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.