Thayli Pty Ltd v Commissioner of Police
[2021] WASCA 46
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THAYLI PTY LTD -v- COMMISSIONER OF POLICE [2021] WASCA 46
CORAM: MURPHY JA
MITCHELL JA
BEECH JA
HEARD: 4 MARCH 2021
DELIVERED : 19 MARCH 2021
FILE NO/S: CACV 32 of 2020
BETWEEN: THAYLI PTY LTD
Appellant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
Citation: COMMISSIONER OF POLICE -v- THAYLI PTY LTD [2020] WASC 43
File Number : GDA 6 of 2019
Catchwords:
Administrative law - Statutory construction - Firearms - Whether the power of the Commissioner of Police to impose conditions on an approval of a shooting range extends to conditions regulating the safe conduct of the range
Appeals - Practice and procedure - Successful appeal from the State Administrative Tribunal to the General Division of the Supreme Court - Where matter sent back to the Tribunal for reconsideration - Whether primary judge erred in directing that the Tribunal was not to be constituted by the member who made the original decision
Legislation:
Firearms Act 1973 (WA), s 8(1)(m), s 20(1)(ac), s 21, s 23(3), s 34(2)(h)
State Administrative Tribunal Act 2004 (WA), s 105(10)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | J D MacLaurin SC and R K Williamson |
| Respondent | : | D E Leigh and S R Pack |
Solicitors:
| Appellant | : | Ross Williamson |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
House v The King (1936) 55 CLR 499
McGee v Chitty [2011] WASCA 125
Minister for Immigration v Nystrom [2006] HCA 50; (2006) 228 CLR 566
O'Sullivan v Farrer (1989) 168 CLR 210
Queensland Building and Construction Commission v Groupline Constructions Pty Ltd [2020] QCA 245
Re Cockram; Ex parte Williamson (unreported, WASC, FC, Library No 940673, 30 November 1994)
Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34
Turner v Keegan [2001] WASCA 9
Woolworths v Director of Liquor Licensing [2013] WASCA 227
JUDGMENT OF THE COURT:
Summary
The issue of statutory construction raised by this appeal is whether the Commissioner of Police's approval of a 'range' under s 8(1)(m) of the Firearms Act 1973 (WA) can be made subject to conditions regulating the safe conduct of shooting on the range. The appellant contends that no such conditions may be imposed by the Commissioner. For the reasons which follow, in our view, the approval of a range can be made subject to conditions of that kind.
The grounds of appeal also contend the primary judge erred, when remitting the matter to the State Administrative Tribunal under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), in directing that the Tribunal not be constituted by the original member. In our view, the primary judge did not err in the exercise of her discretion, conferred by s 105(10) of the SAT Act, to make that direction.
Therefore, we would dismiss the appeal to this court against the primary judge's orders allowing an appeal from the Tribunal.
Background
The shooting range the subject of this proceeding is located on Ella Valla pastoral station, which is leased by the appellant (Thayli). Ella Valla station is situated about 87 km south east of Carnarvon and is approximately 188,000 acres in size. Mr Shane Aylmore operates a tourism business on Ella Valla and is the sole director of Thayli. The business offers members of the public the opportunity to use the range for a fee. The public may use their own firearm (if licensed) on the range, or may use a firearm owned by Thayli (which holds a corporate firearms licence).
The lawful conduct of this business depends on the shooting range on Ella Valla being an 'approved range' for the purposes of s 8(1)(m) of the Firearms Act. On 29 September 2015, the Commissioner approved the range on Ella Valla for that purpose.
On 27 August 2018, a delegate of the Commissioner issued a notice to vary the conditions imposed upon the Ella Valla station range. The varied conditions regulate a number of matters and activities on the Ella Valla range, including:
(1)the operating procedures for the range (which include operational safety measures and bushfire management);
(2)the maintenance of a written sign-in register;
(3)the type of firearms that may be used on the range;
(4)the construction and maintenance of the range;
(5)requiring the range to be operated and supervised by a suitably trained range safety officer;
(6)requiring public liability insurance to be held; and
(7)the recording and making available to the Commissioner of information about persons who use the range.
