CITATION: Eagle One Security Pty Ltd v Commissioner of Police, New South Wales Police [2008] NSWADT 107 DIVISION: General Division APPLICANT Eagle One Security Pty Ltd PARTIES: RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 073148 HEARING DATES: 24 August 2007 SUBMISSIONS CLOSED: 24 September 2007 DATE OF DECISION: 15 April 2008 BEFORE: Grant Y - Judicial Member CATCHWORDS: Firearms Act - firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulations 1997 Firearms Regulation 2006 Interpretation Act 1987 Bazouni and Ors v Commissioner of Police, NSW Police [2002] NSWADT 100 Commissioner of Police, NSW Police v Mercer (GD) [2005] NSWADTAP 55 Cusumano v Commissioner of Police, NSW Police [2001] NSWADT 50 Hardy v Commissioner of Police, NSW Police [2006] NSWADT 167 CASES CITED: Lynch v Commissioner of Police, NSW Police (GD) [2006] NSWADTAP 43 Osborne v Commissioner of Police, NSW Police (GD) [2000] NSWADTAP 10 Police v De Gaulle Reaiche, Parramatta Local Court, 11 November 2005 Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 Ward v Commissioner of Police, NSW Police [2000] NSWADT 28 APPLICANT R Bartley, solicitor REPRESENTATION: RESPONDENT W Pisani, solicitor ORDERS: That the decision of the Commissioner of Police, New South Wales Police Service, to revoke the Applicant's Category H Firearms Licence Number 405701403 is affirmed. REASONS FOR DECISION INTRODUCTION 1 Eagle One Security Pty Limited ("the Applicant") was issued with a Category H Firearms Licence on 29 March 1998, due to expire on 29 March 2003. A re-application was made, and on 3 May 2003 the licence was re-issued to the company. This licence was due to expire on 29 March 2008. Mr De Gaulle Reaiche, at the time of the relevant events, was the director of Eagle One Security Pty Limited and carried on security business under that name by virtue of the licence issued under the Security Industry Act 1997. The business was based at Northmead. Mr De Gaulle Reaiche was from 13 November 2003 until 6 December 2004 the holder of a Master Security Licence in the name of Eagle One Security. He was also the holder of a Class 1 ABC Security Licence from 10 June 2004 until 6 December 2004. The Eagle One Security Pty Limited Category H Firearms Licence was suspended on 13 January 2005 and on 16 May 2006 was revoked. BACKGROUND 2 By letter with a date stamp of 26 May 2004 the Security Industry Registry ("SIR"), advised the Firearms Registry, Murwillumbah ("the Registry") that the Applicant had failed to apply for assessment in accordance with the requirements of clause 69A of the Firearms (General) Regulations 1997 (now clause 84 of the Firearms Regulations 2006). 3 On 4 June 2004 the Firearms Registry, on New South Wales Police letterhead, wrote to the Applicant concerning re-assessment of his security firm's need for firearms, stating: " The Firearms (General) Amendment (Security Industry) Regulation 2003 commenced on 1 May 2004. As you are aware the provisions of clause 69A prescribe that the authority conferred by a firearms licence issued to a security firm limits the number of firearms the firm is allowed to possess to only such number of firearms, as in the opinion of the Commissioner of Police, are required to carry out the security activities of the security firm." The letter concluded by saying: In accordance with the provisions of clause 69A of the Regulation, an assessment of the number of firearms required by your security firm has been undertaken based on the information, or lack thereof, provided by you to the Security Industry Registry. … In accordance with that delegation, and as a result of the assessment conducted by the Security Industry Registry, based on the information (or lack thereof) provided by your firm, I have formed the opinion that you no longer require the use of firearms to carry out your security activities. Accordingly, the following Special Condition will be attached to your licence: "In accordance with clause 69A(1) of the Firearms Regulations 1997, as amended the authority conferred by this licence authorises the licensee to possess and use NIL firearms". If you are in possession of any firearms in excess of the number outlined above, all excess firearms are required to be immediately surrendered to the police officer serving this notice. Failure to surrender the firearms upon service of this notice constitutes a criminal offence." This letter was signed by Mr C.J. Capper, Acting with delegated authority as Manager – Services Firearms Registry. It is to be noted that the Applicant was offered no opportunity to be heard prior to the imposition of this condition. This was critical to the later Sorby J decision. 4 The letter of 4 June 2004 was not addressed to Mr De Gaulle Reaiche personally, but it is accepted that it was addressed to the Applicant and it is accepted that Mr De Gaulle Reaiche was the holder of the licence on behalf of the Applicant. I accept he never received that notice. 5 The licence held by the Applicant to possess firearms was not withdrawn or cancelled, but amended under clause 69A(1) of the Firearms Regulation 1997 "to possess Nil firearms". 6 On 5 August 2004 a Notice of 'Special Conditions' was served upon the Applicant and was the subject of evidence given by Sergeant Baker, Sergeant Baker having sworn a statement dated 13 December 2004. Sergeant Baker, in his statement of 13 December 2004 attested that Mr De Gaulle Reaiche of Eagle One Security Pty Limited had attended the Castle Hill Police Station and was served documents and informed that the documents indicated that there had been no genuine reasons application received in respect to the Applicant's need to possess firearms and accordingly a 'possess Nil firearms' condition had been imposed on the licence. Sergeant Baker further attested that Mr De Gaulle Reaiche had informed him that the firearms recorded in his possession were currently in the possession of a firearms dealer, named John Cramp. 7 Sergeant Baker further attested that on 3 November 2004 he had attended Eagle One Security Pty Limited and there spoke with Mr De Gaulle Reaiche and inspected a safe that had been installed at the premises for the purpose of storage of firearms. Sergeant Baker found the safe did not fully meet the requirements of the legislation and explained to Mr De Gaulle Reaiche what was required to meet those requirements. Sergeant Baker further stated that on that occasion Mr De Gaulle Reaiche had informed him: "I have got a new contract and I need my guns back and I have to apply to get more". 8 On 12 November 2004 the Police inspected and approved the Applicant's Firearms safekeeping. The Applicant asserts in these proceedings that he believed the only issue was safekeeping and as this had been addressed, the Nil assessment was no longer operative. I will return to this issue later. 9 The Applicant collected the business firearms from the dealer, John Cramp and the police alleged that this had occurred in contravention of section 7 of the Firearms Act 1996 ("the Act") and in breach of the licence condition (that is, Nil firearms). 10 Accordingly, on 6 December 2004 Constable Andrew Russell of the Firearms and Regulated Industries Crime Squad attended the Northmead premises of the Applicant and spoke to Mr De Gaulle Reaiche. During that conversation Mr Reaiche confirmed that there was one pistol in his firearms safe. He opened his safe at Constable Russell's request and Constable Russell took possession of the pistol. 11 Mr De Gaulle Reaiche employed a number of security guards who were not at the premises when Constable Russell attended. Mr Reaiche arranged for those guards to return to the business and when they returned, Constable Russell took possession of the pistols that each was carrying. 12 Mr De Gaulle Reaiche was charged with possession of the four pistols taken from the guards and the one in the safe, without being licensed to possess them and the licence was then suspended on 14 December 2004. 13 On 11 November 2005, the charge of unsafe keeping of a pistol, namely not comply with storage needs (section 41(1)(d) of the Firearms Act 1996 and clause 61B(1)(b)(i)(B) of the Firearms (General) Regulations 1997 was dismissed. However, the Applicant was convicted of five counts of 'possess unauthorised pistol – T2' at Parramatta Local Court and fined $500. 14 On 31 March 2006, at Parramatta District Court, the Applicant's conviction was quashed by Sorby J on the basis he was satisfied no request was made to Mr De Gaulle Reaiche or his company to supply information justifying why the holder of the licences on behalf of the company should be able to possess five firearms and accordingly, there was nothing to suggest that the firearms held by Mr De Gaulle Reaiche or his company as at 4 June 2004 were held illegally. Sorby J stating: "The licence, as I said, was not revoked. All that occurred was that the company's licence to possess firearms was limited to Nil number". (Judgment of Judge R.A. Sorby, 31 March 2006 at Parramatta District Court). 