AQUILIA and COMMISSIONER OF POLICE

[2012] WASAT 27

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)

CITATION:   AQUILIA and COMMISSIONER OF POLICE [2012] WASAT 27

MEMBER:   MR D AITKEN (MEMBER)

HEARD:   22 DECEMBER 2011

DELIVERED          :   22 DECEMBER 2011

PUBLISHED           :  14 FEBRUARY 2012

FILE NO/S:   VR 173 of 2011

BETWEEN:   ANTONIO AQUILIA

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Security and Related Activities (Control) Act 1996 (WA) ­ Review of decision not to grant a firearm endorsement to a security officer's licence ­ Factors to be taken into account in exercise of discretion ­ Protecting public confidence in and professional standards of security industry ­ Responsible conduct in relation to firearms and ammunition

Legislation:

Firearms Act 1973 (WA), s 23(9)
Interpretation Act 1984 (WA), s 51
Security and Related Activities (Control) Act 1996 (WA), s 7(1), s 7(1)(b), s 24 s 24(1), s 24(5), s 52, s 52(1)(c), s 68, s 72(2)(a)
Security and Related (Control) Regulations 1997 (WA), reg 10, reg 11
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)

Result:

Decision under review affirmed
Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr I McLeod

Respondent:     Senior Constable S Bagley

Solicitors:

Applicant:     Northern Suburbs Community Legal Centre

Respondent:     Self-represented

Case(s) referred to in decision(s):

Grover v Commissioner of Police [2005] WASC 263

Minister for Aboriginal Affairs v Peko­Wallsend Ltd (1986) 162 CLR 24

Penketh v Commissioner of Police [2010] WASC 254

Real Estate and Business Agents Supervisory Board and Mavaddat [2008] WASAT 193

Tavelli v Johnson (unreported; WASC, Library No 960693, 25 November 1996)

The Registrar, Real Estate and Business Agents Advisory Board v Barnett (unreported, Full Court of the Supreme Court in Western Australia, Library No 170426, 26 August 1997)

Wignall and City of Perth [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr Antonio Aquilia sought a review of the decision by the Commissioner of Police not to grant a firearm endorsement to his security officer's licence held under the Security and Related Activities (Control) Act 1996 (WA). He had previously held a firearm endorsement, but it had been cancelled when he failed to provide a medical fitness certificate which he was required to provide every 12 months as a term of the endorsement.

2. Before the cancellation of the firearm endorsement, whilst Mr Aquilia was on duty as an armed security guard, he left a loaded handgun in a public toilet at a service station.  He only realised that he had done so about 20 minutes later, and returned to the service station where the gun had been kept secure after it was discovered by a member of the public.

3. There being no criteria set out in the Security and Related Activities (Control) Act 1996 (WA) in respect of the discretion of the Commissioner of Police to grant a firearm endorsement, the Tribunal considered which factors should be taken into account in the exercise of the discretion. The Tribunal decided that protecting public confidence in and the professional standards of the security industry, and responsible conduct in relation to firearms and ammunition, are significant factors to be taken into account.

4. The Tribunal concluded that the correct and preferable decision was that a firearm endorsement should not be granted to Mr Aquilia and affirmed the decision of the Commissioner.

5. The Tribunal's reasons, which were given orally at the conclusion of the hearing and have been taken from the transcript and edited in minor respects, were as follows.

Introduction

1. The applicant, Mr Antonio Aquilia, is the holder of a security officer's licence under the Security and Related Activities (Control) Act 1996 (WA) (SRA Act).

2. On 17 August 2011 Mr Aquilia applied to the respondent, the Commissioner of Police (Commissioner or respondent), for an

   
   

   endorsement to his security officer's licence under s 24 of the SRA Act to authorise him to be in possession of a firearm while engaged in the activities of an armed security guard (firearm endorsement).

3. On 2 September 2011 a licensing officer appointed by the Commissioner under s 7(1) of the SRA Act (licensing officer) notified Mr Aquilia of his decision not to grant a firearm endorsement, and Mr Aquilia has applied to the Tribunal for a review of that decision.

Issue

1. The issue to be decided by the Tribunal is whether a firearm endorsement should be granted to Mr Aquilia.

Facts

1. Mr Aquilia has worked as an armed security guard for 14 years.

2. There was a firearm endorsement on his security officer's licence until 15 June 2011, when it was cancelled (pursuant to s 68 of the SRA Act) due to his failure to comply with a term of the endorsement which required him to provide a medical certificate every 12 months declaring him to be physically and psychologically fit for the use and carriage of a firearm. The licensing officer had written to Mr Aquilia on 24 May 2011 telling him his medical certificate had expired and giving him 21 days to respond, which he failed to do.

