Livadaru v Commissioner of Police

[2008] NSWADT 160

CITATION:	Livadaru v Commissioner of Police, NSW Police Force [2008] NSWADT 160
DIVISION:	General Division
PARTIES:	APPLICANT Camelia Codruta Livadaru RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	083037
HEARING DATES:	14 May 2008
SUBMISSIONS CLOSED:	14 May 2008
DATE OF DECISION:	2 June 2008
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996 Firearms Regulation 2006
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bazouni and ors v Commissioner of Police, NSW Police Service [2002] NSWADT 100 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Hocking v Commissioner of Police, NSW Police Service [2002] NSWADT 214 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994)
REPRESENTATION:	APPLICANT M Coroneos, barrister RESPONDENT M Thangaraj, barrister
ORDERS:	1. The Commissioner’s decision to revoke Ms Livadaru’s category AB firearms licence is set aside and a decision substituted reinstating that licence 2. The Commissioner’s decision to revoke Ms Livadaru’s firearms dealer licence is affirmed.

REASONS FOR DECISION

1 On 31 January 2008, Camelia Livadaru applied to the Tribunal for the review of decisions of the Commissioner of Police (‘the Commissioner’) made under the Firearms Act 1996 (‘the Act’) to revoke her category AB firearms licence and her firearms dealer licence on the ground of the public interest.

Background

2 Ms Livadaru was born in Romania and migrated to Australia in 1989. She has been married for 13 years to Cezar Livadaru by whom she has three children aged nine, six and three years. Mr Livadaru is a house painter. Ms Livadaru has no criminal convictions and has never been charged with a criminal offence.

3 On 17 November 2000, Ms Livadaru was issued with a personal category AB firearms licence, which was renewed on 11 January 2006 with an expiry date of 11 January 2011. On 21 February 2006, Mr and Ms Livadaru registered the business name ‘Survival Arms’, the specified nature of the business being camping, fishing and hunting gear and accessories. On 9 April 2006, Ms Livadaru was issued with a firearms dealers licence for the business ‘Survival Arms’ with an expiry date of 9 April 2011. Ms Livadaru runs an online business under this name from her home in the Sydney suburb of Sadleir, selling firearms accessories and hunting, fishing and camping gear. In the course of this business, Ms Livadaru imports products from overseas, including, in 2007, some letter openers and telescopic stocks, which came to the attention of the Australian Customs Service (‘Customs”).

4 On 8 August 2007, Customs officers accompanied by the NSW Police Force, acting under the authority of a warrant, conducted a search of Mr and Ms Livadaru’s home at Sadleir and seized various items located there, including some white crystals, suspected of being prohibited drugs, and a book entitled ‘The Secrets of Methamphetamine Manufacture’, with a letter written by Mr Livadaru to the author of the book. Chemicals and equipment were found in a shed at the rear of the house, and the Police suspected that Mr Livadaru might be involved in the illegal manufacture of methamphetamines. Mr Livadaru was arrested and taken to Green Valley Police Station where he was questioned before being released.

5 The Police located a gun safe in Ms Livadaru’s lounge room, and when she opened the safe at their request, they found two empty rifle magazines and a small quantity of ammunition stored in the firearms compartment of the safe, together with $20,500 in cash. The Police also found a broken extendable baton on the floor of the lounge room. Mr Livadaru admitted to ownership of the two magazines and the baton.

6 On that same day, Ms Livadaru’s two firearms licences were suspended for breach of the safe storage requirements for ammunition and for importing prohibited weapons. Ultimately, on 24 August 2007, the licences were revoked on the ground that it would not be in the public interest for Ms Livadaru to continue to hold the licences. An application made by Mr Livadaru in July 2007 for an ‘employee authority – dealer employee’ was also refused on 24 August 2007. Notification of the revocation of her licences was served personally on Ms Livadaru on 3 October 2007. By letter dated 30 October 2007, Mr Coroneos, acting for Ms Livadaru, sought an internal review of the decisions to revoke her licences.

