MARSH and COMMISSIONER OF POLICE
[2018] WASAT 139
•14 JANUARY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION: MARSH and COMMISSIONER OF POLICE [2018] WASAT 139
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 5 DECEMBER 2018
DELIVERED : 14 JANUARY 2018
FILE NO/S: CC 1527 of 2018
BETWEEN: PAUL MARSH
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Requirements and effect of a policy - Is the policy consistent with the Firearms Act 1973 (WA) - Effect of policy in exercise of discretion - Balance of interests and proportionality when new conditions are imposed - Storage of handguns by repairers
Legislation:
Administrative Decisions Tribunal Act 1997 No 76 (NSW), s 64(1), s 64(5)
Firearms Act 1973 (WA), s 16(1)(e), s 21, s 21(1)(a), s 21(1)(b), s 32
Firearms Regulations 1974 (WA), s 11A(1), s 11A(2)
Interpretation Act 1984 (WA), s 50(2)(b)
Review of the Firearms Act 1973 (WA)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)
Result:
The application is dismissed and the decision of the Commissioner of Police is affirmed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr T Pontre |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19
Australian Communist Party v Commonwealth (1951) 83 CLR 1
Citipower v Regulator General [1999] VSC 348
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Clyde Engineering Co Ltd v Cowburn [1926] HCA 6
Commissioner of Police, New South Wales Police v Martin (GD) [2007] NSWADTAP 61
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Kakulas and City of Stirling [2013] WASAT 168
Khan v Minister for Immigration and Ethnic Affairs (Unreported, FCA, 11 December 1987)
Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202
Municipal Council of Sydney and The Commonwealth (1904) 1 CLR 208
R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27
Re Drake and Minister of Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Commissioner of Police (respondent) adopted a new policy entitled the Firearm Dealers, Repairers and Manufacturers: Handgun Security Policy (the Policy) on 1 January 2018. The Policy was adopted pursuant to the Firearms Act 1973 (WA) (the Act) and the Firearms Regulations 1974 (WA) (the Regulations). The Policy provides, relevantly for purposes of this proceeding, more stringent requirements for securing the premises of businesses of repairers of handguns. The Policy does not affect repairers of rifles or long firearms and it does not affect the business of repairers of handguns that are not stored overnight.
The rationale for the Policy according to the respondent is that the management of storage of handguns by repairers must mitigate risks to members of the public; that preventative action is required to prevent and curb thefts of handguns; and to impose additional security measures that are proportional to the interests of the individual licensee as well as the general public. The respondent says the conditions must apply to Mr Paul Marsh (applicant) albeit that the applicant only operates a small repairer business and the applicant seeks approval to store overnight a maximum of only two handguns at any given time pursuant to the repairer's licence.
The applicant takes issue with the Policy. He raises several concerns namely that the Policy is inconsistent with the Act; that the consultation process did not include the interests of small operators such as himself; and that the respondent is abdicating its discretion by seeking to apply the Policy to all repairers without considering the unique circumstances of each repairer. The applicant therefore seeks an order to revoke the Policy or in the alternative to revoke the decision of the respondent to impose new conditions pursuant to the Policy on the licence of the applicant, and if necessary, impose a condition that only two handguns may be stored at the premises of the applicant's business.
Issues
Two principal issues are to be determined by the Tribunal, namely:
(a)Is the Policy inconsistent with the Act; and
(b)Should the conditions arising from the Policy be imposed on the repairer's licence of the applicant?
Statutory framework
The Tribunal will briefly summarise the statutory framework within which the review occurs.
The licence to repair handguns is not a right, but a privilege; hence the regulatory regime imposed by Parliament whereby an obligation is on the applicant to demonstrate why he should be licensed and the power of the respondent to impose conditions on a licence.
The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the same jurisdiction, functions and discretions as those of the licensing officer.
The Tribunal is not limited to the statement of reasons given by the licensing officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the licensing officer at the time when the decision was made (s 27(1) of the SAT Act). The objective of the Tribunal is to arrive at the best and preferable decision.
The review hearing is therefore de novo (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the licensing officer at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision; and
(d)make appropriate orders.
The decision of the Tribunal is regarded as a decision of the licensing officer (s 29(5) of the SAT Act).
The discretion of the Tribunal must be exercised within the context of the following provisions of the Act and Regulations.
