McDonnell v Commissioner of Police
[2020] WASC 418
•20 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MCDONNELL -v- COMMISSIONER OF POLICE [2020] WASC 418
CORAM: HILL J
HEARD: 23 JANUARY 2020
DELIVERED : 20 NOVEMBER 2020
FILE NO/S: GDA 9 of 2019
BETWEEN: MICHAEL MCDONNELL
Appellant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Appeal from State Administrative Tribunal - Review of decision to revoke firearm licence - Preliminary issue of law - Statutory construction - Firearms Act 1973 (WA) s 20(1a) - Power of Commissioner to issue show cause notice - Power of Commissioner to revoke firearm licence
Legislation:
Firearms Act 1973 (WA), s 11, s 11A, s 20(1), s 20(1a)
Interpretation Act 1984 (WA), s 18, s 19(1), s 19(2)
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | R K Williamson |
| Respondent | : | J D Berson |
Solicitors:
| Appellant | : | Ross Williamson |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306
Hills and Commissioner of Police [2019] WASAT 53
Knight v Commissioner of Police [2011] WASC 93
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Polizzi v Commissioner of Police [2015] WASC 319
Re Jones; Ex parte Commissioner of Police [1999] WASCA 246
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428
HILL J:
On 4 October 2018, the Commissioner of Police, through his delegate, revoked the appellant's firearm licence pursuant to s 20 of the Firearms Act 1973 (WA) (Firearms Act). The appellant's licence was revoked on the basis that the appellant had failed to respond to a written request to make a show cause submission under s 20(1a)(b) of the Firearms Act.
The appellant applied to the State Administrative Tribunal (Tribunal) for a review of that decision under s 22(2) of the Firearms Act. The parties agreed that a preliminary issue (Preliminary Issue) should be determined by the Tribunal being:
Does s 20(1a)(b) of the Firearms Act 1973 (WA) permit the Commissioner to request the holder of a licence to make a submission to show cause why the power of revocation should not be exercised for reasons other than whether the licence holder remains a fit and proper person?
On 12 July 2019, the Tribunal delivered its reasons for decision holding that this question should be answered in the affirmative.[1]
[1] Hills and Commissioner of Police [2019] WASAT 53 (Primary Reasons).
The appellant seeks leave to appeal against that decision.
For the reasons that follow, I consider no error of law has been identified in the decision of the Tribunal and accordingly, the application for leave to appeal should be refused and the appeal dismissed.
Grounds of Appeal
On 8 August 2019, the appellant lodged a notice of appeal against the decision of the Tribunal.
An appeal against the decision of the Tribunal may only be brought on a question of law.[2]
[2] State Administrative Tribunal Act 2004 (WA), s 105(1).
There is one ground of appeal namely that the tribunal erred in law in holding that, under s 20(1a) of the Firearms Act, the Commissioner of Police could revoke the appellant's firearms licence on grounds that he had failed to comply (within time) with the Commissioner's written request to make a submission to show cause why that power should not be exercised on grounds other than whether the appellant was a fit and proper person to hold a firearms licence.
The appellant requires leave to appeal.[3] Leave to appeal should be granted if, in all of the circumstances, it is in the interests of justice that there be a grant of leave.[4] There are no exhaustive guidelines governing the grant of leave. Generally, the applicant must show there is sufficient doubt to justify the grant of leave and that substantial injustice would occur if the error went uncorrected.[5]
[3] State Administrative Tribunal Act 2004 (WA), s 105(1).
[4] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] - [18] quoting Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 [16] (Phillips JA).
[5] Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].
Factual background
The appellant is the holder of a firearm licence, being licence number 01846360.[6]
[6] Agreed Bundle of Documents, p 5 - 8.
On 9 June 2017, the Commissioner of Police, by his delegate, approved the appellant's application for a firearm's licence for an Armalite 50BMG calibre single shot rifle (Armalite Rifle) for 'approved club activities only'. The approval was issued subject to conditions contained in a letter dated 9 June 2017. These conditions included:[7]
(a)the appellant must remain an active and financial member of the Widgi Bandi Shooting Association (Club);
(b)the appellant is required to attend regular matches as required by the Club.
