Macdonald v Commissioner of Police, NSW Police

[2007] NSWADT 174

CITATION:	Macdonald v Commissioner of Police, NSW Police [2007] NSWADT 174
DIVISION:	General Division
PARTIES:	APPLICANT Clyde Robert Macdonald RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	073065
HEARING DATES:	1 May 2007
SUBMISSIONS CLOSED:	21 May 2007
DATE OF DECISION:	3 August 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Commissioner of Police, New South Wales Police v Macdonald (GD) [2007] NSWADTAP 13 Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Sporting Shooters Association (SSA) v Commissioner of Police, NSW Police [2006] NSWADT 300
REPRESENTATION:	APPLICANT S Mainstone, solicitor RESPONDENT J McDonnell, solicitor
ORDERS:	The decision of the respondent is set aside and remitted for reconsideration in accordance with this decision.

Background

1 This is an application by Mr Macdonald (‘the applicant’) seeking review of a decision of the respondent Commissioner to refuse his application for a club armourer licence to possess and use firearms for that purpose. The applicant had sought a limited licence in that he only wished to posses and use category A and B firearms.

2 The applicant is a member of the Illawarra branch of the Sporting Shooters Association of NSW (‘the SSA’) and had been the holder of a permit to possess and use firearms in his capacity as club armourer since 11 June 1999. That permit was issued by the respondent pursuant to s.28(g) of the Firearms Act 1996 (‘the Act’). When the applicant reapplied for such a permit on 15 April 2004, the Commissioner refused to issue a new permit and invited the applicant to lodge the application that is the subject of this application. Although this application was lodged in August 2004, it was not until 25 January 2006 that the respondent determined to refuse the issue of the licence sought. That decision was affirmed on internal review and as a result the applicant lodged an application for review with the tribunal. That application was determined on 26 October 2006: see Sporting Shooters Association (SSA) v Commissioner of Police, NSW Police [2006] NSWADT 300.

3 In that decision the tribunal set aside the decision of the respondent and in substitution thereof ordered that the applicant be issued with the licence for the limited purpose for which it had been sought. The respondent appealed that decision and on 7 March 2007, the Appeal Panel ordered that the decision of the tribunal at first instance be set aside and that the applicant’s application for review be remitted for redetermination by the tribunal differently constituted: see Commissioner of Police, New South Wales Police v Macdonald (GD) [2007] NSWADTAP 13.

4 The matter was re-heard on 1 May 2007 and at the conclusion of that hearing orders were made in respect of the respondent providing the tribunal with additional material and also enabling the applicant to file and serve any material in reply. The parties did file additional submissions which have been considered together with all the other material that was previously put before the tribunal at the re-hearing.

Issues

5 The grounds on which the respondent refused the applicant’s application for an armourer’s licence was that contained in s.11(7) of the Act; namely the respondent considered that the issue of the licence sought by the applicant would be contrary to the public interest.

6 At the re-hearing the respondent contended that the applicant’s application should be refused on the grounds set out in s.11(3)(a) of the Act; namely that the respondent was not satisfied that the applicant was a fit and proper person and could be trusted to have possession of firearms without danger to public safety or to the peace. Where the respondent is not so satisfied he is required to refuse the application. That is there is no discretion.

7 The factual circumstances relied on by the respondent however has remained the same. These are the applicant’s failure to comply with the level 3 safe storage requirements as set out in the respondent’s published ‘Recommended Safe Storage of Firearms for Dealers, Collectors & Prohibited Firearms/Prohibited Weapons’. There is no dispute that the applicant fails to meet this level of storage and the issue is whether having regard to the provisions of the Act, this failure is such that the applicant is not a fit and proper person for the purposes of s.11(3)(a) of the Act, or whether the respondent has power to issue a limited armour’s licence for which the level 1 safe storage requirements are adequate.

Relevant legislation – the Firearms Act 1996

8 In 1996 the NSW Government, as part of an Australia wide move to enact tough new gun laws in all jurisdictions, enacted the Act. The underlying principles of that Act are set out in s.3 and include a confirmation that firearms possession and use is a privilege which is conditional on the overriding need to ensure public safety, to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage of firearms.

9 Part 2 of the Act deals with the issue of licences and permits to possess and use firearms. Part 3 deals with the registration of firearms. Part 4 deals with the safekeeping of firearms and Part 5 deals with firearms dealers’ licences. The remaining parts of the Act deal with miscellaneous offences, firearms prohibition orders, applications to the tribunal and miscellaneous provisions.