15 On 5 April 2006, pursuant to a further assessment of the Applicant in accordance with the requirements of clause 69A of the Firearms (General) Regulations 1997 (which has now been replaced by clause 84 of the Firearms Regulations 2006) the Securities Industry Registry advised the Firearms Registry that the Applicant had failed to provide sufficient documentary evidence to allow the Securities Industry Registry to form the opinion that the Applicant needed to possess and use firearms. The Securities Industry Registry recommended Nil authorisation for firearms. 16 On 16 May 2006 the Applicant's licence was revoked. 17 Upon an internal review failing to set aside the revocation, an appeal was lodged with the Administrative Decisions Tribunal on 16 May 2007 and listed for Directions Hearing on 5 June 2007. 18 The hearing of the matter was conducted on 24 August 2007. RELEVANT LEGISLATION 19 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) 20 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. 21 Clause 69A of the Firearms (General) Regulations 1997 (which has now been replaced by clause 84 of the Firearms Regulations 2006) provides as follows: "69A 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 use and 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 security firms 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." 22 Section 7(1) of the Act provides that a person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit. 23 Section 19 of the Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. 24 Section 21 of the Act provides generally that a licence remains in force for five years (or such shorter period as may be prescribed by the Regulations) unless it is sooner surrendered or revoked or otherwise ceases to be in force. 25 Section 22 allows the Commissioner to suspend a licence if satisfied that there may be reasons for revoking a licence. He must suspend the licence if the licensee has been charged with a domestic violence offence or if the Commissioner has reasonable cause to believe that the licensee has committed or threatened to commit a domestic violence offence. 26 Section 24(2)(b)(ii) of the Act provides that the Commissioner of Police may revoke a firearms licence if the licensee contravenes any provision of the Act or the Regulations whether or not the licensee has been convicted of an offence for the contravention. 27 Section 24(2)(b)(iii) of the Act provides that the Commissioner of Police may revoke a firearms licence if the licensee contravenes any conditions of the licence. 28 Clause 17 of the Firearms (General) Regulations 1997 provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it. RESPONDENT'S SUBMISSIONS Power to impose a condition upon a Licence 29 The Respondent submitted that the Commissioner of Police may impose a condition on a pre-existing licence by virtue of section 19 of the Act. 30 The Respondent stated that the authority vested in the Commissioner of Police to impose conditions has been recognised in relation to pre-existing licences in a number of decisions in particular the decision of Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149, where Judicial Member Fitzgerald 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 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 this discretion should be exercised. In my view the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act "." 31 The Respondent submitted that while there is no specific legislative provision or authority on point, section 33 of the Interpretation Act 1997 provides that where a determination is required as to the statutory interpretation of an Act or provision contained therein, regard must be had to the purposes or objects of the Act: "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object." 32 The Respondent referred to the principles and objects of the Act, which 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." 33 The Respondent also pointed out that the proposition that the Commissioner of Police may impose conditions on pre-existing licences was adopted by Magistrate Johnson in the unreported decision of Police v De Gaulle Reaiche, Parramatta Local Court, 11 November 2005, where his Honour stated, at [19] : "Section 19 of the Firearms Act 1996 provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. Again, Mr Bartley would argue that such conditions could only be placed on the licence at the time of issue and not afterwards. Interestingly, section 19(3) provides that a licence is subject to such other conditions "as may be prescribed" by the Regulations. The phrase does not say "as are prescribed" by the Regulations and it seems to me that this provision allows for further conditions to be inserted by way of Regulation from time to time, during the currency of a licence. " 34 The Respondent drew the Tribunal's attention to a further statement made by Magistrate Johnson in Police v De Gaulle Reaiche at [27] , namely: "As I have previously indicated, section 11 of the Act allows the Commissioner to make enquiries from applicants for a licence to test their suitability. It would seem that the Commissioner has ample scope to determine the number of firearms necessary when considering a new or renewal application and to impose a condition under section 19 without necessary resort to Regulation 69A. The Commissioner may issue a licence subject to such conditions as the Commissioner thinks fit to impose. Indeed, the licence issued to Eagle One Security, with the defendant as the licence holder specifically provided a number of licence conditions including: "3. This licence is issued subject to such conditions, restrictions and requirements as prescribed in the Firearms Act 1996 as well as in the Firearms Regulations 1997 or as the Commissioner of Police thinks fit to impose." If so, then what work does Regulation 69A do? In my view the clear parliamentary intention was to reduce the number of firearms held by security firms to that, which was necessary. The activities of security firms can change and the need for firearms may increase or reduce in accordance with that change. It will be consistent with that intent to review the needs of the licensees periodically and not just at issue or renewal time, and to reduce or increase the number to that which is required. To await for renewal for this determination to be made could mean that certain security firms held surplus firearms until licence expiry, which could be some years away. This would hardly facilitate the removal of excess (emphasis added) firearms and achieve the stated aims of the measure." 35 The Respondent further referred to the observations of Magistrate Johnson at [29] : "Another matter is this. Assuming that the Commissioner could suspend or revoke a licence because the licensee had more firearms than necessary (I have already said that I doubt that this could be done), this could have an immediate and drastic effect on the security firm's business. It seems to me that parliament has provided a mechanism, by virtue of Regulation 69A, whereby the Commissioner can fulfil his role of controlling the number of firearms in the community, whilst giving the security firm the opportunity of disposing of excess firearms in a structured manner, or alternatively challenging the decision of the Administrative Decisions Tribunal under section 75. To give an example, if the [sic] 6 hand guns and the Commissioner determined it only required 5, to suspend the licence or revoke it could put the firm out of business immediately, even though it had a legitimate need to have 5 hand guns. The imposition of a licence condition, whilst providing the necessary reduction in firearms, preserves the licence from suspension or revocation and allows the firm to continue in business." 36 The Respondent submitted that the purpose of clause 84 can be gleaned from the reason for its implementation and that of its predecessor, clause 69A and from consideration of the announcement of the reforms to the security industry by the Minister for Police, the Honourable John Watkins MP, in his Media Release, 'Maximum Security: Industry Forced to Upgrade Gun Controls', 20 November 2003, where he said the legislative intent was to restrict access to hand guns, increase safe storage, and remove high powered guns from use. 37 The Respondent identified the proposed reforms referred to above as including: (a) limiting the number of guns in the security industry; (b) banning guns in sectors of the industry, which cannot demonstrate an absolute need to be armed; (c) increasing safe storage requirements, in proportion to the number of guns held; (d) restricting the calibre and capacity of security industry handguns, and removing guns outside that range; (e) conducting security firm audits by Firearms and Regulated Industries Crime Squad; (f) strengthening the training requirements for security firms (Johns, R 'Firearms Restrictions: Recent Developments' Briefing Paper, Sydney, 3/2004). 