Marksman Training Systems Pty Ltd v The Registrar of Firearms - [2014] SADC 150

District Court of South Australia
(Civil)
MARKSMAN TRAINING SYSTEMS PTY LTD v THE REGISTRAR OF FIREARMS
[2014] SADC 150
Reasons for Ruling of His Honour Judge Tilmouth
29 August 2014
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
Discussion of principles applicable to appellate review and disposition under Part 6, Division 2 of the District Court Act 1991 (SA). A number of errors in their cumulative effect held to amount to 'cogent reasons' to depart from the decision to cancel the appellant's firearms licences.
District Court Act 1991 (SA) s 42B(2), s 42D(2) and (3), s 42E(1), s 42F, s 42G(2); Acts Interpretation Act 1915 (SA) s 4(1); Firearms Act 1977 (SA) s 20(3), s 26C(1)(a); Papps v Medical Board of South Australia (2008) 101 SASR 504; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Marta Stefan v General Medical Council [1999] 1 WLR 1293 (PC); Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; New South Wales Bar Association v Evatt (1968) 117 CLR 177; Briginshaw v Briginshaw (1938) 60 CLR 336; Annetts v McCann (1990) 170 CLR 596; District Court Civil Rules DCR 6 209; Trop v Dulles 356 US 86 (1957), referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, applied.

FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Held 1: Section 6 of the Firearms Act authorised the delegation of the power of the Registrar of Firearms to cancel, vary or suspend Firearms licences to the Chief Inspector in charge of the Firearms Branch of SAPOL, at [52-59].
2. Section 36A of the Firearms Act furnishes a general defence to offences under the Act, although it provides no defence to breaches of the Firearms Regulations, at [30], [61], however it was not considered by the Delegate when making determinations that breaches of the Firearms Act were involved, at [61]-[64].
3. On the proper construction of regs 15 and 16 of the Firarms Act, in conjunction with s 15B(9)(b) of the Firearms Act, movements of firearms between the appellant's dealership and range on the one premises which does not surrender possession to another, did not require a record of such movements to be kept, [78]-[84].
4. On the proper construction of s 5(1) of the Firearms Act, and regs 4 and 5 of the Firearms Regulations, two firearms were not prescribed, as they contained insufficient mechanisms or components to initiate the loading or firing mechanisms of a firearm, [149]-[156].
5. The pre-requisites to authorisation for the entry and search of premises pursuant to ss 21F(9) or 21G99) of the Firearms Act must first be met before a valid authorisation is given. A mere tasking or command to attend for that purpsoe does not amount ot a specific authorisation for the purposes of these sections, and the appellant was entitled to question whether valid authorisations were given, at [125]-[141].
Firearms Act 1977 (SA) s 5, s 5(1), s 6, s 11, s 11(1), s 13(4)(b), s 15B(9)(b), s 17, s 17(4)(a), s 17(4)(c), s 20, s 20(1a), s 20(1)(b), s 20(3), s 21E(1), s 21F(2), s 21F(9), 21G(9), s 32(a1), s 39(2)(ac), (ad), (ada) and (ae); Pollitt v Police (2007) 251 LSJS 306; Offe v The Police (2002) 84 SASR 1; District Court Act 1991 (SA) s 42E(1), s 42E(3), s 42F; Klement v Commissioner for Consumer Affairs [2011] SADC 111; Sellars v South Australian Police (2012) 279 LSJS 141; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Ridge v Baldwin [1964] AC 40; Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; State of South Australia v Clark; Corporation of Gawler v Clark (1997) 68 SASR 327; The Queen v Medical Board of South Australia; Ex parte S (1976) 14 SASR 360; Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; King v Strickland (1991) 56 SASR 225; Dainford Ltd v Smith (1985) 58 ALR 285; Police Act 1998 (SA) s 19, s 20, s 21; Benwell v Gottwald [1978] VR 253; Evans v Sparrow (1973) 6 SASR 519; Fyfe v Bordonim (1998) 199 LSJS 401; AB Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298; Barton v Croner Trading (1984) 54 ALR 541; Acts Interpretation Act 1915 (SA) 14BA; Firearms Regulations 2008 (SA) reg 4(1), reg 5, reg 5(2)(a), reg 5(2)(b), reg 15, reg 17(4)(c), reg 22(2); Hamilton v Whitehead (1988) 166 CLR 121, referred to.
Veterinary Surgeons Board of South Australia v Mooney [2009] SADC 62; Twist v Randwick Municipal Council (1976) 136 CLR 106; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Owendale Pty Ltd v Anthony (1967) 117 CLR 539; G H Michell & Sons (Australia) Pty Ltd v Minister of Works (1974) 8 SASR 7; R v Fuller [2012] SASCFC 85; New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511, applied.
The Queen v City of Tea Tree Gully; Ex parte Indoor Cricket Arenas (Aust) Pty Ltd (1984) 37 SASR 167; McGinity v Medical Council of Tasmania (2009) 19 Tas R 1; Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199, distinguished.

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
An inquiry into the cancellation, variation or suspension of an existing Firearms Licence, imported the fundamental common law rules of natural justice, including the obligation to give reasonable notice of the matters under consideration, the opportunity to respond thereto, the obligation to consider such responses, and to avoid the taint of bias, at [33-44], [182].
Further held that an employee's unauthorised taking of firearms from his employer's possession, does not render the employer vicariously liable for such taking, at [109]-[113].
Firearms Act 1977 (SA) s 5(13), s 18, s 21F(9), s 21G(9), s 25(1)(c), s 32(3), s 32(3c), s 36A; Firearms Regulations (2008) SA reg 15, reg 15(1), reg 16, reg 18, reg 21(1), reg 22; Acts Interpretation Act 1915 (SA) s 4(1); Police v Siviour (2001) 80 SASR 140; Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) (1979) 142 CLR 460; R v Nguyen (2013) 117 SASR 432; Bunning v Cross (1978) 141 CLR 54; R v Swaffield; Pavic v R (1998) 192 CLR 159; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; R v Lobban (2000) 77 SASR 24; Mazinski v Bakka (1979) 20 SASR 350; Duke Group Ltd (in liq) v Pilmer (1994) 63 SASR 364; Six Carpenter’s Case (1610) 77 ER 695; Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299; Plenty v Dillon (1992) 171 CLR 635; Offe v The Police (2002) 84 SASR 1; Teacher’s Registration Board of South Australia v Edwards (2013) 117 SASR 246; Hughes and Vale Pty Ltd v The State of New South Wales & Ors (No 2) (1955) 93 CLR 127; Morabito v Commissioner of Police NSW [2006] NSWADT 181; Pitchers v Police [2012] SASC 171; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Johnson v Registrar of Firearms (2001) 79 SASR 353; Jaworski v The Police (2009) 265 LSJS 254, referred to.
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511, applied.
Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199, distinguished.

MARKSMAN TRAINING SYSTEMS PTY LTD v THE REGISTRAR OF FIREARMS
[2014] SADC 150
The issues
Brief background
The wider scheme of the Firearms Act
The appeal process
The decisions under appeal
The obligation to furnish reasons
The licence conditions
The cancellations process under the Firearms Act
Primary findings of the Registrar
The power of delegation
The reasons of the Delegate
Breaches of the Firearms Act
The claimed errors – a summary
Specific primary findings
Appendix A – Three firearms anomalies
Finding A2
Finding A3
Finding A4

Appendix B – Audit results
Record keeping of movements between the dealership and the range
Appendix C - Failure to account for missing firearms
Appendix D – Missing firearms
Findings D6-7
Findings D11-12
Findings D16-17
Findings D20-29

Appendix E - Three firearms with known criminals
Findings E2-E3
Findings E6-E10
Findings E11-E14

Appendix F - Two firearms released without sighting relevant authorities
Findings F2-F6
Findings F7-10

Appendix G – The so-called ‘rogue’ employee
Vicarious liability
Appendix H - Failure to complete records of movement and to report theft or loss of firearms
Appendix I - Uncooperativeness during range inspection 2012 – Appendix I
Appendix J - Undue delay in reporting theft of firearm
Appendix K - Relevance of Coroner’s findings
Two prescribed firearms?
The failure to impose conditions
Fit and proper to hold a firearms licence?
Contrary to the public interest?
Summary of findings relating to errors of the Delegate
Summary of findings upholding the Delegate
Issues for further argument
The issues

