Martin Knight Security Service v Commissioner of Police, New South Wales Police

[2008] NSWADT 63

CITATION:	Martin Knight Security Service v Commissioner of Police, New South Wales Police [2008] NSWADT 63 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Martin Knight Security Service RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	073185, 073232
HEARING DATES:	21 August 2007
SUBMISSIONS CLOSED:	31 August 2007
DATE OF DECISION:	29 February 2008
BEFORE:	Grant Y - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulations 1997 Firearms Regulations 2006
CASES CITED:	Commissioner of Police, NSW Police v Robinson (General Division File No: 069019) Hardy v Commissioner of Police, NSW Police [2006] NSWADT 167 Robinson v Commissioner of Police, NSW Police [2006] NSWADT 86
REPRESENTATION:	APPLICANT D Robinson, agent RESPONDENT W Pisani, solicitor
ORDERS:	1. That the decision of the Commissioner of Police, New South Wales Police Service to revoke the Applicant’s Category H Firearms Licence Number 405888394 is set aside 2. That the condition currently imposed on the Applicant’s Category H Firearms Licence – “authorised to possess nil firearms” – is amended to permit possession of one firearm.

REASONS FOR DECISION

INTRODUCTION

1 Martin George Knight has had his name changed to Lachlan George Knight in the course of these proceedings. Martin Knight Security Service (hereinafter referred to as ‘MKSS’) is a small registered business with just one or two employees. It has been operating in New South Wales for at least 16 years, during which period the company (and its employees) have held all appropriate licences issued under the legislation and its regulations. On 22 March 1998 the business was issued with a Category H Firearms Licence – 405888394 for a period of five years.

2 On 12 March 2003 the business made re-application for the licence and it was re-issued on 22 March 2003 for a period of five years until 22 March 2008. Martin George Knight, the principal of the business, has been working in the security industry for 20 years. Previously, he was a firearms instructor. He made an application (073185) on behalf of MKSS on 8 June 2007 seeking “a response to an application for an authority to attach a pistol to an existing H Class licence” and subsequently made application (073232) as Lachlan George Knight on behalf of MKSS on 31 July 2007 seeking a review of the revocation of firearms licence 405888394. As at December 2006 Martin George Knight was the holder of Firearms Accreditation Approval Certificate AA0003630. He was also the holder of current licences (Classes 1A, B and H, and also 2B and C). Mr Knight is also registered as a Special Constable for the State of New South Wales (No 960098).

3 Recently, MKSS moved from Hunters Hill in Sydney to the North West Sydney suburb of Beecroft. The new premises comprise a modern four level residential building and the lowest level of same has been fitted out professionally as a locksmith’s workshop and a firearms storage facility. Mr Knight has provided the Tribunal with evidence that it has been approved by the New South Wales Police as an appropriate storage facility. Included in the material before the Tribunal is a Certificate of Inspection under the Firearms Act 1996 which evidences an inspection conducted by police confirming that they had inspected the premises at which the firearms are stored and were satisfied that the security arrangements provided to safeguard the firearms are appropriate and satisfy the standards set by the Commissioner. The Certificate of Inspection is dated 8 December 2006.

4 In a letter to Mr Phil Houlten, the Director of the Security Industry Registry, received at the Registry on 14 February 2007, Mr Knight sets out the particulars with respect to his purpose built storage facility for firearms.

5 A report undertaken by a Licensed Security Consultant Class 2A, Mr Richard W. Jennings, confirms the particulars describing the purpose built storage facility for arms established at MKSS’ new premises in Beecroft.

BACKGROUND

6 On 1 May 2004 new regulations came into effect, requiring security firms to demonstrate to the Commissioner that they use or possess only such number of firearms that are required for the business or employment of the security firm. The Security Industry Registry was charged with undertaking assessments of the requirements of security firms and the making of recommendation to the Firearms Registry in regard to the authority conferred on such licences.

7 The criteria for these assessments was established, endorsed by the Commissioner and forwarded to all armed security firms setting out the information required to enable the Commissioner to determine the total number of firearms required for the operation of each security business.

8 The document setting out the criteria was entitled ‘Application for the use of firearms under section 16 of the Firearms Act 1996 and clause 69A of the Firearms (General) Amendment (Security Industry) Regulations 2003, a copy of which was included in the Respondent’s brief for application 073185 and 073232 which was filed on 14 August 2007 and is contained in Tab 1 of File 073232.

9 On 19 August 2004 Mr C.J. Capper, Manager – Services Firearms Registry wrote to the Applicant informing him that it is now a requirement under section 16 of the Firearms (General Amendment (Security Industry) Regulations 2003 that all security companies have a genuine reason assessment application completed on their company to purchase or retain firearms. The letter stated:

“Your company is not in possession of any firearms, therefore the Firearms Registry is offering you the following course of action. You can elect to have your Firearms licence cancelled by completing the cancellation statement attached and returning it to the Firearms Registry in the self-addressed envelope, within 14 days of receipt of this notice, and no further action will be necessary.

If you do not reply within 14 days of receiving this letter, the Registry will consider that you want to proceed with revocation process and your file will be forwarded to the Review and Assessment for revocation. If you wish to have your application re-assessed you will need to contact Security Industry Registry on 1300362001 and lodge a Review Assessment of your Firearms Licence under section 16 of the Firearms Act 1996 and clause 69A of the Firearms (General) Amendment

(Security Industry) Regulations 2003.”

10 Without hearing from the Applicant, on 24 August 2004 the Firearms Registry imposed a condition on the Applicant’s Category H Firearms licence 405888394 stating – ‘authorised for nil firearms’.

11 On 31 August 2004 the Applicant responded to the letter referred to in paragraph 10 above, stating that he had received the letter of 19 August 2004 on that day, 31 August 2004 and that he had been in contact with the Security Industry Registry and was in the process of compiling the relevant paperwork to comply with the new requirements. He further explained that the process had been hampered as he was currently undergoing tests for a serious back injury received in a high speed motor accident. He concluded by saying:

