Khamis v Commissioner of Police, New South Wales Police Service [2001] NSWADT 21 (13 February 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Khamis -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 21

PARTIES: APPLICANT

Anthony Khamis

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 003076

HEARING DATES: 30/05/2001

SUBMISSIONS CLOSED: 30/05/2000

DECISION DATE: 13/02/2001

BEFORE: Lees M - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Firearms (General) Regulation 1997

Firearms Act 1996

CASES CITED: Christianos -v- Commissioner of Police, NSW Police Service [1999] NSWADT 66

Osborne -v- Commissioner of Police, NSW Police Service [1999] NSW ADT 86

O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Re Queensland Electricity Commission and Others ; Exparte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1

Comalco Aluminium (Bell Bay) Ltd v O'Connor and others (1995) 131 ALR 657

Commissioner of Police v Toleafoa ([1999] NSWADTAP 9

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Water Conservation and Irrigation Commission N.S.W. v Browning [1947] HCA 21; (1947) 74 CLR 492

APPLICATION: Firearms Act - firearms licence - issue of licence or permit

Firearms licence - issue of licence or permit

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

J Tunks, solicitor

ORDERS: 1. The Respondent's decision to refuse a firearm permit is affirmed.

Reasons for Decision:

Background to application

1 Mr Khamis applied to the Administrative Decisions Tribunal (the Tribunal) for review of the decision to refuse him a personal firearm permit made by the Commissioner of Police (the Commissioner) on 6 March 2000 under the Firearms Act 1996 (the Act).

2 The type of firearm permit Mr Khamis was refused was a `ZA Commissioner's permit'.

3 The Tribunal's jurisdiction derives from sections 75 of the Act and 38 of the Administrative Decisions Tribunal Act 1997.

The relevant law

4 Section 3 sets out the principles and objects of the Act:

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, .....

(2) The objects of this Act are as follows:

........

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, ...

5 Section 28 of the Act provides the Commissioner with the power to issue permits. It provides, as relevant:

The Commissioner may issue permits for any one or more of the following purposes:

...

(g) to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate"

6 Section 29 of the Act provides for restrictions on the issue of permits. Subsections 29(4) and (5) provide:

(4) The Commissioner may refuse to issue a permit if the Commissioner considers that issue of the permit would be contrary to the public interest.

(5) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a permit.

7 Clause 9(2) of the Firearms Regulation 1997 (the Regulation) states that:

The Commissioner may refuse to issue a permit if an applicant intends to possess and use the firearm for:

(a) personal protection or for the protection of any other person, or

(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the table to section 12 of the Firearms Act 1996).

The evidence

8 The Commissioner provided the Tribunal with copies of its statements of reasons for the Commissioner's decisions to refuse Mr Khamis a personal firearm permit.

9 These reasons detailed Mr Khamis' current licence status as far as his use of firearms is concerned. There was no dispute between the parties in this regard. Mr Khamis is currently licenced under category A/B for target shooting, category H for professional employment as a security officer, category H for his business `AK Security' and he has an `Employee with access' authority under AK Security as well. His current licence was issued in December 1997.

10 The fact Mr Khamis has worked as a security officer for more than 12 years was also not in dispute.

11 The Tribunal had before it copies of Mr Khamis' letters, the first applying for a personal pistol permit dated 21 December 1999 and the second dated 21 February 2000 requesting internal review of the Commissioner's first decision. Mr Khamis provided the Tribunal with two employment references and one personal reference.

12 In his December letter Mr Khamis states that during the course of doing his job there have been a number of situations where his life has been under threat. He states that these situations have become `far more intense' in the last four years. He states that `in the past few years he has had knives, screwdrivers and handguns pulled on him while he has been on duty, as well as having his life threatened when he is off duty'. He states that `this is a matter of concern for him and his family and that he seeks the permit for his own personal protection and security'.

13 In his February letter he stated that he had `acted as a police witness in over 20 separate incidents where he has assisted the police in their investigations' and that `this assistance has on many occasions resulted in numerous threats of violence toward me and my family from the offender(s)'.