Thayli applied to the Tribunal under s 22 of the Firearms Act for a review of the decision to impose the conditions. On 4 December 2018, the Tribunal invited the Commissioner to reconsider his decision pursuant to s 31(1) of the SAT Act. On 18 December 2018, a delegate of the Commissioner reconsidered the decision, but decided to impose substantially the same conditions. The reconsidered decision dated 18 December 2018 was the subject of a further review before the Tribunal.
The Tribunal decided to separately deal with a preliminary question of whether the Commissioner was empowered under s 20 of the Firearms Act to impose the conditions the subject of the Tribunal proceeding for the range on Ella Valla, although no regulations were prescribed pursuant to s 34(2)(h) of that Act.[1] The Tribunal determined that issue, concluding that the Commissioner could only impose conditions in regard to the construction and maintenance of the range, and such conditions could only apply if and for so long as persons who are exempted pursuant to s 8(1)(m) of the Firearms Act use the range.[2] The Tribunal concluded that the review application must therefore succeed and made orders setting aside the Commissioner's decision and referring the matter back to the Commissioner for reconsideration in light of his statutory powers. It also made programming orders for a hearing as to the question of costs. [3]
[1] Thayli Pty Ltd and Commissioner of Police [2019] WASAT 34 (Tribunal decision) [8].
[2] Tribunal decision [102].
[3] Tribunal decision [103] - [104].
The Commissioner then appealed against the Tribunal's decision to the General Division of the Supreme Court, pursuant to s 105 of the SAT Act. Ground 1 of the Commissioner's appeal to the General Division contended the Tribunal erred in law by denying him procedural fairness, by deciding matters additional to the preliminary question without notifying him that it intended to do so, and without giving him an opportunity to make submissions in respect of those additional matters. Ground 2 of the Commissioner's appeal to the General Division contended that the Tribunal erred in law by determining that the only conditions which could be imposed on the approval of a shooting range were conditions in relation to the construction and maintenance of the range for as long as access to the range is sought by exempted persons.
The primary judge found both of the Commissioner's grounds of appeal to the General Division to be established. The primary judge in effect found that the Commissioner, when satisfied that it was in the public interest to do so, may impose reasonable conditions on an approval of a shooting range, which are not confined to the construction and maintenance of the range. Her Honour also found that the Tribunal failed to accord procedural fairness, on the basis that:[4]
In light of the finding that the Commissioner had power to impose conditions on the Ella Valla range in regard to the construction and maintenance of the range, the Tribunal did not give either party an opportunity to be heard as to whether any of the conditions contained in the notice to vary the conditions on 18 December 2018 came within the scope of the power to impose conditions on an approval of a shooting range.
[4] Primary decision [146].
The primary judge considered whether the matter should be sent back to a differently constituted Tribunal. Her Honour considered that it would be inappropriate to send the matter back to the Tribunal as originally constituted for two reasons. First, the Tribunal breached the rules of procedural fairness in the manner described above. Secondly, the judge considered that the Tribunal may have offended 'the principle of apprehended bias' by making programming orders for a costs hearing which, under s 88 of the SAT Act, could only have been made if the Tribunal was of the view that the Commissioner had acted improperly in some way. Further, the judge observed:[5]
I do not see that there will be any difficulties in remitting the matter to a differently constituted Tribunal as the issues for determination are confined, and the Tribunal has not yet heard evidence as to the question of whether the varied conditions dated 18 December 2018 impose reasonable restrictions, limitations or conditions, within the meaning of s 20(1) of the Firearms Act.
[5] Primary decision [157].
Her Honour concluded that, in all the circumstances, it was in the interests of justice, including the interest that justice be manifestly seen to be done, that reconsideration by the Tribunal be by a differently constituted quorum.[6]
[6] Primary decision [158].
