Commissioner of Police, New South Wales Police Force v Martin Knight Security Service (GD)

[2008] NSWADTAP 73

Appeal Panel - Internal

CITATION:	Commissioner of Police, New South Wales Police Force v Martin Knight Security Service (GD) [2008] NSWADTAP 73
PARTIES:	APPELLANT Commissioner of Police, New South Wales Police Force RESPONDENT Martin Knight Security Service
FILE NUMBER:	089023
HEARING DATES:	27 June 2008
SUBMISSIONS CLOSED:	27 June 2008
DATE OF DECISION:	21 November 2008
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Antonios Z - Non-Judicial Member
CATCHWORDS:	Firearms - Business Firearms Licence - Category H (Pistol) - Revocation - Relevant Considerations - Power to Reduce Authorised Number of Firearms to 'Nil' - Invalid - Firearms Act 1996, s 8, s 24(2)(a) - Firearms Regulation 2006, cl 84
DECISION UNDER APPEAL:	Commissioner of Police, New South Wales Police v Martin Knight Security Service [2008] NSWADT 63
FILE NUMBER UNDER APPEAL:	073185, 073232
DATE OF DECISION UNDER APPEAL:	02/29/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 1996 Firearms Regulation 2006
CASES CITED:	Martin Knight Security Service v Commissioner of Police, New South Wales Police [2008] NSWADT 63 Minister for Fisheries v Oliver & Thomson; Minister for Fisheries v Rouse; Minister for Fisheries v Picton [2002] NSWADTAP 43 Minister of Fisheries v Sneesby [2001] NSAWDTAP 33 Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34
REPRESENTATION:	APPELLANT J McDonnell, Crown Solicitor's Office RESPONDENT L Knight, agent
ORDERS:	Affirm the Tribunal’s decision setting aside the decision to revoke the Licence.

1 On 23 March 2003 the Commissioner of Police issued a Category H (Pistol) Business Firearms Licence number 405888394 under s 8 of the Firearms Act 1996 (the Firearms Act) to the security firm, Martin Knight Security Service Pty Ltd for five years, permitting the firm to use and possess a pistol in connection with its business.

2 The Licence conferred the following Authority on the respondent:

‘Authorises the holder on behalf of the business … to possess a registered pistol of the kind to which the Licence applies, but only for the purpose established by the holder as being the genuine reason for allowing authorised employees … to possess or use the pistol.’

3 In July 2004, purporting to act pursuant to a new provision, cl 69A of the Firearms Regulation 1996 (now cl 84 of the Firearms Regulation 2006) the Commissioner restricted the authority to ‘nil’ firearms. In 2007 the firm applied for reconsideration of that decision. The Commissioner rejected the application, by decision made May 2007. In July 2007 the Commissioner revoked the licence pursuant to s 24(2)(a) of the Firearms Act.

4 Both of these decisions gave rise to applications for review. The Tribunal set aside the revocation, and ordered that the Licence provide that the firm could use and possess one pistol. See Martin Knight Security Service v Commissioner of Police, New South Wales Police [2008] NSWADT 63.

Category H Licences: Relevant Provisions in the Firearms Act

5 Before turning to the appeal, it is desirable to outline the provisions relevant to the grant of Category H licences.

6 Section 8 provides, relevantly,

‘ 8 Licence categories and authority conferred by licence

(cf 1989 Act s 21, APMC 1, 3, 4)

(1) The categories of licences, the firearms to which they apply, and the authority they confer, are as follows: …

Category H licence (pistols)

Firearms to which the licence applies:

- pistols (including blank fire pistols and air pistols).

Prohibited firearms are excluded from this licence category.

Authority conferred by the licence:

The licensee is authorised to possess or use a registered pistol, but only for the purpose established by the licensee as being the genuine reason for having the licence.

…

(2) The regulations may prescribe sub-categories in respect of category H licences and firearms dealer licences, and specify the authority conferred by each such sub-category.

(3) The authority conferred by a licence is subject to this Act and the regulations.’

7 The reference in s 8 to a ‘genuine reason’ flows from s 12 of the Firearms Act. Section 12 provides:

‘ 12 Genuine reasons for having a licence

(cf APMC 3, 1990 Reg cl 22A)

(1) The Commissioner must not issue a licence that authorises the possession and use of a 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,

(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 purposes 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.’