This is an appeal by Marksman Training Systems Pty Ltd (Marksman),[1] against two decisions of a Delegate of the Registrar of Firearms, dated 8 April 2013, cancelling its dealer’s and firearms licences.[2]
[1] ACN 056 469 222.
[2] Exhibit PMR-46-57.
The course of these proceedings and the events giving rise to them has a lengthy history.[3] The underlying facts, for the most part, date back to late 2011. The appeals were launched in mid-May 2013 and first heard on 5 and 6 September 2013, and then adjourned to enable the respondent to present his case. To outward appearances the relationship between the parties is characterised, by suspicion and mistrust on both sides, as will become apparent. There are numerous grounds of appeal on procedural and substantive issues. The facts are complex and the history of numerous firearms involved, is difficult to trace. What follows during the course of this judgment is an endeavour to distil some 1,500 pages of dense materials into the salient points.
[3] These appeals were adjourned by consent twice on 27 September 2014 and 24 March 2014 to accommodate counsel for the Registrar and called on a number of times afterwards, as further issues requiring oral argument emerged.
Brief background
Marksman operates a family owned and operated business as a firearms dealer from premises on Franklin Street, within the Adelaide CBD.[4] It is also a recognised commercial firing range operator, housed adjacent to but within the same property as the dealership and from which it conducts regular firearms activities. The court was told by the respondent that it is the only recognised commercial range in this State. The dealership contains an armoury or strong room and associated security infrastructure, designed for the secure storage of firearms.
[4] Dealers Licence No. 280511L, Range Licence No. 315699D.
A principal Director of Marksman, Mr Andrew Marks, was enlisted in the Australian Army between 1968 and 1988, retiring at the honorary rank of Major, during which he undertook various kinds of extensive firearms training. Since that time and up to 1994, he was involved in aviation, security, counter terrorism, firearms and security training. Such facts, and no doubt others, are relevant to the fitness of Marksman to hold the licences.
The relationship between the two licences is basically as follows. The operator of a firearms range storing firearms on the premises for use either by the operator or by others, must hold a firearms licence authorising the possession and use of firearms, pursuant to s 11 of the Firearms Act 1977 (SA). An approved range may be operated by a recognised commercial range operator, either holding, or without holding, a firearms licence. When services are provided by the range operator to licensed firearms holders bringing their own firearms to the range, then no firearms licence is required. This occurs at the subject premises with respect to members of the Adelaide Indoor Firearms Association and the Sporting Shooters Association of Australia for instance, who regularly use and shoot at the range. However, when the commercial range operator provides firearms to unlicensed members of the public for use at the range, it must hold a firearms licence. Marksman offers both kinds of services from the Franklin Street premises.
It has held the dealer’s licence since mid-1994, and the firearms licence since early 2008. The businesses employ nine full-time staff. It conducted what was described by counsel as over 2,000 transactions per year. The permanent cancellation of these licences will have a significant financial effect on it and may lead to closure of the businesses. Indeed the Delegate accepted the licences were ‘essential to the livelihood of Marksman’s directors and employees’.[5] Since the decisions to cancel were made, Marksman has continued to trade on conditions imposed or agreed between it and the Registrar, pending the outcome of the appeals, reflected in an order of the court made by consent, dated 4 June 2013.[6] That order was made on an interim basis pending resolution of the appeal, pursuant to s 42D(2) and (3) of the District Court Act 1991 (SA).
[5] Paras [59] and [64].
[6] This order is Appendix A to these reasons.
An audit of the Franklin Street premises was conducted in June 2013 pursuant to those orders. Marksman itself voluntarily invited SAPOL to conduct audits in 2009 and in 2011. These exposed a number of anomalies between the records of the dealership and those maintained by the Registrar. As a consequence, the South Australian Police (SAPOL) wrote to Marksman on 4 January 2011 concerning allegedly missing firearms and conducted itself an examination of further firearms produced by Marksman on 19 January 2012.
An internal audit of handguns was undertaken between 23 and 25 April 2012, unbeknown to SAPOL at the time. A spread sheet of same was delivered to them in late August of that year. After examining it, SAPOL considered 26 firearms registered to Marksman were not then accounted for. This state of affairs ultimately led to ‘show cause’ letters issued to Marksman on 3 December 2012 and 1 March 2013, to which it responded on 24 January and 18 March 2013.[7] These exchanges ground the principal source of the materials giving rise to the cancellations, the focus being on unaccounted for firearms and record keeping short-comings and inadequacies, amongst others.
[7] Exhibits PMR-42, 43, 44 and 45, respectively.
The wider scheme of the Firearms Act
The Firearms Act embraces a reactive policy to the 1996 Port Arthur massacre. Largely uniform gun control legislation was enacted across Australia providing for the much more stringent control of firearms and to curtail the proliferation and use of unlawful firearms in the Community. The overriding centrepiece of the changes was to protect the public from the unsafe or the criminal use of firearms: Pollitt v Police.[8] The legislation was equally designed to ensure only responsible persons could hold appropriate licences and to ensure licence holders did not become complacent about the dangers of firearms and the damage that can be caused if not kept in accordance with regulatory requirements: Offe v The Police.[9] It is to these ends that s 20 of the Firearms Act supplies the power of the Registrar to cancel, vary or suspend licenses.
[8] (2007) 251 LSJS 306.
[9] (2002) 84 SASR 1, [22], [26].
The appeal process
The decisions of the Registrar were in fact made by his Delegate. There is a dispute as to the validity of the delegation, to be considered later. Section 26C(1)(a) of the Firearms Act confers a right of appeal on an aggrieved person from a decision of the Registrar (or his Delegate), once affirmed by the Firearms Review Committee to the District Court.[10] These decisions were so affirmed by the Firearms Review Committee on 15 May 2013.[11]
[10] Compare s 42B(2) District Court Act.
[11] Exhibit PMR-61.
The Firearms Act is otherwise silent as to the nature of such appeals and as to the powers of disposition, so the jurisdiction and powers of the Court are therefore regulated by Part 6, Division 2 of the District Court Act. In particular the Court is required by s 42E(3) thereof to:
… give due weight to the decision being appealed against and not depart from the decision except for cogent reasons.
The phrase ‘cogent reasons’ was interpreted in this way in Registrar of the Veterinary Surgeons Board of South Australia v Mooney:[12]
[26] The adjective “cogent” describes an argument or reason clearly expressed and persuasive, compelling or convincing. There is no reason to read into the statute any more or less than it prescribes. In Project Blue Sky Inc v Australian Broadcasting Authority McHugh, Gummow, Kirby and Hayne JJ remind us that “the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”.
[27] Obviously, then something more than mere disagreement with the decision below is required. Likewise unconstrained merits review would not be authorised. However providing “cogent reason” exists, the power to interfere is engaged. There is no threshold requirement to detect error, or to conclude the decision below was “unreasonable or plainly unjust … or that … a substantial wrong has in fact occurred”: House v The King, before intervention is justified. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) Brennan J suggested on example of a cogent reason was when a decision would “work an injustice in a particular case”.
[12] [2009] SADC 62; refer also to Klement v Commissioner for Consumer Affairs [2011] SADC 111, [43], Sellars v South Australian Police (2012) 279 LSJS 141, [9].
The powers of disposition are those contained in s 42F of the District Court Act:
42F—Decision on appeal
The Court may, on an appeal—
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
By s 42E(1) of the District Court Act, the court is permitted to ‘allow further evidence or material to be presented to it’, in addition to ‘the evidence or the material before the original decision-maker’. Both parties approached the appeal on the footing that events subsequent to the decisions of 8 April 2013 should be taken into account, considering that the audits of April 2012 and June 2013 had taken place in the meantime, especially for the purposes of exercising the powers and discretions of disposition.
For its part Marksman is keen to demonstrate that it had considerably improved its practices and that no further contraventions have occurred, so that it could be relied upon as fit and proper to retain its licences. Counsel for the Registrar on the other hand laid heavy stress on the fact that during the audit conducted under the consent court order of 10 June 2013, two further firearms were missing, nine custodian firearms registered at the premises could not be found, seven unregistered firearms were located – two allegedly prescribed - without corresponding movement records, and that there were continuing record keeping irregularities, including five firearms incorrectly tagged, such that the accumulation of matters was sufficient in itself to sustain the decisions to cancel.[13]
[13] First Gibson affidavit, para 17.
The core reasons of the Delegate, a Chief Inspector of the Firearms Division of SAPOL, found numerous breaches of the Firearms Act and the Firearms Regulations 2008 (SA). He determined accordingly to cancel the licences, having formed the opinion that it was inappropriate in the circumstances to impose conditions on the licences as lesser options to cancellation.[14]
[14] Paras [59] and [64].
The decisions under appeal

