FEDERAL COURT OF AUSTRALIA

Australian Firearms and Munitions Pty Ltd v Attorney-General [2018] FCA 1442

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    This an application brought under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) for judicial review of what is alleged to be a “decision” to give the Verney-Carron Veloce Shotgun a particular classification under the Customs (Prohibited Imports) Regulations 1956 (Cth) (the Prohibited Imports Regulations).

2    The applicant alleges that the decision is invalid on the grounds of denial of natural justice, failure to take into account a relevant consideration, error of law and unreasonableness.

3    The respondent has filed a notice of objection to competency on the basis that there is no “decision to which this Act applies” within s 5(1) of the ADJR Act. The respondent contends that there was only an expression of opinion that has no operative legal effect. The respondent submits, in the alternative, that the applicant has not made out its grounds of review.

4    It should be noted that the applicant has not relied upon s 39B of the Judiciary Act 1903 (Cth). The case is concerned only with review under s 5(1) of the ADJR Act.

5    It is necessary to begin by traversing a series of correspondence asserted by the applicant to reflect an application and a decision to classify the Veloce Shotgun. It will also be necessary to examine the complex legislative scheme concerning the importation of firearms to determine whether the applicant’s submission that the respondent has a general power to classify firearms is correct. If that issue is decided in favour of the applicant, it will be necessary to consider the merits of the applicant’s grounds of review.

The evidence

6    The applicant imports and sells firearms under the name “Australian Sporting Agencies”. Its director is Alivio Rico Casagrande.

7    Mr Casagrande deposes that since 2016, the applicant has imported the Verney-Carron Speedline rifle, which utilises technology involving use of a lever to load a round into the breech and set the trigger ready for the gun to be fired. The technology is said to provide “unparalleled rapidity of fire”. The Veloce Shotgun, which the applicant also wishes to import and sell, utilises the same technology.

8    On 27 May 2017, Mr Casagrande sent an email to “Stephen” and “Leanne” of the Firearms Team in the Attorney-General’s Department (members of the Firearms Team use only their first names in their dealings with members of the public). Mr Casagrande noted that the Speedline rifle had been classified as a lever action rifle within Item 2 of Sch 6, Pt 2 of the Prohibited Imports Regulations, but that he had become aware of advice from “Leanne” to a third party that the Veloce Shotgun “is classified as an Item 12 article”. It should be noted that an Item 12 article is not able to be imported into Australia the purpose of sale. Mr Casagrande attached to his email a video which he said demonstrated that the Veloce Shotgun was a lever action shotgun. He said that if the officers believed that he needed to bring a Veloce Shotgun into the country for inspection, he would be happy to do so.

9    In an email sent on 31 May 2017, “Stephen” (whose full name is Stephen Kiley) confirmed that the applicant could make an application to import a Veloce Shotgun under the “official purposes test”. As will be seen, the “official purposes test” applies where the purpose of the importation is for the government to inspect, test or evaluate a firearm. Mr Casagrande then made such an application.

10    On 13 June 2017, Mr Kiley sent an email to Andrew Ioannou of Australian Sporting Agencies, following a telephone conversation. He said:

Our position is also that the Veloce is not a lever action shotgun.

As discussed, any change would require an amendment to the Regulations and we are not in a position at this point to say if/when any amendments would be able to be made.

11    Mr Casagrande responded by email dated 14 June 2017 arguing that the Veloce Shotgun was a lever action shotgun or a repeating bolt action shotgun.

12    On 29 June 2017, Mr Kiley, acting as a delegate of the respondent, granted the applicant permission to import a single Veloce Shotgun for “official purposes”. The Veloce Shotgun was imported and sent to the Australian Federal Police (AFP) for assessment. On 30 August 2017, Mr Kiley sent an email to the applicant saying:

The firearm has been received by the Australian Federal Police, and they are currently looking at it. At this stage we don’t believe they need anything from you, but we (or they) will be in touch if that changes.

We’ll keep you updated, but follow us up if you don’t hear back from us for a little while.

