NEW ZEALAND COUNCIL OF LICENSED FIREARMS OWNERS INCORPORATED v MINISTER OF POLICE [2020] NZHC 1456

NEW ZEALAND COUNCIL OF LICENSED FIREARMS OWNERS INCORPORATED v MINISTER OFPOLICE [2020] NZHC 1456 [25 June 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-676[2020] NZHC 1456UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016IN THE MATTER OF an application for judicial reviewBETWEEN NEW ZEALAND COUNCIL OFLICENSED FIREARMS OWNERSINCORPORATEDApplicantAND MINISTER OF POLICEFirst RespondentGOVERNOR-GENERALSecond RespondentHearing: 4 and 5 May 2020Appearances: J E Hodder QC and T Nelson for the ApplicantA Powell and C Tocher for the RespondentsJudgment: 25 June 2020JUDGMENT OF COOKE JTable of ContentsTHE CLAIMS [6]THE LEGISLATION [9]FIRST CLAIM: BREACH OF COMMON LAW RIGHTS TO PROPERTY [29]The common law right to property [31]The extent of the right [40]The present case [54]Was the right excluded? [64]Conclusion on first claim [71]SECOND CLAIM: JUDICIAL REVIEW OF ORDER IN COUNCIL PRESCRIBINGPROHIBITED AMMUNITION [73]Relevant evidence [76]Standard or intensity of judicial review [80]The challenge here [86]The other grounds of challenge [97]THIRD CLAIM: JUDICIAL REVIEW CHALLENGE TO NO COMPENSATIONRECOMMENDATION [108]Is there a reviewable decision? [110]Power to regulate [116]The grounds of challenge [121]CONCLUSION [128][1] On 15 March 2019 a gunman entered two mosques in Christchurch andengaged in a mass shooting. He was apprehended and subsequently charged with 51counts of murder, 40 counts of attempted murder, and one count of committing aterrorist act.1[2] The reaction to this event was one of national shock. There was widespreaddisbelief that an event of this kind could happen in New Zealand. The response of theGovernment, and the community at large, was immediate. There was a widespreadexpression of concern for, and solidarity with the Muslim communities ofNew Zealand. The day following the shooting the Prime Minister announced thatNew Zealand's firearms laws would need to change. Two days later the Cabinet madeseveral in principle decisions to amend the Arms Act 1983 (the Act). On 21 March2019 certain military style semi-automatic firearms were banned by Order in Councilas an interim measure.2 On 2 April 2019 the Arms (Prohibited Firearms, Magazinesand Parts) Amendment Bill was then introduced to the House of Representatives. TheBill was reported back from the Finance and Expenditure Committee six days later. Itreceived its second reading the following day, and the third reading the day after. Itwas passed almost unanimously. It received the Royal assent on 11 April 2019 (theAmendment Act). This was a significant legislative response enacted within a monthof the shooting.[3] The Amendment Act introduced a prohibition on semi-automatic and similarfirearms, together with associated parts. Offences were introduced for processing such1 At the time of this judgment he has entered guilty pleas to this offending, and awaits sentencing.2 Arms (Military Style Semi-Automatic Firearms) Order 2019.firearms and parts. It introduced an amnesty period, and a buy-back scheme for suchfirearms and parts under which those who owned them could hand them in and receivecompensation. At the same time the Amendment Act created a prohibition on certaintypes of ammunition, described as "prohibited ammunition" which was to be identifiedby an Order in Council subsequently made. Unlike the firearms and associated parts,the measures concerning ammunition did not involve a buy-back scheme, but didcontemplate an amnesty period.[4] These proceedings challenge aspects of the measures that have been introducedin relation to prohibited ammunition. It is alleged that they involve depriving thosewho lawfully owned property of that property without compensation in breach offundamental common law rights. There are also judicial review challenges to theOrder in Council that prescribes what prohibited ammunition is, and to the decisionnot to provide compensation to the owners of that ammunition.[5] As Mr Hodder QC emphasised in advancing the submissions for the applicant,the Court provides an important role in cases of this kind. The measures describedabove were adopted with extreme haste in the context of community outrage given themass murder of innocent New Zealanders. The applicant represents a minority groupadversely affected by these measures. The Court must ensure that the rights of themembers of the community that are part of this minority, and the rule of law, havebeen properly respected in the face of these circumstances.3THE CLAIMS[6] The applicant is a well-established incorporated society made up of 12organisations involved in the use, ownership and regulation of firearms. It has a Boardof 10 members. It advances three principal claims:(a) That the measures implemented by the Crown deprived the owners ofprohibited ammunition of their property without compensation inbreach of the common law right to such compensation. It seeks3 Reliance was placed on the powerful words of Lord Atkin in his dissent in Liversidge v Anderson[1942] AC 206 (HL) at 244–245.declarations, including declarations that such compensation now bepaid.(b) That the decision leading to the Order in Council defining "prohibitedammunition" was invalid on judicial review grounds. It seeksdeclarations that both the relevant decision and consequential Order inCouncil are invalid.(c) That the decision made by the Minister of Police not to recommend thatno compensation be paid in relation to prohibited ammunition wasinvalid on judicial review grounds. It seeks declarations that therecommendation was invalid, and that the Order in Council isconsequently invalid.[7] The claim is supported by affidavit evidence from:(a) Mr Michael Dowling, the Chair of the applicant who gives evidence ofits nature and role, and the limited consultation undertaken before thenew measures were introduced.(b) Ms Nicole McKee, the applicant's secretary, and experiencedcompetitive shooter who gives evidence of the prior civilian use ofcategories of prohibited ammunition, and the adverse financial impactarising from the measures.(c) Mr Rodney Woods, an experienced gunmaker and collector who givesexpert evidence on the difficulties with the definition of prohibitedammunition, the legitimate civilian uses and the capacity of thecategories of prohibited ammunition for doing harm.(d) Professor Michael Reade, a professor of military medicine and surgeryat the University of Queensland, Australia who gives expert evidenceon the capacity for types of prohibited ammunition to do harmcompared with other ammunition.[8] The evidence from the respondents is provided by:(a) The Honourable Stuart Nash, the Minister of Police (the Minister) whodescribes the implementation of the measures, and the reasons for them.(b) Mr Andrew Coster, now Commissioner of Police, who was involved onbehalf of the Police in providing recommendations and information forthe decision-making processes.(c) Ms Amy Pullen, a research engineer and recognised expert in firearmswith the New Zealand Defence Force who gives evidence on the inputinto the definition of prohibited ammunition, and expert evidence onthe topics addressed by the applicant's expert evidence.4THE LEGISLATION[9] The regulation of firearms in New Zealand has received ongoing attention overthe years. There have been three principal firearms Acts; the Arms Act 1920, the ArmsAct 1958, and the present Act enacted in 1983.[10] After the enactment of the Act concerns in relation to firearms controldeveloped due to criminal activity in New Zealand. In 1990 the then PoliceCommissioner sought to introduce a ban on the importation of military style semi-automatic weapons by administrative means. But this initiative was set aside by theHigh Court in Practical Shooting Institute (NZ) Inc v Commissioner of Police asinconsistent with what was contemplated by the Act.5[11] Following the Aramoana tragedy in the same year, when 13 people were shotby a gunman, further consideration was given to changing the law and amendments4 Some of the affidavit evidence was received by the Court following exercise of the Court's powerunder r 9.73(5) of the High Court Rules 2016 as amended by the High Court (COVID-19Preparedness) Amendment Rules 2020. In doing so I did not apply an exacting approach towhether the usual requirements for formalising affidavits would cause unacceptable delay orendanger the health and wellbeing of any person given the apparent purpose of the amended rule.5 Practical Shooting Institute (NZ) Inc v Commissioner of Police [1992] 1 NZLR 709 (HC). TheCourt held that the Commissioner's new policy unlawfully fettered the discretion contemplatedby the Act.were introduced by the Arms Amendment Act 1992. The amendments did not prohibitmilitary style semi-automatic weapons but tighter controls were introduced.6 Then in1996 the Minister of Police sought an independent review. This was conducted byretired High Court Judge Sir Thomas Thorp, whose findings were presented on 30June 1997.7 One of the matters considered by him was whether there should be acomplete ban on military style automatic firearms, and a buy-back of those weaponsof the kind as had been introduced in Australia. Sir Thomas concluded that thereshould be such a ban, and that there should also be a buy-back scheme.8 Thatrecommendation was not followed, however.[12] Approximately 10 years later the Law and Order Committee of Parliamentbegan an inquiry into issues relating to the illegal possession of firearms inNew Zealand. Its report was completed in April 2017.9 The focus of the inquiry wasa concern about the potential number of unlawfully held firearms in New Zealand,particularly by gangs. The Committee again considered the question of introducing abuy-back scheme for military style semi-automatic firearms and decided "on balanceit appears that the risks and costs of implementing a buy-back programme outweighthe identifiable benefits".10 Apart from a reference to the Aramoana tragedy there wasno reference in the report to the issue of mass shootings.[13] This background shows that mass shootings of a kind that had occurredoverseas were not judged to warrant a ban on semi-automatic firearms in New Zealandprior to the shocking events of 15 March 2019. In essence the Amendment Act madeit unlawful to possess a particular category of firearms and associated equipment, aswell as certain ammunition. Under the Act as it stood there was a power to declareweapons as restricted weapons by Order in Council under s 4. This statutory pathwaywas not used, however.11 Rather as a consequence of the amendments semi-automatic6 See Kiwi Party Inc v Attorney-General [2020] NZHC 1062 at [7]–[15].7 Thomas Thorp Review of Firearms Control in New Zealand: Report on an Independent Inquirycommissioned by the Minister of Police (GP Print, June 1997).8 Recommendation 4.1.9 Law and Order Committee Inquiry into Issues relating to the illegal possession of firearms in NewZealand (April 2017, 1.8A).10 At 21.11 Prior to the passage of the Amendment Act, on 21 March 2019 certain military style semi-automatics could not be possessed as a temporary measure under the Arms (Military Style Semi-Automatic Firearms) Order 2019.firearms and certain pump-action shotguns were prohibited by the legislation itself.They were defined in a new s 2A with further definitions of prohibited magazines andprohibited parts contained in ss 2B and 2C.[14] The Amendment Act also introduced a prohibition on certain ammunition.That ammunition was not identified by the Act itself. The section said:2D Meaning of prohibited ammunitionIn this Act, prohibited ammunition means any ammunition declaredby the Governor-General by Order in Council made under section 74Ato be prohibited ammunition for the purposes of this Act.[15] The new s 74A provided:1274A Order in Council relating to definitions of prohibited firearm andprohibited magazine, and declaring prohibited ammunitionThe Governor-General may, by Order in Council made on therecommendation of the Minister of Police,—(a) amend the description in section 2A of a semi-automaticfirearm (except a pistol) or pump-action shotgun that is aprohibited firearm:(b) amend the description in section 2B of a magazine that is aprohibited magazine:(c) declare any semi-automatic firearm (except a pistol) or pump-action shotgun of a stated name or description to be a prohibitedfirearm for the purposes of this Act:(d) declare any magazine of a stated name or description to be aprohibited magazine for the purposes of this Act:(e) declare any ammunition to be prohibited ammunition for thepurposes of this Act.[16] In this way the Act defined the prohibited firearms magazines and parts, albeitthat these definitions could later be amended by Order in Council. But the definitionof prohibited ammunition was to be given by Order in Council later promulgated. Theneed to subsequently identify, or amend such definitions may reflect the difficulty with12 Under s 74B the Order in Council made under these provisions was determined to be a confirmableinstrument under s 47B of the Legislation Act 2012. This did not give the Order in Councillegislative force, but simply prevented the Order lapsing if confirmed.dealing with technical matters of this kind within the very tight timeframescontemplated for the passage of the Amendment Act.