nor before this court and there has been no inquiry made, and hence no findings reached, as to whether or not there was an abuse of power in this sense. These observations are only to show that if an abuse of the power of disqualification or suspension under s 20 could be established by showing that the power had been exercised for an improper purpose or for an irrelevant consideration, the situation would not be without a legal remedy.

Res judicata and issue estoppel

These issues were addressed by the SAT when the Tribunal member posed for himself one of two questions to be determined at [31], namely:
Do the findings of the Magistrates Court stop [sic estop] the Tribunal from dealing with the matter on the basis of res judicata?
The question was enlarged at [32] to identify as an additional possible impediment, the doctrine of issue estoppel. The Tribunal referred to Blair & Public Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464, 331; Parkin v James (1905) 2 CLR 315 and Jackson v Goldsmith (1950) 81 CLR 446, 446 (Fullagar J). The learned member of the SAT then went on to examine closely the course of submissions before the Magistrates Court on the plea in mitigation and noted, particularly, submissions by counsel for the appellant to the effect that her Honour should not exercise any of the powers available under s 106 of the Sentencing Act upon the basis that the question of whether or not Mr Knight should retain his firearms licence would be expected to be considered by the Commissioner pursuant to s 20 of the Firearms Act and that the Commissioner's power of revocation in the public interest was a sufficient reason for her Honour to decline to exercise any powers under s 106 of the Sentencing Act. It was also submitted that if it were to be left to the Commissioner under s 20 of the Firearms Act the appellant would have the protection of the review procedure to the SAT under s 22 of the Firearms Act.
The SAT adopted the view that the question of whether or not the appellant was a fit and proper person to hold a firearms licence was not an issue for consideration by the magistrate when sentencing the appellant for the April 2008 offences and that nothing in her Honour's decision could be taken as a determination of whether or not he was a fit and proper person to hold a firearms licence. Consequently, the Tribunal held at [58] that:
•The possible revocation of Mr Knight's firearms licence under s 11 of the Firearms Act, on the basis that he was no longer a fit and proper person to be licensed, had not been dealt with by Magistrate Campione.
•There was no power for Magistrate Campione under the Sentencing Act to consider the fit and properness of Mr Knight to continue to be licensed. The magistrate was constrained by considerations in the Sentencing Act.
•The Commissioner should not be estopped from exercising its powers under the Firearms Act.
•The doctrine of res judicata does not apply to these proceedings since the question of Mr Knight's continued licensing under the Firearms Act is quite different from the sentencing regime under the Sentencing Act.
With respect, I do not consider that these findings are correct. In the first place, it is clearly evident from the reasons given by the learned magistrate when imposing the sentences of fines for the offences in April 2008 that her Honour was expressly rejecting, on the merits, the submission for the prosecution that there should be an order for disqualification of the firearms licences under s 106 of the Sentencing Act, and that her Honour did so on the basis that the conduct and character of the appellant did not then warrant any such suspension or disqualification.
While the learned magistrate was certainly not exercising any power under s 11 or s 20 of the Firearms Act and did not expressly address the question of whether or not the appellant was a fit and proper person to hold a firearms licence, these were not irrelevant considerations to her determination of whether or not a disqualification or suspension order should be made under s 106 of the Sentencing Act. Their connection with ensuring public safety was, as has been previously examined, also a relevant consideration. Having regards to her Honour's decision and her reasons for refusing the suspension or disqualification order which, although brief, are succinct, clear and informative, I do not consider that there is any basis for concluding that the appellant's suitability to continue to hold a firearms licence was not a matter directly addressed by her Honour in that decision.
In the light of these conclusions, it is necessary to consider afresh whether or not the doctrines of res judicata and/or issue estoppel as raised by the appellant apply in this situation.
Before passing to the content of those principles as established by authority it is necessary to consider whether there have been any material changes in the facts and circumstances relating to the appellant's suitability to hold a firearms licence as between April 2008 and February 2010 when the Commissioner's delegate made the decision or, seeing that the review was a hearing de novo, by June of 2010 when the hearing before the SAT took place.