16.Licences
(1)The licences which may be issued under this Act are
…
(e)a Repairer's Licence, which entitles the holder to
(i)repair firearms belonging to persons who are authorised by this Act or any other law to possess them; and
(ii)possess ammunition for those firearms,
on the premises named and identified in that licence, and authorises the holder or an employee or partner of the holder to have in his possession, and to carry in the ordinary course of the business of that repairer, any such firearm or ammunition and to use any such firearm or ammunition for the purpose of testing it;
…
21.Restrictions, limitations and conditions
(1)A licence, permit or approval issued or granted under this Act may be made subject to restrictions, limitations or conditions which shall be
(a)either specified in the licence, permit or document evidencing the approval or, whether imposed at the time of issue or grant or subsequently, specified in a supplementary document; and
(b)entered in the Register.
…
32.Safe keeping by traders
The holder of a Dealer's Licence, a Repairer's Licence, or a Manufacturer's Licence shall keep all firearms and ammunition in a strongroom or otherwise in safe keeping, securely fastened during any period when the premises are not open for trade.
Penalty:
(a)for a first offence, a fine of $4 000;
(b)for a subsequent offence, imprisonment for 2 years or a fine of $8 000.
11A.Storage security requirements
(1)A person entitled to possess firearms or ammunition of any kind is to ensure that the firearms or ammunition are stored in accordance with this regulation.
(2)Firearms and ammunition are to be stored in a locked cabinet or container that at least meets the specifications described in Schedule 4 or in such other way as is approved[.]
Summary of facts
The following are essential facts giving rise to the application.
The applicant holds a Firearms Repairer's Licence (the Licence) under license number 09995420 pursuant to s 16(1)(e) of the Act. He operates the handgun repairer business from his home. The home address is known to the Tribunal and the respondent, but it is to be kept confidential for reasons of security. The home is located in one of Perth's residential suburbs and the business is conducted from a secure room in the backyard.
The respondent informed the applicant by letter dated 23 June 2017 that the following condition would apply to his licence from 1 January 2018:
The holder of this licence, his agents, employees, partners or business must comply with the security requirements set out in the Western Australia Police Handgun Security Police, and any amendment to it as made from time to time.
The respondent informed the applicant by letter dated 9 November 2017 that the new condition would take effect as from 30 April 2018. The new conditions were set out in the same letter. The letter highlighted how the so called 'Original Requirements' that had been proposed for handgun repairers have been altered to the latest 'Amended Requirements' (see letter dated 9 November 2017). It is agreed by the applicant that the Amended Requirements are less onerous than the Original Requirements. The Amended Requirements are a combination of secure room, seismic sensors, CCTV and alarm monitoring.
The Policy took effect on 1 January 2018. The applicant was notified on 22 June 2018 that the new conditions had been imposed on the Licence.
The applicant accepts that the current security arrangements of the business of the applicant do not comply with the requirements of the Policy, and particularly so the conditions imposed the subject of this proceeding.
The Policy and conditions imposed on the Licence of the applicant do not affect handguns other than those held under the Licence.
The applicant sought a review of the conditions on 24 July 2018.
Contentions of the parties
The parties made extensive written and oral submissions. The submissions can be summarised as follows:
The respondent says that:
•the Policy is consistent with the Act and Regulations. The respondent can impose conditions on a licence and these conditions imposed on the License of the applicant are reasonable, proportionate and consistent with the Policy;
•the Policy has been subject to consultation with interested parties in the community. The Policy has also been discussed over an extended period of time within the ranks of the respondent and two Commissioners have approved the Policy. The Minster of Police (Minister) has also been aware of the Policy and although the Minister had not formally endorsed it, the Minster is supportive of the Policy;
•the Policy arose firstly from the Review of the Firearms Act 1973 (WA) (Final Report) that had been conducted by the Law Reform Commission and tabled in Parliament in October 2016 and secondly from concerns held by the respondent about the risk of thefts of handguns in general and the risk posed by thefts of handguns at the businesses of repairers in particular, the value of handguns on the so called black market and the public safety risk that unlicensed handguns constitute;
•the requirements for safekeeping of handguns by repairers such as the applicant are proportionate to the interest of public safety and the affordability of additional measures; adjustments have made in the required standards to better accommodate the interests of licensees; it is accepted that no preventative system can be absolutely successful but the Policy endeavours to strike a balance between cost, time for police to respond when a burglary occurs, risk to the public and a uniform and consistent licensing and security system; and
•the Policy should apply to the applicant since the current premises of the applicant falls short in substantial aspects to the standard imposed by the Policy. The mere fact that the applicant is willing to accept a condition that limits him to keeping two handguns for repair does not justify a slackening of the Policy for reasons that the public interests, efficiency in enforcement and the benefits achieved by consistency ultimately outweigh the interests of the applicant.