3. Mr Aquilia has told the Tribunal that this was an oversight on his part.  He acknowledged that the letters of 24 May 2011 and 15 June 2011 from the licensing officer were addressed to his correct address, but he was unable to explain why he had not responded to them.

4. On 20 April 2011 Mr Aquilia was on duty as an armed security guard accompanying a technician who was servicing automatic teller machines.  He was carrying a Glock semi­automatic handgun fitted with a magazine containing 10 rounds of ammunition.  He had been suffering from bowel problems on the day and went to a service station to make use of its public toilet.  Mr Aquilia entered the toilet, which consisted of a room containing one lavatory, a basin and a cabinet on the wall.  He removed the gun from its holster for hygiene reasons as its weight was dragging his pants on to a particularly dirty floor, and placed it on top of the wall cabinet.  When Mr Aquilia exited the toilet, he forgot to take his gun with him, which remained in the toilet until it was found by a member of the public, who handed it in at the service station counter.

5. Mr Aquilia noticed that the gun was missing from its holster approximately 20 minutes after leaving the service station in the van in which he was travelling.  He returned immediately to the service station, arriving about 45 minutes after he had left, and retrieved the gun from the service station manager who had secured it in a safe.  He immediately notified his employer and, on returning to the base that night, he made a written report.  On 25 April 2011 Mr Aquilia ceased employment with the security company.

6. On 25 July 2011 Mr Aquilia was contacted by the police and he participated in an interview that day.  In the interview he admitted the facts and stated that it was a lapse in concentration by him.

7. Mr Aquilia received an offer of employment from another security company on 17 August 2011.  He realised at that time that his firearm endorsement had been cancelled and applied for a new firearm endorsement.

8. Mr Aquilia was charged by summons on 31 August 2011 with an offence under s 23(9) of the Firearms Act 1973 (WA) (Firearms Act) of failing to ensure safekeeping of a firearm (firearm offence).

9. The licensing officer made the decision on 2 September 2011 not to grant a firearm endorsement on the grounds that Mr Aquilia was not a fit and proper person under s 52(1)(c) of the SRA Act, due to the charge which was pending against him.

10. Mr Aquilia entered a plea of guilty to the firearm offence on his first appearance in the Magistrates Court on 14 September 2011, and was sentenced on 5 October 2011, when he was fined $300 and given a spent conviction.

11. Mr Aquilia filed his application for a review of the decision not to grant a firearm endorsement on 27 September 2011.

Role of the Tribunal in a review proceeding

1. Under s 72(2)(a) of the SRA Act a decision of a licensing officer to refuse to grant a firearm endorsement is a reviewable decision.

2. Under s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the Tribunal considers an application for a review of a reviewable decision de novo, which means that the Tribunal is standing in the shoes of the licensing officer with the functions and discretions exercisable by the licensing officer under the SRA Act, and is not confined to the matters which were before the licensing officer.

3. Under s 27(2) of the SAT Act the purpose of the review is to produce the correct and preferable decision at the time of the review.

Contentions by the Commissioner

1. The Commissioner contends (with Mr Aquilia's responses noted) that the following criteria should be applied by the Tribunal in deciding whether a firearm endorsement should be granted to Mr Aquilia:

   1)Firearms legislation in Western Australia is very stringent, and potential licence holders are required to go through an array of processes before they are licensed. For security officers it is through a firearm endorsement attached to their licence that they are given the right to carry a firearm as a requirement of their occupation. Mr Aquilia agrees with this contention, adding that a security officer must first be issued with a security officer's licence under s 52 of the SRA Act before a firearm endorsement can be added to that licence.

   2)The Tribunal has a duty to protect the interests of the public and maintain public confidence in the security industry.  The public has an expectation and a right to believe that the holder of a firearm endorsement is someone who can be entrusted with that privilege. Mr Aquilia agrees with this contention.

   3)Mr Aquilia's actions were reckless and careless.  Had the firearm fallen into the wrong hands, the outcome of his actions could have been very different.  Mr Aquilia does not agree with this contention.

   4)Mr Aquilia is not a fit and proper person to be the holder of a firearm endorsement.  Mr Aquilia does not agree with this contention for two reasons.  Firstly, he says that this is not a relevant criterion and, secondly, he says that, even if it is a criterion, he is a fit and proper person.

   5)The firearm offence was extremely serious.  Mr Aquilia does not agree with this contention.

   6)Maintaining industry standards is a significant factor to be taken into consideration.  Mr Aquilia does not agree with this contention.