[17] The Amendment Act introduced new offences. Under s 44A it is an offence tosell or supply a prohibited firearm or prohibited magazine, and under s 44B it is anoffence to sell or supply a prohibited part. Under ss 50A–50C offences were createdfor possessing prohibited firearms, magazines and parts. Other related offences werecreated. In relation to prohibited ammunition the following new offence wasintroduced:43AA Possessing, selling, or supplying prohibited ammunitionEvery person commits an offence and is liable on conviction toimprisonment for a term not exceeding 2 years who, withoutreasonable excuse,—(a) possesses prohibited ammunition; or(b) sells or supplies prohibited ammunition.[18] The legislation also recognised that there would need to be transitionalarrangements for bringing into effect the new regime. They had three aspects: thecreation of an amnesty period; the introduction of a buy-back scheme under which theCrown acquired prohibited items; and the introduction of a discretion in relation toprosecution.[19] The discretion in relation to prosecution was set out in the following terms:59B Voluntary delivery to Police of firearms, etc(1) If any firearm, airgun, restricted weapon, prohibited item, orprohibited ammunition is delivered to the Police by a person who isnot authorised to be in possession of it, it is affirmed that the Policehave the discretion not to prosecute where the offence is consideredto be one of possession only and there is no public interest inproceeding with the prosecution.(2) See also Schedule 1 (which contains amnesty provisions).[20] The amnesty and buy-back aspects were dealt with in the Act in introductoryterms only. Section 3A provided:3A Transitional, savings, and related provisionsThe transitional, savings, and related provisions set out in Schedule 1have effect according to their terms.[21] Schedule 1 then set out certain provisions in relation to "prohibited items",including the temporary amnesty under cl 6, and a regulation making powerconcerning compensation under cl 7. The amnesty period was defined to last from 21March 2019 until six months after the regulations were promulgated, or at a later dateprescribed by Order in Council.13 Clause 7 provided:7 Regulations establishing compensation for delivery of prohibiteditems to Police(1) The Governor-General may, by Order in Council made on therecommendation of the Minister of Police, make regulationsestablishing 1 or more schemes for the purpose of payingcompensation in respect of prohibited items that, during the amnestyperiod or any other specified period or periods, are delivered orotherwise surrendered to a member of the Police.(4) To avoid doubt, regulations made under subclause (1) need notinclude compensation for—(a) any economic loss; or(b) any consequential loss; or(c) any loss for business interruption; or(d) any loss attributable to intrinsic or sentimental value.[22] The fact that the details of the amnesty and compensation scheme were to beset by new regulations may again reflect the potential difficulty of dealing with themore technical issues in the condensed timeframe contemplated for passing the Act.[23] Significantly the Act defined "prohibited item" in the following way:prohibited item means a prohibited firearm, a prohibited magazine, aprohibited part, or any or all of those things, as the case requires.13 Clause 1 of Schedule 1.[24] This definition excluded prohibited ammunition from the scope of prohibiteditems. This meant that the amnesty and compensation provisions set out in theSchedule did not apply in relation to prohibited ammunition. The only transitionalprotection granted to those who possessed such ammunition under the Act was unders 59B — they could be the beneficiary of a decision by the police not to prosecute ifthe ammunition was surrendered to police.[25] The Arms (Prohibited Firearms, Magazines and Parts) AmendmentRegulations 2019 (the Regulations) were promulgated on 19 June 2019. Theyprovided details on the amnesty and compensation regime. Importantly theseregulations introduced an amnesty in relation to the possession of prohibitedammunition of the same kind introduced in the Act for prohibited items (r 28Z).[26] On the same day the Arms (Prohibited Ammunition) Order 2019 (the Order inCouncil) was promulgated providing the definition of prohibited ammunition ascontemplated by ss 2D and 74A(e) of the Act. It defined 10 categories of prohibitedammunition which were described in the Schedule to the Order. Two such categoriesare challenged in this proceeding by the applicant — Tracer Ammunition described inthe Schedule as "projectiles containing an element that enables the trajectory of theprojectiles to be observed", and Enhanced-Penetration Ammunition described as"projectiles that have a steel or tungsten carbide penetrator intended to achieve a betterpenetration".[27] As indicated, the Amendment Act introduced the kind of buy-back scheme forprohibited items that had previously been recommended in the 1997 Thorp Report, butnot recommended in the 2017 Law and Order Committee Report. By way ofcompleteness, however, it should be noted that the Act had pre-existing compensationprovisions that could apply in certain circumstances. These were not changed by theamendments and the new Regulations. Under s 13 any member of the policeauthorised by the Commissioner could seize "all or any firearms, ammunition, airguns,pistols, prohibited items, or restricted weapons" in the possession of a licensed dealer.There were no statutory prerequisites for that seizure. Under s 13(4) such seizedmaterial could be detained for such as period as the Commissioner thought fit or could"become the property of the Crown" free of any encumbrances as described. Unders 13(5) the person was entitled to compensation if the seized material became theproperty of the Crown.[28] Further under s 28 compensation was payable whenever there was a revocationor surrender of a firearms licence and a delivery of the firearms and associatedequipment to police. In addition under s 37 a person who surrendered a weapon thathad been defined as a restricted weapon by Order in Council under s 4 was entitled tocompensation under s 37(3) if they surrendered the weapon within one month and hadlawfully acquired the weapon in the first place. Under s 63 there is a right of appealto a District Court Judge in respect of any issue of compensation provided for underthe Act. Similar statutory provisions contemplating compensation can be found inboth the earlier statutory regimes — the Arms Act 1958, and the Arms Act 1920.FIRST CLAIM: BREACH OF COMMON LAW RIGHTS TO PROPERTY[29] The applicant seeks declarations that there has been a breach of the commonlaw right not to be deprived of property without compensation. It seeks declarationsthat the rights have been infringed, and effectively requiring the Crown to providecompensation.[30] In order to address the arguments advanced in relation to this claim threematters need to be addressed:(a) What is the nature and scope of the right in question?(b) Was this right engaged by the actions taken by the Crown here?(c) Did Parliament exclude that right?The common law right to property[31] The common law right relied on by the applicant is addressed in a number ofdecisions. The leading consideration of the principle in New Zealand is in the decisionof the Supreme Court in Waitakere City Council v Estate Homes Limited.14 TheSupreme Court described the principle in the following terms:15Subject to inconsistent legislation and compliance with the general law it isthe right of every person to use his assets as he pleases and to be compensatedif they are expropriated for public purposes.[32] The Supreme Court concluded that this right was not engaged as a consequenceof a condition of a resource consent that the applicant surrender land for the purposesof creating a road that would be vested in the Council.[33] The right has considerable pedigree. Its origins can be found in the writings ofGrotius, who referred to it as the right of "eminent domain".16 It is within the MagnaCarta in relation to interests in land.17 It is also reflected in the written constitutionsof other countries, including in the Fifth Amendment to the United States Constitution,and s 51(xxxi) of the Constitution of the Commonwealth of Australia. Article 1Protocol 1 of the European Convention on Human Rights also contains a version ofthe right. And it is also recognised as a common law principle in decisions of theCourts of the United Kingdom, such as the decision of the House of Lords in BurmahOil Ltd v Lord Advocate,18 and of Canada, such as the decision of the Supreme Courtof Canada in Manitoba Fisheries Ltd v R.19[34] The right can properly be described as a constitutional principle. The way inwhich such common law principles operate in New Zealand's constitution wasdescribed by the United Kingdom Supreme Court in R (Miller) v Prime Minister inrelation to their equivalent constitutional arrangements:20[39] Although the United Kingdom does not have a single documententitled "The Constitution", it nevertheless possesses a constitution,established over the course of our history by common law, statutes,conventions and practice. Since it has not been codified, it has developedpragmatically, and remains sufficiently flexible to be capable of further14 Waitakere City Council v Estate Homes Limited [2006] NZSC 112, [2007] 2 NZLR 149.15 At [43] quoting from the Court of Appeal judgment Estate Homes Ltd v Waitakere City Council[2006] NZLR 619 (CA) at [128].16 See Burmah Oil Company (Burma Trading) Ltd v Lord Advocate [1965] AC 75 (HL) at 108[Burmah Oil], citing Hugo Grotius De Jure Belli ac Pacis (Carneige ed, 1913) at 807.17 Magna Carta (1297) 25 Edw 1, cl 29; and Imperial Laws Application Act 1988, sch 1.18 Burmah Oil, above n 16.19 Manitoba Fisheries Ltd v R [1979] 1 SCR 101.20 R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373.development. Nevertheless, it includes numerous principles of law, which areenforceable by the courts in the same way as other legal principles. In givingthem effect, the courts have the responsibility of upholding the values andprinciples of our constitution and making them effective. It is their particularresponsibility to determine the legal limits of the powers conferred on eachbranch of government, and to decide whether any exercise of power hastransgressed those limits. The courts cannot shirk that responsibility merelyon the ground that the question raised is political in tone or context.[40] The legal principles of the constitution are not confined to statutoryrules, but include constitutional principles developed by the common law. Wehave already given two examples of such principles, namely that the law ofthe land cannot be altered except by or in accordance with an Act ofParliament, and that the Government cannot search private premises withoutlawful authority. Many more examples could be given. Such principles are notconfined to the protection of individual rights, but include principlesconcerning the conduct of public bodies and the relationships between them.For example, they include the principle that justice must be administered inpublic (Scott v Scott [1913] AC 417), and the principle of the separation ofpowers between the executive, Parliament and the courts: Exp Fire BrigadesUnion [1995] 2 AC 513, 567-568. In their application to the exercise ofgovernmental powers, constitutional principles do not apply only to powersconferred by statute, but also extend to prerogative powers. For example, theyinclude the principle that the executive cannot exercise prerogative powers soas to deprive people of their property without the payment of compensation:Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75.[35] This list of relevant principles and cases may have been a little different inNew Zealand precisely because we engage in our own flexible and pragmaticconstitutional development. For example, a New Zealand list would likely requiresome reference to the principles of the Treaty of Waitangi. But otherwise it seems tome that the passage accurately describes the operation of the New Zealandconstitution.