In this edition we look at a decision on the construction of the word 'necessary', in the context of the Commissioner of Police's refusal of an application by a sheep grazier to attach a silencer to his firearm. One of the issues on appeal to the NSW Civil and Administrative Tribunal Appeals Division was whether the Tribunal below erroneously concluded that Mr Allen had demonstrated that it was necessary in the conduct of his business to use or possess a silencer.
Silencers, and any other devices designed to reduce or muffle noise, are prohibited weapons. Under s 11(1) of the Weapons Prohibition Act 1998 (NSW) (the Act), the Commissioner of Police (the Commissioner) cannot issue a prohibited weapons permit unless he is "of the opinion that there is a genuine reason for possessing or using the weapon". Mr Allen made an application relying on business/employment as his genuine reason (in broad terms the use of a silencer would have allowed him to target multiple feral animals in quick succession), but the Commissioner refused his application on the basis that Mr Allen had not demonstrated that the use of a silencer was necessary in his occupation as a sheep grazier. The Tribunal below set aside the decision and the Commissioner appealed to the Appeal Panel.
The Commissioner's primary argument was that in allowing Mr Allen's appeal, the Tribunal had misconstrued the words 'necessary in the conduct of the applicant's business'. The Appeal Panel's decision, provides a useful summary of the main legal propositions surrounding the interpretation of the word 'necessary'. The Appeal Panel noted that:
- the meaning of 'necessary' is a question of fact, not a question of law (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 380 at 287);
- when a non-technical word, such as 'necessary', is used in a statutory provision it should be given its plain and ordinary meaning unless the contrary is shown (Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 647);
- the meaning of the word 'necessary' depends on the context in which it is used (Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52).
The Commissioner, relying on Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10, submitted that the word 'necessary' in the context of the Act meant that the possession or use of a silencer was essential or directly required for the purpose of conducting the business of sheep grazing. In Osborne, the Appeal Panel concluded that as possession of a pistol was not directly required for business or employment, it was not necessary. The Appeal Panel in Osborne held that the firearm must be necessary in the context of the core feature of the business rather than in the context of the way a person chooses to conduct business. (There Mr Osborne was a travelling firearms dealer who chose to conduct his business by travelling alone in remote locations. He argued that made it necessary for him to carry a pistol).
The Appeal Panel held that the Osborne decision could be distinguished as the features of Mr Allen's sheep grazier business were beyond his control. The core feature of Mr Allen's business was that he needed to control feral animals. He was not conducting his business in a particular manner which made it more or less necessary to use a silencer. As the Osborne decision could be distinguished, the Appeal Panel found that the Tribunal did not err in failing to interpret necessary as 'directly required' or 'essential'.
The Commissioner also argued that the Tribunal erred in failing to apply the reasoning in Osborne in that it considered whether the possession or use of a silencer was necessary for Mr Allen's specific business rather than sheep grazing generally. In dismissing this argument the Appeal Panel noted that Osborne distinguished between the manner in which a person conducts a business and the way other businesses of that kind are conducted. It did not preclude taking into account the particular circumstances of a business.
The decision in this case confirms that the word 'necessary' depends on the subjective context in which it is used.
In the media
New Judge for District Court of NSWNSW Attorney General Gabrielle Upton has announced the appointment of barrister Matthew Dicker SC to the bench of the District Court of NSW (01 July 2016).
New Judge for District Court of NSW
Technology boosts crackdown on contraband in NSWCorrectional officers are trialling body-worn video cameras to enable the quick and accurate collection of evidence and to record their interactions with inmates (30 June 2016).
Technology boosts crackdown on contraband
NSW Information Commissioner commitment towards improved public participationThe NSW Information Commissioner Elizabeth Tydd has today published a report, which progresses commitment to promote public participation and assist agencies in achieving success in their engagement with NSW citizens (27 June 2016).
Baird seizes financial control of NSW councilsThe Baird Government has moved to seize direct financial control of councils across New South Wales under sweeping new laws that hand ultimate power over local government spending to specially appointed "controllers", with oversight duties handed to the State Auditor General (23 June 2016).