13    On 12 September 2017, a report was provided to Mr Kiley by an AFP firearms expert. The report stated:

The repeating action found on the Verney‐Carron model Veloce is a design that does not fall to the current available repeating action shotguns as described in the Customs (Prohibited Imports) Regulations 1956. This design is more accurately described to be a manual loading repeating action other than a lever action, bolt action or pump action.

As the Verney‐Carron model Veloce is neither a bolt action, lever action or a pump action repeating action shotgun it can’t fall to the control of Item 1, 2, 3 and 6 of Schedule 6, Part 2 of the Customs (Prohibited Imports) Regulations 1956 for importation into Australia and would therefore fall to the control of Item 12 of the same Regulations.

14    It is common ground that the applicant was not notified of the AFP report, nor provided with an opportunity to respond to its contents.

15    On 14 September 2017, “Leanne” from the Firearms Team sent an email to Mr Casagrande saying:

Based on the assessment we have now received, the firearms classification as an Item 12 article hasn’t changed.

We appreciate this may not be the most appropriate outcome, so we’ll consider the matter further, including discussing it with our state and territory colleagues, to determine whether there is a more appropriate classification, and if so, what it would be.

16    Mr Kiley has filed an affidavit indicating that, while the email of 14 September 2017 indicated that it was from “Leanne”, he had drafted the email and that “Leanne” merely sent it as the officer rostered to process emails at the time it was sent. Accordingly, any decision communicated in the email was made by Mr Kiley, who was acting as a delegate of the Attorney-General.

17    The applicant contends that the email of 14 September 2017 communicated a decision classifying the Veloce Shotgun. On 15 September 2017, Mr Casagrande sent an email to “Leanne” saying:

I refer to the decision that has been made as advised in your email to me of 14 September 2017.

The decision that has been made is that the firearm which was imported for the purpose of being submitted for an official purposes test has been determined not to be a “…firearm…to which an Item in Part 2 of Schedule 6 applies.”

The email went onto assert that the decision was one to which the ADJR Act applied and requested a statement of reasons pursuant to s 13 of the ADJR Act.

18    On 12 October 2017, Leanne Loane, an acting assistant secretary in the Attorney-General’s department (who, confusingly, was not the “Leanne” referred to in the emails), replied stating:

…However, whilst we would not consider this a decision within the meaning of the ADJR Act, we set out below the reasons for the Department’s position that the shotgun is an Item 12 article...

…

(b)    Reasons for Item 12 status

At present, the following shotgun action types are considered to be repeating action shotguns under the Customs (Prohibited Imports) Regulations 1956:

i)    Lever action

ii)    Bolt action, and

iii)    Pump action

According to the Glossary of the Association of Firearm and Toolmark Examiners in the USA (established in 1969), the following descriptions are given for the above action types:

Lever Action

A design wherein the breech mechanism is cycled by an external lever generally below the receiver, e.g. Winchester Model 1873.

Bolt Action

A firearm in which the breech closure:

-    is in line with the bore at all times

-    manually reciprocates to load, unload and cock,

-    is locked in place by breech bolt lugs and engaging abutments usually in the receiver. There are two principal types of bolt actions: the turn bolt and the straight pull.

Pump Action

An action which features a movable forearm which is manually actuated in motion parallel to the barrel by the shooter. Forearm motion is transmitted to a breech bolt assembly which performs all the functions of the firing cycle assigned to it by the design.

According to the Glossary of the Sporting Arms and Ammunition Manufacturers’ Institute lnc., established in 1926, the following descriptions are given for the above action types:-

Lever action

A design wherein the breech mechanism is cycled by an external lever generally below the receiver.

Bolt action

A firearm in which the breech closure is: in line with the bore at all times; manually reciprocated to load, unload and cock; and is locked in place by breech bolt lugs engaging abutments usually in the receiver. There are two principle types of bolt actions, i.e., the turn bolt and the straight pull type.