[7] Agreed Bundle, p 9 - 10.
The Club's approved range is located 87 km south‑east from Carnarvon on Ella Valla station.
On 8 May 2018, Sergeant John Board from Licensing Services Firearms wrote to the appellant.[8] The letter noted that a condition of the approval of the licence was that the appellant remain an active and financial member of the Club and requested that he provide the dates he had attended the Ella Valla range and used the Armalite Rifle at a Club event. The letter requested that the appellant provide him with a response within 28 days, namely by 19 June 2018.
[8] Agreed Bundle, p 20 - 21.
On 18 June 2018, the appellant responded to the letter and, inter alia, advised that he had attended 'no less than six matches' at Ella Valla station.[9]
[9] Agreed Bundle, p 22 - 23.
On 4 September 2018, the Commissioner of Police, by his delegate, wrote to the appellant stating that the appellant had not provided the information requested on 8 May 2018 and requested that the appellant show cause why his firearm licence should not be revoked.[10] The letter required that the submission be in writing and:
(a)explain why he did not advise of the dates he had used the Armalite Rifle since the firearms licence was granted;
(b)specify the dates he had used the Armalite Rifle since the licence was granted;
(c)provide evidence of the use of the firearm on the dates specified by providing a letter from the Club stating the dates the appellant had used the Armalite Rifle and how those dates had been recorded.
[10] Agreed Bundle, p 24 - 25.
On 26 September 2018, the appellant requested a further 28 days to respond to the letter of 4 September 2018.[11]
[11] Agreed Bundle, p 26.
On 4 October 2018, the Commissioner of Police, by his delegate, refused the request for an extension of time and gave notice in writing to the appellant that he had decided to revoke his firearm licence in relation to the Armalite Rifle.[12]
[12] Agreed Bundle, p 27 - 28.
Proceedings before the Tribunal
On 5 November 2018, the appellant filed an application with the State Administrative Tribunal for a review of the decision of the Commissioner.
On 1 April 2019, the Tribunal ordered that the appellant's application be heard together with another application (CC 2437 of 2018) and that, pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA), the Preliminary Issue be determined.[13]
[13] Order of Senior Member Maurice Spillane dated 1 April 2019.
Each of the parties filed submissions and a reply prior to the hearing of the Preliminary Issue on 14 June 2019. The Tribunal delivered its reasons for decision on the Preliminary Issue on 12 July 2019.
Tribunal's reasons for decision
After summarising the parties' submissions and the relevant legal principles of statutory construction, the Tribunal considered the object of the Firearms Act. The Tribunal referred to the decision of the Full Court of the Supreme Court of Western Australia in Re Jones; Ex parte Commissioner of Police which considered the objects of the Firearms Act, holding that:[14]
It is clear from the long title and the provisions of the [Firearms] Act that its objects include the control and regulation in the public interest, including safety, of firearms and ammunition and the limitation, by a restrictive licensing scheme of those who may possess, use, deal in or manufacture firearms and ammunition. The system of control and regulation is administered by the Commissioner of Police and includes power to prohibit the possession, use or dealing in types of firearms.
[14] Re Jones; Ex parte Commissioner of Police [1999] WASCA 246 [19].
The Tribunal concluded that the purpose or object of the Firearms Act was to provide a system of control and regulation of firearms, administered by the Commissioner, in the public interest.[15]
[15] Primary Reasons [20].
The Tribunal noted that the task on the Preliminary Issue was to construe s 20(1a) so that it is consistent with the language and purpose of all of the provisions of the statute. The Tribunal stated that the Commissioner's power of revocation under s 20(1) of the Firearms Act is very broad and extends beyond fitness and propriety and genuine reason.[16] The Tribunal considered that the power of revocation in subparagraph (b) of s 20(1a) of the Firearms Act appeared 'in its statutory context, to relate to all of the instances in which the power of revocation may be exercised by the Commissioner under s 20(1)'.[17]
[16] Primary Reasons [26].
[17] Primary Reasons [27].