There was, of course, an interval of over 22 months between the appellant's conviction in the Magistrates Court and the decision by the Commissioner to revoke his firearms licences. Presumably, as noted earlier, the licences had been renewed in the interim. There was the development in September 2009 when the appellant applied for an extension of his firearms licences to cover two additional firearms. It was that application which triggered the detailed investigation by the Commissioner's delegate into the question of whether or not he was a fit and proper person to hold a licence. The course of that investigation and the facts and circumstances considered by the Commissioner's delegate comprehensively appear from the series of documents which were in evidence before the SAT. These are the firearms application report completed by Officer Sims on 18 November 2009 and approved by Superintendent PA Zanetti on 11 December 2009; a memorandum containing a report on the firearms licence application by Mr Knight from the Armadale police station to Inspector Hill, which appears to be undated, and which contains references to the statements of material facts dated 29 February 2008 prepared by the police in relation to the April 2008 convictions, which includes information advanced before the learned magistrate. There is also a letter from Superintendent Zanetti to the appellant dated 17 February 2010 revoking the appellant's existing firearms licences and refusing his 2009 application for a licence for two additional firearms.

Without reproducing extracts of the contents of those documents, it is sufficient to say that there does not appear to be any new or further information or circumstance considered by the Commissioner's delegate when making the decision to revoke the licences and refuse the applications for new licences in February 2010 beyond the information known and put to the learned magistrate in April 2008 in the course of the sentencing of the appellant for those offences. In other words, I am satisfied that the decision of the delegate of the Commissioner to revoke the appellant's firearms licences under s 20 of the Firearms Act and to refuse his applications for further licences was based on the same facts and circumstances as were known to the learned magistrate when her Honour refused to make a suspension order under s 106 of the Sentencing Act.
The learned authors of Spencer, Bower & Handley, Res Judicata (4th ed, 2009) write at [1.01]:
Res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be relitigated between persons bound by the judgment.
The underlying reasons for the principle are clear and were stated by Lord Blackburn in Lockyer v Ferryman (1877) 2 App Cas 519, 530:
The object of the rule of res judicata is always put upon two grounds ‑ the one public policy, that it is in the interests of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause.
A res judicata is a decision on the merits pronounced by a tribunal which is judicial in the relevant sense. As described in Spencer, Bower & Handley, Res Judicata at [2.02]:
It is immaterial for present purposes whether the tribunal is a court of record or not, or whether it is a superior court or not, or whether it is or is known as a court. Nor does it matter whether the tribunal, if English, has civil or criminal jurisdiction.
Res judicata is distinct from the doctrine of issue estoppel. The former applies only where a party attempts to relitigate a cause of action which has merged into a judgment in a prior proceeding ‑ Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 per Gibbs CJ, Mason and Aickin JJ at 597. By contrast, the doctrine of issue estoppel applies where some question of fact or law was necessarily decided as part of the legal foundation of the decision. Regardless of whether the action failed or succeeded, issue estoppel will operate to prevent that same question of fact or law from being relitigated in proceedings on a different cause of action between the same parties or their privies. Dixon J describes the distinction between res judicata and issue estoppel in Blair v Curran (1939) 62 CLR 464 at 531 ‑ 532 as follows:
A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established is the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
His Honour then went on to explain that when considering the application of the doctrine of issue estoppel, it is essential:
to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order.
More recent authority has established conclusively that, in Australia, the doctrine of issue estoppel does not apply in criminal proceedings. This was explained by Barwick CJ in R v Storey (1978) 140 CLR 364 and was later affirmed in Rogers v The Queen (1994) 181 CLR 251. Gibbs CJ observed in Rogers at 255 that the availability in criminal proceedings of the doctrine of res judicata, and the defences of autrefois acquit and autrefois convict and the rule against double jeopardy together with the doctrine of abuse of process render the introduction of the doctrine of issue estoppel into the criminal law unnecessary. Echoes of this principle can also be seen in s 11 of the Sentencing Act which provides, in effect, that while a person may be charged and convicted of more than one offence arising from the same evidence, that person is not to be sentenced for more than one of those offences.
