Robinson trading as Botany Mascot Security v Commissioner of Police, NSW Police [2008] NSWADT 17 (10 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Robinson trading as Botany Mascot Security v Commissioner of Police, NSW Police [2008] NSWADT 17


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Dennis William Robinson t/as Botany Mascot Security
RESPONDENT
Commissioner of Police, NSW Police



FILE NUMBERS:
073058

HEARING DATES:
09/05/2007

SUBMISSIONS CLOSED:
9 May 2007



DATE OF DECISION:
10 January 2008

BEFORE:
Grant Y - Judicial Member





LEGISLATION CITED:
Firearms Act 1996
Firearms (General) Regulations 1997

CASES CITED:
obinson v Commissioner of Police, NSW Police [2005] NSW ADT 5
Robinson v Commissioner of Police, NSW Police [2006] NSW ADT 86
Commissioner of Police, NSW Police v Robinson [2006] NSW ADT Appeal Panel 25 July 2006 (Matter No.069019)
R v Katarzynski [2002] NSWSC 613
Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149
Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6
QR v Commissioner for Police, NSW Police (GD) [2005] NSWADTAP 59
Cusumano v Commissioner of Police, NSW Police Service [2001] NSW ADT 50
McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354

TEXTS CITED:


APPLICATION:
Firearms Act - firearms licence - impose a condition on licence or permit

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
In person
W Pisani, solicitor


ORDERS:
Pursuant to Section 64(3)(b) of the ADT Act the conditions imposed by the Commissioner of Police are set aside


Reasons for Decision:

INTRODUCTION

1 Mr Robinson is the sole proprietor of a business that provides security services. He has worked in the Security Industry for the past 29 years and has had a firearms licence in one form or another for the past 25 years. Mr Robinson trades as Botany Mascot Security and is or has been engaged in providing armed security services to clients who have bonded stores and who have other premises housing items of value. The business was issued a Category H licence under the Firearms Act 1996 ("the Act") and a decision to revoke that licence was the subject of earlier proceedings in this Tribunal. The decision of the Commissioner to revoke Mr Robinson's licences was set aside Robinson v Commissioner of Police, NSW Police [2005] NSW ADT 5.

2 Prior to the reinstatement of a licence the Firearms Registry requested an assessment under clause 69A(1) of the Firearms (General) Regulations 1997 ("the Regulations"). Mr Robinson was supplied with an application template to assist him with meeting that request. He then gathered a number of letters from clients in order to establish that he has a need for firearms to be carried when on a patrol of their premises. The Commissioner's delegate determined that Mr Robinson's business was not eligible to be authorised to use or possess firearms and that, as such, he no longer has a genuine reason for holding a Category H Firearms Licence for business purposes.

3 Mr Robinson was advised that his Category H Business Firearms Licence was revoked. That decision was affirmed on internal review and Mr Robinson commenced proceeding in the Administrative Decisions Tribunal seeking an external review of the revocation decision.

4 On 24 March 2006 the Administrative Decisions Tribunal constituted by J.M. Montgomery made orders in that matter to the following effect:

(i) The decision of the Commissioner of Police, NSW Police Service to revoke Mr Robinson's firearms licence was set aside.

(ii) The matter was remitted for reconsideration by the Commissioner with a recommendation that Mr Robinson's licence be reinstated if he satisfied all the other requirements for the grant of a licence.

5 On 24 April 2006 the Commissioner of Police appealed against that decision and sought a stay of the orders.

6 Deputy President N. Hennessy gave an extemporaneous decision refusing the application made by the Commissioner of Police to stay the order. The Deputy President noted the applicability of the principle that it is ordinarily desirable for the party who had the benefit of the decision to reap that benefit by the implementation of the decision, noting that Mr Robinson had been successful in his application to the Tribunal and so, unless there were persuasive reasons to deny him the fruits of that success, then ordinarily a stay order which deprives him of that success would be inappropriate. The Deputy President concluded by saying that she was not satisfied that any public interest considerations justified Mr Robinson being deprived of the benefit of the Tribunal's decision and accordingly the application for stay was refused.

7 On 27 April 2006 special conditions were approved by the Manager of the Firearms Registry as being appropriate for Mr Robinson's Category H Firearms Licence.

8 On 27 April 2006 Mr Robinson had his Category H Licence reinstated by the Firearms Registry with special conditions attached thereto and the licence holder and his solicitor were notified of those special conditions.

9 On 25 July 2006 the Appeal Panel of the Administrative Decisions Tribunal heard the appeal of the Commissioner of Police from a decision of the Tribunal made on 24 March 2006 setting aside the Commissioner's decision to revoke Mr Robinson's Category H Firearms Licence.

