Joseph v Commissioner of Police NSW Police Force

[2014] NSWCATAD 46

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Joseph v Commissioner of Police NSW Police Force [2014] NSWCATAD 46
Hearing dates:	30 August and 2 September 2013Submissions closed 24 December 2013
Decision date:	14 April 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg, Senior Member
Decision:	The decision under review is set aside
Catchwords:	Firearms dealer's licence - fit and proper person - suitability of premises - public interest
Legislation Cited:	Firearms Act 1996 Civil and Administrative Tribunal Act 2013
Cases Cited:	Shi v Migration Agents Registration Authority [2008] HCA 31 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Sobey v Commercial and Private Agents Board 20 SASR 70 Wiltshire v Commissioner of Police, New South Wales Police HYPERLINK " \o "View Case" [2005] NSWADT 75 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Ward v Commissioner of Police, New South Wales Police Service HYPERLINK " \o "View Case" [2000] NSWADT 28 Commissioner of Police v Toleafoa HYPERLINK " \o "View Case" [1999] NSWADTAP 9
Category:	Principal judgment
Parties:	Marseleno Joseph (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	K Dailly (counsel) Applicant: Mainstone Lawyers Respondent: Sparke Helmore
File Number(s):	133112

reasons for decision

1. The applicant, Marsleno Joseph seeks review the decision of the respondent, the Commissioner of Police, dated 4 April 2013 to refuse his application for a firearms dealer's licence.

1. In the internal review the respondent relied upon the grounds that the application was 'not in the public interest' and furthermore, the premises were not suitable for a firearms dealership. At the hearing the Respondent also relied on the 'fit and proper person' test in opposing the application.

1. On 1 January 2014, the NSW Civil and Administrative Tribunal (NCAT) was established. On its establishment the ADT was abolished (see s 7 and cl 3 of Schedule 1 of the CivilandAdministrativeTribunalAct2013 (the CATAct). By reason of cl 7 of Schedule 1 of the CATAct, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT).

Relevant Legislation

1. The general principles of the Firearms Act 1996 ('the Act') are set out in s.3:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

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

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

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) ....

...

1. Section 11(3) of the Act, in setting out restrictions on the issue of licences, provides, relevantly:

...

(3) A licence must not be issued unless:

(a) 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

1. Section 11(7) of the Act prescribes that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

1. Section 11(8) of the Act prescribes that the FirearmsRegulation2006 (the Regulation) may provide other mandatory or discretionary grounds for refusing the issue of a licence.

1. Clause 37(1)(b) of the Regulation prescribes a firearms dealer licence that authorises a firearms dealer to carry on business at specified premises must not be issued unless the Commissioner is satisfied that those premises are suitable for carrying on the business of a firearms dealer.

1. The Act also identifies the important part that firearms dealers play in the administration of the firearms system by imposing significant requirements, over and above the requirements imposed on those that hold firearms licences. For example, a holder of a firearms dealers licence is required to record specific information in respect of all transactions and dealings concerning firearms to which the licence relates: s.45(1)(a) and (2) and to provide quarterly returns of all transactions and dealings in the previous quarter: s.46, and make available for inspection by a police officer at the premises to which the licence relates all the firearms that are in his/her possession: s.19 and cl. 40 the Regulation.

1. A firearms dealer's licence authorises not only the individual named in the licence but also its employees: cl. 43 of the Regulation. The Commissioner, and Tribunal on review, must not issue a licence if of the view that a close associate of a firearms dealer is not fit and proper to hold a firearms dealers licence or that the Applicant will not be the person primarily responsible for the management of the business. A close associate is, in effect, a person who holds a financial interest and by virtue of that interest is able to exercise a significant influence with respect to the conduct of that business: s.4B.

1. Section 63 of the AdministrativeDecisionsReviewAct provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

CONSIDERATION

1. Consideration of the matter turns on if there is a close associate of the applicant who is not fit and proper to hold a firearms dealers licence or who may exert influence over the applicant in the business; whether the premises are suitable for use as a firearms dealership; whether the applicant is fit and proper person to hold a firearms dealer licence; and whether it is in the public interest for him to do so.