The application of the doctrine of issue estoppel, as it applies in civil proceedings, was also examined in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 where at [21] ‑[22] Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ observed:
In his speech in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935, Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements were:
'(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the privies to the proceedings in which the estoppel is raised or their privies.'
There was no dispute about the satisfaction of requirement (3). The second review officer was not sitting as a 'court' in any strict or conventional sense, but it was common ground that:
'The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdictions are derive from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc ‑ Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353 per Gibbs J at 453.'
The requirement for a res judicata or an issue estoppel that the judgment or the issue has been determined in proceedings between the same parties or their privies does not apply to a judgment in rem which, unless set aside, is binding on all the world ‑ Marginson v Blackburn Borough Council [1939] 2 KB 426, 438.
In the present case there can be no doubt that the decision of the learned magistrate in April 2008 to convict the appellant of the two offences under the Firearms Act to which he had pleaded guilty, and then to sentence him by imposing a fine for each offence but not to suspend or cancel his firearms licence under s 106 of the Sentencing Act constitutes a final judicial decision of a court which had jurisdiction over the parties and the subject matter. Consequently, if the appellant were to be charged with those same offences again or any application was made to a court to alter the sentence or substitute an order suspending or cancelling his firearms licences under s 106 because of those offences, any such prosecution or application could be met successfully with a plea of res judicata on the basis that those issues had been decided and had passed into the judgment of conviction and sentences imposed by her Honour in April 2008.
However, the action of the Commissioner in February 2010 to revoke the appellant's firearms licence and to refuse his application for new licences involved the exercise of a non‑judicial statutory power. No proceedings in any court or tribunal were instituted or necessary for the exercise of that power. The determination of the exercise of the power did not involve any decision about disputed facts or circumstances in a contest between parties. The Commissioner, by his delegate, merely decided that the statutory criteria for the exercise of his non‑judicial power had been satisfied. The existence of a power of review of the Commissioner's decision by the SAT under s 22 of the Firearms Act and the utilisation of the review jurisdiction of the SAT under s 18 of the SAT Act do not alter the character of the decision made by the Commissioner. Nor does the fact that in the review proceedings in the SAT there were identified parties contesting the merits or the basis for the exercise of the Commissioner's statutory power convert the process into the determination of any cause to which the doctrine of res judicata might apply.
The review proceedings in the SAT are no more than an administrative review, at which an opportunity is given to parties affected by the decision to appear and be represented, and to have a review of the decision‑maker's power undertaken on the merits, which may include a determination of whether or not the power has been exercised according to law. The SAT is not a court and on this review is not undertaking or making a judicial decision. It is not determining the rights of the contesting parties before it. Rather, it is reviewing administratively the exercise of a statutory power. That being the case, there can be no application of the doctrine of res judicata arising from a decision by a magistrate whether or not to make an order under s 106 of the Sentencing Act when the licensee was convicted of a firearms offence.
However, as I have already described in [23] ‑ [26] above, there is scope for administrative and/or judicial review of the exercise by the Commissioner of his powers under s 11 or s 20 of the Firearms Act if a case were made out that they had been used for an improper purpose, or with a collateral object in view. Even if such a challenge were to be made out, it would not involve any application of the doctrine of res judicata.
For the same reasons, the doctrine of issue estoppel cannot apply to prevent the Commissioner from exercising his powers under s 20 or s 11 in a particular way. I have already noted the submissions of counsel for the respondent that the doctrine of issue estoppel does not arise in criminal proceedings, but that is hardly to the point because there were no proceedings involving the Commissioner, either civil or criminal, but merely, as I have now observed several times, his exercise of a non‑judicial statutory power.