10 In the Appeal Panel decision Deputy President N. Hennessy noted that it had been agreed by the parties that the decision made by the Commissioner to revoke Mr Robinson's firearms licence was ultra vires in that it was made in reliance on sections of the Firearms Act 1996 and Regulations which did not give the Commissioner power to revoke a licence. Accordingly, the decision of the Commissioner to revoke Mr Robinson's firearms licence was invalid.

11 Deputy President Hennessy observed, however, that this did not deprive the Tribunal of jurisdiction to conduct a merits review of the decision pursuant to section 6(3) of the Administrative Decisions Tribunal Act 1997.

12 Section 16 prevents the Commissioner from issuing a Category H Licence to any person unless the person has a genuine reason for the licence and in addition the person produces evidence to the Commissioner's satisfaction that there is a special need for the person to possess a pistol. The Appeal Panel noted that section 16 is about the issue of a licence and not about the revocation of a licence. Furthermore, the Panel noted that the Commissioner had relied on clause 69A of the Regulations which states that:

"(1) The authority conferred by a licence issued to a security firm authorises the firm to use or possess only such number of firearms as in the opinion of the Commissioner are required to carry out the security activities of the security firm.

(2) The Commissioner may require a security firm to provide information relating to the following: ... "

13 The Appeal Panel concluded that what had happened in that case was that the Commissioner had misconstrued section 16 of the Act and clause 69A of the Regulations so as to give the delegate of the Commissioner of Police the power to require Mr Robinson to establish that he had both a genuine reason and a special need for a Category H Firearms Licence.

14 The Appeal Panel concluded that as the Administrative Decisions Tribunal had set aside the Commissioner's decision to revoke the licence, "the Commissioner either ignored or overlooked the fact that Mr Robinson's licence remained on foot as a result of that decision". Rather than re-issuing Mr Robinson with a licence the Commissioner required him to comply with certain requirements. At this point in time, Mr Robinson's licence had not in fact expired and indeed remained unexpired until November 2007. Nevertheless, the Commissioner acted as if Mr Robinson did not have a licence or at least that he needed to provide certain information to the satisfaction of the Commissioner before the licence would be re-issued. While Mr Robinson did provide some information as "required", it was not to the satisfaction of the Commissioner and, accordingly, the Commissioner purported to revoke Mr Robinson's licence. It was this act of revocation by the Commissioner that the Appeal Panel found was ultra vires as the Panel could not identify any power under the Act or Regulations that would have enabled the Commissioner to make that decision.

15 Accordingly, the Appeal Panel made an order affirming the first order of the Tribunal which set aside the Commissioner's revocation decision albeit for different reasons than those relied upon by the Tribunal. The Panel concluded that the effect of the Tribunal's first decision was that Mr Robinson holds a Category H Licence until November 2007 and because the second revocation decision was beyond power it followed that there was nothing for the Tribunal to remit to the Commissioner and accordingly it was the Panel's view that the second order of the Tribunal should be set aside.

16 Pursuant to the reasoning outlined above on 25 July 2006 the Appeal Panel of the Administrative Decisions Tribunal made the following orders by consent:

1. Order 1 of the Decision of the Tribunal dated 24 March 2006 is affirmed.

2. Order 2 of the Decision of the Tribunal dated 24 March 2006 is set aside.

The Appeal Panel made no reference to the special conditions that were approved on 27 April 2006 by the Manager of the Firearms Registry as being appropriate for Mr Robinson’s Category H Firearms Licence. This is not surprising given that neither the Applicant nor the Respondent made submissions on the appeal with respect to the imposition of the special conditions. Indeed the Applicant submitted that he had no awareness of those conditions until he received his company’s Duplicate Notice in January 2007.

17 On 19 December 2006 the Firearms Registry conducted a mass mail out of Duplicate Notice of Authority and Conditions to all security company Category H business licence holders.

18 On receipt of his company's Duplicate Notice, Mr Robinson sent a letter to the Registry dated 12 January 2007 marked "To Whom It May Concern". The letter stated that Mr Robinson had just received a letter from the Registry with a copy of his H class firearms pistol licence and he noted:

"Contained within these conditions (attached to the Category H firearms licence) was the sentence saying the licence did not authorise the carriage of a pistol to carry out alarm responses. I have not been made aware of any adjudication process that may have taken place at the registry or within a court to warrant this change which does not appear on the original licence. This condition does not appear on my original licence and I request clarification of same. Please give this matter critical attention as to my way of thinking it is the court order reinstated original licence, see Robinson v Commissioner ADT Appeal Panel 25/7/2006 Deputy President Hennessy presiding, that takes precedence up until expiry on 22/11/07."

