Lam v Commissioner of Police, New South Wales Police Service - [2001] NSWADT 57

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CITATION: Lam -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 57

DIVISION: General Division

PARTIES: APPLICANT
Yim Lam
RESPONDENT
Commissioner of Police, New South Wales Police Service

FILE NUMBER: 003139

HEARING DATES: 27/07/00

SUBMISSIONS CLOSED: 08/24/2000

DATE OF DECISION:
04/12/2001

BEFORE: Lees M - Judicial Member

APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Firearms (General) Regulation 1997
Firearms Act 1996

CASES CITED: Leslie Paul Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10
Osborne v Commissioner of Police [1999] NSWADT 86
Anthony Khamis -v- Commissioner of Police, NSW Police Service [2001] NSWADT 21

REPRESENTATION: APPLICANT
P Naughtin, barrister
RESPONDENT
J Tunks, solicitor

ORDERS: 1. The Commissioner's decision to refuse Mr Lam's applications for a permit to acquire a firearm is affirmed.

1 Mr Lam applied to the Administrative Decisions Tribunal (the Tribunal) on 4 May 2000 for review of the decision dated 4 April 2000 to refuse his two applications for permits to acquire pistols made by a delegate of the Commissioner of Police (the Commissioner).

2 The type of firearm Mr Lam was refused a permit to acquire was a pistol.

3 The Tribunal’s jurisdiction derives from sections 75 of the Firearms Act 1996 (the Act) and 38 of the Administrative Decisions Tribunal Act 1997.

The relevant law

Section 28 of the Act provides the Commissioner with the power to issue permits. It provides, as relevant:

(5) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a permit.

The evidence

9 Mr Lam applied on 14/03/2000 for an internal review of the original decision. On internal review, the original decision to refuse the permits was affirmed. The Tribunal was provided with a copy of the ‘Statement of Reasons’ for the internal review decision dated 04/04/2000.

10 The reason provided for the decision was that ‘the firearms legislation does not provide for the holder of a category H licence (security guard) to purchase a firearm’. The Commissioner’s delegate relied on s 31(3)(c) of the Act as the basis for this decision. Attached to the decision were a brochure entitled ‘Security Guard’ and a policy document concerning ‘Clause 9, Firearms Regulation 1997 – Permit to Possess and Use a Firearm’.

11 The Security Guard brochure states that a security guard firearms licence only allows its holder ‘to use your employer’s firearms and you cannot purchase a firearm using this licence’.

12 As well as a copy of his written application (dated 04/05/2000) seeking the Tribunal’s review of the Commissioner’s decision to refuse him the pistol acquisition permits, Mr Lam also provided the Tribunal with a copy of his earlier letter to the Commissioner seeking internal review (dated 14/03/2000) and with copies of

15 In addition to the abovementioned licences, Mr Lam via Sportarms Pty Ltd also holds a Firearms Dealers Licence #403 274 170. This firearm dealer’s licence expires on 13/12/2002. The ‘genuine reason’ for the licence was ‘business’.

16 On 3 December 1999 the NSW Police Firearms Registry received Mr Lam’s first application for a permit to acquire a pistol under category H1. A second application was received on 20 January 2000, also for a permit to acquire a pistol under category H1.

17 The ‘good reasons’ Mr Lam relied upon in his first application were self-protection and to provide armed security services to clients where the transit of cash and valuable merchandise is involved.

18 In relation to the second application Mr Lam relied on the same reasons plus a third ‘good reason’, namely, the safeguarding of Sportarms Pty Ltd’s firearm trading stock, in the store and in transit.

19 Mr Lam’s company Sportarms Pty Ltd (‘Sportarms’) obtained its security industry master licence after Mr Lam had applied for the pistol permits. It was agreed at the Tribunal hearing that, due to this change in circumstances, Mr Lam could, under the auspices of Sportarms, obtain a pistol acquisition permit. This was made clear and understood by Mr Lam at the hearing. Mr Lam, however, wanted the Tribunal to determine his review application in its entirety relating to both his pistol acquisition permit applications.

20 In relation to the fact he had made two applications for permits to acquire a pistol, Mr Lam’s own evidence was that the first application was meant to be replaced by the second as the second provided an additional good reason for wanting a pistol, and that was to protect his firearm stock.