14 Mr Khamis also gave oral evidence before the Tribunal and called one witness.

15 In his oral evidence at the Tribunal hearing, Mr Khamis agreed that most of his work is at licenced premises fulfilling a `doorman-like' role or supervising other security staff. He stated that on most occasions when working in licenced premises the security staff are not allowed by the venue management to carry firearms.

16 Mr Khamis has held a business pistol licence for the last seven years and his work involving the carrying of a firearm includes body guarding, cash escort and the `lock up' of licenced premises at the end of a business night.

General and specific threats

17 As a very experienced security guard Mr Khamis was regularly the security supervisor at the venues he worked at, which included licenced premises such as hotel bars and nightclubs. He would supervise other security guards and often have the final say as to whether someone was to be escorted from or refused entry to the premises. As that decision maker he often attracted abusive and threatening language. Mr Khamis believed his decisions sometimes disrupted the `selling of illegal substances' and that this tended to lead people `to get a bit nasty' and make threats against him. Mr Khamis believed that he was sometimes remembered by such people in the street when he was off duty, again attracting comment of an insulting and threatening nature.

18 Mr Khamis' evidence was that `many' of the threats were oral threats on his life and that occasionally he has had oral threats made against his family as well. These threats have involved people yelling at him such comments as `we'll get you', `we're going to kill you', `we're going to kill your family', `we know where you live'.

19 In relation to his family specifically, the only additional reference made by Mr Khamis in his evidence was that his family at home was `a separate thing' stating that he has four rifles there `which are licenced'.

20 Several times while giving evidence Mr Khamis referred to `Lebanese gang members' generally. Mr Khamis referred to being threatened by them `many times' in the past six years, how he helped the Police when they were attacked by such a gang, that he sees these men around Sydney and that they pressure him to let them into clubs because he is also Lebanese.

21 Mr Khamis agreed that in his line of work he has to deal with a lot of people who are often drunk or substance affected, often making stupid remarks and threats. He said he could determine a real threat from a fake threat.

22 On being asked how many weapons had been `produced at' him in the last twelve months, Mr Khamis' answer was `no weapons'. On being asked `how many in the last two years?' he answered `quite a few'. He referred to `handguns on two occasions' and `knives on many occasions', twice Mr Khamis referred to a machete but no further information was provided. Mr Khamis referred to occasions when he was both on and off duty.

23 Mr Khamis' evidence relating to these specific incidents in recent years is summarized as follows.

1. Chatswood #1: Charles Hotel

24 This incident involved a group of Asian males trying to gain access to a disco and arguing with security staff, one of whom was Mr Khamis. Mr Khamis said that the group left after about an hour but returned later in the evening. He described the following exchange as then taking place: Mr Khamis to the group `...don't even think about it, you're not going in, piss off' to which one in the group replied `no, no, you piss off, look what I've got for you' at the same time as pulling out a black revolver. Mr Khamis responded `hey, there's no need for that, it's not worth that' and the young man concerned said `we fix you up' and put the gun away. Mr Khamis went back into the hotel with the fellow he was working with at the door and reported it to the Manager. The police were called and attended the hotel and Mr Khamis described to the police the details of the incident.

25 When asked `when was this...?' at two different times while giving evidence about this incident Mr Khamis first said, it was `about 4 years ago', and the second time, he said `three years ago, maybe'.

26 Mr Khamis was asked whether he wanted his own gun because of this incident and `no' was his answer.

2. Eastwood: El Rancho Hotel

27 On being asked `when is the last time you were threatened with a weapon?', Mr Khamis replied `about one year ago' while he was working at the El Rancho Hotel in Eastwood.

28 Mr Khamis recalled that members of a motor-bike `gang', the Commancheros, wanted access to the hotel. Mr Khamis stated at first in evidence that `most of them had knives' and a little later that `one of them was carrying a knife'. Mr Khamis approached that particular man and said it was against hotel policy and the man responded by saying something like `I don't give a shit, piss off'. On being approached again, the fellow pulled the knife out and asked Mr Khamis `do you want a piece of this?' and Mr Khamis backed off. Mr Khamis told the Manager, and wanted to tell the police, but the Manager said to `leave it with' him. Mr Khamis recalled no more threats of any kind or contact from that fellow or other members of the gang.