[36] The reference to the property right principle as outlined in Burmah Oil in theconcluding words of this passage concerned the exercise of prerogative powers. Butit is equally applicable to the exercise of discretionary powers, such as those understatute or regulation. In that context there is a presumption of statutory interpretationthat Parliament must legislate clearly if it is to remove the right.21[37] Mr Powell for the respondents made reference in his written submissions to theobservations of Baragwanath J that this right was of a "lower echelon" compared withother rights recognised in the New Zealand Bill of Rights Act 1990 (NZBORA) and21 See Waitakere City Council v Estate Homes Ltd, above n 14, at [43] and [46].the common law.22 I respectfully do not agree that this can be treated as some lowerform of right. The right is not one of those set out in NZBORA. But that does notmean it does not exist, or that it has a lower status. Section 28 of NZBORA makes itclear that an existing right or freedom will not be held to be abrogated or restricted byreason only that it is not included within it. This reflects the fact that there are somefundamental rights that do not depend on legislative recognition, as the UnitedKingdom Supreme Court effectively said in Miller.23 Indeed it is strongly arguablethat there are some principles of the unwritten constitution that even Parliament couldnot override.24 For example it is questionable whether an Act which purported toabolish Parliament, or abolish the Courts would be regarded as lawful. New Zealand'sconstitutional system of checks and balances has at its apex the rule of law as well asthe sovereignty of Parliament.[38] But as McGechan J observed in Westco Lagan Ltd v Attorney-General the rightto property is not within the ambit of any such limits on any extreme exercises ofParliamentary power.25 This is recognised in some formulations of the right, whichrefer to it as a right to compensation only to the extent that Parliament has not clearlyabrogated it. Contrary to Mr Powell's written submissions the right accordingly fallswithin what is referred to as the "principle of legality", described by Lord Hoffmannin R v Secretary of State for the Home Department, ex-parte Simms.26 As Elias CJ hasindicated, this was a long-standing principle of interpretation before this particularlabel was attached to it.27 As she formulated it:[292] Encroachment on rights requires clear legislative authority. There isa common law presumption of interpretation that Parliament legislatesconsistently with fundamental rights, both at common law and, more recently,under the New Zealand Bill of Rights Act. 22 Mihos v Attorney-General [2008] NZAR 177 (HC) at [93].23 R (Miller) v Prime Minister, above n 20.24 See R (Jackson) v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 at [102] per Lord Steyn,[104] per Lord Hope, and [159] per Baroness Hale; Taylor v New Zealand Poultry Board [1984]1 NZLR 394 (CA) at 398; New Zealand Drivers' Association v New Zealand Road Carriers [1982]1 NZLR 374 (CA) at 390; Brader v Ministry of Transport [1981] 1 NZLR 73 (CA) at 78; and L vM [1979] 2 NZLR 519 (CA) at 527. See also Philip A Joseph Constitutional and AdministrativeLaw in New Zealand (4th ed, Brookers Ltd, Wellington, 2014) at [15.7.4].25 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC) at [91]. See also [39] and [95].26 R v Secretary of State for the Home Department, ex-parte Simms [2000] 2 AC 115 (HL) at 131.27 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR948 at [293], citing Diggory Bailey and Luke Norbury Bennion on Statutory Interpretation (7thed, LexisNexis, London, 2017) at 718–719.[39] In any event in his oral submissions Mr Powell accepted that there was arelevant principle concerning the right to property resulting in a common lawpresumption of interpretation. His main argument focused on the identification of thescope of that principle, which he contended was limited to the principle of eminentdomain.The extent of the right[40] The main contest between the parties on this issue concerns the scope of theright. In particular Mr Powell argued that the right was not engaged in the presentcircumstances as the measures involved a prohibition on the possession of particularitems of property, with an offence enacted for possessing that property. That did notinvolve the compulsory acquisition or confiscation of property, but rather the Stateexercising governmental functions to decide what property could be lawfullypossessed.[41] Identifying the true scope of the right, and its limits, is not straightforward.The authorities have used differing language to describe it. Mr Powell relied on thosethat appear to limit the principle to cases of compulsory acquisition. For exampleAttorney-General v DeKeyser's Royal Hotel Ltd involved the Crown taking possessionof a hotel as a military headquarters. 28 Here Lord Atkinson said that the principle wasthat the Crown must pay for property that it "takes from one of its subjects" or whichis "confiscation".29 Similar language was used by the Supreme Court in WaitakereCity Council where the Court held that the principle applied "only if there is actuallya taking".30 In that case, however, the true contest was whether the requirement totransfer the land for the road was a "forced acquisition", with the Court concludingthat the developer "was not required to transfer its land" as it retained the choicewhether to proceed with the development with that condition or not.3128 Attorney-General v DeKeyser's Royal Hotel Ltd [1920] AC 508 (HL).29 At 542.30 Waitakere City Council v Estate Homes Ltd, above n 14, at [46].31 At [51]–[53].[42] The jurisprudence from Australia in relation to the provisions of itsConstitution also supports Mr Powell's argument. In Mutual Pools and Staff Pty Ltdv the Commonwealth Deane and Gaudron JJ stated:32[Section] 51(xxxi) is directed to "acquisition" as distinct from deprivation.The extinguishment, modification or deprivation of rights in relation toproperty does not of itself constitute an acquisition of property. For there tobe an "acquisition of property", there must be an obtaining of at least someidentifiable benefit or advantage relating to the ownership or use of property.On the other hand, it is possible to envisage circumstances in which anextinguishment, modification or deprivation of the property rights of oneperson would involve an acquisition of property by another by reason of someidentifiable and measurable countervailing benefit or advantage accruing tothat other person as the result.[43] Those observations were nevertheless made in the context of the formulationof the right in the Australian Constitution, which directly uses the word "acquisition".When the right has been adopted in written instruments there are subtly differentformulations. No one instrument can be identified as the true version.[44] In advancing his argument Mr Hodder referred to the concept of "deprivation"rather than acquisition, and there is also support for that approach. For example inBurmah Oil the appellant's stocks of crude oil and oil products in what was then knownas Burma were destroyed by the Crown on the outbreak of war between the UnitedKingdom and Japan because of a fear that they would fall into enemy hands.33 TheHouse of Lords held that the principle applied. Furthermore in British Columbia vTener the Supreme Court of Canada applied the principle when the province of BritishColombia prohibited any new exploitation of underground minerals over which theapplicant had rights in order to preserve the natural features of a provincial park.34The Supreme Court accepted that the principle was concerned with deprivation andnot "injurious affection". But it rejected the argument that the measures imposed wereinjurious affection or regulation which did not amount to deprivation, and itdistinguished the situation from land zoning which it saw as regulatory.3532 Mutual Pools and Staff Pty Ltd v the Commonwealth [1994] HCA 9, (1994) 179 CLR 155 at 185(footnotes omitted). See also J T International SA v Commonwealth [2012] HCA 43, 291 ALR669 for a more recent analysis involving similar issues.33 Burmah Oil, above n 16.34 British Columbia v Tener [1985] 1 SCR 533.35 Per Wilson J at 549–550, and Estey J at 564–565.[45] Both sides advanced factors they contended were decisive. Mr Hodderproposed that the complete elimination of the property interest identified the relevantdividing line. But that does not appear to be so — in DeKeyser's Hotel, for example,the owner of the hotel was to get the hotel back after its period of use.36 Mr Powellargued that there had to be some transfer of benefit to the Crown before the principlewas engaged. But that can occur even in the case of prohibition — as the SupremeCourt held in Tener, depriving the owner of the ability to exploit the undergroundminerals added considerably to the public benefit associated with the park. And in thepresent case the very reason for prohibiting possession of the firearms and ammunitionis overtly for the wider public benefit.[46] So the authorities have used differing language and concepts to identify theprinciple. No one verbal formulation can be treated as the touchstone.37 NeverthelessI accept the principle is not limited to cases of confiscation, compulsory acquisition orsimilar transfers. At its heart the principle recognises a fundamental principle ofindividual liberty. It does not exist to prevent unjust enrichment by the Crown. So inthe borderline situations when the scope of the right is in issue the focus should be onthe impact on the person being deprived of property by the Crown.[47] More recent authority has elaborated on the situations where governmentalmeasures having adverse impacts on property interests do, and do not engage theprinciple. Considering these cases perhaps provides the most guidance. In R (BritishAmerican Tobacco UK Ltd) v Health Secretary, the Court of Appeal of England andWales rejected the argument that regulatory restrictions requiring the plain packagingfor tobacco products deprived the tobacco companies of the intellectual property rightseither under Article 1, Protocol 1 to the European Convention on Human Rights, orthe common law principle.38 The decision is instructive in identifying a series ofdecisions recording measures that did and did not engage the principle set out in the36 Attorney-General v DeKeyser's Royal Hotel Ltd, above n 28.37 I note that the authors of a proposal for a written constitution in New Zealand formulate the rightso that "deprivation by way of expropriation" requires compensation – Geoffrey Palmer andAndrew Butler Towards Democratic Renewal, Ideas for Constitutional Change in New Zealand(Victoria University Press, Wellington, 2018) at 302. See also 167-168.38 R (British American Tobacco UK Ltd) v Health Secretary [2016] EWCA Civ 1182, [2018] QB149.Convention.39 The Court explained that the European Court of Human Rights, and thedomestic courts regarded "one of the critical distinctions" as being between"deprivation on the one hand and control of use on the other".40[48] That distinction was applied by the European Court of Human Rights in IanEdgar (Liverpool) Ltd v United Kingdom.41 Here the Court held that the right in theEuropean Convention did not apply when a prohibition on handguns was introducedfollowing the Dunblane massacre in Scotland. This had deprived the applicant of itsbusiness as a wholesale distributor of firearms. This is clearly the most factuallycomparable of the authorities. The Court held:42 In the present case, the Court considers that to the extent that any loss ofbusiness suffered by the applicant results from the prohibition on handguns,this interference with the applicant company's possessions amounts to a"control of use" rather than a de facto "deprivation of possessions".As to that "control of use", the Court recalls that the aim of Article l ofProtocol No. l is to achieve a fair balance between the demands of the generalinterest of the community and the requirements of the individual'sfundamental rights, and that this concern to achieve a balance applies also tothe second paragraph of Article 1 of the Protocol. There must therefore be areasonable relationship of proportionality between the means employed andthe aim pursued The overriding aim of the 1997 Amendment Acts, as expressed by theGovernment in their observations to the Court, was to seek to ensure publicsafety. They submit, further, that the judgment made by the Parliament of theUnited Kingdom was that both of the 1997 Amendment Acts were requiredfor this purpose. The Court observes that the applicant company accepts thatthe prohibition on handguns enacted by the 1997 Amendment Acts is capablein principle of constituting a public interest within the meaning of the thirdsentence of Article 1 of Protocol No. 1. The Court concludes that the 1997Amendment Acts were enacted in furtherance of an important public interest.