“I am continuing the application process and respectfully ask that you allow me more time to complete it.”
12 Some eight months later, on 17 April 2005 the Applicant wrote to the Security Industry Registry requesting that his Firearms Business Licence be put into a state of suspense pending the commercial release of new technology that would render a handgun inoperative except for the owner of the handgun. This letter was received at the Firearms Registry on 26 April 2005. He also advised that he collected the relevant paperwork as per the pro forma in regard to satisfying the application process to use a firearm for business purposes and asked that this be put into suspense until the application process recommences. In this letter of 17 April 2005 Mr Knight expressed concern that:
“In the current climate of thefts of security hand guns I am concerned at the implications the theft of a weapon owned by my business would have on the community … From enquiries I have made it would appear the technology mentioned may be available in 2006.”
13 A report undertaken by Svetlana Velickovich, Security Firearms Adjudicator Officer of the Security Industry Registry dated 7 August 2007 (“the Velickovich report”) stated:
“Due to Mr Knight’s correspondence, the Security Industry Registry forwarded information to the Firearms Registry advising that Martin Knight Security Service has not submitted a ‘genuine reason’ application for firearms, nor does his security firm possess firearms, however the licence holder has requested his HB licence be placed in “Suspense” pending the release of new technology in 2006 and for a reply direct to Mr Knight.”
14 On 16 October 2006 the Applicant wrote to the Firearms Registry stating that his residential address had changed from Hunters Hill to X XXXXX XX Road, Beecroft 2119. It further stated:
“I hold numerous firearms licences. I am currently not in possession of any firearms. My date of birth is 8 April 1957. My situation has changed as a primary producer. I no longer own a farming property. Please send any correspondence to my post office box indicated above.”
15 This letter was received again by the Firearms Registry on 12 January 2007 together with Notice of Authority and conditions (2 pages) for licence number 405888394 with the following postscript written in hand:
“As per the conversation yesterday with the Registry 9 January 2007, I enclose a cheque of $875 dollars to have an H Class business pistol be issued showing my new address.”
16 On 5 February 2007 MKSS made an application for amendment of the condition – ‘authorised to possess nil firearms’ seeking authorisation to possess one firearm. This application was received at the Security Industry Registry on 14 February 2007 in which Mr Knight stated as follows:
“My business pistol licence was put into a state of suspense, on my request to you, whilst I made enquiries regarding the firearms technology. That technology does not appear to have eventuated. I respectfully ask that my licence be taken from suspense and my application processed to satisfy the regulations recommence. The directions I received from you regarding the process have been adhered to and are enclosed. There are four approvals issued by the Firearms Registry for pistols but I only wish to have one approval issued as I am applying for a single pistol. These approvals are in your possession. I wish to nominate approval number 11560222 to be considered for this application process.”
17 On 3 May 2007 the assessment of the application was completed and a recommendation made by the Security Industry Registry that the Applicant should be authorised to possess nil firearms, stating:
“In accordance with clause 84 of the Firearms Regulations 2006, an opinion has been formed that the above security firm (Martin Knight Security Service) should be authorised to possess nil firearms to carry out the security activities of the security firm.”

This letter was sent to the Registrar, Firearms Registry, Murwillumbah.

18 On 8 June 2007 MKSS lodged an appeal with the Administrative Decisions Tribunal, which was listed for a directions hearing on 17 July 2007. The application stated “No response to application for authority to attach a pistol to an existing H Class Business Pistol Licence” and stated the reason for seeking a review of the decision as being:
“to have an adjudication made on the issuance of an existing authority to annex a pistol to my business pistol licence”.
19 On 17 July 2007 the matter came before Judicial Member Montgomery who remitted the matter to the Registry to provide written reasons for the determination and adjourned the proceedings to 31 July 2007.

20 Under cover of a letter of 17 July 2007 the Applicant sent a letter together with nine pages of supporting documents to the Firearms Registry, which was received at the Firearms Registry on 1 August 2007.

21 On 18 July 2007 the New South Wales Firearms Registry, under the signature of Adjudicator/Assessor Refusal Revocations Review and Assessment, wrote to the Applicant care of Lachlan Knight, informing him that it was the opinion of the Registry that the Applicant no longer met the requirements of the Firearms Act 1996 with respect to the right to continue to hold a Firearms licence and accordingly the Commissioner of Police had made the decision to revoke his Category H Business Class Licence No 405888394. To this letter was attached a Revocation Notice and a Statement of Reasons setting out the reasons for the revocation. The reasons stated:

“Following an assessment under clause 84 of the Firearms Regulations 2006, it has been determined that your business is not eligible to be authorised to use a business firearm. Accordingly, I am satisfied that you can no longer demonstrate a genuine reason or special need to continue to hold a Category H Firearms licence for business purposes.”
22 Thereafter, the Statement of Reasons set out the provisions of section 24(2)(a), section 12 and section 16(1)(b) of the Firearms Act 1996.

23 On 31 July 2007 the matter came before Judicial Member Montgomery again, at which point in time he established a timetable for service of documents. Judicial Member Montgomery stipulated that the Respondent provide any further material by 14 August and the Applicant had until 17 August to provide any further submissions.

24 On 2 August 2007 Mr Lachlan Knight, in file number 073232, sought to obtain a stay of the Commissioner’s decision to revoke his licence. The matter came before Judicial Member Montgomery, who did not grant the stay but directed that this matter, file number 073232, be heard at the same time as matter number 073185 on 21 August 2007.

25 On 7 August 2007 the Security Industry Registry completed the Velickovich report by way of Reasons for Decision recommending that the special conditions of the Business Firearms licence remain with the endorsement of nil firearms. This report identified the issue as - “Request from the Firearms Registry for an assessment as to the number of firearms required to carry out security services by Martin Knight Security Services, ID number 103380493, under the authority of a Category H Firearms licence”.

26 A policy statement of the General Manager, P.A. Houlton of the Firearms Registry, Delegate to the Commissioner of Police, entitled:

‘‘Security Industry Firearms Licensing Policy Number CL 84/07 effective 30 July 2007”
is included in the materials of the Respondent’s brief for matter numbers 073185 and 073232 filed on 14 August 2007 which sets out the principles and objects of the Security Industry Firearms Licensing and the applicable legislations citing section 12(1), section 16(1)(b), section 19(1) of the Firearms Act 1996 and clause 84 of the Firearms Regulations 2006 and then, under the heading ‘Policy’ states as follows:
“Clause 84 of Firearms Regulations 2006 provides a means by which the Commissioner may ‘audit’ the holder of a Security Business Firearms licence with the genuine reason of business/employment in order to ascertain the ongoing need for and number of firearms to be held by each security firm.

Where insufficient evidence is provided by a security firm to demonstrate a continuing need to use firearms in connection with security activities, the Commissioner may return a ‘nil assessment’. Whilst it is open to the Commissioner to impose such conditions as the Commissioner thinks fit to impose pursuant to section 19(1) of the Firearms Act 1996 it is the interpretation of the Firearms Registry that this authority must not be exercised in order to remedy a deficiency in the licence, namely the discontinuation of the genuine reason and special need. (Emphasis added)

Accordingly, where a ‘nil assessment’ occurs, it is the interpretation of the Firearms Registry that the appropriate course of action is for the Commissioner to commence revocation proceedings of the security firm licence pursuant to section 24(2)(a) of the Act (the Firearms Act 1996) in conjunction with sub-section 12(1) and 16(1)(b) of the Act on the basis that the security firm cannot demonstrate a genuine reason and a special need for the possession or use of a pistol.” (Emphasis added)

27 Both matters came before me on 21 August 2007.

APPLICANT’S SUBMISSIONS

28 Mr Lachlan Knight gave evidence before the Tribunal on behalf of the Applicant and Sergeant Mort from the Surry Hills Local Area Command gave evidence on behalf of the Respondent.

29 On 24 August Mr Knight, on behalf of the Applicant, faxed a copy of the decision of Robinson v Commissioner of Police, NSW Police [2006] NSWADT 86 to the Administrative Decisions Tribunal Registry by way of Supplemental Submissions.

30 In a letter dated 22 August 2007, signed by Lachlan Knight, he set out submissions on behalf of the Applicant in respect of matters numbers 073185 and 073232. He stated that he had verified the information required by the Firearms Registry as stipulated in their application template – ‘Application for use of Firearms under section 16 of the Firearms Act 1996 and clause 69A of the Firearms (General) Amendment (Security Industry) Regulation 2003.

31 Mr Knight referred the Tribunal in particular to the information he had provided in file number 073185. This material consisted of two statutory declarations dated 31 July 2007, one which attested that a suitably qualified security consultant had confirmed that the Australian Council building in Surry Hills requires the use of armed guards for its protection, the Australia Council being a client of the Applicant. The second such declaration attests to the need for his private guard and patrol service to protect the Federal Government building with assets of over $30 million with one firearm required to provide this service on a 7 day/night basis.