The applicant says that:
•the Policy is inconsistent with the Act since it attempts to impose conditions that are more stringent than those already contained in s 32 of the Act. Even if the Policy in general was consistent with the Act, the application of the conditions to the applicant's License is disproportionate, unreasonable and in light of the current security arrangements at the premises of the business, unnecessary;
•the consultation that led to the adoption of the Policy did not involve small business handgun repairers who are familiar with the interests of persons such as the applicant. It is well known that there is competition and even conflict between the larger, commercial repairers and those who work from smaller, backyard-type facilities and the consultation only involved the former and not the latter. The conditions, in effect, serve the commercial interests of the larger repairers;
•the Policy has not been approved by the Minister; it has not been tabled in Parliament and it has not been open to disallowance. The Policy therefore falls short of what is generally expected of a 'policy'. This is, at best, an internal guideline that has been dressed up by the respondent as a 'policy';
•the recommendations of the Law Reform Commission in the Final Report did not make any mention to increased security for handgun repairers. On the contrary, the Final Report that was tabled in Parliament specifically mentioned that 'no evidence has been presented to suggest the current storage requirements are inappropriate or that there has been an increase in the theft of handguns' (Final Report, page 124); and
•the conditions sought to be imposed are disproportionate and the respondent erred by refusing to take into account the individual circumstances of the applicant. The respondent therefore refused to exercise its discretion. The objectives of public safety and deterrent are met by the current security arrangements at the business of the applicant. The applicant is willing to accept a condition that limits the number of handguns to be stored overnight to two.
Consideration
The Tribunal will address the various contentions of the parties under separate headings.
Is the Policy indeed a 'policy' or is it merely an internal guide?
The Tribunal put questions to both parties about the Policy, for example how does a 'policy' come into being; what are the characteristics of a policy; who should approve or endorse a policy; when does a document become a policy; and how is a policy to be distinguished from an inhouse departmental guide or other management directives.
The courts draw a distinction between statutory rules as is found in delegated legislation such as regulations, and non-statutory rules as is found in policies. Whereas delegated legislation is often used to fill a void in primary legislation, policy is generally used to explain why discretion ought to be exercised in a particular manner. Policy is by nature and by operation more flexible than a statutory instrument. Whereas delegated legislation has the force of law, policy falls into a different category because it is open to change in a manner much simpler than delegated legislation. Policy also does not create legal rights and obligations similar to those arising from delegated legislation.
The distinction between delegated legislation and policy is manyfold, for example, delegated legislation is generally subject to higher levels of publication, tabling in parliament, parliamentary scrutiny and potential disallowance. Whereas public consultation may be advisable prior to a policy being adopted, it is not a requirement for a policy to have been subjected to consultation. The weight attached to a policy may be influenced by the extent of public consultation that preceded it, but that is only one factor to be taken into account when weight is accorded to a policy.
The principles of administrative review provide that decisions of an administrative nature can be reviewed, including when a policy is applied in the exercise of the discretion. In this sense a policy provides an important guide to the exercise of discretion, but it is not binding as in the case of delegated legislation. In this regard see Re Drake and Minister of Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 (Drake) in which Brennan J explains the benefits of consistency arising from a policy (at 640) and the public interest of a policy being a reference point for administrative decision-making. If a policy is therefore not adhered to, there must be a cogent reason for doing so in light of the potential benefits that may arise from a policy. A policy should however not be approached with inflexibility since the decision must ultimately be made on merit by taking into account the statutory framework, policy and all relevant facts.
Whether a specific document is indeed a 'policy' depends on the intrinsic characteristics of the document, not merely that it is called a 'policy'.
There is no mention in the Act of a 'policy' that can be adopted by the respondent or that the decision-maker should in the exercise of discretion take any policy into consideration. The Act refers to 'restrictions, limitation and conditions' (s 21) that may be imposed on a licence. The respondent may impose restrictions, limitations or conditions on a licence but there is no explicit reference to a general power to make and enforce a policy in regard to a category of licenses. Intrinsically, a government, minister and a department can make policies for purposes of proper public administration and there is no legal requirement for such a power to only exist when recognised in a statute.
It is not disputed that the respondent may by way of regulation enact certain conditions in regard to different categories of firearms, but regulations are not to be confused with a policy. In some legislation, see for example the Administrative Decisions Tribunal Act 1997 No 76 (NSW) (ADT Act), specific reference is made to the relevance of 'policy' in the exercise of discretion. Section 64(1) of the ADT Act requires the relevant Tribunal, in determining an application for a review of a 'reviewable decision', to give effect to 'any relevant Government policy' in force at the time the decision was made. 'Government policy' is defined as a policy adopted by the Cabinet or the Premier or any other Minister that is to be applied in the exercise of discretionary powers by 'administrators' (s 64(5) of the ADT Act).
