Australia: NSW Government Bulletin - 6 July 2016

Last Updated: 10 July 2016
Article by Kim Nguyen and Jarrad McCarthy
Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148

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 NSW

NSW 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 NSW

Correctional 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 participation

The 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).

http://www.ipc.nsw.gov.au/sites/default/files/file_manager/MR_Towards_NSW_Charter_for_Public_Participation.pdf

Baird seizes financial control of NSW councils

The 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).

http://www.governmentnews.com.au/2016/06/baird-seizes-financial-control-of-nsw-councils-under-new-laws/

Survey reveals highest level of community perception in 22 years that ICAC reduces corruption

Community 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 justice

The 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 budget

The 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 Land

The 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.

https://www.parliament.nsw.gov.au/committees/DBAssets/InquiryOther/Transcript/10057/Media%20Release%20-%20call%20for%20submissions%20-%2027%20June%202016.pdf

https://www.parliament.nsw.gov.au/committees/DBAssets/Inquiry/TOR/2404/Terms%20of%20reference%20-%20crown%20land%20-%20adopted%2023%20June%202016.pdf

In practice and courts

HCA Bulletin 2016

The 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.

NSW IPC: Towards a NSW Charter for Public Participation 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 outcomes

Briefs with the DPP and outcomes of ICAC-related prosecutions. Last updated 30 June 2016.
See Prosecution briefs with the DPP and outcomes

ICAC: Corruption matters newsletter - June 2016 edition

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.

NSW NCAT: Updated fees and charges from 1 July 2016

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: Update

Civil 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.

http://sydney.edu.au/law/slr/slr_38/slr38_2/SLRv38n2Leith.pdf?utm_source=MailingList&utm_medium=email&utm_campaign=20160627_QLU

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.

http://www.hcourt.gov.au/assets/publications/speeches/current-justices/bellj/bellj29apr2016.pdf?utm_source=MailingList&utm_medium=email&utm_campaign=20160620_QLU

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

NSW

Regulations 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 2016

Adoption Amendment (Institute of Open Adoption Studies) Bill 2016.

Appropriation (Parliament) Bill 2016.

Appropriation 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

Children and Young Persons (Care and Protection) Amendment (Protection from Serious Offenders) Bill 2016.

Bills passed by both Houses of Parliament – 24 June 2016

Appropriation (Parliament) Bill 2016.

Appropriation 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.

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Authors
Kim Nguyen
Jarrad McCarthy
 
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