[49] That decision concerned the goodwill of the wholesale firearms business ratherthan the property interest in firearms themselves, and the Court noted that there had39 So in Pinnacle Meat Processors Co v United Kingdom (1998) 27 EHRR 217 a ban on the sale ofcertain meat product following the BSE crisis, and in R v Secretary of State for Health, Ex pEastside Cheese Co [1999] 3 CMLR 123 (CA) an order prohibiting dealing cheeses thought to beunsafe which destroyed two cheese producers businesses, were held not to engage the right. Butin NA v Turkey (2005) 45 EHRR 9 the cancellation of title and the demolition of a hotel, and inPapamichalopoulos v Greece (1993) 16 EHRR 440 the use of land owned by the appellant by theGreek government as a holiday resort for naval officers, even though title was not taken, were heldto engage the right.40 At [93]. See also [125]–[129].41 Ian Edgar (Liverpool) Ltd v United Kingdom [2000] 1 ECHR 465 (ECHR).42 At 476–477.been "no formal expropriation of any assets of the applicant company" or "de factoexpropriation".43 The decision also records there had been compensation to privateowners and dealers in relation to the prohibited handguns themselves.44 Moreover theparticular formulation of the principle in the Convention required this line of analysis.But the analysis is nevertheless significant as it identifies that the ultimate contest isbetween governmental measures and the protection of private property rights. Theverbal formulation of the principle referred to by the Supreme Court in Waitakere CityCouncil likewise distinguishes between "expropriation" and the impact of the "generallaw".45[50] It nevertheless remains difficult to identify a bright line test that distinguishesbetween what does, and does not engage the principle. Mr Hodder referred to acomprehensive review of the authorities by Professor Kevin Gray who has said:46The precise location of the threshold where regulation shades into confiscation(ie effects a "regulatory taking") is one of the most difficult questions ofmodern law.[51] Ultimately there is a continuum with governmental regulation and controlshaving adverse effects on property interests at one end (which do not engage theprinciple) and compulsory acquisition or confiscation of property on the other (whichdoes). The quest for a precise dividing line captured in a single verbal formulation isa fruitless one. I agree with the view of Viscount Simmons in Belfast Corporation vO D Cars Ltd who said:47My Lords, the distinction drawn between "regulating" and "taking" of"regulatory" and "confiscatory" will at once bring to mind the controversy towhich section 51 of the Australian Constitution has given rise But,having fully recognised the distinction that may exist between measuresthat are regulatory and measures that are confiscatory, and that the measurewhich is ex facie regulatory may in substance be confiscatory, I must add that the question is one of degree and the dividing line is difficult to draw, yet Ihave no doubt that [the measure in that case] falls well on the regulatory sideof it 43 At 476.44 At 469.45 Waitakere City Council v Estate Homes Ltd, above n 14. See [31] above.46 Kevin Gray "Can Environmental Regulation constitute a taking of property at common law?"(2007) 24 EPLJ 161 at 175.47 Belfast Corporation v O D Cars Ltd [1960] AC 490 (HL) at 519-520.[52] That decision concerned planning law limitations which are treated at thegovernmental end of the spectrum.[53] Whilst it is ultimately a question of degree, the distinctions drawn in the casesand the factual matters regarded as central remain relevant to identifying whether theprinciple applies in a particular case. But there is not one single point that is decisive.All relevant factors referred to by the authorities can be relevant.The present case[54] In the present case there are three closely related features that suggest that themeasures are regulatory, and do not engage the principle. In particular:(a) The ownership, possession and use of firearms and related equipmentis a heavily regulated activity.48 There are detailed rules that controlownership and use, with those rules changing with changingcircumstances, including developments with firearms, and evolvingsocial expectations. There is nothing unusual about categories offirearms and associated equipment being prohibited as part of thatregulatory scheme.(b) Here a decision has been made that the possession of this particular typeof property should be treated as an offence. That is a classic exampleof regulatory activity. I am unaware of any previous authority that hasfound that the principle is engaged when an offence is created topossess the property.49(c) This category of property is inherently dangerous. Firearms have beencreated for causing harm, or at least obviously can do so. The exerciseof controls over such a category of property might be said to be48 In Skycity Auckland Ltd v Gambling Commission [2007] NZCA 407, [2008] 2 NZLR 182 at [32]the Court of Appeal said that " in an area of business which has always been very closelyregulated there cannot be an expectation that the regulatory regime will not change in the future"when finding the principle was not engaged by changes to gambling laws.49 Note however in Ian Edgar (Liverpool) Ltd v United Kingdom, above n 41, at 469 the Courtrecorded that the 1997 legislation prohibiting possession of handguns also provided for acomplementary regime for the payment of compensation to private individuals and dealers.obviously regulatory, and not engage fundamental property ownershiprights.[55] There are, however, three significant countervailing considerations:(a) Firearms and related equipment are items of tangible personal property.The property is not intangible intellectual property created by businessoperations, such as goodwill. They are personal possessions rather thanproperty interests derived from such property.(b) The close regulatory regime previously identified the property asauthorised personal property, provided certain conditions werecomplied with. The removal of that categorisation for previouslyauthorised firearms and associated equipment has retrospective effect.Retrospective removal of a right to own particular items of personalproperty can be regarded as particularly unfair.(c) In order to give effect to such retrospective prohibition it has becomenecessary for the prohibited property to be surrendered to theauthorities. The Crown takes ownership and possession. That iseffectively a compulsory acquisition, or confiscation of that property.[56] It seems to me that, on balance, by themselves those considerations wouldlikely lead to the conclusion that the principle was duly engaged by the measures here.The Crown has a choice when seeking to prohibit previously authorised firearms. Itcan limit the measures to prohibiting new sales, but this will still leave the existingstock of those firearms in circulation. If the Crown wants to prohibit possession of theexisting stock it will have little choice but to acquire that stock – it would be difficultto prohibit possession without providing a means by which the holders can dispossessthemselves. That effectively leads to confiscation or compulsory acquisition. Forthese reasons the principle is engaged.[57] There is then a related consideration that in my view clinches the issue infavour of the applicant. New Zealand's firearms legislation, and the policyassessments of the design of that legislation, have over time contemplated thatcompensation should be given to those whose firearms and related equipment areretrospectively determined to be unlawful, or is otherwise to be handed in. There areprovisions in the present Act that duly require compensation to be paid to such persons.They are found in s 13 (which authorises the police to seize and take ownership of anysuch property), s 28 (when there is a surrender of a firearms license), and s 37 (thesurrender of a weapon that has been determined to be a restricted weapon). A carefulregime for the availability of that compensation is prescribed, including a right toappeal the question of compensation to the District Court (s 63).[58] This is true of the legislative predecessors of the Act. Both the 1958 Act, andthe 1920 Act provided for compensation being paid to the owners of firearms that wereto be delivered to the Crown.50 For example the Arms Act 1920 made it unlawful topossess an automatic pistol from a prescribed date, with provision made for deliveryto the police.51 The Governor-General was also empowered to declare additionalunlawful weapons, which also could be delivered to the police.52 The Minister forFinance was then authorised to pay compensation out of the consolidated fund "forthe value of all weapons in a serviceable condition, and for all ammunition or parts"(s 3(5)). Similar provisions were carried through into the 1958 Act, and then the 1983Act. The New Zealand Parliament has accordingly recognised the appropriateness ofproviding compensation whenever it has determined that firearms lawfully held by aperson were now to be surrendered to police, and has provided for compensation.[59] That is true with respect to the initiatives imposed by the Amendment Act afterthe mosque shootings. There is a buy-back scheme for the newly prohibited semi-automatic firearms and other firearms, together with associated equipment introducedin the new regime. That regime has not, however, been applied to prohibitedammunition. Whilst the buy-back scheme might be thought necessary to make thenew prohibition effective, it can also be seen as a matter of fairness given thatlegitimately held property was now to be prohibited.50 See Arms Act 1958, ss 5(3) and 12(3); and Arms Act 1920, ss 3 and 4 (as inserted by ArmsAmendment Act 1934).51 Arms Act 1920, s 3.52 Section 2, definition of "unlawful weapon".[60] This is also true of the various policy assessments that have been made inrelation to firearms laws. The Thorp Report recommended the prohibition of semi-automatic firearms, and when it came to implementing that policy Sir Thomas said:53Considering next the form of any ban, the view which prevailed in bothAustralia and the United Kingdom that justice requires that the banning ofproperty previously lawfully acquired should be accompanied by a buy-backto compensate owners for their loss, seems equally valid in New Zealand.[61] Then when the Law and Order Select Committee addressed the matter 10 yearslater, they also appeared to proceed on the basis that such a policy would necessarilyinvolve a buy-back scheme.54[62] I accept Mr Powell's point that it is possible that these legislative measures,and policy assessments, could have proceeded on a more generous basis than what thecommon law principle provides. But the common law principle is based on notionsof individual liberty, and fairness, and so are these assessments. When the commonlaw is developed, the courts seek to do so in a manner that is consistent withcommunity values, and it can look to statute law for evidence of those values.55 Herethere has been an enduring principle found in the firearms legislation dating back to1920 recognising that holders of firearms that need to be surrendered should becompensated, particularly if this was a consequence of a change in the regime. As SirThomas recognised, that has also been a feature internationally.56 Rather than thisreflecting Parliament going further than the common law principle, it seems to me tobe a reflection of community values and accordingly evidence of the content of thatprinciple.[63] For these reasons it seems to me that it is clear that the principle is engaged.The exclusion of prohibited ammunition from the scope of the compensation providedfor in the Amendment Act seems to be an anomaly. Indeed, one way of describing theapplicant's challenge is that there is an arbitrary exception to the decision that those53 Thomas Thorp Review of Firearms Control in New Zealand, above n 7, at 137.54 Law and Order Committee, above n 9, at 21.55 See South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and InvestigationsLtd [1992] 2 NZLR 282 (CA) at 298. See also Ross Carter (ed) Burrows and Carter Statute Lawin New Zealand (5th ed, LexisNexis, Wellington) at 555–562.56 This was also recorded by the European Court of Human Rights in relation to the United Kingdomin Ian Edgar (Liverpool) Ltd v United Kingdom, above n 41, at 469.being disposed should be compensated. I accept that there is no real basis to draw adistinction between prohibited firearms and prohibited ammunition in the applicationof the common law principle, and I accept that the principle is engaged.Was the right excluded?