Other objections were raised by counsel for the respondent to the application of either the doctrine of res judicata or issue estoppel by submitting that the prosecutor in the proceedings before the magistrate and the Commissioner of Police were not the same parties and are not privies. The submission was, and I accept it to be the case, that the prosecutor in the proceedings in the Magistrates Court was an individual police officer who had laid the complaint, notwithstanding that pursuant to s 21(1) and sch 1 cl 3 of the Criminal Procedure Act 2004 (WA), the proceedings could be conducted and maintained in the name of 'the WA Police', whereas the respondent to this appeal and the respondent to the proceedings before the SAT was a named officer, the Commissioner of Police. They are certainly not the same persons and the individual prosecutor is not a privy of the Commissioner‑ see Enever v The King (1906) 3 CLR 969, 975 ‑ 977 but, again, this is not to the point because the exercise of the power by the Commissioner under s 20 of the Firearms Act did not involve any judicial decision between parties made by a court or a tribunal which should be treated as a court, having jurisdiction, by law or by agreement of the parties, over the subject matter.
It follows, therefore, that the challenge to the decision of the SAT arising from the first ground of appeal must fail because the doctrines of res judicata and issue estoppel do not apply to the exercise of the power of the Commissioner under s 20 of the Firearms Act.

Natural justice - adverse findings without appellant being notified of the Tribunal's wish to hear from him

The second ground of appeal is that the 'Tribunal erred in law in denying the appellant natural justice by denying Mr Knight the right to be properly heard in respect of the presiding member of the SAT making adverse findings in respect of him without advising him of the Tribunal's wish to hear from the appellant'. This is a reference to [76] ‑ [77] of the reasons for decision where the SAT referred to the character references which had been tendered on behalf of the appellant in support of his contention that he was a fit and proper person to be granted a licence, and gave reduced significance to them because the appellant himself had not given evidence and been cross‑examined. The passages in the reasons are:
[76]The Tribunal might have been impressed with these references had it been the first time that Mr Knight had been convicted under the Firearms Act and if the Tribunal had heard from Mr Knight personally about feeling remorse for what had happened.
[77]The contrary applies. Mr Knight did not give evidence and the Tribunal is left with the impression of a person who has been convicted several times under the Firearms Act but who fails to learn from his errors. None of the character witnesses acknowledged that they had full knowledge of the entirety of Mr Knight's criminal record. The value of their references is therefore very limited. The public's concern with the nature, number and recentness of these offences outweigh the positive attributes given by the referees.
Counsel for the appellant submits that the presiding member descended into the arena and placed great weight upon the failure of the appellant to give evidence and made adverse findings in that regard where no such contention had been advanced by the respondent. The argument for the appellant is that, since the convictions in April 2008, there had been no further offences or adverse incidents by the appellant and there was no submission on behalf of the respondent that he was likely to reoffend. There had been no challenge to the character references provided by the appellant, nor had there been any submissions by the respondent that reduced weight should be placed upon them. None of the referees had been required to give evidence or to appear for cross‑examination. Consequently, counsel for the appellant submits that it was manifestly unreasonable for the SAT to discount those character references at least without warning the appellant and his counsel of the possibility that this might occur and so affording the appellant an opportunity to address the issue. In support of these submissions, counsel for the appellant relies on Kanda v Government of the Federation of Malaya [1962] AC 322; NCSC v News Corporation Ltd (1984) 156 CLR 296; Kioa v West (1985) 159 CLR 550; and Bond v Australian Broadcasting Tribunal(No 2) (1988) 84 ALR 646.
The substance of these submissions is that the appellant was not given notice of the possibility of an adverse finding being made against him on a particular ground or grounds and, as a consequence, was denied procedural fairness in not having an opportunity to address the ground relied upon by the Tribunal. It is, indeed, a little surprising that the Tribunal discounted the evidence of the referees on grounds which were not contended for by the respondent nor raised before it. However, in my respectful view, this does not constitute any lack of procedural fairness in the context of this particular case.
