Osborne v Commissioner of Police

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Osborne -v- Commissioner of Police [1999] NSWADT 86

DIVISION: General

APPLICANT:
Leslie Osborne

RESPONDENT:
Commissioner of Police

FILE NUMBERS: 993093

HEARING DATES: 09/03/99

SUBMISSIONS CLOSED: 03/09/1999

DECISION DATE: 13/09/1999

JUDICIAL MEMBER: N Hennessy Deputy President
LAY MEMBER:
LAY MEMBER:

APPLICANT KEYWORDS: Review of decision to refuse personal pistol permit

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Firearms Act 1996

APPLICANT REPRESENTATIVE: T Morgan, solicitor, Woodgate Morgan, solicitors

RESPONDENT REPRESENTATIVE: G Doherty, solicitor, NSW Police Service

ORDERS: 1. The respondent's decision to refuse Mr Osborne's application for a Category H firearms licence is affirmed.

DECISION:

Background

On 22 February 1999 Mr Leslie Osborne, a firearms dealer, applied to the Commissioner of Police for a permit to carry a pistol while working. His application was refused on the basis that “he has not demonstrated or shown proof of definite threat to his life or property during the course of his business or employment.” The decision maker went on to say that
If it is accepted that a person ‘may’ be robbed or threatened whilst carrying cash/goods during the course of their business or employment as justification to possess and use a firearm, then the carriage and use of firearms in the community would be commonplace.
An internal review was carried out and the original decision was affirmed.
On 17 May 1999 Mr Osborne filed an application for review of this decision with the Tribunal.
Although the original application to the Commissioner mentioned a permit, rather than a licence, discussion at the hearing clarified that the applicant is seeking a Category H licence, not a permit.
Evidence
The applicant is a firearms dealer but has no retail outlet so he travels throughout New South Wales attending firearms exhibitions, arms fairs and gun shows. He also buys and sells firearms in a wholesale capacity. He carries up to 200 licensed firearms in his car including pistols, revolvers and some prohibited weapons. He travels at times on remote country roads and sometimes stays overnight on the way. Mr Osborne’s stated that he needs a pistol because a “long arm” would be too difficult to manoeuvre in a confined space, such as behind a steering wheel.
Mr Osborne maintains that there is constant risk of being held up by armed or unarmed criminals attempting to steal the firearms. He says this risk is highest when travelling in his car and when loading and unloading firearms from his car. In support of this risk, the applicant related two incidents that he knew of where firearms dealers had been robbed of their firearms.
A risk assessment of the applicant’s business was carried out by Mr Kevin Riley, a licensed Security Consultant from Goup2 Security Services. He formed the opinion that Mr Osborne’s business put him at a high risk of being assaulted or held up while in possession of firearms. In Mr Riley’s view “criminals are continually on the look out for firearms especially large quantities.”
A statement written by Adrian Klem, a firearms dealer from South Australia, was tendered. Its contents related to an incident when two men forced their way into his home at gunpoint and stole a large quantity of firearms. Mr Klem stated that “I say with absolute certainty that (when they were distracted) I could have completely and totally prevented their enterprise and possibly apprehended both of them had there been a loaded gun in my bedroom or elsewhere in the house.”
A letter from the applicant’s accountants, Con Giannakos, expressed the view that “it would be uneconomical for (the applicant) to employ an armed Security Guard whilst carrying out his business.”
Benjamin Vandershaft gave evidence that he has been a self-employed security officer for the last five years. His work includes escorting people who are carrying cash or jewellery. He believes that the presence of a firearm on his hip deters potential offenders.
Barry Smith, President of the NSW Firearms Association and a firearms retailer and dealer said in his evidence that since the enactment of the 1996 Firearms legislation, firearms dealers are more susceptible to robbery because firearms are more difficult to obtain.
Mr Osborne said that he would use a gun as a preventative measure. The weapon would be concealed and would only be used to prevent firearms being stolen or possibly to protect himself if his life was in danger. He said that he is “acutely aware of his responsibility” to ensure that guns do not fall into the wrong hands.
Findings of fact
Contrary to the Commissioner’s reasoning, I am satisfied that there is a real risk that criminals may attempt to steal Mr Osborne’s firearms. There is no doubt that similar episodes have taken place in the past and that firearms are in demand among criminals.
I am also satisfied that the applicant’s motivation for applying for a licence is to protect his property and that any protection of himself would only occur incidentally while attempting to protect his property from being stolen.
Application of law
Under section 3 of the Act two of the objects of the Act are “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety” and “to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm.”
Section 8 sets out the licence categories. Mr Osborne is applying for a Category H licence which applies to pistols. Section 11 sets out the general restrictions on the issue of licences. Section s 11(7) states that:
The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
Section 12(1) makes it mandatory for the Commissioner to refuse a licence unless satisfied that the applicant has a genuine reason for possessing or using the firearm. Section 12(2) states that:
An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons:
(a) personal protection or the protection of any other person,
(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section)
The applicant submitted that the exception in paragraph (b) applies to both personal protection and the protection of property. I disagree. The exception in paragraph (b) clearly relates only to that paragraph.
The Table sets out several exceptions including one related to business or employment which states that “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.”
Section 16 provides a further restriction in relation to Category H licences. In addition to establishing a genuine reason for being issued with the licence, the applicant must produce “evidence to the Commissioner’s satisfaction that there is a special need for the person to possess or use a pistol.”
The legislation does not give any guidance on the circumstances where a firearm is necessary in the conduct of a person’s business or employment, however the Second Reading Speech made by the Hon JW Shaw, Attorney General and Minister for Industrial Relations, on 25 June 1996 makes it clear that the Act implements the Resolutions of the Australasian Police Ministers’ Council in Canberra on 10 May (Hansard, Legislative Council, 25 June 1996 at 3560). One of those resolutions, Resolution 3 was:
(a) that personal protection not be regarded as a genuine reason for owning, possessing or using a firearm
(b) that the following classifications be used to define the “genuine reason” an applicant must show for owning, possessing or using a firearm:

* persons with an occupational requirement, eg primary producers, other rural purposes, security employees and professional shooters for nominated purposes;

The legislation reflected this resolution in the Table by providing that a genuine reason includes possessing or using a firearm because it is “necessary in the conduct of the applicant’s business or employment.” The specific examples mentioned in the resolution were not included in the legislation, however given that the Act was intended to implement the resolutions, it should be interpreted consistently with those resolutions wherever possible.
The examples given in the resolution are of occupations which could not be carried out without the possession or use of a gun. This is not the case for the applicant’s business. Even though possessing a firearm is, in his view, desirable in order to prevent firearms from falling into the wrong hands, he does not need it to conduct his business.
Any other interpretation would mean that every person who stores or transports valuable property such as cash, firearms or jewellery, would be entitled to carry a firearm. This was not the Act’s intention.
I understand and share Mr Osborne’s concern that firearms will fall into the hands of criminals unless they are discouraged or prevented from stealing them. But, on balance, our law makers have determined that “imposing strict controls on the possession and use of firearms” is the best way of improving safety.
Consequently, the respondent’s decision to refuse Mr Osborne’s application for a Category H firearms licence is affirmed.

[1999] NSWADT 86

13 September 1999