19 The letter made no reference to an internal review request and as a result was not forwarded to the Case Management Unit of the Firearms Registry. The Tribunal is informed that Registry personnel attempted to contact Mr Robinson on 24 January 2007 at 12.00 PM but the call was not answered. The letter from the Registry dated 25 March 2007 concluded:

"However, in light of a backlog of case loads currently experienced by the Unit and the fact that the company has been subject to Special Conditions for nearly one year (as advised to the company's licence holder and their solicitor on 27 April 2006) it is most likely that any such request would have been refused in this instance."

20 On 2 March 2007 an appeal against the imposition of these conditions was lodged with the Administrative Decisions Tribunal ("ADT") listed for directions hearing.

21 In a letter from the Firearms Registry of the NSW Police dated 25 March 2007 it stated that this mail out "occurred because it had come to notice that previously the second page of Conditions for these licences, as recorded on the Integrated Licensing System, was not reflected in the original printed copy of the Notice of Authority and Conditions sent to licence holders. The Respondent submitted that Botany Mascot Security's Duplicate Notice contained no change to the special conditions as advised to Mr Robinson and his solicitor in a faxed letter of 27 April 2006.

22 On 24 April 2007 Mr Robinson wrote to the Presiding Member of the ADT stating his objection to the imposition of special conditions on his H Class Business pistol licence held in the name of Botany Mascot Security and asking that they be removed. The two conditions that he objected to were:

(i) The condition which stated that the firearm was not to be used for personal protection or for the protection of any other person.

(ii) The condition prohibiting him from attending his clients' premises whilst armed to answer a communicated breach of security within their premises (this is commonly known as an alarm response).

23 As to (i) Mr Robinson stated that it was at odds with the Firearms Act 1996 section 12(2) that states:

"The Applicant does not have a genuine reason for possessing or using a firearm if the Applicant attempts to possess or use the firearm for any of the following reasons:

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

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

..."

That table contains the following:

"...

Reason: business or employment. The Applicant must demonstrate that it is necessary in the conduct of the Applicant's business or employment to possess or use the firearm for which the licence is sought.

..."

24 Mr Robinson submitted that he had demonstrated that a firearm was necessary to conduct his business via a detailed risk assessment carried out by a suitably qualified person and that this assessment had been accepted by the Firearms Registry before issuance of his Category H class business pistol licence. He further submitted that the pistol accreditation to him by the Firearms Registry permits him to use the pistol in the following circumstances:

"A pistol must only be resorted to if all other means of defence have been exhausted and the life of the person possessing the pistol is in grave and immediate danger or the life of a third person is in grave and immediate danger and there is no threat of injury or death to innocent bystanders."

25 As to (ii), Mr Robinson submitted that when he applied for his Business pistol licence he had asked that it be issued for the purpose of carrying out all security activities and obligations within the security industry and that a risk assessment had been accepted by the Registry that gave detailed information regarding the service he provides in carrying out alarm response as well as other security activities that he had carried not only for the life of this licence but for the last 25 years without incident of harm to himself or members of the public. He noted that alarm responses are not a separate business licence but are part of everyday security activities. Mr Robinson further noted that the Australian Standard AS 4421-1996 details the acceptable procedure to be followed and on page 17 at 4.10 it states:

"Alarms shall be responded to with urgency and in an efficient manner. Once an alarm is received the company shall properly nominate and direct the guard or vehicle to conduct the alarm response."

26 On 7 May 2007 Mr Robinson’s application for a review of the special conditions attached to his Category H Firearms Licence imposed by the Firearms Registry pursuant to section 69A(1) of the Firearms (General) Regulations 1997 came on before me.

27 On that occasion, the parties appearing indicated that there was some potential for settlement and, accordingly, the matter was adjourned part heard and set down for directions on 9 July 2007.

28 On 9 July 2007 the parties attended a directions hearing before the Tribunal and indicated that, while settlement had not been reached in respect of the imposition of the two conditions to which the Applicant took exception, the Respondent was prepared to give favourable consideration to the deletion of one of those conditions, namely:

"Firearms are not to be used for Alarm Purposes."

29 The Respondent was not, however, prepared to give favourable consideration to the deletion of the condition which states:

"Firearms are not to be used for: Personal protection or the protection of any other person - the carriage of a firearm is not permitted for personal protection or the protection of any other person (section 12(2) Firearms Act 1996)."