8 The element of the Table applicable to this case is:

‘ 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.’

9 As to the grant of a pistol licence, s 16 is relevant. Section 16(1)(b) provides:

‘ 16 Category H licences—restrictions on issue

(cf APMC 3 (c), 1989 Act s 21 re pistols)

(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: …

(ii) business or employment, …

(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.’

10 So it will be seen that not only must the genuine reason requirement be satisfied but there must be evidence of a special need to possess or use a pistol in connection with that genuine reason.

11 As previously noted, the authority granted in 2003 allowed the firm the use and possession of one registered pistol of the specified kind in connection with its business.

12 The subsequent reduction of the number to ‘nil’ was said to be allowed by cl 69A of the Regulation which had commenced on 1 May 2004, see now cl 84 of the Firearms Regulation 2006, which is in the same terms:

‘ 84 Number of firearms to be held by security firms

(cf 1997 cl 69A)

(1) The authority conferred by a licence issued to a security firm authorises the firm to 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:

(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 the Commissioner to form an opinion under this clause.’

13 Following the commencement of this Regulation, the Commissioner issued guidelines and appointed persons of experience to audit the need for security firms to have the weapons allowed to them by their authorities. Firms were required to give detailed information as to the number of current clients, their needs and the justification for the number of weapons held under the authority. An internal administrative appeal process was established.

14 As noted, the Commissioner decided in July 2004 to reduce Martin Knight Security Service’s authority to ‘nil’. In 2005 and again in 2006 the firm commissioned assessments of its needs from recognised security industry experts. This material was submitted early in 2007 in support of an application for reinstatement of the right to have one pistol. The Commissioner refused by decision made on or about 3 May 2007. This is the background to the first application for review.

15 As noted, the Commissioner proceeded on 18 July 2007 to revoke the licence, exercising the power given by s 24(2)(a) of the Firearms Act:

‘(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind.’

16 The Commissioner considered that the firm no longer had a genuine reason for a pistol. The Commissioner rejected the opinions of the experts commissioned by the firm, and preferred the view of a senior police officer stationed in the area where the Australia Council for the Arts – the firm’s principal client – had its premises. This is the background to the second application for review.

17 The Commissioner’s decision was not accompanied by any detailed reasons. A few days after the application was filed in the Tribunal, a detailed set of reasons did emerge in the form of an assessment done by an officer in the Security Industry Registry for the assistance of the Firearms Registry: Advice from Commissioner’s Security Firearms Adjudication Officer, Security Industry Registry, Ms Velickovich, dated 7 August 2007. These reasons were considered by the Tribunal.

Appeal

18 While the notice of appeal and the submissions filed by the Commissioner originally raised a variety of issues, the points that were pressed at the appeal hearing were of a jurisdictional and procedural kind.

19 At hearing the Commissioner disputed the Tribunal’s exercise of jurisdiction in respect of both decisions (the ‘nil’ authorisation decision, and the revocation decision).

20 It is clear that a revocation decision is in the ordinary course reviewable. Section 75(1)(c) of the Firearms Act provides that a person may apply to the Tribunal for review of ‘the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order)’. There is no provision expressly referring to a right of review of a decision under cl 84 of the Regulation. However the Tribunal considered that a cl 84 decision fell within the scope of s 75(1)(b) which confers a right to apply for review by the Tribunal of ‘a condition imposed by the Commissioner on a licence or permit issued to the person’.

21 The Commissioner’s submission was that the Tribunal had misconstrued s 75(1)(b) in identifying it as a source of jurisdiction for reviewing the nil authorisation decision. The Commissioner disputed the Tribunal’s exercise of jurisdiction in relation to the revocation decision on the basis that a procedural precondition imposed by the Administrative Decisions Tribunal Act 1997 (the ADT Act), s 55 – the occurrence of internal review by the agency – had not occurred. That there was no application for internal review of the revocation decision was not in dispute. After the appeal hearing had concluded, the Appeal Panel inspected the Tribunal files, and discovered a record of a directions hearing soon after the second application for review was filed. The question of the absence of internal review of the revocation decision was, at least, considered. The Tribunal dispensed with compliance exercising the power under s 55(2)(c) of the ADT Act. The Commissioner was advised, and withdrew the objection.