32 This material further included a statement by Martin Knight as proprietor of MKSS stating that Bridget Dixon was licensed to carry a firearm and had met the testing criteria to be issued with a Firearm Accreditation Certificate which is current, stating her level of experience with firearms is consistent with the period of her issuance with her H Class carry licence for a firearm. Also a statement that his business Martin Knight Security Service currently has no firearms registered on its current H Class Licence and a statement that his business uses both covert and uniformed services.

33 A letter dated 6 February 2007 from Nick Mott, Manager of Property Services at the Australia Council, stating:

“The Council has in the past requested that our security staff be armed; currently with the heightened security alert in response to the terrorist threat. Our premises contains cash and high value assets “some of which are irreplaceable” that are protected by our security staff. I request that our security staff, Martin Knight Security Services, continue to be armed. I may be contacted on the above name during business hours if required.”
34 Mr Mott further stated that the Australian Council for the Arts had used the services of MKSS to provide day guard, afternoon guard, night guard/patrols and alarm responses on a seven day/night basis for a number of years. These guards are also nominated as special constables and act in that capacity for the agency.

35 The materials also included a report dated 20 December 2006 from Richard W. Jennings, a Licensed Security Consultant (Class 2A) with an Advanced Diploma in Risk Management. He stated that he had:

“… been provided with a list of the security clientele of Martin Knight Security Services and specific documents from the Australia Council for the Arts (an Australian Federal Government organisation) based at 372 Elizabeth Street, Surry Hills in Sydney.”
36 Mr Jennings stated:
“It is not my responsibility to justify or criticise the security and user stated wishes to have a private security officer within the facility to be armed, within all reasonable considerations. In this case the justification for the security officer(s) to be armed is based upon a long-term desire of Federal Government agencies and Departments to have private armed security officers on site if they cannot be provided with the security services provided to selected agencies by the Australian Protective Services Organisation. The APS officers are, of course, all armed and fully appointed with Police-type defensive equipment, albeit they are not Police Officers and have not received Police-type training. … I am well aware through my consultancy work of the degree of emphasis given to the increased terrorist threat given quite properly to government buildings since September 2001 and almost certainly ongoing into the foreseeable future. It makes very little difference in the risk assessment criteria what service or product any given Federal Government agency is providing as a threat against any one of them is a threat against Australia as a whole. … Elizabeth Street, Surry Hills is close to Redfern and other known crime hotspots with a major threat of problems from persons under the influence of drink or drugs, If they were to gain entry to the building and be allowed to create havoc therein it is reasonable that it would be possible for them to cause millions of dollars’ worth of damage therein. After hours this area is very busy, being alongside the Central Railway Station and close to the Homeless Shelters and cheap hotels in the area. In both of the above scenarios I believe it would be important for the subject firearm to be worn conspicuously where it would be viewed as a major deterrent to the potential offenders against this facility.”
37 Mr Jennings concluded by saying:
“I recommend that the security service provider be approved to have each one of their patrol officers operating as discussed in the documentation provided to me, be approved to carry and make proper lawful use of a firearm.”
38 He further stated:
“The other clients listed on the documentation supplied to me are all alarm response-type clients where MK Security Services carry out alarm response work as required. There has been no request to consider any of these alarm response clients as appropriate for consideration for alarmed response. Therefore my comments and recommendations in this matter, at this time, are based upon the accepted fact that armed officers travelling to and from the Australia Council building will not divert when so armed to any other security type function of response, without first returning the firearm to its safe storage facility.”
39 Mr Jennings further stated that he believed that his recommendations were based upon certification of an absolute minimum number of firearms and the patrol officers needed to be trained and authorised in the use of such firearms as had been approved for the purpose.

40 He further stated that:

“With respect to the Australia Council’s premises at Surry Hills, I visited those premises and carried out an assessment of his security and safety risks as well as the Occupational Health and Safety vulnerability with respect to your officers carrying said firearms on site. With respect to these assessments I am satisfied that the proposed carriage of arms would not place excessive safety risks upon the occupants, visitors or indeed members of the public using that building. The risk factors have been properly monitored in procedural terms in accordance with best practice standards in this State.”
41 Further material provided by the Applicant in respect of application 073185 were:
(i) a Curriculum Vitae of Mr Richard William Jennings,

(ii) a Certificate of Registration of Business Name for MKSS stating that the registration will remain in force until 2 July 2008 and issued on 12 January 2007,

(iii) an Australian Business Number Notification of Registration dated 2 May 2000,

(iv) the various copies of the current licences held by Martin George Knight classed as a Security Guard, Category 1A, B and H and also 3D for 1 to 10 employees,

(v) a copy of MKSS Master Licence dated 30 November 2003, valid to 30 November 2008,

(vi) copies of First Aid Certificate, Firearms Licence Permit, Security Industry Licence and Special Constable status of Bridget Dixon, an employee of MKSS, and finally

(vii) a copy of a letter from Altiora under the name of Peter Watts, stating:

“Martin has advised he is waiting for amendments to gun laws to be made before seeking his firearms licence back and recommencing operation. Once Martin advises us to incept the policy we will do so from that date.”
(viii) a copy of a security assessment undertaken by John Murray of Security Advisory Services Pty Ltd dated 9 February 2005.
42 Mr Knight submitted that the risk assessments he had provided were sufficient in his opinion to justify the application and that to ask for a risk assessment of each client individually is unreasonable and not a practice that all applicants that had been issued with a pistol licence have satisfied. He set out his understanding for the justification for the use of a firearm and stated that if the justification component in relation to the correct use of a firearm was not met an accreditation certificate is not issued. Mr Knight further stated that he and the other guards who would have access to the pistol are both in possession of current pistol accreditations. He further stated the importance of protecting his clients’ privacy and characterised their assets as high value assets. He referred to supporting letters provided from current clients that have indicated they require armed security. The letters provided were from Fedwood Pty Limited dated 21 January 2005, No-D-Lay Dry Cleaners, dated 8 January 2005, Balmain Village Cellars dated 20 January 2005, Concord Village Cellars dated 22 January 2005, Dateline News dated 7 February 2005 and David R. Le Page Pty Ltd dated 28 January 2005.

43 The Applicant stated that the licence is required to carry on security activities of patrolling, protecting, watching or guarding property and alarm responses of properties. He further stated that he had paid for an approval number 11560222 to acquire a pistol and he had been told by Mr Houlten, Head of the Firearms Registry, that that approval would be held in abeyance and issued when and if the criteria was met. He asked the Tribunal that the approval be issued and if it is no longer valid, an approval be issued in its place at no cost to him. He further indicated, with respect to the standard operating procedures mentioned, that it was his understanding that the Registry is asking what action is taken if a firearm is lost or stolen and that it was his understanding that legislation required an immediate report to the police in those circumstances, a matter of which all his staff were aware.

44 He concluded by saying: “I am aware of the obligations placed upon me and have no objection to the provision of reasonable information to the Registry but I believe in this instance the Registry has information before it to satisfy section 84 Regulations”.

45 The Applicant faxed to the Administrative Decisions Tribunal Registry a copy of the decision in Robinson v Commissioner of Police [2006] NSWADT 86 – file number 053307 and asked that it be considered as case law in support of his submissions in matters 073185 and 073232.

