Pending Appeal : CITATION: Robinson v Commissioner of Police, NSW Police [2006] NSWADT 86 DIVISION: General Division APPLICANT PARTIES: Dennis Robinson RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 053307 HEARING DATES: 12/12/2005 SUBMISSIONS CLOSED: 12/12/2005 DATE OF DECISION: 03/24/2006 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: Robinson v Commissioner of Police, NSW Police [2005] NSWADT 5 APPLICANT S McAnulty, Barrister REPRESENTATION: RESPONDENT W Pisani, Agent ORDERS: 1.The decision of the Commissioner of Police, New South Wales Police Service to revoke Mr. Robinson's firearms licence is set aside; 2.The matter is remitted for reconsideration by the Commissioner with the recommendation that Mr Robinson's licence be reinstated if he satisfies all the other requirements for the grant of the licence REASONS FOR DECISION 1 Mr Robinson is the sole proprietor of a business that provides security services. He has worked in the Security Industry for the past 29 years and has held a firearms licence in one form or other for the past 24 years. The business was issued a Category H licence under the Firearms Act 1996 ("the Act") and a decision to revoke that licence was the subject of earlier proceedings in this Tribunal. The decision of the Commissioner to revoke Mr Robinson's licences was set aside: Robinson v Commissioner of Police, NSW Police [2005] NSWADT 5. 2 Prior to the re-instatement of the licence the Firearms Registry requested an assessment under Clause 69A(1) of the Firearms (General) Regulation 1997 ("the Regulations"). Mr Robinson was supplied with an application template to assist him with meeting that request. He then gathered a number of letters from clients in order to establish that he has a need for firearms to be carried on a patrol of their premises. The Commissioner's delegate determined that Mr Robinson's business is not eligible to be authorised to use or possess firearms and that as such, he no longer has a genuine reason for holding a Category H firearms licence for business purposes. 3 Mr Robinson was advised that his Category H Business Firearms Licence was revoked. That decision was affirmed on internal review and Mr Robinson has commenced these proceedings seeking external review of the revocation decision. Applicable Legislation 4 Section 12 of the Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless he is satisfied that the applicant has a genuine reason for possessing or using the firearm of the type authorised by the category of licence for which the applicant has applied. Mr Robinson's licence was for the purpose of Business or Employment and therefore the Commissioner must be satisfied that it is necessary to possess or use the firearm for which the licence is sought in the conduct of that business or employment. 5 Section 16(1)(a) of the Act provides that the Commissioner must not issue a category H licence to any person unless the genuine reason established by the person for being issued with the licence is any one or more of the identified reasons. The identified genuine reasons include 'business or employment'. Section 16(1)(b) of the Act provides that in addition to establishing any such genuine reason, the person must produce evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a pistol. 6 Clause 69A(1) of the Regulations, which was inserted in December 2004, provides: 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 or 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. Mr. Robinson's case 7 Mr Robinson provided an affidavit in which he set out the background to the application. He also appeared at the hearing and gave oral evidence and was subjected to cross-examination. He annexed to his affidavit a number of documents that identify a number of his clients and address the issue of the nature of the security work that he performs. He elaborated on this in his evidence before the Tribunal. Mr Robinson's evidence is that many clients are reluctant to provide precise details of goods held in premises to which he provides services or itemized lists of property as they do not wish to disclose the nature of the goods kept on their premises. In relation to some of those clients the goods are bonded stores and it is impossible to have those clients give a detailed breakdown of the goods. 8 He says that the loss of his licence has lead to a gradual loss of business and that his business has been reduced by about 30% over the past few years. Several clients who have provided written material in support of Mr Robinson's application clearly require armed security. The physical location of the client's premises and the types of goods stored on those premises place them at risk of break-ins. Mr Robinson's evidence is that having an armed guard enhances the security. 