30 The Respondent noted that this condition concerning personal protection or the protection of any other person is a standard condition and suggested that it would not adversely affect the Applicant's obligations pursuant to the Firearms Act 1996.

31 No settlement was reached in respect of this outstanding condition and the parties were requested to provide submissions.

32 Both parties provided submissions including supplemental submissions lodged by the Respondent on 24 August 2007.

RELEVANT LEGISLATION

33 Under section 8(1) of the Firearms Act 1996 ("the Act"), a Category H Licence authorises the licensee to possess and use a registered pistol but only "for the purpose established by the licensee as being the genuine reason for having the licence".

34 The Respondent's power to issue licences is conferred by section 11(1) of the Act. The ensuing subsections of this section set out some conditions that must be observed.

35 These proceedings are principally concerned with some of the further statutory conditions restricting the grant of licences. These are conditions contained in sections 12 and 16 of the Act.

36 The relevant parts of section 12 are as follows:

"12. Genuine reasons for having a licence

(1) The Commissioner must not issue a licence that authorises the possession and use of the firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

(2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons:

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

(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section).

(3) Subsection (2) does not limit the reasons which the Commissioner may be satisfied are not genuine reasons for the purpose of justifying the possession or use of a firearm.

(4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant:

(a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

Table...

Reason: Business or employment

The applicant must demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use the firearm for which the licence is sought."

37 A number of other "reasons" are set out in the Table to section 12, for example "sport/target shooting", "recreational hunting/vermin control", "primary production" and "firearms collection".

38 The relevant provision in section 16 is sub-section (1). This is as follows:

"16. Category H licences - restrictions on issue

(1) The Commissioner must not issue a category H licence to any person unless:

(a) the genuine reason established by the person for being issued with the licence is any one or more of the following:

(i) sport/target shooting,

(ii) business or employment,

(iii) firearms collection, and

(b) in addition to establishing any such genuine reason the person produces evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a pistol."

39 The condition the subject of dispute in these proceedings was imposed following a review conducted by the Firearms Registry pursuant to its powers under clause 69A(1) of the Regulations which was inserted in December 2004 and provides as follows:

"69A. Number of firearms to be held by security firms

(1) The authority conferred by a licence issued to a security firm authorises the firm to use or possess any such number of firearms as, in the opinion of the Commissioner, are required to carry out the security activities of a security firm.

(2) The Commissioner may require a security firm to provide information relating to the following:

(a) the number of firearms owned by the security firm,

(b) the number of armed security guards employed by the firm,

(c) the security activities for which the firearms are used,

(d) such other relevant information that is required in order for a Commissioner to form an opinion under this clause."

40 Section 19 of the Act states as follows:

"Section 19

(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose."

THE APPLICANT’S CASE

41 The Applicant submitted that prior to the receipt of his company’s Duplicate Notice in January 2007 he had no knowledge of the imposition of the conditions on his Category H Firearms Licence which are the subject of this appeal. As indicated above, the Applicant’s letter stated:

"Contained within these conditions (attached to the Category H Firearms Licence) was the sentence saying the licence did not authorise the carriage of a pistol to carry out alarm responses. I have not been made aware of any adjudication process that may have taken place at the Registry or within a court to warrant this charge which does not appear on the original licence. This condition does not appear on my original licence and I request clarification of same. Please give this matter critical attention as to my way of thinking it is the Court ordered reinstated original licence, see Robinson v Commissioner ADT Appeal Panel 25/7/2006 Deputy President Hennessy presiding, that takes precedence up until expiry on 22/11/07."

42 The Applicant also stated the Category H is required to carry on security activities of patrolling, protecting, watching or guarding property and alarm responses of properties. The Applicant filed and served a number of letters written by clients of Botany Mascot Security attesting to their ongoing need for the provision of an armed guard to protect their premises against a break in. In particular, Hold Fast Adhesives (Australia) Pty Ltd stated:

"We require armed guards for alarm responses for the protection of our premises. Also from time to time we require plain clothes armed guards for the protection of cash and other valuables."

43 While the nature of the property sought to be protected varied, the consistent theme in all of the letters provided by the Applicant’s clients was to the effect that they required the services of armed security guards for alarm response and most of all protection. The Applicant further submitted that it was important for his clients’ privacy to be protected and, accordingly, while describing the assets to be protected as high value assets, he was unwilling to provide more detailed particulars of those assets. He further stated that to ask for a risk assessment of each client individually is unreasonable and not a practice that all applicants for pistol licences have had to satisfy.