38 The Respondent referred to a statement made by the Minister for Police, Honourable John Watkins MP, in Question Time, on Questions without Notice, 'Security Industry Firearms Access Reform', NSWPD, 20 November 2003, at page 5469, to the following effect: "I fully expect a number of companies will not be able to meet the new standard, or explain why they should still be allowed access to firearms. If that is the case, they do not deserve to have the licence and they will be put out of business. There are 3,117 firearms licensed to the security industry in New South Wales, and 7,862 guards authorised to carry them. The loss of one of these guns – from registered use to the black market – is one too many … . We have revoked the permits of 62 security organisation in the past five years. We will step this up until we know the "soft targets" within the industry have been eliminated." 39 The Respondent submitted that on 19 December 2003, Regulations containing the proposed reforms were gazetted; most relevantly, the Firearms (General) Amendment (Security Industry) Regulations 2003, which commenced on 1 May 2004. The Explanatory Note to the amending instrument stated: "The object of this regulation is to amend the Firearms (General) Regulations 1997 to: (a) prevent armed security guards from applying for a permit to acquire a firearm 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." 40 The Respondent referred the Tribunal to the abovementioned media release of November 2003 in which the Minister for Police, Honourable John Watkins MP, also stated: "Clause 69A is inserted in the Firearms (General) Regulations 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." (' Maximum Security: Industry Forced to Upgrade Gun Controls ', 20 November 2003). 41 The Respondent submitted that it was apparent that clause 84 (clause 69A as it was at the time) was introduced with the intention of achieving one primary goal, namely to audit pre-existing security firms. In particular, the Respondent submitted that it sought to ascertain the precise nature of security activities undertaken, by whom, and whether the licensed security firms could demonstrate a continued need to use firearms in connection with their security activities. The Respondent noted that it had subsequently been applied in conjunction with fresh applications for firearms to be attached to a security firm's licence and thus, the Respondent contended, acts as a screening process for new applications. 42 The Respondent contended that further evidence in support of the argument that clause 84 was intended to be utilised as an auditing method for pre-existing licence holders could be gleaned from the wording itself: "(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." 43 The Respondent submitted that as clause 84(2)(a) of the Firearms Regulations 2006 permits the Commissioner to enquire as to the number of firearms owned by a security firm, leading to the inference that it is intended to be applied to pre-existing licensed security firms. The Respondent further submitted that where an audit pursuant to clause 84 is conducted on a licensed security firm, and information is furnished to the Commissioner on such matters as those identified in clause 84(2), two possible findings are open to the Commissioner. Firstly, where evidence is provided to support the continuous use of firearms in connection with the security activities, the Commission may permit the firm to continue to retain firearms and make a determination as to the authorised number of firearms permitted to be attached to the licence. The Respondent went on to state, in his submissions that: "Where this occurs, it is appropriate that the Commissioner place a condition on the licence, pursuant to section 19(1) of the Act, stating the authorised number of firearms permitted to be attached to the licence. The imposition of such a condition is a matter which may be the subject of an Internal Review request and an appeal to the Administrative Decisions Tribunal (ADT) pursuant to section 75(1)(b) of the Act, thereby ensuring procedural fairness and natural justice." 44 Secondly the Respondent contended where 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, stating: "Where this occurs, it is submitted that the appropriate course of action is for the Commissioner to commence revocation proceedings on 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/s." 45 The Respondent rejected the Applicant's submission that there was nothing in the amending regulation to say that it was retrospective and applied to currently issued licences and cited the comments of Magistrate Johnson in the Local Court proceedings in reference to section 30(1)(c) of the Interpretation Act 1987 where he stated, at [30] : "In short, that provides that an amendment to an Act or statutory rule does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule. Section 10 of that Act defines "statutory rule" to include a regulation. Read alone, that might assist the Defendant but that overlooks the provisions of section 5(2) of the Act. That provides: 5. Application of Act (i) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act. (ii) This Act applies to an Act or instrument except insofar as the contrary intention appears in this Act or in the Act or instrument concerned. In my view, had it been intended that Regulation 69A only applied to new licences, it would have been unnecessary to introduce such a Regulation as the power to impose conditions is already contained within section 19. In my view, that is a clear indication that Regulation 69A was intended to operate in relation to existing licences, and as such appears to be a contrary intention; that is, that the provisions of section 30(1)(c) of the Interpretation Act 1987 do not operate here." (Emphasis added) 46 The Respondent cited Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149, at [24] and submitted that the task of the Tribunal was to stand in the shoes of the Commissioner and make its own decision to determine whether the revocation of the Applicant's Category H licence was the correct and preferable decision, having regard to section 24(2)(a) of the Act in conjunction with sub-section 12(1), 16(1)(b) and clause 84 of the Firearms Regulations 2006. 47 The Respondent then referred to the decision of Hardy v Commissioner of Police, NSW Police [2006] NSWACT 167 wherein Member Higgins stated: "… It is well established that proceedings such as these are non-adversarial in nature and that there is no onus of proof in the sense that it applies to other legal proceedings." … [15] Accordingly, subject to a contrary statutory provision, in making his application for review of the Commissioner's decision ("the reviewable decision") the Applicant does not take the responsibility of having to prove the case, nor does he cause the Commissioner to have to prove a case." 48 The Respondent submitted that material provided by the Applicant, together with further material filed on 31 July 2007, which was referred to in the letter dated 14 August 2007, was not sufficient to enable the Tribunal to form an opinion as to the number of firearms required by the Applicant in the conduct of his business. 49 The Respondent submitted that the quashing of the criminal charges in the Parramatta District Court on 31 March 2006 needs to be looked at in the context of authorities cited by the Respondent, viz Osborne v Commissioner of Police, NSW Police (GD) [2000] NSWADT AP 10; Ward v Commissioner of Police, NSW Police [2000] NSWADT 28; Cusumano v Commissioner of Police, NSW Police [2001] NSWADT 50; Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 and Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657-8 at 681; Commissioner of Police, NSW Police v Mercer (GD) [2005] NSWADT AP 55; Bazouni and Ors v Commissioner of Police, NSW Police [2002] NSWADT 100 and Lynch v Commissioner of Police, NSW Police (GD) [2006] NSW ADT AP 43. 50 In summary, the Respondent submitted that the quashing of the convictions recorded in the Local Court does not mean that the Tribunal may not have regard to the conduct of the Applicant in determining an application. In particular, the Respondent drew the Tribunal's attention to the "uncontested fact that the company was served with a notice, by Sergeant Baker on 5 August 2004 which, amongst other things, stated: "Accordingly, the following special condition will be attached to your licence: "In accordance with clause 69A(1) of the Firearms Regulation 1997, as amended, the authority conferred by this licence authorises the licensee to possess and use NIL firearms". If you are in possession of any firearms in excess of the number outlined above, all excess firearms are required to be immediately surrendered to the police officer serving this notice. Failure to surrender the firearms upon service of this notice constitutes a criminal offence." 51 It was the Respondent's submission that the Applicant ignored this notice because on 6 December 2004 police located five firearms on the premises. The Respondent referred to page 2 of the New South Wales Police Facts Sheet in the proceedings in Parramatta Local Court against Mr De Gaulle Reaiche for possession of unauthorised firearms and failure to comply with storage needs of firearms, which Facts Sheet was dated 9 February 2005 and stated: "On arrival, police spoke with both company's Operations Manager, Christina BELMONTE, as well as the accused, who informed police that the company was currently in possession and using all five firearms in the normal course of business. The accused also said that he was unaware of the special condition prohibiting the company from possessing or using those pistols." 