(Action, Pump See Action, Slide) Action, Slide

A firearm which features a moveable forearm which·is manually actuated in motion parallel to the barrel. Forearm motion is transmitted to a breech bolt assembly which performs all the functions of the firing cycle assigned to it by the design. This type of action is prevalent in rim fire rifles and shotguns and to a lesser extent in centrefire rifles. Also known as Pump Action or Trombone Action.

In accordance with the definitions in the glossaries of the above international bodies, which are accepted sources of expertise in this field, the repeating action found on the Verney-Carron Model Veloce shotgun is a design that does not fall to the current available repeating action shotguns (lever, bolt or pump) as described in the Customs (Prohibited Imports) Regulations 1956 and supported by above mentioned Glossaries.

As the Verney-Carron Model Veloce does not function in the same manner as described above for a bolt action, lever action or a pump action repeating action shotgun, it cannot fall to the control of Item 1, 2, 3 and 6 of Schedule 6, Part 2 of the Customs (Prohibited Imports) Regulations 1956 for importation into Australia and, accordingly, would fall to the control of Item 12 of the Regulations.

We trust this information is of assistance to you.

19    It is common ground that the applicant was not given the opportunity to comment upon the glossary extracts referred to in the statement of reasons.

20    Mr Kiley was cross-examined. He confirmed that he had accepted the opinion expressed in the AFP report. He could not recall whether he had watched the video attached to Mr Casagrande’s email of 27 May 2017. He accepted that after the applicant requested reasons, he had further communications with the AFP, resulting in the AFP producing the glossary definitions. Mr Kiley confirmed that those glossary definitions were not before him when the email of 14 June 2017 was written.

The legislation

Administrative Decisions (Judicial Review) Act 1977 (Cth)

21    Section 5 of the ADJR Act provides, relevantly:

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

…

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

…

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

..

(b)    failing to take a relevant consideration into account in the exercise of a power;

…

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

…

22    Section 3(1) of the ADJR Act defines the expression “decision to which this Act applies” to mean, relevantly, “a decision of an administrative character made, proposed to be made, or required to be made…under an enactment”. The word “enactment” is defined to mean, relevantly, “an Act” and “an instrument (including rules, regulations or by-laws) made under such an Act…”.

Customs Act 1901 (Cth)

23    Section 50 of the Customs Act 1901 (Cth) provides, relevantly:

(1)    The Governor General may, by regulation, prohibit the importation of goods into Australia.

(2)    The power conferred by the last preceding subsection may be exercised:

…

(c)    by prohibiting the importation of goods unless specified conditions or restrictions are complied with.

(3)    Without limiting the generality of paragraph (2)(c), the regulations:

(a)    may provide that the importation of the goods is prohibited unless a licence, permission, consent or approval to import the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations made under this Act…

...

24    Section 51(1) provides that “goods, the importation of which is prohibited under section 50, are prohibited imports”.

25    Section 233(1) provides that a person shall not import any prohibited imports. Under s 233(1AA), a person who contravenes s 233(1) commits an offence that is punishable upon conviction.

26    Section 229 provides that all prohibited imports shall be forfeited to the Crown. Section 203 provides for the seizure of prohibited imports.

Customs (Prohibited Imports) Regulations 1956 (Cth)

27    Regulation 4F of the Prohibited Imports Regulations provides, relevantly:

(1)    Subject to subregulations (2), (2A) and (2B), the importation of a firearm… is prohibited unless:

(a)    the firearm…is an article to which an item in Part 2 of Schedule 6 applies; and

(b)    the importation is in accordance with the requirements set out in column 3 of the item.

28    Subregulations (2), (2A) and (2B) are not relevant to this case. It is not in dispute that the Veloce Shotgun is a “firearm”.

29    Schedule 6 of the Prohibited Imports Regulations deals with requirements that must be satisfied for the importation of firearms and related items. Part 2 of Sch 6, which is referred to in reg 4F, consists of a table that includes the following items:

30    It may be noted that in his correspondence, Mr Casagrande contended that the Veloce Shotgun came within Item 2 (f) or (g). Mr Kiley took the view that the Veloce Shotgun came within neither of those descriptions and fell within Item 12(a) ((b) did not apply as its magazine has a capacity of five rounds). That reflected the sole factual dispute underlying the legal dispute before the Court.