The Tribunal noted that the applicant's proposed construction required subparagraph (b) of s 20(1a) to be read conjunctively with subparagraph (a).[18] The Tribunal rejected this submission and found that subparagraphs (a) and (b) of s 20(1a) should be read disjunctively.[19] In doing so, the Tribunal had regard to the text of s 20(1a), and in particular the use of the word 'or' at the end of subparagraph (a) of s 20(1a), as well as the broad powers of revocation in s 20(1) of the Act.[20]
[18] Primary Reasons [28].
[19] Primary Reasons [29].
[20] Primary Reasons [34].
The Tribunal referred to the second reading speeches in respect of the amendments to the Firearms Act in 1996 and considered that these supported a disjunctive reading of the subparagraphs of s 20(1a).[21] The Tribunal concluded that the second reading speeches demonstrated that the Commissioner had power to revoke a firearms licence on the basis of a failure to respond to two types of requests in writing: first, the supply of information; and second, to make a submission to show cause. The Tribunal considered that this construction was supported by the remaining text of s 20(1a) after the subparagraphs, which refers to the information supplied or submission made as two distinct matters.
[21] Primary Reasons [33].
The Tribunal concluded that:[22]
Having regard to the object of the Firearms Act and the text of subparagraph (b) of s 20(1a) in its statutory context, which includes the use of the disjunctive 'or' at the end of subparagraph (a) and the broad nature of the Commissioner's powers of revocation in s 20(1), the Tribunal finds that the power of the Commissioner to revoke a licence under subparagraph (b) of s 20(1a) of the Firearms Act is not limited to fitness and propriety. The Tribunal finds that the Commissioner's power of revocation under subparagraph (b) of s 20(1a) extends to all matters listed in s 20(1) where a licence holder fails to make a submission (within 28 days or such further period as the Commissioner may approve) to show cause why the power of revocation should not be exercised.
[22] Primary Reasons [37].
Statutory Background
The long title of the Firearms Act provides that it is an Act to make provision for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with, or manufacturing firearms and ammunition, the repeal of the Firearms and Guns Act 1931 (WA), and for incidental and other purposes.
Under the Firearms Act, a person is required to apply for a licence or permit to acquire or possess a firearm. Without a licence issued under the Act, the possession of a firearm is prohibited in Western Australia. An approval cannot be granted by the Commissioner if the Commissioner is of the opinion that:[23]
(a)to do so would be contrary to section 11A or regulations under section 11B or 11C; or
(b)it is not desirable in the interests of public safety; or
(c)the person is not a fit and proper person to hold the approval, permit, or licence.
[23] Firearms Act 1996 (WA), s 11(1).
The Firearms Act specifically provides that an approval or permit cannot be granted unless the applicant has a genuine reason for acquiring or possessing the particular firearm.[24]
[24] Firearms Act 1996 (WA), s 11A(1), s 11A(3).
What constitutes a genuine reason is defined in s 11A(2) of the Firearms Act as:
A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if -
(a)it is for use by the person as a member of an approved shooting club and the person is an active and financial member of the club; or
(b)it is for use by the person as a member of an organisation approved under this paragraph; or
(c)it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting; or
(d)it is required by the person in the course of the person's occupation; or
(da)in the case of a prescribed paintball gun, it is required by the person to conduct or engage in paintball in accordance with this Act; or
(e)it is to form part of a genuine firearm collection or genuine ammunition collection; or
(f)it is for another approved purpose.
Section 20 of the Firearms Act sets out the circumstances in which the Commissioner of Police can revoke, cancel, refuse to renew or vary a firearms licence. Relevantly:[25]
[25] Firearms Act 1996 (WA), s 20.