52 The Respondent contended that the conduct of the Applicant, as set out above, appears to be contrary to that which would be expected of a person required to act responsibly under the relevant legislation. The Respondent stated that the evidence before the Tribunal is uncontradicted noting, significantly, that Magistrate Johnson, in Police v De Gaulle Reaiche, Parramatta Local Court, 11 November 2005 (Tab 5A) stated, at [12] : "There is no issue that the defendant received the notice relating to the regulation 69A restriction on the licence. When Constable Russell spoke to the defendant, it was his evidence that the defendant said: "The Firearms Registry said I am allowed to have them back". He nominated a Mrs Ling as the person in the Registry who said this. Evidence was given that there was no one by that name working at the Firearms Registry at that time. There was a person who was known as Lyn but she denied providing such advice. The defendant, in his sworn evidence, did not make any reference to being told that he was allowed to have the firearms returned to him." 53 The Respondent referred to the decision of Osborne v Commissioner of Police, NSW Police (GD) [2000] NSWADT AP 10, where the Appeal Panel stated, at [27] : "The Tribunal is not bound by principles of comity or rules as to binding precedents to adopt the reasoning of a Local Court in similar matters dealt with there prior to the transfer of the relevant jurisdiction to the Tribunal. Moreover the Tribunal has been established with the avowed purpose of providing a specialist forum for the resolution of certain classes of disputes, in this instance applications for merits review of the decisions of administrators. Whilst it has the status of an inferior Court or tribunal, it stands outside and above Local Courts in the hierarchy of Courts and Tribunals in the State." 54 The Respondent submitted that even when a criminal charge is dismissed against an Applicant, the Tribunal may nevertheless have regard to the conduct of the Applicant. In so saying the Respondent referred to Commissioner of Police, NSW Police v Mercer (GD) [2005] NSWADT AP 55, where the Appeal Panel stated, at [20]: "We make the following short observations. It is quite possible that material considered in the criminal proceeding will be relevant to the exercise of the licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative decision. The mere fact that a Court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLoughlin in this case, in relation to at least one of the charges, the statements of the prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the Local Court proceeding, then care would need to be exercised at the point of any enquiry by the Tribunal that a process of that kind be allowed." 55 The Respondent further made reference to the decision of Bazouni and Ors v Commissioner of Police, NSW Police [2002] NSWADT 100, where Judicial Member Rice stated, at [21] : "A conviction in itself will not ordinarily be enough for the Tribunal [to] make an adverse finding on fitness and propriety. Recent decisions in this Tribunal demonstrate this. It is the person's conduct, not the fact of the conviction, which is to be considered." 56 Reference was also made by the Respondent to the decision of Lynch v Commissioner of Police, NSW Police (GD) [2006] NSW ADT AP 43, where the Appeal Panel stated, at [46]-[47] : "The regulator of the licensing scheme will frequently be dealing with situations where licence holders have not previously come to notice. Again, some allowance will often be made if the licence holder's conduct is minor or has some special explanation. In this instance the contraventions were numerous and very serious. That Mr Lynch escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence. It is necessary for an administrator to take a stand in dealing with serious contraventions that are seen as credible by the broader community, and sends the appropriate signal to licence-holders as to what is unacceptable. The administrator and the Tribunal cannot take an approach, as seems to have been urged on behalf of Mr Lynch in this case, that ignores the systemic implications of its decisions." 57 The Respondent made further submissions on the issue of public interest stating that the public interest would best be served by applying the relevant tests and law as prescribed by the Respondent in his submissions. The Respondent cited, in particular, the statements made by the Deputy President Hennessy, in Ward v Commissioner of Police, NSW Police [2000] NSWADT 28 at [32] : "The Appeal Panel of this Tribunal considered the meaning of "public interest" in Commissioner of Police v Toleafoa ([1999] NSWADT AP 9, at 25), which was a security licence matter. In that case, the Appeal Panel stated that the public interest is "… an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise the discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in the circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal." 58 The Respondent also referred to the remarks of Deputy President Hennessy on the issue of public interest in Cusumano v Commissioner of Police, NSW Police [2001] NSW ADT 50, stating at [23] : "There is no guidance in the legislation in relation to how administrative 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 ." 59 The Respondent also referred to the reference made in Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149, to the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at 681: "The purpose of the reference to public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation." 60 In summary the Respondent submitted the role of the District Court was to ascertain whether the Applicant had possession of unregistered firearms and that it was not empowered to determine the validity of the condition imposed. The Respondent further contended that irrespective of whether the condition was validly imposed on 5 August 2004, it was nevertheless imposed and the Applicant was aware of this, as was demonstrated, the Respondent submitted, by the fact that the Applicant had received the letter from the Firearms Registry dated 4 June 2004 informing the Applicant of the imposition of the special condition as follows: "In accordance with clause 69A(1) of the Firearms Regulations 1997, as amended, the authority conferred by this licence authorises the licensee to possess and use NIL firearms." 61 I note receipt of this letter by the Applicant was a contested issue and indeed Judge Sorby in the District Court was satisfied that no request was made to the Appellant (Mr De Gaulle Reaiche) to supply information stating: 'I am satisfied the Commissioner failed to seek such information or notify the Appellant that he had to provide it to maintain the number of firearms in his possession'. 62 In support of the Respondent's submission to the effect that the Applicant was aware of the imposition of the Nil firearms condition, the Respondent cited clause 12 of the Magistrate's decision in the Local Court which stated that the Applicant had not given evidence of being told he was entitled to have the firearms back as had previously been suggested. 63 The Respondent submitted that in spite of the Applicant's awareness of the imposition of the Nil firearms condition, firearms were located at his premises on 6 November 2004. The Respondent submitted that it was this conduct on the part of the Applicant that reflected poorly on the Applicant and justified the revocation decision. Reliance was placed on the case of Bazouni v Commission of Police, NSW Police [2002] NSWADT 100 that provides support for the proposition that it is the person's conduct, not the fact of the conviction for an offence (or an acquittal for that matter) which is to be considered in determining whether or not it is appropriate to make an adverse finding as to fitness and propriety. 64 Accordingly, notwithstanding his acquittal in the District Court with respect to several 'possess unauthorised pistol' charges, the Firearms Registry was satisfied that Mr Reaiche had contravened a provision of the Firearms Act 1996 and the condition upon which the licence was "issued". The Firearms Registry was satisfied that it would not be in the public interest for Mr Reaiche to continue to hold a Business Firearms Licence and a Notice of Revocation was served on Mr Reaiche on 16 May 2006. APPLICANT'S SUBMISSIONS 65 The Applicant submitted that the Respondent had not given any reasons or findings of fact on which he had based his satisfaction that the Applicant had contravened a provision of the Firearms Act 1996, except that five charges were quashed by his Honour Judge Sorby in the District Court. 66 The Applicant further submitted that the Respondent had provided no reasons for his finding: 'Further, I am also satisfied that it would not be in the public interest for you to continue to hold a Business Firearms Licence' and that as "reasons are a normal incident of findings" that a "lack of reasons can assist an inference that the decision-maker has had no good reason" (Public Service Board of New South Wales v Osmond (1996) 159 CLR 656, 663-664). 