The applicant in the current proceeding takes issue with the characterisation of the Policy. The applicant says the Policy is not to be regarded as a policy since it has not been the subject of a proper consultative process; it has not been adopted by the relevant Minister; and it has not been tabled in Parliament. The applicant therefore concludes that the Policy the subject of this proceeding is, in law, not a policy but is rather an internal working document by the respondent and that commensurate weight should be given to it.
In the matter of Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19 at [47] some support is found for the principle highlighted by the applicant. In this matter it was found that some internal departmental guidelines were not to be given the status of 'policies' since those documents were not adopted by the New South Wales Cabinet or any Minister and 'contains no statements as to how any discretion … should be exercised on the conclusion of such a review'. This approach reflects the observation in Citipower v Regulator General [1999] VSC 348 at [122] that there was no statement by the Governor in Council that what was purported to be a 'policy', was indeed a policy as envisaged by the relevant legislation.
The respondent disagrees with the applicant and says that this is indeed a policy at law and should therefore be accorded appropriate weight to guide the exercise of discretion.
The Macquarie Concise Dictionary (3rd ed, 2004, Macquarie University, Sydney) contains various definitions for 'policy' of which the most relevant for purposes of this proceeding is: 'a definite course of action adopted as expedient or from other considerations' and 'a course or line of action adopted and pursued by a government, ruler, political party, or the like'.
The Australian Legal Dictionary (LexisNexis, 2016 Butterworths) defines 'policy' as 'a social or political goal chosen by a government department, business or other organisation'.
In Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 it was noted that not all proposals or working documents can be seen as a 'policy', but that future planning proposals and draft policies and other instruments may be taken into account when discretion is exercised, but the weight accorded to such non-policies will depend on the circumstances.
In Clyde Engineering Co Ltd v Cowburn [1926] HCA 6 at [10] Isaacs J explained how the administrative decision-maker may, when exercising a discretion, take into account 'if the Minster has such a policy' that ought to be considered. The Court acknowledged that there may be different categories of 'policies', for example some policies may be set at a departmental level whereas other policies are set at a political level. This is consistent with the observation in the matter of R v Anderson; Ex parte Ipec-Air Pty Ltd [1965]HCA27 (113CLR177) (IpecAir) at[202] that since policies can originate from different sources, for example political or departments, the weight attached by an administrative decision-maker to a particular policy may vary depending on its origin be it political or departmental. The reason why it is important to properly categorise the origin of policies is that political policies are generally issued by a Minister or by Cabinet; the policy is open to scrutiny by Parliament; whereas administrative type policies generally do not have the same level of political endorsement or scrutiny. In this regard a department can be expected to adhere to the policies of the relevant Minister and give weight to a policy when a discretion is to be exercised (IpecAirat [87]).
An administrative decision-maker should therefore be slow to depart from the policy adopted by a political functionary, whereas a policy adopted at a departmental level arguably ought to be given lesser status. In essence, an administrative decision-maker should, generally, give effect to a policy unless there are cogent reasons to depart from the policy.
In Commissioner of Police, NewSouthWales Police v Martin (GD) [2007] NSWADTAP 61 at page 55 it was observed that a so called 'industry standard' does not amount to 'policy' within the meaning of s 64(5) of the ADT Act because it had not been adopted and declared as 'policy' by Cabinet, the Premier or any other Minister. Although the industry standard in that case may have been useful as a guide to the Firearms Registry, the relevant Tribunal was not required to give effect to it.
When these principles espoused by the courts are applied to the matter before this Tribunal, I am satisfied that the Policy the subject of this proceeding is indeed what it purports to be, a policy adopted by the respondent with the aim of pursuing a lawful objective and to facilitate consistency in decision-making and consistency in standards in regard to the safety and security conditions that apply to licences of those licensees who repair handguns.
This finding is made for the following reasons:
(a)The applicant incorrectly assumed that a 'policy' must inevitably be adopted by a Minister and tabled in Parliament. Policy can be issued by a Minister or it can be issued by the head of a department. The weight given to policy may be impacted upon by its origin, but it does not negate that a head of a department, in this case the respondent, can issue a policy. The evidence before the Tribunal is that two different Commissioners (respectively ratified on 12 June 2017 by Commissioner O'Callaghan and approved on 18 January 2018 by Commissioner Dawson) considered the Policy and the current Commissioner caused some changes to be made to the Policy after consideration of consultation and then formally adopted it. The Policy meets the requirements of a 'policy'.