21 Mr Lam wanted to own a pistol he could use in both his capacity as a security guard and as a firearms dealer. Reference was made in evidence to a letter of Mr Lam’s to the Firearms Registry dated 19 January 2000 in relation to the applications. A copy of this letter was not provided to the Tribunal for present purposes. The internal review decision referred to there being two applications to be decided.

22 It was agreed at the hearing that the applications would be considered separately; one being considered as relating to Mr Lam as a security guard and the other being considered as relating to Mr Lam as a firearms dealer.

23 Mr Lam is 66 years of age. He has been involved in the firearms industry in Malaysia since 1963 and in Australia since 1988. He continues to have other business interests as well, in the timber industry, both in Malaysia and Australia. The timber company owns the premises from which Mr Lam operates his firearms dealership and the master security licence business.

24 Mr Lam stated that he had about 3 security clients. His evidence was that as a security guard he travels to and from various locations in the Sydney metropolitan area sometimes involving the safeguarding of large amounts of cash, mostly restaurant takings, and valuable jewellery. Mr Lam feels insecure if he does not have a gun, particularly when carrying ‘a large sum of money’. He gave evidence that has not been threatened or robbed but that he had been approached by people he was suspicious of, eg they would ask him for directions and keep a hand in their pocket suggestively. Such incidents make him nervous. Mr Lam stated that ‘the situation now, you’re reading newspaper got so many crime coming up, so you get very scary’.

25 Mr Lam stated that the firearms business had about 20 clients in New South Wales. Most of his business is with other firearms dealers and mostly concerns bulk quantities of firearms, 20 to 40 items at a time. In his capacity as a firearms dealer Mr Lam travels to and from various locations in the metropolitan area and beyond, transporting firearms, between the hours of 8.00am and 9.00pm. He considers these hours put him in a ‘somewhat vulnerable situation’. In relation to carrying out firearms business work, Mr Lam stated however that there had not been any incidents causing him fear. Mr Lam described himself as a ‘very careful man’.

26 Mr Lam’s evidence was that his business premises have very tight security with special gates, alarms, strong rooms and special tempered glass for the identification of faces. One of Mr Lam’s concerns focused on the possibility of being ‘ambushed’ when he was entering or leaving the building. His belief is that such would be less likely to happen if it were known he was armed.

27 Mr Lam stated that his business of selling guns had ‘gone down’ since the new gun laws of 1996/1997 but that the turnover was ‘reasonable’. Mr Lam agreed that his general ability to earn a living and his general financial security have not been impacted upon by the new gun laws. He agreed his other business interests were substantial and financially healthy.

28 Mr Lam regards the acquisition of a firearm as ‘necessary in the conduct of his business’ as a security guard and in the conduct of his business as a firearms dealer. He believes that the proper and effective operation of both businesses depends on the knowledge of potential ‘wrongdoers’ that he, as security guard or firearms dealer, is ‘appropriately armed’. He also believes that being armed ‘provides the necessary psychological armoury’ for the proper and effective conduct of his business.

29 Mr Lam stated that there were no firearm dealer clients who had suggested they could not do business with him because he did not have a pistol permit. This, Mr Lam said, was because they had their own pistols.

30 Mr Lam also considers that the refusal of the firearm permit threatens the viability of his security business. In relation to his security business Mr Lam’s evidence was to the effect that Sportarms would have more clients if it could provide armed security services. His evidence suggested that there was work available for Sportarms if this was the case. Mr Lam was shown copies of certain letters of his to the Police Service’s Firearms Registry. Mr Lam was also referred to several documents from businesses including jewellers and restaurants, stated to be clients of Mr Lam and said to be concerned at the prospect of his not providing armed service. These documents were not provided to the Tribunal.

31 Mr Lam has continuously held licences relating to firearms dealing and security guard work since about 1988. As Mr Lam was not licenced to own a firearm as a security guard at this time, in order to possess and use a firearm as a security guard Mr Lam had to work through a security industry master licence holder, at a fee. Mr Lam has found this to be inconvenient and costly as it ‘delved greatly into the profits of a particular job’.