From the outset the respondent had relied upon s 11(1)(c) of the Firearms Act and his opinion that the applicant was not a fit and proper person to hold the licences in question. The appellant had been advised of this in the letter from the Commissioner's delegate of 17 February 2010 and the question of whether or not the appellant was a fit and proper person to hold a licence was, from first to last, the critical issue for consideration by the Tribunal. The appellant was on notice of this and had sought to establish his suitability to retain and hold the desired licences by producing a series of written references from persons whom he did not call as witnesses and by submitting that the decision of the magistrate in April 2008 in refusing to grant the prosecution's application to cancel or suspend his licences precluded the exercise by the Commissioner of his powers under s 20.
The hearing before the SAT proceeded as a hearing de novo and there was an unfettered opportunity for the appellant to adduce all such evidence as he considered material on the issue of whether or not he was a fit and proper person to hold a firearms licence and on all other issues for decision. The appellant could have called any one or more of the referees to give oral evidence before the Tribunal and he could have given oral evidence himself. That he chose not to do so was a matter entirely for him but such decisions, as with many tactical decisions in the course of a forensic contest, can have consequences. One consequence in this case, perhaps unexpected, was that the Tribunal would decide to give reduced weight or significance to the written references without having heard from their authors or hearing from the appellant on the issue of his character. The fact that the respondent did not choose to question the references in the course of the hearing does not mean that the Tribunal was bound to accept them or to give undiminished weight to them. The member of the Tribunal presiding had the jurisdiction and the responsibility to decide what weight and significance to give to any part of the evidence and his decision to give diminished weight to those references was, of course, open to him in the circumstances. If the presiding member of the Tribunal made an erroneous finding of fact about the significance of the written character evidence, that would, nevertheless, be a finding of fact open to him in the exercise of his jurisdiction which would not constitute any error of law.
The question for present consideration is whether or not the appellant was provided with a fair opportunity to present his case to the Tribunal and whether or not he had an opportunity for a hearing ‑ SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 160 and he plainly had that opportunity. If he did not exercise it to the full and if, because of this, the Tribunal made an unexpectedly adverse finding of fact in relation to some aspect of the case, that is not a denial of procedural fairness.
Accordingly, I do not consider that there has been any denial of natural justice or want of procedural fairness in the conduct of the review proceedings by the SAT. It follows that the second ground of appeal must also fail.

Erroneous application of the proper legal test for a 'fit and proper person' in respect of a firearms licence

The last remaining ground of appeal by the appellant is that the Tribunal erred in law in failing to apply the proper legal test for a fit and proper person in respect of a firearms licence. This issue was addressed extensively by the Tribunal at [60] ‑ [78] of its reasons. Without setting out those passages in full, it is sufficient to identify the following salient points referred to by the Tribunal on this part of the case:
•Mr Knight is a keen firearms sportsman, had genuine reasons to possess a firearm and was actively involved in the sport of shooting [61]
•Despite this, for a person so well versed in the use of firearms one would expect a greater awareness of the legal standards associated with the possession of firearms. [62]
•The incident which led to the February 2008 charges involved a verbal altercation on the evening of Saturday, 16 February near a work site unit where the appellant and others had been drinking. Pushing and shoving ensued and the police and the employer's management staff attended. Enquiries led to an allegation that the appellant possibly had firearms stored at the premises. In an ensuing search police found several firearms, ammunitions and boxes of reloading equipment and associated firearms items stored in a broken fibreglass shipping container. These items belonged to the appellant and his name was on some of the containers. The firearms and ammunition were seized by the police and the appellant later admitted storing the firearms at his employer's premises without any formal permission and otherwise than in an approved firearms cabinet. Inadequate security precautions had been taken to lock the door and there was ready access to the firearms and over 5,000 rounds of ammunition. [65]
•The appellant has had several offences under the Firearms Act in addition to these and offences involving a breach of a violence restraining order and stalking. In relation to the VRO, within a period of a month after it had been made, he had contacted the complainant on at least 103 occasions. [67]
•In 1999 the appellant had failed to declare possession of an unlicensed firearm to the police after being obliged to do so pursuant to the VRO to surrender all firearms. The particular firearm was later found buried close to his house. [68]
•The Tribunal is of the very firm opinion that, in the light of all the information available to it, Mr Knight is not a person who, if he applied today for a firearms licence, would be successful. The Tribunal is of the opinion that Mr Knight is not a fit and proper person to be licensed to hold a firearm. [78]

There was, therefore, plainly evidence upon which it was open to the Tribunal to conclude that the appellant was not a fit and proper person to retain or obtain any further firearms licences.