RESPONDENT’S SUBMISSIONS

46 The Velickovich report identified the issue as ‘Request from the Firearms Registry for an assessment as to the number of firearms required to carry out security services by Martin Knight Security Services, ID number: 103388493, under the authority of the Category H Firearms Licence’, and noted that new regulations came into effect on 1 May 2004 requiring security firms to demonstrate to the Commissioner that they use or possess only such number of firearms that are required for the business or employment of a security firm. The Velickovich report noted that part of the assessment process requires that the Commissioner may undertake any enquiries deemed necessary to confirm the information provided in the application for the use of firearms and pursuant to this she had contacted the client, Australian Council for the Arts and conversed with the Manager, Nick Mott, who had advised they required an armed guard to be positioned at reception whilst the building was open to the public, patrolling within the building, which consists of several levels and comprising an auditorium, library, administration offices, and patrolling of the exterior of the building when the building is closed.

47 Ms Velickovich stated that she had accessed the COPS system which confirmed:

“There were reports of nuisance calls from a lady, however, no threats of violence or intimidation. Also recorded were details of a break-in on two occasions.”
48 Ms Velickovich stated that she had extended her enquiries by contacting Sergeant Peter Mort from Surry Hills Licensing, who had advised against the presence of an armed guard and indicated:
“He does not believe the location in question requires an armed security guard and there is nothing of significance to report regarding the location”.
49 As a result of these enquiries, Ms Velickovich referred the matter to the Firearms Registry advising:
“In accordance with clause 84 of the Firearms Regulation 2006 an opinion has been formed that the above security firm should be authorised to possess nil firearms to carry out the security activities of the security firm.”
50 In the report dated 7 August 2007 the author stated that the Applicant failed to provide sufficient argument and evidence to support the need for use and possession of a firearm:
“Additionally, there is information to suggest that a firearm is required for ‘personal protection or the protection of people’ (the carriage of a firearm is not permitted for personal protection or the protection of any other person, section 12(2) Firearms Act 1996).”
51 The author of the report further stated that the additional material provided by the Applicant on 17 July 2007, referred to the security firm requiring firearms to undertake patrols, static guarding and alarm response services to a different set of clientele to that which was outlined in the documentation dated 5 February 2007.

52 She then went on to note that the Applicant had again failed to provide sufficient argument and evidence to support the need for use and possession of a firearm due to not providing the following information set out as being required pursuant to the application template for the use of firearms under section 16 of the Firearms Act 1996 and clause 69A of the Firearms (General) Amendment (Security Industry) Regulations 2003.

53 In summary, she identified the failure to provide a statutory declaration with the required information that was not out of date, including six letters from current clients stating that their requirements for firearms were based on detailed risk assessments undertaken by a suitably qualified person. She further indicated that the evidence of current public liability insurance was not satisfied by the letter from Altiora Retail Pty Limited referred to above, attached to Mr Knight’s submission of 5 February 2007. Furthermore, Ms Velickovich stated that Mr Knight had failed to complete the Business Detail Schedule in respect of his Master Licence details. Furthermore, she said he had failed to comply with the new requirements contained in the amendments to the information package, which sets out the documentation required to allow the Commissioner to determine the number of firearms to be possessed and used by security firms in connection with the security business. These amendments were implemented as of 2 August 2007 and Ms Velickovich acknowledged that the amended information package was not forwarded to Mr Knight on this occasion, nor was Mr Knight invited to provide further evidence to justify the requirement for possession and use of firearms, as the matter was “under appeal process”. Ms Velickovich concluded by saying that it is recommended that the special conditions of the Business Firearms Licence remained with the endorsement of ‘nil firearms’.

54 The Respondent filed submissions on 31 August 2007 in which he addressed the two matters covered by applications 073185 and 073232, both relating to the same Category H Business Licence 405888394. The Respondent made reference to the fact that the appeal lodged by the Applicant on 8 June 2007 before the Administration Decisions Tribunal (hereinafter referred to as “the ADT”) and identified as application 073185 was made without an original decision having been made by the Firearms Registry and without making application for an internal review to the Firearms Registry.

55 The Respondent submitted that jurisdiction is only vested in the Tribunal by virtue of legislation and referred in particular to the Firearms Act 1996, section 75(1A), which states that a person may apply to the Administrative Decisions Tribunal for review of any of the following decisions:

“(a) …

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) …”

56 The Respondent further referred the Tribunal to the Administrative Decisions Tribunal Act 1997 (hereinafter referred to as “the ADT Act”) section 38(1) giving the Tribunal jurisdiction to review a decision if the enactment provides that applications may be made to it for review of any such decision (or class of decisions) made by the administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) any exercise of any other functions of the administrator identified by the enactment.

57 He further referred to section 55(1)(a) of the ADT Act under which a person may apply to the Tribunal for a review of a reviewable decision only if:
(a) the application is made by an interested person, and

(b) an internal review is taken to have been finalised under section 55(9), and

(c) the application is made in the manner prescribed by the Rules of the Tribunal, and

(d) the application is made within such period as may be prescribed by the Rules of the Tribunal, following the date on which the internal review is taken to have been finalised under section 53(9).

58 The Respondent noted that ‘a reviewable decision’ is defined under the ADT Act as:
“(8) a reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.”
59 The Respondent further stated that pursuant to section 53(9) of the ADT Act an internal review is taken to be finalised if:
“(a) the Applicant is notified of the outcome of the review under subsection (6), or

(b) the Applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on)”.

60 The Respondent further stated that as the Applicant has made no request for an internal review, it can never be taken to be finalised given sub-section.8, 38(1), 53 and 55(1)(a) of the ADT Act. He stated the Administrative Decisions Tribunal Rules (Transitional) Regulations 1998 (NSW) further provides:
“15(1) …

(2) ...

(3) For the purpose of section 55(1)(d) an application for the review of a reviewable decision must be made to the Tribunal within 28 days from the day on which an internal review is taken to have been finalised under section 53(9) of the Act.”

61 The Respondent referred to the significance of clause 84 of the Firearms Regulations 2006 as identified in the announcement of reforms to the security industry made in a media release by the then Minister for Police on 20 November 2003, Honourable John Watkins MP, which referred to the reforms to the security industry to restrict access to hand guns, increase safe storage and remove high powered guns from use; the Minister stating that these changes were influenced by an increase in gun thefts from security companies, as at the time of the announcement, 65 guns had been stolen from the security industry during 2003. The Respondent referred in particular to a statement made by Mr Watkins to the following effect:
“I fully expected a number of companies will not be able to meet the new standards, or explain why they should still be allowed to access the firearms. If that is the case, they do not deserve to have their licence and they will be put out of business. …”
62 The Respondent stated that on 19 December 2003 Regulations containing most of the proposed reforms were gazetted. Most relevantly, the Firearms (General) Amendment (Security Industry) Regulation 2003 which in turn commenced on 1 May 2004. At the time of insertion the Explanatory Note to the amending instrument stated:
“The object of this regulation is to amend the Firearms (General) Regulation 1997 to:
(a) prevent armed security guards from applying for a permit to acquire firearms for the reason of carrying on activities as a security guard or from using a firearm that has been acquired for any other purpose while carrying on activities as a security guard, and

(b) increase the security requirements for the storage of firearms that are used or possessed by security firms, and

(c) limit the number of firearms that security firms are permitted to use or possess, and

(d) make other consequential amendments.”