Applicant's licences and firearms

1. Between March 2008 and September 2011 the Applicant was subject of assaults, threats of significant violence and arson to the extent that the Commissioner was concerned about the potential risk to the public arising from the propensity for the Applicant to be involved in violent incidents even though he may not have been the cause of the violence or incidents. Nonetheless, in November 2010 the applicant was issued with his first firearms licence - a probationary pistol licence. On 18 February 2012 the Applicant was issued a High Calibre pistol permit which is to expire on 1 March 2017. Following a short suspension, his firearms licence was re-instated as recently as March 2013.

1. On 31 January 2012 the Applicant lodged 6 applications for a permit to acquire a handgun for the purpose of sport/target shooting, and on 10 February 2012 lodged another 10 applications for a permit to acquire a handgun for the same purpose. On 22 February 2012 the Applicant completed 8 applications for a permit to acquire a high calibre pistol, also said to be for sport/target shooting.

1. Between January and February 2012 the Applicant acquired 22 pistols that were stored in his home safe. Many of the pistols were identical in make model and calibre.

1. When the Commissioner raised concerns as to whether the permits to acquire the 16 firearms (being those lodged 31 January and 10 February 2012) were being acquired for target shooting as the applicant claimed, the Applicant wrote, on 29 February 2012, that:

• His original intention was to submit the applications for a collectors licence but for an "unfortunate event" he had to submit them under target shooting instead;

• He was in the process of setting up his business and other local dealers were offering good deals and that this was what he described as "too good an opportunity to pass up";

• He had purchased the firearms with the intention to use them for purpose of his new business and then put them as "collectables" until he finalises his business set up";

• He intended to transfer the pistols to his firearms dealers licence after obtained his firearms dealers licence ;

• He had been told by the club captain that as he had not been a member sufficiently long enough to be considered to be a "collector", the club captain would not sign the application for the permits on the basis that he was a collector and accordingly he made a decision to submit the firearms as being acquired for the purpose of target shooting;

• He had no choice (as to whether he lodged the applications) as he had already purchased the firearms.

1. It was not until 12 March 2012 that the applicant applied for a dealer's licence.

1. On 10 May 2012 Sgt Havord conducted an inspection of the applicant's business premises ('the premises') and questioned the Applicant about his need for 21 additional pistols. The Applicant said that he intended to sell 16 of them in his business. The Applicant continued to build up his collection by seeking permits that would have allowed him to acquire a further 24 firearms that would take his collection of firearms up to 45 pistols.

1. It is clear to me that the Applicant was building up his supply of firearms in anticipation of opening his firearms dealers business. He did so however before he had made an application for a firearms dealers licence. Most of his acquisitions were as stock for his firearms dealers business and he was not acquiring those firearms solely for the approved purpose of target shooting as he had claimed.

1. The Respondent submitted that this demonstrated a willingness to deceive the Commissioner by submitting firearms applications that were false. The applicant pointed out in his evidence that he told Sen. Const. Havord about his shop which was 'months before his dealer's licence application'. The interview to which he referred in fact post-dated his application. However, on 29 February 2012, that is, about 3 weeks before his dealers licence application, he had informed police he was collecting the firearms for the purpose of his business.

1. The applicant also said that he attached a letter to his firearms application (unspecified) that he was also applying for a dealer's licence. Neither party produced the applications or the claimed accompanying letter.

1. On 17 May 2012 Const. Singh met the Applicant for the first time and the Applicant allegedly told him:

• that he had rushed into the decision to lease the shop;

• he had spent over $55,000 towards the business;

• that his marriage will fail due to financial problems that he was in;

• the 24 permits to acquire firearms were lodged so he could acquire pistols for re-sale to make some profit.

1. During this meeting the constable observed the Applicant break down and cry when he was discussing his financial situation. This conduct caused the constable some concern. The applicant did not deny this conversation other than the remarks about his marriage, because he has never been married.