44 The Applicant drew the Tribunal’s attention to his 29 years experience in the industry and Mr Lachlan Knight, in support of the Applicant, made reference to his status as an accredited firearm instructor with the Firearms Registry from the early ’90s until approximately 2002.

45 In Mr Lachlan Knight’s submission to the Tribunal as support person for the Applicant dated 22 July 2007 he stated:

"The use of a firearm as a licensed security guard by virtue of an H Class Business Pistol Licence is permitted by the wording of section 12(2)(a) and (b) of the Firearms Act 1996. The legislatures have made it clear those security professionals and law abiding gun owners are not to be treated unfairly and have also made it clear that only certain sections of the community will have access to weapons for the use of personal protection and the protection of a third person, such as police, security and military personnel."

46 Mr Lachlan Knight also alluded to the Standard Operating Procedures when the safety or security of a firearm is compromised and indicated his awareness of the obligations under the legislation of licence holders in the event that a firearm is stolen.

47 He submitted that the use of a firearm as a licensed security guard to protect his or her life or life of a third person if it is apparent an attack is about to end life, is clearly spelled out in section 12 of the Firearms Act 1996.

48 The Applicant submitted that he had provided sufficient evidence to demonstrate that Botany Mascot Security has a genuine reason for the Category H Licence and, in addition, that he had a special need to possess a pistol. Furthermore, the Applicant submitted that he had demonstrated that it was necessary to possess or use the firearms for which the licence is sought in the conduct of his business or employment.

49 Mr Robinson gave evidence before the Tribunal and was subject to cross-examination. He tendered documents that identify a number of his clients and address the issue of the nature of the security work that he performs. He elaborated on this in oral evidence before the Tribunal. He informed the Tribunal that in relation to some of his clients the goods are bonded stores and it was impossible to have those clients give a detailed breakdown of the goods. Mr Robinson indicated that the loss of his licence had led to a gradual loss of business over the past few years. The Applicant also gave evidence of material that had previously been provided to the Firearms Registry by way of a report prepared by Mr John Murray, of Security Advisory Services Pty Ltd, who had conducted an assessment required by the Firearms Registry. Mr Robinson submitted that the cost of obtaining Mr Murray to conduct a full inventory of each of his premises would be prohibitive for himself as a small business operator and would work a disadvantage to smaller security firms who are less able to outlay such sums of money.

50 The respondent had conceded in previous proceedings that there may be consequences for small business if the cost of establishing the existence of a genuine reason for holding a licence is high, however the onus remains on the applicant to do so.

THE RESPONDENT’S CASE

51 The Respondent filed a Brief of Evidence and reiterated his reliance on the material contained within it. The Respondent submitted that section 12 of the Act describes the reasons for which a firearms licence may be issued and that this section reflects the various Australian Police Ministers Council (APMC) resolutions which are referred to during the Second Reading of the Firearms Bill on 25 June 1996.

52 As indicated above, the Respondent in a letter dated 12 July 2007 informed the Registrar that the Respondent was prepared to give favourable consideration to the deletion of the condition in dispute being: "Firearms are not to be used for alarm responses". The Respondent went on, however, to say that he was not prepared to give favourable consideration to the deletion of the "standard" condition that:

"Firearms are not to be used for personal protection or the protection of any other person –

The carriage of a firearm is not permitted for personal protection or the protection of any other person (section 12(2) Firearms Act 1996."

53 In the Respondent’s submissions of 25 July 2007 the Respondent referred to sections 12 and 19 of the Firearms Act 1996 and made specific reference to the authority vested in the Commissioner of Police to impose conditions on pre-existing licences as recognised in the decision of Tolley v The Commissioner of Police, NSW Police [2006] NSWADT 149 where it was stated at [26]:

"[26] The discretion given to the Commissioner to impose conditions is very broad and there is no indication within the Firearms Act as to how it is to be exercised. See Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph 23:

"There is no guidance in the legislation in relation to how these discretions should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act." "

54 The Respondent further referred to section 12 of the Act which prescribes the reasons for which a firearms licence may be issued. The Respondent submitted that the condition is a simple reflection of section 12(2) and is only sought to be relied upon in this context. The Respondent therefore concluded that the licence cannot be issued for:

(a) personal protection or the protection of any other person; and

(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table).

