Fair and Reasonable Update: Court, Day 1By Nicole McKee, COLFO
- 5th May, 2020 May 5, 2020, 12:25 PM
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I’m now out of our first day of hearings and a “Zoom” meeting with our lawyers. Of course a result is impossible to predict, and I make this observation as a non-lawyer, but it appeared Justice Cooke really engaged on the arguments we made.
The Judge certainly made our QC earn his fee! The whole day was full of detailed legal questions and clarifications from the Judge as Jack Hodder QC presented our case. It wasn’t until 4:30pm that we finished our case and the Crown began its defence.
The Court spent most of the day discussing the issue of compensation and whether Stuart Nash had the ability to provide compensation for banned ammunition.
Our argument is largely that there is a common law right to compensation when you are deprived of your property rights - an important issue that goes well beyond the question of compensation for ammunition.
There was a detailed discussion on the case law for the principle - our case is that it does not matter that possession was criminalised (rather than in most of the cases, which are about Government confiscating property), compensation must still be made. If you are interested you can read our written submissions here.
“Our argument is largely that there is a common law right to compensation when you a deprived of your property rights - an important issue that goes well beyond the question of compensation for ammunition.”
The Judge was also looking at the intent of Parliament closely - what did Parliament intend to ban, how much decision-making power did MPs intended to give to the Minister, and whether Parliament considered the issue of compensation.
As Parliament is the ultimate decision-maker, what MPs were looking at when they gave the Police Minister the ability to prohibit certain types of ammunition is key.
This afternoon the Court looked at the detail of the types of ammunition that were banned - focusing on enhanced penetration and tracer. There is a lot of detail, including evidence from our expert witnesses, in our submissions. What is clear is that the Police Minister did not seek to make a decision that would make us any safer.
Once the Crown’s lawyers have finished presenting their oral arguments, our lawyers get a right of reply.
I’ll update you again tonight.
Thank you again for making this effort possible.
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