(1)Where the Commissioner is satisfied -
(a)that a person who is the holder of a licence, permit or approval under this Act -
(i)obtained it by fraud or deception; or
(ii)has breached or failed to observe a restriction, limitation or condition to which it is subject; or
(iii)could not, because of section 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it; or
(aa)that harm may be suffered by any person as a result of a person retaining or regaining possession of a firearm or ammunition; or
(ab)that a licence or permit was issued, or an approval was given, incorrectly because of an administrative or procedural error; or
(ac)that to do so is in the public interest; or
(ad)that a person holding or applying for the renewal of a licence, permit or approval has -
(i)failed to comply with a regulation providing for the manner in which a photograph of that person's face is to be supplied for inclusion on an Extract of Licence; or
(ii)failed to give the Commissioner, when requested in writing by a member of the Police Force to do so, a statement in the prescribed form as to what the person has done to ensure that any firearms or ammunition in the person's possession are stored in accordance with this Act; or
(iii)contrary to section 23(9)(e), refused to permit a member of the Police Force to inspect storage facilities;
or
(b)that a particular firearm is unsafe or unfit for use; or
(c)that a particular place or premises, range or gallery does not comply with the requirements of this Act; or
(d)that the circumstances in which his approval under this Act was given in relation to any person or matter no longer prevail,
he may refuse to renew or may revoke any licence, permit or approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon.
(1a)Where the Commissioner, in writing, requests a person who is the holder of any licence, permit, or approval to -
(a)supply information, or further information, that the Commissioner considers to be necessary in order to determine whether or not the holder remains a fit and proper person; or
(b)make a submission to show cause why the power of revocation should not be exercised,
if that information is not supplied, or that submission is not made, to the Commissioner in a form acceptable to the Commissioner within 28 days, or such further period as the Commissioner may approve, the licence, permit or approval may be revoked.
Parties' submissions
Appellant's submissions
The appellant contended that the Tribunal erred in construing s 20(1a) of the Firearms Act as enabling the Commissioner to require a licence holder to show cause as to why their licence should not be revoked on any of the grounds listed in s 20(1) of the Firearms Act. Counsel for the appellant submitted that the two subparagraphs of s 20(1a) formed part of the one sentence and that, as a consequence, the first subparagraph informs the meaning of the second subparagraph.[26] On this basis, the appellant contended that the request to make a submission was limited to a submission on fitness and propriety.
[26] ts 2.
Counsel for the appellant submitted that the effect of the Tribunal's construction of s 20(1a) was to render large parts of the subsection otiose, in particular paragraph (a).[27] The appellant emphasised that each word in s 20(1a) needed to be given meaning, including the words 'information' and 'submission'. Counsel submitted the Tribunal's construction of the subsection denied the different meaning of these words.[28] In this regard, it was contended that in order to make a submission, it was necessary for the licence holder to refer to information or facts. Specifically, in this case, counsel submitted that the Commissioner had no power to require a licence holder to provide information except in relation to whether they were a fit and proper person, and that on its proper construction, the submissions were, necessarily, limited to this same factual matrix.[29]
[27] Appellant's submissions [1]; ts 3.
[28] Appellant's submissions [4].
[29] ts 5 - 6.
The appellant submitted that, on its proper construction, s 20(1) of the Firearms Act was qualified by s 20(1a). That is, s 20(1) of the Firearms Act set out the matters that the Commissioner was required to be positively satisfied of before revoking a licence. This gave the Commissioner power to revoke a licence on merits based grounds. Counsel for the appellant contended that s 20(1a) of the Firearms Act permits the Commissioner to revoke a licence where there were no merits based reasons to do so.[30] In his submission, this was limited to circumstances where the holder of the licence was not a fit and proper person or had failed to make a submission to the Commissioner as to whether they were a fit and proper person.[31]
[30] Appellant's submissions [7].
[31] Appellant's submissions [8].
Counsel for the appellant submitted that if s 20(1a)(b) was intended to have the construction found by the Tribunal, the subsection 'would require the Commissioner to identify the issue' to which the show cause notice was directed.[32]
Respondent's submissions
[32] ts 10.
The respondent contended that the appellant's construction of s 20(1a) of the Firearms Act could only be achieved by construing paragraphs (a) and (b) conjunctively or 'artificially limiting paragraph (b)' to whether a licence-holder was a fit and proper person.[33] Counsel for the respondent emphasised that this was not what the text said; while s 20(1a)(a) was limited to whether the licence holder was a fit and proper person, there were no such words of limitation in paragraph (b).[34]
[33] Respondent's submissions [21].
[34] Respondent's submissions [22].
