THAYLI PTY LTD and COMMISSIONER OF POLICE
[2019] WASAT 34
•4 JUNE 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION: THAYLI PTY LTD and COMMISSIONER OF POLICE [2019] WASAT 34
MEMBER: DR B DE VILLIERS, MEMBER
HEARD: 9 MAY 2019
DELIVERED : 4 JUNE 2019
FILE NO/S: CC 1935 of 2018
BETWEEN: THAYLI PTY LTD
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms - Regulation and placing of conditions on a shooting range - Discretion of Commissioner of Police to impose conditions - Can the Commissioner of Police elect whether a range is regulated by regulation or by condition - Persons exempted from being licensed may use a firearm at an approved range - Construct and maintain - Public interest - Principles of statutory interpretation
Legislation:
Firearms Act 1973 (WA), s 8, s 8(1)(m), s 11, s 11(1)(b), s 11(1)(c), s 11A, s 20, s 21, s 21(2), s 21(2)(b), s 31(1), s 34(1)(h), s 34(2)(h)
Firearms Regulations 1974 (WA), reg 15, reg 21
State Administrative Tribunal Act (2004) WA, s 27, s 28(1), s 29(1), s 29(3)
Result:
Application for review of decision of Commissioner of Police successful
Conditions referred back to Commissioner of Police for reconsideration
Summary of Tribunal's decision:
The issue in this dispute is whether the Commissioner of Police (Commissioner) can impose conditions on an approval of the range on Ella Valla Pastoral Station although no regulations for the range in particular or for ranges in general have been prescribed. The conditions imposed involve a wide range of matters from the physical construction of the range; firearms that may be used at the range; indemnity insurance; oversight of the range; to making available to the Commissioner records of all persons who use the range.
The Commissioner says that it can impose the conditions pursuant to the powers granted to it pursuant to s 11, s 20, and s 21 of the Firearms Act 1973 (WA) (Firearms Act). The Commissioner says that it may elect whether a particular matter is regulated by way of regulation or by way of condition. In this matter it opted to impose conditions.
The applicant says that the powers of the Commissioner to impose conditions are restricted by the working of the Firearms Act. It says that unless the Commissioner is granted a power to impose conditions onto ranges or unless regulations have been enacted pursuant to s 34 of the Firearms Act, the Commissioner does not have the power to impose the conditions the subject of this proceeding.
The Tribunal found that the Commissioner does have the power to impose conditions in regard to the construct and maintenance of the range at Ella Valla Pastoral Station for as long as the range is intended to be used by persons who are exempted of a firearms licence, but that the general nature of the conditions sought to be imposed in this matter exceed the scope of powers of the Commissioner.
The Tribunal therefore set aside the decision and referred the conditions back to the Commissioner for reconsideration consistent with its powers.
Category: B
Representation:
Counsel:
| Applicant | : | Mr R Williamson & Ms K Louden |
| Respondent | : | E O'Keeffe and Mr E Fearis |
Solicitors:
| Applicant | : | 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
Australian Communist Party v Commonwealth (1951) 83 CLR 1
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Kakulas and City of Stirling [2013] WASAT 168
Marsh and Commissioner of Police [2018] WASAT 139
Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208
O'Sullivan v Farrer (1989) 168 CLR 210
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd BC 200707203
REASONS FOR DECISION OF THE TRIBUNAL:
Background
The Commissioner of Police (respondent) issued conditions by letter dated 18 December 2018 for a range on Ella Valla Pastoral Station (Ella Valla).[1] The conditions were issued in the name of the Director of the leaseholder of Ella Valla. The Director is Mr Shane Aylmore and the leaseholder is Thayli Pty Ltd (applicant). The conditions seek to regulate a wide range of matters in regard to the range, including: the standards according to which the range is to be operated; the type of firearms that may be used on the range; the construction of the range; maintenance of the range; public liability insurance; and recording and making available of information of persons who use the range to the respondent.
[1] The Firearms Act uses the term 'range' (see for example s 8(1)(m); s 20(1)(c) and s 34(2)(h)) when referring to what would colloquially be referred to as a 'shooting range' where firearms are discharged for purposes such as sighting, practicing or target shooting.
The respondent says the conditions arise from the authorisation in the Firearms Act 1973 (WA) (the Act) for the respondent to give approvals and impose conditions on ranges. The respondent says that although the Governor, on recommendation of the respondent, may enact regulations for ranges, the respondent is not obligated to cause regulations to be enacted. The respondent says it can also impose conditions of the nature and scope of those in this proceeding without having to rely on regulations.
The applicant says the conditions were imposed without statutory power and should therefore be referred back to the respondent to reconsider. The respondent says that the Act specifically authorises the making of regulations in regard to ranges and therefore the respondent cannot elect whether it wishes to issue conditions by way of regulations or by way of an ordinary letter. Any condition must derive from a regulation.
The merit of the respective conditions was also placed in dispute, but the Tribunal decided, as part of its case management, to first hear the preliminary question namely, whether the conditions imposed on the range at Ella Valla were consistent with the powers of the respondent.
Jurisdiction of the Tribunal
The hearing before the Tribunal is de novo which means the Tribunal is not confined to the materials that were before the respondent at the time when the decision was made. The Tribunal must produce the correct and preferable decision (s 27 State Administrative Tribunal Act 2004 (WA) (SAT Act)) in accordance with the functions and discretions corresponding to those exercisable by the respondent; s 29(1) SAT Act. The Tribunal may affirm the decision; vary the decision; set aside the decision and in doing so substitute it with its own decision; or send it back to the respondent to reconsider in accordance with any directions that may be appropriate; s 29(3) SAT Act.