The ultimate conclusion of the Delegate with respect to the Dealer’s Licence appears in these passages of the decision of 8 April 2013:[15]
[15] Exhibit PMR-46.
Firearms Dealer’s Licence 280511L
57.In accordance with section 20(1)(a) I am satisfied that Marksman has contravened or failed to comply with provisions of the FA Act and also conditions of its dealer’s licence. I find that Marksman has:
(a) contravened section 18 of the FA Act on multiple occasions as set out above;
(b) contravened section 25(1)(c) of the FA Act on multiple occasions as set out above; and
(c) contravened conditions of licence imposed by regulation 22 of the FA Regulations including breaches of the Firearm Dealer Licence Conditions Instructions to Dealers on multiple occasions as set out above.
58.In accordance with section 20(1 )(b) of the FA Act I am further satisfied that Marksman is not fit and proper to hold a dealer’s licence in that it has demonstrated an inability to conduct its business in such a way as to protect the public by ensuring firearms are accounted for and readily identified as missing.
59.I have given lengthy consideration to the imposition of conditions particularly in light of the fact that this licence is essential to the livelihood of Marksman’s directors and employees, however because of the gross negligence displayed by Marksman and my finding that Marksman lacks fitness and propriety I have determined that the imposition of conditions is not appropriate in these circumstances.
60.I have determined to cancel Marksman’s dealer’s licence effective Tuesday 16 April 2013.
The Delegate reasoned in almost identical terms with respect to the firearms licence, as set out in these paragraphs of the decision to cancel:[16]
[16] Lic no. 315699D.
Firearms licence 315699D
61.In accordance with section 20(1)(a) I am satisfied that Marksman has contravened or failed to comply with provisions of the FA Act and also conditions of its firearms licence. I find that Marksman has:
(a) contravened section 18 of the FA Act on multiple occasions as set out above;
(b) contravened section 25(1)(c) of the FA Act on multiple occasions as set out above; and
(c) contravened regulation 21(1) of the FA Regulations as set out above.
62.In accordance with section 20(1)(b) of the FA Act I am further satisfied that Marksman is not fit and proper to hold a firearms licence in that it has demonstrated an inability to conduct its business both in relation to the dealership and the storage and location of firearms on the commercial range in such a way as to protect the public by ensuring firearms are accounted for and readily identified as missing.
63.In accordance with section 20(1a) of the FA Act I am satisfied that it would be contrary to the public interest to permit Marksman to continue to possess and use firearms.
64.I have given lengthy consideration to the imposition of conditions particularly in light of the fact that this licence is essential to the livelihood of Marksman’s directors and employees, however because of the gross negligence displayed by Marksman and my finding that Marksman lacks fitness and propriety I have determined that the imposition of conditions is not appropriate in these circumstances.
65.I have determined to cancel Marksman’s firearms licence effective Tuesday 16 April 2013.
The obligation to furnish reasons
It is not self-evident what precise breaches were found proven on the face of the quoted paragraphs. They are not cross-referenced to earlier passages in the reasons, or to the annexures thereto which contain the majority findings of fact. As a consequence of this structure, the parties to the appeal were in some difficulty in preparing materials that collated the numerous findings. The Registrar’s solicitor spent what must have been many hours preparing an ‘evidentiary chart’ tracking the course of some 64 firearms arising from the audit of November 2011. This chart will be referred to frequently in the course of this judgment as a reference point for the purpose of marshalling the various findings and how they relate the particular firearms.[17] Had it not been for this material, there is a distinct possibility the appeals would be destined for remission to the Delegate to complete the fact finding process.
[17] References hereafter by number are references to firearms 1-64, where they apply.
The failure to furnish adequate reasons can amount to ‘cogent reason’ to interfere: Papps v Medical Board of South Australia.[18] At common law there is no general rule requiring reasons be given for administrative decision-making: Public Service Board (NSW) v Osmond.[19] Nevertheless the particular nature of the cancellation inquiry, the consequences (possibly severe) that might follow from cancellation especially of the dealer’s licence, and the existence of a right of appeal, are indications that there is such an obligation: Marta Stefan v General Medical Council.[20] That conclusion is reinforced by the statutory obligation to ‘set out the Registrar’s reasons’ imposed by s 20(3) of the Firearms Act. Of course, such reasons are not to be examined in minute or overly critical detail as if written by a judicial officer, or by a Tribunal having legal training: Brimbella Pty Ltd v Mosman Municipal Council.[21]
[18] (2008) 101 SASR 504, [7].
[19] (1986) 159 CLR 656 per Gibbs CJ at 662–663.
[20] [1999] 1 WLR 1293 (PC), 1301-1302.
[21] (1985) 79 LGERA 367.
The obligation to explain the reasoning process and the basis for administrative decisions, is imposed to facilitate an appeal so that the court can ascertain the reasoning process upon which the decision is based: Sun Alliance Insurance Ltd v Massoud.[22] Because the parties expressed a preference to dispose of as many issues as possible on appeal, and because it is proposed to take further submissions in light of the conclusions reached hereafter, the prospect of remission does not presently arise.
[22] [1989] VR 8, 18.
Although it is impossible to trace which breaches relate to which firearm or firearms, counsel for the respondent tabulated the correlations in a written submission received by the court.[23] That table is Appendix B to these reasons.
[23] Third response, para 30.3.
Neither regs 15 or 16 of the Firearms Regulations were relied upon by the Delegate in the reasons, although he does through Appendix B. It is not apparent why either are introduced here. Likewise reg 21(1)(e) appears not to have been relied upon by him, although it was mentioned at paragraph 38 of the reasons.
The licence conditions
The Dealer’s Licence was issued pursuant to s 17 of the Firearms Act. By s 17(3) the licence is subjected to conditions imposed by the Regulations, or by the Registrar under s 17(4)(b) and (c), as well as a statutory prohibition from dealing in ‘prescribed firearms’ under s 17(4)(a). The Dealer’s Licence in this instance was endorsed with the following conditions imposed by the Registrar, purportedly pursuant to s 13(4)(b) of the Firearms Act:[24]
1.   Only the nominee or persons licensed as dealer’s assistant are permitted to access firearms and/or ammunition for any purpose.
2.   When the dealer’s premises is not open to the public, all firearms on the dealer’s premises are to be secured in the strongroom with the exception of class A and B firearms which may be stored on racks secured to the internal walls of the dealership with the firearms secured by steel cable threaded through the trigger guards and locked to the wall.
3.   Inspection of dealer’s stock can only occur within the designated dealers premises.
4.   Unregistered dealer’s stock must not be taken from the dealer’s premises and fired on the range or otherwise loaned or hired.
5.   Firearms to be used for hire stock must be registered to the dealer’s licence number as a registered firearm.
6.   The nominee, dealer’s assistants, firearm instructors, range personnel or other range users are not permitted in the dealer’s premises with loaded firearms.
These conditions were erroneously referred to by the Delegate as relating to the Firearms Licence.[25] On that footing there is a complaint over the failure to give separate consideration to each licence. Counsel for the Registrar argued there was no consequence in this slip. This issue is referred to again towards the latter part of these reasons.
[24] Exhibit PMR-3, pp 3-4, Delegate’s Reasons para 4.
[25] Delegate’s Reasons para 4B.
By carrying on the business of providing a shooting range and supplying firearms for the use of members of the public, Marksman thereby fell within the definition of a ‘Commercial Range Operator’. It acquired Ministerial approval as such, pursuant to s 21E(1) of the Firearms Act, as well as the approval of the Registrar under s 21F(2). The certificate with respect to the Range Licence read:[26]
Marksman Training Systems Proprietary Limited, trading as Marksman Indoor Firing Range of 163 Franklin Street Adelaide was the holder of a current Company Firearms Licence number 315699D of classes A, B and H. This licence was conditioned for range use.
[26] Exhibit PMR-4, p 5.
Section 18 of the Firearms Act makes it an offence punishable by a maximum penalty of $5,000, for a dealer failing to ‘keep prescribed records in relation to firearms or ammunition in which the dealer deals’, and to submit ‘prescribed returns to the Registrar in accordance with the regulations’. The contravention of this section formed the basis of adverse findings in the case of each Licence. Prescribed records include those made by regulations authorised by the Firearms Act: s 4(1) of the Acts Interpretation Act 1915 (SA). In contrast, reg 15(1) of the Firearms Regulations – which was not relied upon by the Delegate - requires a dealer simply to ‘compile records … of firearms purchased and sold in a form approved by the Registrar’.
A second basis of contravention determined by the Registrar in each instance, were breaches of s 25(1)(c) of the Firearms Act:
25—Notice by registered owner of alteration, loss, theft or destruction of firearm
(1)     The owner of a registered firearm must, within fourteen days after—
…
(c)     the firearm is lost, stolen, or destroyed,
give notice of that fact in the prescribed form to the Registrar.
…
(2)     A person who fails to comply with this section is guilty of an offence.
Maximum penalty: $5 000.
The third generic contravention with respect to the dealer’s licence were found to be breaches of reg 22 of the Firearms Regulations. These impose mandatory conditions of the licence. Of particular application to the appeal are regs 22(1)(c), (d), (k) and (l):
22—Conditions of dealers' licences
(1)It is a condition of a dealer's licence that—
…
(c)when a firearm or ammunition is not secured as required by Part 6, the dealer must take all reasonable precautions to ensure that the firearm or ammunition is not lost or stolen or does not come into the possession of an unauthorised person; and
(d)the dealer must report the theft, loss or destruction of a firearm that is owned or held by the dealer in the course of carrying on business as a dealer in firearms to a police officer within 14 days after the theft, loss or destruction occurs; and
...
(k)the dealer must allow a police officer to enter and inspect any premises at which the dealer is authorised by the licence to carry on business for the purpose of enforcement of the Act and these regulations; and
(l)the dealer must, whenever required to do so by the Registrar or a police officer, provide the Registrar or member with information relating to a firearm recorded to, or in the possession of, the dealer.
A third breach with respect to the firearms licence, was with respect to regulation 21(1) of the Firearms Regulations:
21—Conditions of firearms licences
(1)It is a condition of a firearms licence that—
(a)the holder of the licence must give the Registrar written notice in a form approved by the Registrar of all changes to his or her name or address within 14 days after the change occurs; and
(b)every firearm that the holder of the licence has possession of pursuant to the licence must comply with section 24A of the Act; and
(c)the holder of the licence must comply with the provisions of Part 6 that apply to, or in relation to, firearms held pursuant to the licence; and
(d)when a firearm or ammunition is not secured as required by Part 6 the holder of the licence must take all reasonable precautions to ensure that the firearm or ammunition is not lost or stolen or does not come into the possession of an unauthorised person; and
(e)the holder of the licence must report the theft, loss or destruction of a firearm to which the licence relates to a police officer within 14 days after the theft, loss or destruction occurs; and
(f)if the holder of the licence informed the Registrar, when applying for the licence, of the place at which he or she intended to keep firearms pursuant to the licence when not in use and the manner in which he or she intended securing those firearms, the holder of the licence—
(i)must allow, at any reasonable time, a police officer to enter and inspect the place at which the firearms are kept to ensure the firearms are so secured; and
(ii)must give the Registrar prior written notice of any change in the place at which the firearms are kept; and
(iii)must not, without the approval of the Registrar, change the manner in which the firearms are secured; and
(g)the holder of the licence must, whenever required to do so by the Registrar, provide the Registrar with information relating to a firearm registered in his or her name or in his or her possession; and
(h)the holder of the licence must whenever required to do so by the Registrar provide the Registrar with information that the Registrar requires to determine whether he or she should take action under section 20(1a) of the Act.
It can be seen that reg 22(1)(e) and s 25(1), erect for practical purposes identical obligations pertaining to the respective licences. Although in some respects the obligations under the Firearms Act and the Firearms Regulations with respect to reporting lost or stolen firearms are more or less identical, the material difference is that the former render non-compliance criminal offences, whereas the latter do not. Moreover, the former allow for limited defences, whereas the Regulations render breaches thereof a matter of strict liability.
Although not mentioned in the quoted paragraphs of the Delegate’s Reasons, counsel now relies upon regs 15, 16 and 18 of the Firearms Regulations to uphold the conclusions with respect to the specified firearms in connection thereto, as detailed earlier. These respectively provide:
15—Records of firearms purchased and sold
(1)A dealer must compile records in duplicate of firearms purchased and sold in a form approved by the Registrar for that purpose.
(2)Within 7 days after the end of each month, the dealer must deliver the original records in respect of that month to the Registrar.
(3)The duplicate copy of the records must be kept for at least 3 years at the dealer's premises.
(4)If no firearms have been purchased or sold by a dealer during a month, the dealer must deliver a copy of the appropriate form to the Registrar with "Nil Return" written across it.
16—Transfers of firearms through agency of dealer
(1)If possession of a firearm is transferred through the agency of a licensed dealer under section 15B(9)(b) of the Act, the dealer must—
(a)satisfy himself or herself by inspecting the relevant permit and licence that the person acquiring the firearm is entitled to acquire and possess it; and
(b)record—
(i)the name and address of the person transferring and the person acquiring the firearm and the number of each of their firearms licences; and
(ii)the class, make, calibre and serial number or other identification of the firearm; and
(iii)if the firearm is lent or hired—the duration and the terms of the loan or hire; and
(c)provide the Registrar with the information recorded under paragraph (b) within 1 month after possession of the firearm is transferred.
(2)The dealer must not transfer the firearm unless he or she has complied with subregulation (1)(a) and (b).
…
18—Other records
(1)A dealer must compile records of firearms received by the dealer for repair, consignment or safekeeping in a form approved by the Registrar for that purpose.
(2)A dealer must, if required to do so by the Registrar, compile records of ammunition purchased by the dealer and ammunition sold by the dealer in a form approved by the Registrar for that purpose.
(3)The records must be kept for at least 3 years at the dealer’s premises.
Once again it should be noticed that none of these regulations create offences for non-compliance.
On the basis of the contraventions referred to in the Reasons, the Delegate determined that Marksman was not a fit and proper entity to hold either licences within the meaning of s 20(1)(b) of the Firearms Act. He then drew the adverse conclusion with respect to the Firearms Licence that it would be ‘contrary to the public interest to permit Marksman to continue to posses and use firearms’, within the meaning of s 20(1a) of the Firearms Act. This provides:
20—Cancellation, variation and suspension of licence
...
(1a) Where the Registrar is satisfied that—
(a)it would be contrary to the public interest to permit the holder of a firearms licence to continue to possess and use firearms; or
…
the Registrar may, after giving the holder of the licence at least 14 days written notice—
(d) where paragraph (a) applies—cancel the licence; or
…
It can be seen that questions of public interest only pertain in the case of firearms licences. Finally the Delegate determined it was inappropriate to impose conditions on either licence, in each instance because of ‘the gross negligence displayed by Marksman and my finding that Marksman lacks fitness and propriety’.[27]
[27] Reasons paras 59 and 64 respectively.
The cancellations process under the Firearms Act
The power of cancellation is that contained in s 20 of the Firearms Act just quoted. Section 20(3) of the Firearms Act requires notices be served when cancelling licences which must ‘set out the Registrar’s reasons for the cancellation …’.
These provisions, taken in combination with the right to appeal conferred by s 26(c), serve to import the basic principles of natural justice into the decision making process: R v Toohey; Ex parte Northern Land Council.[28] Ever since the landmark decision of the House of Lords in Ridge v Baldwin,[29] it has been accepted law that the rules of natural justice apply to agencies having ‘legal authority to determine questions affecting the rights of subjects’. As Barwick CJ wrote in Twist v Randwick Municipal Council:[30]
The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal ...
[28] (1981) 151 CLR 170.
[29] [1964] AC 40, 74-79.
[30] (1976) 136 CLR 106, 109 (footnotes omitted).
In FAI Insurances Ltd v Winneke, Brennan J expanded on this basic tenet of administrative law, in these terms:[31]
The construing of a statute with a view to determining whether the principles of natural justice are to be applied requires more than mere exegesis of the statutory text; the common law attributes to the statute an operation which accords as closely as may be with the requirements of justice. The common law attributes to the legislature an intention that the principles of natural justice be applied in the exercise of certain statutory powers, and the legislature's intention provides the sole and sufficient warrant for judicial review of the exercise of those powers when an applicable rule of natural justice is not observed.
…
That examination is no longer impeded by drawing a rigid distinction between powers to be exercised judicially and powers to be exercised ministerially. The rigidity of that distinction has given way to a consideration of the functions to be performed as an aid in ascertaining the legislature's intention. The concepts of natural justice and fairness, for all their imprecision, have illuminated the perception of the legislature's intention by the courts.
In the present case the chief matters for consideration in ascertaining whether the legislature intended that the principles of natural justice should be applied are the statutory text, the interests affected by the statute and the repository of the power.
[31] (1982) 151 CLR 342, 409-410.