7 Both Mr and Ms Livadaru claimed the white crystals found in the bathroom of their house were bath salts, and subsequent tests established that the crystals were not prohibited drugs. Charges against Mr Livadaru of ‘possess prohibited drug’ and ‘supply prohibited drug’ were later withdrawn, and neither Mr nor Ms Livadaru have been charged with any other drug related offences. Mr Livadaru was charged with three counts of ‘possess prohibited weapon’ in respect of the two rifle magazines and the extendable baton. On 8 February 2008, the matter was heard at Liverpool Local Court and, although finding Mr Livadaru guilty of the offences, the Magistrate discharged him on a 12 months good behaviour bond without recording a conviction, pursuant to section 10(1) of the Crimes (Sentencing Procedure) Act 1999. The $20,500 in cash was subsequently returned to Ms Livadaru and, on 23 January 2008, Customs notified Ms Livadaru that they would take no further action with respect to the importation of telescopic stocks, dagger letter openers and two push (Tom Anderson) knives found in the house.

8 On 12 December 2007, after an internal review, a delegate of the Commissioner confirmed the decisions to revoke Ms Livadaru’s licences on the ground of the public interest. On 31 January 2008, Ms Livadaru applied to the Tribunal for a review of this decision.

The Relevant Legislation

9 The power of the Commissioner to revoke a firearms licence is set out in section 24(2) of the Act, as follows:

24(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, or

(b) if the licensee:

(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

10 In these proceedings, the Commissioner relied upon section 24(2)(a) and (d). In relation to section 24(2)(a), the Commissioner submits that Mr Livadaru is not a ‘fit and proper person’ to be a close associate of the holder of the firearms dealer licence. Section 17B(a) states:
17B. The Commissioner must not issue a firearms dealer licence if the Commissioner:

(a) is of the view that a person who (in the opinion of the Commissioner) is or will be a close associate of the applicant is not a fit and proper person to be a close associate of the holder of a firearms dealer licence, or ...

11 The term ‘close associate’ is defined in section 4B as follows:
4B(1) For the purposes of this Act, a person is a "close associate" of an applicant for, or the holder of, a firearms dealer licence if the person:

(a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or licence holder, and by virtue of that interest or power is or will be able to exercise a significant influence over or with respect to the conduct of that business, or

(b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or licence holder.

(2) In this section:

"relevant financial interest", in relation to a business, means:

(a) any interest in the capital or assets of the business, or

(b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise.

"relevant position", in relation to a business, means a position whose holder participates in the management of the business (whether in the capacity of a director, manager or secretary or in any other capacity).

"relevant power" means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others:

(a) to participate in any managerial or executive decision, or

(b) to elect or appoint any person to any relevant position.

12 In relation to section 24(2)(d), upon which the Commissioner also relies, clause 19 of the Firearms Regulation 2006 (‘the Regulation’) states:
“The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.”
Ms Livadaru’s Evidence

13 Ms Livadaru said she obtained a firearms licence in 2000 for recreation and hunting. She is a member of the Sporting Shooters Association of Australia. Later, in 2006, she applied for and was granted a dealer licence and established a business selling hunting, fishing and camping gear and accessories under the registered business name ‘Survival Arms’. Ms Livadaru said she had previously worked for the ANZ Bank for eight years. Establishing a business that she can run online from home, allows her flexibility so that she can be at home with her children and involved with them in their school and their sporting and other activities. In addition to selling products over the internet, she also sells at various arms fairs around the country.

14 Ms Livadaru acknowledged that the business name is registered in both her and her husband’s names. She said this is because when she attends arms fairs, she does not want to go on her own. Her husband helps with driving to the fairs, setting up their tables and assisting her with sales, although not with the sale of any item requiring a firearms licence. Ms Livadaru applied for a permit to take firearms to arms fairs, and to do so also required that any employee had to have an employee authority. This is the reason her husband applied for an employee authority. On submitting his application for the authority, he was required to undertake a safe handling course for handguns, which he successfully completed. She understood from the Firearms Registry that if he successfully completed the course, there would be no other problems with his application.