67 The Applicant also took exception to the Delegate's inclusion of section 12 of the Firearms Act 1996 under the sub heading "Applicable Law" in the Statement of Reasons, in that section 12 related to an application for a licence, being a different context to that of a decision by the Delegate to revoke an existing licence. The Applicant contrasted the notion of an application for a licence with the statement by the Respondent that: "It will not be in the public interest for you [sic applicant] to continue to hold a Business Firearms Licence." 68 The Applicant also referred to the fact that the Respondent had quoted section 24(2)(b)(ii) of the Firearms Act 1996 which he says: "provides that the Commissioner of Police may revoke a firearms licence if the licensee contravenes any provision of the Act or the Regulations, whether or not the licensee has been convicted of any offence for the contravention." 69 The Applicant referred to section 10 of the Crimes (Sentencing Procedure) Act 1999 which provides: " Without proceeding to conviction , a Court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed; (b) … (C) …" 70 The Applicant then stated that for some purposes an order under section 10 has the same effect as a conviction and cited various examples. The Applicant then submitted that this is the purpose of section 24(2)(b)(ii) of the Firearms Act 1996 and that, in effect, the Commissioner of Police may revoke a firearms licence pursuant to section 24(2)(b)(ii) of the Act in circumstances where the licensee contravenes a provision of the Act or regulations but is not convicted of the offence in accordance with section 10(a) of the Crimes (Sentencing Procedure) Act 1999. The Applicant contrasted this interpretation with that of the Respondent who interprets section 24(2)(b)(ii) of the Firearms Act 1996 as entitling the Commissioner of Police to revoke a firearms licence, irrespective of whether or not there has been a conviction. The Respondent submitted that a mere contravention of the Act or the Regulations would suffice. 71 The Applicant further submitted that: "The Delegate has misinterpreted the section by declaring that he had the power to hold the contraventions (convictions) were proved, notwithstanding the Judge's decision to the contrary." 72 The Applicant contended that the fact that the Judge of the District Court quashed the convictions made in the Local Court against Mr De Gaulle Reaiche, precluded the Commissioner of Police from revoking the Applicant's licence whereas the Respondent believed he has the power to hold the contraventions (convictions) were proved, notwithstanding the Judge's decision to the contrary. 73 The Applicant further submitted that a contravention of the Firearms Act 1996 or the Regulations by the holder of the licence or the company had not been proved. Conditions on Licence 74 The Applicant submitted that unless the contrary intention appears, repeal or amendment of legislation does not affect accrued rights and privileges, including those of appeal (Coupe v Mudgee Shire Council, unreported, NSWCA, 5 August 1986 per Kirby J, and Interpretation Act 1987, sub-section 21 and 30). 75 The Applicant then went on to submit that the amendment of the Firearms (General) Regulations 1997 by the addition of Regulation 69A of 1 May 2004 only applied to the issue of future licences, not to existing licences as there was nothing in Regulation 69A which suggested that it applied to existing licences. 76 In this regard the Applicant made reference to the decision of Sorby J (31 March 2006) in respect of the licence held by the Applicant being valid to 29 March 2008. 77 The Applicant submitted in the alternative that there was nothing in the evidence before Judge Sorby that the Security Industry Registry requested any information from the Applicant or his company, stating: "In fact, it was not until 5 August 2004 that the Applicant or the company was advised of the purported condition on the licence. With respect, the condition was already there. His Honour Judge Sorby found that there was no evidence of any request made by the Commissioner of Police, or any delegated person to the Applicant or his company to supply information testifying the Applicant as holder the licence on behalf of the company should be allowed to possess firearms. His Honour said: 'The decision to reduce the appellant's number of firearms to nil was arbitrary and contrary to procedural fairness'." 78 The Applicant submitted that: "It is now clear from pro forma papers available, any notification that was made initially to the appellant went to the wrong address". The Appellant submitted that a step that could potentially result in the ruin of the Applicant's business required that the Respondent ensured that the Applicant had in fact been notified. The Appellant submitted that it was beyond power of the Respondent to reduce a licence to hold firearms to 'Nil'. The Applicant stated that it was his opinion that a favourable ruling on the Applicant's case by the District Court should have resulted in a termination of the proceedings in favour of the Applicant for Review. Internal Review Statement of Reasons (20 April 2007) 79 The Applicant submitted there were discrepancies in the findings of fact made by the Firearms Registry in the Internal Review Statement of Reasons dated 20 April 2007, which included the following: (a) A reference to firearm discrepancies being found in the Applicant's Register of Acquisition, Disposal and Servicing in breach of clause 67 of the Firearms (General) Regulations 1997. The Applicant stated 'There was nothing wrong with the company's records which had been checked regularly by a certified firearms dealer'. (b) The conclusion by the Security Industry Registry that the Applicant had failed to apply for assessment in accordance with the requirements of clause 69A of the Firearms (General) Regulations 1997 was incorrect as the Applicant submitted that the company had not received the notice of 26 May 2004 as the letter had gone to the wrong address. Further, the Applicant submitted that it was incumbent upon the Respondent to ensure that the letter had been received by the licensee. (c) On 5 August 2004 the Applicant maintains that the police at Castle Hill well knew the firearms were in storage because they were supervising installation of good facilities for storing them. (d) The new safe keeping facilities were completed in accordance with the law and the police approved them. (e) The police officer inspecting them accepted another officer's assurance that the licence shown to them was in order. It was the original licence without a condition. (f) A person, other than the licence holder, rang the Firearms Registry and told them the new storage facilities had been completed and could they have their firearms back. An officer of the Registry said they could and they were told they could get their firearms back from storage. The company did not collect the firearms in contravention of the licence. (g) On 6 December 2004, Constable Russell attended the premises and as the guns were returned from licensed workers, he took possession of them. Constable Russell took possession of them in reliance on the purported new condition. The company's business collapsed, because of the suspension. (h) Not only did this happen but the Applicant (licensee) was charged with firearms offences, convicted and in due course on appeal the convictions were overturned. (i) Not content with this, the Registry further pursued the Applicant, knowing full well his business was wrecked by them and the company did not have the guns to conduct the business. The Applicant had to have guns before he got his business restored and he could not do so as his licence was suspended. 80 The Applicant noted that on page 3 of the Reasons on Review, the Respondent considered that the Applicant had no criminal convictions and was of good character and that his good character was not in question. 81 The Applicant submitted that it is clear that with different police handling of the matter of the new safe and others handling the licence, there was some confusion among the Registry, even to the extent of the Registry giving wrong advice. 82 The Applicant submitted that at the end of page 3 it is said the effect of clause 69A of the Regulations was to reduce the number of firearms held by a licensee to only those considered necessary. The Applicant further submitted that the government and/or the parliamentary draftsman knew they would be disturbing existing rights. 83 The Applicant submitted that in the form it was drafted, it was done to avoid this. 84 The Applicant submitted that the Regulations, in the form they were drafted, did not apply to existing licences, otherwise the Regulations would have spelt it out clearly. 