32 As Sportarms obtained its security master licence in March 2000, Mr Lam agreed that as the company had ‘an avenue to get a gun’. One of the reasons Mr Lam had not proceeded to make an application on behalf of Sportarms for a pistol acquisition permit was that he regards the insurance costs associated with the master licence as prohibitively costly for his new businss. Mr Lam’s evidence at one point was that these costs were ‘about $3000’ per annum and at another point ‘about $2000’. Mr Lam would prefer not to have to go to this expense until the security business is better established. On being asked why, if he knew he could get a gun using the master licence and could thereby meet the concern or requirement of potentially valuable business clients, would it not be good business sense to not worry about such an overhead, Mr Lam stated he had been very busy in recent months looking after his wife due to her medical needs and suggested he had not been able to do all he needed to expand the business.

33 Written submissions were provided to the Tribunal by Mr Naughtin on behalf of Mr Lam and by Mr Tunks on behalf of the Commissioner. These were prepared without the knowledge that Sportarms had been granted a security industry master licence. Attached to the submissions for the Commissioner were copies of the Tribunal’s decisions of Leslie Paul Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 and Osborne v Commissioner of Police [1999] NSWADT 86; the Resolutions of the Australasian Police Ministers’ Council 1996; and the Attorney General’s Second Reading Speech on the Firearms Bill (25 June 1996). These submissions were referred to and expanded upon briefly at the Tribunal hearing.

34 Although a post-hearing timetable was set at Mr Naughtin’s request for the provision of further submissions after the transcript being made available, no further submissions were provided by either party to the Tribunal.

Findings and Reasoning

36 For a licence to possess or use a firearm, an applicant must satisfy the Commissioner s/he has a ‘genuine reason’ for doing so (s 12). Personal protection is expressly excluded as a genuine reason for the granting of a licence (s 12(2)(a)). Accordingly, Mr Lam’s genuine reason for obtaining the licence must have fallen under s 12(2)(b); he must have demonstrated when he applied for the licence that it was necessary in the conduct of his employment as a security guard to possess or use a pistol.

37 For a licence specifically for the possession or use of a pistol, in addition to the applicant’s genuine reason being of a specific kind, the applicant must satisfy the Commissioner s/he has a ‘special need’ for the pistol (s 16). Mr Lam must have also previously met this requirement as the pistol licence had been issued to him.

38 For a permit to acquire a pistol, an applicant must have already met the corresponding licence requirements and obtained the licence, and then further s/he must satisfy the Commissioner that s/he has ‘good reason’ for the permit. There is no guidance in the Act as to what might constitute a ‘good reason’ for the purposes of s. 31(3)(c).

39 In his original permit applications, Mr Lam submitted his ‘good reasons’ for being permitted to acquire a firearm were:

40 In additional submissions made in support of the applications, Mr Lam added a fifth ‘good reason’:
(v) that the pistol permit is necessary in the conduct of his firearms and security businesses.

41 The Commissioner’s general power to issue permits is found under section 28 of the Act. Subsection 28(a) allows the Commissioner to issue a permit authorizing ‘a person to acquire a firearm’.

42 Section 29 of the Act provides a number of express restrictions on the issue of permits and that the regulations may provide further grounds for refusing to issue a permit.

43 Clause 9(2)(a) of the Regulation provides the Commissioner with the discretion to refuse a permit if an applicant intends to possess and use the firearm for personal protection. Clause 9(2)(b) of the Regulation provides the Commissioner with the discretion to refuse a permit if an applicant intends to possess and use the firearm for the protection of property other than in circumstances constituting a genuine reason as set out in the Table to section 12 of the Act.

44 The Tribunal has previously considered and agreed with the Commissioner’s approach to considering the exercise of the cl 9(2)(a) discretion in the matter of Anthony Khamis -v- Commissioner of Police, NSW Police Service [2001] NSWADT 21. The approach is to require the applicant to establish a well- founded need for personal protection in order to trigger the possible exercise of the cl 9(2)(a) discretion. The same decision concluded also that even if there were a well-founded need, it may or may not in itself be sufficient to warrant the exercise of the discretion in favour of an applicant; there may be other relevant factors informing the exercise of the discretion as well.

45 As stated above it was agreed at the hearing that the applications would be considered separately; one being considered as relating to Mr Lam as a firearms dealer and the other being considered as relating to Mr Lam as a security guard.