It follows as a general rule, that when considering questions of cancellation, suspension or variation of existing firearms licences, the decision-maker is bound by the fundamental common law rules of natural justice to accord procedural fairness so far as they are applicable to the statutory regime, of cancellation, suspension or variation under s 20 of the Firearms Act: Kioa v West,[32] Annetts v McCann,[33] Ainsworth v Criminal Justice Commission,[34] State of South Australia v Clark; Corporation of Gawler v Clark:[35] The Queen v Medical Board of South Australia; Ex parte S.[36] Those principles oblige the decision-maker to give reasonable notice of the matters to be considered and the corresponding opportunity to respond, and they also require the decision-maker to duly consider those responses: Heatley v Tasmanian Racing & Gaming Commission,[37] FAI Insurances Ltd v Winneke.[38]
[32] (1985) 159 CLR 550.
[33] (1990) 170 CLR 596.
[34] (1992) 175 CLR 564.
[35] (1997) 68 SASR 327.
[36] (1976) 14 SASR 360.
[37] (1977) 137 CLR 487, 513-414, 516.
[38] (1982) 151 CLR 342, 383-384.
Furthermore, the principles of natural justice import the additional requirement that there should be no taint of bias in the process, and correspondingly that there must be nothing in the actions of the inquirer creating in the mind of a reasonable observer, a suspicion of bias: Laws v Australian Broadcasting Tribunal;[39] Michael Wilson & Partners Limited v Nicholls,[40] King v Strickland.[41]
[39] (1990) 170 CLR 70.
[40] (2011) 244 CLR 427, [31-33].
[41] (1991) 56 SASR 225, 229.
It is necessary at this juncture to consider more closely the nature of the cancellation process presently under consideration. Clearly it is not expected that a judicial or quasi-judicial inquiry be undertaken. The Registrar and his Delegate(s) are not the holders of judicial office, and they are not usually (if at all) persons having legal training or qualifications, although they could be. No doubt Parliament chose the Commissioner of Police as the Registrar of Firearms for sound reasons, such as to centralise the regulation and the control of firearms with the one repository and because of the experience and expertise SAPOL holds in firearms.
However, the powers of the Registrar, and it must follow of his Delegate, are those properly exercised in aid of the central inquiry under s 20 of the Firearms Act, namely whether cancellation, variation or suspension is appropriate once the power to do so is enlivened on satisfaction of any one of the preconditions required by s 20(1). The exercise and due execution of that process goes further than the usual investigatory functions inherently involved in policing. That is because findings of fact and proof of the contravention or non-compliance with the Firearms Act or the conditions of licences, are usually involved. Furthermore, opinions are to be formed as to the fitness of licence holders to retain firearms licences and as to the public interest so far as firearms licences are concerned.
No provision of the Firearms Act dictates that a hearing should take place, there is no conferral of any rights to legal representation, or to confront witnesses, although Marksman had engaged and employed effective legal representation throughout. Nor are there any of the usual powers of compulsion that ordinarily attend judicial or quasi-judicial inquiries. Indeed powers of search and inspection are conferred outside the ambit of s 20.
The process contemplated by s 20 therefore is clearly of an administrative, as distinct from a quasi-judicial kind. The non-judicial and non-curial character of that investigation does not however mean the fundamental processes of natural justice are excluded, as demonstrated earlier. Considering whether procedural fairness applies, and the content thereof, depends upon the purpose and objectives of the inquiry, the urgency involved or otherwise, the nature of the potential breaches involved and the potential consequences of adverse conclusions, including the financial implications, the potential for injury to business reputation and the loss of the legal right (or privileged at least) to hold the licence.
There is an additional matter which should be mentioned in view of the numerous and extensive complaints over the failure to give notice of issues on which the Delegate proposed to make findings, of which no notice was given. These are detailed in the appellant’s written submissions at paragraphs [186] - [202], and were summarised at the request of the court in a document entitled ‘Appellant’s indexed list of submissions in relation to procedural fairness’. Those complaints are of no moment now, given that the court has heard the matters of which they complain on the merits. But they are of significant import in relation to the proper conduct of these kinds of inquiries in the ways referred to.
In Bakewell v MacPherson,[42] the Full Court considered the potential to injure reputation involved in an inquiry, required those affected to have a fair opportunity to answer allegations which might affect their reputations. It reached this conclusion in this way:[43]
I do not think that the plaintiffs, in this type of investigation, have any right to be provided with transcripts of the evidence of other witnesses or of documents examined by the defendant or to cross-examine witnesses. Fairness demands, however, that the defendant should put to the plaintiffs in giving their evidence the substance of any evidence against them on which the defendant is considering placing reliance and should be confronted with any documents of that kind which may require explanation. I think that the right to give viva voce evidence, as distinct from making written submissions, arises from the manner of the conduct of the investigation which involved the viva voce examination of other witnesses. As other witnesses have given viva voce evidence, the plaintiffs should have the opportunity to do likewise. I think that procedural fairness also requires that the plaintiffs or their legal representatives be given a reasonable opportunity to present arguments, as distinct from evidence, against the tentative conclusions, but whether those arguments are made orally or in writing is a matter for the defendant.
The court gave effect to these principles by making declarations to the following effect, so far as relevant to this matter:[44]
(a)that the plaintiffs are entitled to be notified of any other tentative findings or conclusions which might reflect on their conduct or affect their reputations and are entitled to a reasonable time within which to respond to them.
[42] Unreported, Supreme Court of South Australia, King CJ, Olsson and Mullighan JJ, 25 September 1992.
[43] Above at BC 26, per King CJ, Olsson and Mullighan JJ concurring.
[44] At BC 28.
Much angst would have been spared, and the appearance of fairness heightened, had a similar procedure been adopted here. So to say does not imply that such a process is applicable or necessary in all inquiries of this kind under s 20 of the Firearms Act, although they usually will be. The circumstances might be so grave or urgent as to require immediate or swift action, such that summary process becomes necessary. In the main, such situations would normally however be dealt with by other investigative means, including the laying of criminal charges or by exercising alternative powers of search and seizure. When business survival is at stake, livelihoods are in jeopardy, and peoples’ business reputations in the firearms industry are in question, a heightened obligation to afford procedural fairness emerges. There is no reason on the face of matters why a process considered appropriate in Bakewell v McPherson, was not practical here. The fact that a considerable bulk of material passing between the Delegate and the solicitor for Marksman over an extended period of time, tends to suggest such procedures were practical and workable.
Primary findings of the Registrar
The primary findings of fact upon which the Registrar founded the above conclusions, are principally contained in the appendices attached to the reasons. They centre upon the results of an audit of firearms conducted by the Registrar at the Franklin Street premises on 1 November 2011. The precise outcome was this:[45]
[45] See also the tables CMC-5 to the McCarron affidavit of 8 August 2013.
Summary: current status of firearms not located during the November audits.
19.The process to track down and account for the firearms not located during the audits has been lengthy and time consuming for SAPOL. As at the time of making this decision I am now able to summarise the state of affairs as follows:
a.     14 firearms were not located because the relevant record of movement of firearm had not been completed at the date and time of the transaction;
b.    28 firearms have since been produced and sighted or other satisfactory account has been made (for example production of record of movement, interstate registration identified);
c.     9 firearms were with their owner at the time of the audits but the appropriate record of movement had not been completed;
d.    2 firearms have been found in the possession of persons either known to police or subsequently charged with serious offences, including firearms offences (see further discussion below);² and
e.     10 firearms are still missing.
The 14 firearms referred to in paragraph 19a are those numbered 6, 18, 25, 28, 29, 30, 31, 35, 36, 37, 38, 39, 41, and 49 on the evidentiary chart. This finding is accepted by Marksman. There are now said to be 37 (as distinct from 28) firearms since sighted, referred to at paragraph 19b, namely numbers 2, 7, 8, 9, 12, 13, 14, 17, 19, 20, 21, 22, 24, 32, 33, 34, 40, 42, 43, 44, 45, 46, 47, 48, 50, 51, 52, 53, 54, 56, 57, 58, 59, 60, 62, 63, and 64. Marksman accepts seven of these findings are correct, and concedes they occurred as a result of record keeping errors, with respect to the weapons numbered 7, 12, 14, 19, 34, and 52, subject to its contention that the licence conditions do not validly require records of movements between the dealership and the range to be kept. A further five are accepted as errors on the part of SAPOL, being the firearms numbered 42, 45, 46, 48 and 50.[46]