   7)If, at the time of the firearm offence, Mr Aquilia had held a firearm licence under the Firearms Act, instead of being entitled to be in possession of a firearm pursuant to the firearm endorsement (the firearm being licensed to his employer), then his firearm licence would have been revoked due to his conviction. Mr Aquilia did not dispute this contention.

   8)An insufficient period of time has expired since the firearm offence for it to be appropriate for a firearm endorsement to be given to Mr Aquilia.  Mr Aquilia does not agree with this contention, saying that eight months has now passed since the date of the firearm offence.

Contentions by Mr Aquilia

1. Mr Aquilia contends (in addition to his responses to the contentions by the Commissioner) that the following criteria should be applied by the Tribunal in deciding whether a firearm endorsement should be granted to him:

   1)The criteria in s 52 of the SRA Act do not apply to a decision to grant a firearm endorsement.

   2)Taking into account the provisions of s 24 and s 68 of the SRA Act and reg 10 and reg 11 of the Security and Related Activities (Control) Regulations 1997 (WA) (SRA Regulations), the following requirements must be satisfied for a firearm endorsement to be granted, and have been satisfied by Mr Aquilia:

   i)the person must hold a security officer's licence;

   ii)the endorsement must be required for the escort of money (or other prescribed purpose);

   iii)the applicant must have passed a medical examination within the previous month;

   iv)the applicant must have undertaken firearm training courses within the previous six months; and

   v)the licensing officer must be satisfied that the safety or welfare of members of the public is not at risk from the endorsement.  Mr Aquilia contends that the firearm offence does not demonstrate any pattern of behaviour, disposition or likeliness to reoffend, so as to put the welfare or safety of the members of the public at risk.

   3)Because armed guard work is Mr Aquilia's profession and livelihood, the hardship that he will suffer if he is no longer allowed to work in this area should be taken into account.

   4)Public safety is the main criterion rather than maintaining industry standards.

Should a firearm endorsement be granted to Mr Aquilia?

1. Section 24(1) of the SRA Act provides that a firearm endorsement may be made to a security officer's licence by a licensing officer to authorise the security officer to be in possession of a firearm while engaged in various prescribed activities. Section 24(5) of the SRA Act provides that the regulations made under the SRA Act may make provision for, and in respect of, applications for such endorsement. Regulation 10 of the SRA Regulations contains those provisions.

2. Section 51 of the Interpretation Act 1984 (WA) provides that where a written law confers a power upon a person to grant an authority, the person so empowered shall have a discretion to either grant or refuse to grant such authority.

3. Section 24 of the SRA Act does not set out any criteria in respect of the exercise of the discretion to grant a firearm endorsement; unlike s 52 of the SRA Act, which does set out criteria which must be satisfied before a licence can be issued under the Act. Therefore, on the face of it, s 24 of the SRA Act gives the licensing officer, and on a review, the Tribunal, an unfettered discretion to either grant, or refuse to grant, a firearm endorsement.

4. Although the discretion under s 24 is unfettered, that does not mean that there are no limitations to the exercise of the discretion.

5. In Minister for Aboriginal Affairs v Peko­Wallsend Ltd (1986) 162 CLR 24 at [39] ­ [41] Mason J (as he then was) said:

   What factors a decision­maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors … are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act … [W]here a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far [sic] as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision­maker may legitimately have regard …

   … in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters that are required to be taken into account in exercising the statutory power …

6. Grover v Commissioner of Police [2005] WASC 263 was an appeal to the Supreme Court of Western Australia of a decision of the Tribunal to affirm the decision of the Commissioner to refuse to issue a security officer's licence under the SRA Act. In considering the legislative intention of the SRA Act, Johnson J at [14] and [46] stated as follows:

   … [T]he Tribunal further noted that in Collins v Estate Agents Board (1994) 7 VAR 394 the Administrative Appeals Tribunal made it clear (at 399) that the consideration of the Tribunal must be primarily directed towards the protection of the public confidence in, and the professional standards of, the industry that the Act is regulating.

   … The grant of any of the licences under the Act confers on the applicant a privilege; the statutory provisions do not establish pre­conditions to the exercise of a right. … [A]n interpretation … consistent with the legislative intention and in accordance with the public interest … as the Tribunal observed, includes public confidence in the security industry.

7. Those statements are equally applicable to the grant of a firearm endorsement under s 24 of the SRA Act. Protecting public confidence in, and the professional standards of, the security industry, including armed security guards, is clearly an important aspect of the scope and purpose of the SRA Act and must be significant factors to be considered in the exercise of the discretion to grant or refuse to grant a firearm endorsement.