15 Ms Livadaru said her husband works as a house painter sub-contractor. He works from home and keeps his painting equipment, including chemicals such as ‘turps’ and methylated spirits, in a shed attached to their house. The gas bottle and burner the Police found in the shed, they use when they go camping with their children. When working, Mr Livadaru earns about $500 per day gross. His work is quite flexible so he is able to help her when necessary. Ms Livadaru acknowledged that although her husband had no involvement in setting up the website for the business, and has no involvement in the online internet transactions, he is involved in decision-making for the business, for example in deciding how they should expand the business and how the website should look.

16 The products Ms Livadaru sells in the business she keeps in their house, where she packs orders and from which she dispatches orders. At the time of the search, they were renovating their house and building a double garage to store goods for the business. This is the reason the Police found three throwing knives in her and her husband’s bedroom. Her husband had ordered these for the business and they had placed them in their bedroom to keep them away from the children. Being just knives, there was no requirement for them to be kept in a safe, although perhaps they should have been.

17 Ms Livadaru said she has known her husband since 1994 and they married in 1995. She is aware of her husband’s criminal record, none of which is drug related. However, also being aware of the Act and regulations, she knew this did not prevent him from applying for an employee authority since he had not committed a ‘prescribed offence’. In cross-examination, she acknowledged that she was not aware that he cannot currently obtain an employee authority because he is subject to a good behaviour bond.

18 Ms Livadaru said at the time her house was searched on 8 August 2007, she had 11 firearms in her possession, both for recreation and for the purpose of taking promotional photographs for use on the business website. She has two approved gun safes in the house – a tall, narrow one in her bedroom and a larger wider one in her lounge room. Both contain separate internal locked ammunition compartments. Her personal firearms licence required that ammunition should not be stored with her firearms, although this was permitted under her dealer licence. At the time of the search, the ammunition compartments in both safes were full and it was for this reason that there was some ammunition in the same compartment as the firearms.

19 Ms Livadaru said only she has access to the gun safes and not her husband. He is unable to open them. She has a secret PIN combination for the electronic touch pad for each safe, together with two separate keys.

20 Ms Livadaru said shortly before the search of her house on 8 August 2007, she had placed an order with a company in Israel for the purchase of six letter openers, and two telescopic stocks for use with a camera instead of a tripod. She acknowledged that both she and her husband had been involved in making the decision to order these items. Her husband wanted the letter openers. She wanted to check the quality of telescopic stocks which she was advised by the Firearms Registry were not a prohibited weapon but only an accessory.

21 Ms Livadaru described the search conducted by Customs and the Police on 8 August 2007. She said she and her children were “terrified” when plain clothes officers forced their way into the property at 7.00 am. She co-operated with them throughout, including opening her safes when requested to do so. The Police found two empty rifle magazines in the safe in the lounge room. Her husband bought these at an arms fair in Queensland in May 2007 for the purpose of using them in photographs on the website. The magazines were not compatible with any of her firearms. Ms Livadaru acknowledged that she knew these magazines were classified as prohibited weapons in New South Wales (although not in Queensland) and told him they should wait until she had a prohibited weapons permit. However, he said the magazines were not common parts and they should take the opportunity to buy them. Ms Livadaru put the magazines in the safe. She intended to apply for a prohibited weapons permit when her husband had obtained his employee authority so that she could list him in the prohibited weapons permit application.

22 Ms Livadaru said after the Police arrested her husband and took him to Green Valley Police Station, Customs and the Police continued to search her house, until about 5 pm. They also seized computers, documents and invoices, money, her firearms, ammunition and parts, a telescopic stock, and throwing knives. She explained to the Police the reason for the $20,5000 in the safe and the Police afterwards returned this.

23 Ms Livadaru said the baton found by the Police on the lounge room floor had also been bought by her husband at the same Queensland arms fair and was broken. Although similar to a normal stick, it should have been in the safe where she thought she had put it. She thought it possible the Police took it out of the safe and put it on the floor in the course of their search. She agreed it was unsafe to have the baton around the house. In the record of her husband’s interview at the Police Station, she read that he had said he needed the baton for his personal security, but she had not previously been aware of this.