The primary judge made orders granting leave to appeal, allowing the appeal and ordering that:
The decision of the Tribunal be set aside and the matter sent back to the Tribunal, differently constituted, for determination according to law as to whether the varied conditions of approval of the Ella Valla range dated 18 December 2018 impose reasonable restrictions, limitations or conditions within the meaning of s 20(1) of the [Act]. (emphasis added)
Provisions of the Firearms Act
The central licensing prohibition in the Firearms Act is found in s 19(1), which most relevantly provides that a person who is in possession of any firearm or ammunition and is not the holder of a licence or permit under the Act entitling the person to do so commits a crime unless, relevantly, s 8 applies.
In addition, s 23(3) creates an offence where a person carries or uses a firearm unless the person 'holds a licence or permit under this Act entitling [the person] to do so or section 8 applies'.
Section 8(1) of the Firearms Act identifies exemptions from the licensing requirements of the Act. Most relevantly for present purposes, s 8(1)(m) provides that no licence under the Act is required:
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
There are a number of elements to this exemption. It provides that a person does not require a licence to possess, handle or use a firearm or ammunition for a firearm where all of the following requirements are satisfied:
(1)the person does so with the permission of the owner of the firearm;
(2)the firearm is the property of, or is the property of a member of, an approved club or other approved organisation;
(3)the firearm is held by the owner under a licence or permit granted under the Act;
(4)the handling or use of the firearm or ammunition for the firearm is on an 'approved range'; and
(5)the approved range is properly constructed and maintained.
The term 'approved' is defined in s 4 to mean approved by the Commissioner. Section 8(2) of the Firearms Act defines 'approved', when used in s 8, to mean 'approved by the Commissioner either generally by notice in the Gazette or specifically by notice in writing'.
An issue which troubled the primary judge was the source of the Commissioner's power to grant an approval of a shooting range. The primary judge concluded that there was no provision of the Firearms Act which expressly empowered the Commissioner to issue an approval.[7] Her Honour considered that the question was whether such a power could be implied in s 18(6) of the Act, which expressly provided for the Commissioner to issue a licence or permit (but not an approval) under the Act.[8] She considered the omission of the reference to an approval in s 18(6) was a drafting error, and the omission could be addressed by adding words to that section.[9]
[7] Primary decision [96].
[8] Primary decision [98].
[9] Primary decision [103] - [108].
We take a different view of this aspect of the Act. In our view, the Commissioner's power to approve a shooting range is inherent in and conferred by s 8(1)(m) of the Firearms Act.
The Firearms Act provides for three species of permission which may be granted under the Act: a licence, a permit and an approval. The types of licences and the entitlements they confer are specified in s 16(1) of the Act. Section 17 of the Act provides for the Commissioner to grant a person a permit to possess a firearm or ammunition temporarily for certain purposes.[10] Section 18(1) provides for a person to apply for a licence or permit, while s 18(6) provides for the Commissioner to issue to the applicant a licence or permit when certain conditions are satisfied.
[10] See also s 17A relating to interstate group permits.
The Act also refers to the Commissioner approving certain things, persons and activities, without separately providing for a power of the Commissioner to grant the approval or the prerequisites for the existence of that power. In our view that is not a drafting error, but rather is part of the scheme of the Act. The Act proceeds on the basis that the power to grant the approval is inherent in the provision referring to the approval.