[46] Highlighted in orange on the evidentiary chart.
Returning to paragraph 19 of the Delegate’s Reasons in order to complete the cross-references, the firearms referred to in paragraph 19c are those found with their owners, but for which appropriate records of movement were not completed. These were those numbered 30, 31, 35, 36, 37, 38, 39, 41 and 49. The two firearms found in the possession of unauthorised persons in paragraph 19d were no. 15 (‘No’) and no. 16 (‘J’). There is in fact a third firearm in this category, namely the Baretta no. 4 (‘Ni’).
Marksman maintains a further three firearms were actually listed in SAPOL’S records on the day of the audit, namely firearms 20 (which it is now accepted can be seen in a video taken of the audit), 44 which is recorded as ‘sighted in the dealership’ in the November audit, and 64 recorded in the evidentiary chart as ‘sighted at audit – range’. That leaves 24 remaining firearms to consider, namely firearms 2, 8, 9, 13, 21, 22, 23, 24, 32, 33, 40, 43, 44, 51, 52, 53, 54, 56, 57, 58, 59, 60, 62, and 63, all of which are attributed by the appellant to the failure of SAPOL ‘to properly reconcile [the] records’ of Marksman, to faulty methodology on the part of SAPOL in executing the audit and the failure to systematically count weapons. Four of these, nos. 43, 54, 56 and 63 were transferred to the armoury as of the range audit on 24 November 2011. A further seven are accepted by Marksman as having left its possession prior to the audit (nos. 7, 12, 14, 19, 34, 47 and 52).
The nine firearms referred to in paragraph 19c were already incorporated in paragraph 19a, so they are not referable to additional anomalies. Two firearms belonging to the dealership, nos. 52 and 61 were found on the range for use on the range.
The 10 missing firearms referred to in paragraph 19e of the reasons are identified there as follows:
SUMMARY OF MISSING FIREARMS
28.     In conclusion I note that the following firearms are still unaccounted for:
i.     Clock 9mm self-loading pistol serial number ENY 930 (dealers stock)
ii.    Heckler & Koch 9mm self-loading pistol serial number 24042251 (dealers stock)
iii.     Glock 9mm self-loading pistol serial number BFY760 (dealers stock)
iv.     Glock 9mm self-loading pistol serial number AYA491 (dealers stock)
v.    Sturm Ruger .22 pistol serial number 22036111 (dealers stock)³
vi.     Forjas Taurus 9mm calibre self-loading pistol serial number TWH95422 (registered to Marksman)
vii.    Sportco 22l Pump Action rifle 34C7 (dealers stock)
viii.   Glock 21 .45 calibre pistol serial number KZP942 (range)
ix.     Glock 9mm calibre pistol serial number G15919 (range)
x.    Glock Serial Number LEG 128 (dealer’s stock)
These are respectively the firearms in the evidentiary chart, i (No 10), ii (No 11), iii (No 26), iv (No 27), v (No 1), vi (No 3), vii (No 5), viii (No 55), ix (No 61) and x (No 23). In addition two further firearms were found to be missing at the 10 June 2013 audit, being an Elgamo Air (No 24), and a Glock self loading pistol.[47] The case for the Registrar relies heavily on the fact that these 12 firearms in all, still remain unaccounted for. These are in numerical order the firearms numbered 1, 3, 5, 10, 11, 23, 24, 26, 27, 55 and 61, plus the Glock. Marksman admits these are missing except for firearm no. 1.
[47] Gibson affidavit 15 August 2013, paras 17 a and b.
The above issues are essentially dealt with in Appendices A and B, or in the body of the Delegate’s Reasons. Appendix C relates to SAPOL’s attempts to account for firearms not found during the audit. Appendix D details a number of firearms remaining unaccounted for. Appendix E relates to the three firearms subsequently found in the possession of known criminals or persons having serious convictions. The circumstances of two firearms released by Marksman without sighting the relevant authority are dealt with in Appendix F, whereas the failure to report the theft or loss of missing firearms appears in Appendix G. This appendix also deals with suggestions by Marksman that many firearms were illegally taken by a former employee. The circumstances and alleged failures of the internal audit of handguns of April 2012 is discussed in Appendix H, and unsafe range practices said to be exposed and an uncooperative attitude evident during an inspection of the firing range on 22 August 2012, are discussed in Appendix I. The alleged inadequate reporting of the theft of a firearm is dealt within Appendix J, and a discussion of certain Coroner’s findings with respect to two suicides on Marksman’s indoor firing range, appears in Appendix K. Before turning to the specifics, it becomes necessary to deal with several preliminary issues arising under the legislation.
The power of delegation
As recorded earlier, the decisions to cancel were made by a Delegate of the Registrar of Firearms. The Commissioner of Police is the Registrar: s 6(1). Section 6 of the Firearms Act authorises the Registrar, by an instrument in writing, to delegate in these terms:
Part 2—Administration
Division 1—The Registrar of Firearms
6—The Registrar
(1) The Commissioner of Police is the Registrar of Firearms.
(2)The Registrar may, by instrument in writing, delegate to any person any of the Registrar's powers and functions under this Act.
(3)A delegation under this section is revocable at will, and does not prevent the exercise of any power or function by the Registrar.
Hence the power to delegate is one that is expressly conferred by statute: Dainford Ltd v Smith.[48]
[48] (1985) 58 ALR 285.
The specific instruments of delegation in this case were contained in the one instrument. They were directed to the ‘Chief Inspector in Charge of Firearms Branch’ and to a ‘Senior Sergeant’ thereof, respectively. The precise instrument of delegation dated 27 July 2009 under the hand of Police Commissioner Hyde, was this:[49]
[49] Exhibit PMR-1.
INSTRUMENT OF DELEGATION
FIREARMS ACT 1977
To: Chief Inspector Officer in Charge Firearms Branch and Senior Sergeant Firearms Branch
I, MALCOLM ARTHUR HYDE, Commissioner of Police, pursuant to the authority vested in me under Section 19 of the Police Act 1988 and Section 6 of the Firearms Act 1977 (as amended from time to time) hereby delegate my powers and functions conferred on or assigned to me under the Firearms Act 1977, except the powers and functions given by Sections 6(2), 6(3) and 35 of the Act.
Source of Authority Description
Section 6(2) Firearms Act 1977 The Registrar may, by instrument in writing, delegate to any person any of the Registrar’s powers and functions under this act.
There are a number of observations pertinent to the act of delegation made here. First, s 6 of the Firearms Act authorises delegations to ‘any person’. There is no definition of a ‘person’ thereunder. The two designated positions are occupied by natural persons. The source of rank derives from the Commissioner’s power to appoint ‘officers’ and ‘sergeants’ conferred by ss 20 and 21 of the Police Act 1998 (SA). The additional power of delegation under s 19 of the Police Act is of no consequence, because there was no act of sub-delegation in this instance.[50]
[50] Section 19(3) of the Police Act provides specifically for sub-delegation, ‘if the instrument of delegation so provides’.
It is permissible to delegate to a person or an office holder, providing the instrument of delegation clearly identifies the position or office to which the delegation is made: Owendale Pty Ltd v Anthony.[51] It was not suggested by counsel for Marksman that this particular delegation was other than in the capacity of officer-in-charge of the Firearms Branch. The respective decisions were made by Chief Inspector Ralphs. The Exhibit PMR-2, which appears to be an internal SAPOL document, discloses that he was posted to the Firearms Branch as and from 14 March 2013. On the face of these documents he appears to be the ‘Chief Inspector in Charge of Firearms Branch’ as described in the instrument of delegation. The purported delegation to the Senior Sergeant of the Firearms Branch is not so straightforward. That branch seems to be an administrative Unit within SAPOL. Counsel for Marksman hinted that the delegation(s) were invalid, without really pinpointing why. Other than being made in unclear or ambiguous terms in the sense that it was made to persons of identified rank or position at the time of delegation, the suggestion was that it was presumably intended or devolved to persons later assigned to such positions.
[51] (1967) 117 CLR 539.
The legal effect of a delegation is to confer direct power on the delegatee to exercise primary power in the stead of the delegator: Benwell v Gottwald.[52] An act of delegation of the power attaching to an office held by the delegator, continues in force until the delegation is lawfully revoked. Accordingly, an act of delegation does not lapse with changes of incumbency in the delegatee’s position: G H Michell & Sons (Australia) Pty Ltd v Minister of Works,[53] Evans v Sparrow.[54]
[52] [1978] VR 253, 255.
[53] (1974) 8 SASR 7, 14.
[54] (1973) 6 SASR 519, 526.
The facts in Owendale Pty Ltd v Anthony[55] were that certain notices purportedly made under s 22 of the City Area Leases Ordinance Act 1936 (ACT), were signed by a person described as ‘Delegate of the Minister of State of the Interior’. The Minister had previously delegated to persons for the time being holding or performing the duties of certain offices specified by description and salary, all his powers and functions under the Ordinance Act, except for the power to make regulations. It was held the delegation to the holder of an office rather than to a named person was validly made,[56] approving Noble & Bear v Commonwealth.[57] Section 6(1) of the Ordinance Act provided an identical power of delegation ‘to any person ...’ as we have here. As Windeyer observed:[58]
… delegations to the holders of specified offices have become commonplace … and provided that there be an identifiable person the holder of the office, I consider they are a valid exercise of a statutory power to delegate “to any person”.
[55] (1967) 117 CLR 539.
[56] Per Windeyer J at 563 and Owen J at 611, Kitto and Taylor JJ agreeing, Barwick CJ expressing no opinion.
[57] (1943) 17 ALJR 184.
[58] (1967) 117 CLR 539, 563.