31    The various tests described under the heading “Requirements” in Column 3 of Pt 2 are set out in Pt 1 of Sch 6. For example, the “official purposes test” is described as follows:

1.1    The importation of an article complies with the official purposes test if, at or before importation, the Attorney General gives written permission under this item for the importation of the article.

1.2    The Attorney General may give written permission for the importation of the article only if the Attorney General is satisfied that:

(a)    the article is to be imported for the purposes of:

(i)    the government of the Commonwealth, a State or a Territory; or

        …

1.3    For paragraph 1.2(a), examples of an article the importation of which is for the purposes of the government of the Commonwealth, a State or a Territory are:

…

(c)    an article that the government proposes to inspect, test or evaluate; and

…

32    Part 1 also provides for a “specified purposes test”, “specified person test”, “sports shooter test”, “international sports shooter test”, “dealer test—Category C and D articles”, “returned goods test”, “public interest test” and “national interest test”. The provisions dealing with those tests follow the same pattern as the “official purposes test”. First, the importation of a firearm or other relevant article is said to comply with the test if the Attorney-General gives written permission for its importation. Second, the Attorney-General may give written permission for the importation of an article if satisfied that certain conditions exist. Third, the conditions (which are principally as to the purpose of importation, the attributes of the importer and the nature of the article) are specified.

33    Clause 9 of Pt 1 deals with applications to import firearms and provides, relevantly:

9.1    This item applies if the written permission of the Attorney-General for the importation of an article is required under this Part.

9.2    A person may apply to the Attorney-General for the permission.

9.3    The application must be made on the form approved by the Secretary to the Department.

34    Unlike the other tests in Pt 1, the “police certification test” does not require the permission of the Attorney-General. That test is described, relevantly, in the following terms:

4.1    The importation of an article complies with the police certification test if:

(a)    before the importation of the article, the importer was given a statement, in an approved form, by a relevant police representative to the effect that the importer holds a licence or authorisation according to the law of the relevant State or Territory to possess the article, or that a licence or authorisation to possess the article is not required under the law of the relevant State or Territory; and

…

The grounds of the application for review and the notice of objection to competency

35    The grounds set out in the amended originating application, as modified in the course of the applicant’s oral submissions, may be summarised as follows:

1.    A breach of the rules of natural justice occurred in connection with the making of the decision in that the respondent:

(a)    failed to consider the video contained in the applicant’s email dated 27 May 2017;

(b)    failed to provide to the applicant a copy of the examination report prepared by the AFP dated 12 September 2017 and failed to afford the applicant an opportunity to comment upon the report;

(c)    failed to inform the applicant that he intended to consider the glossary extracts referred to in the statement of reasons.

2.    The making of the decision was an improper exercise of the power conferred by the Prohibited Imports Regulations because the respondent:

(a)    failed to take into account a relevant consideration, namely the video;

(b)    did not give the application proper, genuine and realistic consideration because of his failure to have regard to the video.

3.    The making of the decision involved an error of law and was an improper exercise of the power conferred by the Prohibited Imports Regulations in that the respondent relied entirely upon the glossary extracts, despite there being no evidence that the sources were “accepted sources of expertise in the field” and were “incapable of incorporation” for the purposes of making a decision under the Prohibited Imports Regulations.

4.    The exercise of the power to make the decision was unreasonable in that:

(a)    no reasonable person could have so exercised the power;

(b)    the statement of reasons provided no intelligible justification for the decision.

36    The respondent’s notice of objection to competency relies upon the following grounds:

1.    The impugned decision is not a ‘decision ... under an enactment’ within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) because it is not expressly or impliedly required or authorised by the Customs (Prohibited Imports) Regulations 1956 (Cth) (Prohibited Import Regulations).

2.    Alternatively, the impugned decision is not a ‘decision ... under an enactment’ because it does not confer, alter or otherwise affect the legal rights or obligations of the applicant under the Prohibited Import Regulations.