This point emerges most clearly in the provisions for approved shooting clubs and organisations. In general terms, s 11A(1) of the Act requires the Commissioner to be satisfied that a person has a genuine reason for acquiring or possessing a firearm or ammunition before granting an approval or permit or issuing a licence. Section 11A(2) exhaustively provides for what may be a genuine reason. Relevantly, s 11A(2)(a) and (b) respectively refer to use by a person as a member of 'an approved shooting club' or 'an organisation approved under this paragraph'. Section 23BA(1) obliges an officer 'of an approved shooting club or approved organisation' to disclose certain information to the Commissioner. Section 23BA(5) defines an 'approved organisation' to be an organisation approved under s 11A(2)(b) and an 'approved shooting club' to be a shooting club approved under s 11A(2)(a) of the Act. This indicates that an approval is granted under the provision which refers to the approved activity, person or thing, and that the Commissioner's power to grant the approval is inherent in the reference to the approved activity, person or thing.
In that context, some of the provisions of the Act in relation to the grant of permissions are expressed to apply to licences, permits and approvals, while others are expressed to apply to one or two of those species of permission. That is not a drafting error, but is an aspect of the design of the statutory scheme.
One of the statutory powers which is conferred in relation to all three species of permission is that conferred on the Commissioner by s 20(1)(ac) of the Act. Relevantly, that section provides that, where the Commissioner is satisfied that to do so is in the public interest, he may impose reasonable conditions on a licence, permit or approval. The legal consequences of the imposition of a condition on an approval are provided for by s 21(2). That section relevantly provides that a person, whether or not the holder of an approval, who commits a breach of, or fails to observe, a condition to which an approval granted under the Act was made subject, and who is a person who ought reasonably to have known of the existence of that condition, commits an offence.
It follows from the above analysis that we do not accept Thayli's submission that the power to approve a shooting range is implied in s 21 read with s 20 of the Act.[11] Section 21 of the Act is expressed to operate where a licence, permit or approval is granted under the Act. It does not, either alone or when read with s 20 of the Act, expressly or implicitly confer the power to grant the approval.
[11] Appeal ts 5.
Further, in our view s 21 of the Act is an ancillary provision to s 20 of the Act. Section 20 relevantly provides for the Commissioner's power to impose reasonable conditions on an approval, and the prerequisites for the existence of that power. Section 21(1)(a) of the Act is a machinery provision which requires the conditions to be specified in the document evidencing the approval or a separate supplementary document. Section 21(1)(b) of the Act is a machinery provision which requires that the conditions be entered in the Register referred to in s 31(1) of the Act. As was noted above at [25], s 21(2) creates an offence where a person contravenes a condition in the specified circumstances. Section 21 provides for the manner in which a condition is to be recorded and the legal consequences which flow from the imposition of a condition. The scope of the provision counts strongly against Thayli's submission that s 21 confers the Commissioner's statutory power to approve a range for the purposes of s 8(1)(m) of the Act.
The regulation-making power in s 34 of the Firearms Act includes, in s 34(2)(h), the power to make regulations for or with respect to 'the construction and conduct of shooting galleries and ranges'. No regulations have been made in the exercise of this power.
Ground 1: scope of the power to impose conditions
By ground 1, Thayli in effect contends that the primary judge erred in finding that s 20(1) of the Act conferred power to impose conditions on an approval of a range that have the effect of regulating the conduct of the range and activities conducted upon it.
Thayli's submissions
As explained by senior counsel in oral submissions,[12] there are two independent limbs to Thayli's argument.
[12] Appeal ts 6 - 7, 19 - 21.
First, Thayli submits that the Commissioner's power to impose reasonable conditions only extends to conditions regulating what the Commissioner has approved.
Thayli says the Commissioner's range approval did not approve any conduct. Thayli contends that a 'range' is a 'place' under the Act. Thayli says the legal effect of a place being approved as a 'range' is that it allows the exemption in s 8(1)(m) of the Act to apply. While the Commissioner's approval of a 'range' is one of many elements of this exemption, the approval does not authorise conduct to take place on the range.
As the range approval did not approve any conduct, there was no conduct which could be the subject of a reasonable condition under s 20 of the Act. Therefore, the Commissioner cannot impose conditions regulating conduct on the range.
