Firearms Lawyer Simon Munslow answers your legal questions.

Administrative decisions and appeals


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56 shares, 48 points

Firstly, let me acknowledge that lawyers do not have a monopoly on clear thinking, and that I have read many documents that people have drafted themselves that have been very good. I often use this material in documents that people have sent me when I draft for them, with the result that their costs are reduced considerably.

However, for a lay person to draft this type of document requires two things: an understanding of the legislation, including an ability to apply it to the facts, and an ability to think clearly.

Unfortunately, even in cases where people have the ability to think clearly, this may not be the case in dealing with their problem, as they are ‘too close to the problem’ to be able to see all issues clearly. Here, the old saying that ‘A lawyer who acts for himself has a fool for a client’ is relevant, and does not just apply to lawyers! 

In dealing with firearms matters, and in most areas of government decision making, there are three tiers of decision making.  These are, a primary decision maker, an internal review officer who deals with appeals from the decision of a primary decision maker, and then, if necessary, an appeal to an external tribunal such as ACAT.

 

Primary decision makers deal with a high volume of decisions, and make quite a few mistakes as a result.  They tend to be the least experienced and least well trained of the decision makers and, as a result, are usually employed at a lower public service clerical grade.

I see many matters from primary decision makers where the law that they quote in their decision is not applied correctly, and where I cannot see a logical reason why an application has been rejected.  A glaring example of the illogical rejection of an applicant, is when a shooter has been to Court in respect to a minor issue and has been given a ‘section 10’. 

All states have an equivalent of a ‘section 10’ (often ‘section 7’), and it provides a Court with an alternative to a conviction, when the person is of good character, the matter before the Court minor, and the Court considers the offence unlikely to be committed again.

I find it quite offensive that, after being considered to be of good character by a Judicial Officer in Court, and the Judge has additionally considered the matter to be minor, and unlikely to be repeated, that a clerk can simply fail the applicant on character grounds.

Primary decision makers do this all the time, and my success rate on appealing these is at present 100% at internal review stage.

Second tier decision makers (internal review officers) tend to be (or should be) better trained, and more experienced, and give more reasoned decisions.  

The internal review officer provides an opportunity for the agency to correct errors made at primary decision level, before the matter proceeds to external review, which is more expensive for both department and appellant.

The first problem with the DIY approach is that decision makers need to apply the facts that are before them to the relevant law.  If they are not provided with the facts, they cannot be considered by the decision maker, so you need to make sure all relevant matters are before the decision maker.

Having said that, if you include material that does not assist you, this can work against you in respect to any appeal from the primary decision, because the person dealing with the appeal would have read the original application and decision.

If you lodge an internal appeal yourself, and your documents are deficient, the only way you can have the matter reconsidered is to go to an external Tribunal.  This is quite Court-like in its operation, and costs can be significant.

When preparing an appeal, I usually take a comprehensive history covering the personal background of my client, his family and work background and background in the sport.  I want to ‘know you’.  I do not need to meet a client face to face. I used to be a Lawyer for an agency where I regularly interviewed people around the country, and only in a few cases was I disadvantaged by not seeing a person directly.

These days, if need be, face to face conferences can be done over the computer by using Skype.

I then apply these facts to the law – that is to say the Act, and regulations as interpreted by case law, and develop what lawyers refer to as a ‘theory of the case’. This is a hypothesis that I believe that I can ‘sell’ to the decision maker.

If you are a fan of the Rumpole series, this is what Rumpole referred to as the ‘Golden Thread’.

It is at this point that my 41 years of experience as a shooter, and my passion for the sport, is at its most advantageous, for, aside from my knowledge of the law, I have a considerable personal knowledge, and also library of firearms books, that I can use to develop an argument.

I usually seek to lead the decision maker through the steps of the decision, recounting relevant facts, applying the law, and any argument necessary to apply the law to the facts. 

After I have prepared a draft, and it has travelled back and forward a few times between us, usually by email, it is ready for lodgment.

I find that over 90% of matters that I prepare an internal appeal in respect to are successful, and this would be the case in respect to any lawyer with significant experience in this area, who is advising clients when to run an appeal and when not to bother, as the law is quite predictable in this area.

In terms of cost, I try and keep my costs for an internal appeal down to about the cost of a new medium quality rifle.  Most matters are in the middle range of this figure, and some over it. 

Because detail is considerably less in primary level applications, assistance can usually be provided in respect to this at a far lower cost, as much less time is involved.   For example, if an application for a sound moderator is sought, my involvement might be restricted to preparation of a statement about your business, why you need a moderator, what type you want, and what firearm you want it for, why you cannot use alternatives, such as poisons to control pests, and details about properties upon which you shoot.

I would also be working with you in respect to obtaining supporting documentation.

Third tier review, the Tribunal, is seldom necessary.  This is a good thing, as it is Court-like in its operation, and therefore time consuming and thus somewhat more expensive.  The cost is dependant upon whether the matter settles prior to hearing, and whether the hearing can be dealt with in one day, or whether several days are required. 

 

 


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