55 The Respondent submitted that the condition the subject of dispute which the Applicant seeks to have deleted from his Category H Business Firearms Licence: "Firearms not to be used for: The carriage of a firearm is not permitted for personal protection or the protection of any other person (section 12(2) Firearms Act 1996)" is a condition inserted on all relevant licences as a matter of course. That the Report on the Review of the Firearms Act 1996 by the Director General of the Ministry of Police dated 19 June 2000 and tabled in Parliament stated at page 100:

"Resolution 3 of the National Firearms Agreement requires all jurisdictions to confirm that personal protection is not a genuine reason for owning, possessing or using a firearm. Subsection 12(2) of the Act implements this resolution. There is no provision there for the issue of licences for the reason of personal protection."

56 The Respondent went on to refer to a further extract from the Report on the Review of the Firearms Act 1996 which stated:

""Business or employment" constitutes a recognised genuine reason for the issue of a firearm licence under section 12. To establish this genuine reason, the Act provides that "the applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the firearm for which the licence is sought." No further clarification of this definition is provided in the legislation. However, current policy in respect to this genuine reason is to issue a firearm licence for the protection of property only where the applicant is an appropriately licensed security guard as such protection is their primary role."

57 The Respondent stated that it was his understanding that the Applicant wishes to (amongst other reasons) escort an elderly lady to her vehicle whilst he is armed and the Respondent submitted that the authority of the Applicant’s licence does not and cannot permit the use of his firearm for this reason pursuant to the relevant legislation. The Respondent further submitted that in the course of the duties authorised by the Applicant’s respective licence, if the Applicant finds himself in a position where there is no other alternative other than to use his firearms in self-defence, the lawfulness of his actions will be considered in the context of the law of self-defence as prescribed by section 418 of the Crimes Act 1990 onwards and as enunciated in R v Katarzynski [2002] NSWSC 613. The Respondent concluded by saying:

"It is respectfully submitted that the condition sought to be imposed upon the Applicant’s licence and relevant to this argument, is not sought to restrict the Applicant in relation to any issue of self-defence which may arise. The law of self-defence is complex and it is submitted that the condition is only a reflection of the authority vested in the licence pursuant to section 12(2)."

58 The Respondent concluded by requesting the Tribunal affirm the decision of the Commissioner of Police to place the condition in issue, that is, "that the firearm is not to be used for personal protection or the protection of any other person" upon the Applicant’s Category H Firearms Business Licence.

FINDINGS

59 Both the Administrative Decisions Tribunal as constituted by Judicial Member Montgomery on 24 March 2006 and the Appeal Panel of the Administrative Decisions Tribunal on 25 July 2006 as constituted by Deputy President N. Hennessy have determined (albeit for different reasons) that the decision of the Commissioner of Police to revoke the Applicant’s licence should be set aside, the consequence of which is that the Applicant’s licence was valid and remained unexpired until November 2007.

60 The Respondent on 27 April 2007 purported to reinstate the Applicant’s Firearms Licence with the imposition of special conditions not previously forming part of the Applicant’s Category H Licence. The consequence of this action was that the Applicant was unable to reap the benefit of the decisions of Judicial Member Montgomery and subsequently Deputy President Hennessy to have his licence reinstated as it was prior to revocation by the Respondent.

61 While there is dispute as to when the Applicant was informed of the imposition of these conditions, the issue before the Tribunal in these proceedings is whether or not the imposition by the Commissioner of Police of the condition(s) remaining in dispute is appropriate. The role of the Tribunal is to determine whether, having regard to the underlying facts in the matter and the applicable law, the decision of the Commissioner is the correct and preferable one: see section 63 Administrative Decisions Tribunal Act 1997.

62 The Tribunal is to make its own decision and there is no presumption that the decision of the Commissioner is correct: section 63(1) of the Administrative Decisions Tribunal Act 1997; McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357. The Tribunal undertakes a review of the merits of the original decision and is obliged to reconsider all of the material first considered, together with any other relevant material so as to confirm the original decision, vary it, or set it aside and substitute another: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 60 at 77.

63 Section 19(1) of the Firearms Act 1996 provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

64 The discretion given to the Commissioner to impose conditions is very broad and there is no indication within the Firearms Act as to how it is to be exercised: see Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23]:

"There is no guidance in the legislation in relation to how these discretions should be exercised. In my view, the discretion should be exercised in any way which promotes the principles and objects of the Firearms Act. The Firearms Act 1996 sets up a comprehensive scheme for licensing persons in New South Wales to possess and use firearms. The principles and objects of the Act are set out in section 3. Relevantly, they are to confirm that firearm possession and use is a privilege conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms.

Public safety is not defined in the Firearms Act 1996. However, the Tribunal’s Appeal Panel considered the public interest in the context of security industry licensing in Commissioner of Police, NSW Police Service v Toleafoa [1999] NSWADTAP 9. At paragraph [25] it stated 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"."

