Christianos v Commissioner of Police

[1999] NSWADT 66

CITATION:	Christianos -v- Commissioner of Police [1999] NSWADT 66
DIVISION:	General
APPLICANT:	Emmanuel Christianos
RESPONDENT:	Commissioner of Police
FILE NUMBER:	993067
HEARING DATES:	07/05/1999
SUBMISSIONS CLOSED:	08/05/1999
DATE OF DECISION:	23 August 1999
BEFORE:	N Hennessy - Deputy President
PRIMARY LEGISLATION:	Firearms Act 1996
APPLICATION:	Review of decision to refuse personal pistol permit -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: A Quinlivan of counsel instructed by Colin Daley Quinn, Solicitors Respondent: G Doherty, solicitor, NSW Police Service
ORDERS:	1. The decision of the Commissioner of Police to refuse the applicant's application for a permit under the Firearms Act 1996 is affirmed. 2. Respondent ordered to pay the applicant's costs. If agreement cannot be reached between the parties, costs are to be assessed pursuant to the Legal Profession Act on a party/party basis.

Background

1 On 30 December 1998 the applicant, Mr Christianos, applied to the Commissioner of Police to renew his five year pistol permit which had expired on 2 December 1998. The Commissioner’s delegate, Mr Edwards, refused his application under the Firearms Act 1996. The Notice of Refusal stated that:

I am not satisfied you have a genuine reason for possessing and using a firearm in that you intend to possess or use the firearms for:

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

(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).

2 On 18 March 1999 the applicant provided additional information and requested an internal review of the decision. That internal review affirmed the original decision and stated that:

A. Findings of Fact per material provided:

It is apparant (sic) from the submission made on your behalf by Colin Daley Quinn, solicitors, that you are a trader in opal and other gems. The submission also indicates that cash is used to purchase opal and that you have large quantities of cash and opal regularly in your possession. The submission further states that you previously held a pistol license to provide security for those possessions.

Notwithstanding the submission made I am of the opinion that you do not have a genuine reason for possessing or using a firearm as self protection or the protection of personal property is contrary to the Firearms Act 1996.

One of the underlying principles of the Firearms Act, 1996, is to improve public safety by imposing strict controls on the possession and use of firearms.

Your application for a personal pistol permit is refused as you do not have a genuine reason to posses or use a pistol pursuant to section 12(a) and (b) of the Firearms Act, 1996.

B. Understanding of Law:

Section 12(2) of the Firearms Act 1996 indicates that 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

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


C. Reasoning Process:

The decision to refuse your application for a personal pistol permit was made as a result of the legislative requirements as described above.

Having considered the matters set out above in the statement of reasons I am satisfied that you are a person not entitled to be the holder of a personal pistol permit.

3 On 16 April 1999 the applicant lodged an application with the Tribunal to review this decision.

Evidence

4 Mr Christianos gave evidence that he began buying and selling opals in 1963. Later he also mined opals and at one time he was the largest miner of opals in Australia. He reduced his mining operations at the end of 1998. Currently he exports opals to the United States and exhibits opals overseas.

5 Mr Christianos said that he first obtained a pistol licence in 1962. That licence was renewed each year until 1994 when he was given a five year licence which expired on 2 December 1998. Beside the heading “Class” that licence has the words “Pistol Permit”.

6 The applicant said that he needs to carry a pistol because he regularly travels by car or plane to buy opals from fields in New South Wales, South Australia and Queensland. He told the Tribunal that opal sellers only deal in cash so he withdraws cash from the bank when he reaches the opal fields. After purchasing the opals he puts them in the motel safe. His cheque butts for late 1998 and early 1999 show that he regularly bought opals valued at between $3,000 and $90,000. Mr Christianos then puts the opals in his car or takes them on the plane and travels back to Sydney. He is usually away for between one and two weeks although sometimes he can be away for up to six weeks at a time. Overall he is away from home for approximately nine months of the year.

7 Mr Christianos said that he has carried a pistol for 37 years and has never had a problem. He has never been robbed and said in cross examination that if he was confronted by someone who wanted to steal the opals he would try to “get away from the problem.” He said he would only use the pistol to “scare off” the person and “get out”. When asked about the feasibility of employing a security guard Mr Christianos said that it would cost him too much to have a security guard travelling with him.

Issues and Legislation

8 The first issue which arose was whether the hearing should proceed because, despite the use of the word “permit” in the statement of reasons and the internal review, the reasons given in both documents related to the refusal of a licence rather than a permit. The respondent sought instructions and confirmed that similar reasoning applied to the decision to refuse the permit. The hearing proceeded with the consent of the applicant, subject to an application for costs which will be dealt with below.