3.    Further, or alternatively, the impugned decision is not a ‘decision ... under an enactment’ because it is a mere expression of opinion that has no operative legal effect.

The submissions

37    The applicant submits that the respondent, through his delegate Mr Kiley, made a decision on 14 September 2017 not to classify the Veloce Shotgun as an Item 2 article, and to instead classify it as an Item 12 article, under reg 4F and Sch 6, Pt 2 of the Prohibited Imports Regulations. It submits the effect of that decision is that it prohibits the importation of the shotgun into Australia.

38    The applicant’s first ground alleges a denial of natural justice in connection with the making of the decision. The applicant submits that the AFP expert’s report was adverse to its interests and critical to the decision that was made. It submits that in circumstances where Mr Kiley relied on the report, it was procedurally unfair not to give the applicant an opportunity to comment upon its contents before making the decision. The applicant also submits that it was a denial of natural justice for Mr Kiley to fail to have regard to the video demonstrating the operation of the firearm attached to Mr Casagrande’s email of 27 May 2017. Further, the applicant submits that it was a denial of natural justice for the applicant to have regard to the glossary extracts described in the respondent’s statement of reasons without affording the applicant an opportunity to comment upon those extracts.

39    In support of its second ground, the applicant submits that the video was relevant to its application and was required to be considered by the respondent. Despite the phrasing of the ground, the applicant’s argument is ultimately that in the absence of consideration of the video, it cannot be said that the respondent gave any proper, genuine and realistic consideration to the application.

40    The applicant’s third ground asserts that there was an error of law in having regard to the glossary definitions referred to in the statement of reasons to interpret the meaning of the expression of “lever action shotgun” in Sch 6 of the Prohibited Imports Regulations. The applicant submits that there was no legal basis upon which the respondent could have regard to such glossary definitions as an interpretative aid. It submits that they are not, for example, extrinsic evidence within s 15AB of the Acts Interpretation Act 1901 (Cth). The applicant also submits that the respondent’s view that “the definitions in the glossaries…are accepted sources of expertise in this field” is not supported by any evidence. The applicant’s argument in this regard seems to be that there was no evidence to support the conclusion and, therefore, the decision.

41    The applicant’s fourth ground asserts there was no intelligible justification for the respondent’s reliance upon the glossaries and that the decision was therefore legally unreasonable.

42    The respondent’s submissions commence by addressing the notice of objection to competency. The respondent submits that there is no “decision to which this Act applies” within s 5(1) because that expression requires, under s 3(1), that there be a “decision…under an enactment”. He submits that, other than under the specified tests, the Prohibited Imports Regulations do not require or authorise the respondent to classify a firearm. He contends, relying upon Griffith University v Tang (2005) 221 CLR 99 at [89], that there is no “decision…under an enactment” because there was no decision expressly or impliedly required or authorised by the enactment in question, and any decision did not confer, alter or otherwise affect legal rights or obligations.

43    The respondent submits that classification under Schedule 6 does not depend upon the formation of any opinion, but is simply a question of fact; and, therefore, any expression of opinion about the classification of a firearm cannot have the final or operative and determinative effect required under Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337. The respondent also submits that the terms of Mr Kiley’s email of 14 September 2017 indicated that the matter remained under consideration and was, accordingly, merely an expression of a preliminary view, rather than a final and operative decision.

44    The respondent also submits that as there is no statutory basis upon which the respondent was authorised to make a general decision to classify firearms under Sch 6, Pt 2 of the Prohibited Imports Regulations, there could be no denial of natural justice or other legal error.

45    In reply, the applicant submits that the respondent “expressly determined that the shotgun was unable to be imported for sale to members of the public” because the shotgun was determined not to fall within Item 2 of Sch 6 and instead determined to fall within Item 12 of Sch 6. The applicant submits that, contrary to the respondent’s submission, the respondent plainly undertook the function of determining and classifying which Item should be applied to the Veloce Shotgun. It submits that the respondent is impliedly authorised under the Prohibited Imports Regulations to make a decision classifying a type of firearm.