8. Penketh v Commissioner of Police [2010] WASC 254 was an appeal to the Supreme Court of Western Australia of a decision of the Tribunal to affirm the decision of the Commissioner to revoke a licence under the Firearms Act. In considering the legislative intention of the Firearms Act, Simmonds J at [47] ­ [49] stated as follows:

   I consider that the following from [Re Jones; Ex parte Commissioner of Police [1999] WASCA 246] as to the Firearms Act supports [the view that a person's appreciation of the need for responsible conduct in relation to firearms and ammunition is of particular significance]:

   It is clear from the long title and the provisions of the Act that its objects include the control and regulation in the public interest, including safety, of firearms and ammunition and the limitation, by a restrictive licensing scheme of those who may possess, use, deal in or manufacture firearms and ammunition.  The system of control and regulation is administered by the Commissioner of Police and includes power to prohibit the possession, use or dealing in types of firearms.  Substantial penalties, including imprisonment in some cases, are provided for breaches of the Act.

   The 'control and regulation' referred to in my view underscores the importance of responsible conduct in relation to firearms and ammunition of those holding licences under the restrictive scheme in the Firearms Act.

   I find further support for the view I hold in the authorities that emphasise, in the context of disqualification from holding a firearms licence … that a firearms licence is a 'privilege, not a right': Schamotta v The Queen [2002] WASCA 262 [15] (Murray J, Wheeler J & Burchett AUJ); see also Binns v Gardiner [2004] WASCA 275 [40] (Templeman J; Jenkins & Simmonds JJ agreeing). A holder of a licence has a responsibility not to abuse the privilege which that holder enjoys.

9. A licence under the Firearms Act is not required to be held by a licensed security officer to enable that person to carry a firearm if they hold a firearm endorsement under s 24 of the SRA Act and their employer holds a licence for the firearm. However, the importance of responsible conduct in relation to firearms and ammunition is equally applicable, and of particular significance, to persons who have the privilege of holding a firearm endorsement as it is to persons who have the privilege of holding a firearm licence.

10. The Macquarie Dictionary (4th ed, 2005) defines 'responsible' to include 'involving accountability' and 'showing reliability' and The Shorter Oxford Dictionary (5th ed, 2002) similarly defines 'responsible' to include 'accountable for one's actions' and 'capable of fulfilling an obligation or trust' and 'reliable'.  Responsible conduct involves both accountability and reliability.

11. Turning to the contentions made by Mr Aquilia, the Tribunal makes the following comments.

12. The Tribunal accepts Mr Aquilia's contention that the criteria in s 52 of the SRA Act do not apply to a decision to grant a firearm endorsement and there is, therefore, no fit and proper person test to be applied.

1. With regard to Mr Aquilia's contention that he has satisfied all the requirements of reg 10 and reg 11 of the SRA Regulations, that does not mean that a firearm endorsement must be granted. The fact that reg 10 of the SRA Regulations provides for an application for an endorsement under s 24 of the SRA Act to be in an approved form and to be accompanied by certain documentation does not mean that complying with those requirements mandates that such an endorsement be granted. The licensing officer, or in the case of a review, the Tribunal, still has a discretion under s 24 of the SRA Act to either grant or refuse to grant a firearm endorsement once the application is made. Regulation 11 of the SRA Regulations sets out the prescribed circumstances and times within which the prescribed medical examinations must be undergone by a security officer whose licence has been endorsed with a firearm endorsement. That is a requirement which applies after a firearm endorsement is granted, not before it is granted.

2. With regard to Mr Aquilia's contention that the firearm offence does not demonstrate any pattern of behaviour, disposition or likeliness to reoffend so as to put the welfare or safety of the members of the public at risk if a firearm endorsement were to be granted to him, the Tribunal does not consider this factor to be determinative.  The overriding factors, already detailed, are the importance of protecting and maintaining public confidence in, and the professional standards of, the armed security guard industry, and responsible, accountable and reliable conduct by persons who wish to enjoy the privilege of holding a firearm endorsement.

3. Counsel for Mr Aquilia referred to the decision of the Tribunal in Wignall and City of Perth [2006] WASAT 206 at [302] and [303], which states as follows:

   Indeed, it might also reasonably be said that, leaving aside s 11(1)(c) which deals with the fit and proper requirement, most,  if not all, of the other criteria set out in the [Firearms] Act have to do, directly or indirectly, with either the physical or mental capacity of an applicant to handle a firearm responsibly or safely, and[/]or the propensity of a person to use a firearm for an unlawful purpose.