(b)The applicant is misconceived by proposing that the Tribunal ought to 'nullify' the Policy. If the Tribunal found, as is proposed by the applicant that the Policy does not constitute a policy, the Tribunal would simply attach less weight to the document.
(c)The applicant incorrectly assumed that a policy has to be the subject of public consultation, where in practice, policies are often the outcome of public consultation, there is no legal requirement for a policy to be preceded by public consultation. A policy, for example, may arise from a course of action by a Minister, as a result of an election or the outcome of internal discussions of a department without any public consultative element.
(d)The criticism by the applicant that this Policy was not the subject of adequate consultation with the public in general and with persons who were in a similar position to the applicant, is rejected. The process leading to the adoption of the Policy involved consultation with external stakeholders, representatives from the industry, particularly from the WA Firearm Traders Association, reference to practice standards in other states, reliance on standards application to Australia and New Zealand and internal discussion and debate within the ranks of the respondent about appropriate measures to strike a fair balance between public and individual interests. Any consultation process can of course be better and more inclusive, but the Tribunal is satisfied that to the extent that consultation is a requirement for the adoption of a lawful policy, this Policy has complied with the process (see more about this below).
(d)The Policy has been widely communicated to persons within the firearms industry in Western Australia and has been sent, in its various iterations, to those licensees who hold licences for purposes of repair of handguns. The Policy is not merely an internal working guide for use by the respondent in the exercise of discretion. The Policy is public, readily accessible, open to ongoing inputs and comments, widely circulated to relevant licensees, consistently applied to all relevant licensees and open to review by this Tribunal. The respondent is also in discussions with licensees about practical measures that licensees can take to comply with the Policy and with conditions that have been imposed on their licences.
The Tribunal is therefore satisfied that the Policy is a policy within the legal and administrative meaning of policy to guide decision-makers about conditions that may be imposed on the licences of handgun repairers.
What is the impact of the Policy on the exercise of discretion?
The parties are in agreement that a policy is meant to give guidance in the exercise of discretion and not to be treated as if it constitutes subsidiary legislation.
The applicant is critical of the respondent in this regard and says the respondent in practice applies the Policy to all licensees in an inflexible way without taking adequate consideration of their unique circumstances. The applicant says the respondent has refused to take into account his specific circumstances and therefore requests the Tribunal to take into account those circumstances and to conclude that the conditions sought to be imposed by the respondent are too onerous and not justified.
In this regard see Drake in which Brennan J explained the role for policy to play in the exercise of discretion, the benefit of having policy apply consistently and the obligation on the decision-maker to take into consideration all relevant information before it applies the policy, or decide on the basis of cogent reasons that the policy should not be applied in a particular circumstance.
In Khan v Minister for Immigration and Ethnic Affairs (Unreported, FCA, 11 December 1987) at [11][12] (Gummow J) said as follows about the importance of the decision-maker to be guided but not bound by policy:
[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy: … The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense[.]
The Tribunal must, in the exercise of its discretion, guard against an inflexible approach to the application of the Policy without considering specific factors highlighted by the applicant since otherwise it would constitute an error of law (Re Romato; Ex parte Mitchell James Holdings PtyLtd [2001] WASCA 286 at [26] to [28]; Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202 at [41]). As Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002)122LGERA433 at[24], the existence of a policy cannot replace the discretion of the decision-maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case. It was emphasised that administrative decision-makers may enact policies to structure their discretionary powers and as such the policy is a factor to be taken into account when discretion is exercised.
A balance is therefore to be achieved between having regard to policy, while at the same time taking into account all facts of relevance in a particular matter when exercising discretion.
The Supreme Court of Western Australia has reminded decision-makers in areas that require the exercise of discretion that they will fall into error if 'in substance [the decision-maker has] regarded itself as bound by [a policy] and inflexibly applied [that policy]' (Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196).
In this matter the Tribunal is satisfied that
(a)the Policy the subject of the proceeding is to be regarded as a policy of the respondent;
(b)the Policy is intended to guide the decision-maker and the Tribunal in the exercise of discretion and not to bind the decision-maker or Tribunal;
(c)the decision-maker or Tribunal may for cogent reasons decide not to apply the Policy to the License of the applicant or to impose less stringent conditions; and
(d)the Tribunal must demonstrate that it has taken into account all relevant facts in the exercise of its discretion.
Is the Policy consistent with the Act?
The applicant contends that the Policy is inconsistent with the Act for reason that it sets a higher standard of security than is required by the Act. The applicant refers to s 32 of the Act which requires a person with a repairer's licence to keep all firearms and ammunition in a 'strongroom or otherwise in safe keeping, securely fastened during any period when the premises are not open for trade'. The applicant acknowledges that 'strongroom' is not defined by the Act.