85 The Applicant submitted that given that Regulation 69A was only promulgated on 1 May 2004 it was incongruous that on 26 May 2004 the Security Industry Registry advised the Firearms Registry that the Applicant's company had failed to apply for assessment and as a consequence the Applicant was notified (advice addressed to the wrong address) that the authority of the company's firearms licence was limited to possession and use of Nil firearms. 86 The Applicant submitted his Honour Judge Sorby was caustic in his remarks about the conduct of the Registry and the Police. 87 The Applicant submitted that the conclusion the reviewer came to was wrong, namely, that the words of the notification which were served on the Applicant on 5 August 2004 were clear and not open to misinterpretation and that the licence holder was responsible to read this letter and accordingly, the Respondent formed the opinion that this confirmed the implied knowledge of the condition by the Applicant. 88 The Applicant further submitted that the conclusion that notwithstanding that the company's licence had not been revoked, the Applicant advised police that the company's firearms were placed in storage with a firearms dealer, Mr John Cramp, demonstrated that the Applicant was well aware that the company was restricted from possession of firearms was also wrong and not based on any relevant factual or probative foundation. 89 The Applicant submitted that no contravention had been proved and accordingly was critical of the reasoning of the Respondent in the Reasons for Decision of 20 April 2007, where it was stated, on page 4: "I am aware that police inspected your firearms safekeeping on 12 November 2004, but nowhere on the Inspection Certificate did it state that the special condition was lifted. I would find it reasonable in the circumstances that you would make enquiries with the Registry to confirm that the condition was lifted. However, I also find no evidence that this occurred. Despite this, you collected the firearms from the dealer. I place serious weight on this clear contravention of the fundamental provisions of section 7 of the Act, and the direct breach of the company's licence conditions. I believe this raises significant doubts regarding your ability and intention to abide by the conditions of the company's firearms licence. I am further concerned that when questioned by the police on 6 December 2004, you denied being aware of any restriction on the company licence. The evidence demonstrating that you were fully aware of the restrictions further highlights concerns for public safety. If the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety." ( Cusumano v The Commissioner of Police [2001] NSWADT 50 at paragraph [25]). 90 The Applicant submitted that the fact that the charges had been withdrawn and dismissed is very relevant: "In effect, it means they cannot be considered at all. It is submitted that any ADT decision to the contrary has been wrongly decided." 91 The Applicant submitted that the comment made by the Respondent in paragraph 2 on page 5 of the Reasons of Decision of 20 April 2007, that: 'if an individual escaped a criminal conviction that does not mean that they should therefore automatically escape an administrative sanction against their licence' was not correct as it was not supported by authority and the dismissal of alleged criminal contravention should be given weight as the fact-finder has to find facts to enable the fact-finder to make up his/her mind if there has been a contravention. Accordingly, the Applicant submitted that the dismissal of a charge should be the end of the matter. 92 The Applicant submitted that a contravention has to be proved, not that there is simply an allegation. 93 The Applicant submitted that in respect of paragraph 4 on page 5 of the Reasons for Decision, where the reviewer states that: 'I find that you have chosen to ignore your obligations as a licence holder on more than one occasion'. The Applicant submitted that this statement does not accord with the facts, which were submitted to be to the contrary. The Applicant stated: "The reviewer does not set out the facts on which he bases his statement. It is submitted that the reviewer was quite wrong, as the facts show that the Applicant and the Applicant's company have worked with the police on all occasions, even involving the police in upgrading the security arrangements and leaving the Applicant's firearms with a licence holder whilst a new safe was being installed. When it was not quite up to standard, near the end the Applicant accepted police advice and had it fixed within seven days." 94 The Applicant submitted that the reviewer was not justified in stating: 'That your contraventions increased in seriousness over time culminating in a fundamental breach of possession of firearms …'. The Applicant submitted the reviewer had failed to ask himself the question: 'Why were the police and the licensee working so hard to put in a modern and proper safe, if everyone knew he could not have guns?' 95 The Applicant submitted that public safety was not at risk; on the contrary, it was increased by the Applicant's actions. 96 The Applicant submitted that the reviewer is satisfied that the Applicant and Mr De Gaulle Reaiche are: (a) fit and proper persons; (b) that the arrangements for the safe keeping of the firearms has been inspected and approved; (c) that the Applicant is presently the holder of other licences under the Firearms Act 1996; (d) the Applicant is a man of good character; (e) the Applicant has no prior convictions; and (f) the Applicant has an impeccable record over a long time in the industry; (g) the Courts have cleared the Applicant of any wrongdoing; (h) Mr De Gaulle Reaiche has an impeccable record in the security industry since 1998, yet the reviewer is of the view he and the Applicant should not hold the licence. 97 The Applicant submits that the Respondent has placed a fetter on the use of his discretion by stating that: 'I believe that as decision-maker, I must err on the side of caution in the interest of public safety' and accordingly, has wrongly exercised his discretion against the Applicant. 98 The Applicant states, in support of this submission, the meaning of discretion which is said to mean: 'when it is said something is to be done within the discretion of the authorities, that the something must be done within the laws of reason and justice, and not according to private opinion; according to the law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (Sharpe v Wakefield [1891] AC 173 per Lord Halsbury; ABC of Evidence, paragraph [15,001]). 99 The Applicant submitted that the submissions in respect of estoppel were not pressed. 100 The Applicant concluded by saying that the revocation of the Applicant's licence should be overturned and returned to the Applicant. FINDINGS 101 The issues before this Tribunal are: (i) Whether the amendment of the Firearms (General) Regulations 1997 by the addition of Regulation 69A on 1 May 2004 only applied to the issue of future licences and not to existing licences or more generally, is there any provision of the Firearms Act 1996 or Regulations that allows the Commissioner to add a condition to an existing licence which is intended to continue for some years? (ii) Whether the Commissioner had power to make a decision to impose a condition that the Applicant should be authorised to possess Nil firearms to carry out the security activities of the security firm. (iii) Irrespective of whether or not the condition "Nil firearms" was properly imposed pursuant to clause 69A, whether the conduct of the Applicant was such as to constitute a contravention of the provisions of the Act and a breach of the Applicant's licence conditions entitling the Firearms Registry to revoke the Applicant's licence pursuant to section 24(2)(b)(ii) and (iii) of the Act and clause 17 of the Firearms (General) Regulations 1997 (as repealed and replaced with clause 19 of the Firearms Regulation 2006). (i) The power to impose a condition upon an existing licence 102 I accept the Respondent's submissions that the Commissioner of Police may impose conditions on pre-existing licences. I say so, having regard to the observations of Magistrate Johnson in the unreported decision of Police v De Gaulle Reaiche, Parramatta Local Court, 11 November 2005, with which I agree, when his Honour stated, at [19] : "Section 19 of the Firearms Act 1996 provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. Again Mr Bartley would argue that such conditions can only be placed on the licence at the time of issue and not afterwards. Interestingly, section 19(3) provides that a licence is subject to such other conditions "as may be prescribed" by the Regulations. The phrase does not say "as are prescribed" by the Regulations and it seems to me that this provision allows for further conditions to be inserted by way of Regulation from time to time, during the currency of the licence." And further, at [27] : "As I have previously indicated, section 11 of the Act allows the Commissioner to make enquiries from applicants for a licence to test their suitability. It would seem that the Commissioner has ample scope to determine the number of firearms necessary when considering a new or renewed application and to impose a condition under section 19 without necessary resort to Regulation 69A. The Commissioner may issue a licence subject to such conditions as the Commissioner thinks fit to impose. Indeed, the licence issued to Eagle One Security, with the defendant as the licence holder specifically provided a number of licence conditions, including: "3. This licence is issued subject to such conditions, restrictions and requirements as prescribed in the Firearms Act 1996, as well as in the Firearms Regulation 1997 or as the Commissioner of Police thinks fit to impose." If so, then what work does Regulation 69A do? In my view, the clear parliamentary intention was to reduce the number of firearms held by security firms to that, which was necessary . (Emphasis added) The activities of security firms can change and the need for firearms be increased or reduced in accordance with that change. It will be consistent with an intent to review needs of a licensee periodically and not just at issue or renewal time, and to reduce or increase the number to that which is required. To wait for renewal for this determination to be made could mean that some security firms held surplus firearms until licence expiry, which could be some years away. This would hardly facilitate the removal of excess firearms and achieve the stated aims of the measure." 