29 Later in his evidence Mr Khamis referred to the motor-bike gang member incident as being `years ago....about three years ago, 2 ½ years ago'. Later again in his evidence he referred to this incident as having been `in the last twelve months'.

30 Mr Khamis was asked whether he wanted his own gun for his personal and family protection because of this motorcycle gang or the individual gang member and the answer was `not against them, no, no'.

3. Parramatta: car park

31 This incident arose at a time Mr Khamis was doing volunteer work for a Lebanese Christian Church in Parramatta. Mr Khamis spoke to a man putting pamphlets advertising the man's dance party on cars parked in the Church carpark and Mr Khamis told him to stop as it wasn't allowed. They argued and the man abused Mr Khamis. Later on, Mr Khamis said, the man was waiting for him and asked why he couldn't put the pamphlets out. Mr Khamis explained the need for permission and the man replied `I don't care what you say I'll be back next week ...to put the pamphlets out.' The man returned the following week and they argued again. Mr Khamis said this time the other fellow said `I'm going to come back next week and if you don't let me put my flyers on ...you're dead.' Mr Khamis' said he `didn't care' and got into his car. On the third occasion Mr Khamis stopped the man, the latter `pulled a knife out and says, mate I'm going to come back next week, if you don't let me in you're dead'.

32 Mr Khamis said he reported this incident to the police. Mr Khamis said this incident occurred about two years ago. Mr Khamis described the man as Lebanese, he wasn't sure whether he was a member of any gang and believed he was currently in prison.

4. Chatswood #2: Victoria Street

33 In reply to the question `you haven't had a threat with a weapon since the Commanchero matter, is that right?' Mr Khamis replied `there was one after that' and he said it was `about a year ago'. He also went on to say it was before the Commanchero incident, which previously he had said was `about 3 years ago, 2 ½ years ago'.

34 Mr Khamis described the Victoria Street incident as one involving a butterfly knife. His evidence was that he had left a shop on Victoria Street, which was opposite a park where there were some Asian youths who he thinks were the same ones he had problems with at the Charles Hotel. He said the youths saw him and one of them yelled something out and one of them came running over towards him. `I just kept walking trying to ignore him, get away,...I was trying to avoid him. I said I wasn't working, I was just in the shop... he said ...you're that bastard from Chatswood...we kill you, we do this and he produced the butterfly knife...'.

5. Parramatta: Church Street

35 When asked 'when was the last threat?' Mr Khamis replied `roughly two months ago' agreeing it was somewhere between February and April (2000). That experience he described as having taken place on Church Street in Parramatta one Sunday evening when he was `off duty' and having dinner. A white commodore with four people inside drove past him twice. From within the vehicle on its second drive past, someone yelled out something along the lines of `we know who you are, you're fuckin' dead mate, we're comin' back'.

36 In cross-examination, Mr Khamis said he didn't know the people in the car but he had seen them in clubs and had refused them entry. When asked at this point had any gun been produced, Mr Khamis appeared to answer `no'. Earlier in his evidence he had referred to the same incident in another context (reporting to police) and that he had told the police at the time of `a certain gun' being involved.

Applicant's Witness: Mr Tony Khamis

37 Mr Khamis called Mr Tony Khamis as a witness; Mr Tony Khamis is a friend and cousin of Mr Khamis. Mr Tony Khamis' evidence was that he had worked as a security officer as well and had worked with Mr Khamis 3 or 4 years ago in Chatswood.