Secondly, Thayli refers to s 34 of the Act, which makes provision for the Governor to make regulations, relevantly including in respect of 'the construction and conduct of shooting galleries and ranges', as noted above at [28]. Thayli seeks to invoke the general principle of statutory construction that, where a statute confers both a general power, not subject to limitations and qualifications, and a specific power, subject to limitations and qualifications, the general power cannot be used to do that which is the subject of the specific power.[13] Thayli submits that Parliament has vested a specific power to make regulations in relation to the conduct of shooting ranges and, as such, cannot be taken to have objectively intended for the Commissioner to be vested with this power. Thayli contends that the construction adopted by the primary judge creates the prospect that conditions and regulations would impose contradictory requirements.
Disposition
[13] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, 678; Queensland Building and Construction Commission v Groupline Constructions Pty Ltd [2020] QCA 245 [59], [91] - [101].
We see no warrant for reading down the broad language of s 20 of the Act, which relevantly authorises the imposition of 'reasonable conditions' on an approval by the Commissioner when satisfied that it is in the public interest to do so.
Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made. Limiting the discretion by reference to the 'public interest' ordinarily does not provide such a positive indication. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be pronounced definitely extraneous to any objects the legislature could have had in view.[14] The terms in which the power to impose conditions on an approval is conferred suggest a broad power to impose reasonable conditions for the purposes of the Firearms Act.
[14] O'Sullivan v Farrer (1989) 168 CLR 210, 216. This passage has been applied many times in this court and other appellate courts; see, for example, Woolworths v Director of Liquor Licensing [2013] WASCA 227 [48]; A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [79].
The scope and purpose of the Firearms Act, as indicated by the long title, is to make provision for the control and regulation of firearms and ammunition, and the licensing of persons possessing, using, dealing with or manufacturing firearms and ammunition. The subject matter of the legislation is dangerous weapons which are commonly used for criminal as well as lawful purposes. It is long established that a general purpose of the Act is to protect the public by providing for the regulated use of firearms.[15]
[15] Re Cockram; Ex parte Williamson (unreported, WASC, FC, Library No 940673, 30 November 1994) 13 - 14. See also McGee v Chitty [2011] WASCA 125 [41]; Turner v Keegan [2001] WASCA 9 [17].
Given this purpose of the Act is directed to the protection of the public, it would be incongruous if conditions on an approval of a shooting range could not be directed to the safe operation of the range.
Senior counsel for Thayli accepted that it was a consequence of Thayli's construction that the Commissioner could not impose conditions for the safe operation of an approved shooting range other than those related to the physical characteristics of the place which is the subject of the approval.[16] The incongruity between that consequence of Thayli's construction and the purposes of the Act is a factor counting against the adoption of Thayli's construction. It may also be noted that Thayli's construction results in a number of anomalies. For example, counsel accepted that, on Thayli's construction of the Act, a condition could require the erection of a sign saying that certain dangerous conduct was prohibited on an approved range but the condition could not actually prohibit that conduct.[17]
[16] Appeal ts 17, 22 - 24.
[17] Appeal ts 26 ‑ 27.
Further, the connection between a condition regulating the operation of an approved shooting range and the activity which the approval allows to be lawfully conducted is such that the condition can be regarded as reasonably related to the activity authorised by the approval.
The legal effect of the grant of an approval of a range is to satisfy one of the requirements for the exemption in s 8(1)(m) of the Act to apply, and allows persons who are not licenced to possess or use firearms to lawfully do so on the approved range when the other requirements of the exemption are satisfied. However, the legal effect of the grant of an approval is not limited to authorising the activities of the users of a shooting range in defined circumstances. The operator of a shooting range, at which unlicensed persons use the operator's firearms in a manner which is not otherwise exempt, requires the approval in order to lawfully operate the range. Operating an unauthorised shooting range would make the operator a party to the user's offence against s 19(1) and s 23(3) of the Firearms Act, either under s 7 of the Criminal Code or under s 23C of the Firearms Act which provides:
Without limiting section 7 of The Criminal Code or section 21A of this Act, a person who by act or omission is in any way directly or indirectly knowingly concerned in the commission of any offence against this Act is deemed to have committed that offence and is punishable accordingly.