The respondent says the Policy is consistent with the Act since:
(a)the Act does not provide a definition of strongroom and therefore the Policy seeks to provide greater clarity of storage requirements in a contemporary context;
(b)the respondent may impose 'restrictions, limitations and conditions' of a repairer's licence pursuant to s 21 of the Act; and
(c)the Policy does not seek to circumvent the Act but to guide the decision-maker in regard to proper security and safety arrangements for businesses that undertake repair of handguns in light of current circumstances.
In Drake at [640] it was emphasised that 'of course, a policy must be consistent with the statute'. In Kakulas and City of Stirling [2013] WASAT 168 at [21] it was stated that 'a written policy cannot by itself, and no matter how clear its terms, fetter a statutory discretion or, for that matter, alter, detract from or impair a legislative instrument. This is because policy must conform to any law'. This is commonly referred to as a 'spring that cannot rise higher than its source' (Municipal Council of Sydney and The Commonwealth (1904) 1 CLR 208 at [230]; Australian Communist Party v Commonwealth (1951) 83 CLR 1 at [258]).
The Tribunal is satisfied that the Policy is consistent with the Act and Regulations.
The provisions of s 32 and s 21 of the Act are not, as is contended by the applicant, contradictory and in conflict with the Policy. Section 32 of the Act sets a standard for the safekeeping of firearms but does not specify how the standard is to be met. The emphasis is on the objective to ensure the safekeeping of firearms in the possession of the trader and not the specific standard of safekeeping that may be applied from time to time. The provisions of s 21 provide the flexibility for the respondent to impose conditions as may be justified from time to time on a particular licence. Section 21(1)(a) of the Act envisages that new conditions may be imposed on a licence at any time after it has been issued. The provisions of s 32 and s 21 are entirely consistent and, being sections within the same Act, must be interpreted in a manner to give efficiency; effect and ensure consistency. The power to impose conditions on a licence is also reflected in reg 11A(2) of the Regulations which provides that:
Firearms and ammunition are to be stored in a locked cabinet or container that at least meets the specifications described in Schedule 4 or in such other way as is approved.'
(Emphasis added)
This interpretation of the Tribunal is consistent with s 50(2)(b) of the Interpretation Act 1984 (WA) (Interpretation Act) which confirms that a person who is authorised to grant a licence, may also impose reasonable conditions on such a licence.
Section 32 and s 21 of the Act, reg 11A(2) of the Regulations and s 50(2)(b) of the Interpretation Act must therefore be read together to ascertain the true nature and extent of the powers of the decision-maker, including the Tribunal. Imposing conditions on a licence such as those held by handgun repairers is intrinsically part of the decision-makers discretion.
The Tribunal is therefore satisfied that the Policy is consistent with the statutory framework within which it operates and that the Tribunal may impose additional conditions on the Licence of the applicant.
Has the Policy been subjected to adequate consultation?
The Tribunal has already observed that public consultation is not a legal requirement for a valid policy. The weight attached to a policy may be impacted upon by the extent of public consultation, but policies may be adopted without any public consultation.
The Tribunal accepts that the Policy has been the subject of discussion, debate and amendments based on the inputs received by the respondent. The Policy was not arrived at in a haphazard and arbitrary manner. There is a clear thread that involved the report by the Law Reform Commission to Parliament at the request of the Attorney General of Western Australia, the various iterations of the Policy, the changes brought about to the Policy as a result of consultation, ongoing concerns about the thefts of handguns and finally the adoption of the Policy by the respondent. The Policy is therefore the outcome of a process of public consultation, expert input and internal deliberation.
The Tribunal notes the concern expressed by the applicant namely that small handgun repairers were not directly represented in the consultation process. The Tribunal does not accept that this criticism by the applicant erodes the applicability of the Policy. The Tribunal accepts that the consultative process, the reference to national and international standards and the inputs made by two Commissioners were adequate to take into account the general interests of license holders that are involved in repairing handguns. The consultative process giving rise to a policy does not have to comply with an exhaustive set of criteria. Ultimately a policy is a course of action adopted by a government or a government department and in doing so public consultation may be an important element in formulating a policy, but the nature and extend of consultation may vary. In this case the Tribunal is satisfied that the consultation that preceded the adoption of the Policy was adequate.