103 I concur with the findings of Magistrate Johnson in that Regulation 69A applies not only to future licences but also to existing licences, as the Parliamentary intention of section 69A was to reduce the number of firearms held by security firms to that which is necessary and to reflect the changing level of activities undertaken by security firms and the consequent need for firearms. (ii) Power of the Commissioner to impose a condition upon a licence stating: "Authorised to possess Nil firearms" 104 I accept the Applicant's submissions that section 12(1) of the Act relates to the issue of a licence and the matter before the Tribunal relates to the imposition of a condition on an existing licence and the subsequent revocation of that licence. 105 I further accept the Applicant's submission with respect to the Respondent's statement in the Reasons for Decision document when he said: '… it would not be in the public interest for you [sic Applicant] to continue to hold a Business Firearms Licence". The use of the word 'continue' provides further support for the proposition that the matter with which we are here concerned is not the issue of a licence but rather with the appropriateness of the imposition of a condition on an existing licence. 106 Section 16(1)(b) of the Act states that in addition to establishing a genuine reason for having a licence, 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. So this section is also concerned with the circumstances in which the Commissioner must not issue a Category H Licence and does not relate to an application to impose conditions on a current licence. 107 However, the Commissioner also relied on clause 69A of the Firearms (General) Regulations 1997 ("the 69A test"), as it was formerly known and is now found at clause 84 of the Firearms Regulations 2006 that provides: "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." 108 It is my view that the Commissioner has misconstrued section 12(1), section 16(1)(b) and clause 69A (now clause 84 of the Regulations) as giving him a power to require the Applicant to establish at any time chosen by the Commissioner that he has both a genuine reason and a special need for a Category H Firearms Licence. The decision to impose a condition authorising the Applicant to have 'Nil firearms' pursuant to section 19(1) of the Firearms Act 1996 was based on a finding that in the course of an "audit under clause 69A of the Firearms Regulations 1997" (clause 84 of the Firearms Regulations 2006) no response as to 'need' was received from the Applicant and based on this lack of information, the conclusion was reached that the Applicant no longer required the use of firearms to carry out security activities (Martin Knight Security Services v Commissioner of Police, NSW Police [2008] NSWADT). 109 The fact that clause 69A(1) states: "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" implies that this Regulation enables the Commissioner to authorise the firm to possess a specified number of firearms, as the Commissioner considers are required to carry out the security activities of the security firm. But that specified number cannot be zero (or Nil). 110 I am supported in this view by the statements made by his Honour Magistrate Johnson in the unreported decision of Police v De Gaulle Reaiche, Parramatta Local Court, 11 November 2005, when his Honour stated, at [29] : "Another matter is this. Assuming that the Commissioner could suspend or revoke a licence because the licensee had more firearms than necessary (I have already said that I doubt this could be done), this would have an immediate and drastic effect on the security firm's business. It seems to me that parliament has provided a mechanism, by virtue of Regulation 69A, whereby the Commissioner can fulfil his role in controlling the number of firearms in the community, whilst giving the security firm the opportunity of disposing of excess firearms in a structured manner, or alternatively challenging the decision in the Administrative Decisions Tribunal under section 75. To give an example, if the [sic] 6 hand guns and the Commissioner determined that it only required 5, to suspend the licence or revoke it could put the firm out of business immediately, even though it had a legitimate need to have 5 hand guns. The imposition of a licence condition, whilst providing the necessary reduction in firearms, preserves the licence from suspension or revocation and allows the firm to continue in business ." (Emphasis added) (iii) Whether the conduct of the Applicant was, in any event, such as to constitute grounds entitling the Firearms Registry to revoke the Applicant's Licence 111 The Respondent submitted that the quashing of convictions by the Parramatta District Court on 31 March 2006 does not mean that the Tribunal may not have regard to the conduct of the Applicant in determining the application. In particular, the Respondent drew the Tribunal's attention to the uncontested fact that the company was served with a notice, by Sergeant Baker, on 5 August 2004 which, amongst other things, stated: "Accordingly, the following special condition will be attached to your licence: "In accordance with clause 69A(1) of the Firearms Regulations 1997, as amended, the authority conferred by this licence authorises the licensee to possess and use Nil firearms." If you are in possession of any firearms in excess of the number outlined above, all excess firearms are required to be immediately surrendered to the police officer serving this notice. The failure to surrender the firearms upon service of this notice constitutes a criminal offence." 112 The Respondent submitted that the Applicant ignored this notice because, contrary to the notice, on 6 December 2004, police located 5 firearms on the premises. The Respondent drew the Tribunal's attention to page 2 of the New South Wales Police Service Facts Sheet relating to the prosecution of Mr De Gaulle Reaiche in the Parramatta Local Court, which states: "On arrival, police spoke with both the company's Operations Manager, Christina Belmont, as well as the accused, who informed police that the company was currently in possession and using all firearms in the normal course of the business. The accused also said that he was unaware of the special condition prohibiting the company from possessing or using those pistols." 113 The Respondent submitted that the conduct of the Applicant referred to above appears to be contrary to that which would be expected of a person required to act responsibly under the relevant legislation. 114 The Respondent drew the Tribunal's attention to the statement made by Magistrate Johnson in Police v De Gaulle Reaiche, Parramatta Local Court, 11 November 2005, stated at [12] : "There is no issue that the defendant received the notice relating to the Regulation 69A restriction on the licence. When Constable Russell spoke to the defendant, it was his evidence that the defendant said: "The Firearms Registry said I am allowed to have them back". He nominated a Mrs Ling as the person in the Registry who said this. Evidence was given that there was no one by that name working at the Firearms Registry at the time. There was a person who was known as Lyn but she denied providing such advice. The defendant, in his sworn evidence, did not make any reference to being told that he was allowed to have the firearms returned to him." 115 I accept that the Tribunal is not bound by principles of comity or rules as to binding precedents to adopt the reasoning of the Local Court in similar matters dealt with there prior to the transfer of the relevant jurisdiction to the Tribunal (see Osborne v Commissioner of Police, NSW Police (GD) [2000] NSWADT AP 10. 