1. I accept that the applicant had, perhaps ill-advisedly rushed into the lease of the shop when he had an offer to buy firearms which he considered to be too good to refuse. Perhaps naively, he expended a considerable amount of money in setting up the business and I accept that this created financial pressures. I accept that when he was told by the club captain that he could not be considered to be a "collector", he claimed the firearms as being acquired for the purpose of target shooting, so as to at least hold some licence in respect of those firearms which he had already purchased. I accept that the applicant breached s.70 of the Act in providing information in an application lodged under the Act that was false and misleading in a material respect. I accept though that it was his intention to transfer the pistols to his firearms dealers licence once he had obtained that licence, and that he had previously informed police of his intention to open such a business.

1. On 31 May 2012 Const. Singh attended the premises following the applicant's report of finding an air rifle when he had been cleaning up. The applicant confirmed in his evidence that he phoned as soon as the air rifle had been located and he did not touch it. The constable observed though that the site had been undergoing renovations for about a fortnight. He observed the premises were dirty and dusty and it was clear that work was being done at the site. Const. Singh gave evidence about locating of the "rusted (non operational) air rifle". The constable was said to be suspicious about the discovery of the firearm as it was very unusual to locate a firearm in commercial premises, especially as the site had previously been a surf shop. Const. Singh agreed in cross-examination that his original report failed to mention his having any suspicion. Both Sen. Const. Waites and Const. Singh said that handing the air rifle in was the honest thing to do. I accept that the applicant could easily have disposed of the firearm without advising police but chose otherwise.

1. On 30 June 2012, police were called by the applicant's flatmate. The Applicant was the victim of a robbery and his 22 pistols had been stolen. When the Police attended they found the Applicant tied up. In cross-examination Sen. Const. Waites said he had no problem with the applicant holding a personal firearms licence, notwithstanding he was aware that the applicant had previously been robbed of his firearms.

Suitability of the premises

1. On 28 June 2012 Sen. Const. Waites completed his report regarding whether the Applicant should be granted his firearms licence. Police did not support the granting of development consent for the detailed reasons set out in that report. In his evidence he said his focus was on the suitability of the premises from the point of view of the safe storage arrangements. In the report he set out in his concerns regarding the grant of the application and he did not at that time support the granting of the firearms dealers licence.

1. In November 2012 the Council granted development consent to approve the use of the land for "Commercial Development - Retail sale of clothing, Camping goods and Firearms". Condition 8 of the consent required that the Applicant be issued a firearms dealers licence before the occupation certificate that allowed the occupation and use of the building was granted. The EnvironmentalPlanningandAssessmentAct 1979 is concerned primarily about the orderly planning and development of land and not firearm safety. It is clear that condition 8 was imposed to ensure that the Commissioner undertook the appropriate consideration for firearms safety under the Act and granted the firearms dealers licence before the premises could be occupied and used for the nominated purpose.

1. While the Respondent opposed the granting of the development application however it did not lodge an appeal against any such decision of the Council.

1. In his evidence Sen. Const. Waites said he was aware that the Development Approval had been approved over objection by the community. He understood the concern had related to objection to a firearms dealership generally - especially as there is another dealer in the vicinity, and did not relate to the premises themselves.

1. Sen. Const. Waites conducted an inspection of the premises on 2 September 2013 and confirmed that the premises met the safe storage requirements under the Act.

1. Clause 37(2) of the Regulation provides that in considering whether or not premises are suitable for carrying on the business of a firearms dealer, the Commissioner, and the Tribunal on review, is to have regard, in addition to safe storage requirements, to the nature of the activities proposed to be conducted on the premises and the kinds of firearms to which the licence relates. The Respondent submitted that therefore the site suitability involves a broader consideration than safe storage requirements. The Respondent referred to Sen. Const Waites report to the Council. That report however refers to many comments which do not relate to the matters referred to in cl.37(2).