9 Included in Mr Robinson's material is a report prepared by Mr John Murray of Security Advisory Services Pty Ltd. Mr Robinson engaged the services of Mr Murray to conduct the assessment required by the Firearms Registry. Mr Robinson's evidence is that Mr Murray had advised that the cost for him to conduct a full inventory of each of the premises would be approximately $20,000. He stated that as a small business operator he would find it almost impossible to absorb that amount to continue his business. He also contends that other small businesses would also face the same prohibitive costs with the consequence that only large security firms would be able to continue to operate in the industry. 10 Mr Richard Jennings, a Security Risk Management Consultant with over twenty-five years experience in the security and crime analysis field in Australia, provided evidence in support of these contentions. 11 Mr McAnulty submits that it is impossible to provided specific details of the goods stored in a bonded store because it varies from day to day. He says that the approach adopted by the Firearms Registry is too restrictive and would require a third party to engage an assessor for an applicant's benefit and that this creates a ludicrous situation. For that reason a narrower approach should not be preferred. He also submits that there is no way to assess whether a hypothetical situation would increase or decrease the risk to a guard or to the public. He says that in the circumstances, given that Mr Robinson is of good fame and character and has been in the industry for over 29 years, the Tribunal should give weight to Mr Robinson's opinion He says that the material on which Mr Robinson relies is sufficient to demonstrate a genuine need for the possession of the licence. Accordingly, the decision of the Commissioner should be set aside. The Commissioner's case 12 The Commissioner contends that Clause 69A(1) of the Regulations requires all security firms to validate the number of firearms needed in the course of their business. An assessment was requested from every security firm in possession of a business firearm licence. This request was not limited to Mr. Robinson's business firearms licence. The onus is placed on the licence holder to provide sufficient evidence to satisfy the Commissioner that firearms are required. 13 Mr Pisani submits that the provision should be viewed in the light of the whole legislative framework to regulate the use of firearms. The legislation has been tightened and made more restrictive and it should be interpreted in a similarly restrictive manner. 14 The legislation requires that there must be a genuine need for the licence. Public policy issues require that a licence applicant meet a standard that is protective of public safety. While it may be that in certain circumstances the possession of a pistol may have some deterrent value, this is not necessarily the case and there is the potential for catastrophic consequences for both the security guard and the public. 15 Mr Pisani conceded that there may be consequences for small businesses if the cost of establishing the existence of a genuine reason for holding a licence is high, however the onus remains on the applicant to do so. He submits that the evidence provided by Mr Robinson does not go far enough to establish the genuine reason and accordingly the decision under review should be affirmed. Finding 16 The issue to be determined in this matter is whether or not Mr Robinson has a genuine reason and a special need for the licence that he seeks. Mr McAnulty has expressed this as an attack on the tradition of armed nightwatchmen. I am not convinced that this was the intention of the legislation however the consequence of the restrictive approach adopted by the Firearms Registry may well be significant to small operators in the security industry if the cost of meeting the requirements of Clause 69A(1) of the Regulations is prohibitive. 17 In the present circumstances it is not necessary that I consider issues of competition policy that might otherwise arise, as I am satisfied on the evidence before me that Mr Robinson has a genuine reason and a special need for the licence that he seeks. 18 I appreciate the Commissioner's concerns for the safety of security guards and for the safety of the wider public. The risk to public safety is inevitably increased whenever firearms are present in the community. However, I do not have concerns that Mr Robinson's holding of this licence is likely to increase the risk to safety to a greater extent. 19 In my view, the appropriate outcome of this matter is that the decision to revoke Mr. Robinson's firearms licence is set aside and the matter remitted to the Commissioner with the recommendation that the licence be reinstated if Mr Robinson satisfies all the other requirements for the grant of the licence. Order 1. The decision of the Commissioner of Police, New South Wales Police Service to revoke Mr. Robinson 's firearms licence is set aside. 2. The matter is remitted for reconsideration by the Commissioner with the recommendation that Mr Robinson's licence be reinstated if he satisfies all the other requirements for the grant of the licence. 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.