In exercising its review function, the Tribunal must be satisfied as decisionmaker that the nature and extent of the conditions are consistent with its powers and that the conditions are correct and preferable in light of the facts of the matter.
The applicant not only takes issue with the merit of the conditions but also raises a preliminary issue in which it contends that the conditions exceed the statutory powers of the respondent.
Preliminary issue
The preliminary issue for the Tribunal to determine is whether the respondent is empowered under s 20 of the Act to impose the conditions the subject of this proceeding on an approval for the range on Ella Valla although no regulations are prescribed pursuant to s 34(2)(h) of the Act.
What about the merit review aspect?
The matter before the Tribunal comprises two elements: the first being the preliminary issue whether the respondent is empowered under s 20 of the Act to impose the conditions the subject of this proceeding, and the second, the merit of each of those conditions.
The Tribunal decided to first deal with the preliminary question; the reason being, that the parties would not, in the assessment of the Tribunal, be able to turn their mind effectively to the detail of the conditions until and unless the preliminary question is resolved. The Tribunal notes that the conditions have been the subject of mediation within the Tribunal and the Tribunal had also referred the conditions back to the respondent to reconsider, but with little practical progress being made due to the uncertainty about the powers of the respondent to impose the conditions.
The conditions the subject of this proceeding differ from the conditions that were the subject of the matter of Marsh and Commissioner of Police [2018] WASAT 139 (Marsh) in which a policy in regard to conditions imposed on the licences of all repairers of handguns had been developed by the Commissioner of Police after extensive public consultation and upheld by the Tribunal. The Commissioner of Police in Marsh personally endorsed the policy. The conditions the subject of this proceeding are not regarded by the respondent as a 'policy' similar to what had been the subject of Marsh.
It is the Tribunal's view that once certainty is obtained about the power of the respondent to issue conditions on ranges, the appropriateness of conditions for Ella Valla can be reconsidered by the respondent.
The range on Ella Valla
The range the subject of this proceeding is located on Ella Valla. Ella Valla is situated about 87 kilometres south east of Carnarvon. Ella Valla is around 188,000 acres in size. The applicant says the range is cleared to 2,700 metres and is inspected and approved by the Sporting Shooters' Association of Australia to 3,500 metres.
Mr Aylmore operates a tourism business on Ella Valla which includes an opportunity for members of the public to utilise the range for a fee. Visitors may use their own firearms on the range or they may use a firearm of the applicant (corporate licence No 9990974) pursuant to an exemption; s 8(1)(m) of the Act. The exemption authorises persons who are not licenced to use a firearm of a licenced person or entity at a range which had been approved by the respondent. The range at Ella Valla had been in existence for a substantial time without any formal approval or conditions.
The applicant, via Mr Aylmore, applied for the range to be approved in 2015. Mr Aylmore sought approval for a firearm to be added to the corporate firearm licence of the applicant. The respondent informed Mr Aylmore by letter of 6 February 2015 that unless the range where he wishes to use the firearm is approved by the respondent, Mr Aylmore would not have a genuine reason or need to justify the firearm being included in the corporate licence. The applicant therefore sought and received approval for the range on Ella Valla on 29 September 2015 and as a result, the firearm was added to the corporate licence of the applicant. It is important to note that the reason why the range had to be approved was for Mr Aylmore to satisfy the requirement of a genuine reason for a firearm to be added to the corporate licence. The firearm was added to the corporate licence and certain conditions were imposed on the range.
The respondent imposed additional conditions on the range on 27 August 2018. The applicant sought a review of those conditions. Those conditions had since been further amended by the respondent with the final set of conditions dated 18 December 2018. The applicant now seeks a review of the conditions.
Operating a range
Operating a range on a station or a farm in Western Australia is not the subject of regulations. During the hearing, the Tribunal sought clarity from the respondent about: what a range is; when a range needs to be approved; general operating requirements of a range; and matters related thereto. It soon became clear that the statutory framework does not offer clear and specific answers. This is, on the one hand, understandable, because of the many forms a range can take. On the other hand, it is potentially confusing to the public since it is not clear whether or not ranges are subject to any conditions.
The Act or regulations do not define range. In its widest description a range can imply any area or space where a firearm is discharged, for example, for target shooting or sighting. In the context of stations and farms, this may vary from a highly sophisticated range where high calibre firearms are discharged to a very rudimentary space where small calibre firearms or handguns are discharged. The Act or regulations do not offer much assistance about: what a range is; who should apply for approval; when approval ought to be sought; how approval is sought; who may use the range; what calibre firearms may be used; what conditions can be imposed; and for what period of time approval is given.
The background against which the respondent issued the conditions for the range on Ella Valla can be summarised as follows:
a)When the respondent became responsible in the 1990s to regulate ranges (previously it was the responsibility of the Commonwealth's Department of Defence), there was no legislation, regulations or any other formalised process in place.
b)The Act provides in s 34(2)(h) that the Governor may make regulations for the 'construction and conduct of shooting galleries and ranges'. No regulations for ranges have been enacted, but regulations have been enacted for shooting galleries.
c)The Act or regulations do not define what constitutes or qualifies as a 'range'.
d)Neither the Act nor regulations contain any detail in regard to oversight of ranges, for example, an approval process for ranges, application forms, payment of a fee, or operating conditions or requirements of a range.
e)There is no general statutory obligation on an owner or lessee of land to seek approval to establish or operate a range.