Thayli therefore requires an approval of its shooting range to allow it to lawfully operate that range for users who do not hold a firearms licence or permit. The conditions sought to be impugned in the present case are, on their face, directed to ensuring that the operation of the range, which the approval allows to occur when the other requirements of s 8(1)(m) are satisfied, is safe. The conditions are reasonably related to the activity which the Act allows to lawfully occur at a place which is the subject of an approval under s 8(1)(m) of the Act.
In our view, the only presently relevant limitation on the power to impose the conditions currently being considered is that the conditions are reasonable (including that they are reasonably related to the subject of the approval) and the Commissioner (or, upon review, the Tribunal) is satisfied that it is in the public interest to impose the conditions. A reasonable condition on an approval of a shooting range, which is directed and adapted to ensuring the safe and lawful operation of the shooting range, is generally capable of satisfying those requirements. Whether the conditions imposed by the Commissioner in this case are in fact reasonable and appropriate will be a matter for the Tribunal to determine on reconsideration.
Nor do we see any reason to read down the administrative power to impose reasonable conditions on a particular approval by reference to the delegated legislative power to make regulations with respect to the construction and conduct of shooting galleries and ranges. Of course, as the primary judge recognised,[18] if regulations were made in the exercise of that power, any conditions imposed by the Commissioner on an approval would need to be consistent with the regulations. However, the administrative power to impose conditions is not constrained by the unexercised delegated legislative power to make regulations that may deal with a possible subject matter of conditions. Much less does the existence of the delegated legislative power deny the existence of the Commissioner's power to impose conditions on an approval. There is nothing in the terms or structure of the Firearms Act which requires regulations to be made under s 34(2)(h) before conditions can be imposed on a range approval.
[18] Primary decision [81].
We do not accept Thayli's submission that the principle of statutory construction, identified in Anthony Hordern and subsequent decisions and summarised at [34] above, is engaged in the present case. As Gummow and Hayne JJ noted in Minister for Immigration v Nystrom,[19] what those cases reveal is that:
it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power.
[19] Minister for Immigration v Nystrom [2006] HCA 50; (2006) 228 CLR 566 [59].
Senior counsel for Thayli expressly disavowed the submission that the Commissioner's power to impose conditions generally excluded conditions about a subject matter which could be the subject of regulations.[20] That concession was correctly made. To so limit the condition-making power would deprive it of practical content, given the breadth of the regulation-making power in s 34 of the Act. The regulation-making power extends to regulations necessary or expedient for giving effect to the provisions of the Act and for the due administration thereof,[21] as well as the grant of approvals and other permissions under the Act,[22] and the restrictions, limitations and conditions that may be imposed on any licence permit or approval.[23] There would be few if any subject matters that might be the subject of conditions which could not be the subject of regulations made under s 34 of the Act.
[20] Appeal ts 30.
[21] Section 34(1) of the Act.
[22] Section 34(2)(a) of the Act.
[23] Section 34(2)(b) of the Act.
However, senior counsel for Thayli was unable to point to any particular limitation, qualification or restriction in the power to make regulations as to the conduct of shooting ranges in s 34(2)(h) of the Act, other than that the power was exercisable by the Governor in Executive Council.[24] In our view, the bare fact that regulations may only be made by the Governor in Executive Council, rather than the Commissioner, is not a relevant limitation, qualification or restriction that engages the principle of statutory construction identified in Anthony Hordern. If it were, the limitation, qualification or restriction would be equally applicable to all of the regulation-making powers in s 34 of the Act (a position which, as noted above, counsel rightly disavowed). In our view, there is no relevant limitation, qualification or restriction on the power to make regulations about the construction and conduct of shooting ranges that could be avoided if the general power to impose reasonable conditions extended to that subject. The principle of statutory construction identified in Anthony Hordern is not engaged. There is no proper basis in the text, context or purpose of the statutory provisions for concluding that s 34(2)(h) of the Act is the only power in the Act to control the conduct of shooting ranges.