116 I accept that the standard of proof in criminal proceedings of beyond a reasonable doubt are not operative in this jurisdiction, and the fact that the Applicant may have escaped a criminal conviction does not preclude the imposition of administrative sanction against his licence. In Commissioner of Police, NSW Police v Mercer (GD) [2005] NSWADT AP 55, the Appeal Panel stated, at [20] : "We make the following short observations. It is quite possible that material considered in the criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a Court has dismissed charges is of no great moment, it is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLoughlin in this case, in relation to at least one of the charges, the statements of the prosecution witness may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the Local Court proceeding, then care would need to be exercised at the point of any enquiry by the Tribunal that a process of that kind be allowed." 117 These principles were further acknowledged in the decisions of Bazouni and Ors v Commissioner of Police, NSW Police [2002] NSWADT 100 and Lynch v Commissioner of Police, NSW Police (GD) [2006] NSWADT AP 43. 118 The Respondent submits that public interest requires that all licensees be aware of and comply with the legislative requirements (Vella v The Commissioner of Police [2003] NSWADT 91 at paragraph [41]. 119 The issue was further addressed in the decision of Ward v Commissioner of Police [2007] NSWADT 28, where it was stated, at paragraph 28: "The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied there is virtually no risk." 120 While I am of the view that the condition imposing 'authorised Nil firearms' was imposed beyond power, and that inadequate provision was made for the Applicant to defend the retention of his licence, in circumstances where he was unaware of the request for an assessment, I am nevertheless of the view that it is important that all licensees be aware of (and comply with) their obligations under the Firearms Act 1996, when afforded the privilege of possessing a firearms licence. 121 I am satisfied that the Applicant acted improperly when he retrieved the firearms in November 2004 as such conduct breached the Nil firearms condition that was still in force. Licence holders (like the Applicant) unhappy with conditions imposed, whether on grounds of validity and/or merit, have the right to challenge those conditions. They do not have the right to simply not comply with them. In so doing, the Applicant ostensibly represented himself to the firearms dealer as a person who held the appropriate authorisation to collect the firearms, in possible contravention of section 71A of the Act. 122 Whilst I am comfortably satisfied that the Applicant did not know about the imposition of the Nil firearms condition following from the dispatch of the letter of 4 June 2004 as I accept the Applicant did not receive that letter, the evidence before the Tribunal establishes that the Applicant knew, on 5 August 2004, that a Nil firearms condition had been imposed on his licence, as a consequence of his attendance at Castle Hill Police Station. 123 Whilst the Applicant now asserts that he thought that the Nil firearms condition had been imposed only because of concerns of the standard of safekeeping at his premises, such that the foundation for the condition disappeared when the police expressed their satisfaction about the safekeeping facilities on 12 November 2004, the Applicant gave no sworn evidence to this effect and nor is there any other documentary evidence before the Tribunal that would suggest there was a proper basis for such a belief. In these circumstances I am not comfortably satisfied that the Applicant held that belief or that there was any confusion in the mind of the Applicant about the reason for the imposition of the Nil condition in the first place such that the Tribunal might 'excuse' the Applicant's breach of the condition. 124 There is no suggestion that, on the day of the safekeeping inspection, namely 12 November 2004, the police advised the Applicant that he was now free to collect his firearms from the dealer (John Cramp), either because the Nil assessment condition had now been lifted or for any other reason, nor is there any documentary material to suggest that the Applicant was entitled, on and from that date, to again possess firearms for use in his security business. 125 Whilst the Applicant also seeks to justify or explain the breach on the basis that enquiries were made of the Registry on its behalf, about the Applicant's entitlement to again possess firearms; that such enquiries were made prior to a date upon which those firearms were collected from the dealer; and that the Registry advised that he was entitled to repossess the firearms, I am not comfortably satisfied that this sequence of events occurred. This is because: (a) The Applicant asserted that the enquiries were made by someone within its office but that person was not even identified, let alone provide the Tribunal with sworn evidence that the enquiry was made. (b) The Applicant was not able to identify the date upon which the enquiry was made, either by recollection or based upon its own business records. Nor was the Applicant able to identify with precision the full name of the Registry staff member that was allegedly spoken to, even though the name of that person and the advice that he/she provided was a matter of fundamental importance to the Applicant's ongoing ability to conduct a security business. (c) The Applicant's inability to provide the full name of the person said to be contacted within the Registry or at least the date upon which such contact was said to have occurred, rendered it extremely difficult for the Respondent to produce records to the Tribunal either confirming or denying that the asserted contact took place. (d) Whilst the Applicant asserted that the contact had been made with a person with the name of Mrs Ling, the Respondent asserted that the Registry had no such person with that name and that whilst the Registry had a person with the name "Lyn", she had denied having ever received any such contact from the Applicant. The Tribunal has no reason to doubt the Respondent's assertion in this regard. 126 However, I am not comfortably satisfied that when the police spoke to the Applicant on 6 December 2004, that Mr De Gaulle Reaiche on behalf of the Applicant, actively denied being aware of any restriction on the company's licence. This is because: (a) the only probative evidence before the Tribunal as to what was actively said by Mr De Gaulle Reaiche to the police on that day is the evidence given by Constable Russell to the Local Court on oath, namely, that: "The Firearms Registry said I am allowed to have them back". This is not evidence that supports a finding of blanket denial as to the existence of the Nil condition; and (b) Indeed, Constable Russell's evidence is much more consistent with the idea (as embraced by the Applicant) that he was aware of the existence of a Nil condition but thought that it was no longer operative because he had addressed the safekeeping of the firearms issue. 127 In these circumstances, whilst I do not accept that the Applicant actively lied about the existence of the Nil condition, I otherwise agree with the Reasons for Decision document of 20 April 2007, on page 4, where it is stated: "I am aware that police inspected your firearms safekeeping on 12 November 2004, but nowhere on the Inspection Certificate did it state that the special condition was lifted. I would find it reasonable in the circumstances that you would make enquiries with the Registry to confirm that the condition was lifted. However, I also find no evidence that this occurred. Despite this, you collected the firearms from the dealer. I place serious weight on this clear contravention of the fundamental provisions of section 7 of the Act, and the direct breach of the company's licence conditions. I believe this raises significant doubts regarding your ability and intention to abide by the conditions of the company firearms licence. I am further concerned that when questioned by the police on 6 December 2004, you denied being aware of any restriction on the company licence. The evidence demonstrating that you were fully aware of the restrictions further highlights concerns for public safety. If the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety." ( Cusumano v The Commissioner of Police [2001] NSWADT 50 at paragraph [25]). 128 I am further supported in this view by the observations of Magistrate Johnson in Police v De Gaulle Reaiche, Parramatta Local Court, 11 November 2005, at 12: "There is no issue that the defendant received the notice relating to the regulation 69A restriction on the licence. … . The defendant, in his sworn evidence did not make any reference to being told that he was allowed to have the firearms returned to him." 129 Accordingly, for the reasons set out above, this Tribunal makes the following order: That the decision of the Commissioner of Police, New South Wales Police Service, to revoke the Applicant's Category H Firearms Licence Number 405701403 is affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.