Case: Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation [1990] FCA 139 ; (1990) 96 ALR 153
Outcome: cited
Unreasonableness may arise from discrimination without justification, that is to say, a benefit or detriment distributed unequally amongst the class of persons who are the object of the power: Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation [1990] FCA 139 ; (1990) 96 ALR 153 at 167-8. 43 HK Systems argued that the decision unreasonably discriminated against it. There was evidence that approximately 244 Remington 7615 rifles were imported into Australia in deliveries in January (1), February (1), July (50), August (92), and September 2008 (100), 9 SMLE Enfields Bolt Action rifles were imported into Australia in deliveries in February (1), March (2), April (1), May (2), June (2), and September 2008 (1) and 42 SAKO TRG 21 rifles were imported into Australia in deliveries in April (1), May (6), July (32) and August 2008 (3). HK Systems said that each of these three models had a military style appearance. The Minister did not order the detention of any of them. Indeed, the detention of the R8 was the only time the power under s 77EA had been used in relation to the import of firearms, and only the second time the power had ever been used. The first detention order related to the import of kava into Australia due to its impact on indigenous communities. 44 There is a logical resistance to allowing actions which occurred after the decision in question to inform the earlier motivation for making the decision. One needs to infer that what happened later was intended at the time of the decision. Thus discrimination would be established if, in this case, when the Minister ordered the detention of the R8 he knew that other firearms of like appearance would be imported by other dealers later, and that he had determined then not to order detention of those firearms when they were imported later. 45 The inference is difficult to draw when there are explanations other than a desire to discriminate available to explain the decision. In the present case the minute from Mr Potter to the Minister which recommended that the Minister make the detention order contained the following: 18 Further notices will only be required if the importation of additional firearms occurs, or in the event of an attempt to import similar firearms with differing make and model details prior to the proposed regulatory amendment being enacted. It is likely that information regarding the detention will flow through to importers and prevent further shipments being sent to Australia. ... 20 In the event that the permission issuing authorities, the State/Territory Police Firearms Registries, advise Customs that applications have been received for further similar firearms, Customs will prepare a further notice to this effect for your signature. 46 Thus, on the evidence, it is open to conclude that when the Minister made his decision he believed that the detention order would discourage the import of firearms with a military style appearance, and, if not, Customs would ask him to make further detention orders. But there is more evidence to be considered. 47 In an affidavit sworn on 27 February 2008, George Doukas, the manager of HK Systems, complained that HK Systems had been singled out by the detention decision. He exhibited material relating to 10 types of firearms including the Remington 7615. He said these firearms were in the same category under the regulations as the R8 and had a similar appearance to the R8 and they were being imported into Australia, but the R8 was detained. 48 Mr Potter gave evidence before Weinberg J in an interlocutory application brought by HK Systems for leave to interrogate the respondents. The transcript was evidence in this hearing by agreement of the parties. Mr Potter gave evidence that the Trade and Policy Regulation Branch is responsible for overseeing customs administration of the regulations in relation to the importation of weapons. Mr Potter gave evidence that no one outside Customs, on the Minister's staff or anyone connected to the Minister requested that the minute be prepared.