While counsel for the respondent accepted that s 20(1a) was one sentence, counsel emphasised that it contained two independent clauses.[35] That is, s 20(1a) of the Firearms Act provided the respondent with two options:[36]
(a)to request that a licence holder supply information which the Commissioner considers necessary to determine whether the licence holder remains a fit and proper person;
(b)alternatively, to make a submission to show cause why the power of revocation should not be exercised.
[35] ts 19 - 20.
[36] Respondent's submissions [24].
Disposition of Appeal
The principles of statutory construction are well known and can be summarised as follows.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[37] The starting point is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose.[38]
[37] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306 [46] (Buss P, Murphy JA & Beech J agreeing).
[38] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4].
The proper approach to statutory construction was summarised by Buss JA in Caratti v Mammoth Investments Pty Ltd as follows:[39]
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. (citations omitted)
[39] Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84 [390] - [392].
Extrinsic materials can be considered to confirm the ordinary meaning conveyed by the text of the provision, or to determine the meaning of a provision where the provision is ambiguous or obscure, or where the ordinary meaning gives rise to a result that is manifestly absurd or unreasonable.[40] The extrinsic materials to which regard may be had include second reading speeches in the Legislative Council and Legislative Assembly.[41]
[40] Interpretation Act 1984 (WA), s 19(1).
[41] Interpretation Act 1984 (WA), s 19(2).
A construction that promotes the purpose or object of the law is to be preferred to a construction that does not promote that purpose or object.[42] As was recently noted by Gageler J in Work Health Authority v Outback Ballooning Pty Ltd:[43]
[O]ne of the surest indexes of a mature and developed jurisprudence' is 'to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning'. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly 'to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. That a finding of purpose can involve a 'contestable judgment' only heightens that responsibility.
'The words "intention", "contemplation", "purpose", and "design" are used routinely by courts in relation to the meaning of legislation' and 'are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked'. Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of a constructional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making a constructional choice, is to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to 'the constitutional relationship between courts and the legislature'. (footnotes omitted)
[42] Interpretation Act 1984 (WA), s 18.
[43] Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428 [76] ‑ [77].
As was noted by Smith J in Commissioner of Police v Thayli Pty Ltd:[44]
[T]he purpose of the Firearms Act is to make provision for, inter alia, 'control and regulation'. 'Control' means 'to exercise restraint or direction over' and 'to hold in check'. Regulation in the context that it appears in the long title must necessarily mean to 'regulate'. To 'regulate' in this context is to impose constraints on the authority to use firearms and ammunition by the enactment of the provisions that follow the long title and any regulations made under the Firearms Act.
In McGee v Chitty, Mazza J relevantly observed that the purpose of the Firearms Act as a whole is to protect the public from the harm that firearms may cause, while recognising that the ownership and use of firearms is to be highly controlled by those in the community who have a legitimate reason for owning or using a firearm. (citations omitted)
[44] Commissioner of Police v Thayli Pty Ltd [2020] WASC 43 [40] - [41].
Section 20(1) lists the grounds on which the Commissioner may refuse to renew or may revoke a firearms licence. This section confers on the Commissioner an administrative power to revoke a licence, which is a broadly expressed discretion. As was noted by EM Heenan J in Knight v Commissioner of Police, s 20 gives the Commissioner extensive powers to refuse to renew or to revoke any licence.[45]
[45] Knight v Commissioner of Police [2011] WASC 93 [18].
The grounds under s 20(1)(a) include where the Commissioner is satisfied that a person who is the holder of a licence could not, because of a failure to meet the requirements in s 11 of the Firearms Act, be granted a licence. The requirements in s 11 include that the applicant is not a fit and proper person as well as that the applicant does not have a genuine reason to hold a firearms licence. That is, it is open for the Commissioner to determine that a person is not a fit and proper person to hold a firearms licence under s 20(1)(a)(iii), without the Commissioner seeking information from the applicant prior to making the decision.[46]
[46] See Polizzi v Commissioner of Police [2015] WASC 319 [8]; Knight v Commissioner of Police [19].
The power to refuse to renew or to revoke a licence only arises if the Commissioner is satisfied that one of the matters under s 20(1) applies. That is, unless there is a basis upon which the Commissioner can be satisfied of one of the subparagraphs of s 20(1), the Commissioner does not have power to refuse to renew or revoke a licence.