The same conclusion was reached in Fyfe v Bordonim,[59] of a statutory power to delegate to ‘any employee of the Department’, in AB Oxford Cold Storage Co Pty Ltd v Arnott,[60] and in Barton v Croner Trading,[61] of a delegation ‘to the person occupying the position or performing the duties of Chief Executive of the Authority’. We have here a very different situation from that confronted in The Queen v City of Tea Tree Gully; Ex parte Indoor Cricket Arenas (Aust) Pty Ltd,[62] in which it was held a delegation by a nominee of the Town Clerk/City Manager was not authorised by s 50a of the Local Government Act, 1934-1983 (SA), which provided for delegations by municipal councils ‘to any officer…’. That decision was applied in McGinity v Medical Council of Tasmania.[63]
[59] (1998) 199 LSJS 401.
[60] (2005) 11 VR 298, [33-36].
[61] (1984) 54 ALR 541, 556-558.
[62] (1984) 37 SASR 167.
[63] (2009) 19 Tas R 1, [29].
On the state of these authorities, the identity and nature of the Delegatee must be clearly identified in the instrument of delegation, which is the case here at least insofar as the Officer-in-Charge of the Firearms Branch is concerned. The delegation was directed to the holder of that office for the time being and not to the individual incumbent at the moment of delegation, persona designata. Chief Inspector Ralphs occupied that position as of the date of the decisions, even though he did not apparently at the time of delegation. To the extent that there was a suggestion of ineffective delegation, it must therefore fail. It is now possible to turn to the bases upon which the licences were cancelled.
The reasons of the Delegate
It is impossible to trace from the reasons of the Delegate, the precise breaches in respect of each firearm ‘as set out above’.[64] These are simply not cross-referenced. The annexures fail to elucidate the position. The firearms referred to in paragraph 19 of the reasons are not correlated. It is no criticism to observe that the submissions of counsel both in written and oral forms, unsurprisingly struggled to collate and ‘tie the threads’ together from the reasons. As these are not directly identified or referable to a particular weapon in the reasons, it is necessary to cross-reference to the evidentiary chart once again. The stated contraventions, it might be recalled, relate to ss 18 and 25(1)(b) and (c) of the Firearms Act (keeping of records and the failure to notify the loss or theft of firearms), and regs 21(1) and 22(2) of the Firearms Regulations (breaching the conditions of the licences). As noted, counsel for the Delegate has further superimposed suggested breaches of reg 15 (dealer’s records of firearms purchased and sold), reg 16 (transfer of possession of a firearm through a dealer) and reg 18 (records of firearms received for repair, consignment or safekeeping).
[64] Paragraphs 57 and 61 respectively.
Breaches of the Firearms Act
There is however an antecedent issue, relating to alleged breaches of the Firearms Act itself. Section 36A of the Firearms Act provides:[65]
36A—General defence
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
Subject perhaps to specific sections to the contrary,[66] s 36A of the Firearms Act furnishes a form of mental element for offences under that Act, which serves to prevent a person proving they had no intention to do anything wrong and no knowledge they were doing so, from being convicted: R v Fuller.[67] Section 14BA of the Acts Interpretation Act 1915 (SA) provides:
[65] Inserted by s 50 Act No 70 of 1996.
[66] For example ss 10C(6), 10C(8), 10C(13), 11(4), 11(4a), 11(4b), 11(5), 14A(4), 21B(b), 23(4), 24A(6), 28(2), 29A(3), 29C(2).
[67] [2013] SASCFC 85, [70], [73-74].
14BA—References to other statutory provisions include references to relevant statutory instruments
(1)A reference in an Act to some other Act (whether an Act of this State or of the Commonwealth or a place outside this State) includes, unless the contrary intention appears, reference to statutory instruments made or in force under that other Act.
(2)A reference in an Act to a Part or provision of that Act or some other Act (whether an Act of this State or of the Commonwealth or a place outside this State) includes, unless the contrary intention appears—
(a)reference to statutory instruments made or in force under that Part or provision; and
(b)reference to statutory instruments made or in force under some other Part or provision of that Act or other Act insofar as the statutory instruments are connected to that Part or provision.
A statutory instrument is defined in s 4 thereof to include ‘a regulation … made under an Act’. On the face of matters therefore the general defence provided for under s 36A applies equally to offences created by the Firearms Regulations, since the definitions of ‘this Act’ in s 4 includes ‘statutory instruments made under the Act in which the expression is used’: Police v Siviour.[68] It would not however apply to regulations proscribing obligations without criminal sanction, as ‘no charge of an offence’ is involved. Such is the position with respect to each of regs 15, 16, 18, 21 and 22.
[68] (2001) 80 SASR 140, [30]-[33].
Clearly s 36A of the Firearms Act applies to offences under ss 18 and 25, as breaches of these sections constitute criminal offences. Nowhere has the Delegate considered whether any such offences were committed intentionally or resulted from the failure of Marksman to take reasonable care to avoid the commission of such offences. Such questions go to criminal liability in the first instance and to the degree of culpability in the second, with respect to firearms 3, 4, 6, 8, 10, 11, 16, 23, 24, 26, 27, 55, 61 and PBZ855.
It is to be recalled that inseparable components of the Delegate’s decision involved the conclusion that on multiple occasions that Marksman ‘contravened or failed to comply’ with the provisions under the Firearms Act, conclusions essential to trigger the power of cancellation under s 20(1)(a). Of course that power lies independently on account of unfitness to hold a licence under s 20(1)(b), however the adverse conclusions with respect to that question were dependent on the antecedent conclusions of multiple breaches, implicit in the words contained in paragraphs 58 and 62 of the reasons ‘it has demonstrated an inability to conduct its business … in such a way as to protect the public by ensuring firearms are accounted for and readily identified as missing’.
No doubt this was a disciplinary proceeding governed by the principles and procedures of administrative law: New South Wales Bar Association v Evatt.[69] Adverse opinions on such issues as breaches of statute do not constitute binding or conclusive determinations of criminal guilt. As demonstrated earlier, no exercise of judicial power is involved. Nevertheless the defences available under s 36A remain relevant to the analysis of contraventions of the Firearms Act, and when established, contain the capacity to affect the consequential inquiries as to fitness to retain licences and the public interest with respect thereto. In other words, technical, trivial, or benign breaches are one thing, whereas deliberate or repetitive breaches are another, but each class will directly impinge upon each of those broader issues.
[69] (1968) 117 CLR 177.
With this overview now completed, it becomes possible to descend into the specifics. For that purpose it is necessary to examine the individual findings said to underpin the ultimate conclusions reached by the Delegate, quoted earlier.
The claimed errors – a summary
For its part counsel for the appellant summarises the errors of the Delegate complained of as involving:
·factual errors in finding that the conditions set out in paragraph 4.B of the Reasons were conditions of the Range Firearms Licence when in fact they were conditions of the Dealer’s Licence,
·as to particular firearms that were said not to have been located in the 2011 voluntary audit and that Marksman exhibited an ‘uncooperative’ attitude towards the firearms branch;
·inadequate consideration of the actions of a so-called ‘rogue’ employee, C, rendering Marksman vicariously liable;
·finding Marksman ‘failed to demonstrate systematic improvements’ and did not ‘undertake regular audits’;
·treating the mere presence of dealership firearms on the range, and vice versa, as contravening licence conditions and in so doing misconstrued of ss 21 and 25 of the Firearms Act and regs 21 and 22 of the Firearms Regulations;
·taking into account record keeping failures which were not conditions (or were invalid conditions) of the Dealer’s Licence;
·determining Marksman’s approach to tagging firearms reflected adversely on its fitness and propriety to hold licences;
·determining the failure to report missing firearms within 14 days of being lost or stolen, reflected adversely on Marksman’s fitness and propriety to hold licences and particularly the Dealer’s Licence;
·in determining the firearms licence was not one required (or was contrary to) the public interest;
·the failure to recognise and give effect to the differing considerations applying to the cancellation of the Range Firearms Licence and the Dealer’s Licence.
There are subsidiary complaints arsing from the disposal of the above topics, including the failure to impose conditions on Marksman’s licences in lieu of cancellation and the alleged failure to comply with the principles of natural justice, denial of the right to a disinterested and unbiased adjudication,[70] in the failure to afford reasonable notice and the opportunity to be heard on some issues on which adverse findings were proposed and were in fact made.[71]
[70] The nemo judex in causa sua principle.
[71] The audi alteram partem principle.
It became clear later in the appeal process that Marksman continues to maintain its stance that the loss of 13 firearms could be attributed to C, these being those numbers 3, 4, 10, 11, 15, 16, 23, 24, 26, 27, 55 and 61 on the evidentiary chart as well as the Glock PBZ855 discovered missing in June 2013. The Registrar’s current position is that firearms numbers 3, 4, 5, 10, 11, 15, 16, 23, 24, 26, 27, 55 and 61, plus the Glock PBZ855, remain unaccounted for. Of these the only firearms not attributed by Marksman to C are those numbered 1, and 5, so there are 11 out of 13 firearms in common in these respects. Marksman disputes the weapons numbered 1 and 5 are missing at all. Firearm no. 1 is accounted for, in that it was given to R for repair. Firearm no. 5 is accounted for by reason of the mistaken reading of the serial number 34C7, as will appear. Marksman does however admit erroneous record keeping in respect of firearms numbered 6, 7, 12, 14, 18, 19, 25, 28, 29, 30, 31, 34, 35, 36, 37, 38, 39, 41 and 49.[72] So there is an extant dispute over whether firearms were at the premises when the November 2011 audit was conducted, with respect to the 24 firearms numbered 2, 8, 9, 13, 21, 22, 23, 24, 32, 33, 40, 43, 44, 51, 52, 53, 54, 56, 57, 58, 59, 60, 62 and 63.
Specific primary findings
[72] These are noted ‘AR’ on the evidentiary chart in the column ‘Marskman’s responses’.
Appendix A – Three firearms anomalies
Finding A2
The Delegate found a Sturm Ruger Range firearm (No 44) was missing at the November audit, but now concedes it was sighted in the dealership during that audit and was attributable to SAPOL’s failure to reconcile the November returns.
Finding A3
The Phoenix firearm (No 15) was present at the audit on 1 November 2011, but missing as of 8 March 2012. It was later located with a known criminal ‘No’ on 6 September 2012. As the loss or theft of this firearm, is said to be attributable to a so-called ‘rogue employee’, C. That topic is dealt with in detail later.
Finding A4
As a Sportco rifle (No 5) serial no 34C7 was not to be seen at the audit of the dealership on 1 November 2011, Marksman was required to produce it but had not as of 8 March 2012. However it was ‘sighted’ on 10 June 2013, then recorded by SAPOL as item 562, bearing the serial number 34C7.[73] The issue then is accounting for the firearm between March and June 2013. Marksman denies it was missing on the basis that the serial number was missed by SAPOL, a ‘C’ being read as an ‘0’.
[73] Gibson affidavit 15 August 2013. Exhibit DCG-3.
Quite apart from that Marksman further complains that this problem was not drawn to its attention by the Registrar as a ground of complaint, which is accepted to have been an oversight on his part. A third affidavit of Mr Andrew Marks, a Director of Marksman dated 5 September 2013, draws attention by reference to photographs to the potential for misreading the actual serial no 34C7 as 3407. It is evident that it was not logged into the November 2011 audit as it did not correlate with SAPOL’s spreadsheet on account of misreading the letters. As this seems a very likely explanation when looking at the photographs, it was erroneous to consider this weapon was unaccounted for at any time. Breaches of s 25 of the Firearms Act or of reg 22(1)(d) cannot therefore be sustained.
Appendix B – Audit results
The table of the unlocated firearms as of November 2011 taken from the Delegate’s Reasons, appears earlier. He noted that following an audit in 2009, 60 errors were identified, some admittedly ‘caused either by error in the documentation completed by Marksman or by erroneous data entry undertaken by SAPOL’.[74] All the same he placed no significance on this, but he did express concerns over the 2011 audit and the conduct of Marksman since,[75] especially the failure to account for the missing firearms, and with respect to the records movement relating thereto, as at 19 January 2012.[76] In point of fact Marksman was not made aware some firearms were unaccounted for until it received the Registrar’s letter of 4 January 2012, so it was given just on two weeks to account for them by 19 January. It was on that day that it produced 19 of the missing firearms to SAPOL.
[74] At B2.
[75] At B3.
[76] At B7.
The Delegate then proceeded to make an express finding ‘that the audit (of November 2011) was conducted appropriately and methodically’.[77] Marksman asserts that it was not. First it claims the audit was conducted on the erroneous assumption that firearms registered to the range should be stored in the armoury of the dealership, second that there was a potential for miscounting because weapons were not marked as demonstrated by a video taken at the time, and third that at least two of the ‘missing’ guns were in fact present. As noted earlier there are admitted errors on the part of SAPOL with respect to firearms numbered 42, 44, 45, 46, 48 and 50.[78]
[77] At B10.
[78] Marked orange on the evidentiary chart.
The Delegate claims to have ‘reviewed the video’ personally. He considered ‘the footage does not support the [unmarking] assertions’.[79] Marksman denies this and in fact claims it clearly demonstrates that no such marking occurred. It supports this contention by a chart submitted on appeal.[80] It was because of these differences that I resolved to view the video for myself in open court, as the only means to resolve the competing claims about what it did, or did not reveal. In this exercise the court was taken to various selections taken of the audit, at which point submissions were made by the parties, one-by-one.[81] Having viewed the footage, there is certainly room for a tag or serial number being miscalled, misunderstood – or even misread – on the odd occasion whilst being checked against a SAPOL spreadsheet, especially with so many firearms to handle.[82] There is also room for missing a firearm when multiple weapons were handled at the one time, or not appreciated to be in boxes on occasion. The respondent accepts that the footage shows unreturned boxes from the armoury, but emphasises there is an incomplete record, due to the corruption of some of the footage.
[79] At B10.
[80] Exhibit PMR-45, pp 907 & 909-12, [11], [13]-[17].
[81] T1-47, 18 July 2014.
[82] The spreadsheet appears as Exhibit 44, a pp 857-880.
It is a pity that someone from Marksman was not permitted to be present so as to act as a scrutineer, thus protecting its position. When so much was at stake, it is difficult to see what inconvenience would result, provided there was no hindrance of SAPOL’s work. At the same time, the requirements of reasonableness would also have been better served. The suggestion of Ms Charlesworth for the appellant that the process of immediately identifying ‘items that were missing and to ask the appellant to produce the missing items as part of the process of the audit itself’, appears at face value to be a practical, sensible and workable solution to the kinds of misunderstandings and errors that have emerged from the process of auditing itself.[83] There was certainly an error with respect to firearm no. 20, a Springfield Armoury serial no NM64837 not being recorded as present, as was conceded by Mr Golding. It is not possible to draw a conclusion one way or the other about whether the firearms were either consistently or appropriately marked.
[83] Written submissions in reply para 12c.
Overall the video, which it must be emphasised does not cover the entire audit, supports the conclusion that in general terms the audit was conducted ‘appropriately and methodically’, but that it certainly was not faultless or error proof. The Delegate found that it did not support the assertions of poor methodology and by and large that conclusion was correct. However, as there was demonstrable room for error, and as SAPOL now admits item 20 was present, and audit error on its part to the extent that there were firearms on its spreadsheet that should not have been there, with respect to firearms 42, 44, 45, 46, 48 and 50, the question becomes whether something in the order of 24 errors, could have been made in this way. This represents an error rate in the order of 4.8 per cent. Reduced by four, to 20 firearms (to account for four that were in the armoury when the range was audited), the error rate is 4 per cent, based on an assumed total of 500 firearms. That is a matter to be further addressed by the parties after the delivery of these reasons. However, in as much as the Delegate failed to admit of any room for error, he overstated the situation.
Record keeping of movements between the dealership and the range
Implicit in the audit process, was an unstated assumption that the conditions of licence required the movement of firearms between the dealership and the range to be recorded in the outgoing or incoming movements records. Section 17(4)(c) of the Firearms Act provides that a Dealer’s Licence is subject to ‘any conditions imposed by the Registrar’. Regulation 22(2) of the Firearms Regulations provide for the right of dealers to exhibit firearms at places other than in the dealership, which must otherwise be kept at the authorised dealership. Regulation 22(2) reads:
22(2)A dealer may—
(a)exhibit firearms and ammunition for the purpose of sale by auction and may sell firearms or ammunition by auction at a place other than his or her premises; and
(b)exhibit firearms and ammunition for any other purpose at places other than his or her premises if he or she does not exhibit—
(i)2 or more identical firearms; or
(ii) more than 50 rounds of identical ammunition.
Any condition imposed by the Registrar compromising this right would be invalid as repugnant to the Regulations. It is to be recalled that condition 3 of the Dealer’s Licence provided that ‘(I)nspection of dealer’s stock can only occur within the designated dealers premises’. To the extent that this condition infringes reg 22(2), it would therefore be inoperative. There is however no evidence that dealership weapons found on the range were there for exhibition purposes. It would rather appear that they were there for the use of members of the public on the range.