22 Accordingly there is now no dispute that the Tribunal properly exercised jurisdiction in relation to the revocation decision.

The Revocation Decision

23 We see no difficulty in the Commissioner using audit material acquired in connection with the cl 84 power to ground a decision to revoke a licence. That occurred here.

24 The Tribunal considered the expert material that the firm had furnished to the Commissioner in relation to the cl 84 review, the advice of the senior officer as to the practical needs of the Australia Council for the Arts and the advice given by Ms Velickovich. It reached the conclusion that the material supported the firm’s case, at least so far as the Australia Council was concerned.

25 There were, we think, shortcomings in the firm’s case, some of which were of the kind identified by the Commissioner in his submissions. We acknowledge the Commissioner’s criticisms (as set out in Ms Velickovich’s very full advice) that the firm failed to supply adequate particulars and detail in relation to its clients beyond the Australia Council. We agree with her that the level of detail provided fell well short of that required by the Commissioner in the guidelines issued in connection with cl 84. The Tribunal should, we think, have acknowledged the strength of those criticisms in its reasons.

26 However, we do not think that these deficiencies were material in the circumstances. The firm had supplied a high degree of information in relation to its principal client, and that evidence was closely assessed. We think that there was ample material before the Tribunal as to the need for the firm to have a pistol authority in respect of the Australia Council client. The Tribunal gave reasons for not preferring the views of the local police officer as to whether the firm’s security officers should have a pistol in their possession when doing security checks at that client’s premises. We think it gave adequate reasons for its decision.

Power to Apply a ‘Nil’ Endorsement

27 Considerable attention was given at the appeal hearing to the question of whether a ‘nil’ endorsement could be attached pursuant to cl 84 to a current licence, but otherwise to leave the licence on foot.

28 In our view, the terms of s 8 are plain. The Parliament intended, where the Commissioner decided an authority should be given for a particular category of firearm, that the authority extend to at least one weapon of the specified type. Clause 84 must be read in a manner that is harmonious with the statute and not inconsistent with it, or in a way that subverts the intent of the statute. If that is done, it must follow, we think, that the Commissioner’s power under cl 84 does not go so far as to prevent the licensee holding any weapon in the category for which an authority is granted. If the Commissioner has the view that circumstances have arisen whereby the reason for which the licence was granted in the first place no longer applies, then the Commissioner has the discretion to revoke or suspend the licence.

29 We accept the general point by the Commissioner that the word ‘number’ when used in legislation may not necessarily possess the word’s ordinary meaning of ‘sum’ or ‘quantity’, but can include ‘zero’ or ‘nil’ both of which describe, in essence, the absence of any quantity. They are non-numbers. However, in this instance, we consider that the Parliament intended any authority to carry with the right to possess and use at least one weapon of the specified class. Accordingly, the word ‘number’, as used in cl 84, is to be given its ordinary meaning.

30 It follows, therefore, that the Commissioner’s purported exercise of power to reduce the authority from ‘one’ to ‘nil’ relying on cl 84 was invalid. The Commissioner could not go that far.

31 In light of this conclusion, it is not necessary to consider the further question of whether the decision involved the imposition of a condition within the meaning of s 19 and s 75(1)(b).

32 The Appeal Panel has dealt previously with characterisation submissions of this kind, especially in the context of the commercial fishing licensing laws. See Minister of Fisheries v Sneesby [2001] NSAWDTAP 33 and Minister for Fisheries v Oliver & Thomson; Minister for Fisheries v Rouse; Minister for Fisheries v Picton [2002] NSWADTAP 43. In the firearms licensing context, see Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34, where it was held that a decision to suspend a licence did not fall within the categories of reviewable decision, and such a decision could not be brought within jurisdiction by characterising it as a decision to impose a condition.

33 Our provisional view on this question is that the specification of a number of weapons does not involve the imposition of a condition. It is an aspect of the scope of an authority, and that is not a matter that is made reviewable by s 75. A ‘condition’ involves, as we see it, a restriction or requirement that is attendant upon the grant of an authority, but does not involve a matter that forms part of the authority itself.

34 Our conclusion is that the Tribunal’s decision should not be interfered with.

35 We would, however, recommend to the firm that it provide the Commissioner with the detail and particulars required by the Commissioner’s policy in relation to all its current clients, most importantly the clients other than the Australia Council and their needs.