The contention by the applicant that the consultation process leading to the Policy did not adequately take into account the interests of backyardtype businesses, is rejected. Police Acting Inspector Kenneth Walker (Inspector Walker) acknowledged that the respondent was aware of the different types of handgun repairers; that there was some commercial competition between the storefront and backyard repairers; and that the backyard repairers were of the view that their interests should be better accommodated. The respondent concluded, however, that regardless of these subcategories of repairers, the public interest demands a policy with general application since the risk posed if handguns are stolen outweighs any special treatment that subcategories of repairers should receive.
The Tribunal accepts and concurs with the reasoning of the respondent. The Tribunal was impressed with the way in which Inspector Walker responded to questions; the extensive knowledge he displayed as far as the Policy is concerned, the understanding he had shown for the various interests of handgun repairers and the steps he had taken to ascertain what it would cost, by way of estimate, for the applicant to comply with the conditions. It is clear to the Tribunal that the respondent thoroughly considered the various options and opinions before the Policy had been adopted and before the conditions were added to the Licence of the applicant.
Did the respondent fail to properly exercise its discretion?
The Tribunal is satisfied that the respondent had properly considered the statutory framework, the Policy and the specific circumstances of the applicant before imposing the conditions. The Tribunal has, as part of the review, also taken into account all relevant information before it, in order to exercise its discretion. The proposition by the applicant that the Policy is being implemented in a rigid manner as if it constitutes a statute, is rejected.
The Tribunal finds that the respondent has considered the request for the applicant to be excluded from the proposed conditions or for different conditions to be imposed, but has decided for reasons of public safety, coherence of application and administration of policy and for proportionality, to impose the Policy. The Tribunal reaches the same conclusion.
The applicant seems to be of the view that if his interests are not accommodated it means automatically that there has been a failure to properly exercise discretion on the part of the decision-maker.
The Tribunal accepts that the Policy does not have the character, force, or effect of legislation. The Policy cannot and should not be applied as if it is a statute or a regulation. The Policy is intended to guide and assist the respondent in the exercise of discretion, not to remove discretion.
In this matter the respondent has to the satisfaction of the Tribunal considered the individual circumstances of the applicant; the respondent has calculated what it may cost the applicant to comply with the Policy; the respondent has considered the risks posed by the property from where the applicant operates; and in balancing all the information the decision was made to impose the conditions on the Licence of the applicant. The Tribunal reaches the same conclusion. The Tribunal has been impressed by the way in which Inspector Walker had in-depth knowledge of the business of the applicant, the location and the estimated costs for the applicant to bring the premises to compliance with the conditions. Inspector Walker went so far as to undertake research to ascertain what the most reasonable cost would be to bring the premises of the applicant to compliance. This demonstrates the great lengths the respondent has gone to in order to consider the situation of the applicant. Inspector Walker has also explained to the satisfaction of the Tribunal why the current arrangements at the premises of the applicant are not adequate, how relatively easy it is to gain access to the backyard and the risk posed due to the area not being covered by CCTV or a monitored alarm system. The respondent has formed the opinion and the Tribunal agrees with it, that it is in the public interest for the storage facilities of handgun repairers to be suitably monitored in order to deter or delay any burglary attempt and to give the police a reasonable response time.
The Tribunal has considered the requirements imposed by the conditions, the rationale for the conditions, the impact on the Licence and business of the applicant and the current safety arrangements at the premises of the business of the applicant and has concluded that the conditions are reasonable and that the general nature thereof are preferable to the individual tailor-made proposal preferred by the applicant.
Is there rationale for the conditions to be imposed on the Licence of the applicant?
The Tribunal is satisfied that the Policy in general and the conditions imposed on the Licence of the applicant are reasonable, fair, in the interests of the public safety and supported by logic and proper administration of the Act.
The Tribunal reaches this conclusion for the following reasons.
The Final Report of the Law Commission acknowledges that the respondent may set conditions pursuant to s 21 of the Act for the manner in which storage of firearms is to take place and that different storage requirements may apply to different licence types (Final Report page 123).
Although the Final Report observes that there was at the time of the Final Report no evidence to suggest that current storage requirements for handguns were inappropriate, the Final Report did not specifically refer to the risk posed by burglaries at storage facilities of repairers and the Final Report acknowledges that different storage requirements may be prescribed for different license types (Recommendation 118.2, Final Report page 124). The respondent is not bound or constrained by the Final Report since it is one of the factors to be taken into account when developing a policy. The conditions imposed by way of the Policy is consistent with the general obligations of the respondent and supported by the need for preventative measures in light of the risks posed by burglaries at storage facilities.