Regulation 4(1) of the Firearms Regulations, so far as presently relevant, provides:
4—Prescribed firearms
(1)For the purposes of the definition of prescribed firearm in section 5(1) of the Act, the following firearms are prescribed:
(a) automatic firearms;
...
(ja) regulated imitation firearms that closely resemble a firearm referred to in a preceding paragraph or that do not closely resemble such a firearm or a firearm of class A, B, C, D or H; … .
The expression ‘regulated imitation firearm’ used therein is defined under reg 5:
5—Certain imitation firearms included within definition of firearm
(1)Pursuant to paragraph (c) of the definition of firearm in section 5(1) of the Act, a regulated imitation firearm is declared to be a firearm for the purposes of the Act.
(2)A regulated imitation firearm is—
(a)an item that contains a mechanism that imitates the loading mechanism or firing mechanism of a firearm; or
(b)an item that is an imitation of the receiver of a firearm,
other than—
(a)an item that is a children's toy or a novelty item; or
…
All dealers in firearms in this State are required to record and accept ‘Instructions to Dealers’ issued by the Registrar. These form part of the conditions of licence, although this condition is not endorsed on the licence certificate quoted earlier.[177] A dealer in firearms, such as Marksman, is required by those Instructions not to refuse to receive a prescribed firearm, but to ‘immediately contact a police station or Firearms Branch and advise of having the [prescribed] firearm.’[178] In fact a dealer is not permitted to deal in prescribed firearms by s 17(4)(a) of the Firearms Act, and of more significance, it is an offence to have possession of prescribed firearms without an authorising licence, by virtue of s 11(1) thereof.
[177] Exhibit PMR-12 p 59.
[178] Exhibit PMR-62, p 85.
The issue here is one of construction, namely what does ‘mechanism that imitates the loading mechanism or firing mechanism of a firearm’ in reg 5(2)(a) of the Firearms Regulations mean? According to the Macquarie Dictionary, the noun ‘mechanism’ means ‘a piece of machinery … by which a particular effect is produced or a purpose is accomplished’. Adapted to the definition in the regulations, the mechanism must therefore be referrable to machinery that so functions or is designed to imitate the loading or firing mechanisms. This requires something more than physical resemblance. A number of parts working in conjunction to those ends of loading or firing, must be engaged.
Returning then to the firearms in question, item 3 was not manufactured to contain, nor could it readily be modified to contain a receiver or barrel of sufficient strength to fire, had no extractor or chamber of consequence, no firing pin and no safety catch.[179] Item 7 lacked a firing pin, an extractor, a disconnector, had no retaining pin and no corresponding ejector protrusion, such that it was incomplete for loading or firing, without those further firing mechanisms.[180] On the basis of these facts, it is impossible to conclude that these are prescribed weapons, simply because they contain insufficient mechanisms or components to imitate the loading or firing mechanisms of a firearm. This was the conclusion reached by Mr Hudson in each instance.
[179] Third affidavit of Mr McCarron pp 26-27.
[180] Third affidavit of Mr McCarron pp 14-15.
The report of Mr Hudson dealt with one aspect of the regulatory definitions on which his opinion was not sought. It was to the brief effect that each may fall within reg 5(2)(b) of the Firearms Regulations, namely as imitation receivers. It appears that Mr Golding always had it in mind to raise the question relying on that aspect of the report, as cryptic as it was. Whereas Ms Charlesworth, lead counsel for Marksman, assumed that he was not. Mr Golding was unable to point to any material which made his intention plain to her in this respect. There was then a misunderstanding about the issue.
In view of the protracted nature of the appeal, it became time to control the proceedings pursuant to DCR 6 209 of the District Court Civil Rules. Having regard, amongst other things, to the need to ensure that justice is administered expeditiously and economically, that each party has sufficient opportunity to present its case, and applying the principles discussed by the High Court in Aon Risk Services Australia Ltd v Australian National University concerning undue delay,[181] I determined that the Registrar of Firearms should not be allowed at such a late point in the litigation to raise the application of reg 5(2)(b) to these two firearms. To do so would have necessitated another hearing, and unacceptable further delay before finalisation.
[181] (2009) 239 CLR 175, [24]-[28].
The resolution of this issue on that narrow basis, should not however be allowed to mask the importance of two further considerations on the topic of ‘prescribed firearms’. The first is that the Instructions to Dealers should be applied in a way that gives effect to their intent and purpose. Owing to the codign way in which prescribed firearms are regarded, the practical effect of the Instructions is that dealers forming the belief or suspecting a firearm coming into their possession is of a prescribed kind, SAPOL must be notified. Absolute knowledge that it is such a firearm would be placing too low a standard on the reporting obligation and render it largely ineffective. Although the legal status of the Instructions maybe open to question, the capacity of a dealer to receive a prescribed firearm without committing an offence conditioned on immediate notice to SAPOL, can only be to the advantage of dealers. Those Instructions do not have the effect of ‘constituting a limited and conditional licence to possession prescribed firearms until the police attend to collect them’ as submitted by the appellant’s counsel in her written submission on this topic. They do however give rise to a legitimate expectation that dealers complying with the obligation to report to SAPOL, would not otherwise be prosecuted for being in possession of a prescribed firearm, or held accountable for breaching a condition of the Dealers Licence.
In his affidavit of 23 May 2014 Andrew Marks deposes that:[182]
At the time of receiving the items … I formed the view from the look, feel, components, weight, material composition and quality of manufacture … that the items did not imitate the actual internal workings of a firearm …
[182] Para 13.
It is apparent that he did not think the two weapons in question were prescribed. Even given his long experience with firearms as summarised earlier, for the reasons just explained and because of the differing expert opinions just referred to, he might well be right about that, but with due respect, it is for SAPOL to make that judgment, not him. His undertaking however that he would in future not ‘receive into the Appellant’s possession any kind of item that could conceivably be a prescribed firearm’, is noted. The whole object of the Dealers Guidelines is to employ dealers as conduits for taking prescribed firearms out of circulation when they come into their hands, without holding such dealers to penal or administrative sanction, providing of course they comply with them. Marksman and any other dealer for that matter would be better advised to take possession of and then immediately report to SAPOL any kind of firearm that could conceivably be prescribed, that is one it knows, believes or suspects to be so.
The failure to impose conditions
This analysis returns the discussion to the ambit finding of uncooperativeness. In the Reasons, the Delegate noted ‘Marksman has demonstrated a reluctance to work with SAPOL as the regulator of the firearms licensing scheme’.[183] Marksman complains this particular aspect of the inquiry was not foreshadowed or identified as a subject upon which adverse findings might be made. The reasons fail to identify the precise facts upon which this opinion depends. The conclusions made earlier that the Delegate erred in employing the incident of 22 August 2012 and that referred to in Appendix J, in aid of this conclusion, could not properly form part of the basis for the finding of uncooperativeness.
[183] At [59].
There were additional adverse findings to the effect that Marksman had not provided ‘evidence of systematic improvement’ in its stock movement systems,[184] of an ‘inability or unwillingness to improve its systems’,[185] and that it does not undertake regular audits or stocktakes of its firearms.[186] For its part Marksman emphasises the voluntary audits of 2009 and 2011. It points to the fact that sometime after March 2012, it purchased a barcode stocktake system and engaged the services of software consultants to develop an electronic inventory system to enhance the marking and tracking of firearms and the development of tethering and barcode systems in its range, in accordance with Coronial recommendations. The evidence is to the effect that software was selected on 3 March 2011, some 9 months before the November audit, but was not operational by then, as it was only implemented from 17 June 2013. The fact that the two additional firearms were detected missing then, is possibly attributable to the fact that SAPOL’s print out from the Registrar of Firearms was not made available until shortly before the audit. Marksman has since indicated its intention to, and does in fact, conduct fortnightly audits of all firearms using an electronic stocktaking system, an offer not made during the ‘show cause’ process. It now in fact conducts audits of its armoury fortnightly, employing the computer software and has done since 17 June 2013, the outcome of which it reports regularly to SAPOL.
[184] At para [50]
[185] At para [56].
[186] At para [51].
Putting aside the present barcode and security systems as well as a fortnightly audit system, it is not clear what more it could do. Problems in the past have stemmed from inadequate record keeping on it’s as well as on SAPOL’s side, and even SAPOL’s own record systems allow for some margin of error, as has been seen.[187]
[187] Exhibit PMR-45, pp 913-914, paras [22]-[23].
A singular difficulty from Marksman’s point of view is that a considerable number of discrepancies and anomalies were identified in the audit of 10 June 2013, as summarised in the Gibson affidavit of 15 August 2013:
17. Following the audit on 10 June 2013 and the follow up undertaken. A number of breaches of the Firearms Act 1977, Firearms Regulations 2008, and conditions of licence were identified. There are also a number of matters of concern. These matters can be summarised as follows:
a.The Elgamo Air, tag number D306, serial number 041C83720409 an A class firearm registered to the appellant’s dealer’s licence was not located;[188]
[188] Firearm 24 on the evidentiary chart.
b.The Glock Pistol Self Loading firearm serial number PBZ855 an H class firearm registered to the appellant’s range licence was not located;[189]
[189] Firearm 54 on the evidentiary chart, the serial no. should be PBZ854.
c.The Stoeger Side by Side serial number A2538209 an A class firearm registered to the range was identified as having been recorded incorrectly in paperwork filed by the appellant as A2539209 and consequently entered into the Register of firearms twice;
d.Nine custodian firearms held by the appellant and registered as at the premises of the appellant were not found at the premises on 10 June 2013;
i.Five of these firearms were located with their owners and relate to the records of movement supplied contained in exhibit DCG-5;
ii.Records of Movements had been completed for a further two firearms but with the incorrect serial numbers recorded;
iii.One firearm was located with its owner but no Record of Movement had been completed; and
iv.One Record of Movement had been completed and filed as required and no error is attributed to Marksman in relation to this firearm.
e.Seven regulated unregistered imitation firearms were located on the premises for which no Record of Movement had been completed. Two of the firearms (an imitation AK57 and imitation UZI) are thought to be prescribed firearms and have been referred to a SAPOL ballistics expert for advice.[190]
f.One firearm produced for surrender an Umarex S92450595 was not registered to the appellant and in fact was registered to the holder of a personal firearms licence. The owner of this firearm had (in error) advised the appellant that it did not belong to him.
g.A Ruger Supre Redhawk 44 calibre revolver serial number 55256061 was located in the Range safe. The appellant advised that this firearm was recorded to the range. Further information is provided in relation to this firearm commencing at paragraph 19 below.
h.28 Firearms were not recorded in the appropriate Record of Movement as moving into or out of the dealership. Exhibited hereto and marked DCG-8 is a list of the firearms not recorded in the Records of Movement.
i.Nine firearms were located on the range which were registered to the dealership without a Record of Movement being completed. These firearms are listed at point 6 of DCG-8.
j.Three dealership firearms were located on the range. These firearms are listed at point 3 of DCG-8; and
k.Five firearms were incorrectly tagged. These firearms are listed at point 9 of DCG-8.
[190] This issue is examined later under ‘Two Prescribed Firearms’.
There are on the other hand some difficulties with the assessment of the Registrar, because as the written submission of Marksman point out:
(1)    There was no discussion in the Show Cause notices or in the reasons, as to what potential conditions were given ‘lengthy consideration’. Marksman has indicated a willingness to comply with any reasonable condition and in particular has suggested ‘regular self-conducted audits’ or such audits as the Delegate considers appropriate.[191]
(2)    No distinction was made between the two licences or to distribute the supposed lack of co-operation to which licence. This is of particular significance when one considers the vast majority of the firearms concerned were dealer’s stock. Of the 64 firearms on the evidentiary chart, 50 were in that category. Two of the 10 missing firearms related to the firearms licence, one of them being the Glock No 54 produced on 19 January 2012.
(3)    It was conceded by counsel for the defendant, is that the issues of the ‘public interest’ are only of relevance with respect to the Appellant’s firearms licence, and not to the Dealers Licence.[192]
(4)    The compliance of Marksman with the interim conditions of licence may also be a relevant consideration in light of the position of the parties that the situation at the time of trial, should be taken into account. Those conditions are appended to these reasons.
[191] Written submissions [185].
[192] Submissions para [34].
In light of the conclusions reached earlier, it remains open to the parties to address the appropriateness of imposing conditions in lieu of cancellation, subject to the topics of fitness and the public interest, which now fall for consideration. For its part Marksman points out that its training regimes are not criticised. More particularly, the stance that the bulk of the missing firearms may have been attributable to C, is a very significant consideration at this point in the inquiry, but it was not considered in that context. It is here that correctly separating the conditions of each licence to consider whether further conditions could be imposed to give effect to the demonstrated problems, may be important and may possibly differ.
Fit and proper to hold a firearms licence?
The Delegate determined that Marksman was not a ‘fit and proper person’ to hold either licence within the meaning of s 20(1)(b) of the Firearms Act because:[193]
… it has demonstrated an inability to conduct its business both in relation to the dealership and the storage and location of firearms on the commercial range in such a way as to protect the public by ensuring firearms are accounted for and readily identified as missing.
[193] At paras 58 and 62.
As mentioned earlier, the recent amendments to the Firearms Act introduced provisions strengthening the objective that ‘only responsible persons with the appropriate licences [are] able to access firearms’: Offe v The Police.[194] The meaning of the phrase ‘fit and proper person’ is to be gathered from the statutory context, informed by the objectives and purposes of the legislative scheme: Teacher’s Registration Board of South Australia v Edwards.[195]
[194] Above [22].
[195] (2013) 117 SASR 246.
The classic definition of ‘fit and proper person’ embraces ‘honesty, knowledge and ability’: Hughes and Vale Pty Ltd v The State of New South Wales & Ors (No 2).[196] These qualities are to be applied in the specific context of firearms licences and the potential consequences of the failure to uphold the highest standards of security and control demanded by the legislation. This means licence holders are ‘fit’ in the sense that they do not fall into breach of their licences and that they will not be ‘proper persons’ to hold such licences, if such breaches are too serious, too repetitive, or committed contumeliously or deliberately. These types of (non-exhaustive) considerations become particularly onerous in the case of dealers, because of the large number of firearms likely to be under their control. Marksman was noted by SAPOL to hold in excess of 500 firearms, mostly rifles, shot guns, pistols and revolvers, housed at the Franklin Street premises, so that adequate controls of so many firearms is clearly a predominant consideration.
[196] (1955) 93 CLR 127, 156.
The Delegate was perfectly entitled to take into account proven breaches, the number and seriousness thereof, and more importantly, their cumulative effect and repetitive nature. A finding of unfitness to hold licences stems not from character or even dishonesty necessarily, but in this instance from a sustained inability to account for missing weapons, perhaps the failure of timely report of lost or missing weapons in some instances and of persistent inadequacies in record keeping.
It is apparent that the Delegate paid no regard to the reputation, honesty and integrity of Marksman through its Directors and employees, as required by s 5(13) of the Firearms Act. This provides:
(13)In deciding whether a person is a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence for the purposes of this Act, regard may be had to the reputation, honesty and integrity of the person and of people with whom the person associates.
The personal background of Mr Andrew Marks summarised earlier is relevant in this respect, but such considerations were not weighed by the Delegate at this critical point of the cancellation inquiry.
There is a final consideration requiring the attention on both sides. Marksman contends that it stands to be judged as ‘fit and proper’ to hold one or both licences within the meaning of s 20(1)(b) of the Firearms Act as of the date of judgment, rather than as at the date of the original determination in April 2013. In Shi v Migration Agents Registration Authority,[197] the defendant Authority cancelled the registration of a migration agent on the grounds that he was not a fit and proper person to give immigration assistance. This determination was eventually upheld through a series of intermediate appeals, by the High Court. As Hayne and Heydon JJ noted, when the Administrative Appeals Tribunal first reviewed the original decision to cancel:[198]
The question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes a decision.
Kirby J was also of the view that the assessment should be on the basis of ‘current facts and circumstances’,[199] as did Kiefel J,[200] Crennan J concurring.[201]
[197] (2008) 235 CLR 286.
[198] Ibid, [101].
[199] Ibid [60].
[200] Ibid [157].
[201] Ibid [117].
Contrary to the public interest?