Survey reveals highest level of community perception in 22 years that ICAC reduces corruptionCommunity perceptions that the NSW Independent Commission Against Corruption (ICAC) is effectively reducing corruption in the state are at the highest levels recorded in 22 years, according to the results of the Commission's latest Community Attitudes Survey, released today (23 June 2016).
http://www.icac.nsw.gov.au/media-centre/media-releases/article/5009
NSW Budget delivers faster fairer accessible justiceThe NSW Government will make justice faster, fairer and more accessible with $39 million over two years to tackle the District Court backlog in this year's Budget. There is also investment in a range of initiatives to help reduce the criminal case backlog such as targeted trial call-overs to bring parties together to resolve matters earlier (21 June 2016).
Budget delivers faster fairer accessible justice
Record investment in justice in NSW budgetThe Justice Cluster will spend a record $8.1 billion in 2016-17 delivering services and implementing key reforms to help reduce reoffending, ease pressure on courts, provide more beds for inmates and deliver high-tech policing. (21 June 2016).
Record investment in justice in NSW budget
NSW: State Parliament Inquiry into Crown LandThe NSW Upper House has commenced an inquiry into Crown land in NSW. The Upper House committee is currently accepting submissions on the management and use of Crown land in NSW and the closing date is Sunday 24 July 2016.
In practice and courts
HCA Bulletin 2016The HCA has published the High Court Bulletin [2016] HCAB 5 (20 June 2016).
New Rules - High Court Amendment (2016 Measures No.
1)
The High
Court Amendment (2016 Measures No. 1) Rules 2016 (Cth) amend
the High
Court Rules 2004 No. 304 (Cth). The objective of the amending
Rules is to incorporate new special leave procedures in Part 41
(Applications for leave or special leave to appeal) and bring Part
26 (Applications for removal pursuant to section 40 of the Judiciary Act
1903 No. 6 (Cth)) into line with the new processes governing
the filing and determination of applications for leave and special
leave to appeal to the High Court. The amending Rules will commence
on 1 July 2016.
The publication of the IPC Report: Towards a NSW Charter for Public Participation, released on 27 June 2016, which progresses my commitment to promote public participation and assist agencies in achieving success in their engagement with NSW citizens through a six-step process.
ICAC: Prosecution briefs with the DPP and outcomesBriefs with the DPP and outcomes of ICAC-related prosecutions.
Last updated 30 June 2016.
See
Prosecution briefs with the DPP and outcomes
The latest edition of the Commission's "Corruption
matters" newsletter is now available online (29 June
2016)
See the
Corruption matters newsletter - June 2016 edition.
NCAT's fees and charges schedule for the filing of applications, appeals and other services will change on 1 July 2016 Updated fees and charges from 1 July 2016.
NSW JUDCOM: Civil Trials Bench Book: UpdateCivil Trials Bench Book: Update 31 Jun 28, 2016
NSW: Practicing Certificate Exemptions - Transitional Arrangements The Department of Justice (DoJ) has advised that all corporate lawyers and some government lawyers are no longer exempt from the requirement to be admitted or to hold a practising certificate in order to engage in legal practice due to the commencement of the Legal Profession Uniform Law (NSW).
Published – articles, papers, reports
Justice Nettle: 'Technology and the Law'
(2016)
Delivered at the Bar Association of Queensland Annual Conference,
27 February 2016.
Justice Nettle, 'Technology and the Law' (2016)
Jeremy Leith: 'Case Note: Australian Communications
and Media Authority v Today FM (Sydney) Pty Ltd: Administrative
Body as "Prosecutor, Judge and Jury"?'
(2016) 38(2) Sydney Law Review 255
This case note examines Today FM's challenge to the statutory
authority of the Australian Communications and Media Authority to
make a determination, as a precondition to taking administrative
enforcement action, that the broadcaster had committed a criminal
offence in recording the telephone conversation.
Justice Margaret A McMurdo: 'The Latest Report Card
on Gender Equality at the Queensland Bar and Bench'
(2016)
Presented to the Queensland Women Judicial Officers and Barristers
function, Brisbane, 23 June 2016
Justice Margaret A McMurdo, 'The Latest Report Card on Gender
Equality at the Queensland Bar and Bench' (2016).