Firearms Dealer

48 Section 31(3)(a) of the Act states that the Commissioner must not issue a permit authorising a person to acquire a firearm ‘unless the person is the holder of a licence or permit authorising the person to use or possess the firearm concerned’. The requirement appears somewhat ambiguous. This is because it appears capable of enabling a person who has a licence to possess and use a gun for one purpose (eg security guarding) to use that licence as a basis for obtaining a permit to acquire a gun for a different purpose (eg firearms trading). Alternatively it could be interpreted as requiring the person seeking permission to acquire a gun to already have a licence allowing the possession and use of that gun.

49 In my view the former interpretation would not be consistent with the Act’s object of providing strict requirements in relation to the licensing, acquisition and sales of firearms. Accordingly, applying the latter interpretation of s 31(3)(a) Mr Lam must not be issued with a permit.
[I note also that the note to s 31 allowing firearms dealers to purchase firearms without permits is ambiguous in that it does not appear to contemplate circumstances where the firearm sought to be bought is not for trading stock purposes.]

50 If it is the case that the above interpretation and application of s 31(3)(a) is incorrect, two other bases for my conclusion follow.

51 It is clear that the legislative scheme does not accept as a genuine reason for a licence the claim that it is necessary to possess or use a pistol for personal protection. See Leslie Paul Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 at para 41. In relation to refusing a permit to acquire a firearm, the scheme appears to allow the Commissioner a discretion in this regard -see Regulation cl 9(2).

52 In relation to the clause 9 discretion, although Mr Lam’s evidence of his fear and insecurity is accepted as genuine, taken objectively there is little in it to justify the conclusion the fear is objectively well founded. Mr Lam’s specific evidence as to what has given rise to his concern and fear was that he had been approached by people asking directions and he was suspicious of why they had specifically selected him to approach and also that he reads about crime in the newspaper and that concerned him as well. He gave evidence that he has not been threatened or robbed.

53 I am not persuaded that Mr Lam needs a gun for the purposes of self-protection as a firearms dealer. The discretion under clause 9(2) of the Regulation is not exercised in Mr Lam’s favour.

54 Mr Lam also submitted that the pistol permit is necessary in the conduct of his firearms business.

55 The ‘legislation does not give any guidance on the circumstances where a firearm is necessary in the conduct of a person's business or employment’. (Osborne v Commissioner of Police [1999] NSWADT 86 at par. 21).

56 This first Osborne decision concerned Mr Osborne’s seeking review of the Commissioner’s decision to refuse him a licence to possess and use a pistol. Mr Osborne was a firearms dealer who carried out his business, not from permanent premises, but from his vehicle. Despite finding that there was a real risk criminals may attempt to steal Mr Osborne’s firearms, the Tribunal’s Deputy President concluded that he ‘does not need it to conduct his business’ (par 23) and that [A]ny other interpretation would mean that every person who stores or transports valuable property such as cash, firearms or jewellery, would be entitled to carry a firearm. This was not the Act’s intention.’ (par 24).

57 The second Osborne decision was by the Tribunal’s Appeal Panel and it stated ‘[T]his case represents something of a test case as to the impact of the legislation on the ability of firearms dealers to be granted licences to carry pistols’ (Leslie Paul Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 at para 20).

58 The Appeal Panel concluded that the question of what is `necessary' for the `conduct' of a `business' should be interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application. The business under examination before the Appeal Panel was that of dealing in firearms. The Appeal Panel concluded that
The trade involves regulated goods which can be lethal to innocent people if they fall into the wrong hands. The trade often involves the possession of great quantities of these goods, with commensurate value. None of these features in themselves suggest that it is necessary for the conduct of the trade that dealers carry live pistols. The possession of a pistol is not directly required of the business or employment…….The test should be read so as to focus on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes that business. To accede to the proposition would allow for categories of business that ordinarily have no case for possession and use of a pistol to be conducted in a high-risk way that might found a claim by the operator to have access to a pistol. This would run contrary to the objects of the legislative scheme designed to restrict the circulation of weapons in the community. (pars 46 & 48)

59 Using the Appeal Panel’s interpretation of what is `necessary' for the `conduct' of a firearms `business' as a guide, it follows that if it is not necessary for the conduct of a firearms business that the firearms dealer be licenced to possess or use a firearm, it is also not necessary for the conduct of a firearms business that the firearms dealer be personally permitted to acquire a firearm.