24 Ms Livadaru said she has never seen her husband use drugs and would know if he had done so. She noted that he had admitted to this in the course of the Police interview, but said she had never been aware of his using drugs or, in particular, of his having used heroin. Perhaps this was before she knew him. Ms Livadaru noted that he wanted to be co-operative with the Police. She said she and her husband sometimes have a little difficulty with their English, it not being their first language – they speak Romanian together at home.

25 Ms Livadaru said the white crystals found in the bathroom, where there is a spa bath, were bath salts purchased at school and given to her by her daughters for Mothers’ Day. Her husband does drink alcohol and has been convicted of drink driving offences, but is not an alcoholic. She said she knows little of her husband’s past, but has no evidence to indicate that he has ever used heroin. She acknowledged having seen the book on manufacturing methamphetamines. She has never read it and told her husband “to get rid of it”. She assumed he had done so. Ms Livadaru said she had never seen the handwritten letter written by her husband to the author of the book, and was only aware of this from having read the Police record of interview. Her husband has never been involved in manufacturing drugs. If he did become involved, she would divorce him.

26 Ms Livadaru said that since the suspension of her licences, she has had to concentrate on the sale of different kinds of accessories in her business, and has been unable to sell ammunition, magazines or firearms. This has significantly affected the business financially. Whereas previously, the business generated a gross monthly income of about $5,000, or $10,000 if she attended one of the quarterly arms fairs, it now earns less than $2,000 per month. The family has struggled financially and they have had to sell their holiday property because they could not maintain the loan repayments. She has also had to cut out some of the children’s sporting activities.

27 Ms Livadaru said if her husband were not a fit and proper person, she would not have involved him in the business. Her licences are both her hobby and her livelihood. Her neighbours, her friends and her church are comfortable with what she does. It is her business and she is proud of it. She would never jeopardise anybody’s life. The appeal is about her and her business. She is prepared to take her husband out of the business in order to carry on with it. If necessary, she will employ someone to help her when attending arms fairs. Ms Livadaru said she recognises that she made a few mistakes. If her licences are reinstated, she will purchase another safe to keep ammunition separately from her firearms.

The Commissioner’s Submissions

28 The Commissioner relies upon section 24(2)(a) and section 24(2)(d) of the Act in justifying his decision to revoke Ms Livadaru’s licences. In relation to section 24(2)(a), Mr Thangaraj noted that Mr Coroneos did not call Mr Livadaru to give evidence. He submitted that pursuant to the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’), the Tribunal could infer from the Applicant’s not calling Mr Livadaru to give evidence that his evidence would not have assisted the Applicant’s case. There was no evidence to suggest that Mr Livadaru did not understand the questions put to him in the course of being interviewed by the Police on 8 August 2007. That Ms Livadaru does not know whether her husband has taken drugs indicates that he may have taken drugs without her knowledge.

29 Mr Thangaraj submitted that the fit and proper person test applied in the case of a ‘close associate’ is the same as that applied in the case of an applicant for a licence or of a licensee, as to which see the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (‘ABT v Bond’). He submitted that even though section 24(2) is a discretionary power, the fact that section 17B mandates that the Commissioner not issue a licence where the criteria in that provision are satisfied, indicates that the discretion should only be exercised to allow the licensee to retain a licence in the most exceptional circumstances. Particular emphasis should be given to the public safety focus of the legislation.

30 Mr Thangaraj noted that Mr Livadaru has a criminal history: in December 1997, he was found guilty of possessing a prohibited weapon without a permit and, although not convicted, was placed on a good behaviour bond. In Bazouni & Ors v Commissioner of Police, NSW Police Service [2002] NSWADT 100 (‘Bazouni’), at paragraph 21, the Tribunal said, “It is the person's conduct, not the fact of a conviction, which is to be considered.” Mr Thangaraj noted that Mr Livadaru has two convictions for assaulting a police officer (April 1999 and June 1999) and two convictions for resisting arrest (also April and June 1999), and three convictions for driving with more than the prescribed concentration of alcohol (October 1997, October 2005 and April 2006).