46    The applicant submits that in practical terms, the applicant is prohibited from importing the Veloce Shotgun as a result of the respondent’s classification. Any attempt to do so would render the applicant liable to prosecution. The applicant submits that because the applicant is prohibited from importing the firearm, the decision was a final and operative determination which plainly affects the applicant’s legal rights or obligations.

47    Further, the applicant submits that when the correspondence is read as a whole it is apparent that the decision of 14 September 2017 was not a preliminary decision but a final one.

Consideration

The notice of objection to competency

48    It is convenient to begin by considering the notice of objection to competency. If it is successful, then the application for review must fail.

49    It is necessary to consider what the applicant applied for and what was decided. The applicant contends that in its email of 27 May 2017 it made an application for the respondent to classify the Veloce Shotgun under Item 2 of Sch 6, Pt 2. I accept that the email can be construed in that way. However, many things can be applied for—whether there is any legislative authority for an application to be granted is a quite different question.

50    The applicant contends that on 14 September 2017 the respondent made a decision to not classify the Veloce Shotgun under Item 2, and to instead classify it under Item 12. In the email of 14 September 2017, Mr Kiley said, “Based on the assessment we have now received, the firearm’s classification as an Item 12 article hasn’t changed”. There was debate between the parties as to whether the language used reflected the making of a decision, or was a statement of Mr Kiley’s preliminary view as to the appropriate classification. I do not think it matters in the circumstances of the case. The main point raised by the notice of objection to competency is not whether Mr Kiley made a “decision” in any ordinary sense of that word, but whether he made a “decision under an enactment” within s 3(1) of the ADJR Act. That issue depends upon the objective criteria described in Griffith University v Tang, and not upon the manner in which Mr Kiley expressed himself, or whether any party thought a decision was being made.

51    In Griffith University v Tang, Gummow, Callinan and Heydon JJ held at [89]:

The determination of whether a decision is ‘‘made . . . under an enactment’’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘‘made . . . under an enactment’’ if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

52    A determination as to whether these criteria are met requires consideration of the statutory framework for the classification and importation of firearms. At this point, it is necessary to say that the statutory scheme involves the interplay of Commonwealth and State laws. While the parties addressed the Commonwealth laws, neither party referred to the relevant State laws. Nor is there any evidence as to the practical administration of the scheme as between Commonwealth and State authorities. Accordingly, the analysis that follows is limited by the parameters of the argument and the evidence, and does not purport to be a comprehensive account of the way in which the importation of firearms is controlled and administered in Australia.

53    Under s 50(1) of the Customs Act, a regulation may prohibit the importation of goods, including firearms, into Australia unless specified conditions are complied with. Regulation 4F of the Prohibited Imports Regulations is such a regulation.

54    In Chief Executive Officer of Customs v Granite Arms Pty Ltd (2005) 222 CLR 149, the High Court said at [6]:

Regulation 4F and Sch 6 were introduced in 1996 by the Customs (Prohibited Imports) Regulations (Amendment) and had been amended before 3 May 2000, principally in 1998 by the Customs (Prohibited Imports) Regulations (Amendment). The 1996 Explanatory Statement stated that the changes were designed to introduce “a new, simplified structure for the control of the importation of firearms into Australia” and continued:

“Following the Port Arthur tragedy, the special meeting of the Australasian Police Ministers’ Council (APMC) on 10 May 1996 adopted a number of resolutions aimed at effective national firearm controls.”

The 1998 Explanatory Statement referred to the agreement during 1996 by all Australian governments on a national scheme to control the circulation of firearms in Australia and stated that the amendments to the Regulations were designed to ensure the access regime was uniform throughout the Commonwealth.

(Citations omitted.)

55    Regulation 4F(1) provides that the importation of a firearm is prohibited unless two conditions are satisfied. Those conditions are in effect that, first, the firearm must come within a description of an item in Column 2 of the Table in Sch 6, Pt 2 (the Table); and, second, the importation must comply with at least one of the corresponding tests specified in Column 3. The effect of the tests in Column 3 is to restrict the circumstances in which a firearm coming within Column 2 may be imported and, generally, to restrict the purposes for which such a firearm may be imported.