Counsel for the appellant submitted that the expression 'fit and proper person' in this context should be given the widest scope for judgment and should not be narrowly construed or confined. Reference was made to the observation of Pullin JA in Minitti v Commissioner of Police [2010] WASCA 198 [13] that the requirement that a person who is to be granted a firearms licence be a fit and proper person goes arm in arm with public safety ‑ see also Barker J in Wignall v Commissioner of Police [302] ‑ [303].
The submission was that the appellant did not present any threat to public safety and that there was no reason to conclude that he was not an appropriate person to hold a firearms licence because of lack of responsibility or because of concern that the firearms might be used for an unlawful purpose. In further support of that submission great stress was laid on the appellant's apparent good behaviour since the 2008 offences. The submission was that there was no basis for any fear for public safety or doubt that the appellant was a fit and proper person in the absence of some basis for a likelihood of repetition of the behaviour under scrutiny.
Counsel for the respondent meets these submissions by pointing to s 11(3) of the Firearms Act which specifies that the Commissioner has a sufficient ground in law to form an opinion that a person is not a fit and proper person to hold a licence if he has been convicted within a five‑year period of any of the specified offences, including the offences of which Mr Knight had been convicted ‑ see Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246 [18], [19], [21] and [22]. Furthermore, s 11(6)(a) makes it clear that s 11(3) does not limit the ability of the Commissioner to take into account either a conviction or a VRO outside the five‑year period and, by s 11(6)(b) the Commissioner may take into account anything else that could have been taken into account if s 11(3) had not been enacted.
The concept of what constitutes a fit and proper person to hold a firearms licence was examined extensively in Re Jones; Ex parte The Commissioner of Police at [17] ‑ [25] in the reasons of Parker J, with whom White J and Steytler J (as his Honour then was) agreed. At [22] Parker J observed:
In my respectful view, any such restrictive interpretation is clearly in conflict with the intention made evident by s 11(1)(c) and s 11(6)(b) that all matters bearing on the question of fit and proper person, in the context of this Act, are to be considered. It is to read far too much into s 11(3) in particular, to try to reach any such restrictive interpretation. Section 11(3) is intended to do what it says, ie to provide that a conviction within the five‑year period of any of the stipulated types of offences, including any offence against the Act, is in itself and without more a sufficient ground in law for forming an opinion that a person is not a fit and proper person.
Any decision about whether or not the appellant was likely to represent a threat to public safety in the future if allowed to retain or obtain further firearms licences was a decision which had to be made in the knowledge of the appellant's past conduct, behaviour and general character. Those are the guides to an assessment of whether or not he was to be regarded as a fit and proper person to hold any such licence and, as the evidence already recounted demonstrates, the appellant had a number of past convictions for firearms offences and other offences which, by s 11, constituted sufficient, but not inescapable, grounds for concluding that he was not such a fit and proper person. That history, conduct and character had been addressed by the Commissioner in the initial decision of his delegate under s 20 and it was again addressed on the evidence before the SAT by the presiding member. It certainly provided a basis to form the adverse opinion which was reached by the SAT and there was no suggestion from this conclusion, in the evidence itself or from the approach adopted that there was any erroneous or mistaken application of the test for what constitutes a 'fit and proper person' in this statutory context.
This conclusion means that the third ground of appeal fails as well.
Accordingly, while I am satisfied that the appellant should have leave to appeal on all the grounds which have been relied upon, I am satisfied that the appeal must be dismissed.