10 S.8 in Part 2 of the Act sets out the various licence categories and the authorities that are conferred in respect to each of the licence categories. The relevant category to this application is the category of a firearms dealer licence. S.8 in so far as it relates to this category of licence provides as follows:

‘8 Licence categories and authority conferred by licence

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

….

Firearms Dealer Licence

Firearms to which the licence applies:

- The kinds of firearms specified in the licence.

Authority conferred by the licence:

In the case of a firearms dealer other than a club armourer, authorises the licensee and (subject to the conditions of the licence and the regulations):
(a) employees or directors of the corporation specified in the licence, or

(b) employees of the partnership so specified, or

(c) employees of the individual so specified,

who are eligible to be issued with a licence and who are authorised by writing by the Commissioner, to possess, manufacture, convert, purchase, sell, transfer, repair, maintain or test, in the course of carrying on the business of a firearms dealer, and only at the premises specified in the licence, any firearm to which the licence applies, and to possess, manufacture, purchase or sell ammunition for those firearms.

In the case of a club armourer, authorises the licensee to possess, manufacture, convert, purchase, sell, transfer, repair, maintain or test in the licensee’s capacity as a club armourer, and only to the premises specified in the licence, the firearm to which the licence applies and to possess, manufacture, purchase or sell ammunition for those firearms.

The authority conferred by a firearms dealer licence issued to a club armourer is restricted to carrying out the person’s duties as club armourer for the club concerned.’

11 S.11(6) of the Act provides that with the exception of a firearms dealer licence or where an applicant’s genuine reason for the issue of a licence is business or employment, a licence must not be issued to a person who is not an actual person. As a consequence of this particular provision, an armourer’s licence can only be issued to an actual person while a dealer’s licence can be issued to a corporation.

12 S.11 also sets out the general restrictions on the issue of licences. That section, so far as is relevant, provides as follows:

11 General Restrictions on issue of licence

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) …

(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,

(b) …

…

(7) Despite any other provision in this section, the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of the licence will be contrary to the public interest.

(8) The regulation may provide other mandatory or discretionary grounds for refusing the issue of a licence.

13 In regard to s.11(8) of the Act, cl.9 of the Firearms Regulation 2006 (‘the Regs’) makes provision for the certification by the applicant of requirements relating to safekeeping of firearms. The relevant portion of that clause for the purposes of this application is cl.9(1) of the regulation which provides that ‘the Commissioner may refuse to issue a licence unless the applicant has certified in the licence application that that applicant is aware of, and understands, the requirements of the Act and this regulation in relation to the safekeeping of firearms to which the licence applies.’ A similar certification is required for permits: see cl.9(2) of the Regs.

14 S.19(1) of the Act provides that a licence may be issued by the respondent subject to such conditions that the respondent thinks fit to impose.

15 Part 4 of the Regs contains specific provisions in respect to the issuing of a firearms dealer licence and conditions on such a licence once it has been issued. Included in this part is cl.37 (formerly cl.34 of the repealed Firearms (General) Regulation 1997) which provides as follows:

37 Additional restrictions in relation to issue of firearms dealer licences

(1) A firearms dealer licence that authorises the firearms dealer to carry on business at specified premises must not be issued unless the Commissioner is satisfied that:

(a) the applicant is supposed carrying on the business of a firearms dealer at those premises, and

(b) those premises are suitable for carrying on the business of a firearms dealer.

(2) In considering whether or not premises are suitable for such purposes, the Commissioner is to have regard to the following:
(a) the nature of the activities proposed to be conducted on the premises,

(b) the kind of firearms to which the licence relates,

(c) whether adequate provision has been made for the safekeeping of firearms by means of a safe or strongroom or otherwise,

(d) the security of the premises against unauthorised entry,

(e) in the case of a licence that authorises the testing of firearms on the premises – whether an efficient bullet recovery box for bullets is provided on the premises.

16 Part 5 of the Act sets out specific provisions in relation to firearms dealers. S.43 in that Part creates an offence where a person carries on activities as a firearms dealer or to possess a firearm in the person’s capacity as a firearms dealer unless that person is authorised to do so by a firearms dealer’s licence. Ss.45, 46 and 47 of the Act make provision for the recording of transactions and quarterly returns and other requirements imposed on persons who are the holders of a firearms dealer licence.

17 Ss.40 and 41 make provision for the storage requirements for a category AB and category CDH licences respectively. The Act or the Regs contain no express storage requirements for firearms dealers.

Evidence

18 The applicant did not submit any further evidence for the purposes of this re-hearing and relied on that which had been before the tribunal at first instance. That evidence is in substance not disputed and can be summarised as follows:

(a) The applicant is the holder of a category AB firearms licence and has storage facilities at his home for the storage of his own firearms. This storage has been inspected by officers of the respondent and complies with the requirements of s.40 of the Act.

