Nebenzahl v Commissioner of Police, New South wales Police Service

[2000] NSWADT 123

CITATION:	Nebenzahl -v- Commissioner of Police, New South wales Police Service [2000] NSWADT 123
DIVISION:	General Division
PARTIES:	APPLICANT Brian Nebenzahl RESPONDENT Commissioner of Police, New South wales Police Service
FILE NUMBER:	003294
HEARING DATES:	01/12/2000
SUBMISSIONS CLOSED:	12/01/2000
DATE OF DECISION:	12/15/2000
BEFORE:	Wilson K - Judicial Member;
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	Osborne -v- Commissioner of Police, New South Wales Police Service [2000] NSWADTAP10
REPRESENTATION:	APPLICANT J Tancred, solicitor RESPONDENT J Tunks, solicitor
ORDERS:	That the application be dismissed as the applicant is unable to demonstrate that he has genuine reasons for having a licence under section 12 of the Firearms Act 1996.

1 This is an application for review of a decision refusing the granting by the Commissioner of Police of a Category H - Commissioner's Pistol Permit to the applicant. The application was made on 1 May 2000 and it was based on the assertion that the applicant requires to securely transport moneys during the course of his business.

2 For almost thirty (30) years the applicant had previously held both a licence and a permit in relation to pistols. On 26 November 1998 the Hornsby Local Court upheld an appeal against the refusal to issue a permit to him for personal use. In accordance with the order of the Magistrate the Commissioner for Police issued a permit on 10 December 1998 for a period of one (1) year.

3 That permit was not renewed and that was no fault of the applicant. When he came to enquire about the matter and lodge a new application the application was refused.

4 Apart from the legal context of this matter the applicant has a sense of grievance in that he has held a licence or permit for a considerable amount of time and during that period there have been no instances where it has been sought to remove the licence or permit. At the conclusion of the last proceedings in the Hornsby Local Court the Magistrate ordered that he should have a licence for five (5) years. This was not in the proper context of the administrative arrangements and a permit was issued for twelve (12) months. There was no challenge to this administrative act and the Tribunal considers that the only matter before it is the question relating to the application for a new permit lodged earlier this year.

Legislation

5 Since the introduction of the Firearms Act in 1996 there are several restrictions and regulatory requirements in relation to the ownership and possession of a firearm. The legislation sets out the basis on which individuals may hold firearms. There is no general provision in the Act in terms of persons who may consider that their occupation puts them at risk in terms of their safety or a higher risk than normal in respect of potential robberies.

6 The relevant legislative provisions in relation to this matter are contained in section 12 of the Act. This section states that the Commissioner for Police 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.

7 The section sets out the provisions that apply to a situation where a person does not have a genuine reason and in section 12(4) the Act sets out the circumstances where an applicant for a licence has a genuine reason for possessing or using a firearm. This provision states that the person must be understood to intend to possess or use the firearm for any one or more of the reasons set out in the table to the section and that such person must be able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of such reason.

8 Section 12 then contains a table with the statement setting out the reason with an activity and then a further paragraph by way of comment.

9 The only reason that would be relevant to the circumstances of this matter is that which states reason: business or employment. Underneath those words the Act states 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.

10 This is the relevant provision at the heart of this application.

Evidence

11 The evidence in this matter was uncontested. The applicant is the Managing Director of Playbill Pty Ltd and that company is involved in the publishing of programmes and merchandising of products as concession operators at cultural and sporting events in New South Wales and various interstate venues.

12 From time to time the applicant is called on to pick up and convey considerable amounts of cash that have been received in the company's operations. On most occasions this matter is handled by security guards however there are some circumstances when the applicant is called on.

13 In the past there have been two occasions on which the applicant's employees have been robbed whilst they have been on the way to attending the banking.

14 The applicant is considered to be a fit and proper person. The applicant believes that he has the requisite skills to handle the firearm and this is not contested. He also asserts that being able to carry a firearm would give him a greater sense of safety and security.

Findings

15 The Tribunal had the benefit of submissions by counsel for both the applicant and the Respondent in this matter. Those submissions were helpful and assisted the Tribunal in determining the issue in the context of the policy that underlines these provisions.

16 The Tribunal considers that the carrying of the firearm by the applicant is not an activity which could be categorised as being one that is necessary in the conduct of the applicant's business or employment. In stark contrast the activity of carrying a firearm would be seen as necessary in the conduct a security industry business.

17 The Tribunal believes that these provisions are set in exact terms to limit the circumstances in which people may carry firearms. If the criteria is for the safety and protection of an individual or a greater sense of security then such criteria could be applied to almost any person who is running a business where there is cash to be conveyed from one venue to another. Equally wherever items of value are being held then this criteria could be satisfied.

18 The Tribunal does not believe that the circumstances of the applicant are such that they comply with these provisions of the Firearms Act.

19 The Tribunal notes in passing that it has been suggested previously that if the applicant wishes to continue to engage in this activity then he should consider the provisions of the Security Industry Act. The Tribunal also notes that this matter was touched on in the Hearing before the Hornsby Local Court.

20 In coming to a decision in this matter the Tribunal has been guarded by the reasoning in the Appeal decision of Osborne -v- Commissioner of Police, New South Wales Police Service [2000] NSWADTAP10. This decision was referred to the Tribunal by both counsel.

Determination

21 That the application be dismissed as the applicant is unable to demonstrate that he has genuine reasons for having a licence under section 12 of the Firearms Act 1996.