31 In relation to the search on 8 August 2007, Mr Livadaru was found guilty of three counts of possessing a prohibited weapon (the two magazines and the baton), but discharged without a conviction being recorded on entering into a 12 months good behaviour bond. Mr Thangaraj submitted that the Tribunal should infer from the book ‘Secrets of Methamphetamine Manufacture’ and the letter addressed to the author written by Mr Livadaru, both found in the search, that Mr Livadaru had attempted to manufacture drugs from a recipe in the book.

32 Mr Thangaraj noted that Ms Livadaru had sought to minimise her husband’s role in the business in her evidence in chief. However, in cross-examination, she admitted to his having a greater involvement: for example, in discussing with her how best to promote the business, and, in particular, purchasing the two magazines at an arms fair in Queensland, against her advice, notwithstanding that these were prohibited weapons, with a view to using these in promotional photographs. Ms Livadaru acquiesced in her husband’s purchase. Although her evidence is that she intended to seek a prohibited weapons permit, the fact that she allowed a close associate to purchase prohibited weapons reflects poorly on her. Mr Thangaraj noted that her husband had also purchased throwing knives for the business, which, in cross-examination, she acknowledged should have been kept in the safe. He submitted that the influence that her husband has on Ms Livadaru poses a risk for public safety.

33 With regard to Ms Livadaru’s evidence that she was prepared to exclude her husband from the business if necessary in order to regain her licenses, Mr Thangaraj submitted that she would need to make a fresh application for a dealer’s licence on the basis of her involvement alone in the business. He submitted that notwithstanding Ms Livadaru’s exclusion of her husband from the business, the Tribunal should not be satisfied that there is virtually no risk to public safety. In his written submissions, Mr Thangaraj referred to a number of decisions in which the Tribunal has discussed the concept of the public interest and the requirement that the Tribunal be satisfied that there is virtually no risk to public safety: for example, Commissioner of Police v Toleafoa [1999] NSWADTAP 9 (‘Toleafoa’); Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (‘Ward’).

34 Mr Thangaraj submitted that the fact that firearms are Ms Livadaru’s hobby is almost irrelevant. That revocation of the licences has impacted negatively on her livelihood is a relevant matter, although given her evidence as to her and her husband’s income and the effect of the loss of income being the need to sell their holiday home, it would appear that their financial circumstances are not that straitened. Mr Thangaraj submitted that the negative effect on their livelihood is insufficient to override the primary consideration of the overriding need for public safety: Hocking v Commissioner of Police, NSW Police Service [2002] NSWADT 214.

Ms Livadaru’s Submissions

35 Mr Coroneos noted that the Commissioner accepts that Mr Livadaru is not a ‘prescribed person’ as defined in the Act and that, accordingly, neither Mr nor Ms Livadaru have contravened section 44A(1)(b). Thus, the Commissioner has also withdrawn his submission that there are grounds for revocation of Ms Livadaru’s licences under section 24(2)(b)(ii). (Mr Thangaraj confirmed this.)

36 Mr Coroneos conceded that Mr Livadaru is a ‘close associate’ of his wife. At issue, therefore, is whether he is a fit and proper person to be a close associate of the holder of a firearms dealer licence (section 17B(a)). Mr Coroneos questioned whether the fit and proper person test to be applied in this instance is the same as that applied in relation to the holding of a firearms licence, suggesting that the test in section 17B(a) is a less stringent test.

37 Mr Coroneos said the crystals found in Mr and Ms Livadaru’s premises were not prohibited drugs, and the charges of ‘possess prohibited drug’ and ‘supply prohibited drug’ laid against Mr Livadaru were formally withdrawn by the Police and dismissed by the Court. There have been no other drug related charges either in relation to Ms Livadaru or her husband. There is also no evidence of Mr Livadaru being involved in the manufacture of drugs. There is no basis for drawing an inference from Mr Livadaru’s possession of the book ‘Secrets of Methamphetamine Manufacture’ and his note addressed to the author, that Mr Livadaru was involved in such manufacture. Mr Coroneos submitted that Mr Livadaru’s criminal history does not prevent him from being considered a fit and proper person.