1. In its internal review the Respondent gave consideration to the nature of the activities proposed to be conducted on the premises and observed that a firearms dealership by its nature involves acquiring and storing plentiful stocks of firearms of varying types and calibres, including handguns of a kind for which the applicant was licensed. These were said to be greatly valued by the criminal element. Firearms dealerships also attract an array of customers who may carry firearms into or out of the dealership. In considering the surrounding environment and the businesses in the immediate vicinity of the proposed site "serious weight" was placed on the fact that a school is located nearby, as were other community based services. If the firearms dealership were to be targeted by thieves, the level of community risk would be seriously increased due to the close proximity of these organisations. A reference was made to the crime statistics for robberies in the area, and the fact that local police did not support the granting of this application. It was considered that if any person walked down the street in which the premises are located holding a rifle bag, whether locked or otherwise, some community members may conclude there is cause to fear for their safety.

1. The Respondent submitted that the premises are not suitable due to the nature of sensitive adjacent land uses. In his evidence Sen. Const. Waites noted that nearby is a party shop, a real estate agent, a gym, a library, 2 schools and a community centre.

1. The Applicant asserted that on 28 September 2012 Sen. Const. Waites spoke to him in the presence of Ms R, the applicant's employee, and told him that he was going to support the application for development consent with Council. This is some three days after the police officer had written to the Council stating that he did not support the application. Sen. Const. Waites admitted speaking to the applicant on that date but in his evidence said that he was merely explaining some of the conditions that may be imposed should the Council grant consent.

1. Ms R gave evidence that Sen. Const. Waites had indicated on that date that there would be some conditions. She said that on 14 November 2012 Sen. Const Waites had attended and sought a copy of the council consent and said he would discuss conditions. On March 2012 Sen. Const Waites again attended and personally informed the applicant that his firearms licence was being returned.

1. The senior constable was clear in his evidence that at no stage did he tell the Applicant that he was going to receive a firearms dealers licence, as he is not in such a position to approve the development consent nor to issue the firearms dealer's licence. I accept that the applicant may have been of the mistaken belief that the granting of the firearms dealers licence was dependent only upon council approval. Not a great deal turns, in my view, on what the applicant may have believed he was told.

1. What is relevant though is that the Respondent's concerns appear to have somewhat dissipated once there was council approval. Although the evidence in relation to the approval was only that it had been made 'over community objection', and other than a listing of types of businesses and community activities nearby, there was little for me to consider as the basis for a contention that the premises were unsuitable.

1. The considerations are somewhat circuitous. The nature of the activities proposed to be conducted on the premises are, when a firearms dealers licence is sought, clearly relates to the sale of firearms. The applicant has a range of firearms to which the licence relates.

1. I accept that any firearms dealership is likely hold firearms of varying types and calibres. In the internal review it was asserted that handguns of a kind for which the applicant was licensed are greatly valued by the criminal element, but there was no evidence to that effect. I also accept that any firearms dealership will attract customers who may carry firearms while attending the dealership. There is a school is nearby and other community based services. I do not accept that it necessarily follows that if the dealership targeted by thieves, the level of community risk would be seriously increased due to the close proximity of these organisations. No evidence was provided as to the crime statistics for robberies in the area, upon which the internal reviewer had relied. There was also no evidence for the assertion that community members may fear for their safety if they observed a person walking near the premises holding a rifle bag. In the applicant's submission the concerns expressed in the internal review are not relevant as there is another similar business nearby and that the concerns are speculative in nature. I agree with this characterisation of the matters raised by the Respondent in its internal review. Numerous firearms dealerships are likely to be operated out of commercial premises in business areas.

1. I do not consider that the premises are unsuitable for a firearms dealership.

The applicant's associates

1. In the applicant's firearms dealer's licence application the applicant was nominated as the licence holder for the business. Mr W was nominated as a close associate of the business. At the hearing though, the applicant gave evidence that Mr K was a close associate, not Mr W. The applicant was asked about Mr K. He said it is a '50/50 partnership'. He explained that Mr K had put up the money for the business, but he, the applicant, does more hours at the shop. He understood Mr K to hold a firearms licence and that he has no criminal record. He said, other than putting up the money, Mr K is not involved in the business. He may come by 2-3 times a week. There was no evidence that Mr K was adversely known to police.