The Delegate was satisfied that it would be ‘contrary to the public interest to permit Marksman to continue to possess and use firearms’, within the meaning of s 20(1a)(a) of the Firearms Act.[202] It has been repeatedly emphasised that in all aspects of handling, and regulating the use of firearms, the protection of the public is paramount, a consideration driven by the clear purpose of the legislative scheme and the intention of Parliament in bringing it into effect: Pitchers v Police,[203] Registrar of Firearms v Gitsham,[204] Johnson v Registrar of Firearms,[205] Jaworski v The Police.[206]
[202] Para 63.
[203] [2012] SASC 171, [8]-[12].
[204] (2002) 84 SASR 72, 76.
[205] (2001) 79 SASR 353.
[206] (2009) 265 LSJS 254.
The public interest is certainly a wide concept, one in this context incorporating the safety and protection of the public, as discussed in the cases cited towards the beginning of these reasons. It may also be readily accepted that the licensing and registration requirements depend for their effectiveness on compliance with record keeping requirements: Morabito v Commissioner of Police NSW.[207]The central question is whether the established breaches are minor or explicable, as distinct from fundamental, either taken individually, or more importantly in their accumulative effect. It is proposed therefore to take further submissions from the parties in light of the findings made earlier in these reasons, on the public interest aspect of the matter.
[207] [2006] NSWADT 181, [26].
As the respondent’s counsel emphasised, even if the appellant’s case is accepted at its highest, there are currently 12 firearms unaccounted for by Marksman.[208] His submission was therefore that in that state of affairs, the only proper mode of disposition was to dismiss the appeal, as cancellation remains inevitable on any view of the facts. Marksman contends that all firearms in its possession are consistently accounted for since 17 June 2013. The question of the unaccounted firearms remains a very live issue. Following the further Audit on 10 June 2013, two further firearms were missing, seven unregistered imitation firearms were located and record keeping irregularities were identified, particularly failures to complete movement documentation.
[208] Written submission para 31.
For the appellant it was contended that the public interest is better served by encouraging dealers to scrutinise their stock and record keeping practices, and to undertake self-audits, and that there was no demonstrable contingency risk to members of the public, especially since no firearms have gone astray since early May 2012. There was no finding of deliberate disregard of its legal obligations and responsibilities. The resolution of this important issue is very much tied up in the resolution of the ‘rogue’ employee issue. As detailed above, it is a distinct and realistic possibility that C was responsible for the majority of the missing weapons, on account of the combination and the coincidence of weighty circumstantial evidence that lends itself to that conclusion. For that reason this central issue stands to be determined in that light, as to which both sides are to be heard further.
Summary of findings relating to errors of the Delegate
For the reasons articulated above, the Delegate erred in the following respects, amongst others:
1.   by understating the possibility of error during the November 2011 audit, at [73]-[77];
2.   in making the assumption that the mere movement of firearms between the dealership and the range without surrendering possession to another person, required a record of such movements to be kept under the Firearms Regulations, at [78]-[84];
3.   in rejecting out of hand Mr McCarron’s account of the terms of the conversation involving the cessation of the employment of C (Appendix G), at [102];
4. insofar as he concluded that firearms stolen from the premises should have been reported, or reported sooner, with considering whether there were deliberate or reckless breaches of s 25(1)(c) of the Firearms Act (at G13), above at [61], [62-64], [122], [145], and in underestimating the strength of the hypothesis that a number of the weapons stolen might be attributable to the unauthorised and illegal acts of an employee, at [116]-[117], [120]-[121];
5. in concluding that SC Steindorf was authorised to attend and inspect Marksman premises on 22 August 2012, within the meaning of ss 21F(9) and or 21G(9) of the Firearms Act and attributing uncooperativeness to Marksman on this account, at [125]-[141];
6.   in not separating issues of conditions as between the requirements of each licence, at [161]-[166];
7.   in the failure to perceive the issue of public interest was influenced by the extent of C’s involvement in taking missing firearms, at [174]-[177];
8.   in erroneously finding firearms 1 and 5 remain unaccountable for, at [68], [71], [72], [117], firearm 14, at [71]-[73], [117], firearm 20, at [76]-[77], and firearm 23, at [124];
9.   making findings with respect to the Gecardo air rifle 48074PD, at [95]-[96], no 23 at [124], firearm no 44, at [48], [117] and the Walther 023436, at [97]-[99], without examining and resolving the underlying circumstances;
10. in failing to consider or determine whether breaches by Marksman in connection with firearms numbered 3, 5, 8, 10, 11, 16, 23, 24, 26, 27, 55, 61 and PBZ855 were deliberate or alternatively resulted from the failure of Marksman to take reasonable care to avoid such breaches, at [61]-[62], [122];
11. in failing to have regard to the reputation, honesty and integrity of the Directors and employees of Marksman and of people with whom they associate, when weighing whether Marksman was ‘fit and proper’ to hold each licence, at [171]-[172];
12. by concluding the reported theft of the firearm BLCA295 reflected poorly on the record keeping of Marksman, at [142]-[145].
Each of these taken alone might or might not have amounted to ‘cogent reasons’ to depart from the decisions of the Delegate, however there is no doubt that they do in their accumulative effect.
Summary of findings upholding the Delegate
On the other hand many aspects of the Delegate’s determinate have been upheld, principally that:
1.   there was a valid act of delegation of the s 20 functions to Chief Inspector Ralphs, at [52]-[59];
2.   Marksman failed to report the potential theft of a firearm by C sooner, at [118]-[119];
3.   system failures in the auditing systems made it possible for firearms to be stolen or removed, at [108], [114];
4.   to the extent of the admission made by the appellant of inadequate or erroneous record keeping with respect to firearms 6, 7, 12, 14, 18, 19, 25, 28, 29, 30, 31, 34, 35, 36, 37, 38, 39, 41, 49 and 52, at [46], [68].
Issues for further argument
Many of the problems of communication and execution appear to stem in part from Marksman’s inability or incapacity to respond effectively, or to keep pace with changes in the stringency and rigour of enforcement of our firearms laws. They were compounded, perhaps appreciably, by the significant prospect that Marksman was unsuspectedly duped by an employee.
Those problems also appear to stem in part from the failure of the Delegate to appreciate that once clothed with the power of administrative abjudication, he wears a different hat in the eyes of the law. He treads a fine and delicate line between traditional policing functions of investigation on the one hand and the determination of licence holder’s rights and privileges on the other. It is an absolutely fundamental principle of natural justice that no-one should be a judge in his own cause: Day v Savage,[209] Dimes v Proprietors of Grand Junction Canal Pty.[210] As Justice Felix Frankfurter once famously observed:[211]
All power is, in Madison’s phrase, “of an encroaching nature.” … power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.
[209] (1615) Hob 85, 87.
[210] (1852) 3 HL Cas 759; (1852) 10 ER 301, (the Nemo iudex in causa principle).
[211] Trop v Dulles, 356 US 86 (1958) p 119. (James Madison was the fourth President of the United States), Federalist No. 48 at 321, in an essay by James Madison first published on February 1, 1788 under the pseudonym Publius.
The parties are entitled to be heard as to the consequences of the above findings and as to their impact on the resolution of questions of Marksman’s fitness to retain one or both licences, and as to the question of the public interest so far as the firearms licence is concerned. They should initially be heard as to any incomplete findings or issues that he may have overlooked in this preliminary ruling. Ultimately the appropriate course of disposition will require detailed consideration, and as to what conditions or directions (if any) in relation thereto might be apposite, before final orders and judgment are entered. The appended Order might serve as a useful starting point in that respect.
The question of costs of the appeal also arises for consideration in light of s 42G(2) of the District Court Act which provides ‘… no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice’.
Appendix A
CONSENT MINUTES OF ORDER
4 JUNE 2013, Master Blumberg
1. The decisions of the respondent of 8 April 2013 to cancel the appellant’s Firearms Dealers Licence 280511L and Firearms Licence 315699D be stayed pending the determination of this appeal on the following conditions:
a.the conditions of the licence attached to the appellant’s Firearms Dealers Licence 280611L and Firearms Licence 315699D will continue to operate except and insofar as they conflict with the conditions imposed by this order;
b.for the duration of this order, the appellant will not accept any additional firearms for safekeeping, that is for storing on behalf of others;
c.for the duration of this order, the appellant will not accept firearms sought to be surrendered;
d.for the duration of this order, the appellant will provide the respondent with its record of movement and firearms (record of incoming firearms and record of outgoing firearms) returns on a fortnightly basis commencing on Tuesday 11 June 2013;
e.for the duration of this order, the appellant will reduce the total number of dealer’s stock firearms (including firearms for sale, safekeeping, consignment and repair firearms) held on its premises at any one time pursuant to Firearms Dealers Licence 280511L to 275 by Tuesday, 11 June 2013;
f.for the duration of this order, the appellant will reduce the total number of firearms stored on the appellant’s indoor commercial firing range at any one time pursuant to Firearms Licence 315699D to 86 by Tuesday, 11 June 2013;
g.notwithstanding the condition in paragraph (f), the appellant may store additional firearms held pursuant to Firearms Licence 315699D in the armoury on the premises of the appellant’s dealership, provided that any such additional firearms shall be included in the total of 275 firearms referred to in the condition in paragraph (e) and the appropriate record(s) of movement are completed;
h.the firearms to remain in the appellant’s possession are otherwise to be identified at the absolute discretion of the appellant;
i.for the duration of this order, the respondent will take possession of such firearms nominated by the appellant and held pursuant to both licences which exceed the numbers provided for in these conditions and will secure such firearms in oiled heat sealed bags at a secure indoor facility;
j.subject to these conditions, the respondent will take possession of such firearms which exceed the numbers provided for in these conditions on Monday, 10 June 2013 by attendance at the appellant’s premises and will undertake an audit of the firearms remaining on the premises at the same time. A representative of the appellant will be present on this day and will be entitled to:
i.identify and pass into the physical possession of the respondent each of the firearms to be taken;
ii.otherwise observe the taking of possession and the audit of the firearms;
iii.cross check the taken firearms against the appellant’s own inventory and any list of firearms provided by the respondent;
iv.obtain an itemised receipt specifying the serial number, make, model and tag number of each of the firearms taken, prior to the removal of the firearms from the appellant’s premises;
k.to facilitate the taking of possession and the audit the appellant will:
i.provide the respondent with a list of all firearms held on its premises by midday on Thursday, 6 June 2013;
ii.ensure all firearms to be taken into possession by the respondent are identified in the form of a written list specifying serial number, make, model and tag number, and are readily available for collection at its premises by 9.30 am on Monday, 10 June 2013;
l.to facilitate the taking of possession and the audit the respondent or his representatives will provide the appellant with a list of all firearms recorded against its licences in the register of firearms by midday on Thursday, 6 June 2013 and the list so provided shall be complete and accurate as at 5.00pm on 5 June 2013;
m.in addition to the firearms to be placed in the possession of the respondent for the duration of this order, the appellant may permanently surrender firearms to the respondent at its discretion and the respondent shall accept such firearms from the appellant. To facilitate the permanent surrender of any firearms:
i.the appellant will, by midday on Thursday 6 Jun 2013, identify and list specifying the serial number, make, model and tag number the firearms it wishes to permanently surrender to the respondent;
ii.the respondent will take possession of the permanently surrendered firearms on Monday 10 July 2013 and the appellant’s title in the said firearms shall at that time be extinguished;
iii.prior to removing the permanently surrendered firearms from the appellant’s premises, the respondent will issue the appellant with an itemised receipt in respect of each surrendered firearm identifying the make, model, serial number and tag number of each surrendered firearm;
n.for the duration of this order, the respondent must facilitate the appellant’s access to the appellant’s firearms held in the respondent’s storage in the following manner;
i.access will be available fortnightly on a Tuesday commencing 25 June 2013;
ii.the appellant must request a firearm in writing no later than the Tuesday before the Tuesday on which access will be available;
iii.the appellant may, upon requesting access to a particular firearm or firearms from the possession of the respondent, exchange one or more firearms in the possession of the respondent upon the same terms specified in these conditions, provided that the total number of firearms stored by the respondent cannot exceed the number taken into possession on 10 June 2013;
o.the parties have liberty to apply.

Appendix B