63 The Respondent made further reference to a media release made by the then Minister for Police, Honourable John Watkins MP, in November 2003 in which he stated:
“Clause 69A is inserted in the Firearms (General) Regulation 1997 to stipulate that a licence issued to a security firm authorises the firm to use or possess only as many firearms as, in the opinion of the Police Commissioner, are required to carry out the security activities of the firm. The Commissioner may require the firm to provide relevant information in order to form an opinion on the matter, including the number of firearms owned by the firm, the number of armed security guards employed by the firm, and the security activities for which the firearms are used.”
64 The Respondent noted that with the repeal of the Firearms (General) Regulation 1997 the clause 69A test, as it was formerly known, is now found at clause 84 of the Regulation and provides:
“(1) The authority conferred by licence issued to a security firm authorises the firm to possess only such number of firearms as, in the opinion of the Commissioner, are required to carry out the security activities of the security firm.

(2) The Commissioner requires the security firm to provide information relating to the following:

(a) the number of firearms owned by the security firm,
(b) the number of armed security guards employed by the firm,

(c) the security activities for which the firearms are used,

(d) such other relevant information that is required in order for the Commissioner to form an opinion under this clause.”

65 The Respondent submitted that where an assessment is conducted pursuant to clause 84 of the Firearms Regulation 2006, and insufficient evidence is provided to demonstrate a continuing need to use firearms in connection with the security activities, the Commissioner may return a ‘nil assessment’. Where this occurs, as it did in this instance, the appropriate course of action is for the Commissioner to commence revocation proceedings of the security firm licence pursuant to section 24(2)(a) of the Act in conjunction with section 12(1) and section 16(1)(b) of the Act on the basis that the security firm cannot demonstrate a genuine reason and special need for the possession or use of a pistol. The Respondent further made reference to those provisions, in particular section 12(1) which provides:

“The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the Applicant has a genuine reason for possessing or using the firearm.

Reason: Business or employment.

The Applicant must demonstrate that it is necessary in the conduct of the Applicant’s business or employment to possess or use the firearm for which the licence is sought.” (Emphasis added subsequent to Respondent’s submissions)

66 Section 16(1)(b):
“in addition to establishing any such genuine reason the person produces evidence to the Commissioner’s satisfaction that there is a special need for the person to possess or use a pistol.”
67 The Respondent then referred to Tab 1 of the Respondent’s Supplementary Brief of Evidence, which provided a copy of the Applicants’ Guide – Holding of Firearms by Licensed Security Companies Guidelines for Determining Genuine Reason. He further referred to Tab 5, which outlines the reasoning process in assessing a request from the Firearms Registry for an assessment as to the number of firearms required to carry out security services by Martin Knight Security Services under the authority of the Category H Firearms Licence. The Respondent also made reference to Tab 6, which outlines the Firearms Registry Policy in relation to revoking a licence when the Applicant is assessed as requiring nil firearms.

68 The Respondent further submitted that it was the responsibility of the Firearms Registry to ensure effective firearm licensing and registration in New South Wales through the development and maintenance of strategies and policies. The Respondent further submitted that the security assessments undertaken by Richard Jennings, dated 20 December 2006 and John Murray, dated 9 February 2005 do not provide sufficient material to determine a genuine need for a Category H Firearms Licence, stating that Richard Jennings assessment only made reference to one client, namely the Australia Council of Arts and the fact that his assessment made no reference to practical or viable alternatives, such as closed circuit television (CCTV).

69 The Respondent noted that it is the responsibility of the Firearms Registry and in turn the responsibility of the Tribunal, who stands in the shoes of the decision-maker, to “justify or criticise the security end users stated wishes to have a private security officer within their facility to be armed”. The Respondent further criticised the assessment of John Murray by virtue of its age being in excess of 2½ years old and its lack of detail.

70 The Respondent concluded by saying that without further evidence, the Tribunal should exercise extreme caution in placing any weight on this report and the correspondence to which it refers; namely, the letters provided by clients of the Applicant written in 2005, stating their reasons for requiring armed security “to protect cash and high value assets”.

71 The Respondent made reference to the decision of Hardy v Commissioner of Police [2006] NSWADT 167, with reference to the statements by Judicial Member Higgins in respect of neither the Applicant nor the Commissioner having responsibility to prove a case; that is, subject to an express statutory provision to the contrary, in a merits review proceeding, there is no evidential onus, as this concept is understood in the adversarial context, on either party to the proceedings. The Respondent contrasted the position outlined by Judicial Member Higgins in the decision of Hardy v Commissioner for Police [2006] NSWADT 167 with the provisions of section12 of the Firearms Act 1996 in that section 12 provides:

“Reason: Business or Employment

The Applicant must demonstrate that it is necessary in the conduct of the Applicant’s business or employment to possess or use the firearm for which the licence is sought.”

72 The Respondent criticised the Applicant’s efforts to rely upon the decision in Robinson v Commissioner of Police, NSW Police [2006] NSWADT 86, submitting that this decision had no relevance to the issue to be determined in these proceedings as the reasoning adopted by the Tribunal was said not to be correct by the Appeal Panel in the unreported decision of Commissioner of Police, NSW Police v Robinson (General Division, File No 069019). In particular, the Respondent referred to the following statement made by the Appeal Panel in that case:
“So the issue then is whether the Tribunal made an error of law by setting aside the purported revocation decision on merits grounds, when, in fact, the Commissioner of Police had no power to make that decision in the first place. Our answer to that question, with which the parties agree, is that the Tribunal made the correct decision on setting aside the Commissioner’s revocation decision but that the reason (sic) for that decision were not correct.”
73 The Respondent concluded by submitting that the Tribunal should affirm the decision of the Commissioner of Police to revoke the Applicant’s Category H Firearms Licence.

74 The four issues before this Tribunal are:

(i) Whether the Administrative Decisions Tribunal has jurisdiction to consider the applications 073185 and 073232 made by Martin Knight Security Services.

(ii) Whether the Commissioner had power to make a decision to impose a condition on the Applicant that the Applicant, MKSS, should be authorised to possess nil firearms to carry out the security activities of the security firm.

(iii) Where an assessment is conducted pursuant to clause 84 of the Firearms Regulation 2006 and the Commissioner forms the view that the Special Conditions of the Business Firearms Licence should be that the Applicant be authorised to possess nil firearms, and accordingly that the Business Firearms Licence should have the endorsement of nil firearms that the appropriate course of action is for the Commissioner to commence revocation proceedings of the security firm licence pursuant to section 24(2)(a) of the Act, in conjunction with sub-section 12(1) and 16(1)(b) of the Act on the basis that the security firm cannot demonstrate a genuine reason and a special need for the possession or use of a pistol.

(iv) Whether the material provided by the Applicant in support of his application to vary the condition authorising nil firearms is sufficient to support the imposition of a condition authorising the use of a single firearm, having regard to the objects of the Firearms Act 1996 to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.

(i) Jurisdiction of the ADT to consider applications

75 Section 38(1) of the ADT Act operates to provide:

“38. (1) The Tribunal has jurisdiction under enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for review of any such decision (or class of decisions) made by an Administrator:

(a) in the exercise of functions conferred or imposed by or under the enactment; or

(b) in the exercise of any other functions of the Administrator identified by the enactment.”