1. On 10 May 2012 Sgt Havord conducted an inspection of the premises and questioned the Applicant about his need for 21 additional pistols. The Applicant told Sgt Havord that he had a dealer friend and he was in a position to acquire pistols at a cheap price.

1. When interviewed on 1 July 2012 after the robbery the applicant told Police that the firearms had been purchased from Mr C. On 16 July 2012 the applicant spoke to Const. Singh and told him that he was struggling financially. As a result, the constable issued a report to the Firearms Registry raising his suitability to continue to hold a firearms licence. During that conversation the Applicant told the Police about his past association with Mr C who, according to Const. Singh, has been responsible for multiple breaches of the Act and has had his licence revoked. The Applicant allegedly told the constable that he was happy to have Mr C work for him should he obtain a firearms dealer's licence. The applicant denied that he had told Const. Singh that.

1. In his evidence Const. Singh said he understood the Applicant's intention was for Mr C to work at his, the Applicant's, premises. Although there may have been some misunderstanding as to the precise words used, Const. Singh understood the applicant to have said that Mr C wanted to work for him and was happy to have him in that role. He thought the applicant was trying to demonstrate that he had arranged staff for the business. When interviewed, the applicant reportedly said that Mr C was going to work for him, but in his evidence he denied he had ever said that. He noted that at the time of the interview he was heavily medicated, as the interview was conducted shortly after the robbery during which he was assaulted. I observe that the transcript of the interview is very disjointed, which would tend to support his contention. In his evidence the applicant said Mr C had expressed no interest in working in the shop, and neither does the applicant have any interest in having him in the shop. In his evidence the applicant said that Mr C is now unwell with a serious illness. The applicant said he thought Mr C was an 'expert on guns' and they communicated well. He thought Mr C could help him, for example, if a gun jammed. He thought it was possible that Mr C had offered to work for him. It appears from further comments in the interview though that he continued to seek out Mr C for advice, but at that time, had not seen him for about 3 weeks.

1. Mr C was subsequently charged with significant breaches of the Act. While he knew Mr C had been arrested, the applicant said he was unaware if Mr C associated with criminals. There was no evidence that the applicant had previously known of Mr C's activities. I accept the Applicant's evidence that once he became aware of Mr C's criminal history he "backed off" from his proposed business association with Mr C, although he may have proposed to seek technical advice from him. As it transpires, the relationship appears to have cooled.

1. I find that there is no person who is a close associate, as defined, of the applicant as it is the Applicant who will be primarily responsible for the management of the business. Even if it could be said that Mr K is a close associate, there is nothing adverse known of him that would suggest he is not a fit and proper person. As to Mr C, he has no financial interest, nor was there evidence that he is a position to exert any influence with respect to the conduct of that business.

Fit and proper person

1. The task for the Tribunal is to determine if the applicant is a fit and proper person who can be trusted to deal in firearms. The phrase 'fit and proper person' was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9] where the term was considered to involve honesty, knowledge and ability.

1. In AustralianBroadcastingTribunalvBond (1990) 170 CLR 321 at [36] the High Court said:

The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.

1. Further, whether a person is a fit and proper person involves a value judgment to be made in the context of the particular activity to be licensed. Where there is evidence of misconduct, amongst relevant considerations are the seriousness of the misconduct to the particular activity, whether the misconduct is an isolated incident, and the person's underlying qualities of character: at [66].

1. In SobeyvCommercialandPrivateAgentsBoard 20 SASR 70 Walters J said that in considering whether an Applicant is fit and proper:

...The Applicant must show not only that he is possessed of the requisite knowledge of the duties and responsibilities evolving around him as the holder of a particular licence ...but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

1. The Respondent submitted that this is particularly relevant in the context of a person wanting to hold a firearms dealers licence especially where the Applicant has, over a period of time, attempted to mislead the Commissioner so that he can acquire a significant number of pistols. It was submitted that the Applicant had demonstrated in the applications that he had made to the Commissioner that he is not fit and proper to hold a licence and that the applications made on 30 January 2012, 9 February 2012 and 22 February 2012 were an attempt to circumvent restrictions that were identified to him by the club captain. The Applicant admitted to the Police why he had completed the applications in that way, but only after he had been asked for an explanation.