It is in that context that s 20(1a) has to be construed. Section 20(1a) confers on the Commissioner an administrative power to revoke a licence where a licence holder has not supplied certain information, or made a submission, within 28 days of the date of the request, unless the Commissioner grants an extension of time. The section gives the Commissioner the power to issue a written request to:
(a)supply information that the Commissioner considers necessary in order to determine whether or not the holder remains a fit and proper person; or
(b)make a submission to show cause why the power of revocation should not be exercised.
The words 'information' and 'submission' have different natural and ordinary meanings. It is reasonable to infer that the legislature intended that these words have different meanings, given that they appear in the same section. In the context of this section, the word 'information' means 'knowledge communicated concerning some particular fact, subject or event[47] and the word 'submission' means 'the action or an act of submitting something to another for decision or consideration'.[48]
[47] Oxford English Dictionary (2nd ed, 1989) 'information' (def 2a).
[48] Oxford English Dictionary (2nd ed, 1989) 'submission' (def 2a).
The express words of s 20(1a)(a) limits the scope of the information gathering power of the Commissioner to the receipt of information as to whether the licence holder remains a fit and proper person. There are no express words of limitation in paragraph (b) as to the submissions that can be requested. The inclusion of the word 'or' between the subparagraphs, on its face, supports a construction that these paragraphs are to be read disjunctively rather than conjunctively.
I do not accept the appellant's submission that this construction 'renders much of the section otiose'. This submission fails to give regard to the difference between 'information' and 'submission'.
On its face, the legislative purpose of s 20(1a) is to enable the Commissioner to obtain further information or submissions from a licence holder prior to exercising the power of revocation under s 20(1). This may be required, for example, where the Commissioner is not satisfied they have a sufficient basis at that time to be 'satisfied' of one of the matters under s 20(1). It also may occur where the Commissioner has insufficient information as to whether the licence holder remains a fit and proper person or considers it appropriate to afford the licence holder natural justice prior to exercising the broad powers of revocation.
There is nothing in the text, context or purpose of s 20(1a) which limits the power of the Commissioner to request submissions on a 'show cause notice' to the issue of whether a licence holder remains a fit and proper person.
In submissions, both parties referred to the second reading speeches for the Firearms Amendment Bill 1996 (WA) which, inter alia, inserted s 20(1a) into the Firearms Act.[49] In the Legislative Assembly, the Minister for Police stated that:
[S]ection 20(1)(a) (sic) [will] enable the commissioner, in writing, to request a person within 28 days to produce the relevant information on which to satisfactorily determine whether the person is 'fit and proper' to hold an approval, licence or permit, or make a submission showing cause why the power of revocation should not be exercised. Failure to produce the information or make a submission within the period, or such further period as the commissioner may approve, may result in the approval, licence or permit being revoked.
[49] Appellant's submissions [17]; Respondent's submission [37].
In the Legislative Council, the then Attorney General stated that:
[S]ection 20(1)(a) (sic) [will] enable the commissioner, in writing, to request a person within 28 days to either produce relevant information on which to satisfactorily determine whether the person continues to be a fit and proper person to hold an approval, licence or permit, or make a submission showing cause why the power of revocation should not be exercised. Failure to produce the information or make a submission within the period, or such further period as the commissioner may approve, may result in the approval, licence or permit being revoked. (emphasis added)
Counsel for the appellant contended that the second reading speeches were either neutral or assisted his construction of s 20(1a).[50] I do not accept that submission. In the second reading speeches, a distinction is drawn between the production of relevant information - which is limited to enabling the Commission to satisfactorily determine whether the licence holder is a 'fit and proper' person to hold a licence - and the making of a submission, which is not so limited. Nothing in the second reading speeches supports a contention that the ordinary meaning of the words in s 20(1a) of the Firearms Act is that the making of submissions is limited to whether the licence holder was a fit and proper person.
[50] Appellant's submissions [17].
Conclusion
For these reasons, it is my view that the appellant has not demonstrated any error of law in the reasons of the Tribunal. I do not consider that the ground of appeal has any reasonable prospect of success. Accordingly, leave to appeal should be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill20 NOVEMBER 2020
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