65 The issue to be addressed by this Tribunal is whether considerations of public interest or concern for the risk to public safety justify the imposition of the proposed conditions. That is to say, whether the inconvenience suffered by the Applicant as a consequence of the imposition of these conditions is necessary to ensure public safety.

66 The circumstances of the Applicant in this case differ significantly from those of the applicant in the case of Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 being a decision relied upon by the Respondent. In Tolley’s case the condition sought to be imposed, "firearms not to be stored or possessed at your residential address", was proposed in the light of the applicant’s son, Stuart Tolley, having been convicted of serious drug offences, including commercial supply, such offences were alleged to have been conducted from the premises of the Applicant. The potential inconvenience to the applicant, Tolley, from the imposition of a condition requiring him to store his firearms otherwise than at his residential address is hardly comparable to the "inconvenience" that the Applicant will face if the conditions here under review remain. They will seriously compromise his business.

67 Given that these conditions seriously compromise the Applicant’s ability to perform his business and that the Respondent has failed to provide any convincing evidence of a risk to public safety or public interest considerations that would justify the imposition of the conditions in dispute, the conditions cannot be justified unless there are other compelling considerations. For the reasons set out below I find no such considerations exist in this case.

68 The Respondent has provided copies of decisions with his submissions in the mattes of Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 and QR v Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 59 in the context of security industry licensing requiring applicants to be "fit and proper persons" in accordance with the Security Industry Act 1997. The evidence before the Tribunal is that Mr Robinson is the sole proprietor of the Applicant business of Botany Mascot Security and he has worked in the security industry for the past 29 years and has held a firearms licence in one form or another for the past 24 years. No evidence has been placed before the Tribunal to contradict this evidence nor to raise doubt as to whether Mr Robinson can be said to be a fit and proper person.

69 The proceedings before this Tribunal concerned two conditions that the Commissioner of Police had sought to impose on the Applicant’s Category H Firearms Licence:

(i) Firearms are not to be used for Alarm responses.

(ii) Firearms are not to be used for personal protection or the protection of any other person – The carriage of firearms is not permitted for personal protection or the protection of another person (section 12(2) Firearms Act 1996).

"(i) Firearms are not to be used for Alarm Responses"

70 Re condition (i) – that is the condition which prohibited the Applicant from attending his clients’ premises whilst armed to answer a communicated breach of security within their premises (this is commonly known as an Alarm response), was the subject of correspondence from the Respondent in which it was indicated that the Respondent was prepared to give favourable consideration to the deletion of this condition.

71 I note the Respondent has indicated that he was prepared to give favourable consideration to the deletion of this condition, but I find in any event that the imposition of this condition is not warranted. The Applicant gave evidence that when he first applied for his business pistol licence that he had asked that it be issued for the purpose of carrying out all security activities and obligations within the security industry and that a risk assessment had been accepted by the Registry which gave detailed information regarding the service he provides in carrying out alarm response as well as other security activities. The Applicant further provided a number of letters from various clients who attested to their need for the provision of armed guards, thereby demonstrating the need for the guards to carry firearms for alarm purposes.

72 The Applicant gave evidence before the Tribunal that while a number of his clients were reluctant to provide precise details of goods held in premises they nevertheless confirmed their need for armed guards for alarm responses for the protection of their premises. The Applicant gave evidence that he worked in the security industry for the past 29 years, has had a firearm licence of one form or another for the past 25 years and has been engaged in providing armed security services to clients throughout that period. The Applicant further submitted that alarm responses are not a separate business licence, but are part of everyday security activities. In light of the above submissions and in the absence of compelling submissions from the Respondent to refute them, I am satisfied on the balance of probabilities that there is no evidence of risk to public safety or public interest considerations to justify the imposition of this condition. Accordingly, the condition which states that the firearms are not to be used for alarm responses is set aside.

"(ii) Firearms not to be used for personal protection or the protection of any other person"

73 The Respondent in a letter dated 12 July 2007 informed the Registrar that the Respondent was not prepared to give favourable consideration to the deletion of the standard condition that:

"Firearms are not to be used for personal protection or the protection of any other person – The carriage of firearms is not permitted for personal protection or the protection of any other person section 12(2) Firearms Act 1996."

74 I accept the Applicant’s evidence of material that he has previously provided to the Firearms Registry by way of a report prepared by John Murray of Security Advisory Services Pty Ltd who had conducted an assessment required by the Firearms Registry.

