Shortly before Christmas, I was sent a copy of the Firearms Registry Decision Making Guidelines, titled ‘Decision Making Guidelines’ (2019).
I confess that I find them intriguing. This appears to be the first time the Registry has had Guidelines, as there are no notations or codes suggestive of an earlier edition, and I had not previously been aware of any.
The document can be found at:
https://www.police.nsw.gov.au ‚Ä∫ __data ‚Ä∫ assets ‚Ä∫ pdf_file ‚Ä∫ Firearms_Reg…
My initial reaction to reviewing a ‘first edition’ of such a document was I confess one of ‘bit late in ‘it!’ You see, a considerable degree of activity occurred in Administrative law circles in the mid 70’s when Parliament’s around Australia embraced administrative law, passing ‘Administrative Law Packages’ that included the establishment of review tribunals, Freedom of Information and appointed Ombudsmen.
At that time, consistency of decision making and ‘merit review’ became flavour of the month in government and legal circles, and main stream agencies would have had this type of material for almost half a century, making the embarkation of Police Registry on this path to discovery, rather interesting.
Page 4 announces the policy position on decision making. It sets out what the Registry views as being the principles of decision making, which I paraphrase as follows:
1.‘The Firearms Registry is committed to legal, accountable, streamlined and efficient decision making at all levels.
2. Refers to decisions being made at an appropriate level.
3. Refers to decision makers remaining accountable for decisions they make, but that they shall be supported by managers and supervisors- whatever that means.
4. All adjudicator / assessors are authorised to make decisions that their delegation authorises them to make.
As is often the case with Government documents, one needs to look at what a document does not say in order to understand it.
So here we have no mention of open government, fairness, rationality or effectiveness. In fact, the Guidelines actually in the decision-making flow chart asks the decision maker ’Will the decision have a significant impact on public perception of the FR’.
So, instead of looking at a system of openness of government we are dealing with a system that is seeking to conceal situations from the public and protect its image instead of focussing on good governance. This may, in light of the Edwards matter, give some clue as to its motivation.
The most important aspect of government decision making, is to apply the law in a way that evidences and ensures ensure openness of government, fairness, lawfulness, rationality, efficiency and effectiveness, nowhere is this listed, which is not surprising really.
The easy one here, is efficiency and effectiveness. The NSW Police Registry wants to be ‘efficient’ because of course it cannot be ‘effective’, because gun laws are not, so because they are seeking to implement something that is not ‘effective’ the best they can hope for is to be efficient at being ineffective!
Now, I have had a bit of fun, now for the serious bits.
When the word fairness is used, it usually refers to ‘procedural fairness’, or even a reference to it by its other name ‘natural justice’. Given that this, together with the principles above are a central tenet of good governance, I must confess to being astonished.
I shall explain the importance of this.
Administrative Law is a set of laws based upon the structural separation between the Legislature (Parliament), which makes the law, the Judiciary (Courts) which interprets it, and the Executive Branch (Public Service) which administers the law (‘the Separation of Powers Doctrine’).
Decisions are made by the Executive (Public Service) that assess the merits of particular cases against criteria and rules established by Parliament in an act or regulations, and these decisions are interpreted by the Judiciary and Review bodies.
In making decisions, Administrative Law requires that a decision maker provide Procedural Fairness, (formerly known as ‘natural justice’) a buzz word that collapses together two fundamental Administrative Law concepts into one- the first is the rule against bias (nemo iudex in causa sua) and the second, the right to fair hearing (audi alteram partem). It can be summed up as a duty to act fairly.
Procedures required by law to be observed in connection with the making of the decision are listed below.
The Registry guidebook does not deal with the first one at all.
The decision maker must not breach the rules of natural justice.
The decision maker did not have jurisdiction to make the decision;
The decision was not authorized by the Act
The decision was an improper exercise of the power conferred by the Act
The decision involved an error of law, whether or not the error appears on the record of the decision;
The decision was induced or affected by fraud;
There was no evidence or other material to justify the making of the decision;
The decision was otherwise contrary to law.
All Registries in Australia afford Natural Justice as a matter of course, other than NSW. I have always found this curious, and whilst I confess that there are some areas, for example where Police intelligence regarding outlaw motor cycle gangs, major crime or terrorism, where the affording of Natural Justice may not be appropriate, due allowance can be made for this.
Whilst Firearms Ownership is a Privilege and not a right, this does not mean that a citizen is not entitled to a certain level of treatment by the bureaucracy. In the Kioa v West, (High Court) Justice Mason found that Natural Justice (another word for Procedural Fairness’) could only be excluded by a clear manifestation of Parliamentary intention (1985) 159 CLR 550 at 584.
No such manifestation exists in gun laws anywhere in Australia of a law that proclaims that Natural Justice or Procedural Fairness does not apply.