f)A person is exempted from a firearm licence who, with the permission of the owner of a firearm, uses the firearm on an 'approved range'; s 8(1)(m) Act. The range must be 'properly constructed and maintained'.
g)It is accepted by the respondent that although it imposes conditions from time to time on ranges, there has been no uniformity or consistency in the conditions.
h)The absence of a regulatory regime to register and operate ranges has long been recognised by the respondent. For example, the Auditor General of Western Australia has, in several reports, been critical of the absence of a proper regulatory and enforcement regime for ranges (see reports of September 2000; 5 May 2004; 21 October 2009 and 27 June 2013).
i)In a review of the Act undertaken by the respondent in 2008, Recommendation 27 was for the Firearms Regulations 1974 (WA) (Firearms Regulations) to be amended 'to include range specifications'. (Review of the Firearms Act 1973 (WA) page 29).
j)In a review of the Act conducted by the Law Reform Commission in October 2016, Recommendation 107 provided as follows: 'new Regulations should be introduced in the [Firearms Regulations] that set out the minimum standards for construction, safety and permissible firearms for ranges'. (Review of the Firearms Act 1973 (WA) Final Report, page 177). This recommendation has not been implemented.
k)The respondent commenced in 2017 with public consultation about standards for approval of firearms ranges (Firearms Ranges; standards for approval version 7/2017). The purpose of the document is described as: 'The aim of this document is to provide range owners with guidelines for designing, constructing, maintaining and inspecting ranges and paintball locations'. This discussion paper has not been completed, finalised, or published.
l)The respondent has not published a 'statement of policy' in regard to ranges in the Government Gazette as provision is made in s 28(1) of SAT Act and there has been no other 'policy' in regard to ranges in general or to Ella Valla in particular comparable to that in Marsh.
m)Since 2018, the respondent has been reviewing and auditing several aspects of the firearms licencing regime. As part of the process the respondent has inspected some ranges, including Ella Valla, and has imposed conditions on ranges.
n)The respondent is making ongoing efforts to formalise and standardise the approval processes for ranges. The respondent accepts that the control and regulation of ranges has been inconsistent and the respondent stated in this proceeding that it 'intends to adopt a more standardised and uniform approach going forward, while allowing for flexible application of conditions to different ranges'. (Respondent's Statement 15 February 2019, para 71).
Contentions of the parties
The contentions of the parties can be summarised as follows:
Contentions of the respondent
The respondent contends that the decision to impose conditions on the range on Ella Valla must be seen against the background of the control and regulation of firearms and matters connected therewith. The Act foreshadows that the respondent may regulate and impose conditions on ranges. The respondent can elect whether a regulation is enacted by the Governor or whether a condition is imposed by letter of the delegated officer. The respondent has a general power to approve ranges as is evidenced in s 8(1)(m) of the Act which requires that a range be approved by the respondent in order for an unlicensed person to use a firearm of a licensed person on the range. An approved range must be properly constructed and maintained. The approval of the respondent may be communicated by way of the Government Gazette or in writing.
In addition to the general power of the respondent to approve the construction and maintenance of a range, the respondent may also refuse approval of a range if it is not in the interest of public safety or if the person seeking approval for the range is not a fit and proper person to hold the approval; s 11(1)(b) and (c) Act.
The respondent says it can elect to enact regulations or to impose conditions on any 'approval'. Section 20(1) of the Act empowers the respondent to impose conditions on any approval in regard to a range if doing so is in the public interest or there had been a change in circumstances since approval had previously been given. In the case of Ella Valla the respondent therefore acted within its powers when it varied the conditions under which Ella Valla operates.
The respondent accepts that its proposition namely, that the powers of the respondent to impose conditions is not limited by the absence of regulations, has not been put to the Tribunal or courts previously. In addition to the plain reading of the Act, the respondent further says that extrinsic material may be considered to ascertain the scope of the power conferred on the respondent by s 11, s 20 and s 21 of the Act. The conclusion drawn by the respondent is that s 11; s 20; and s 21 of the Act intend to give wide discretion and flexibility to the respondent to impose conditions on ranges that are necessary and appropriate in specific circumstances and that the conditions imposed on Ella Valla are proper and consistent with the powers of the respondent.
The respondent concludes that the respondent acted within its powers when it imposed the conditions on Ella Valla.
Contentions of the applicant
The applicant says that the respondent does not have the power to impose the conditions the subject of this proceeding; that the respondent in effect abused its powers; and that the conditions should be referred back to the respondent to reconsider in light of its actual regulating powers.
The applicant says there is no need to consider extrinsic material to properly construct the relevant provisions of the Act since the ordinary rules of statutory construction should be followed according to which the plain text of the statute is considered and given effect. There is no ambiguity in this case. The respondent simply does not have the power outside of its (unutilised) regulating authority to impose conditions on Ella Valla.
The applicant says that the respondent errs in its reasoning that it can elect between enacting regulations or imposing conditions in regard to Ella Valla. The Act clearly stipulates that the respondent may enact regulations in regard to ranges (s 34(1)(h)) and there is no residual or concurrent power outside the ambit of regulations for the respondent to impose conditions on ranges in general or on Ella Valla specifically.
The applicant says that the avenue chosen by the respondent is ad hoc, lacks transparency and is possibly motivated by an effort to circumvent the relative complexity and transparency of regulations. The applicant says that the purpose of regulations is to ensure parliamentary oversight, to facilitate public participation and to ensure equal treatment and transparency of all concerned. These conditions have not been the subject of public consultation; parliament has not been informed and had not endorsed it; and the conditions unfairly apply only to Ella Valla.