[64] The final issue is whether Parliament has clearly excluded the operation of theright. As I have already indicated, there is no doubt that the right is subject to the willof Parliament, and that the right manifests itself solely as a presumption ofinterpretation in relation to statutory measures. The Courts have again used differentlanguage when describing the clarity, or certainty, with which Parliament must expressthe exclusion of the right. Mr Hodder referred to a number of formulations whichdemonstrate the significance of the underlying right, and the need for Parliament toclearly exclude it. In particular he referred to the following:(a) The requirement for a "plain expressions of such a purpose" — BowenLJ in London and North Western Railway Co v Evans.57(b) That the "words of the statute clearly so demand" — Lord Atkinson inAttorney-General v DeKeyser's Royal Hotel Ltd.58(c) That the intention of Parliament must be "expressed in unequivocalterms" — Viscount Simonds in Belfast Corporation v O D Cars Ltd.59(d) That there must be "the presence of the most explicit words" — LordRadcliffe in Belfast Corporation v O D Cars Ltd.60[65] In Canterbury Regional Council v Independent Fisheries Ltd the Court ofAppeal was more recently dealing with the same requirement for Parliament to clearlyexclude a fundamental right.61 A decision of a Minister under statutory powers had57 London and North Western Railway Co v Evans [1893] 1 Ch 16 (CA) at 28.58 Attorney-General v DeKeyser's Royal Hotel Ltd, above n 28, at 542.59 Belfast Corporation v O D Cars Ltd, above n 47, at 518.60 At 523.61 Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR 57.the effect of removing the right of access to the Court.62 The Court of Appeal heldthat the decision accordingly did interfere with a fundamental common law right, andthe question was whether Parliament had excluded that right sufficiently clearly. Indoing so the Court relied on Lord Hoffman's words in R v Secretary of State for theHome Department that legislation would be interpreted consistently with fundamentalrights in the absence of express language "or necessary implication to the contrary".63The Court then adopted the approach to necessary implication set out by LordHobhouse in R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Taxwhich required the implication to follow from the express provisions as a matter ofexpress language and logic rather than any broader considerations.64 The Court ofAppeal concluded that Parliament had so excluded the right of access to the Court bynecessary implication.[66] It seems to me that this issue should not be approached in a formalistic way.The principle that underlies the question was fully expressed by Lord Hoffman in thefollowing way:65 the principle of legality means that Parliament must squarely confront whatit is doing and accept the political cost. Fundamental rights cannot beoverridden by general or ambiguous words. This is because there is too greata risk that the full implications of the unqualified meaning may have passedunnoticed in the democratic process. In the absence of express language ornecessary implication to the contrary, the courts therefore presume that eventhe most general words were intended to be subject to the basic rights of theindividual. In this way the courts of the United Kingdom, thoughacknowledging the sovereignty of Parliament, apply principles ofconstitutionality that little different from those which exist in countries wherethe power of the legislature is expressly limited by a constitutional document.[67] This suggests to me that the ultimate question is whether Parliament hasdirectly confronted and addressed the question of the abrogation of fundamental rightsin its enactment. Asking the question in that way ensures that it is addressed as amatter of substance rather than form. As in all situations when interpreting the62 That right arose because a party's right to pursue an appeal to the Environment Court in relationto Resource Management Act 1991 measures limiting its property development rights was beingremoved. So the case involved the right of access to the Court to challenge planning lawrestrictions on property rights.63 At [140], citing R v Secretary of State for the Home Department ex parte Simms, above n 26, at131.64 At [143], citing R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2002]UKHL 21, [2003] 1 AC 563 at 45.65 R v Secretary of State for the Home Department ex parte Simms, above n 26, at 131.intention of Parliament, in addition to the enactment itself the Court can consider widermaterial, such as Select Committee reports or the record of Parliamentary debates.[68] Approached in those terms it seems to me that there is no uncertainty in thepresent case. There is little in the wider material to show the truncation of fundamentalrights was directly addressed. The provisions introducing the regulation makingpower for schemes of compensation in relation to prohibited items but not prohibitedammunition were introduced by Supplementary Order Paper on the day of the thirdreading.66 But the terms of the enactment itself are clear. The provisions themselvesdemonstrate that Parliament has directly considered the question of compensation tobe paid by those affected by its new measures. It has set up a buy-back scheme. Theprovisions clearly identify those property owners who will, and those who will notreceive such compensation and on what basis. In particular, only those in thepossession of a "prohibited item" as defined would receive the compensation. It islimited to those having a prohibited firearm, magazine or part. Questions of economicloss, consequential loss, loss for business interruption, or loss of intrinsic orsentimental value were not included.67 It is clear that "prohibited ammunition" wasexpressly excluded from the compensation regime. That is apparent from the expresswords of the statute, not just in the definition of "prohibited item" but by virtue of thefact that there are provisions that address "prohibited ammunition" in a different way.The different treatment is not accidental, but is obviously the product of design, albeitspeedy design.[69] Another way of describing the approach consistently with the formulationexpressed by the Court of Appeal in Independent Fisheries, is that it is a necessaryimplication from the provisions providing compensation in relation to prohibitedfirearms and associated parts that compensation was not available in relation toprohibited ammunition.68 It follows as a matter of logic.66 Supplementary Order Paper (201) Arms (Prohibited Firearms, Magazines, and Parts) AmendmentBill 2019 (155-1).67 Schedule 1, Clause 7(4). Interestingly there is also no compensation for any ammunition handedin with the newly prohibited firearms and parts.68 Canterbury Regional Council v Independent Fisheries Ltd, above n 61.[70] For these reasons it seems to me clear that Parliament has expressly legislatedin a manner inconsistent with the fundamental right relied upon by the applicants.Conclusion on first claim[71] For these reasons I accept that the measures enacted by Parliament involved anabrogation of the right of the owners of prohibited ammunition not to be deprived oftheir property by the Crown without compensation, but conclude that Parliamentclearly decided to do so.[72] For these reasons the applicant's first claim for declarations is dismissed.SECOND CLAIM: JUDICIAL REVIEW OF ORDER IN COUNCILPRESCRIBING PROHIBITED AMMUNITION[73] The applicant's second claim is a judicial review challenge to the Order inCouncil defining prohibited ammunition.[74] A number of grounds of judicial review are set out in the statement of claim.Four grounds were focussed on in the written submissions:(a) That the Minister's recommendations leading to the Order in Councilfailed to take into account relevant matters.(b) The Minister acted for an improper purpose/asked the wrongquestions/had regard to irrelevant considerations in providing therecommendation.(c) The Minister's recommendation was irrational and/or arbitrary.(d) That the resulting Order in Council was invalid.[75] There are a number of overlapping arguments, and each of the above groundssubsumed other grounds. For example the grounds in (a) and (b) above included anargument that there had been an unlawful failure to engage in consultation.Relevant evidence[76] The evidence filed by the parties summarised at [7]–[8] above covered mattersrelevant to these grounds of challenge. For present purposes it may be sufficient torefer to two factual matters of significance.[77] First the evidence establishes that the two categories of military ammunitionin issue could be considered to be less harmful than standard ammunition. Standardammunition, such as ammunition used for hunting, is designed to expand on impactmaximising the chance of lethal damage to a target such as an animal. Militaryammunition is designed in accordance with the laws of war, and it does not so expandand therefore create superfluous injury or unnecessary suffering. For this reason it canbe seen as less harmful. An offender, including one engaged in a mass shooting, wouldnot likely use military ammunition. Law enforcement and anti-terrorism agencies alsouse conventional rather than military ammunition precisely because they wish toeffectively disable their target. Neither is there any connection between the firearmsnow prohibited under the Amendment Act and prohibited ammunition as theprohibited firearms use standard ammunition. The one complication is that EnhancedPenetration Ammunition may be seen to be more harmful than conventionalammunition on the basis that it could be used against police and other law enforcementagencies wearing protective armour, such as Kevlar.[78] The second feature of the evidence is that it can also be said that there is somelegitimate civilian use of the two categories of prohibited ammunition in question.The evidence referred to a list of possible uses, but perhaps the most significantevidence came from Ms McKee, who is an experienced competitive shooter. She haspurchased World War II .303 Tracer Ammunition as a cheaper source of high qualitybrass casings that can be re-used to make standard ammunition.69 This involvedsignificant cost saving for competitive shooting activities. These casings can be re-used up to seven times, and her family had nearly 5,000 rounds of this ammunitionwhen the measures were introduced. The other suggested civilian uses raised by theapplicant's evidence seemed more hypothetical in nature, or at least seem uncommon69 Tracer Ammunition involves the projectile having an element that burns so that it can be seen asit travels towards the target.(such as casual target shooting or pest control) and focussed on military ammunitionmore generally. I also note that I had no evidence of the quantities of prohibitedammunition in issue. It appears the Police did not know how much there would havebeen in the community at the time the measures were introduced, and there is noevidence before the Court now on the quantities of prohibited ammunition that werehanded in.[79] It is apparent from the Minister's affidavit, and the contemporaneous materials,that the Minister was not provided with an analysis of the harmfulness of the proposedcategories of prohibited ammunition compared to conventional ammunition. Ratherthe Minister proceeded on the basis that ammunition designed for military purposeswas "intended to hurt people and they had no place in civil society" and that he saw"no apparent need for military ammunition to be available" and that his general viewwas military ammunition should be prohibited "unless it also had a genuine civilianuse". It is also apparent that the Minister, on the basis of advice, concluded thatcategories of ammunition set out in the Order in Council had no legitimate civilianuse.Standard or intensity of judicial review[80] Before addressing the particular claims advanced by the applicant, it is alsonecessary to address the submissions advanced by the parties on the standard orintensity of judicial review that should be adopted.[81] The applicant's written submissions contended that the Court should adopt an"anxious scrutiny" or "hard look" approach. In his oral submissions Mr Hodderreferred to views expressed in De Smith's Judicial Review that public law was movingfrom a "culture of authority" to a "culture of justification" which required decisions tobe justified.70 He also referred to the recent decision of the Supreme Court of Canadain Canada (Minister of Citizenship and Immigration) v Vavilov,71 in which the Courtreconsidered the standard that should apply to judicial review of administrativedecisions. The Supreme Court did so because its earlier decisions had led to a need to70 Lord Woolf, Jeffrey Jowell, Catherine Donnelly and Ivan Hare De Smith's Judicial Review (8thed, Sweet & Maxwell, London, 2018) at [1-037].71 Canada (Minister of Citizenship and Immigration) v Vavilov [2019] SCC 65."simplify the standard of review labyrinth we currently find ourselves in".72 Afterhearing from the parties and 27 intervenors "representing the breadth of the Canadianadministrative law landscape"73 the Court concluded that the relevant standard ofreview was normally reasonableness. The Court's judgment supports Mr Hodder'sargument as the Court said that the application of reasonableness standard meant thata decision needed to be justified by its reasoning.74 Here Mr Hodder argued theMinister's decision to prohibit the categories of ammunition in issue had not beenproperly justified in light of the evidence referred to above.