76 I am of the view that pursuant to section 38(1) of the ADT Act the Administrative Decisions Tribunal has jurisdiction to review a decision relating to a condition imposed by the Commissioner on a licence or permit issued to the person by virtue of the provisions of section 75(1) of the Firearms Act 1996 which states:
“75. (1) A person may apply to the Administrative Decisions Tribunal for review of any of the following decisions:

(a) …

(b) a condition imposed by the Commissioner on a licence or permit issued to the person;

(c) …”

77 I do not accept the Respondent’s submission that “as the Applicant has made no request for an internal review, it can never be taken to be finalised given the legislation” (set out below). Section 55(1) of the ADT Act states that:
“55. (1) A person may apply to the Tribunal for review of a reviewable decision only if:

(a) the application is made by an interested person; and

(b) an internal review has been finalised under section 53(9); and

(c) the application is made in the manner prescribed by the Rules of the Tribunal; and

(d) the application is made within such period as may be prescribed by the Rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53(9).”

78 A ‘reviewable decision’ is defined under the ADT Act as:
“(8) a reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.”
79 Under section 53(9) of the ADT Act an internal review is taken to be finalised if:
“(a) the Applicant is notified of the outcome of the review under subsection (6), or

(b) the Applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).”

80 On 24 August 2004 the Firearms Registry imposed a condition on the Applicant’s Category H Firearms Licence stating: ‘Authorised for nil firearms’. On 31 August the Applicant wrote to the Firearms Registry stating that he had been in contact with the Security Industry Registry and was in the process of compiling the relevant paperwork to comply with the new requirements and further explained that he had been hampered by a serious back injury and was continuing the application process and respectfully asked for more time to complete it.

81 Thereafter the Applicant did not hear further from the Firearms Registry although the Applicant sought to suspend his Firearms Business Licence when he wrote to the Security Industry Registry on 17 April 2005. The Applicant wrote again on 16 October 2006 and 12 January 2007 informing the Registry of his changed address and enclosing a cheque for $875 to have an H Class Business Pistol issued showing his new address.

82 While I accept that the Applicant did not make a request for an internal review I am of the view that pursuant to section 53(9)(b) of the ADT Act an internal review can be taken to have been finalised as the Applicant had not been notified of the outcome of the review within twenty-one days after the application for the review was lodged. I say this, because the application was made by the Applicant on 5 February 2007, seeking to vary the nil firearms condition to permit him to possess one firearm and he was not informed of the outcome of that application until after he had lodged an appeal on 8 June 2007 which resulted in the Administrative Decisions Tribunal on 17 July directing the Registry to provide written reasons for the determination and accordingly adjourned the proceedings to 31 July 2007.

83 Because the Applicant had not received a response to the application lodged on 8 June 2007 until after a direction from the ADT to the Registry dated 17 July, resulting in a decision by way of notice of revocation from the Registry on 18 July, the Applicant falls within the category stipulated in section 53(9) of the ADT Act whereby if the Applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged, then an internal review is taken to have been finalised. This is, in my opinion, further supported by the fact that the Applicant was in effect seeking a review of the decision when he lodged his application on 8 June stating “No response to application for authority to attach a pistol to an existing H Class Business Pistol Licence” and stated the reason for seeking the review of a decision as being: “to have an adjudication made on the issuance of the existing authority to annex a pistol to my Business Pistol Licence”.

84 In light of the above facts, I find that pursuant to section 55(1)(d) of the ADT Act an internal review is taken to have been finalised under section 53(9) and pursuant to section 55(1)(d) the application was made within such period as may be prescribed by the Rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53(9).

85 Accordingly, I do not accept the Respondent’s contention that the Applicant has made no request for an internal review and accordingly, it can never be taken to be finalised in the light of the provisions of the Administrative Decisions Tribunal Act 1997 cited above.

86 Nor do I accept the Respondent’s contentions that section 15(3) of the Administrative Decisions Tribunal (Transitional) Regulations 1998 (NSW) provides any further impediment to the jurisdiction of this Tribunal to consider the application. Section 15(3) of the Administrative Decisions Tribunal Rules (Transitional ) Regulations 1998 (NSW) states:

(c) “For the purposes of section 55(1)(d) an application for the review of a reviewable decision must be made to the Tribunal within 28 days from the date on which an internal review is taken to have been finalised under section 53(9) of the Act.”
87 I say this because the Applicant sought a review of the decision when he appeared before Judicial Member Montgomery on 17 July 2007 and provided further documentation to the Firearms Registry under cover of letter of 17 July 2007 and subsequently sought a stay of the decision on 2 August 2007 but was not provided with a completed report by way of reasons for decision until 7 August 2007.

(ii) Whether the Commissioner has power to impose a condition authorising nil firearms

88 The Tribunal also has to determine whether a ‘nil assessment’, pursuant to clause 84, empowers the Commissioner to commence revocation proceedings of the security firm licence pursuant to section 24(2)(a) of the Act, in conjunction with section 12(1) and section 16(1)(b) of the Act on the basis that the security firm cannot demonstrate a genuine reason and a special need for the possession or use of a pistol.

89 Section 12(1) of the Act stipulates that:

“The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

Reason: business or employment

The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the firearm for which the licence is sought.” (Emphasis added)

This is not an application for the issue of a Firearms Licence but rather it is an application to vary a condition imposed on a current licence, pursuant to clause 84 of the Firearms Regulations 2006.

90 Section 16(1)(b) of the Act states that in addition to establishing any such genuine reason, the person must also produce evidence to the Commissioner’s satisfaction that there is a special need for the person to possess or use a pistol.

91 Section 16(1)(b) is concerned with the circumstances in which the Commissioner must not issue a Category H Licence and does not relate to an application to vary conditions imposed on a current licence.

92 Section 12(1) and section 16(1)(b) both relate to the issue of a licence, not the revocation of a licence, nor the imposition of conditions on a licence. Accordingly, the distinction the Respondent sought to draw between this application and the decision of Hardy v Commissioner of Police [2006] NSWADT 167, in which Judicial Member Higgins stated there was no evidentiary onus on either party to proceedings before the Administrative Decisions Tribunal, is not relevant. Pursuant to section 12 of the Firearms Act 1996 the Applicant bears the positive onus to demonstrate that it is necessary in the conduct of the Applicant’s business or employment to possess or use a firearm for which the licence is sought. The application before this Tribunal relates to the imposition of conditions pursuant to clause 84 of the Firearms Regulations 2006, which does not place any such onus on the Applicant.

93 The Commissioner relied on clause 84 of the Regulations which states that:

“(1) The authority conferred by a licence issued to a security firm authorises the firm to use or possess only such number of firearms as in the opinion of the Commissioner are required to carry out activities of the security firm.

(2) The Commissioner may require a security firm to provide information relating to the following:”

Four matters are then set out under that subsection which relate to the information that is to be provided.

94 It is my view that the Commissioner has misconstrued section 12(1), section 16(1)(b) and clause 84 of the Regulations as giving him a power to require the Applicant to establish that he has both a genuine reason and a special need for a Category H Firearms Licence. The decision to revoke the licence was based on those provisions and on a finding that pursuant to an ‘audit’ under clause 84 of the Firearms Regulations 2006 the Commissioner should impose a condition authorising the Applicant for ‘nil firearms’ pursuant to section 19(1) of the Firearms Act 1996.

(iii) Where the Commissioner forms the view that the Applicant should be authorised to possess nil firearms, is the appropriate course of action for the Commissioner to commence revocation proceedings?