The decision of the respondent is supported by what the respondent sees as an increased risk for public safety due to recent break-ins, most notably at a commercial property of Barry and Sons where more than a 100 handguns were stolen; the high value attracted by handguns on the black market; the security risk that backyard repairers face if their facilities are perceived by criminal elements as of lesser quality than larger repairers; the possibility that backyard operators may be seen as a soft target; the low recovery rate of stolen handguns; and the concern that if different standards were to be applied to handgun repairers based on the number of handguns stored, it may lead to increased application for exception and thus a greater incidence of smaller, backyard repairers.
The proposition by the applicant that his name and address are not known to the public and that he operates only on the basis of word of mouth, is rejected. As was demonstrated by the respondent the name, business address and licence number of the applicant appears in publically available documents under the WA Firearms Traders Association. It appeared during the hearing that the applicant had not even been aware that the details of his business were so easily accessible. This highlights the risks that concern the respondent, namely that a repairer of handguns may be of the belief that the location of his business is not known to the public, when in fact it is easily and readily ascertainable.
The photographs tendered by the applicant in regard to the premises from which he operates highlights to the Tribunal the potential vulnerability of the business to burglaries. The premises is situated in a residential suburb; the gate giving access to the backyard of the premises is all but secure in light of the nature of the licence the subject of the dispute; and the door giving access to the workshop is not connected to any monitored alarm or CCTV cover. The interests of the public demand that a place where handguns are stored by repairers should be subject to security conditions such as those contained in the Policy.
Are the conditions imposed reasonable and proportionate?
The Tribunal is satisfied that the conditions imposed by the Policy on the Licence of the applicant are reasonable and proportionate.
The Tribunal accepts the evidence of Inspector Walker that the respondent had taken into account the cost of imposing new conditions; the time for the police to respond to burglaries; the risk to the public when handguns are stolen; the value of handguns on the black market; the criminal focus that may be directed at handgun repairers who are subject to less stringent conditions; and the managing and law enforcing efficiency that is achieved by a single set of integrated conditions rather than a casebycase application of specific conditions.
There is disagreement between the applicant and Inspector Walker in regard to the cost to bring the facility of the applicant to compliance, but it is estimated to be in the range of $4,000-$6,000, excluding the cost of ongoing monitoring. The Tribunal is satisfied that this cost, if the applicant wishes to conduct a business as handgun repairer, is not unreasonable in light of the additional security it brings to the public.
The Tribunal concurs with Inspector Walker that a system that is entirely secure against any form of burglary, is probably only an ideal and would be prohibitively expensive. The aim of the Policy to have a security system installed that would give the police reasonable time to respond whenever an alarm is raised is logical, reasonable and proportionate. Inspector Walker explained that the burglary of a place where handguns are stored has been upgraded to a Priority two response which requires an enhanced responding time and special measures similar to other lifethreatening emergencies. The proposition by the applicant that the interests of the public and police officers may be jeopardised by police vehicles rushing to a scene of a burglary lacks merit and is devoid of logic.
The Tribunal accepts that handguns command a substantial price on the black market. In fact, a single stolen handgun may be traded for a higher price than the cost for the applicant to bring his business into compliance with the Policy. This clearly highlights the relatively slight inconvenience to the applicant and the substantial benefit to the public. The Tribunal accepts that the respondent has an obligation to act preventatively in the public interest and therefore the relatively low number of burglaries into the premises of handgun repairers cannot be used as a rationale not to improve security standards.
The Tribunal accepts the evidence of Inspector Walker that a licensing system that is entirely adjusted to an individual casebycase arrangement would give rise to administrative and enforcement inefficiencies. It is essential for a coherent system of regulating handgun repairers that some minimum level of consistency is achieved in security and operating standards. The public interest demands no less. The Policy seeks to establish such a minimum standard. The interests of the applicant have been considered by the respondent and by the Tribunal, but the benefit of the standards imposed by the Policy outweighs the interests of the applicant. The benefits of a multi-layer total integrated system for the management and control of handgun repairer licences, outweighs the reasonable and modest burden that the applicant may experience.
The Tribunal also notes that other options remain open to the applicant, for example to arrange for handguns to be collected each day or to share storage facilities with other repairers.
Should the conditions be applied to the Licence of the applicant?
The Tribunal finds that the conditions should be imposed on the Licence of the applicant since there are no cogent reasons to divert from the Policy and the conditions imposed on the Licence of the applicant. The decision of the respondent should therefore be affirmed and the application for review should be dismissed.
Orders
1.The application for review of the decision made on 22 June 2018 to impose new conditions on license number 09995420 of the applicant, is dismissed.
2.The decision to impose the new conditions is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B DeVilliers, MEMBER
14 JANUARY 2019
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