(b) For the past five years the applicant has performed the role of club armourer for the SSAA Illawarra branch and he has performed this role from his home. He has performed this role pursuant to a permit issued under the Act. As club armourer the applicant’s responsibility is to transfer category A and category B firearms between SSA members. In witnessing these transfers his role is purely a paper one. However, on an average of once a year, the applicant has also been required to hold one or possibly two firearms, the subject of an overnight transfer. When this does arise he secures them in his storage facility at his home. He did this for five years without incident.

(c) The applicant has never been authorised in his capacity as club armourer to possess firearms for sale, manufacture, convert, purchase, repair, maintain or test.

(d) The club was prepared to pay for the costs of upgrading the safe storage at the applicant’s home. This would involve the conversion of a room in his home into a secure room, with secure solid core doors, the fitting of window grills to the windows and the installations of a security alarm system with sensors. The applicant while agreeing to the need for safe storage did not wish to have his house turned into a fortress and sought a licence for the limited purpose for which he had previously used his permit.

19 The respondent, on the other hand, in addition to the material that had been relied on previously, filed and served an additional statement of evidence of Craig Capper, Acting Manager of the NSW Firearms Registry. The position of the respondent has at all times been that in order to be issued with a armourer’s licence, the applicant was required to meet the level 3 safe storage requirements as set out in his previously published recommendations in this regard. These recommended safekeeping requirement included the following:

‘All firearms must be stored in secure premises and be securely locked overnight in padlocked racks permanently attached to sidewalls or placed in a security area such as a strongroom.

The premises will be considered secure if:

All perimeter doors are of solid construction, securely hinged in stout framework and fitted with mortiselock or deadlock.

All perimeter windows and roof skylights are fitted with security grills,

An intruder alarm system is installed which incorporates the following

- a space movement detector similar to microwave, passive infrared or ultrasonic to be installed to detect movement irrespective of an intruder’s method of entry,

- a battery stand-by in case of a power failure,

- an external noisemaker which should alert local residents in the event that the alarm is activated,

- where facilities are available, monitoring of the system should be achieved by landline to a private security company.

20 The respondent’s recommendation then goes on to set out the minimum standards which apply in respect to a free-standing safe, a wall safe and an under the floor safe.

21 The respondent also submitted that it had no power under the Act to issue a licence with conditions that limited what the licence holder was able to do.

22 The statement of Craig Capper primarily contains submissions on the construction of the relevant provision of the Act and how these are applied by him, as the respondent’s delegate, in making decisions pursuant to the Act. He states that in his opinion it is not appropriate to grant the applicant a licence with conditions attached and says that ‘it is necessary to bear in mind that the firearms dealer licence imposes on its holder a high level of responsibility.’ He also sets out the basis on which he believes the applicant is not a ‘fit and proper person to undertake the important responsibility conferred by such a licence if issued.’ In this regard at para 17 of his statement Craig Capper states:

‘…[to] demonstrate that he or she understands and accepts these responsibilities, I take the view that it is necessary for the applicant to undertake to have the stipulated storage requirements. If he or she does not do so, I take the view that the applicant must be regarded as not having demonstrated that he or she understands these responsibilities.’

23 Craig Capper then goes on to state the following:

‘18. The firearms industry has developed a recommended level of safe storage referred to as Level 3 safe storage. This storage level is referred to as such as it is was (sic) the third tier in the safe storage continuum after Category A or B licence holders (Section 40 – then Level 1) and Category CD or H licence holders (Section 41 – being Level 2). I understand that the requirements of level 3 safe storage have been placed before the Tribunal in evidence previously.

19. This recommended safe storage level was developed and implemented by the Firearms Registry prior to my commencement at the Firearms Registry in 2003. This level of safe storage has been implemented and complied with by all applicants prior to the present applicant before the Tribunal.

20. The Firearms Registry has expressly provided the relevant safe storage requirements as recommended safe storage requirements to permit flexibility in the application of safe storage requirements. Additionally, by recommending safe storage levels for these persons, it sets a benchmark to guide applicants as to the level of security required before the Commissioner will consider the applicant’s premises suitable to undertake commercial activities, or prospective activities that may involve large numbers of firearms.

21. It is acknowledged that the (sic) neither the Firearms Act 1996 nor the Firearms Regulation 2006 expressly provide for safe storage requirements applicable to firearms dealers. The level of safe storage required is left to the discretion of the Commissioner of Police. Despite this, during the course of my duties within the Firearms Registry, I have had had cause to review these safe storage levels from time to time. At this time, I have had no reason to alter these recommended safe storage requirements. These Level 3 recommended safe storage requirements are applicable to Firearms Dealers (including Club Armourers, Collectors, Prohibited Weapons Dealers and persons who possess prohibited firearms.