The applicant says neither s 20 not s 21 of the Act confers a power to impose conditions parallel to those that could possibly arise from regulations. These sections cannot be construed as a source for conditions to be imposed on Ella Valla.
The applicant says that the purpose of s 8(1)(m) of the Act is not for the respondent to impose wide-ranging conditions in ranges, but rather to exempt an unlicensed person from having to be licensed when shooting at an approved range with a firearm of a licensed person. The administrative approval of the construct and maintenance of the range at Ella Valla for purposes of exemption does not expand the powers of the respondent to impose these general conditions on the respondent.
The applicant concludes that the respondent's power to regulate the conduct of a range can only derive from a regulation made under the relevant section of the Act.
Statutory framework
The following excerpts of the Act refer specifically to ranges and to approvals relied on by the respondent:
8.Exemptions from licensing requirements
(1) No licence under this Act is required
…
(m)by a person who, with the permission of the owner of the firearm on an approved range that is properly constructed and maintained, has in his possession, handles or uses a firearm or ammunition for a firearm that is the property of, or is the property of a member of, an approved club or other approved organisation and is held by that owner under a licence or permit granted under this Act[.]
11.Exercise of Commissioner’s discretion
(1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that
(a)to do so would be contrary to section 11A or regulations under section 11B or 11C; 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.
…
20.Revocation, cancellation, refusal to renew and variation
(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
…
(c)that a particular place or premises, range or gallery does not comply with the requirements of this Act; or
…
he may refuse to renew or may revoke any licence, permit or approval relating thereto or may impose reasonable restrictions, limitations or conditions thereon.
…
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.
(2)A person, whether or not the holder of that licence, permit or approval, who commits a breach of, or fails to observe, a restriction, limitation or condition to which a licence, permit or approval issued or granted under this Act was made subject, and who is a person who ought reasonably to have known of the existence of that restriction, limitation or condition, commits an offence[.]
34.Regulations
(1)The Governor may make regulations in regard to any matter or for any purpose for which regulations are prescribed or contemplated by this Act, and may make all such other regulations as may in his opinion be necessary or expedient for giving effect to the provisions of this Act, and for the due administration thereof.
(2)Without limiting the general power conferred by subsection (1), the Governor may make regulations for or with respect to all or any of the following matters
(a)the application for and the issue, grant, renewal, cancellation or revocation of licences, permits and approvals under this Act; and
(b)the restrictions, limitations and conditions that may be imposed on any licence, permit or approval; and
[(c)deleted]
(d)the form of registers and records to be kept or furnished under this Act and the particulars to be entered therein; and
(e)the forms to be used for the purposes of this Act, and the manner of, and the time for, their completion, including a requirement that information supplied be verified by statutory declaration; and
…
(h)the construction and conduct of shooting galleries and ranges; and
…
(j)any other purpose that the Governor deems necessary for safeguarding the public and the public interest in relation to firearms and ammunition.
(3)Regulations made under this Act may
(a)be of general or limited application, according to time, place or circumstance;
(b)prescribe fees to be paid in relation to the issue, grant, variation or renewal of licences, permits and approvals, the fees that are payable in relation to other matters under this Act, the persons liable, and the method of recovery of amounts not duly paid either by the disposal of the firearms or ammunition to which they relate or otherwise;
(c)impose upon any person or class of person a discretionary authority;
(d)provide penalties, not exceeding $2 000, for the contravention of any regulation.
Consideration
The Tribunal shall consider the respective submissions and in doing so also provide background to the dispute. The essence of the dispute concerns the proper construction of the Act. The background is not intended to assist in the interpretation of the Act but rather to provide brief context of the dispute:
Definition of 'range'
The Act refers to the term 'range', but the term is not defined in the Act or regulations. Range in its most general description could refer to any space which is used to discharge a firearm or handgun. This could vary from a highly sophisticated rifle range where competitions are held to a rudimentary space where small calibre firearms or handguns are sighted or discharged. It would not be surprising if all stations and many farms in Western Australia have an area that falls within the widest definition of 'range'.
It is accepted by the respondent that there is no statutory requirement for each range to be approved by the respondent or for each range to be registered. This raises several questions about when the powers of the respondent are enlivened, for example, when is approval for a range required; how is such approval sought; for what period is an approval valid; what are the consequences if approval is not sought; what is the scope of conditions that can be imposed on an approval; who may use the range; what calibre of firearms may be used at the range; and what oversight is there to ensure the conditions imposed by the respondent are correct and preferable?
There is no clear answer in the Act to these questions and no regulations have been enacted to assist.
The Tribunal invited counsel for the respondent to give responses to these questions with reference to the relevant parts of the Act or regulations. Counsel had difficulty since neither the Act nor regulations give unequivocal guidance to the public in regard to the questions.
The Auditor General and the Law Commission have commented on the regulatory scheme of ranges and have made recommendations for improved regulation of ranges in general, and more specifically that regulations be enacted. The respondent commenced with public consultation with a discussion paper entitled 'Firearms Ranges; Standards for Approval' (version 7/2017) but no general policy in regard to ranges has been settled.
Absence of Regulations in regard to ranges
The Act bestows the power on the respondent to enact regulations to regulate the construction and conduct of shooting galleries and ranges; s 34(2)(h) of the Act. The respondent has enacted regulations in regard to 'shooting galleries'; reg 15 of the Firearm Regulations (Shooting Galleries Regulations). The Shooting Galleries Regulations deal with several aspects of galleries such as security and safety, control of a shooting gallery, letting of the shooting gallery and the calibre of firearm that may be used at a shooting gallery.