9 The Tribunal’s jurisdiction comes from s 38 of the Administrative Decisions Tribunal Act 1997 and s 75(a) of the Firearms Act 1996. Section 75(a) states that a person has the right to seek review from the Administrative Decisions Tribunal in relation to the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm).

10 The Firearms Act 1996 (the Act) was enacted “principally because of the tragic events that occurred in Port Arthur on 28 April this year.” (Hansard, Legislative Assembly 19 June 1996 Second Reading Speech, the Hon Mr Whelan, Minister for Police at p 3204). A new registration, licensing and permit scheme for firearms was put into place by this Act.

11 Section 3 of the Firearms Act 1996 sets out its underlying principles which 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, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

12 Briefly the Act provides for:

• a registration scheme for all firearms;
• a licensing scheme whereby New South Wales residents over the age of 18 must demonstrate a genuine reason for owning, possessing or using a firearm before they can do so;
• a permit scheme which 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.

13 Section 11(1) of the Act gives the Commissioner a discretion to grant or refuse an application for a licence. There are various mandatory and discretionary restrictions on the issuing of licences. One mandatory restriction is that the Commissioner must not issue a licence unless satisfied that the applicant has a genuine reasons for possessing or using the firearm (s 12(1)). Protection of property is not a genuine reasons unless one or more of the circumstances set out in the Table are satisfied. These include business or employment necessity.

14 There are several safeguards which apply to the licensing scheme including the fact that: all licensees must undertake adequate safety training; the licence must contain a reminder of safe storage responsibilities; and licenses are subject to immediate withdrawal in circumstances such as conviction for certain criminal offences.

15 The issuing of permits is governed by sections 28 and 29 of the Act and by the Firearms (General) Regulation 1997 (the Regulations). Section 28 of the Act, headed “General power to issue permits” states that:

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

(a) to authorise a person to acquire a firearm,

(b) to authorise the possession or use of firearms by minors in accordance with section 32,

(c) to authorise the possession or use of firearms in such circumstances as may be prescribed by the regulations (including

film or theatrical productions or other artistic purposes),

(d) to authorise the acquisition, selling or transfer of firearms in such circumstances as may be prescribed by the regulations,

(e) to authorise the shortening or conversion of firearms,

(f) to authorise the use of a firearm (being a firearm to which a category A, category B or category H licence applies) that is part of a licensed firearms collection in order to test it, or on a special occasion as specified in the permit,

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

(h) to authorise anything else that is required by this Act or the regulations to be authorised by a permit.

16 The Regulation sets out some specific circumstances which require a permit. These include:

• permit authorising possession of firearm as heirloom;
• firearms museum permit;
• permit for firearms used in film, television or theatrical production;
• international (temporary) visitors permits competitions;
• permit for tranquilliser firearms;
• permit to conduct paint-ball games; and
• permit to operate safari tours involving firearms.

17 As outlined above, the Act and the Regulation make it clear that a person needs a permit if he or she wants to acquire a firearm (s 28(a)) or if their circumstances fall outside the licensing regime. The first situation was described by the Hon Mr Whelan, Minister for Police, in the Second Reading Speech introducing the Bill in the following terms:

These permits are important as they are the start of the registration ‘audit trail’ and put police on notice that a firearm is to be registered. They also enable the police to check that the permit applicant is properly licensed to possess the type of firearm he or she wishes to acquire. (Hansard 19 June 1996, House of Representatives, p 3204 at 3206).

18 This passage highlights the fact that a person who obtains a permit to acquire a firearm may still be required to have a licence to possess or use the firearm.

19 The respondent submitted, and I accept, 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. The respondent added that applying for a permit to possess and use a firearm should not be used as a means of circumventing the restrictions that apply to the granting of a license.

20 The conclusion that permits (apart from those required to acquire a firearm) apply in circumstances not covered by the licensing scheme is supported by the Second Reading Speech. The Hon Mr Whelan, Minister of Police, stated that permits can still be issued for certain purposes such as allowing minors to acquire guns in certain circumstances under supervision, and for other purposes “such as film or theatre production or other artistic purposes, and for overseas shooters who are visiting Australia to participate in shooting competitions.” (p 3211)

21 Section 29 provides for both mandatory and discretionary restrictions on the issue of permits. As far as is relevant to this case, that section states that:

(1) A permit must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

(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.

22 As foreshadowed by s 29(5) the Regulation does contain other mandatory and discretionary grounds for refusing a permit. So far as is relevant, Cl 9 of the Regulation states that:

(2) The Commissioner may refuse to issue a permit if the applicant intends to possess or 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 Act).