56    Schedule 6, Pt 1 sets out the requirements for compliance with the tests specified in Column 3. Each test, other than the police certification test, requires that the Attorney-General give written permission for the importation of the firearm. An application for the Attorney-General’s permission must, under Pt 1, cl 9, be made in the approved form.

57    In this case, the applicant applied for, and received, the permission of the Attorney-General to import a single Veloce Shotgun for assessment by the AFP under the official purposes test. However, the applicant wishes to import Veloce Shotguns for the purpose of sale in Australia. It did not seek any permission to do so from the Attorney-General under any of the tests in Column 3 of the Table—that is because none of the tests applicable to a firearm of this type would allow the Attorney-General to authorise the importation for such a purpose.

58    Instead, the applicant sought a decision by the Attorney-General to classify the Veloce Shotgun within Item 2 of the Table on the basis that it is a lever action shotgun or a repeating bolt action shotgun. The applicant’s purpose in doing so was not directly the subject of evidence or submissions, but seems to have been to obtain confirmation that it could import Veloce Shotguns if it satisfied the police certification test (which requires a statement by a relevant police representative to the effect that the importer holds a licence or authorisation according to the law of the relevant State or Territory to possess the article).

59    The Prohibited Imports Regulations make no express provision for the Attorney-General to make a general decision of this type about the classification of a firearm. That may be contrasted with the express powers conferred upon the Attorney-General to make a decision when an application is made under any of the tests, other than the police certification test, in Column 3 of the Table. In that situation, the Attorney-General is required to determine the appropriate classification of a particular firearm under an item in the Table as a necessary step on the way to deciding which tests are applicable and whether to give permission for the importation of the firearm.

60    The applicant’s argument is that the Attorney-General has an implied general authorisation under reg 4F(1) of the Prohibited Imports Regulations to make a decision as to the classification of a firearm. The submission is that an implied authorisation must arise because classification by the Attorney-General determines whether or not a particular firearm is a prohibited import. For example, in this case, if the firearm were classified within Item 2, it could be imported provided that the police certification test is complied with. If, however, the Attorney-General is correct that the Veloce Shotgun is properly classified under Item 12, then the police certification test does not apply, and none of the tests specified in Column 3 for Item 12 would allow the applicant to import Veloce Shotguns for sale.

61    The applicant submits that the “decision” of the Attorney-General to classify the Veloce Shotgun within Item 12 prohibits it from importing the shotgun for sale. However, that does not seem to be a correct statement of the law. It remains open to the applicant to seek, under the police certification test, a statement from the relevant police representative to the effect that the applicant holds a licence or authorisation according to the law of the relevant State or Territory to possess the Veloce Shotgun. If the police representative considers that the Veloce Shotgun falls within Item 2, the representative may give the applicant such a statement. There was no evidence led as to the practicalities of the decision-making process, but a police representative is not, as a matter of law, bound by any decision or opinion expressed by or on behalf of the Attorney-General that the Veloce Shotgun comes within Item 12. The applicant has not attempted to comply with the police certification test. If it is able to comply, then subject to one matter, the importation of the firearm will not be prohibited pursuant to reg 4F(1) of the Prohibited Imports Regulations.

62    The applicant points to a potential difficulty or gap in the legislative scheme if the Prohibited Imports Regulations are not construed as authorising the Attorney-General to make a decision as to classification upon an application for classification by an importer. The gap is that compliance by an importer with the police certification test is not necessarily binding on customs officers when deciding whether a firearm is a prohibited import. If, for example, a customs officer took the view that the police representative who supplied the certification had wrongly characterised the Veloce Shotgun as coming within Item 2, when it should correctly have been classified within Item 12, the police certification would not protect the importer from prosecution for importing a prohibited import and the imported shotguns would be liable to forfeiture. The applicant submits that to overcome that difficulty, the Prohibited Imports Regulations envisage that the Attorney-General is authorised to make a decision as to the classification of firearms prior to their importation. As has been discussed, the parties adduced no evidence as to the practicalities of the relationship between State and Commonwealth authorities and, in addition, there has been no elaboration of the role the Attorney-General may or may not play in decisions about whether firearms when imported are prohibited imports. However, as a matter of construction of the Act, it is theoretically possible that a situation could arise where, despite State police having granted certification under the police certification test, a firearm may nevertheless be a prohibited import. It may be that such a situation could be avoided if the Prohibited Imports Regulations are interpreted as allowing the Attorney-General to make a binding decision as to the appropriate classification in advance of the importation.