It is noted, but the reason is not relevant for purposes of this proceeding, that the respondent has exercised its regulating power in regard to shooting galleries, but not in regard to ranges.
Regulations as subsidiary legislation are subject to parliamentary oversight, whereas the conditions that were imposed Ella Valla by letter by the licencing officer were not tabled in Parliament and were not endorsed as a policy by the relevant Minister or the Commissioner. The respondent says it can elect whether it wishes to regulate ranges by way of regulation or condition. The applicant challenges such a proposition and says that if the respondent regulate ranges, it must be by way of regulation and that any condition imposed must derive from the Regulations.
This is not a question that can be answered in theory. The proper construction of the Act determines the powers of the respondent to impose the conditions on Ella Valla.
Absence of a 'policy' in regard to ranges
It is accepted by the Tribunal that regulating authorities such as the respondent may enact a 'policy' to assist the way in which a discretion under the Act is exercised. Policies are inherently more flexible than regulations, but policies on the other hand are less transparent than regulations. Courts have drawn a distinction between statutory rules as is found in delegated legislation such as regulations, and nonstatutory rules as is found in policies. Whereas delegated legislation is often used to address any issues that may arise from primary legislation, policy is generally used to explain why discretion ought to be exercised in a particular manner. In Marsh at [27] the Tribunal observed as follows in regard to the relevance of a policy in the exercise of discretion:
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.
A policy must of course be consistent with the statute pursuant to which the policy is adopted. 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 v The Commonwealth (1904) 1 CLR 208 at 230; Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 258).
In the matter under consideration the respondent does not categorise the conditions imposed on Ella Valla as a 'policy'. The respondent says the conditions offer flexibility since the particular circumstances of Ella Valla can be better addressed by condition rather than by regulation. The applicant on the other hand feels the weight of state power is unfairly directed at it.
The approach adopted by the respondent in regards to Ella Valla contrasts to Marsh in which the respondent had undertaken public consultation in regard to a policy for the conditions to be applied to all repairers of handguns; the policy had been published for public dissemination; and the policy had been signed by the Commissioner in person. In Marsh the respondent argued strenuously against a proposition by the applicant that policy or conditions ought to be individualised to cater for the unique circumstances of individual repairers (Marsh at [42]). In Marsh the respondent rejected individualised application of conditions and stressed the benefits of conditions with general application, for example transparency; consistency; recording and enforceability. In that case the Tribunal found that:
a)the conditions imposed pursuant to the policy was consistent with the Act and regulations; and
(b)the policy could assist the decisionmaker in the exercise of discretion.
Purpose of regulations
The enactment of regulations as subsidiary or delegated legislation is inevitably part of contemporary legislative enactment and governance. Regulations bring to a ministry: a degree of flexibility to legislation; an ability to fill in detail; and the power to expand on the skeleton of a statute; but it also harbours the risk of a 'departmental despot' who seeks to limit parliamentary oversight, to issue final decisions, to modify a statute and to limit recourse to a court of law. (G Hewart, The New Despotism, Ernest Benn Ltd, London, 1929, page 14). Since legislation passes the formal approvals process of parliament, regulations must also be tabled in Parliament to be scrutinised and potentially be disallowed. In this way, accountability and transparency are ensured and the checks and balances between legislative and executive authorities are respected.
There is no precise line to be drawn between measures to be contained in a statute and measures to be the subject of regulation. Parliamentary committees who scrutinise draft legislation would, in general, be responsible to cast their minds over the question whether a particular matter ought to be better prescribed in legislation than to be left for regulations. If parliament authorises a minister to issue regulations, Parliament is to be informed about the regulations, the content, the scope; and the public consultation that had been undertaken. In this way Parliament ultimately remains in control of the regulatory process under statute.
The important difference between delegated legislation and other policy measures is that delegated legislation has the force of law, whereas policies or other conditions imposed pursuant to an Act or regulations may influence the manner in which discretion is exercised but without it being binding on the decision-maker.
In the matter under consideration, the Act specifically empowers the respondent to enact regulations in respect to the 'construction and conduct' of ranges; s 34(2)(h) of the Act. The same power applies to shooting galleries. This power to regulate is in keeping with contemporary statutes where the leave of detail to regulate a particular activity is delegated to the responsible ministry, on condition that the subsidiary legislation is tabled in parliament. Regulations may, as a general principle, regulate a matter in general or may regulate a specific situation.
In this matter the respondent has not enacted regulations for ranges in general or for the range on Ella Valla in particular. The respondent has been encouraged by the Auditor General and the Law Reform Commission to address what appears to be a lacuna in the firearm regulatory scheme. It is agreed that: the conditions imposed on Ella Valla have not been tabled in Parliament; the conditions are not made pursuant to regulations; the conditions have not been open to public comment and scrutiny; and the conditions imposed on Ella Valla do not have general application to all ranges.
Current regulation of ranges
The respondent explained to the Tribunal that there is currently no general regulatory standard be it in the form of regulation, policy or general conditions for the registration, construction, conduct, oversight and management of ranges.
There is no statutory or policy requirement or approval process for: a range to be established; for a fee to be paid; for conditions to be met; for a register of users to be kept; for public liability insurance to be taken out; for specificity about who may utilise a range or the calibre that may be used; or for any other matter that relate to the use or operation of a range.
The only exception to what appears to be a regulatory hiatus is found in s 8(1)(m) of the Act which determines that a category of persons is exempted from being licenced if a person uses a licensed firearm with the permission of the owner of the firearm on an approved range that is properly constructed and maintained.