   If this is right, as we think it is, it perhaps suggests that the fit and proper purpose requirement should also be interpreted along similar lines and be seen as a catch­all requirement that enables an application for a firearms licence to be refused where there remains a concern that the applicant is not be (sic) an appropriate person to hold a firearms licence on responsibility or safety grounds or out of concern for the possibility that the firearms might be used for an unlawful purpose, even though none of the other express requirements of the Firearms Act seem to apply in the circumstances.

4. Those statements emphasise that most of the criteria in the Firearms Act are concerned with the responsible and safe handling of a firearm. As has already been stated, the importance of the responsible and safe handling of a firearm is equally applicable to the grant of a firearm endorsement under the SRA Act as it is to the issue of a firearm licence under the Firearms Act.

5. Even though it was an isolated incident, the fact that Mr Aquilia not only left a loaded handgun in a public toilet, but then did not realise for a period of 20 minutes that the gun was not in his holster and that it had been left in the toilet, was conduct which fell well below the standard of responsible conduct which should be expected from a person who was enjoying the privilege of carrying a loaded handgun in performing his professional duties.  It is conduct which damages the public confidence in, and professional standards of, the armed security industry.

6. The fortuitous circumstances and responsible actions of a member of the public, who discovered the abandoned loaded handgun in the toilet at the service station and handed it to the service station staff, kept the gun secure and out of harm's way until Mr Aquilia returned to retrieve it approximately 45 minutes after he had left it there.  It is not difficult to imagine some of the dangerous consequences which may have eventuated if that had not occurred and an irresponsible adult or even a child had found the gun.

1. Counsel for Mr Aquilia referred to the decision of the Supreme Court of Western Australia in Tavelli v Johnson (unreported; WASC, Library No 960693, 25 November 1996). Wheeler J in that case considered how prior convictions should be regarded for the purpose of determining whether a person may be a fit and proper person to hold an inquiry agent's licence and, in doing so, stated that one of the factors which would cause a conviction to be regarded as more serious would be if it occurred in the course of, or related to, the carrying out of the occupation of inquiry agent.  As has already been stated, there is no fit and proper person test to be applied in respect of the grant of a firearm endorsement and, therefore, the factors outlined by Wheeler J in that decision are not directly relevant in this situation.  Nevertheless, the Tribunal notes that the firearm offence in this case occurred whilst Mr Aquilia was carrying out his occupational duties as an armed security guard, which certainly makes it serious in the statutory context of the SRA Act.

2. Finally, the Tribunal does not accept the contention that the hardship Mr Aquilia will suffer if he is not allowed to work as an armed security guard should be taken into account.  This is an issue which arises in many vocational regulation and disciplinary matters.

3. The following passage from Real Estate and Business Agents Supervisory Board and Mavaddat [2008] WASAT 193 at [14] provides a concise statement of the object of disciplinary proceedings:

   … The object of imposing disciplinary penalties is the protection of the public, and notwithstanding that the exercise of disciplinary powers may involve a great deprivation of the person disciplined, there is no element of punishment involved ­ NSW Bar Association v Evatt (1968) 117 CLR 177. As well as the protection of the public, disciplinary penalties serve to maintain proper professional standards ­ Paridis v Settlement Agents Supervisory Board [2007] WASCA 1997 at [25]. It is also necessary to deter others who may be of a like mind to transgress in the future ­  Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) per Owen J.

4. Further, Kennedy J in The Registrar, Real Estate and Business Agents Advisory Board v Barnett (unreported, Full Court of the Supreme Court in Western Australia, Library No 170426, 26 August 1997), stated at page 9:

   The fact that the respondent would be prevented from earning an income in the calling which he knows is also irrelevant if he is unable to attain the personal standards which the Act requires.

   In the circumstances, therefore, although it is acknowledged that there will be some economic detriment to Mr Aquilia, it is not a reason that should prevent a refusal to grant a firearm endorsement if it is the correct and preferable thing to do.

5. In conclusion, for the reasons which have been given, the Tribunal has decided that the correct and preferable decision is that a firearm endorsement should not be granted to Mr Aquilia, and the Tribunal affirms the decision by the licensing officer of the Commissioner to refuse to grant a firearm endorsement to him.

Order

1. It is ordered that:

   1.The decision of the licensing officer appointed by the respondent under s 7(1)(b) of the Security and Related Activities (Control) Act 1996 (WA) made on 2 September 2011 to refuse to grant a firearm endorsement on the applicant's security officer's licence under s 24 of the Act is affirmed.

   2.The application is dismissed.

I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D AITKEN, MEMBER