[82] In his submissions Mr Powell suggested that reference to the Canadian law onthe standard of judicial review created unnecessary complexity, as the Canadiansthemselves had recognised. He referred to the criticisms of Canadian administrativelaw, including by members of the judiciary writing extra judicially.75 Rather closer tohome Professor Joseph refers to "the rush to embrace the varying intensities of judicialreview [that has] excited a frenzy of terminologies, causing unnecessarycomplication" and that the "terminological overload can only result in distractingformalism and obfuscation of administrative law principles".76[83] Resisting such lines of analysis can be seen as central to the struggle forsimplicity in New Zealand administrative law. For my part I do not think analysis ofthe intensity or standard of review is of assistance. I addressed these issues inPatterson v District Court, Hutt Valley in the following way:77[14] At its heart judicial review involves the Court exercising asupervisory jurisdiction to ensure that powers are exercised in accordancewith law. Usually those powers will be contained in statute or delegatedlegislation, where the limits of the power are identified as a matter of statutoryinterpretation. But the legal limits of discretionary powers may also arise fromother sources, such as common law requirements. An example is the rules ofnatural justice, albeit in the present case such requirements are also to be foundin the statute. Most judicial review involves the Court assessing whether adecision is made in accordance with the express and implied requirements of72 At [9] referring to Wilson v Atomic Energy of Canada Ltd [2016] SCC 29, [2016] 1 SCR 770 at[19] per Abella J.73 At [6].74 At [86].75 David Stratas The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence andConsistency (2016) 42 QLJ 27; and Beverley McLachlin Administrative Law is Not for Sissies:Finding a Path Through the Thicket (2016) 29 CJLAP 127.76 Joseph Constitutional and Administrative Law in New Zealand, above n 24, at [22.8.4].77 Patterson v District Court, Hutt Valley [2020] NZHC 259.the empowering instrument, both in terms of the substantive decision and theprocedures followed to reach it. [15] The first and second respondents' written submissions referred to theview that judicial review concerns the procedure by which decisions arereached, rather than the substance of those decisions.78 Whilst I accept thatjudicial review can be described in this way, doing so can be misleading. Inensuring that a decision is made lawfully there can be substantive as well asprocedural requirements.79 The substantive requirements of the law can alsobe closely related to the ultimate outcome of a decision such that, as a matterof law, the decision-maker cannot make the decision, or was obliged to makea different decision.80 The extent of the decision-making freedom given byparticular powers ultimately depends on how the statute, or other instrumentbestows them. In some cases the legal limits can be quite restrictive, but inothers they are not.[16] Whilst some commentators, and some decisions refer to the intensityof judicial review, or variable standard review, these can also be misleadingconcepts.81 In every judicial review case the Court's role is to review whethera decision is made in accordance with law. In all cases it does so in the samedispassionate way. The intensity with which it performs that task does notchange. But the extent to which powers are substantively or procedurallycontrolled by legal limits varies considerably. It is the nature and extent of thelegal controls that vary between cases, not the intensity with which the Courtassesses compliance with them.[84] Restrictions on discretionary powers arise in respect of decisions that involvefundamental rights such as those in the NZBORA, and it is in those cases whereintensity of review analysis frequently arises. But reference to Wednesburyunreasonableness as the usual standard can also be a distraction. Wednesburyunreasonableness is not an overall standard of review. It is a residual ground thatpotentially applies when other grounds of review might not be clearly established, andwhere the Court infers that the decision-maker must have misunderstood their powers,or otherwise erroneously applied them, as a consequence of the unreasonableness ofthe decision.82 Success on Wednesbury unreasonableness grounds alone is rare. It is78 With reliance on Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132(HC) at [8]. See also Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 397.79 The main grounds of review, such as improper purpose, taking into account irrelevantconsiderations, failure to take into account relevant considerations and error of law all tend to turnon questions of interpretation.80 To take but one example, the Supreme Court's findings in Hawke's Bay Regional InvestmentCompany Ltd v Forest and Bird Protection Society of New Zealand Inc [2017] NZSC 106, [2017]1 NZLR 1041 meant that the Minister of Conservation was not lawfully able to reclassify certainconservation land, and then swap it to enable the Ruataniwha Dam Scheme to proceed. It did notproceed as a result.81 See Joseph Constitutional and Administrative Law in New Zealand, above n 24, at [22.8.4].82 See Palmer J's analysis in Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017]NZAR 508 at [22]–[32].only an alternative forensic technique. It will also usually be possible for the Court tobe able to identify an error without depending solely on drawing such inferences. Itis not the case that Wednesbury unreasonableness is a usual standard — it has neverbeen necessary to show that the decision is capricious or absurd in addition toestablishing a conventional ground of judicial review in order to succeed.[85] The complications involved in variable standard review, and in identifying thestandard or intensity to be applied in a particular case, can lead a Court into error. Itdistracts from the key questions which are directed to the nature and extent of thepower given to the decision-maker, and whether the decision-maker has acted inaccordance with that power together with any other requirements or limits imposed bylaw. Judicial review begins and ends with those questions notwithstanding theoccasional case where it can be said the unreasonableness of the decision itselfevidences material error.The challenge here[86] Here we are dealing with an Order in Council promulgated under a statutoryprovision (s 74A) in order to define categories of "prohibited ammunition" as requiredby s 2D. The Order in Council was promulgated as a consequence of the decisionmade on the recommendation of the Minister.[87] As with all judicial review the analysis begins with the proper interpretation ofthe empowering instrument. Whilst challenges to orders in council, or thepromulgation of regulations, can be seen as a discrete category of judicial review, itstill turns on the same fundamental questions — what is the proper interpretation ofthe power given by the statute, and was that power exercised lawfully. In CommercialFishers Whanau Inc v Attorney-General Dobson J described the position by referenceto regulation making powers, in a way equally applicable to other orders in council:83Judicial review of regulations[15] The law in relation to challenging the validity of regulations is wellsettled.84 The first step involves construction of the Act under which the83 Commercial Fishers Whanau Inc v Attorney-General [2019] NZHC 1204.84 Harness Racing New Zealand v Kotzikas [2005] NZAR 268 (CA) at [58]–[59], citing Carroll vAttorney-General [1933] NZLR 1461 (CA).regulation purports to be made. This requires analysis of the scope of theauthority conferred by Parliament in light of the purposes for which thosepowers were conferred.85 Where Parliament has given the Executive a broadpower to regulate, it is a power to carry out the purposes of the empoweringlegislation and the Executive's discretion is constrained by those purposes.86[16] The second step is to determine the meaning of the regulations, andthe third step is to decide whether the regulations comply with the empoweringAct.[88] The requirement that the delegated legislation be consistent with the purposesof the Act is frequently the focus of such challenges. But this is not the only basisupon which such delegated legislation can be found to be unlawful. The ultimatequestion remains whether the statutory power of decision has been lawfully exercised.[89] In the present case the power to define prohibited ammunition by the Order inCouncil is not controlled by express legislative requirements. But it is indirectlycontrolled by legal restraints. It is essentially a power to define what ammunition isto be covered by the new statutory provisions. It is not an open ended power. Thedefinition provided must be consistent with the legislative purposes in the mannersummarised in Commercial Fishers Whanau Inc. The Amendment Act onlyprohibited particular categories of firearms and associated equipment, and it followsthat the definition of prohibited ammunition should also be provided with equivalentparticularity. Moreover given the abrogation of the right to be compensated for theeffective confiscation of this ammunition, the decision on the definition would needto be rational and not arbitrary. These requirements are close, or perhaps evenequivalent to the formulation advanced by Mr Hodder — that the exercise of the powermust be justified. These are the legal limits on an apparently open ended power arisingas a matter of interpretation given the significance of the common law principle.Compliance with them should be apparent from the reasons for the decision asrevealed in the contemporaneous materials, and any affidavits from the decisionmakers87 — here the Minister on behalf of the deciding Ministers, and theCommissioner of Police on behalf of those providing the advice.85 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [50].86 Edwards v Onehunga High School Board [1974] 2 NZLR 238 (CA) at 242, citing McEldowney vForde [1971] AC 632, [1969] 2 All ER 1039 at 1063.87 See New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988]1 NZLR 544 (CA) at 553–554, 561–562, 567–568; Canterbury Regional Council v IndependentFisheries Ltd, above n 61, at [91].[90] In advancing his oral submissions Mr Hodder focussed on whether theidentification of the disputed categories of prohibited ammunition in the Order inCouncil fulfilled the purposes of the Act. He argued that the identification was not inline with Act's purpose because the disputed categories of prohibited ammunition werenot more harmful than normal ammunition, there had been no analysis of that question,there were legitimate civilian uses of it, and the definition was imprecise and not ableto be applied by ordinary users notwithstanding the criminalising effect of themeasure. In developing that submission he argued that the Minister had failed to askhimself whether the challenged categories enhanced public safety by reducing risk,and that the evidence demonstrated that these categories were not unsafe or more riskythan conventional ammunition.[91] Consideration of this argument requires an assessment of the scheme andpurpose of the Act. The Act's long title is:An Act to consolidate and amend the law relating to firearms and to promoteboth the safe use and the control of firearms and other weapons.[92] Long titles are only a summary, and are not necessarily a comprehensivestatement of the purposes of the particular legislation. But the key difficulty withMr Hodder's argument is shown by the long title. Whilst the promotion of safety isclearly a purpose of the Act, the Act is not confined to the imposition of measures thatare individually demonstrated to increase that safety. It is also an Act that imposes anoverall regime for "the control of firearms and other weapons". That is unsurprisingas firearms are inherently dangerous, particularly when they fall into the wrong hands.The Act overall involves a series of measures to closely control the availability anduse of firearms. The Amendment Act that introduced the power to define prohibitedammunition can also be seen to involve a general tightening of controls.[93] Whilst the safety of the public is an overall objective of this regime, it is notcorrect to say that measures can only be imposed under the Act once each measure hasbeen demonstrated by some evidential foundation to so improve safety. It is equallyconsistent with the purposes of the Act to achieve safety in a broader or more indirectsense. A precautionary approach is plainly open. The Minister did not conduct arelative safety analysis between the categories of ammunition that were to beprohibited, and conventional ammunition. But he did not need to do so in order tofulfil the purposes of the Act. His approach was at a higher level, and involved theapplication of a policy view. As he said in his affidavit:My principle concern following the events of 15 March 2019 was prohibitingaccess to semi-automatic weapons and the parts that could be used to convertfirearms to that use. In my view, and the Government's view, these wereprimarily designed to be military weapons, rather than weapons primarilydesigned for sporting purposes or civilian use. At the same time, I formed theview that military ammunition should in principle also be prohibited.Following the reform of the Arms Act the use and possession of firearms wasconfined to those appropriate for genuine civilian uses; recreational andcommercial. I saw no apparent need for military ammunition to be availablefor those firearms.