38 With regard to the Police records of interview with Mr Livadaru, Mr Coroneos submitted that these are unsworn, hearsay documents which contain internal inconsistencies. They are merely a record of a conversation between Mr Livadaru and Police officers. When examining the record of interview, the Tribunal should take into account the whole interview.

39 Mr Coroneos said that Ms Livadaru has held a firearms licence since 2000, has no criminal convictions and is highly regarded in the community, as the references she has provided demonstrate. Her evidence at the hearing was given honestly and was, at times, to her detriment. Mr Coroneos noted that the questions asked of Ms Livadaru in the examination in chief were of a more general nature than those asked in cross-examination. With regard to the seizures made by Customs and the Police in the course of their search on 8 August 2007, everything has been returned except the magazines and baton, and the book ‘Secrets of Methamphetamine Manufacture’ and Mr Livadaru’s note addressed to the author. Customs have decided to take no further action after considering “all the relevant facts of your case and your co-operation during the warrant action” (letter to Ms Livadaru dated 23 January 2008).

40 Mr Coroneos submitted the Tribunal has a discretion under section 24(2) of the Act. He contended that there is no evidence to suggest a risk to public safety from Ms Livadaru carrying on her business. He noted the financial hardship caused by the revocation of the licences. While Mr Livadaru earns approximately $500 gross per day when working, he does not work every day. If necessary, Ms Livadaru is prepared to run the business in her name and exclude her husband from the business. However, Mr Coroneos argued that the evidence is insufficient to establish that Mr Livadaru is not a fit and proper person – he is entitled to a presumption of innocence in relation to the Commissioner’s allegations concerning drugs. Mr Coroneos said there is no evidence to suggest that Mr Livadaru has had access to his wife’s gun safes. The magazines, which he bought, and which were in the same compartment of the safe as the firearms, were empty of ammunition and were not compatible with and could not be used with those firearms.

Discussion

41 There are two issues for the Tribunal to determine. The first issue relates to the firearms dealer licence. Mr Coroneos’ having conceded that Mr Livadaru is a ‘close associate’ of his wife in terms of the definition of close associate in section 4B(1), the issue to be determined is whether Mr Livadaru “is not a fit and proper person to be a close associate of the holder of a firearms dealer licence” (section 17B(a)). I note that the Commissioner’s power to revoke a licence under section 24(2) is a discretionary one. However, I accept the Commissioner’s submission that because section 17B mandates that the Commissioner “must not issue a licence” where a person who is “a close associate of the applicant [for a licence] is not a fit and proper person to be a close associate of the holder of a firearms dealer licence”, the circumstances in which the discretion not to revoke the licence would be exercised would need to be exceptional when considered in the light of the underlying principles of the Act, which emphasise the overriding need to ensure public safety.

42 The second issue is relevant to both Ms Livadaru’s category AB firearms licence and her firearms dealer licence, and is whether “it is not in the public interest for the licensee to continue to hold the licence” (clause 19 of the Regulation).

(1) Fit and Proper Person

43 The first issue, then, is whether Mr Livadaru “is not a fit and proper person to be a close associate of the holder of a firearms dealer licence” (section 17B(a)). In my view, contrary to Mr Coroneos’ suggestion, there is nothing to indicate that the fit and proper person test to be applied in this instance is less stringent that the test applied in other circumstances. I therefore reject this suggestion.

44 The meaning of 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 paragraph 9, where Dixon CJ, McTiernan and Webb JJ found the word ‘fit’, in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase ‘fit and proper person’ was also discussed in ABT v Bond, where Toohey and Gaudron JJ said at paragraph 36 of their judgment:

“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.”
45 As their Honours recognised, at paragraph 66, whether a person is a fit and proper person involves a value judgement 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: see McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994) , in particular, the judgments of Kirby P, at paragraphs 21 to 26, and Powell JA, at paragraphs 59 to 73.