63    However, for the following reasons, the Prohibited Imports Regulations cannot be construed as authorising the Attorney-General to make a decision upon a classification of a firearm, except in the context of considering an application for importation under one of the specific tests set out in Column 3 of the Table.

64    Firstly, the absence of any express provision allowing the Attorney-General to make a general decision about classification of firearms is telling. That may be contrasted with the express and detailed provision for applications to be made to the Attorney-General in the approved form where importation is sought under the tests in Column 3 of the Table and for the Attorney-General to give written permission for the importation of an article. If the statutory intention was that the Attorney-General should be authorised to make a decision concerning classification outside the context of these tests, that is likely to have been expressly provided for.

65    Secondly, an applicant does not necessarily require the Attorney-General’s approval in order to legally import a firearm. The requirements in Column 3 are only for compliance “with at least 1 of the following tests”. As I have said, a firearm may legally be imported if, depending on the firearm, a police certification is obtained. The applicant’s submission that it is classification by the Attorney-General that effectively and necessarily determines whether a firearm can be legally imported must be rejected.

66    Thirdly, the theoretical possibility that there may be disagreement between State or Territory police and customs officers as to the appropriate classification of a firearm, such that an importer is at risk even if the importer obtains police certification, is not enough to require a conclusion that the Prohibited Imports Regulations contain an implied general authority for the Attorney-General to classify a firearm upon the application of an importer. The indications to the contrary—the absence of an express general power, but the presence of express powers that allow classification in specific circumstances—are too strong.

67    Therefore, any decision made by Mr Kiley that the Veloce Shotgun should not be classified under Item 2, and should instead be classified under Item 12, was not one authorised under the Prohibited Imports Regulations. Mr Kiley’s communication was not binding as to any decision that might be made in the future concerning whether the firearm was a prohibited import and therefore amounted, in my opinion, to an advisory opinion as to the likely classification by customs officers if imported by the applicant under the police certification test.

68    It follows that the first criterion described in Griffith University v Tang at [89]—that a decision must be expressly or impliedly required or authorised by the enactment—is not met. It also follows that the second criterion—that the decision must itself confer, alter or otherwise affect legal rights or obligations—is not met. Accordingly, there was no “decision…under an enactment” and no “decision to which this Act applies” within s 5(1) of the ADJR Act.

69    The notice of objection to competency must be upheld.

The grounds of review

70    The conclusion I have reached that the Attorney-General had no legislative authorisation to make a general classification of the Veloce Shotgun and that only an advisory opinion was provided means that, even apart from the question of whether there was a decision within s 5(1) of the ADJR Act, the applicant’s grounds of review cannot succeed.

71    No natural justice obligation could arise in these circumstances. Further, there could be no relevant consideration that was required to be taken into account, nor any requirement to give proper, genuine and realistic consideration to the application for classification. Further, any error of law or unreasonableness had no operative or substantive effect.

72    There is generally a requirement upon a judge in a case decided upon a legal point to also consider the matter against an assumption that the judge is wrong. However, in this case the necessary assumption would be too artificial to allow any useful result to be produced.

73    It is possible to have some sympathy for the applicant’s position. The new technology used in the Veloce Shotgun may have resulted in the firearm slipping into a default classification under Item 12 of the Table. If that classification is the correct one, the police certification test does not apply. That seems incongruous when, for example, under Item 3, a semi-automatic shotgun can be imported under the police certification test.

74    However, for the reasons I have given, the application must be dismissed. I will hear the parties as to costs.

Associate:    

Dated:    21 September 2018