Robinson v Commissioner of Police, New South Wales Police Force

[2009] NSWADT 35

CITATION:	Robinson v Commissioner of Police, New South Wales Police Force [2009] NSWADT 35
DIVISION:	General Division
PARTIES:	APPLICANT Dennis William Robinson RESPONDENT Commissioner of Police, New South Wales Police Force
FILE NUMBER:	083305
HEARING DATES:	9 December 2008, 23 December 2008
SUBMISSIONS CLOSED:	23 December 2008
DATE OF DECISION:	19 February 2009
BEFORE:	Montgomery S - Judicial Member
LEGISLATION CITED:	Firearms Act 1996 Firearms Regulation 2006 Security Industry Act 1997
CASES CITED:	Commissioner of Police v Martin Knight Security (2008) NSWADTAP 73 Robinson v Commissioner of Police (2006) NSWADT 86 Robinson v Commissioner of Police (unreported, file 069019) Robinson v Commissioner of Police (2008) NSWADT 17 Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10
REPRESENTATION:	APPLICANT L Knight, agent RESPONDENT J Mattson, solicitor
ORDERS:	The decision under review is affirmed.

Background

1 The Applicant holds a master security licence and has a category H Business Firearms Licence (“the licence”) under the Firearms Act 1996 (“the Act”) for the reason of his security business. The licence is due to expire on 22 November 2012 and is held subject to the special conditions:

The firearm is only to be used for:

Armed guarding strictly for the protection of goods stored within warehouses and custom bonded stores.

Armed escorting for CIT [cash in transit] providers.

2 In September 2008 the Applicant applied for removal of the conditions imposed on the licence. He seeks to be able to use the pistol for all security activities he undertakes, whatever they may be and wherever they may be conducted. He has not identified specific security activities for which he requires the use of a firearm other than those previously advised and assessed by the Respondent. As I understand it, he seeks the unrestricted licence so that he can apply for security work at short notice without the need to seek the Commissioner’s assessment and authorisation beforehand. He asserts that once he has established the need for the possession of a firearm in relation to some aspects of his business, and the Commissioner has determined the number of firearms justifiably required, he should not have to provide a detailed risk assessment for each potential client and security activity.

The internal review

3 Mr Phill Houlton, the General Manager of the NSW Firearms Registry undertook the review and determined that the application to amend the conditions on the licence should be refused. The Respondent provided the Applicant with a statement of reasons in regard to the internal review determination. The statement of reasons provided details of the reasoning process that Mr Houlton had undertaken. It stated (citations omitted):

I have noted the issues raised by you in support of your application. However, after fully and independently considering all relevant matters I find that I agree with the Commissioner’s Decision to impose the said conditions on your Business Firearms Licence (genuine reason of Security Business).

I note that your Business Firearms Licence (genuine reason of Security Business) was issued on 7 June 2008 (effective from 22 November 2007) allowing you the possession and use of a firearm to conduct related security activities as set out in the standard authority provided to you. Since its issue the special conditions on your Business Firearms Licence (genuine reason of Security Business) have been changed three times (on 24 June 2008, 18 August 2008 and 28 August 2008) in accommodation with your requests of 19 June 2008, 4 August 2008 and 24 August 2008. On each occasion you have undertaken to withdraw your proceedings before the Administrative Decisions Tribunal (ADT) however, have failed to do so based on your continued assertions that current conditions restricts your trade.

Firstly, I note your internal review request states that you require the use of a firearm to conduct your security activities for the purpose of 'personal protection or the protection of any other person". I also acknowledge the ADT decision of 10 January 2008 which states (relating to the special conditions imposed on your previous Business Firearms Licence (genuine reason of Security Business) -which expired on 22 November 2007):

"I am not satisfied that any risk to public safety or considerations of public interest justify the imposition of the special condition (ii) which states that firearms are not to be used for "personal protection or the protection of any other person – the carriage of a firearm is not permitted for personal protection or the protection of any other person" (section 12(2) Firearms Act 1996). Accordingly, this condition is set aside."

Based on this statement I believe you are of the opinion that you should be entitled to the possession and use of firearms for the purpose of 'personal protection or the protection of any other person ". However, my interpretation of this statement is that the condition need not be included with the 'special conditions' of your Business Firearms Licence (genuine reason of Security Business) as it is clear within the provision of the Act that the possession and use of firearms for personal protection or the protection of any other person is not a genuine reason for the issue of any licence.

Secondly, I submit that all applications for Business Firearms Licences (genuine reason of Security Business) are adjudicated on individually, based on the information the applicant (in this case Botany Mascot Security) provided to the Firearms Registry. Further, in accordance with clause 84 of the Firearms Regulation 2006 applications from Security Business' are required to provide a detailed risk assessment from a qualified and licensed Class 2A Security Consultant for each client and security activity required in order to substantiate if the need for the possession of a firearm exists and to determine the number of firearms justifiably required.

Accordingly, upon issuing a Business Firearms Licence (genuine reason of Security Business) the special conditions imposed on the licence reflect the requirements of the applicant so that the possession and use of firearms are only authorised for those activities supported in the applicant's risk assessment. Further, all special conditions issued with a Business Firearms Licence (genuine reason of Security Business) may be changed in accordance with the business needs. For example if a business gets a new client for an additional security activity requiring possession of a firearm the business will then provide a risk assessment for the new client to the Firearms Registry. If the genuine reason for this new security business activity (with a firearm) satisfies the requirements, the special conditions will be changed to accommodate that Business' needs.

I note with your application received on 20 November 2007 you provided a risk assessment which was carried out by Daniel Lewkovitz (Class 2A Security Consultant). Within this assessment (Part 4 Company Environment) the following information was provided, "Botany Mascot Security operates within a fixed geographic area covering a small area commencing in South Botany, heading East towards Alexandria/Matraville and North towards Banksmeadow/Mascot". Furthermore, your risk assessment provided a list of clients (Part 4.1 Client Details) and their requirements for the use of your security business (whilst in possession of a firearm) for the protection of goods stored within warehouses and custom bonded stores in the Botany Mascot area. Hence the reasoning and justification for the 'special conditions' imposed on your Business Firearms Licence (genuine reason of Security Business) which was issued on 7 June 2008.

I also note that the adjudicator of the Firearms Registry has on three occasions changed the special conditions imposed on your Business Firearms Licence (genuine reason of Security Business) in order to accommodate your business' needs. However, I am satisfied that you have not provided any additional documentation or supporting risk assessments from additional client to demonstrate you have a need to perform security activities with a firearm at any other locations or sites. Furthermore I do not believe that the special conditions placed on your Business Firearms Licence (genuine reason of Security Business) need to be removed or changed to reflect 'the protection of property' only. If this approach to your special conditions were agreed too, then your business would be seen as receiving preferential treatment and I believe would demonstrate a grave inequity over other Business Licence holders (for the genuine reason of Security Business) who fulfilled their requirements (as detailed above) for the authority of special conditions they are currently subject to.

In conclusion, consideration was given to your internal review submission, however, I hold the view that it is appropriate to consider and weigh up your requirements with those of the wider community and in equity to those of other Business Firearms Licence (genuine reason of Security Business) holders. I believe the current procedures with respect to Business Firearms Licences (genuine reason of Security Business) holders are in place to ensure the possession and use of firearms whilst conducting security activities to be strict and in compliance with the objects and principles of the Act.

Accordingly, for the reasons outlined above, I find that it is the correct and preferable decision to affirm the original decision with respect to the 'special conditions' imposed on your licence.

The external review

4 The Applicant applied to the Tribunal for review of the determination to refuse the application to amend the conditions on the licence.

5 The matter first came before me on 9 December 2008. At that time I agreed to the Respondent’s request for an adjournment to allow him to obtain evidence in response to that presented on behalf of the Applicant. The matter resumed on 23 December 2008. At that time I reserved my decision.

Relevant legislation

6 Section 3 of the Act states:

3 Principles and objects of Act

(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, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) 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,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

7 Section 12(2)(a) of the Act states:

12 Genuine reasons for having a licence

(1) 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.

(2) 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).

…

8 Section 19 of the Act provides in part:

19 Conditions of licence

(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2) Without limiting subsection (1), each licence is subject to the following conditions:

...

(3) A licence is subject to such other conditions as may be prescribed by the regulations.

9 Part 7 of the Firearms Regulation 2006 (“the Regulations”) sets out special provisions relating to security guards. Within that Part 7, clause 84 provides:

84 Number of firearms to be held by security firms

(1) The authority conferred by a 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 may require a 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.

The Respondent’s case

10 The Respondent’s case is essentially that outlined in the statement of reasons provided to the Applicant in regard to the internal review determination. The Respondent relies on its file in relation to the Applicant’s licence and two statements provided by Mr Houlton. Mr Houlton also gave evidence at the hearing. Mr Mattson also provided submissions in support of the Respondent’s case.

11 The Respondent also filed and served a copy of a document titled "Guidelines, Security Business, Category H Firearms Licence Applications" (“The Guideline”). Mr Houlton gave evidence that The Guideline was developed to give effect to changes made to the firearms legislation in 2004. The provisions which were subsequently introduced in clause 84 of the Regulations were introduced at that time. Those 2004 legislative amendments were specifically designed to limit the number of handguns in the security industry to those security firms and to those security activities where the risk profile mandates or makes their use necessary.

12 The Commissioner approved the Guideline. It is issued to all applicants in the security industry that seek a firearm and provides an explanation of what an assessment of risk is and explains the risk management process; explains the rationale used by the Firearms Registry in determining whether to issue a firearms licence, and to determine the number of firearms to be possessed and used by security firms.

13 The Firearms Registry requires an applicant in the security industry to demonstrate that the performance of their actual security activities has a risk that requires a firearm and that the risk cannot be eliminated or controlled in some other way. An applicant must establish that the firearm is required to deal with that identifiable risk.

14 Mr Houlton’s evidence is that the Respondent does not issue firearms licence to security firms for unrestricted use in any security activity. He says that a firearm is not needed for all security activities. In fact, there are security activities where the use of firearms is inappropriate, unlawful and may present a significant risk to public safety.

15 In that regard, the Respondent requires applicants to provide an assessment from a suitably qualified specialist, demonstrating and identifying the need for a firearm for particular activities. The Applicant’s application for a firearm licence was determined on the basis of the material he provided in support of his application.

16 The Respondent determined that one firearm was necessary and required for the particular activities that he identified. No determination was made for any other security activity outside the activities identified in the application. No independent assessment was provided in relation to those activities which would allow the Respondent to determine the Applicant’s needs with respect to those activities.

17 Mr Houlton’s evidence is that an assessment is required so that the Respondent, or his delegate, can determine whether a firearm is necessary for the conduct of the new security activities. He says that the Respondent cannot consider amending the conditions in the licence without an assessment that a firearm is needed to lower an identifiable risk and that the risk cannot be dealt with by some other means.

18 The Respondent concedes that an unrestricted firearms licence has been issued to Martin Knight Security Service. Mr Houlton’s evidence is that the Firearms Registry did not, of its own volition, issue Martin Knight Security Service with a category H firearm licence that was "unrestricted". That licence was issued in compliance with a decision of this Tribunal.

19 In preparing his evidence in this matter, Mr Houlton undertook a review of all current category H firearm licences held by security firms as issued by the Respondent. With the exception of the licence issued to Martin Knight Security Service, none are "unrestricted" and all impose the condition that the firearm(s) are only to be used for specific security activities. Licences also impose the condition that firearms are not to be used for particular security activities.

20 Mr Houlton’s evidence is that the Respondent uses section 19 of the Act to impose conditions on all category H firearm licences issued to security firms so that the determined number of firearms are only permitted to be used for security activities where are firearm is demonstrated as required for those security activities and not to be used for any other activities where the firearm is not demonstrated as required.

21 Mr Mattson submits that the Respondent has a broad power (and obligation) to impose conditions on firearm licences and that there is no justification for an assumption that the issue of a category H firearms licence permits use of the firearm in any and all circumstances. That would be contrary to the public interest and the intention of the legislation and regulations.

22 Mr Mattson submits that a firearms licence is a privilege and not a right. To obtain a firearms licence for a business an applicant has to demonstrate a genuine reason for the licence, that a firearm is necessary for the conduct of the business and that there is a special need to possess and use firearms. The firearm licence has to specify the number of firearms required to carry out the specific security activities of that specific applicant. He argued that the Respondent is able to, and is obliged to, impose conditions on the use of firearms to particular circumstances. Firearms may be used in those circumstances, and only those circumstances, where the use has been demonstrated as necessary for the conduct of those particular identified activities of the business.

23 To permit the Applicant to engage in armed guarding with a pistol without limitation or qualification is contrary to the public interest. In the absence of the Applicant identifying specifically where the other armed guarding is to occur and what is to be guarded, and providing an assessment of those particular circumstances, the Tribunal cannot be satisfied that a firearm is needed for those particular activities, nor that it is safe for a pistol to be used in those undefined circumstances.

24 Mr Mattson further contends that a condition permitting use of a pistol for armed guarding, without limitation, and in circumstances unidentified and un-prescribed, is unworkable and would present a risk to the community. It would be dangerous and contrary to the public interest.

25 The Respondent argues that the Security Industry Act 1997 does not allow the use of firearms but, rather, the use of firearms is solely regulated by the Act. A firearm licence does not restrict security activities.

26 He says that an applicant is only issued a security licence because they are deemed fit to hold a security licence under the tests established by the Security Industry Act. It does not follow that they are then fit to use a firearm for any and all security activities. The Act regulates the use of firearms by imposing strict controls and then only permits the use of a firearm where that firearm is required.

27 As a security licence holder, the Applicant can perform a range of security activities. The use of a firearm for many of those purposes would not be permitted by the legislation. The use of even one firearm for many of those purposes would not be necessary or required. The Respondent contends that conditions need to be imposed on a licence in the interests of public safety and in the interests of regulating the proper use of firearms in the security industry. He submits that to impose a condition is not contrary to the legislation and is the correct and preferable exercise of the discretion.

28 The Respondent argues that the earlier decisions to which the Applicant has referred, including Robinson v Commissioner of Police (2006) NSWADT 86, Robinson v Commissioner of Police (unreported, file 069019), Robinson v Commissioner of Police (2008) NSWADT 17 and Commissioner of Police v Martin Knight Security (2008) NSWADTAP 73 have no relevance or application to this matter. Those cases concerned different legal issues and a different firearm licence.

29 The Respondent contends that the correct and preferable decision is to affirm the Respondent's decision not to remove the limitation on armed guarding to the protection of goods within warehouses and custom bonded stores, and further, the correct and preferable decision is not to grant the Applicant the unlimited ability to use a firearm for any security activity.

The Applicant’s case

30 The Applicant relies on his own evidence and that of Mr Knight. The Applicant asserts that the conditions imposed on his licence are a misuse of section 19(1) of the Act as it hinders his activities for no apparent reason.

31 He argues that those conditions are at odds with other licence holders who do not have the same restrictions on their licence. He contends that his trading capabilities are being restricted and that this is neither in the public interest or the Applicant's interest. He says that the conditions make it impracticable to respond to work demands of the industry. He says that it prevents him from competing for contracts because of the time and cost involved in meeting the Respondent’s assessment requirements.

32 The Applicant points to the licence issued to Martin Knight Security Service as evidence that at least one other person in the security industry has a category H firearms licence that is "unrestricted". He relies on the decision in Commissioner of Police v Martin Knight Security as support for his assertion that the issue of an "unrestricted" licence is not contrary to the principles and objects of the Act.

33 The Applicant points to a number of earlier decisions from this Tribunal in which he has been a party and which he says have established that he has satisfied all the criteria relevant to the possession and use of firearms. He contends that he has satisfied all the criteria for the issue of an H class business pistol licence. That being the case, he argues that the Respondent has already made the assessment that he has a genuine reason for possessing or using the firearm and that he is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

34 He submits that he has satisfied the public safety requirement. He says that he has previously met and currently meets all the probity requirements to hold the relevant licences to operate a security firm. He contends that if the Commissioner has any concerns in regard to his use of firearms, the Commissioner has not brought those concerns to his attention. He submits that there are no other public interest issues that need to be taken into account.

35 The Applicant argues that when an H class business pistol license is issued, the use of the pistol is regulated by the relevant security industry licences that the licensee holds.

36 It is his contention that it is inconsistent with the spirit of the legislation to license him as a security operative to perform property protection and then to restrict those same activities by imposing these conditions in the use of his firearms.

37 He submits that respondent’s decision should be set aside and that he should be issued with an unrestricted licence.

Findings

38 The issue to be determined is whether the correct and preferable decision is to impose conditions on the Applicant’s licence and if so, what conditions should be imposed. If the Applicant is correct in his assertions, a licence should be issued free of restrictions and he should d be permitted to determine the circumstances in which he can use a firearm as part of his security industry activities.

39 The Act is concerned with the possession and use of firearms being a privilege, not a right, and there being strict restrictions on the possession and use of firearms. In Osborne v Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 10 the Appeal Panel stated at paragraph [45]:

45 ... The purpose of the legislation is to reduce the use and possession of firearms in the community. If a broader view were to be taken not only would that lead to a greater number of firearms circulating in the community, but it would tend to mean that types of businesses where a real choice existed as to how they were conducted would be more able to make a claim for the possession of a hand pistol the less safely it was conducted. Such an interpretation would defeat the objects of the legislation.

40 In my view, a similar approach is to be taken in this matter. I agree that the imposition of a condition is not contrary to the legislation. The narrow view argued by the Respondent is to be preferred as it is consistent with the principles and objects set out in section 3 of the Act.

41 I do not see the decision in Commissioner of Police v Martin Knight Security as suggesting otherwise. In fact, the Appeal Panel stated at paragraph [35] of its decision:

“We would, however, recommend to the firm that it provide the Commissioner with the detail and particulars required by the Commissioner’s policy in relation to all its current clients”.

42 I do not accept that the legislature intended the Act to operate in such an open manner. The 2004 amendments to the Act to which the Respondent has referred were introduced to restrict the use of firearms. Its intention was to limit the possession and use of handguns in the security industry to those security firms and to those security activities where the use can be shown to be necessary. The Respondent has been given the power and discretion to determine the circumstances in which the use of firearms may be permitted. The legislative scheme does not place that discretion with the licensee.

43 In my view, clause 84 of the Regulations provides a means of implementing the intention of the legislature that firearms should only be possessed and used by security firms where there is an established need. An applicant must establish a risk and satisfy the Respondent that firearms use is necessary. Once an applicant has established the need for a firearm, the Respondent has the discretion to impose conditions that might restrict the use of the firearm. I do not accept that the legislature intended that it be open to a licensee to extend the use of a firearm outside of the activities that have been identified for the purposes of the assessment undertaken under clause 84(2)(a) of the Regulations and on which the Respondent has conducted an assessment.

44 If a business gets a new client for an additional security activity requiring possession of a firearm, the business is able to provide a risk assessment for the new client to the Firearms Registry. If warranted, the special conditions will be changed to accommodate that business' new needs. I note that the Firearms Registry has changed the special conditions on the licence on three occasions in order to accommodate the Applicant’s business needs.

45 I accept the Applicant’s evidence that the procedure that the Respondent has put in place may have consequences for his business operations and that there may be restrictions that make his business less competitive than others in the industry. However, National Competition Policy and restrictive trade practices are not matters that I am able to take into account in these proceedings. The fact that an unrestricted licence might afford an applicant the opportunity to offer a prospective client a different service does not mean that a firearm is required to address a risk associated with the work that is being sought.

46 In my view it is appropriate that the Respondent has a transparent approach to assess the need for a firearm. Clause 84 of the Regulations establishes a process by which the Respondent is able to carry out this assessment. The Guideline sets out the approach that the Respondent takes to this exercise. I agree with the Respondent’s submission that it is an appropriate exercise of his discretion to require a licensee to establish the need for a firearm. If that were not the case the regime would become unworkable. In my view, the current procedures aim to ensure that the possession and use of firearms whilst conducting security activities to be strict and in compliance with the objects and principles of the Act.

47 It follows in my view that the Applicant should not be issued with an unrestricted firearms licence. I must therefore determine what restrictions should be applied to the Applicant’s licence.

48 In the present case, the Applicant has provided material on which the Respondent can assess the Applicant’s existing security activities and his need for a firearm. I am satisfied that the Respondent assessment is appropriate and therefore the conditions imposed on the Applicant’s licence as a result of that assessment is also appropriate.

49 The Applicant’s risk assessment does not address proposed activities and therefore the Respondent has been unable to carry out an assessment of the Applicant’s need for a firearm in relation to those activities. Similarly, I am unable to carry out that assessment.

50 If the Applicant were able to identify the extra security activities for which he requires a firearm and provided an assessment for those new activities, the Respondent, could consider whether a firearm is required for those activities and the conditions on the licence might then be amended. However, in the circumstances, it is my view that the Respondent has correctly applied conditions to the Applicant’s licence. It follows that the Respondent’s decision should be affirmed.

Decision

The decision under review is affirmed.