46 Thus, whether Mr Livadaru is a fit and proper person must be determined in the light of the activities to be undertaken by his wife as holder of the firearms dealer licence. There was no evidence from Mr Livadaru before the Tribunal. In the circumstances of this case, concerning licenses held by his wife, one relating to her business, and, in particular, the Commissioner’s reliance on section 17B, as a result of which whether Mr Livadaru is a fit and proper person is in issue, one would have expected him to have been called to give evidence in support of her case at the hearing. In my view, in the light of the Police record of interview with Mr Livadaru on 8 August 2007, it is reasonable to infer from his not giving evidence that his evidence is likely to have not assisted her case: Jones v Dunkel.

47 I have examined the Police records of interview with Mr Livadaru on 8 August 2007. I accept that this is purely the record of a conversation between the Police and Mr Livadaru and is not sworn evidence. I also accept that no drugs were found on the premises during the course of the search on that day. Nevertheless, the answers given by Mr Livadaru do suggest past personal drug taking (for example, pages 9 - 10, answers to questions 93, 96, 99 101, and page 12, answers to questions 123 and 124), and the presence of the book ‘Secrets of Methamphetamine Manufacture’ and the letter addressed to the author written by Mr Livadaru, suggest at least an interest in the manufacture of methamphetamines, although Mr Livadaru denied having ever manufactured the drug (page 22, answer to question 236).

48 I note that Ms Livadaru denied any knowledge her husband ever having used drugs or having been involved in the manufacture of drugs. I found her a credible witness and am satisfied that she gave evidence truthfully. I also note their first language is Romanian, which they speak together at home. Nevertheless, while their English language skills may not be as good as those of native speakers, in my opinion, Ms Livadaru spoke very good English and I am not satisfied from the Police record of interview that Mr Livadaru experienced any language difficulties in the course of that interview.

49 Ms Livadaru acknowledged having seen her husband’s book, ‘Secrets of Methamphetamine Manufacture’. She told him to get rid of the book and assumed that he had done so.

50 I note that while Mr Livadaru’s criminal history includes three offences of driving with more than the prescribed concentration of alcohol (October 1997, October 2005 and April 2006), he has no drug related convictions. He has convictions dating from April and June 1999 for assaulting a police officer and resisting arrest, for which he was fined. In December 1997, he was found guilty of possessing a prohibited weapon without a permit and, although not convicted, was placed on a good behaviour bond. In relation to the search on 8 August 2007, Mr Livadaru was found guilty of possessing a prohibited weapon (the two magazines and the baton), but discharged without a conviction being recorded on entering into a 12 months good behaviour bond.

51 As Mr Thangaraj pointed out, in Bazouni, at paragraph 21, the Tribunal said, “It is the person's conduct, not the fact of a conviction, which is to be considered.” Thus, in my view, I must take into account Mr Livadaru’s relevant criminal history, whether or not a conviction was recorded, although noting that fact.

52 Considering the totality of the evidence before me, and in the light of the nature of Ms Livadaru’s business which, prior to the revocation of her firearms dealer licence, included the sale of ammunition, magazines and firearms, I am not satisfied that Mr Livadaru is a fit and proper person for the purposes of section 17B(a)) of the Act. While I note Ms Livadaru’s loss of income as a result of the revocation of her dealer licence and the consequent straitening of her family’s financial circumstances (although it would not appear that these are severe), I am not satisfied that there are exceptional circumstances which override the need to ensure public safety, and which would warrant exercising the section 24(2) discretion and not revoking Ms Livadaru’s firearms dealer licence under section 24(2)(a). Thus, in my view, the Commissioner was justified in exercising his power to revoke Ms Livadaru’s firearms dealer licence under section 24(2)(a), and that decision should be affirmed.

(2) The Public Interest

53 The second issue, which is relevant to both Ms Livadaru’s category AB firearms licence and her firearms dealer licence, is whether “it is not in the public interest for the licensee to continue to hold the licence” (clause 19 of the Regulation). In Toleafoa, at paragraph 25, the Appeal Panel said that the ‘public interest’ “is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual”.

