Wednesday, August 5, 2009

Judgment of High Court on interim orders

Today a fax has arrived from the High Court with Justice Mackenzie's decision on interim orders. The print quality is poor so I will post the full version when I get a hardcopy in the mail.

There are 8 pages which go into some detail of the discussion but the most relevant in my view is this:

"Ultimately the question whether the previous interpretation, or the new interpretation, is to be preferred will be matter for the Court. Neither the previous interpretation nor the new interpretation has any particular legal status. In those circumstances, it would not be appropriate for the Court to make an interim order which would have the effect of preferring, on an interim basis and without hearing full argument, the previous interpretation over the new interpretation."

Other relevant snippets of interest:

"In considering what is necessary to preserve the position of the applicant, it is important to note that Police do not have, under the Act, the ability to make a binding classification of the weapons in question"

"That question must be determined, where necessary, by any Court which is determining some relevant issue. The Court will not be bound by the Police interpretation, but must itself apply the relevant definition to the firearm in question."

Justice Mackenzie has essentially found that because the Police "new interpretation" is merely an opinion of Police it is in effect inconsequential. He alluded to this point again in his discussion concerning the Courts ability to make any decision at all given that the Police could not exercise a statutory power to classify firearms. He said (there are some limited) "circumstances in which the Court may correct errors of law in non-binding advice from a public authority". Justice Mackenzie declined to make interim orders.

As I'm flat out with this Court stuff, I invite everyone to write to the Commissioner of Police and ask this:

  1. Is the commissioner willing to extend to you, the immunity from prosecution that has been extended to me... until the High Court has dealt with this judicial review?
  2. How are Police going to reimburse the public if they spend $60,000 on advertising an opinion which is ultimately found wanting?
  3. What contingency plan have Police developed to ensure:
    1. that there is a better uptake on registrations than the less than 50% achieved in 1992,
    2. that any remaining unregistered 'new' MSSAs do not end up in the hands of criminals, social misfits and psychopaths.

… We didn't get an interim order but look on the bright side… if the Police start advertising this 'opinion' nationally their only going to be irritating more and more shooters which will ultimately be good for our cause. And we have a statement in no uncertain terms that Police have no authority to reclassify firearms J

And to the lovely Erin who commented on my profile photo…. "I'm flattered; but no thanks."





Anonymous said...

so does this mean that the new Interpretation has no legal basis ?

Are we free to continue using our sporter thumbhole stocks ?

Richard said...

In answer to question 1 - YES
In answer to question 2 - The legal situation in regard to your thumbhole stock has not changed since 1st November 1992.

Analogy. Theres a speed restriction sign on your street that says 50KPH. The Police leave a notice in your letter box saying that they think people are going down your street to fast. Therefore because the purpose of the Land Transport Act is prevent speeding accidents, they are going to apply a "purposive interpretation" of the act and ticket anyone who exceeds 30KPH. You can politely raise your central index finger in a northward direction... or you can comply by driving at 30KPH. Your choice ....

Anonymous said...

But thats like enforcing laws that are different to the real laws. Isn't that what the Taliban are doing in Pakistan ?

Richard said...

I couldnt possibly comment

Grant said...

This outcome = confusion. Basically if impending police re-interpretation is to be treated as merely the inconsequential opinion it is and if the status quo is also described the same way then I can see firearm commerce is going to be a right mess.

Oh well, we were going to have a court case anyway regardless of whether or not an injunction was issued, and if the August 10 re-interpretation is to be discounted by the judge as not being worth the paper its written on then we, and businesses, should be able to do as we please.

In my opinion this outcome can be treated as an injunction anyway (which you've basically implied).

Anonymous said...

It seems quite possible that top-plod may target a dealer who is not subservient to their unlawful definitions and dictates and try to financially destroy the dealer with specious court actions. If said plod do this it I hope it would galvanize all shooters to forward funds of support to the besieged dealer.

Anonymous said...

I think said hypothetical besieged dealer would probably be rubbing his hands together... more from the prospect of being able to sue for damages than any particularily cold canterbury day ... ha ha ha.

Grant said...

If those particular string pullers in the Police had even a fragment of common decency or respect for tax payers and tax payers money they would not commence burning away our money on advertising before this matter is finalised. If they continue down this untenable path not only will they waste tax payer money in advertising they will waste money in having to re-advertise in the reverse when they are found wrong + pay out well deserved damages. This whole situation makes my blood boil.

Richard said...

I wouldnt take it too seriously. All their doing is antagonising and making 240,000 people more determined to fight them tooth and nail... if they want to advertise that... good luck to them.

Pistol Shooter said...

Id like to see that $60,0000 of public money spent donated to the NSA to re-imburse the legal fees.