95 The Respondent submits that where such a nil assessment occurs, it is the interpretation of the Firearms Registry that the appropriate course of action is for the Commissioner to commence revocation proceedings of a security firm licence pursuant to section 24(2)(a) of the Act, in conjunction with section 12(1) and section 16(1)(b) of the Act on the basis that the security firm cannot demonstrate a genuine reason and a special need for the possession or use of a pistol [see Security Industry Firearms Licensing, Policy Number CL 84/07, effective 30 July 2007, per P.A. Houlton, General Manager, Firearms Registry Delegate of the Commissioner of Police].

96 The decision to revoke the licence was based on these provisions and yet it is clear that neither provision gives the Commissioner power to revoke the Applicant’s licence. What appears to have happened is that when the Firearms Registry formed the view that it was appropriate to impose a nil firearms condition on the Applicant it ignored its own policy that:

“whilst it is open to the Commissioner to impose such conditions as the Commissioner think fit to impose pursuant to section 19(1) of the Firearms Act 1996, it is the interpretation of the Firearms Registry that this authority must not be exercised in order to remedy a deficiency in the licence, namely the discontinuation of a genuine reason and special need.” (Emphasis added)
97 The Applicant had a Category H Firearms licence, which was issued on 22 March 2003 for a period of five years until 22 March 2008. At the time of the imposition of the ‘nil firearms’ condition and the proposed revocation flowing from that condition, the Applicant still had a current licence and was not seeking the issue of a new licence but as of April 2005 simply that it be put into a state of suspense pending the commercial release of new technology that would render a handgun inoperative except for the owner of the handgun. Until that point in time the Applicant’s licence had remained on foot save for the improper imposition of a de facto revocation by way of the imposition of a condition – authorised for nil firearms. The Commissioner acted as if the Applicant had to provide certain information to the satisfaction of the Commissioner that the Applicant had demonstrated that he had a genuine reason and special need for the retention of that licence. The Applicant, on 17 July 2007, did provide some information as requested by the Commissioner, pursuant to the application template for the use of firearms under section 16 of the Firearms Act 1996 and section 69A of the Firearms (General) Amendment (Security Industry) Regulations 2003 but the Commissioner did not consider this material prior to revoking the Applicant’s licence on 18 July 2007. This material was subsequently considered in the Velickovich report.

98 There is nothing in any of the correspondence or the internal review decision identifying a power under the Act or Regulations that would have enabled the Commissioner to make a decision:

(i) to impose a condition on the Applicant’s Category H Firearms Licence 405888394 stating – ‘authorised for nil firearms’

(ii) to use the decision to impose such a condition as justifying or empowering the Commissioner to revoke the Applicant’s licence that was issued on 22 March 2003 and remains current until 22 March 2008.

99 Clause 84 of the Firearms Regulations 2006 is a supportive regulation designed to facilitate better operation of the Firearms Act 1996. It is not intended as a de facto mechanism to deny people the benefit of their licence by the imposition of a nil firearm condition. As was stated by the then Minister for Police, Honourable John Watkins MP, in the media release ‘Maximum Security: Industry First Upgrade Gun Controls’, 20 November 2003:
“Clause 69A of the Firearms General Regulation 1997 is inserted in the Firearms General Regulations 1997 (the predecessor to clause 84 of the Firearms (General) Regulations 2006) to stipulate that a licence issued to a security firm authorises the firm to use or possess only as many firearms as, in the opinion of the police commissioner, are required to carry out the security activities of the firm. The Commissioner may require the firm to provide relevant information in order to form an opinion on the matter, including the number of firearms owned by the firm, the number of armed security guards employed by the firm, and the security activities for which the firearms are used.” (Emphasis added)
100 This Regulation is designed to ensure that the issue of a firearms licence does not give rise to an inference that the licensee has authority to hold any number of firearms pursuant to that licence, regardless of need, but rather that the number of firearms should be subject to the considerations identified in the information entitled to be required by the Commissioner pursuant to clause 84 sub-sections (2)(a)(b)(c) and (d). The error in the initial ‘nil firearms’ decision was then further compounded when it was proffered as the ground for revocation of the licence pursuant to section 24(2) of the Act.

101 In the circumstances, it is appropriate for the Tribunal to make an order setting aside the “nil firearms” condition and the decision to revoke the Applicant’s licence. In these circumstances it is not strictly necessary or appropriate for the Tribunal to consider the merits of the Applicant’s submissions for amendment of the said condition to permit him to possess one firearm, as the Applicant is currently in possession of a licence authorising the use of a firearm pursuant to his Category H Firearms Licence until the licence expires in March 2008. Nor is it necessary for the Tribunal to consider the submissions made by the Respondent concerning the failure on the part of the Applicant to provide sufficient evidence to establish a genuine reason or special need for the issue of a firearm pursuant to sub-section 12 and 16 of the Act.

(iv) Whether the material provided by the Applicant is sufficient to support the application to vary the condition authorising ‘nil firearms’ so as to vary the condition to authorise the use of a single firearm

102 However, if I be wrong that the imposition of a condition “authorised for nil firearms” was validly imposed, the Commissioner nevertheless failed to consider the application by MKSS on 5 February 2007 for amendment of the condition seeking authorisation to possess one firearm.

103 The Applicant was forced to lodge an appeal with the Administrative Decisions Tribunal on 8 June 2007, seeking a response to his application for an authority to attach a pistol to an existing H Class Business Pistol Licence, stating the reason for seeking a review of the decision as being “to have an adjudication made on the issuance of an existing authority to annex a pistol to my Business Pistol Licence”. The Applicant sent further material under cover of letter of 17 July 2007, together with nine pages of supporting documents to the Firearms Registry, which was received at the Firearms Registry on 1 August 2007. Without considering this material and ruling on the variation application, the New South Wales Firearms Registry on 18 July 2007 instead informed the Applicant that he no longer met the requirements of the Firearms Act 1996 with respect to the right to continue to hold a firearms licence and accordingly the Commissioner of Police had made the decision to revoke his Category H Business Class Licence No 40588394. The Statement of Reasons attached to this revocation notice made no reference to the material provided by the Applicant under cover of letter of 17 July 2007, nor did it discuss the merits of the application by MKSS seeking a variation of the authorised nil firearms condition to enable the possession of a single firearm, but simply stated:

“Following an assessment under clause 84 of the Firearms Regulations 2006, it has been determined that your business is not eligible to be authorised to use a business firearm. Accordingly, I am satisfied that you can no longer demonstrate a genuine reason or special need to continue to hold a Category H Firearms Licence for business purposes.”
104 The Velickovich report identified the issue as “request from the Firearms Registry for an assessment as to the number of firearms required to carry out security services by Martin Knight Security Services, ID number 103380493, under the authority of the Category H Firearms Licence” and concluded by recommending that the special conditions of the Business Firearms Licence remain with the endorsement of “nil firearms”.

105 The Velickovich report identified the Applicant’s failure to provide sufficient argument and evidence to support the need for use and possession of a firearm as set out in the application template for section 16 of the Firearms Act 1996 and clause 69A of the Firearms (General) Amendment (Security Industry) Regulations 2003 and proceeded to list the omissions/failures set out in paragraph 53 above.