22. These persons fall within a class of persons who may be authorised to possess hundreds, if not thousands of firearms. In this regard, many firearms dealers and club armourers possess hundreds of firearms and most probably there are many firearms dealers who possess thousands of firearms. Furthermore, these persons are either authorised to possess highly restricted firearms, or stock large numbers of firearms, which are extremely valuable to the criminal element or they are engaged in commercial activities.

23. Because these persons are likely to be engaged in commercial activities they will, invariably, advertise their goods and services which is more likely to result in attempts by the criminal element to target these persons and attempt to acquire the firearms from these persons via illicit means, as opposed to trying to identify individuals who may possess firearms.

24. In the course of reviewing the relevant Level 3 safe storage requirements I have had particular regard to the recent amendments of the then Firearms Regulation 1997 through the Firearms (General) Amendment (Security) Industry Regulations 2004 which inserted clause 61B (cf Clause 75 – Firearms Regulation 2006).

25. This provision prescribes very strict controls of the safe storage of firearms applicable to security firms. These provisions were inserted into the Regulations following a significant rise in the number of thefts of firearms from security firms. Of particular note are the provisions of clause 75(5) which prescribed that if a security firm possesses more than fifteen (15) firearms, they must be stored in a manner not inconsistent with that being imposed through recommended safe storage requirements for firearms dealers who may possess hundreds, if not thousands, of firearms. I mention this because, without the present applicant having appropriate security, there is a strong prospect that weapons could be stolen from his premises.

…’

Fitness and propriety

24 The meaning of the term ‘a fit and proper person’ was considered in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. At [63] of that decision, Mason CJ said the following:

‘The question of whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’

25 In Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156, Dixon CJ, McTiernan and Webb JJ said the following in relation to the purpose of the fit and proper person test:

‘... is to give the wider scope for judgment and indeed for objection. “Fit” (or idoeneus) with respect to an office is said to involve three things, honestly, knowledge and ability; “honesty” to execute it truly, without malice, affection or partiality; knowledge to know what he ought to do; and ability as well as a state as embodied that he may intend and execute his office, when need is, diligently and not for impotency or poverty neglected.’

26 It is well established that the ‘fitness and propriety’ of a person must be considered in the context of what the person will be authorised to do if the licence is granted: see Hughes and Vale Pty Ltd (supra) and Bond (supra). And in doing so regard is to be had to the objectives of the legislation for which the licence was issued. In this case the objectives are those set out in s.3 of the Act which are expressly reflected in the fit and proper test set out in s.11(3)(a) of the Act; namely public safety.

27 In this application there is no evidence of the applicant having engaged in any inappropriate conduct which would give rise to his lack of honesty, knowledge and ability which would place public safety at risk if he were issued with the licence he has applied for. Indeed during the time he was authorised by the respondent, through a permit, to act as the club armourer he never came to the attention of the respondent. That is, it was not through any failing by the applicant that he was refused a renewal of that permit. The refusal was clearly as a result of the respondent having a change in policy or interpretation of the permit provisions in the Act for this purpose. These changes do not mean that the applicant fails the fit and proper test.

28 In my opinion, there is no basis to embark on an enquiry as to the applicant’s fitness and propriety to be issued with the licence he has applied for. The matters in issue are purely matters of construction of the relevant provisions of the Act.

Construction of the Act

29 There is no dispute that the licence for which the applicant has applied for is a dealers licence.

30 S.8 of the Act expressly provides that the firearms to which this licence applies is the ‘kind of firearms specified in the licence’. In my opinion these words expressly enable the respondent to issue a dealers licence (including a club armourers licence) in respect to one or more categories of firearms that are set out in that section. It does not mean that every dealers licence automatically applies to each of the categories of firearms in that section. Accordingly, the respondent is authorised to issue the applicant with a dealer/armourer’s licence that is limited to category A and B firearms and that limitation is to be specified on the licence.

31 S.8 of the Act also sets out what a club armourers licence authorises the holder of that licence to do. This includes manufacture, convert, purchase, sell, transfer, repair and test the firearms to which the licence applies. The applicant only seeks to have his licence for the purpose of facilitating a transfer of firearms between club members, but I agree with the submissions of the respondent that if a licence were issued he would be authorised to perform any of the other functions that are listed in the section. Whether, the respondent is able to restrict those functions which a particular licence holder is authorised to do under this section, by means of placing conditions on the licence, is in my opinion unnecessary to decide. However, I do agree with the respondent that if such restrictions were possible then they would be almost impossible to monitor.