The Auditor General and the Law Reform Commission have encouraged the respondent to improve regulation of ranges. The respondent also developed the Discussion Paper 2017 as a result of those recommendations. The respondent is however of the opinion that there is adequate statutory authorisation in the Act for it to impose conditions on Ella Valla without the need of regulations. Counsel for the respondent said that the respondent can elect whether it imposed conditions or whether it recommends to the Governor to enact regulations. In this regard, see for example, that the respondent has enacted regulations for shooting galleries (reg 15 of the Shooting Galleries Regulations) but has elected not to enact regulations for ranges.
The respondent says that the conditions that have been imposed on Ella Valla are an example of conditions that have been imposed by the respondent on some other ranges in Western Australia. The respondent concedes that the conditions it has imposed on ranges across the state are not uniform; not consistent; and have not been the subject of public consultation or of a policy statement.
In the case of Ella Valla the imposition of conditions arose from an application by the applicant for a certain calibre firearm to be included in its corporate firearm licence. The business model of the applicant is for persons who are not licensed for a particular calibre firearm, to be exempt from licensing requirements and to use the particular calibre firearm for which the applicant is licensed, at the range at Ella Valla. The applicant was informed by the respondent that in order to meet the requirements for a genuine reason for the high calibre firearm (s 11A of the Act) it had to demonstrate that the range where the firearm were to be discharged met the requirements of the respondent. It must therefore be noted that the approval of the range at Ella Valla was not sought pursuant to s 8(1)(m) of the Act, but rather by the application for a high calibre firearm to be added to the corporate firearm licence of the applicant.
Whereas s 8(1)(m) of the Act refers to the construction and maintenance of an approved range, the conditions imposed by the respondent cover a wider field, including: public liability insurance; maintenance of a signin register; attendance by a safety officer; and making available copies of the sign-in register to the respondent. A breach in any of the conditions may result in the approval being revoked or varied or may give rise to criminal prosecution (see amended conditions dated 18 December 2018).
In summary, the respondent says it can elect whether to enact regulations in regard to ranges or to impose conditions. Although regulations have been enacted for shooting galleries, the respondent prefers to regulate ranges such as Ella Valla by way of specific conditions.
Construction of relevant sections of the Act
The Tribunal now deals with the specific provisions of the Act that may have bearing on the conditions imposed on Ella Valla:
Preamble:
The Preamble to the Act contains a general statement about the objects of the Act, but there is no specific mention of ranges. The Preamble is, in isolation, of little assistance to resolve this dispute other than to understand that the purpose of the Act is for the control of firearms and related matters. The exact powers and functions of the respondent must be ascertained by the text of the relevant parts of the Act.
Exemption from licence pursuant to s 8(1)(m) of the Act
This subsection does not seek to regulate ranges in general. The subsection specifically identifies a category of persons who are exempted from the requirements of being licensed to use or possess a firearm on an approved range. Several subcategories of persons are exempted by s 8 of the Act, including those who 'with the permission of the owner of the firearm on an approved range that is properly constructed and maintained', is in possession or uses a firearm; s 8(1)(m) of the Act. This subsection does not refer to the fit and properness of the owner of the land on which the range is situated. The subsection refers to the owner of the firearm that the exempted person is intending to use on a range that had been approved.
The primary effect of this subsection is to identify categories of persons that are exempted from being licensed. The subsection does not constitute a basis to issue general conditions on a range. The approval power of the respondent pursuant to s 8(1)(m) of the Act is enlivened not by the owner or lessee of land seeking approval of a range, but rather by the owner of a firearm seeking exemption of a category of persons to handle its firearm at an approved range. From this flows that any conditions on a range remain binding only for as long as the exemption sought is applicable to the particular range.
The respondent may exempt a category of persons after having inspected and approved a range. This explains why there is no general prescribed process for an owner or lessee of land on which a range is located to obtain approval or licence or permission for the range pursuant to s 8(1)(m) of the Act. It is the holder of the firearm licence who seeks exemption of a category of persons, who must identify an applicable range for purposes of approval.
The approval of the range by the respondent and any conditions imposed in regard to the range are limited to the construction and maintenance of the range for purpose of the exemption sought.
The establishment and general operation of a range is not regulated by the Act other than pursuant to s 8(1)(m) of the Act. In s 8(1)(m) of the Act the relevant power only deals with the construction and maintenance of the range and that approval only applies if an application is sought for an exemption.
In regard to the range on Ella Valla, where the applicant, pursuant to an exemption granted under its corporate firearms licence, offers an opportunity for persons who are otherwise unlicensed to use firearms at the range, the authorisation of the respondent is to approve the range if the respondent is satisfied that the range is 'properly constructed and maintained'. These words do not import a general power for the respondent to impose conditions on the applicant of the nature, scope and scale as it is seeking to do in this proceeding.
The respondent erred in its reasoning that the respondent can elect whether it imposes conditions or enact regulations in regards to Ella Valla. If the respondent elects to impose conditions, the scope of conditions is limited. The conditionmaking power of the respondent is narrowed by the working of s 8(1)(m) of the Act. The words 'properly constructed and maintained' must be taken within their ordinary meaning as referring to the physical characteristics of the range and the ongoing maintenance of the range. The meaning of a statutory provision must be determined by its ordinary meaning and by reference to the language of the instrument as a whole; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 320.
Three curious aspect arise from s 8(1)(m) of the Act, namely:
a)The subsection does not refer to the fit and properness of the person on whose land the range is located;
b)It is the range that is approved only in regard to its construction and maintenance; and
c)The approval of the range is only current for as long an exemption pursuant to s 8(1)(m) of the Act is sought.