[94] He also recorded that the Police had advised him soon after he had taken officein October 2017 that "there was too much ammunition coming into the country andmuch of it was army surplus ammunition coming in from overseas". This is apermissible approach to the changes that he wished to make to the overall regime.[95] As Mr Powell submitted, a very similar argument was advanced and rejectedby the Court of Appeal in R v Foox.88 The appellant had been convicted of purchasingtwo air-powered automatic weapons in breach of an Order in Council made under s 4of the Act. He argued that the Order in Council was invalid because the weapons inquestion were not sufficiently harmful or potentially harmful to qualify for a restrictionpursuant to s 4. The Court held:[17] The objective of the Act, as indicated by the Long Title, is topromote both the safe use and the control of firearms and other weapons. Tothat end, the Governor-General may by Order in Council declare anyparticular weapons to be restricted weapons. Any such Order in Council hasthe force of a regulation (subs (3) of s 4). For the Court to then qualify whatweapons can properly be declared restricted weapons on the basis of theirpotential to cause harm would be contrary to the scheme of the Act. It cannotbe the function of this Court to determine the harmfulness – or harmlessness– of weapons for the purpose of the Act. Nor is it equipped to do so. Thatquestion is one which must be left to the proper and expert authorities.[96] The same reasoning applies to the promulgation of the Order in Council unders 74A to provide the definition contemplated by s 2D. For that reason I rejectMr Hodder's principal argument.88 R v Foox [2000] 1 NZLR 641 (CA).The other grounds of challenge[97] For similar reasons the other formulations of the argument advanced by theapplicant also do not succeed. I address them in light of the analysis undertaken in[89] above.[98] It is argued that the Minister failed to consider a mandatory relevantconsideration concerning the relative safety of the proposed prohibited ammunition.89But as I have already found it was not mandatory for the Minister to conduct a relativeharm analysis comparing types of ammunition before the definition could belegitimate. The Minister was entitled to proceed at a more general level.[99] The applicant further contends that there was a failure to consider civilian usesof the prohibited ammunition, and the decision made was arbitrary. The PoliceCommissioner explains in his affidavit that following the Minister's view outlined in[93] above consideration was given to what was to be considered to be "militaryammunition". He explains that early in the process legitimate civilian uses of someammunition potentially in that category were excluded, particularly "full metal jacket"ammunition. That led to the more specific definition ultimately adopted in the Orderin Council. This shows that legitimate civilian use was the subject of reasonablycareful consideration. Whilst the applicant contends that some of the prohibitedcategories still have legitimate civilian uses, those generally involve adapting themilitary ammunition for that use (for example by re-using casings) or using it forpurposes other than for which it was designed (for example using tracer ammunitionfor starting fires in remote locations). I do not accept that the definition ultimatelyadopted involved a failure to address civilian uses, or that it was irrational, arbitrary,or unjustified.[100] The applicant also argued that the prescribed definitions were unclear, and thatordinary firearms users would not be able to tell whether ammunition in theirpossession was prohibited ammunition or not. This was said to be inconsistent withthe need for certainty in the criminal law. As the United Kingdom Supreme Court said89 Adopting the distinction between mandatory and permissible considerations outlined inCREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA).in R v Copeland there is a "general requirement that the criminal law should be clearand give fair notice to an individual of the boundaries of what he may do withoutattracting criminal liability."90[101] I accept that the evidence demonstrates that there are uncertainties. But theevidence also establishes that would be the case even if the alternative means ofdefining prohibited ammunition suggested by the applicant's evidence — whichfocuses more on the various elements of ammunition — were used. This is a technicalarea, and the difficulties with definition do not mean that the legislation can onlydefine ammunition in one specific way. It also seems to me that the principle referredto in Copeland should be addressed as a matter of substance, and realistically. Thereare protections built into the legislation that address any concerns in this respect. Theoffence of possessing, selling or supplying prohibited ammunition under s 43AA isonly committed if the acts are done "without reasonable excuse". An amnesty periodwas established for handing in the ammunition under r 28Z of the Regulations. Unders 59B Parliament has also "affirmed that the Police have the discretion not to prosecutewhere the offence is considered to be one of possession only and there is no publicinterest in proceeding with the prosecution". These measures protect individuals fromany unjustified reach of the criminal law.[102] For similar reasons I reject the applicant's further argument that the measureswere unlawful for a failure to engage in consultation. I accept that there has been apractice of engaging in consultation with key stakeholders, including the FirearmsCommunity Advisory Forum. I also accept that the haste with which the measureswere implemented here involved more confined consultation than might otherwisehave taken place. The consultation here still remained significant, however. Itinvolved obtaining the views of ballistics experts at Devonport Naval Base, andtelephone consultation with other parties, including the chair of the applicant.[103] An obligation to consult can arise as a consequence of past practice.91 But asthe Court of Appeal said in Lab Tests Auckland Ltd v Auckland District Health Board90 R v Copeland [2020] UKSC 8, [2020] 2 WLR 681 at [28].91 New Zealand Association of Migration and Investments Inc v Attorney-General [2006] NZAR 45(HC)."there is a distinction between consultation undertaken as a matter of good practiceand consultation undertaken in accordance with an obligation to undertake it,enforceable through judicial review".92 Here such consultation has been traditionallyengaged in for sound policy reasons, and as a matter of good practice. Suchconsultation has largely been directed to the design of legislative changes rather thanthe exercise of reviewable powers, however. It does not lead to a legal obligation toengage in such consultation before a measure imposed by, or under the legislation, canbe lawfully introduced.93 There is none prescribed in the legislation itself, and the pastpractice does not give rise to an implicit obligation to do so enforceable as a matter oflaw.[104] As I have previously indicated, judicial review turns on the properunderstanding of the impowering instrument, and any other legal requirements.Perhaps the strongest point that can be advanced by the applicant in this case is thatthe measures concerning prohibited ammunition are different from those concerningprohibited firearms and associated equipment. The applicant can say it makes littlesense to prohibit the firearms and provide compensation, whilst at the same timeprohibit ammunition without providing compensation, particularly when theprohibited ammunition is not the kind of ammunition used in criminal offending suchas the mosque shooting, and has no association with it.94 The different treatment ofprohibited ammunition can be seen as arbitrary. Applying the Supreme Court ofCanada's approach in Vavilov there is nothing much in the materials that properlyjustifies that different treatment.95[105] But the Court is only concerned with whether the decisions have been madelawfully. The decision not to provide compensation has been made by Parliament.The decision to prohibit certain categories of ammunition even though they have noassociation with the mosque shooting, or otherwise demonstrated to be used in this92 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776at [314], citing R v Devon County Council, ex p Baker [1995] 1 All ER 73 (CA) at 85 per DillonLJ.93 See New Zealand Association for Migration and Investments Inc, above n 91, at [190]–[192].94 I note, however, that one paragraph of the Police advice to the Minister dated 3 May records thatthe Christchurch gunman sought pre-approval from police for online sales of military styleammunition from multiple suppliers. This was not stated to be ammunition in the prohibitedcategories, however.95 Canada (Minister of Citizenship and Immigration) v Vavilov, above n 71.kind of criminal offending or the cause of harm to the public, does not mean it isoutside the purposes of the Act or the empowering clause. It was open for the Ministerto recommend to the Governor-General an Order in Council that prohibited particularmilitary ammunition as part of a general desire to tighten firearms related controls inNew Zealand. That was consistent with the purposes of the Act.[106] It is always necessary for arguments of this kind to be based on the particulardecision, and the particular power in question. Here the power is to promulgate anOrder in Council providing a definition of prohibited ammunition. The criticisms justreferred to do not demonstrate that this power was exercised unlawfully. The materialsbefore the Court show that proper consideration was given to what categories ofmilitary ammunition would, and would not be so prohibited.[107] I am satisfied that none of the grounds advanced by the applicant demonstratethat this power was unlawfully exercised. The second claim is accordingly dismissed.THIRD CLAIM: JUDICIAL REVIEW CHALLENGE TO NOCOMPENSATION RECOMMENDATION[108] The applicant's third claim is a challenge to the Minister's recommendationnot to provide compensation to the owners of prohibited ammunition.[109] Again the statement of claim and the applicant's written submissions advancea number of grounds of review in support of this claim, including: failure to take intoaccount relevant considerations; acting for an improper purpose; asking the wrongquestions; having regard to irrelevant considerations; and acting irrationally orarbitrarily. But in advancing his oral submissions Mr Hodder focused on twoallegations:(a) That the Minister proceeded on the basis that providing compensationfor prohibited ammunition would require legislative amendment, andthat this was wrong as it could have been implemented by thepromulgation of regulations under the Act.(b) That the Minister proceeded on the basis that there was no legalobligation to provide compensation for property that was beingprohibited, and that this was wrong in law.Is there a reviewable decision?[110] There is an initial difficulty with the applicant's challenges to the alleged nocompensation recommendation. The relevant recommendation does not appear tohave been made by the Minister in connection with any statutory power of decision.Rather it is a recommendation made by him in the course of the Cabinet deciding thecontent of the proposed legislation that would be placed before Parliament. MoreoverParliament effectively agreed with that recommendation by its enactment. Given thatthere appears to be no statutory power of decision capable of review to which thealleged recommendation related.[111] In advancing the claim the applicant relied on the Minister's June 2019 paperto the Cabinet Legislation Committee seeking Cabinet's approval to the then proposedRegulations and the Order in Council. The applicant contends that this paper alsocontained a recommendation not to provide compensation for prohibited ammunition.It refers to one paragraph of the paper which stated:20 The regulations do not provide for any compensation for prohibitedammunition, exemptions for legitimate use have been provided for in theregulations and there is considered to be no other legitimate civilianpurposes for these types of ammunition. Police understands that most ofthis ammunition has been obtained cheaply from international armysurplus disposal, with importers generally meeting a freight cost only,anyone importing this type of ammunition would also be aware of thelimited legitimate demand for this ammunition.[112] This paper clearly provided advice for the purposes for the statutory power ofdecision exercised for both the promulgation of the Regulations, and the promulgationof the Order in Council. The Regulations did not provide compensation for prohibitedammunition. But that was because the empowering provision, cl 7 of Schedule 1 ofthe Act, only permitted the promulgation of regulations establishing a scheme ofcompensation for "prohibited items" which was defined to exclude "prohibitedammunition".96 So this was not the decision that excluded compensation forprohibited ammunition, and neither was the Minister making a recommendationleading to that decision in this paper.