38 Mr Tony Khamis was also with Mr Khamis at the time of the Church Street Parramatta incident. His evidence was essentially that late on a Sunday evening, a car drove by he and Mr Khamis and someone in the car spoke in English and `pointed out to Anthony that we're gonna get you'. A few minutes later the car drove by again and `they pulled a gun out...' pointed it at Anthony Khamis and said `you're dead' at which point Tony Khamis says he said to himself `thank you, that was it, ...... I just got up and walked away'. He could not identify the sort of gun it was except to say it was `like a pistol'. He could not say what the nationality of the people in the car was as they spoke English, but they looked `middle eastern'. He and Mr Khamis had said at the time `let's get out of here.....let's go' and they both started walking along the street at which point they saw and flagged down a police car. The men reported to the Police what had just happened but the Police had said there wasn't much they could do without more detail, just that if the four came back, report it.

39 When asked when this occurred Mr Tony Khamis answered `before Christmas, could have been late November' When asked was it `late 1999?' he agreed `Yes, last year'.

40 In relation to Chatswood, Mr Tony Khamis recalled Mr Khamis having threats made against him there by groups of Asian people and generally referred to these occurring `outside the Charles Hotel and around the railway concourse'. Mr Tony Khamis gave no details about any single or particular incident in these vicinities.

Management of threats

41 In addition to his evidence relating to his actual responses to each of these five incidents, Mr Khamis was asked, hypothetically, what he would do if he was armed as he wished to be, in his personal capacity, and was threatened in the same way as in the specific incidents he had already described. Mr Khamis referred to the potential danger to the surrounding public if he was to draw on a firearm, noting `if there was an avenue out I'd run....we're trained that the only time you can draw a firearm is if your life or the life of another person is in imminent danger'.

42 In this regard Mr Khamis remembered once being dressed in plain clothes and carrying a firearm as he was on call to do a `lock up' and a friend of his got into an argument and was being threatened. Mr Khamis' evidence was that he just said to his friend `leave it, let's go, get in the car and go', without referring to or drawing the firearm at all.

43 On being asked how he has `managed the countless threats he's experienced in the past?' Mr Khamis replied `because I've left the scene', `I don't want the confrontation', adding `whether I would be carrying a firearm or not, I would do the same'.

Mr Khamis' references

44 The references provided to the Tribunal by Mr Khamis were from two employers, Sydney Venue Protection Agency and Public Relations Orientated Security and one from a Hotel Licencee, Mr John Lenard. Each confirmed the type of work Mr Khamis carries out and that death threats had been made against Mr Khamis. Mr Lenard states that he was with Mr Khamis on two occasions when such threats were made. No further or specific details about these threats were provided.

Reporting to Police

45 Mr Khamis was not certain, but he believed he had reported all the personal threats he had received to the police. These threats and reports he said numbered about thirty to forty. His evidence was that the Police would not take down the details or make reports. He said the Police response was to ask him to let them know if it happens again. At a different point in his evidence, when referring to there having been `quite a few' weapons being produced at him in the last two years, Mr Khamis stated that he had not reported many to the Police as `they don't do anything about them'.

46 The Commissioner provided the Tribunal with an Affidavit sworn by a legal officer with the NSW Police Service, Ms Naomi Nichols. Ms Nichols deposed that she had accessed `all events relating to Anthony Khamis' on the Computerised Operational Policing System (COPS) and searched and downloaded as hardcopy information on each event detected. These event sheets form annexure A to her Affidavit and refer to 27 events or incidents since 1993.

47 Mr Khamis referred to several documents he had which he suggested were evidence of the fact that the COPS events reports annexed to Ms Nicholls' affidavit were not complete. He referred to four specific incidents involving contact he had made with the Police that were additional to the 27 incidents reported in the COPS events reports. The documents Mr Khamis was referring to and relying on in this regard were not produced to the Tribunal. Under cross-examination the Commissioner's representative, Mr Tunks, established with Mr Khamis that two of the four incidents Mr Khamis was referring to were not incidents giving rise to his application for a pistol permit and that the two remaining incidents Mr Khamis was referring to involved no threat to Mr Khamis at all.