75 I note that Judicial Member Montgomery on 24 March 2006 found that the Applicant had provided sufficient evidence to demonstrate that Botany Mascot Security has a genuine reason for the Category H Licence and has further demonstrated that there is a special need for using a firearm of the type authorised by the Category H Licence. JM Montgomery stated]:

"I am satisfied on the evidence before me that Mr Robinson (the Applicant) has a genuine reason and a special need for the licence he seeks ... I do not have concerns that Mr Robinson’s holding of this licence is likely to increase the risk to safety to a greater extent."

I find that the Applicant has demonstrated that he has a genuine reason for possessing and using the firearm because the Applicant has demonstrated that it is necessary in the conduct of the Applicant’s business or employment to possess or use the firearm for which the licence is sought. That is to say I am of the opinion that the Applicant has demonstrated that he has a genuine reason for having a Category H Licence by virtue of the evidence which demonstrates that he falls within the exception "business or employment" identified in the Table to section 12.

76 I am further satisfied that section 16 of the Act – Category H Licences – Restrictions On Issue (which prevents the Commissioner from issuing a Category H Licence to any person unless that person has a genuine reason for the licence, and in addition the person produces evidence to the Commissioner’s satisfaction that there is a special need for the person to possess a pistol) offers no constraint to the issue of a licence to the Applicant because the Applicant falls within the identified exception in section 16(1)(a)(ii) "business or employment" and has further met the precondition of establishing a special need in accordance with section 16(1)(b).

77 While the Respondent submitted that condition (ii), the subject of dispute (appearing in paragraph 73 above), which the Applicant seeks to have deleted from his Category H Business Firearms Licence is a condition inserted in all relevant licences as a matter of course, that is not to acknowledge the exceptions provided for in sections 12 and 16 of the Act whereby the Applicant has demonstrated that he has a genuine reason for being issued with the licence as it is necessary in the conduct of his business or employment to possess or use the firearm for which the licence is sought.

78 The Respondent referred to the Report on Review of the Firearms Act 1996 by the Director General of the Ministry of Police dated 19 June 2000 and tabled in Parliament, in particular, to the following extract:

""Business or employment" constitutes a recognised genuine reason for the issue of a firearm licence under section 12. To establish this genuine reason, the Act provides that "the applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the firearm for which the licence is sought." No further clarification of this definition is provided in the legislation. However, current policy in respect to this genuine reason is to issue a firearm licence for the protection of property only where the applicant is an appropriately licensed security guard as such protection is their primary role."

The Applicant gave evidence that the licence is required to carry on security activities of patrolling, protecting, watching or guarding property and alarm responses of properties. Further, the Applicant drew the Tribunal’s attention to his 29 years’ experience in the industry and the fact that he has held a firearm licence in one form or another for the past 25 years.

79 While the Respondent made reference to the Australian Police Minister’s Council (APMC) Resolutions which are referred to during the Second Reading Speech of the Firearms Bill on 25 June 1996 which makes reference to the view that the legislation puts the public’s right to safety before the privilege of gun ownership and the obligation of the Applicant to satisfy the genuine reason test before being issued with a licence in Category B, C, D or H and the general obligations incumbent upon a licence holder to ensure that all firearms and ammunition are safely stored and do not fall into the hands of an unauthorised person, I am nevertheless satisfied that the grant of a Category H Licence to the Applicant without the imposition of the conditions in dispute would not compromise public safety.

80 In light of the above, I find there is no warrant at law to impose the conditions in issue upon the Applicant’s Category H Firearms Licence, but even if there was, I accept the Applicant’s uncontradicted evidence with respect to his genuine reason and special need and that he has demonstrated that it is necessary in the conduct of his business or employment to possess or use the firearm for which the licence is sought.

81 In so far as the Respondent in the letter dated 25 March 2007 sought to assert that "because the special conditions had been imposed for nearly 1 year (as advised to the company’s licence holder and the solicitor on 27 April 2006) it is most likely that any such request would have been refused in this instance", I am satisfied that the Applicant was not aware of the imposition of these conditions and, even if the Applicant were to have been aware, the Applicant would have challenged them. In any event, if conditions are not validly imposed, it matters not how long they have been purportedly imposed. The length of period for which the conditions are said to have been imposed does not convert invalidity into validity simply by the effluxion of time.

82 For the reasons outlined above, I am not satisfied that any risk to public safety or considerations of public interest justify the imposition of the special condition (ii) which states that firearms are not to be used for "personal protection or the protection of any other person – the carriage of a firearm is not permitted for personal protection or the protection of any other person" (section 12(2) Firearms Act 1996).

Accordingly, this condition is set aside.