[113] The relevant decision had been made earlier in the legislative design process.In the Minister's earlier March 2019 memorandum to the Cabinet in relation to theproposed reforms it is recorded that the Cabinet had earlier formed a group comprisingthe Prime Minister, the Deputy Prime Minister and the Ministers of Finance, Police,Justice and Defence to "make decisions on the development of a buy-back initiative".At that stage the paper records officials' advice that "no legislation is required for thebuy-back scheme" but that if that position changed the group of Ministers would beempowered to make the decisions as to what would be included in the Bill. In a laterparagraph of this paper the Minister advised that he did "not propose to includeammunition in the buy-back scheme". The Cabinet made decisions on this paper atits meeting on 25 March.[114] It is apparent that there must have been a change of view, and that a decisionwas made to address the buy-back scheme by legislative measures. Further documentsprovided at the Court's request following the hearing show that initially only the newlyprohibited firearms would be covered by the compensation schemes, but that adecision was then made to extend this to include associated equipment (but notprohibited ammunition). The provisions were introduced late in the piece bySupplementary Order Paper.97 As enacted the legislation took the form of a clauseempowering regulations to be promulgated to establish "one or more schemes for thepurposes of paying compensation in respect of prohibited items" (cl 7(1), Schedule 1of the Act). It is also clear that any decisions that were so made by the Ministers weredecisions with respect to what would be included in the Bill to be put before the Houseof Representatives. Such decisions are not reviewable.98[115] Furthermore the decisions as to the scope and extent of the compensation to bepaid were decisions ultimately made by Parliament. The Act as passed did not include96 Arms Act 1983, s 2, definition of "prohibited item".97 Above n 66.98 See, for example, Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1NZLR 116 at [62].a scheme of compensation for "prohibited ammunition" but only for "prohibiteditems", and the scope of the compensation for "prohibited items" did not includecertain categories of compensation outlined in cl 7(4) of Schedule 1. The applicant'schallenge is substantively an impermissible challenge to an enactment.Power to regulate[116] Mr Hodder sought to address the above issue by contending that it was open tothe Governor-General on the advice of the Ministers to promulgate further regulationsproviding for compensation for prohibited ammunition. He argued that the Minister'srecommendation in the June 2019 paper on the content of the regulations to bepromulgated was a reviewable decision, as it involved a decision not to promulgateregulations providing for this compensation.[117] Mr Hodder relied on two regulation making powers in advancing thisargument. First he pointed out that under the new s 74(1)(ra) regulations could bepromulgated for the orderly implementation of orders in council made under s 74A,and for "any other transitional or savings matters". Secondly he pointed out that underthe new s 74C(1)(a) regulations could be promulgated providing for additionaltransitional and saving provisions to those set out in Schedule 1. He argued that eitherpower was sufficiently broad to deal with the question of compensation for prohibitedammunition surrendered during the transitional period.[118] I do not accept these arguments. The difficulty is that Parliament has itselfaddressed the question of the scope of compensation scheme, and enacted a specificregulation making power in cl 7 of Schedule 1. Clause 7 only provides for schemesof compensation for prohibited items as defined, and provides that the scheme neednot provide compensation for the matters set out in cl 7(4). To utilise the less specificregulation making powers relating to the transitional period to introduce compensationregulations inconsistent with the regulations contemplated by cl 7 seems to me to becontrary to Parliament's intent.[119] I accept that the point is not beyond argument, and it can be said that theseregulating making powers could be utilised to add to, or expand upon the transitionalprovisions. A related example of this is the amnesty period. The Amendment Act asenacted by Parliament did not include an amnesty period for prohibited ammunitionunder cl 5 of Schedule 1. Such an amnesty was introduced for prohibited ammunitionunder r 28Z of the Regulations. The applicant can say that this involves the sametechnique to expand upon what Parliament had decided. But it is difficult to seeregulations providing compensation for prohibited ammunition as complementary,rather than inconsistent with Parliament's intent.[120] But even if I am wrong on this point, and regulations could have beenpromulgated creating a compensation regime for prohibited ammunition, I do notaccept that the Minister's June 2019 paper involved a recommendation not topromulgate such regulations. As a matter of evidence the recommendations andconsequential decisions on what would and would not be compensated for had alreadybeen made by the group of Ministers when deciding what would be included in theBill. A failure to exercise a statutory power of decision can be a reviewable decision.99But in my view this cannot extend to a decision that neither addressed by a decision-maker, sought by an affected person, or otherwise clearly engaged. Here it isunrealistic to say a decision was made not to promulgate regulations providingcompensation or prohibited ammunition as a consequence of the Junerecommendations.The grounds of challenge[121] The above conclusions mean that the applicant's third claim should bedismissed. It may be appropriate to nevertheless briefly address the two keyarguments advanced by Mr Hodder.[122] The first is that the Minister erroneously thought that an amendment to the Actwas required to introduce compensation for prohibited ammunition. No such view isoutlined in the June paper, but earlier advice from the Police to the Minister dated3 May stated:Note that the Amendment Act did not envisage that prohibited ammunitionwould be compensated for so if compensation were to be considered thiswould require an amendment to the Act.99 See, for example, the definition of "application for judicial review" in s 4 of the Judicial ReviewProcedure Act 2016.[123] I accept that this advice was likely accepted. But for the reasons alreadyaddressed that advice was probably correct. Moreover, even if it was technicallypossible to introduce such compensation by regulations it may still have been regardedas highly desirable for the matter to be addressed by Parliament given the provisionsthat had been enacted. At the very least new regulations to this effect would haveappeared to be attempting to get around a limitation decided upon by Parliament. Soan amendment may still have been required as a matter of sound administration, andbeen thought to be required for this reason.[124] I see more merit in the applicant's second key argument. That is that theMinister proceeded on the erroneous view that there was no legal obligation to providecompensation. The Minister said in his affidavit:20 The Government decided not to offer a buy-back regime to persons whowere in possession of what had become prohibited ammunition. Theywould have an amnesty only. I confirm that in this respect theGovernment proceeded on the understanding that there is no legalobligation to provide compensation from public funds for property thatbecomes prohibited by law.[125] It is certainly true that there is no such obligation in the sense that Parliamentcan always legislate inconsistently with the right to receive compensation for adeprivation of property. But on its face the Minister's view goes further, and suggeststhat because the measures involved prohibiting possession of the property no suchright to compensation arose.[126] For the reasons already addressed at some length, that view is not correct.100Moreover, had this been a view formed in relation to a statutory power of decision,there would have been an expectation that the decision-maker would have addressedthe common law right more directly. For this reason I see some merit in the applicant'scriticism. It also gains force given that prohibited ammunition has been treateddifferently from prohibited firearms without apparent justification. The Minister'sstatement that there was no legal obligation to compensate for prohibiting possessionof the property does not provide a justification. That is because compensation wasprovided for those who possessed the newly prohibited firearms. So the Minister's100 See [40] to [63] above.rationale rather highlights the arbitrary treatment. What is more, unlike prohibitedfirearms and related equipment, prohibited ammunition has no apparent associationwith the dreadful events of 15 March 2019, or indeed the criminal use of firearms moregenerally.101 Prohibiting this category of ammunition appears to be a product of amore general tightening of controls over firearms and related equipment.[127] But none of these criticisms ultimately have significance for this judicialreview challenge. That is because these views were not formed in connection with areviewable statutory power of decision. They did not manifest themselves in theexercise of any discretionary powers. Rather they reflect policy decisions made bythe Government that subsequently resulted in the provisions of the Bill, whichultimately led to the passage of the Amendment Act in the terms enacted.CONCLUSION[128] For these reasons the applicant's challenges are dismissed. By way ofsummary I accept that the common law right not to be deprived of property by theCrown without compensation was duly engaged by the measures introduced under theAmendment Act prohibiting categories of military ammunition. But this common lawright, whilst a fundamental one, is subject to Parliament's intent. Here Parliamentplainly intended not to provide compensation to those possessing prohibitedammunition, and to only provide compensation for those who held the newly createdcategories of prohibited firearms and associated equipment. The applicant's claimsfor declarations are accordingly dismissed.[129] I have also dismissed the applicant's judicial review challenge to the Minister'srecommendation that no such compensation for prohibited ammunition should bepaid. His recommendation did not form the basis of a statutory power of decision thatcan be challenged by way of judicial review. His view in March 2019 was expressedin the context of the Government's assessment on what should be included in the newBill to be placed before Parliament. That view was then adopted by Parliament itself.His later advice in June 2019 concerned the content of the Regulations, and of theOrder in Council defining "prohibited ammunition", and it did not involve a101 Subject to what is noted at the end of [77] above.recommendation not to provide compensation for prohibited ammunition. That issuehad already been addressed by Parliament itself.[130] I have also dismissed the applicant's challenge to the Order in Council definingprohibited ammunition. I accept that the categories of prohibited ammunition inquestion were not assessed in terms of their relative harm compared with conventionalammunition, and that the evidence establishes that the categories of prohibitedammunition in issue can be seen as not more harmful. But there was no requirementfor the Minister to conduct such an analysis before the categories of prohibitedammunition were determined by way of Order in Council. It was consistent with thepurposes of the Act to take a more general view that particular ammunition designedfor specific military purposes should not be permitted to be possessed for civilian useunder New Zealand's firearms legislation.[131] I accept that there does not appear to be much justification for the differenttreatment of prohibited firearms and equipment for which compensation was payable,and the prohibited ammunition, which was not. That is particularly so given that thereis no association between the newly defined prohibited ammunition and criminalactivity, let alone the mosque shooting. But ultimately these decisions were made byParliament rather than through discretionary decision-making subject to judicialreview. The criticisms do not provide a basis for a successful judicial reviewchallenge.[132] The applicant's claims are accordingly dismissed. The respondent is entitledto costs. I direct the parties to seek to discuss and settle the question of costs. If theycannot be resolved a memorandum seeking costs may be filed and served which is tobe responded to by memorandum filed and served within 10 working days thereafter.Both memoranda are to be a maximum of 10 pages plus accompanying schedules.Cooke J