On proper construction the 'approval' under s 8(1)(m) is therefore limited to the range itself and more specifically to the construction and maintenance thereof.
Any condition in regards to the construction and maintenance of the range on Ella Valla has a practical effect on the applicant who is the lessee of Ella Valla and the corporate licensee of firearms that may be used by exempted persons. The applicant must therefore ensure that any condition in regard to construction and maintenance of the range is complied with in order for the range to be approved if and when the range is used by exempted persons.
Aspects of the conditions imposed by the respondent on Ella Valla in regard to construction and maintenance of the range may therefore meet the standard of s 8(1)(m), but other conditions exceed the scope of powers of the respondent. Examples of conditions that exceed the scope of 'constructed and maintained' are the keeping of a sign-in register, supervision of the range at all times when in use, indemnity insurance and making available material to the respondent.
The Tribunal, on the one hand, does not accept the contention of the applicant that no conditions may be imposed on Ella Valla unless it is done pursuant to regulations. The Tribunal also does not, on the other hand, accept the contentions of the respondent that the approval of the range pursuant to s 8(1)(m) opens the door for the respondent to consider the matters that fall within the discretion of the respondent pursuant to s 11, s 20 and s 21 of the Act.
In summary, the conditions imposed on Ella Valla exceed the scope of conditions that are allowable pursuant to s 8(1)(m) of the Act. Section 8(1)(m) allows for conditions to be imposed on the range on Ella Valla, provided those conditions are specifically directed to the construction of the range and its maintenance, and the conditions only apply if and while the range is sought to be used by exempted persons.
Exercise of discretion pursuant to s 11(1)(b) and (c) of the Act
Section 11(1)(b) and (c) of the Act relates to an 'approval or permit or licence' that is issued to a 'person'.
The respondent proposes that since s 8(1)(m) uses the word 'approved' it automatically means that the word 'approval' in s 11(1)(b) and (c) enlivens those discretions of the respondent to the regulation of ranges in general, and to Ella Valla in particular.
The Tribunal does not agree with the construction of the Act as proposed by the respondent. It may be the ideal from the perspective of the respondent to be clothed with the discretions contained in s 11(1)(b) and (c) and s 20 and s 21 in regard to ranges in general and Ella Valla in particular, but a proper construction of the subsection and the Act in its entirety does not support such an outcome.
Section 11(1)(b) and (c) relate to a person who has received an approval, a permit or a licence under the Act. In the case of Ella Valla it is the range that had been approved under two headings: firstly pursuant to s 8(1)(m) for purposes of an exemption and secondly, as genuine reason for a firearm to be added to the corporate licence of the applicant. Although from a practical view the applicant, as lessee of the land on which Ella Valla is located, must ensure compliance with conditions in regard to the range if, and for as long as, exempted persons seek to use it. It is the range and more particularly only its construct and maintenance on which conditions can be placed.
Section 11(1)(b) and (c) is therefore not available to the respondent as a source to issue general conditions on Ella Valla.
This construction is consistent with the Tribunal's reasoning above in regard to s 8(1)(m) of the Act. If the respondent wishes to place conditions in regard to matters that falls outside the scope of s 8(1)(m) of the Act, it must do so in accordance with regulations.
A lacuna in the regulatory scheme of ranges may exist as a result of this interpretation of the Tribunal, but the vacuum cannot be filled by conditions of the licensing officer that exceed a statutory power.
The Tribunal therefore finds that s 11(1)(b) and (c) is not available to the respondent to impose the conditions the subject of this application on the applicant.
Revocation, cancellation, refusal to renew and variation pursuant to s 20 of the Act
The respondent contends that s 20 of the Act offers, in similar vein as s 11(1)(b) and (c), a general source to the respondent to impose conditions on Ella Valla. The Tribunal does not accept the proposition for the same reasoning as above.
Section 20 of the Act must be construed not in isolation of its own wording, but consistent with the totality of the Act. If read in isolation, an 'approval' may be seen, as the respondent suggests, as any approval and a wide condition-power. If, however, s 20 is read with the rest of the text of the Act it becomes clear that whatever approval is given is constrained by other provisions of the Act or regulations.
On proper construction of s 20 of the Act, the respondent may approve and impose conditions on the range on Ella Valla, but those conditions are limited in scope by s 8(1)(m) which relate to the construction and maintenance of the range for purposes of an exemption of firearm licence requirements. As said above, the conditions only apply if and for as long as the range is sought to be used by persons exempted.
The Tribunal does not accept the construction proposed by the respondent that pursuant to the public interest (s 20(1)(ac)), a general source of conditionmaking power is available for the respondent. The Tribunal accepts that the respondent may impose conditions that are directly applicable to the construction and maintenance of the range on Ella Valla for use by an exempted category of persons, but the respondent has exceeded the scope of its powers by also seeking to regulate on the basis of 'public interest', a wide range of other matters that bear no resemblance to the construction and maintenance of the range.
'Public interest' is not defined in the Act. The consideration of 'public interest' is to be read within the context of the matter that is sought to be regulated and within the context of the specific Act and the powers bestowed under the Act; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd BC 200707203. Public interest cannot be used as a general source of power that exceeds the scope of power that is provided in the relevant Act. In essence 'public interest' is a value judgment of which the contours are determined by subject matter and the scope and purpose of the relevant statute; O'Sullivan v Farrer (1989) 168 CLR 210 at 216.