32 If the respondent is correct in that it has no power to restrict that which is authorised by statute, in the case of a dealers licence (including a club armourer), where the licence holder does perform one or more of the functions set out in s.8, that licence holder (including the applicant if granted a licence) would be required to meet the stringent record keeping and reporting requirements set out in ss.45, 46 and 47 of the Act. It is through these requirements that the respondent monitors the transactions in which such licence holders are involved in.

33 The real issue in this application is safe storage. As mentioned above, the Act does not contain any specific provision relating to the safe storage requirements of a person who is the holder of a dealers licence (including a club armourer). The only provisions are those that apply to licence holders of the various categories of firearms. However, cl.37 of the Regs do set out, in a generic sense, safe storage requirements for the purpose of a dealers licence. As set out above, this clause requires the respondent not to issue a dealers licence unless he is satisfied that the premises from which the licence holder proposes to conduct his business is suitable for carrying on the business of a firearms dealer from those premises. The clause also sets out what the respondent is to have regard to in determining whether the premises are suitable and these include:

(a) the nature of the activities proposed to be conducted at the premises;

(b) the kind of firearms to which the licence relates;

(c) whether adequate provision had been made for the safe keeping of firearms by means of a safe or strongroom etc; and

(d) the security of the premises.

34 Once again this clause is expressed in such a way that Parliament intended the safe storage requirements for those who are the holders of a dealers licence to be determined on the basis of the kinds of firearms to which the licence relates and the activities that are to be carried on pursuant to that licence.

35 The Appeal Panel held that cl.37 of the Regs had no application to an application of an armourers licence and only applied to a dealers licence as the cl.37 was predicated on the licence holder ‘carrying on business’ as a dealer: see Commissioner of Police v MacDonald (supra) at [32], [35] and [60]. However, the Appeal Panel went on to say, at [35], that ‘it remained open for the respondent to have regard to matters of the kind listed in that clause as safekeeping of firearms lay at the heart of the public interest considerations that bear on the use of firearms in the community, as reflected in the objects of the legislation …’

36 There is no dispute that the respondent has the power in administering the Act to issue guidelines as are set out in his ‘Recommended Safe Storage of Firearms for Dealers, Collectors & Prohibited Firearms/Prohibited Weapons’. However, as these indicate they are merely guidelines and cannot be used so as to fetter the respondent’s discretion in regard to the safe storage requirements such as those provided for in cl.37 above: see Clyne v Commissioner of Police, New South Wales Police [2004] NSWADT 52. Each application must be considered in the context of its particular circumstances. Which in my opinion the respondent has failed to do in the case of this particular application of the applicant.

37 In this regard I note Craig Capper’s statement at [18] that the guidelines were intended to provide flexibility for differing circumstances. However, he goes on to state at [22] that ‘many firearms dealers and club armourers possess hundreds, if not thousands of firearms’ and that they ‘are either authorised to posses highly restricted firearms, or stock large numbers of firearms, which are extremely valuable to the criminal element or they are engaged in commercial activities.’ He also mentions at [23] that such persons ‘invariably, advertise their goods and services which is more likely to result in attempts by the criminal element to target these persons and attempt to acquire the firearms from these persons via illicit means.’ In such circumstances it is understandable that the respondent has set stringent guidelines, however, these are not, with respect, circumstances that are applicable to the applicant. His evidence, which is not disputed, is that he only facilitates transfers between club members and during the five years he has held a permit he was required on an average of once a year to keep a firearm the subject of a transfer in his safe at home. At the same time it does appear to be unusual for a club armourer to perform part of his/her licensed activities from his/her home, but there is no prohibition on such and it is noted that most holders of the various categories of firearms do store their firearms in the requisite storage facility in their home.

38 For the reasons set out above, in my opinion the respondent’s decision is not the correct and preferred decision and should be set aside. As I have indicated the respondent clearly has power to issue a club armourers licence which is limited to category A and B firearms. The only question that remains is whether having regard to the activities he proposes to conduct from his premises in regard to that licence, whether the security of his premises from unauthorised entry and his safe is otherwise adequate for the safekeeping of firearms are such that they do not pose a risk to the community. In my opinion, it is appropriate for the matter to be remitted to the respondent so that he can reconsider the adequacy of the applicant’s storage etc. in light of the reasons set out in this decision and if inadequate advise the applicant what additional steps he needs to take to make them adequate.

39 I order that the decision of the respondent is set aside and the matter is remitted to the respondent for reconsideration in accordance with these reasons for decision.