Submissions

The Commissioner's submissions

48 Mr Tunks for the Commissioner, referred the Tribunal to the written submissions he had previously provided to both the Tribunal and Mr Khamis (dated 23 May 2000) and provided the Tribunal with copies of: the Firearms Bill 1996 Second Reading Speech by The Hon. J.W. Shaw (Attorney General and Minister for Industrial Relations) dated 25 June 1996; the Tribunal Firearm Act 1996 decisions of Christianos -v- Commissioner of Police, NSW Police Service [1999] NSWADT 66 and Osborne -v- Commissioner of Police, NSW Police Service [1999] NSW ADT 86; and some additional submissions summing up the law relating to the issue of public interest.

49 Mr Tunks reiterated that the Commissioner's decision to refuse the permit was based on s. 29(4) of the Act and cl 9(2) of the Regulation.

50 Mr Tunks referred to the objects of the Act and drew to the Tribunal's attention the relevant principle and objects found in ss 3(1)(a), 3(1) (b)(i) and 3(2) which are respectively `to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety', `to improve public safety by imposing strict controls on the possession and use of firearms', and `to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm'.

51 Mr Tunks quoted from the Attorney's Second Reading speech at p. 3560

`The Bill is a response to the overwhelming support in the wider community to tighten control over the use of firearms and to ensure that Australia does not head down the path taken by the United States, where abuse of firearms is a fact of daily life'.

52 Mr Tunks also referred to the Australasian Police Minister's Council (APMC) resolutions of 1996, specifically resolution 3, and the fact that the Act was intended to implement those resolutions. Resolution 3(a) states that `personal protection not be regarded as a genuine reason for owning, possessing or using a firearm'.

53 In relation to Mr Khamis' claim that his life has been under threat, Mr Tunks' submission was that Mr Khamis' fears in relation to his personal safety are `unfounded and somewhat fanciful'. He refers to the discrepancies in the evidence between the witnesses, the absence of any armed threats reported to the Police by Mr Khamis according to police COPS records and that there were no incidents on which Mr Khamis could reasonably rely for his claim. Accordingly, it was submitted that `Mr Khamis is not in a fraction of the danger he would like the Tribunal to believe'.

54 Mr Tunks submitted that, in the circumstances, it would be an inappropriate and gratuitous exercise of the discretion found in Regulation clause 9(2) for the Tribunal to issue Mr Khamis with a permit.

55 Mr Tunks submitted that, in relation to the objects of the Act and the resolutions it implements, particularly the need for strict controls over firearm ownership, there would be `little merit in the personal interests of the applicant prevailing over the wider public interest'.

56 In relation to the issue of public interest Mr Tunks cited several cases including O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, Re Queensland Electricity Commission and Others ; Exparte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1 and Comalco Aluminium (Bell Bay) Ltd v O'Connor and others (1995) 131 ALR 657 and quoted from each.

Mr Khamis' submissions

57 Mr Khamis believes he needs a firearm for personal protection and would like to be granted a permit for that reason.

58 He asked the Tribunal to consider the facts of his training and accreditation, his existing licences and his record of safekeeping firearms properly. He also asked the Tribunal to consider the personal reference and the two employment references he had provided.

59 In relation to the COPS events reports, he reiterated that they were incomplete and suggested that they should not be relied upon in the way submitted on behalf of the Commissioner.

Findings and Reasoning

Personal Protection

60 In the matter of Christianos, the Deputy President of the Tribunal referred to the registration, licencing and permit schemes of the Act, stating in relation to the permit scheme that it applies in two broad situations: firstly where a person wishes to acquire a firearm (a separate permit is required for the acquisition of every firearm) and, secondly where a person wants to possess or use a firearm but does not come within the licensing regime. `This can occur where, for example, the person does not normally reside in New South Wales or where they want the firearm for film or theatrical purposes.' (See Christianos para 12).

61 It was accepted in Christianos, as it is here also, that the intent of the firearms legislation is that a permit be issued in such cases where the granting of a license is not appropriate or possible, or where other or special circumstances exist outside the ´licensing' provisions and restrictions. It is reasonable to imply that the intent of the legislation was not to provide permit applicants with a means of circumventing the restrictions that apply to the granting of a license.