106 Even if the decision of the Commissioner to revoke the Applicant’s licence was made beyond power and was invalid, that does not deprive this Tribunal of jurisdiction to consider a merits review of the decision. This is apparent from section 6(3) of the ADT Act, which states that:

“For the purposes of this Act (and without limiting subsection (2)) a decision that purports to be made under enactment is taken to be a decision under the enactment even if the decision was beyond power of the decision-maker to make it.”
107 Section 19 of the Firearms Act 1996 states:
“(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.”
108 Judicial Member Fitzgerald, in Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 stated at [26]:
“26. The discretion given to the Commissioner to impose conditions is very broad and there is no indication within the Firearms Act 1996 as to how it is to be exercised. See Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at paragraph [23]:
“There is no guidance in the legislation in relation to how these discretions should be exercised. In my view the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act 1996”.”
109 The principles and objects of the Firearms Act 1996 provide, at section 3:
“(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

(ii) by promoting the safe and responsible storage and use of firearms.”

110 The Velickovich report considered the material provided by the Applicant in support of his application for a variation of the condition - “nil firearms” – to permit him to use one firearm.

111 Ms Velickovich expressed the following views about the material provided by the Applicant as evidence to support his need for use and possession of a firearm:

(i) She did not accept the statements made by Mr Mott, Manager of Property Services at the Australian Council, stating that:
“The Council has in the past requested that our security staff be armed currently, with a heightened security alert in response to the terrorist threat. … I request that our security staff, Martin Knight Security Services, continue to be armed.”
(ii) She was not convinced by the report dated 20 December 2006 from Richard W. Jennings, a Licensed Security Consultant (Class 2A with an Advanced Diploma in Risk Management) recommending:
“that the security service provider be approved to have each one of their patrol officers operating as discussed in the documentation provided to him, be approved to carry and make proper lawful use of a firearm”; and
(iii) She had preferred instead the advice she had obtained by virtue of her enquiries of Sergeant Peter Mort from Surry Hills Licensing, who had advised against the presence of an armed guard and indicated:
“He does not believe the location in question requires an armed security guard and there is nothing of significance to report regarding the location.”
112 Having heard the evidence of Sergeant Peter Mort from Surry Hills Licensing and read the reports of Mr Richard Jennings concerning the client the Australian Council for the Arts located in Surry Hills, I am satisfied on the balance of probabilities that the Applicant has provided sufficient evidence to support his contention that a Category H Firearms Licence is required to carry on security activities of patrolling, protecting, watching or guarding property and alarm responses of properties of the Australian Council for the Arts property.

113 I say this having regard to the evidence contained in the Velickovich report, which stated that she had accessed the COPS system which confirmed:

“There were reports of nuisance calls from a lady, however, no threats of violence or intimidation. Also recorded were details of a break-in on two occasions.”
114 I am further fortified in my view by the report of Richard W. Jennings which provides detailed assessment of the client, Australian Council for the Arts and the identified need for an armed guard to be positioned at reception whilst the building was open to the public, patrolling within the building, which consists of several levels and comprising a number of rooms, including a library, administration offices and patrolling of the exterior of the building when the building is closed. I accept in particular the comments made by Mr Jennings to the following effect:
“With respect to these assessments I am satisfied the proposed carriage of arms would not place excessive safety risks upon the occupants, visitors or indeed members of the public using that building. The risk factors have been properly monitored in procedural terms in accordance with best practice standards in the State.”
115 The other shortcomings in the material provided by MKSS in support of the application for a variation of the condition – authorised “nil firearms” as identified in the Velickovich report included:
(i) That the letters from the clients stating their requirements for firearms were not current and were not based on detailed risk assessments undertaken by a suitably qualified person.

(ii) That the evidence of current public liability insurance was not satisfied by the letter form Altiora Retail Pty Limited attached to Mr Knight’s submission of 5 February 2007.

(iii) That Mr Knight had failed to complete the business detail schedule in respect of his master licence details.

(iv) That the Applicant had failed to comply with the new requirements contained in the amendments to the information package which sets out the documentation required to allow the Commissioner to determine the number of firearms to be possessed and used by security firms in connection with security business. These amendments were implemented as at 2 August 2007 and Ms Velickovich acknowledged that the amended information package was not forwarded to Mr Knight on this occasion, nor was Mr Knight invited to provide further evidence to justify the requirement for possession and use of firearms, as the matter was “under appeal process”.

116 While I accept that the client letters provided by the Applicant were dated 2005, in the letter of 22 August 2007 provided by the Applicant as a submission in respect of matters 073185 and 073232, Mr Lachlan Knight on behalf of the Applicant stated:
“The supporting letters provided are from current clients that have indicated a requirement for armed security. Their business is not mine and mine is not theirs. I am the one submitting this application and they have been made aware of this and the process. It is not for them other than to verify their request and confirmation which they tell me they are happy to do.”
117 Further, I am fortified in this view (that the clients’ requirements for firearms are current) by the report of Richard W. Jennings dated 20 December 2006 who supported the provision of armed guards and by the letter from Nick Mott, Manager of Property Services at the Australian Council for the Arts in support of MKSS continuing to be armed when undertaking security services for the Australian Council for the Arts, was dated 6 February 2007.

118 The Applicant further provided a copy of a letter from Altiora under the name of Peter Watt, stating:

“Martin has advised he is waiting for amendments to gun laws to be made before seeking his firearms licence back and recommencing operation. Once Martin advises us to incept the policy we will do so from that date.”
119 The Applicant has also provided a copy of a security assessment undertaken by John Murray of Security Advisory Services Pty Ltd dated 9 February 2005.

120 Having considered the concerns expressed in the Velickovich report and the material provided by the Applicant in support of his application to vary the authorised ‘nil firearms’ condition, to enable the possession of a single firearm, I am satisfied on the balance of probabilities that the object of the Firearms Act 1996 in particular to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict conditions on the possession and use of firearms by promoting the safe and responsible storage and use of firearms is not compromised by the amendment of the condition “nil firearms authorised” to a condition authorising the possession of one pistol pursuant to a Category H Firearms Licence.

121 I am of the opinion that had the Commissioner considered the application by MKSS to vary the condition ‘authorised nil firearms’ prior to proceeding to revocation he would or should have reached the same conclusion I have now reached; i.e. that it is appropriate to vary the condition, then there would have been no basis for the revocation if the imposition of the condition authorised for nil firearms was the justification for the revocation.

122 Accordingly, I make the following findings:

(i) The “nil firearms” assessment and condition was invalid as not authorised by Regulation as that Regulation (clause 84 of the Firearms (General) Amendment (Security Industry) Regulations 2006 is only designed to determine the number of firearms a licensee is entitled to possess and is not designed to render the licence nugatory.

(ii) Therefore, the revocation decision based on the nil firearms assessment was also invalid.

(iii) If, contrary to (i) above, the condition was validly imposed, then the Commissioner erred in failing to consider and determine the application by MKSS to vary that condition seeking authorisation to possess one firearm.

(iv) The material provided by the Applicant in support of the variation application by MKSS was such that the Commission should have granted it.

(v) Therefore, if contrary to (ii) above the revocation decision was not invalid on the ground enunciated in (i) above, the decision was otherwise erroneous and unsupportable because no question of revocation would have arisen had the Applicant’s condition variation application been considered first and determined correctly.

123 Accordingly, this Tribunal makes the following orders:
(i) That the decision of the Commissioner of Police, New South Wales Police Service to revoke the Applicant’s Category H Firearms Licence No 405888394 is set aside.

(ii) That the condition currently imposed on the Applicant’s Category H Firearms Licence - authorised to possess nil firearms – is amended to permit possession of one firearm.

04/03/2008 - Address amended. - Paragraph(s) 14