Natural Justice or procedural fairness is central to our legal model. This is understandable when one considers that our legal and justice system has a Judeo-Christian roots and natural justice / procedural fairness is deeply enshrined in the Bible. God afforded Adam and Eve Natural Justice in the Garden of Eden before their Banishment (Genesis 3) and Pilate did the same before he ordered Christ’s execution (Mark 15).
One aspect of procedural fairness, specifically the bias rule, has been addressed, to a limited and inadequate degree, because the legal concept of bias goes beyond what an individual would consider bias and involve the apprehension of bias and so should have been defined.
For example, let’s for the sake of argument, say, a hypothetical officer of the Firearms Registry with an animal liberation past or present, may not consider themselves biased, nor may an officer with an interest in gun control. But there would one would be a clear and reasonable apprehension of bias about any decision they made. Notwithstanding of course any issues about a breach of the NSW Government Code of Conduct.
If the Registry wished to comply with procedural fairness within their model, I would, looking at the flow chart on page 29 make the following changes:
Step 1 of the procedure ‘obtain all relevant information relevant / required make a decision’ cannot be achieved until one has commenced step 2 – the consideration process, because it is only when you have considered if you have enough information to make a correct and proper decision, that you may realise that you do not have. There therefore needs to be a feedback loop inserted in between step 1 and step 2 at the point ‘have you conducted a thorough deliberation considering all relevant matters, with an added step inserted to the process requiring that questions be ‘put’ to the subject of the decision, thereby affording them procedural fairness.
Procedural fairness is not difficult to achieve: for example, I recently considered a matter where the VICPOL Registry wrote to a client drawing his attention to a certain Police report, advising of his possible non-disclosure of relevant criminal history and advising that the matters in the report many make him unsuitable to hold a licence and inviting him to make a written submission by a deadline.
This type of procedure is not difficult, and if conducted properly is beneficial to Registries because they make correct decisions at the first instance, reducing the incidence of appeals. This would also make the job of decision makers more interesting, enhancing staff satisfaction.
A further problem is the consideration of standards of proof. Here the Guidelines discuss the criminal law standard of ‘beyond reasonable doubt’ and the civil standard of ‘balance of probabilities’ and consider the latter to apply.
I consider this analysis flawed. For whilst the Firearms Act (1996) is silent in respect to standard of proof to be considered by decision makers, (as one would expect), NCAT, the Tribunal charged with responsibility for reviewing appealed decisions by the NSW Civil & Administrative Tribunal Act (2013) is required to reach the ‘correct and preferable decision’ and that at s63(2) it ‘may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision’.
An NCAT hearing is a ‘hearing de novo’, that is to say that the Tribunal sits in the shoes of the original decision maker.
It appears to the writer to be somewhat absurd for Parliament to have intended a decision maker dealing with a hearing de novo or fresh hearing of a primary decision to be applying a different standard of proof to the primary decision maker.
I confess this is something of a ‘grey area’, and would welcome comments from the Registry on this point. Parliament has after all done many absurd things in the past!
A further problem is that the Guidelines do not deal with how to balance the evidence. Thus, a reference for example in a COPS database may involve an unsubstantiated comment that is little more than intelligence that a Police Officer may in future find relevant. It should not necessarily be considered as necessarily correct.
Registry staff however seem not to make this discrimination, and the Guidelines would suggest that they are not trained in respect to how to ‘balance’ competing evidence.
Whilst I consider most of the cases chosen in the handbook to be very good examples, there are a number of significant cases that are missing:
Uzelac v Commissioner of Police, NSW Police Force  NSWADT 226.in which Deputy President Hennessey formed the view that not all storage matters warrant removal of a licence, and set down the following matters to be considered in forming a decision as to whether or not an individual should be permitted to hold a licence.
– the reason for failing to store the firearm safely;
– the length of time the firearm was not stored safely;
– the potential real danger posed by failure to store the firearm safely;
– the person’s previous conduct in relation to storage of firearms and any related matter;
– the person’s understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and
– the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.
Webb v Commissioner of Police, NSW Police Force  NSWADT 110, , Montgomery JM, who, when considering the question of public safety, stated that ‚ÄúIn determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be considered. Minimal, fanciful or theoretical risk can be excluded from consideration‚Äù.
-Martin v Commissioner of Police, New South Wales Police Force (2017) NSWCATAD 97, (64-66) which stressed that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but rather, for a decision to be reached, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety
Without consideration of these cases, staff are left with an extreme view of case law that does not fully reflect the state of the law.
Given that these Guidelines follow upon an Auditor- General’s report that was critical at poor governance in the Registry, I am left with the view that if this is the best that a line agency within the Department of Justice portfolio can achieve, I am not impressed.
National Firearms Lawyer
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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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