62 The Commissioner's general power to issue permits is found under section 28 of the Act. Subsections 28(a) to (f) provide for a number of purposes for which permits can be issued. Subsection 28(g) allows the Commissioner to issue permits authorizing `the possession or use of firearms in such circumstances as the Commissioner considers appropriate'. Mr Khamis' application for a permit, as evidenced by his letter of 21 December 1999 states essentially that his purpose in seeking the permit is to possess and use a firearm for personal protection. This specific purpose is not mentioned in ss 28(a) - (f); the Commissioner could only issue a permit to Mr Khamis if the Commissioner considered Mr Khamis' circumstances to be `appropriate' under s. 28(g).

63 The type of permit refused to Mr Khamis was referred to in the materials as a "ZA - Commissioner's (personal protection) pistol permit'. The category `ZA' does not appear to have its source in the Act or the Regulation.

64 Section 29 provides for restrictions on the issue of permits. Its source resolution (recorded in the heading to s. 29) is APMC resolution 4(a). Subsections 29 (1) - (3) of the Act provide a number of reasons for mandatory refusal of a permit. Section 29(5) of the Act allows the Regulation to provide other grounds for refusing the issue of a permit. Clause 9(2)(a) of the Regulation provides the Commissioner with the discretion to refuse a permit if an applicant intends to possess and use the firearm for personal protection.

65 Subsection 28(g) of the Act appears to provide a basis in its own right for refusal of a permit. The Commissioner did not expressly rely on or explore this provision in considering Mr Khamis' application. The Commissioner's approach to the application was to consider whether or not Mr Khamis' evidence supported his assertion that he needed a firearm for personal protection. On concluding that it did not, the discretion available under s. 9(2)(a) was exercised by the Commissioner against Mr Khamis.

66 No express guidance is provided by the Act or the Regulation as to how the discretions in s. 28(g) and clause 9(2)(a) might be exercised.

67 The Commissioner referred to the APMC resolutions, specifically resolution 3, and the fact the Act is meant to implement those resolutions. The Act expressly states which of the provisions result from which resolutions and which reflect the provisions of the previously applicable legislation. These details are provided in parentheses next to provision headings and were provided (see AG Second Reading Speech, p 3560) to assist parliamentary members and the public.

68 APMC resolution 3 states (a) that personal protection not be regarded as a genuine reason for owning, possessing or using a firearm. APMC resolution 4 concerns licence requirements. Resolution 4 is not helpful in the present application for a permit.

69 The Commissioner's approach to exercising the cl 9(2)(a) discretion is considered suitable. Mr Khamis must establish that he has a well founded need for personal protection in order to trigger the possible exercise of the cl 9(2)(a) discretion. Such a well founded need, however, may or may not in itself be sufficient to warrant the exercise of the discretion in favour of an applicant; there may be other relevant factors informing the exercise of the discretion as well.

70 Mr Khamis appears to be an enthusiastic and experienced security officer. He has satisfied the Tribunal that he has managed threatening situations on many occasions and successfully defused them so as to avert any possible harm to himself and others. There is evidence that Mr Khamis has assisted the police on numerous occasions and he appears to be a conscientious worker and law abiding and respecting citizen. All these things are to his credit. As submitted on behalf of the Commissioner Mr Khamis' good character has not been in question at any time during the processing of his application. There was and is no suggestion that Mr Khamis is other than a fit and proper person to hold such a permit or that he would be other than responsible in dealing with the firearm if granted a permit.

71 Essentially Mr Khamis' permit application was based on his desire to be permitted to possess and use a firearm for the purpose of his personal protection due to there having been a number of threats made upon his life. These threats were referred to either generally, with no specific detail being provided as to where and when and by whom the threats were made, or specifically, relating to five incidents involving threats with weapons `in recent years'.

72 The genuineness of Mr Khamis' concern is accepted.

73 In relation to the five specific threats made against him involving weapons, Mr Khamis admitted in evidence that two of them were not the threats giving rise to his desire for a personal pistol permit. That leaves the Parramatta car park incident, the Chatswood butterfly knife incident and the Church Street, Parramatta drive-by incident.