23 The Table states as follows:

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 In summary the legislation gives the Commissioner a broad discretion to issue a permit in such circumstances as the Commissioner considers appropriate as long as the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. The respondent conceded that there was no issue as to whether the applicant met this description. I take this to mean that the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

25 One discretionary ground for refusing to issue a permit is where the firearm is to be used for the protection of a person or property. Where the use or possession is for the protection of a person, the Commissioner has a discretion to refuse the permit. Where the use or possession is for the protection of property the Commissioner does not have a discretion under Cl 9 to refuse a permit in circumstances where the applicant has demonstrated that the permit is necessary in the conduct of his or her business or employment. To refuse a permit in these circumstances, the Commissioner must rely on the general discretion in s 28(f) or that the granting of the permit would be contrary to the public interest under s 29(4).

26 This means that even if Mr Christianos demonstrates that it is necessary in the conduct of his business or employment to possess or use the firearm, the Commissioner is not bound to issue the permit. He still has an overriding discretion to refuse to issue the permit if he does not consider it appropriate or it is contrary to the public interest.

27 The issue to be decided is whether the Commissioner has made the correct or preferable decision in exercising his discretion to refuse to issue a permit in the circumstances of this case.

Reasoning and decision

28 The Commissioner rejected Mr Christianos’ application for a permit. This was the correct and preferable decision but it was made for the wrong reasons. Firstly, the Commissioner cited reasons applying to the rejection of a licence rather than a permit. Secondly, when this error was pointed out, the respondent used similar reasoning, relating to the permit provisions, to reject the application.

29 The Commissioner should have rejected Mr Christianos’ application for a permit under s 28(g) and s 29(4) because the circumstances were not appropriate for the issue of a permit and/or it was contrary to the public interest. It is the intention of the Act that a person in Mr Christianos’ position should apply for a licence. He is over the age of 18 years and a resident of New South Wales. He alleges that he requires a firearm for the purposes of his business or employment. His situation does not fall within any of the specific categories outlined in s 28 or the Regulation. Of course a person is entitled to apply for a permit in circumstances not covered by s 28 or the Regulation but those circumstances would have to be consistent with the situations covered in those provisions.

30 Mr Christianos will need to apply for a licence if he wishes to possess or use a firearm. His application will again be dealt with under the licensing provisions. These provisions oblige the Commissioner to refuse a licence if Mr Christianos’ reason for possessing or using the firearm is for the protection of property, unless he can demonstrate that it is necessary in the conduct of his business.

Costs

31 The applicant sought an order for costs under s 88 of the ADT Act. That section states that:

Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

32 This case relates to the review of a reviewable decision, not an original decision. Consequently, contrary to the respondent’s submission, s 88(3) does not apply. The basis on which the applicant claims costs is that the respondent rejected his application for a permit using reasons which were only applicable to an application for a licence. The applicant submits that had the Commissioner dealt with the matter as a permit “there would have been no need for an application to this Tribunal.” In addition he said that “had the Commissioner approached the matter upon the discretionary grounds, which he clearly has not, the decision may have been altogether in favour of the applicant in the granting of a permit.”

33 I do not accept either of these submissions. When the Commissioner was advised of the fact that the decision had been made using the licensing instead of the permit provisions, instructions were sought and the respondent confirmed that the rationale for refusal was similar under both the licensing and permit regimes. The administrator is not obliged to rely in support of the decision solely on the reasons advanced in the formal Statement of Reasons or internal review. (Re Jeans and Secretary, Department of Housing and Construction (1959) 2 ALD 337.) However, if the decision maker intends to alter the grounds relied on at the time of making the decision, notice should be given to the applicant and the Tribunal “well in advance of the hearing” (Re Geoffrey Thompson & Growers Cooperative Company Pty Ltd and Export Development Grants Board (1985) 7 ALN N242.)

34 It is true that the applicant did not know of the changed reasons “well in advance of the hearing.” He only knew of them on the day of the hearing. However, the applicant chose to proceed with the hearing of the application on the day it was set down and was not disadvantaged in terms of costs as a result of the respondent’s mistake.

35 However, there are other circumstances which, in my view, justify an order for costs against the respondent in this case. The respondent argued in written submissions after the hearing 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. I accepted this submission. The respondent added that applying for a permit to possess and use a firearm should not be used as a means of circumventing the restrictions that apply to the granting of a license. There is no evidence that the applicant applied for a permit to circumvent the restrictions applying to a licence. The fact is that Mr Christianos thought that a “permit” was appropriate for his situation.

36 The Commissioner should have advised Mr Christianos when he first applied for a permit, that his circumstances were not covered by the permit provisions and that he should apply for a licence. The Commissioner’s failure to advise the applicant of the correct procedures means that Mr Christianos must now be put to the extra time and expense of applying for a licence.

37 In my view the respondent’s failure to advise the applicant of the appropriate procedures constitutes special circumstances warranting an order for costs. If agreement cannot be reached between the parties, costs are to be assessed pursuant to the Legal Profession Act on a party/party basis.