Chief Justice Holmes: 'Preserving the independence
of the judiciary' (2016)
Delivered at the University of Southern Queensland Public Lecture,
USQ, Toowoomba, 26 May 2016
Chief Justice Holmes, 'Preserving the independence of the
judiciary' (2016)
Justice Logan: 'The Relationship between Parliament,
the Judiciary and the Executive ('the Latimer House
principles')' (2016)
Delivered at the 27th Commonwealth Parliamentary Seminar,
Parliament House, Brisbane, 9 June 2016
Justice Logan, 'The Relationship between Parliament, the
Judiciary and the Executive ('the Latimer House
principles')' (2016).
Chief Justice French: 'Equality, Proportionality and
Dignity: The Guiding Principles for a Just Legal System'
(2016)
Speech delivered at the Law Council of Australia and Australian Bar
Association, Hobart, Tasmania, 29 April 2016.
Cases
Oei v The Australian Golf Club [2016] NSWSC
846
ADMINISTRATIVE LAW – Domestic tribunal – Disciplinary
hearing – Not a merits review – Rules of evidence
inapplicable – Meaning of "unbecoming"
–Whether irrelevant considerations introduced – Whether
redactions led to procedural unfairness – Extent of
tribunal's discretion – Meaning of "present"
evidence – Wednesbury unreasonableness.
https://www.caselaw.nsw.gov.au/decision/5769e9e5e4b058596cb9c94c
Learmont v Commissioner of Police [2016] NSWCA
137
ADMINISTRATIVE LAW – judicial review – application for
gratuity under Police Regulation (Superannuation) Act 1906 (NSW), s
12D – whether trial judge addressed the wrong question in
seeking to identify the pathological consequences of injury –
whether identification of "injury to which the claim
relates" a question of fact or question of law – whether
impermissible application by judge of own medical knowledge
amounting to denial of procedural fairness.
https://www.caselaw.nsw.gov.au/decision/5763633ae4b058596cb9c6f6
Commissioner of Police, NSW Police Force v Allen [2016]
NSWCATAP 148
ADMINISTRATIVE LAW – licensing –prohibited weapons -
appeal from decision to grant permit for sheep grazier to use
silencer when culling feral animals – whether applicant
demonstrated that silencer necessary in the conduct of his business
as a sheep grazier – meaning of word "necessary"
– no evidence rule – meaning of probative evidence
– procedural fairness.
https://www.caselaw.nsw.gov.au/decision/577308d6e4b058596cb9cd97
Legislation
NSWRegulations and other miscellaneous instruments
Bail Amendment (Detention Application) Regulation 2016 (2016-393) — published LW 1 July 2016.
Civil and Administrative Tribunal Amendment (Fees) Regulation 2016 (2016-394) — published LW 1 July 2016.
Civil Procedure Amendment (Fees) Regulation 2016 (2016-395) — published LW 1 July 2016.
Criminal Procedure Amendment (Fees) Regulation 2016 (2016-398) — published LW 1 July 2016.
Jury Amendment (Daily Attendance Allowance) Regulation 2016 (2016-406) — published LW 1 July 2016.
Legal Profession Uniform Law Application Amendment (Fees) Regulation 2016 (2016-407) — published LW 1 July 2016.
Ombudsman Regulation 2016 (2016-338) — published LW 24 June 2016.
Photo Card Amendment (Fees and Penalty Notice Offences) Regulation 2016 (2016-339) — published LW 24 June 2016.
Victims Rights and Support (Victims Support Levy) Amendment Notice 2016 (2016-349) — published LW 24 June 2016.
Bills introduced Government – 24 June 2016Adoption Amendment (Institute of Open Adoption Studies) Bill 2016.
Appropriation (Parliament) Bill 2016.
Fines Amendment (Electronic Penalty Notices) Bill 2016.
Local Government Amendment (Governance and Planning) Bill 2016.
Local Government and Elections Legislation Amendment (Integrity) Bill 2016.
Non-Government – 24 June 2016 Bills passed by both Houses of Parliament – 24 June 2016Appropriation (Parliament) Bill 2016.
Crimes (Domestic and Personal Violence) Amendment (Review) Bill 2016.
L ocal Government and Elections Legislation Amendment (Integrity) Bill 2016.
Bills assented to
Appropriation Act 2016 No 30 — Assented to 28 June 2016.
Appropriation (Parliament) Act 2016 No 31 — Assented to 28 June 2016.
Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 No 33 — Assented to 28 June 2016.
For the full text of Bills, and details on the passage of Bills, see Bills.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