[24] Appeal ts 31 - 32.
In support of its construction, Thayli gave an example of a farmer who owns a private shooting range. The farmer can freely shoot on the range. The farmer seeks a range approval. The range is approved but made subject to a condition that a 'range officer' be present. Thayli contends this results in an 'absurd outcome' that the farmer now cannot shoot on the range alone without a range officer.
We do not accept Thayli's submission, summarised at [48] above, that the construction we prefer leads to absurd results that Parliament could not objectively have intended. In the postulated example, the farmer does not need the exemption to avoid committing an offence against s 19(1) and s 23(3) of the Act when using the farmer's own licenced firearms on the range. That remains the case after the grant of an approval of the range under s 8(1)(m) of the Act subject to reasonable conditions. It may be that the price of obtaining the approval is that the farmer needs to comply with additional restrictions to avoid committing a different offence against s 21(2) of the Act. But there is no absurdity in that result, particularly where the conditions which the Commissioner may impose must be reasonable and may be subject to review by the Tribunal. The condition postulated by Thayli requiring a range officer when the farmer was shooting alone on the range could only be imposed to the extent that the condition was reasonable in all the circumstances.
We note that the primary judge appeared to perceive a requirement that at least some of the conditions on a range approval should address the proper construction and maintenance of the range in question.[25] Having regard to the specific reference to construction and maintenance in s 8(1)(m) of the Act, it would be expected that conditions of this type would ordinarily be imposed. However, we would not perceive the requirement to do so as a necessary limitation on the power to impose conditions on a range approval in every case. In any event, nothing turns on this in the present case as the conditions imposed by the Commissioner's delegate include conditions as to the construction and maintenance of Thayli's range.
[25] Primary decision [128].
In our view ground 1 is not established.
Ground 2: remittal to a differently constituted Tribunal
Section 105(9) of the SAT Act provided for the primary judge's powers in an appeal from the Tribunal under that section. Those powers relevantly include the power, in s 105(9)(c), to send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate. By s 105(10) of the SAT Act:
If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.
Ground 2 contends that the trial judge erred in finding that the matter should be remitted to a differently constituted quorum in the Tribunal. As this is an appeal from a discretionary decision, the principles of appellate review explained in House v The King are applicable.[26] Senior counsel for Thayli did not submit otherwise, contending that error in the sense explained in House v The King should be found.[27]
[26] House v The King (1936) 55 CLR 499, 505.
[27] Appeal ts 32 - 33.
We are not persuaded that the primary judge made any express or implied error in the exercise of her discretion. While we would doubt whether the making of programming orders for a costs hearing gives rise to any reasonable apprehension of bias, the primary judge merely postulated that this might be the case. The fact that the Tribunal was found to have failed to accord procedural fairness to the Commissioner was a relevant, but not necessarily controlling, factor counting in favour of sending the matter back to a differently constituted Tribunal. Senior counsel for Thayli accepted that this was so.[28]
[28] Appeal ts 35.
In the present case there was no competing factor counting in favour of sending the matter back to the Tribunal constituted by the original member. The only issue which the original member had properly considered and resolved was the question of construction of the Act, of which the member adopted an erroneous view. There was no saving in time or resources of either the parties or the Tribunal to be gained by having the same member deal with whether the correct and preferable decision was to impose the specific conditions.
In our view, the overall interests of justice favoured a direction that the reconsideration be by a differently constituted Tribunal. Even if error was established and the occasion arose for this court to re-exercise the discretion, we would exercise the discretion in the same manner as the primary judge.
Orders
For the above reasons, we would dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell
19 MARCH 2021
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