54 In considering the public interest, regard must be had to the underlying principles of the Act, stated in section 3(1), emphasising that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Ward, at paragraph 28, Deputy President Hennessy stated that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”.

55 Having determined that the Commissioner was justified in exercising his power to revoke Ms Livadaru’s dealer licence under section 24(2)(a), it is unnecessary for me to consider the public interest in relation to that licence. However, in my view, the relevant public interest considerations are, in this case, similar for both licences. The Commissioner did not contend that Ms Livadaru is not a fit and proper person to hold the two licences. As I have said, she was a credible witness who gave evidence honestly at the hearing. She has no criminal convictions, and the character evidence submitted by Mr Coroneos with the request for internal review dated 30 October 2007 indicates that she is well regarded in her local community.

56 While the Police search on 8 August 2007 revealed the two magazines and a small quantity of ammunition stored in the same compartment in Ms Livadaru’s safe as her firearms, I accept that there was no serious breach of the storage requirements (indeed in giving oral evidence, Ms Livadaru suggested that there was no breach in terms of her dealer licence), and I am satisfied from Ms Livadaru’s evidence that only she, and not her husband, has access to her two safes. While Ms Livadaru appears to have acquiesced in her husband’s purchase of the two magazines and the baton at the arms fair in Queensland, I note that the magazines were empty and the baton broken, and I am satisfied there was no serious misconduct on her part, and that she intended to correct the situation by applying for a prohibited weapons permit on her husband being granted a ‘employee authority – dealer employee’. My overall impression is that Ms Livadaru is conscientious in seeking to comply with the requirements of the firearms legislation.

57 The question that must be considered is whether Mr Livadaru’s presence in the home, association with his wife and involvement in the business, raise concerns for public safety if Ms Livadaru is the holder of firearms licences. I find from Ms Livadaru’s evidence that the online business ‘Survival Arms’ is essentially her business, set up pursuant to her recreational interest in firearms, and with a view to enabling her to earn an income from home for her family while her three children are young and attending school. Her oral evidence at the hearing was that she is solely responsible for the online internet transactions, which, it appears, are the principal activity of the business, although her husband does participate in decision-making in the business and assists her when she attends arms fairs. Mr Livadaru’s principal employment is as a house painter.

58 I am satisfied from the evidence that, in particular, because of Ms Livadaru’s conscientiousness in seeking to comply with the firearms legislation, and despite Mr Livadaru’s involvement in the business, there is virtually no risk to public safety by reason of Ms Livadaru’s possession and use of firearms. In my view, there were insufficient grounds justifying the exercise of the Commissioner’s discretion to revoke Ms Livadaru’s licences under section 24(2)(d). Thus, the Commissioner’s decision revoking Ms Livadaru’s category AB firearms licence should be set aside and a decision substituted reinstating that licence.

59 I note Ms Livadaru’s evidence that she would be prepared to exclude her husband from the business in order to retain her firearms dealer licence. Mr Coroneos conceded that Mr Livadaru is a currently a ‘close associate’ of his wife’s in terms of the definition of ‘close associate’ in section 4B of the Act, by reason, presumably, of his being a joint proprietor of the business name and his involvement in the business. In view of the current factual situation with regard to Ms Livadaru and the business and my finding in relation to section 17B, Ms Livadaru’s preparedness to exclude her husband from the business in the future can have no effect on my decision in relation to her firearms dealer licence. Nevertheless, it would be open to Ms Livadaru to take the necessary steps to exclude her husband from the business with a view to establishing that he is not a ‘close associate’, and, having done so, she could apply to the Commissioner for the issue of a new firearms dealer licence. The Commissioner would then make a fresh decision in accordance with the Act.

Orders

1. The Commissioner’s decision to revoke Ms Livadaru’s category AB firearms licence is set aside and a decision substituted reinstating that licence

2. The Commissioner’s decision to revoke Ms Livadaru’s firearms dealer licence is affirmed.