60 Accordingly, this reason cannot be considered a good reason for Mr Lam as a firearms dealer to be permitted to acquire a firearm.

Security Guard

62 Mr Lam’s security guard category H licence authorises him to possess or use a registered pistol but only for the purposes established as being the genuine reason for having the licence, ie his employment as a security guard.

63 Sportarms’ security master licence authorises the licensee to conduct a business of providing persons to carry on activities only if persons are a holder of a licence. One of the master licence conditions is that if Sportarms provides persons to carry on security activities involving the possession or use of firearms, or the use of dogs, it is a condition of the master licence that the licensee must obtain public liability insurance cover (licence condition #4).

64 As I understood Mr Lam’s evidence and submissions, they were based on the view that Sportarms would not have to pay the public liability insurance as a master licence holder if Mr Lam was allowed to acquire a pistol in his own right as a security guard, and additionally that Mr Lam would make savings as he would not have to share any of a job’s costs or profits with a master security licence holder.

65 However, it is clear from Mr Lam’s security industry licence that in order to carry out work as a security guard he must be employed by a master licence holder. As Sportarms now has a master licence, it can serve as Mr Lam’s employer. However, if the security guard work is to involve the possession or use of a firearm, Sportarms must obtain public liability insurance cover. It is a condition of the master licence.

66 Given the conditions of Mr Lam’s security guard licence he is not able to work ‘on his own’ without being employed by a master licence holder. In this sense Mr Lam’s desire to be permitted to carry his own firearm in order that he avoid sharing costs with a master licence holder and so that Sportarm would not have to pay insurance costs is misconceived. If he wants to carry a gun, whoever the master licence holder is that he is employed by, that master licence holder must pay for insurance cover. The licencing regime requires a security guard be employed and does not allow for a security guard to be armed without his or her employer having to pay insurance. In the case of a self-employed security guard as Mr Lam would conceivably be, if Mr Lam wants to carry a gun, Sportarms must take out insurance.

67 For these reasons I am of the view that what Mr Lam submitted he was seeking to achieve as a security guard by being permitted to buy a pistol cannot be achieved by his acquiring a pistol.

68 For reasons given above, I am not persuaded by Mr Lam’s evidence that he needs to acquire a pistol for the purposes of self-protection as a security guard.

69 In my view, the ‘good reason’ requirement found in s 31(3)(c) would have to be something different from and additional to the ‘genuine reason’ and the ‘special need’ required to obtain a licence. Otherwise there would be little point in having s 31(3)(c). Accordingly, I think it is inadequate to submit the same reason (eg the protection of clients’ property) as both the genuine reason required by s12 and 16 and the ‘good reason’ required by s. 31.

70 Finally, Mr Lam has managed to work as a security guard, and an armed security guard, for many years without owning his own firearm. I do not think the submission that it is necessary in the conduct of his security guard employment that Mr Lam owns the pistol he uses is persuasive as a ‘good reason’.

Decision

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Citations

Lam v Commissioner of Police, New South Wales Police Service [2001] NSWADT 57

Cases Citing This Decision

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Cases Cited

3

Statutory Material Cited

3

Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10

Osborne v Commissioner of Police [1999] NSWADT 86

Khamis v Commissioner of Police, New South Wales Police Service [2001] NSWADT 21

CITATION:	Lam -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 57
DIVISION:	General Division
PARTIES:	APPLICANT Yim Lam RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003139
HEARING DATES:	27/07/00
SUBMISSIONS CLOSED:	08/24/2000
DATE OF DECISION:	04/12/2001
BEFORE:	Lees M - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Leslie Paul Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 Osborne v Commissioner of Police [1999] NSWADT 86 Anthony Khamis -v- Commissioner of Police, NSW Police Service [2001] NSWADT 21
REPRESENTATION:	APPLICANT P Naughtin, barrister RESPONDENT J Tunks, solicitor
ORDERS:	1. The Commissioner's decision to refuse Mr Lam's applications for a permit to acquire a firearm is affirmed.