74 In his evidence Mr Khamis did not raise the Parramatta car park incident when referring to his current fear for his personal safety. He referred to it in response to questioning and no suggestion was made that the perpetrator involved was a current threat.

75 The Chatswood butterfly knife incident occurred in broad daylight in a commercial public area. The evidence suggested it was a spontaneous act on the part of the youth involved and did not include any more members of the group of youths Mr Khamis had observed. The incident took place at least more than a year ago and maybe even a longer time ago, as the evidence was inconsistent on this point.

76 The evidence relating to the approximate date in 1999/2000 of the Parramatta drive-by incident was completely inconsistent between the two witnesses and was not raised at all by Mr Khamis when more than once he stated he had not had any threats involving weapons made against him `in the last twelve months or so'.

77 These three specific incidents relied on by Mr Khamis provide insufficient bases for establishing that he has a current well founded fear for his life and well founded need for personal protection. Accordingly, Mr Khamis' evidence is found to be not sufficiently persuasive to warrant the cl 9(2)(a) discretion being exercised in his favour.

78 Apart from his need for personal protection, no other circumstances were submitted by Mr Khamis to require further consideration pursuant to s. 28(g).

Public Interest

79 Subsection 29(4) allows the Commissioner the discretion to refuse to issue a permit the Commissioner considers would be contrary to the public interest. This was the additional discretion the Commissioner exercised to refuse Mr Khamis a permit.

80 In relation to the Commissioner's discretion concerning the public interest, guidance as to what is involved in exercising such a discretion is found in several decisions of the High Court of Australia. This guidance can be distilled into the following principles:

- a discretion to make a decision "in the public interest" is not confined except by the subject matter, scope and purpose of the legislation itself. (O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson & Gaudron JJ citing Dixon, J in Water Conservation and Irrigation Commission N.S.W. v Browning [1947] HCA 21; (1947) 74 CLR 492 at p 505);

- applying a public interest test is a question of fact and degree, often depending on a balance of interests, including competing public interests. (Re Queensland Electricity Commission and Ors; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1 per Mason C.J., Wilson and Dawson JJ at 5);

- the purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account and to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the scope and purpose of the legislation. (Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 per Wilcox, CJ, Keely & Moore JJ at 681).

81 The Tribunal itself has previously considered the exercise of the s 29(4) discretion, see Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In Toleafoa a security industry licencing matter, the Tribunal's Appeal Panel stated (at p 25) that the public interest is:

`. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual....'.

82 The Tribunal found in Ward that these comments are equally applicable in the context of the Act and that the 'public interest' in relation to the holding of a firearms licence is referable to the objects and principles set out in Section 3 of the Act.

83 The interests of the public in circumstances such as these include its interest in its own safety, in maintaining the principle that individual access to firearms is a conditional privilege not a right and its related interest in tight, strict and fair control of the presence of weapons in the Australian community. These interests are clearly reflected in the principles and objects of the Act.

84 The balance that needs to be struck is often referred to as one between the personal interest in gun ownership and the responsibility of authorities in the public's interest and on its behalf to prevent danger to all individuals and the wider community.

85 In the circumstances of this application the public interest does not require that the permit be issued. Mr Khamis' personal circumstances and interest in being issued with a personal firearm permit have been considered in detail above. They have not been considered persuasive. They are also not considered to be of sufficient weight to override or outweigh the public interest in the non-proliferation of personal firearms within the Australian community.

86 It follows that it would be contrary to the public interest to issue Mr Khamis with a permit in these circumstances. The Tribunal agrees with the Commissioner's decision to refuse Mr Khamis a permit.

87 The processing of this application should not have made Mr Khamis feel as if he needed to `defend himself' as he stated at the hearing. The refusal of his application should not be interpreted as an attack in any way on Mr Khamis' character or professionalism. These have not been in issue in this application at all.

Decision

88 In accordance with section 63 (3)(a) of the Administrative Decisions Tribunal Act 1997, the decision of the Commissioner of Police to refuse Mr Khamis' application for a permit to possess or use a firearm is affirmed.