In the matter of Ella Valla the respondent erroneously seeks to rely on 'public interest' to justify the conditions. As has been explained, the Tribunal accepts that on proper construction the scope of conditions that may be imposed pursuant to the public interest are limited to the construction and maintenance of the range pursuant to s 8(1)(m) of the Act.
The reference in s 20(1)(c) of the Act to a range 'that does not comply with the requirements of this Act' must be construed against whatever requirements are contained in the Act; in the regulations; or conditions pursuant to the Act. It has already been noted that the Act does not contain any requirements in regard to a range other than those found in s 8(1)(m) of the Act in regard to construct and maintenance. No regulations have been enacted in which requirements for ranges are set out. The reasonable restrictions that may be imposed by the respondent pursuant to s 20(1)(c) of the Act are therefore limited to the construct and maintenance of a range to be used by a person who is exempt pursuant to s 8(1)(m) of the Act.
In summary, the Tribunal rejects the proposition of the respondent that s 20 is a general source from which the conditions on Ella Valla may originate. The only conditions that may be imposed by the respondent pursuant to s 20 are those that are consistent with s 8(1)(m), namely in relation to the construction and maintenance of the range for as long as access to the range is sought by exempted persons.
Restrictions, limitation and conditions pursuant to s 21 of the Act
An approval under the Act may be made subject to conditions which shall 'entered in the Register'; s 21(1)(b) of the Act. Failure to comply with the condition is an offence; s 21(2) of the Act.
The Act does not define what is meant by 'register' or who has access to the register. Section 31(1) of the Act also refers to a 'register' and it seems logical that this is the same register as the register referred to in s 21 of the Act. 'Register' is described by reg 21 of the Firearms Regulations as follows:
(1)For the purposes of section 31(1) of the Act, the Commissioner must compile and maintain a register, in such form as the Commissioner decides, of the following information in respect of each application for a licence, permit or approval under the Act
(a)the date of the application;
(b)the applicant’s name, address and date of birth;
(c)the licence, permit or approval applied for;
(d)as to any firearm the subject of the application —
(i)its type, calibre, action type and loading method;
(ii)the name of its manufacturer and its serial number or numbers;
(iii)the number, length and configuration of its barrels;
(iv)the type of ammunition it fires;
(v)the size of any magazine it has;
(vi)its category;
(e)whether the application was refused or approved;
(f)if the application is refused
(i)the date it was refused;
(ii)the reasons for the refusal;
(g)if the application is approved
(i)the number, the date of issue, and the date of expiry, of the licence, permit or approval concerned;
(ii)any restriction, limitation or condition to which the licence, permit or approval concerned is subject;
(h)any unique identifying number given to the firearm by the Commissioner.
(2)Subregulation (1) does not limit the information the Commissioner may keep in the register.
Regulation 21 does not refer to an application for a range, but it can be inferred that the 'approval' which is referred to may refer to the approval sought for a range pursuant to s 8(1)(m) of the Act.
It is not known to the Tribunal whether the conditions imposed on Ella Valla had been entered onto the Register. It is not relevant to the preliminary issue, but the Tribunal would expect that conditions that arise pursuant to the construction and maintenance of the range ought to be included in the Register.
Regulations in s 34 of the Act
The Act provides in s 34(2)(h) that the Governor may make regulations for the 'construction and conduct of shooting galleries and ranges'.
No regulations have been enacted for ranges in general or for the range on Ella Valla specifically. In the absence of regulations, any condition imposed by the respondent on Ella Valla is limited by the Act and specifically by s 8(1)(m) of the Act.
Extrinsic materials
The Tribunal is satisfied that the text of the Act and the Firearms Regulations are adequately clear that the words used can be interpreted within their ordinary meaning. There is no need, as is proposed by the respondent, to refer to other material such as parliamentary records. In its overview the Tribunal sketched the background against which the dispute is being heard. The information is derived from the submissions made by the parties. Nothing raised in the background information informed the way in which the Tribunal constructed the relevant parts of the Act.
The general principles for statutory construction is to begin with a consideration of the text itself. Historic, parliamentary and other extrinsic materials cannot be relied on to 'displace the clear meaning of the text'; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [46] – [47].
The clearest guide of the meaning of a word or phrase and how it relates to other parts of the statute is found in the will of the legislature as expressed in the text of a statute. The purpose of a statute resides in its text and structure. 'Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted'; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 at [25].
The Tribunal is satisfied that there is no need in this matter to refer to or rely on extrinsic material for the issue to be determined.
Findings
The Tribunal finds that the respondent is not empowered under s 20 of the Act to impose the conditions the subject of this proceeding on an approval for the range on Ella Valla although no regulations are prescribed pursuant to s 34(2)(h) of the Act. The respondent may impose conditions in regard to the construct and maintenance on the range pursuant s 8(1)(m) of the Act. The conditions only apply if and for as long as persons who are exempted pursuant to s 8(1)(m) of the Act use the range.
The application for review must therefore succeed. The conditions must be set aside and the matter be referred back to the respondent to reconsider in light of its statutory powers.
Orders will be made for submissions in regard to costs.
Orders
1.The application for review of the conditions dated 18 December 2018 on the range on Ella Valla Pastoral Station succeeds.
2.The decision of the Commissioner of Police is set aside and referred back to the Commissioner of Police to reconsider in light of its statutory powers.
3.The applicant may, by not later than 1 July 2019, file and serve a submission as to costs.
4.The respondent must by not later than 19 July 2019 file and serve its reply to any application for costs.
5.The hearing for costs is set down to commence at 10 am on 24 July 2019 for a duration of three hours.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B DEVILLIERS, MEMBER
1 JUNE 2019
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