Not calling a spade a spade – alternatively titled when a commissioner seeks to escape the negative consequences of poor decision making under his command.
Those who are recipients of decisions from the NSW Firearms Registry will note that over recent months, the administrative decisions are titled ‘Delegate of the Commander’.
A number of shooters have asked me, what this is, and means.
Under our system of Government, a statutory role is created by Act of Parliament, for example the role of Commissioner of Police. Clearly, the person occupying that lofty office is quite a busy chap, and does not have time to personally consider your matter, or indeed most other decisions made by Police or the bureaucracy under his command, and so the Bureaucrat has a capacity to delegate or authorise others to make that decision.
Usually in Government, a delegation may be to a Particular level- for example Sergeant’s or above, or Level whatever Clerks or above, to a particular position number that is performing a particular role, or less often to a particular named individual.
The funniest example I came across of the exercise of a delegation is a UK one. British delegations flow from Her Majesty. A British war veteran, had lodged an application seeking to have his Haemorrhoids admitted as a war caused disability because of being fed a diet in defence that was intended to ‘bung one up’. The decision read ‘Her Majesty has no interest in this veteran’s haemorrhoids’.
I can almost imagine her Majesty reading the words!
A copy of the decision went viral, and even reached us here. I lost my copy in a move twenty years ago, and have been trying to find a copy since. If a reader knows as to the whereabouts of one, please send it to me.
You can spot a delegation In an Act or Regulations quite easily, there will either be a clear reference to delegation, or there will be a provision that reads like s28 of the NSW Firearms Act 1996, which reads:
‘S28 The Commissioner may issue permits for any one or more of the following purposes’:
Since the Edwards matter, the NSW Police Commissioner has sought to change the name of Firearms Registry decisions to ‘Commander’s decisions’, and both Shooters Fishers & Farmers Party and David Shoebridge of the Greens have criticised this for being an attempt at disassociating his title in the public eye from the mess that the NSW Firearms Registry generates.
Some of the decisions coming out of the NSW Firearms Registry are quite frankly appalling, and one of the major reasons for this is that unlike Registries in other states the NSW Registry does not afford Natural Justice before making a decision.
Natural Justice is the right to a fair hearing, to have an opportunity to present one’s case and for the decision to be made by an unbiased and disinterested decision maker.
Many of you like reading a bit of law, so I will give you some case references to read up on the concept if you are so interested. See Salemi v Mackellar (no 2) (1977) 137 CLR 396,
Local Government Board v Aldridge (1915) AC 120, Errington v Minister of Health (1935) 1 KB 249, Board of Education v Rice (1911) AC 179 at p182, City of Westminster Assessment Committee (1941) 1 KB 53, Ridge v Baldwin (1964) AC40.
The concept is not new, and it is not ‘rocket science’, yet many Registry staff seem to that because Firearms ownership is a privilege and not a right’, fundamental rights at law do not apply and they can just run off on a frolic of their own.
Clearly that is not the case. Other Registries around Australia afford Natural Justice so why can’t the NSW Registry? If it did, it would get more primary decisions right, solving one of the Auditor-General’s criticisms of the Registry.
I suggest that the Commissioner seek to resolve the problem, instead of simply seeking to firewall his important post from the mess the Registry generates.
The above is not a criticism of Commissioner Fuller, and if the Commissioner or a member of his staff wishes to discuss this matter with me, I offer an invitation to do so. I am a former Commonwealth Regulatory Lawyer with post graduate qualifications. I would gladly provide my input for gratis as a service to fellow shooters.
One of the matters that needs to be addressed is that decision making staff need to be provided with appropriate training in public sector decision making and administrative law via a legal awareness training program. This is clearly not happening, or If it is, it does not seem to be working.
I am not however prepared to sit on a Registry Committee. I have been invited in the past, and do not consider there to be a requisite level of good faith at Murwillumbah to deal with problems for this to occur, and here I cite the ongoing debacle of shooters precluded from licence applications by negative answers on P650’s as an example.
National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.
He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.
This article is written for general information only and does not constitute advice.
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