1. The applicant tendered a number of character statements. Most related to his role as a security manager and spoke of a high degree of integrity and responsibility. Two of the references were from serving police officers who had known him for a number of years in that capacity. Another police officer who has also known the applicant for several years gave similar character and other evidence on his behalf.

1. I note that the Applicant is otherwise considered by the Respondent to be a fit and proper person to hold personal firearms licence and also a security licence. As recently as March 2013 his firearms licence was re-instated. I accept that he has proven himself to be a responsible licence holder. The Applicant seeks a licence to be a firearms dealer, the responsibilities of which are significant. Only persons who understand the strict responsibilities of a firearms dealer and demonstrate that they willing and able to comply and undertake the role in accordance with the Act should be issued with such a licence. A licence allowing a person to be a dealer must only be granted to a person that is fit and proper and in circumstances where the issue of such a licence is not against the public interest. I have come to the view that the applicant is such a person.

Public interest and conclusion

1. It remains to consider the public interest.

1. In CommissionerofPolicevToleafoa[1999] NSWADTAP 9, the Appeal Panel said, in the context of the licensing regime for the security industry, that the public interest is an inherently broad concept giving the Commissioner, and the Tribunal on review, the ability to have regard to a wide range of factors in choosing whether to exercise discretion adversely to an individual: at [25].

1. The 'public interest' allows, a consideration of issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: ConstantinvCommissionerofPolice,NSWPoliceForce [2013] NSWADTAP 16.

1. The underlying principles of the Act stated in s.3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: CusumanovCommissionerofPolice,NSWPoliceService [2001] NSWADT 50 [at 23].

1. I acknowledge that a firearms licence is a privilege and not a right. The Applicant's individual interest in obtaining his licence is subordinate to the public interest in ensuring public safety: ComalcoAluminium(BellBay)LtdvO'ConnorandOthers (1995) 131 ALR 657 at [681]. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: WiltshirevCommissionerofPolice,NewSouthWalesPolice[2005] NSWADT 75 at [25].

1. In WardvCommissionerofPolice,NewSouthWalesPoliceService[2000] NSWADT 28, at [28] ('Ward'), DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would not pose any risk to public safety. The Respondent contended that the Tribunal cannot be satisfied that there is virtually no risk when considering the whole of the circumstances of this matter.

1. A relevant consideration in the context of this matter is the nature of the licence sought, the activities that the licence will authorise and the nature of risks to public safety that arise when a licence is issued. The conduct of the Applicant is of particular relevance to the administration of the firearms licensing system and the Respondent submitted the Applicant's conduct demonstrates that it is not in the public interest for the Applicant to be provided the privilege of a firearms dealers licence.

1. I have found that there no person who is a close associate of the applicant who is not fit and proper to hold a firearms dealers licence or who may exert influence over the applicant in the business. I have also found that, on balance, the premises are suitable for use as a firearms dealership.

1. While the applicant has been involved in violent confrontations I do not accept that this necessarily leads to a conclusion that he, in particular, may be targeted by criminals. Notwithstanding the principle of Ward, in my view, any firearms dealership, especially if it sells firearms considered attractive by the criminal milieu, is at risk. Inevitably this would lead to the absurd result that there could be no such dealerships.

1. I accept that the applicant previously demonstrated lack of understanding of the responsibilities and obligations as a holder of a firearms licence. I have accepted his explanation in relation to his applications. I have also accepted that while the applicant completed a number of firearms applications incorrectly, he had informed police he was collecting the firearms for the purpose of his business.

1. I also have accepted that the applicant could easily have disposed of the rusted air rifle without advising police but chose otherwise, and to me, this demonstrates an understanding of his role with respect to firearms.

1. I have placed significant weight on the references that were provided on behalf of the applicant.

1. I understand there is another firearms dealership nearby. Whether the applicant's business may be viable is not a consideration for me.

1. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant to be refused a firearms dealer's licence.

DECISION

1. The decision under review is set aside.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar