TCB Security Professionals Pty Ltd v Commissioner of Police, New South Wales Police Force

[2017] NSWCATAD 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	TCB Security Professionals Pty Ltd v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 3
Hearing dates:	16 December 2016
Date of orders:	04 January 2017
Decision date:	04 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Prof G Walker, Senior Member
Decision:	Decision under review affirmed.
Catchwords:	WEAPONS PROHIBITION -ballistic vest – security company providing close personal protection – whether body armour necessary for the conduct of the business – police media policy – no police legal duty to protect particular individuals – hypothetical risks insufficient.   WORDS AND PHRASES – “necessary”.
Legislation Cited:	Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Firearms Act 1996; Weapons Prohibition Act 1998.
Cases Cited:	Fairfax Digital Australia and NZ Pty Ltd v Ibrahim [2012] NSWCCA 125; French v Commissioner of Police, New South Wales Police Force (CoP) [2013] NSWADT 221; Hill v Chief Constable of West Yorkshire [1987] UKHL 12, [1989] AC 55; Michael v Chief Constable of South Wales Police [2015] UKSC 2; Osborne v CoP [2000] NSWADTAP 10; Riss v City of New York (1968) 22 NY2d 275; 240 NE2d 265; Robinson v CoP [2007] NSWADT 218; Thomas v Mowbray [2007] HCA 33; Warren v District of Columbia 444 A2d 1 (DC C of A 1981).
Category:	Principal judgment
Parties:	TCB Security Professionals Pty Ltd (applicant) Commissioner of Police, New South Wales Police Force (respondent)
Representation:	Nl Walters, (by leave, in person as CEO of the Applicant)   Solicitors: Lindsay Taylor Lawyers (Respondent).
File Number(s):	1610560

Reasons for decision

1. On 7 December 2015 the applicant corporation applied to the respondent for a prohibited weapons permit to authorize possession and use of body armour vests. The applicant stated that it needed the permit for the protection of its staff performing close personal protection (CPP) services for media personnel, and in particular for staff of Channel 10, including presenters, camera crews and “live eye” (remote broadcast) van crews, pursuant to a contract the applicant has with that channel.

2. That application was refused on 9 May 2016. The firearms registry’s letter advised that the permit the applicant sought was issued only in circumstances where there was a real risk to the safety of the employee, namely that the employee might be shot. The only instance in which a security guard might be authorized by permit to wear body armour would be as an armed guard who is employed to conduct “cash in transit” activities, as there was a risk of being robbed at gunpoint.

3. By letter dated 31 May 2016 the applicant applied for an internal review of that decision. The review affirmed the original decision on 20 July 2016. The applicant applied to this tribunal on 5 September 2016 for review of the respondent’s decision to refuse him the permit.

4. Mr Nigel H Walters, the applicant’s chief executive officer, was the nominated person for the purposes of the application and by leave represented the applicant at the hearing. Mr Walters personally holds 1A, 1B, 1C, 1E, 2B and 2C security licences issued under the Security Industry Act 1997, and the applicant holds master licence 405312619 issued under the same Act, which licence is in force until 25 May 2020.

Applicable legislation

5. Section 11(1) of the Weapons Prohibition Act 1998 (WP Act) provides that the Commissioner may not issue a permit authorizing the possession or use of a prohibited weapon unless the applicant has, in the Commissioner’s opinion, a genuine reason for possessing or using the weapon. Section 4(1) defines a “prohibited weapon” as anything described in schedule 1. Not all of the items listed in that schedule are actual weapons, and body armour vests are described by the heading to clause 4 as belonging to the category of “Miscellaneous articles”, rather than of weapons as such.

6. The Table to s 11 of the WP Act provides that where an application gives as the reason for possession that the item is required for “business/theatrical purposes”, then “The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the prohibited weapon for which the permit is sought”.

Applicant’s evidence

7. In his oral evidence in chief Mr Walters said that he believed that he and the company’s employees, when protecting news presenters and crews, were in the “front line” and placed themselves at risk of serious injury or even death when carrying out close personal protection duties during news stories that involve criminals or suspected terrorists who may or may not be in possession of firearms or other dangerous weapons. Such situations raised issues of occupational health and safety and insurance cover.

8. One particular incident related to a shooting at Parramatta police station on 3 October 2015. The company’s guards were carrying out their duties completely unprotected alongside police officers in full body armour and riot gear. That put their personnel in a very vulnerable and precarious position, and left no doubt in Mr Walters’s mind that they needed body armour protection during risky assignments. They would use them purely for protection in cases where they were required. The company had no record of contraventions under the security industry legislation and was a “gold member” of the federal industry body, Australian Security Industry Association Ltd, known as ASIAL.

9. In cross-examination the witness agreed that his clients’ staff did not have body armour permits, but added that at one stage they had worn helmets and other gear (he did not elaborate on the circumstances). He also agreed that there were Work Health & Safety rules providing for the safety of staff which required that if there was a risk of harm to them, they should be removed from the scene. He thought, however, that body armour vests were required in situations such as a siege where there were firearms, and only where there were firearms.

10. Mr Zoppo put it to him that in such cases the media would be kept back by the police; in the Lindt Café siege in Martin Place, the media were held back, across Martin Place. Mr Walters replied that in the case of the Parramatta shooting, the media were not held back and that he and his team were in the line of fire. Although none of his clients or staff had been shot, he had seen members of other crews stabbed or otherwise assaulted on other occasions. His staff were directed to stay far enough back whenever a gun was involved so as to avoid the risk of coming under fire. The whole idea behind close personal protection was to take the client away from the scene.

11. The applicant’s services would be called upon to protect media staff following a call from the news desk. The media would seek protection at a particular place for a stated reason, although for news value preservation reasons they would not give great detail. They might say there had been a shooting but would not necessarily explain that there was still a risk. When providing protection in such situations, the applicant performed a quick risk assessment, as did the media themselves. Depending on the situation, Mr Walters might be personally involved on the scene.

12. In the case of the Parramatta episode, the company sent four staff, including himself, with two standby members, to the scene, and met the media people at the site. The live eye van was about 500 m from the site, out of the line of fire, but some “undesirables” were walking around there, making threats and taking pictures of the applicant’s staff. The staff were behind the police cordon with the media, while the public were further back again. They were, however, in the line of fire. Although by that time the offender had been shot by police, his supporters were still running around.

13. There was always a risk of a shooting, as one did not know what was out there. If a risk were apparent, they would take action to escort the client and its staff away from danger. But the media tended to want to move forward to get a better shot, and to some extent the applicant had to accommodate that, so as not to cause a conflict and possibly lose the client, but they would not countenance an extreme risk.

14. While the company had a good safety record, Mr Walters said, the Parramatta case had caused concern as it appeared that the environment was not getting safer. There was now a greater risk of getting shot in this role. Body armour would only be used on a needs basis for staff on close personal protection duties. One could never guarantee that staff would always be safe, though every endeavour would be made to avoid risk.

15. It was put to the witness that nothing had changed in the 25 years the applicant had been operating to create a greater risk. He replied that talking about the future was always hypothetical but a potential risk of situations such as the Lindt siege could be foreseen. Asked whether in a Lindt situation he would perform a risk assessment, he replied that he would, and would not put his staff and the client in the line of fire, but things had changed and protection was needed for a potential worst-case scenario.

16. The witness agreed that he would be seeking to use concealed armour, and conceded that concealable armour was less effective. In terms of the effectiveness classification table set out in the Ulong Risk Management security risk assessment prepared in November 2015 by Mr Peter M Smith (exhibit R1, at p 18), the applicant would want at least Type I, which protected against bullets ranging from .22 LR to .38 Special. He would, however, prefer Type II, which gives protection against .357 magnum and 9 mm high velocity rounds.

17. The applicant relied on the Ulong Security Risk Assessment for the Undertaking of High-Risk Close Personal Protection (CPP) Details. This detailed 20-page report canvasses the regulatory environment, the risk context, risk identification and analysis, and risk evaluation and treatment. It concludes with the recommendation that “The use of appropriately rated body armour would be recommended for TCB CPP security personnel undertaking high-risk CPP details with respect to Channel 10 camera crew (i.e. the wearing of such body armour having been determined as necessary by the threat assessment and as per the operational orders)”. The respondent did not require Mr Smith for cross-examination.

Respondent’s evidence

18. The respondent did not call oral evidence but relied on the s 58 documents (exhibit R1) and on the statement of Mr Peter Szaak dated 2 December 2016 (exhibit R2). Mr Szaak holds the position of senior manager, Industry Regulation, with the New South Wales Police Firearms Registry. Previously he was a sworn police officer for 24 years, attaining the rank of inspector, and has extensive experience in police training, operations and management.

19. In his statement Mr Szaak said inter alia that while a ballistic vest is not strictly a weapon in the sense that it is used offensively, it may be used by criminals to avoid being shot by law enforcement or other criminals. There had been a number of reports of incidents occurring in the United States where offenders involved in mass shootings had worn ballistic vests to protect themselves from being shot by police. In some cases the offender had been shot a number of times but the vest had protected the offender from police gunfire.

20. Police are trained to fire at the largest body mass, which is the torso. Covering the torso with a ballistic vest limits the ability of police to use deadly force in cases where it is necessary. The use of deadly force is reserved for the most serious of cases where the lives of police or members of the public are placed at risk by the conduct of a person who is generally armed and has generally fired a firearm, or threatened a person with the use of a firearm.

21. While a trained police officer using the issue Glock .40 calibre pistol should be able effectively to stop an offender at close range with a shot to the torso, the ability of police to hit other smaller portions of a person, such as the head, using a pistol, especially when the officer is under stress, is limited. Only specialist police have access to long arms that permit a greater degree of accuracy to allow shots at unprotected parts such as the head or limbs.

22. A ballistic vest does not remove the risk of harm by gunshot, but merely reduces it in the area where the vest provides coverage, where that vest is suitable for the projectiles from the particular firearm or the item used to stab the person. Its use might provide a person with a false sense of security and could encourage a person to go to a location or do something where there is a real risk of being shot or stabbed, when they would otherwise not go into that area because of the risk. Where a person is armed with a gun or a knife, the media or a licensed security guards protecting the media should not be in a position where they are exposed to the risk of harm.

23. The Commissioner has issued 6 permits for body armour to security firms performing armed cash-in-transit and the armed protection of cash and valuables. One other security firm that currently has the contract for the Silverwater Correctional Complex also holds such a permit. Apart from security firms, 9 permits have been granted for journalists travelling overseas for use in countries involved in warfare or civil unrest. The permits issued to the media (including Channel 10) expressly exclude authorization of the use of the vests in Australia.

24. Mr Szaak was not satisfied that the statutory test of “necessary in the conduct of the applicant’s business” had been met. The members of the media that the applicant protects are not authorized to wear ballistic vests, as the Commissioner has not in the past considered their use in New South Wales as necessary for their employment in New South Wales, whereas it would be necessary when working overseas in countries where war and serious conflict are present. Further, there was no evidence to indicate that the applicant had been contracted to provide security services while wearing ballistic vests. Mr Szaak agreed with the reasons set out in the internal review, particularly in relation to the exclusion zone set up by police around all incidents, to keep all members of the public, including journalists, safely away from harm. In such circumstances it was not necessary for the applicant’s staff to wear ballistic vests as part of their business or employment. Mr Szaak was not required for cross-examination.

Applicant’s submissions

25. By way of submissions Mr Walters repeated the points he had made in his oral evidence and also expressed his reliance on Mr Smith’s risk assessment. He acknowledged that if the application were successful, it would only give the corporation the right to possess and store ballistic vests, but any staff member expected to wear a vest would require an individual permit. He considered, however, that a permit for the applicant company would be a first step.

26. He submitted that most of the cases involving the WP Act dealt with actual weapons, whereas in the case of body armour there was only a low risk to the public. The application related to vests to be used purely for the purpose of close personal protection operations, not for everyday use. The rest of the time they would be kept locked away.

27. They were intended purely for the safety of staff and himself. Although for the 25 years the company had been operating they had experienced no problems of injuries by shooting or stabbing, the future would be different.

Consideration

28. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation as set out in s 3, which declares that prohibited weapon possession and use is “a privilege that is conditional on the overriding need to ensure public safety”. Consistently with that approach, the Act confers on the respondent the power to refuse to issue a permit in circumstances where he is not satisfied that the applicant has been able to (in this case) “demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the prohibited weapon for which the permit is sought”.

29. Body armour vests are listed in schedule 1 of the WP Act under the heading “Miscellaneous articles”, rather than under “Miscellaneous weapons” or some other heading. But the fact that a body armour vest is not in itself a weapon is of no legal consequence, as the WP Act treats such items in the same way in all respects as the weapons and other articles listed in schedule 1 (French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221, [44] – [45]).

30. The material facts of this case are not in dispute. The respondent’s evidence is that the rationale for the prohibition of these items is that they may be used by criminals to avoid being shot by police or by other criminals. There have been a number of reports from the United States of offenders involved in mass shootings wearing ballistic vests for that purpose (exhibit R2, [8]-[14]). There do not appear to have been any instances of vests being used in that way or for other criminal purposes in Australia, but that could be a function of the difficulty of obtaining them.

31. In this case the Commissioner does not suggest that the applicant (or Mr Walters) is not a fit and proper person who can be trusted to have possession of a ballistic vest within the meaning of s 10(2). He has operated a security business for 25 years with no contraventions or adverse reports. The respondent also acknowledges that the applicant’s possession of a body armour vest would not in itself create any threat to public safety or to police operations.

32. Nor does the respondent suggest that issuing a permit would be contrary to the public interest within the meaning of s 10(4). Thus the controversy in this case revolves around whether the applicant is able to satisfy the s 11 requirements of his reason for obtaining a body armour vest, which is “business/employment purposes”. To do so he must “demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the prohibited weapon” (my emphasis).

33. Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10, which as an Appeal Panel decision binds this tribunal at first instance, held that “necessary” means “essential or directly required”. Since Osborne was decided, in different contexts the High Court and the Court of Criminal Appeal have given the word “necessary” a more flexible meaning: Thomas v Mowbray [2007] HCA 33, [101]; Fairfax Digital Australia & NZ Pty Ltd v Ibrahim [2012] NSWCCA 125, [46]. In the present case, however, the applicant did not argue that those decisions required the test of necessity to be interpreted with greater flexibility. I will therefore treat Osborne as being applicable as it stands.

34. Mr Osborne was a licensed firearms dealer who conducted part of his business as a travelling operation in the more remote areas of the state. He applied for a pistol permit because of the risk of armed robbery by persons wishing to steal all or part of his stock of firearms. The Appeal Panel held that the core features of the business of dealing in firearms did not require the applicant to keep a pistol and declined to take into account the particular features of the way in which the applicant conducted that business, namely as a travelling operation.

35. The panel began by noting that “Rather than breaking this test up into separate components, and examining the meaning of the key words ‘necessary’ and ‘conduct’ independently, our view is that the provision should be read as a whole” (at [40]).

28. The learned members then went on to say that “the question of what is ‘necessary’ for the ‘conduct’ of a ‘business’ should be interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application”. Mr Osborne had chosen to do business in a way that exposed him to an increased risk of armed robbery and thereby gave rise to his perceived need to carry a handgun. His exposure to increased risk was the result of his own choice. He could have continued conducting his business without travelling alone to isolated locations with his stock.

29. Robinson v Commissioner of Police, New South Wales Police Service [2007] NSWADT 218 involved the refusal of a body armour permit to a security guard performing night patrol duties. The tribunal held that the “business/employment” reason provision of s 11 of the WP Act should be interpreted in a similar manner as that which the Appeal Panel in Osborne had applied to the “genuine reason” and “necessary” (for the conduct of a business) requirements of the Firearms Act 1996. Thus the question of what is “necessary” for the “conduct” of a “business” should be “interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application” (at [43]-[44]). The Appeal Panel upheld the refusal of a body armour permit to the security guard, although he had previously been shot by an offender. To a great extent the case turned on the lack of expert evidence to support the applicant’s submissions about his need for body armour.

30. Applying an objective test to the statutory language requires that there be evidence to support a finding of real necessity, rather than a speculative possibility. The applicant’s central proposition is that Mr Walters and “company employees, who carry out security operative duties for media personnel, such as news presenters and crew, put themselves at risk of serious injury or even death while carrying out close personal protection duties during news stories that involve criminals/suspected terrorists who may or may not be in possession of firearms or other dangerous weapons” (exhibit R1, p 22). The applicant then referred specifically to the Parramatta incident where the applicant “saw our guards carrying out their duties completely unprotected alongside police officers in full body armour and riot gear”. Mr Walters conceded in cross-examination, however, that by that time the perpetrator had been shot dead by police, although his “supporters” were still “running around” making threats and photographing security guards and media personnel.

31. The applicant relied on Mr Smith’s security risk assessment. The internal review statement of reasons notes that “Mr Smith is authorised to provide such an assessment by virtue of his 2B Security Consultant licence which was current at the time the assessment was prepared” (exhibit R1, p 24). The assessment estimates the risk rating for the applicant’s CPP security personnel being injured as a consequence of providing protective security to Channel 10 camera crews during incidents involving the use of firearms and other dangerous weapons as follows:

• Likelihood Rating: Possible

• Consequence Rating: Major (This rating takes into account the worst-case scenario where death or severe irreversible injury has resulted from either a gunshot wound or knife attack).

• Overall Risk Rating: Extreme Risk (exhibit R1, p 15).

40. As the respondent points out, the risk analysis set out in part 6 of the risk assessment states that the risk is arrived at by the combination of the “likelihood of an event occurrence” and the “consequence of an event occurrence”. The risk rating is, however, “devised on the basis that greater weight is apportioned to the injury consequence” and that “the risk rating is primarily driven by the injury severity potential with less emphasis placed on the probability of that event occurrence” (exhibit R1, p 14). The likelihood aspect of the matrix thus makes no difference to the risk, as the risk rating does not vary with a change in likelihood. A finding of improbable likelihood is the same rating as “probable” for any consequence.

41. The respondent concludes from that analysis that the rating of “Extreme” provided by the risk assessment is not based on a real need, but rather on a hypothetical future event based on a worst-case scenario assuming that a member of the media and the applicant would be placed in the line of fire. “In reality, this is never the case for the media in Australia who are removed from any risk of harm when covering a significant event”.

42. The basis for the respondent’s conclusion that media personnel in Australia would never be in the line of fire is the New South Wales Police Force Media Policy 2016 para 10.1.1, which provides for the establishment of a media assembly area at crime scenes. The policy states that police should “set up a designated and easily identifiable media vantage point/assembly area. A media assembly area should:

• enable the media to report the incident

• provide a line of sight to the incident, if safe to do so and if not a siege

• secure the safety of the media

• protect the crime scene

• ensure the media do not interfere with Police action or restrict access to the crime scene by emergency services or other approved respondents….”

43. The proposition that the media policy ensures that media personnel in New South Wales will never be placed in the line of fire or otherwise in danger assumes, of course, that the policy invariably functions perfectly in practice. Mr Walters said in cross-examination, however, that at the Parramatta scene the media and their protective staff were not in fact kept out of danger, but were in harm’s way. The respondent did not challenge that statement. The witness also said, however, that by that time the perpetrator had been shot and that Mr Walters’s main concern was the offender’s “supporters,” who were circulating in the area making threats and taking photographs of media workers and security guards.

44. It may also be relevant that, as the United Kingdom Supreme Court has recently confirmed, the police are under no legal duty to protect particular individuals, even when they are aware that a known individual is exposed to a special risk. The police are under a duty to keep the peace and prevent crime, but it is a duty to the public at large, and not a duty of care to particular members of the public: Michael v Chief Constable of South Wales Police [2015] UKSC 2. See also Hill v Chief Constable of West Yorkshire [1987] UKHL 12, [1989] AC 53. The same principle applies in the United States: Riss v City of New York (1968) 22 NY2d 579, 240 NE2d 265; Warren v District of Columbia 444 A2d 1 (DC C of A 1981). The police media policy relating to crime scenes does not alter that position. It could therefore be argued that individuals exposed to risk have a stronger case for being permitted to adopt safety measures for their own protection.

45. The risk assessment, while conceding that the Lindt Café and Parramatta events were siege situations involving lone offenders, also raises the possibility that “There can be no denying that Australia is also at risk of a terrorist event involving multiple simultaneous attacks such as those recently experienced in France. In such an event the establishing of a traditional ‘managed’ crime scene will not always be possible or will be highly problematic. Indeed in the event of a simultaneous multiple attack scenario it is likely that events will unfold (for a period) in the absence of Police control” (exhibit R1, p 13).

46. While that is a possibility, I agree that in present circumstances in New South Wales it is a hypothetical scenario rather than a real one. From personal experience at the Administrative Appeals Tribunal, where I issued wiretap and listening device warrants to state and federal police in connection with anti-terrorist investigations, I am aware that there are indeed significant numbers of individuals and groups who aspire to launching attacks on Australian civilians using guns, bombs and even rocket-propelled grenades, but there is no evidence before this tribunal of any planning or coordination that would make multiple simultaneous attacks more than a speculative possibility. That is not to say that circumstances might not change in the future, however.

47. The respondent also submitted that the wearing of a ballistic vest may provide a person with a false sense of security and may encourage a person to go to a location, or do something, where there is a real risk of being shot or stabbed when they would otherwise not go into that area because of the risk. That is a familiar argument in the context of safety equipment. It has been observed (and it may be true in some cases) that the wearing of bicycle helmets encourages cyclists to exercise less caution in traffic or that the wearing of seat belts leads motorists to drive more aggressively. That tendency has not, however, led to any moves to repeal the provisions requiring bicycle helmets and car seat belts. The argument is therefore not a persuasive one.

48. The respondent submitted that the applicant’s history of 25 years of operation without any injuries to security staff showed that body armour was, to use the language in Osborne, not essential or directly required for the performance of the company’s core functions. The fact that no other security company performing CPP functions has a permit for the use of body armour reinforces that conclusion.

49. That is a logical inference, although it could also be suggested that this positive record was also at least in part due to Mr Walters’s skill in appraising future risks On that basis his observation that conditions have changed and his prediction that coordinated or large-scale terrorist strikes are likely to become more frequent can reasonably be taken seriously.

50. Nevertheless, it remains a prediction, a hypothetical or speculative scenario, as no such attacks have yet taken place in Australia. In the unfortunate event that such incidents were to occur in the future, or if sole offenders should perpetrate more events of the Lindt Café or Parramatta type, the argument for the necessity of body armour for persons such as the applicant’s employees performing close personal protection functions would be strengthened to the extent that body armour might be said to be directly required for the conduct of the business. In present conditions, however, I find that the use of body armour is not “necessary” for the conduct of the applicant’s business within the meaning of the WP Act.

51. The decision under review should therefore be affirmed.

Order

52. Decision under review affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 January 2017