CITATION: Robinson v Commissioner of Police, NSW Police [2007] NSWADT 218 DIVISION: General Division APPLICANT PARTIES: Dennis William Robinson RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 073083 HEARING DATES: 8 June 2007 and 13 July 2007 SUBMISSIONS CLOSED: 13 July 2007 DATE OF DECISION: 25 September 2007 BEFORE: Molony P - Judicial Member CATCHWORDS: Prohibited weapons - issue of permit - Weapons Prohibition Act - prohibited weapons - issue of permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Occupational Health and Safety Act 2000 LEGISLATION CITED : Occupational Health and Safety Regulation 2001 Security Industry Act 1997 Weapons Prohibition Regulation 1999 Weapons Prohibitions Act 1998 Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 Ferdinands v Commissioner for Public Employment [2006] HCA 5 Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 CASES CITED: Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305 Minister for Immigration and Ethnic Affairs v Pochi [1980] 44 FLR 41 Osborne v Commissioner of Police [2000] NSWADTAP 10 Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 APPLICANT L Knight, agent REPRESENTATION: RESPONDENT W Pisani, solicitor ORDERS: The decision to refuse Mr Robinson's application for a general permit authorising him to use and possess a body armour vest is affirmed. REASONS FOR DECISION Introduction 1 Mr Robinson operates a business called Botany Mascot Security. He conducts night patrols in the Botany area overing a number of commercial premises including factories, bond stores and other warehouse premises which house items of considerable value. He does not enter those buildings but patrols their perimeters in a vehicle, stopping to check that premises are secure as he does so. 2 Mr Robinson has been in the security industry for many years. In 1988 he suffered the misfortune of being shot by an armed robber, when, during a lunch break, he was taken hostage while in uniform. He is concerned about his personal safety while conducting night patrols. 3 On 6 November 2006 Mr Robinson applied for a permit authorising him to use and possess a body armour vest under the Weapons Prohibition Act 1998 (the WPA). Body armour vests are deemed to be prohibited weapons by the WPA. He supplied a risk assessment prepared by Mr Murray and dated 9 February 2005 in support of his application. 4 On 10 January 2007 the Commissioner of Police refused that application on the ground that Mr Robinson had "not provided adequate information to be issued to hold a Body Armour Vest." Mr Robinson sought an internal review of that decision on 2 February 2007. He supplied the Commissioner with a risk re-assessment prepared by Jasjha Jeron Stel on 31 January 2007. On 10 April 2007 an internal review officer affirmed the decision to refuse Mr Robinson's application. 5 In so doing, the internal review officer noted that the risk assessment from February 2006 related to the carriage of firearms for work purposes, while the January 2007 risk assessment related "almost entirely" to the same issue. The internal review officer said: "The only reference to the need for a body armour vest is the assessor's comment that he believes that there is a genuine reason and special need for the patrol man to be able to wear body armour. However, no reasons or risk assessment have been provided to support the assessor's belief. … Section 11(2) of the Act requires that you must satisfy the Commissioner of Police that you have a genuine reason for possessing or using a body armour vest for Business/Employment purposes in that you must demonstrate that it is necessary in the conduct of your business or employment to possess or use the body armour vest. It would appear that you have been operating your business for some time without the benefit of a body armour vest. As such, it is clear that whilst you may hold the view that the use of a body armour vest is desirable, it is not a necessary requirement for you to continue to conduct your business." 6 Mr Robinson has sought a review of that decision in this Tribunal. The Tribunal's role in conducting that review is to make the correct and preferable decisions based on the material then before it: s 63 Administrative Decision Tribunal Act 1997. The Legislation 7 The WPA regulates the possession, use, manufacture, sale, transfer and disposal of prohibited weapons. 8 Prohibited weapons are defined in s 4 to mean anything that is described in Schedule 1 of the WPA. That Schedule describes various items under four categories: "Knives", "Miscellaneous weapons", "Replicas imitations, concealed blades etc." and "Miscellaneous articles". The category "Miscellaneous articles" includes a number of articles, such as body armour vests and handcuffs, which would not be considered to be a weapon within the ordinary meaning of that word. The effect of their inclusion in Schedule 1 is that they are defined to be prohibited weapons for the purposes of the WPA. 9 The principles and objects of the Act are set out in section 3: "(1) The underlying principles of this Act are: (a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons. (2) The specific objects of this Act are as follows: (a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon, (b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons, (c) to provide an amnesty period to enable the surrender of prohibited weapons." 10 An examination of the WPA reveals that the legislative scheme involves the prohibition of the possession and use of prohibited weapons without a general permit: s 7. The circumstances in which those permits can be issued by the Commissioner are then strictly regulated, both in terms of the character and suitability of applicants to hold permits (s 10) and the circumstances in which permits can be issued. 11 Section 8 sets out the categories of permits and the authority they confer. It provides: (1) The categories of permits and the authority they confer are as follows: General permit Authorises the holder of the permit to possess or use a prohibited weapon of the kind specified in the permit, but only for the purpose established by the holder as being the genuine reason for possessing or using the prohibited weapon. Weapons dealer permit Authorises the holder of the permit, and any authorised employee, to possess, buy, sell and manufacture prohibited weapons of the kind specified in the permit, but only in the course of carrying on business as a weapons dealer and only at the premises specified in the permit (or at such other premises as may be approved). Theatrical weapons armourer permit Authorises the holder of the permit, and any authorised employee, in the course of carrying on business as a theatrical weapons armourer: (a) to possess, use, buy, sell and manufacture prohibited weapons of the kind specified in the permit, and (b) to supervise and train persons who are involved in a cinematographic, television or theatrical production in the use of prohibited weapons to which the permit relates. The authority conferred by a theatrical weapons armourer permit also authorises those persons who are involved in the cinematographic, television or theatrical production concerned to possess and use prohibited weapons to which the permit relates, but only while under the supervision of the holder of the permit or an authorised employee. (2) The regulations may prescribe different types of general permits. (3) The authority conferred by a permit is subject to the regulations." 12 In Mr Robinson's case he is seeking a general permit. 13 Section 10 gives the Commissioner discretion to grant or refuse to grant permits. It sets out character, training and antecedent requirements which must be satisfied before a permit is granted. It gives the Commissioner a specific power to refuse permits on the basis that they would be "be contrary to the public interest," or on other grounds, specified in the Regulation. Clause 11 says that the Commissioner must not issue a "permit" unless satisfied that the applicants is aware of, understands and will comply with the safe keeping requirements for prohibited weapons. 14 A permit when issued may be subject to "to such conditions as the Commissioner thinks fit to impose and as are specified in the permit:" section 14(1). 15 Section 11 is concerned with genuine reasons for the issue of general permits. It applies in Mr Robinson's case and provides: "(1) The Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon. (2) Without limiting the reasons that the Commissioner may be satisfied are genuine reasons, the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon if the applicant: (a) states that he or she intends to possess or use the weapon: (i) for any one or more of the reasons set out in the Table to this subsection, or (ii) ifor any other reason prescribed by the regulations, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements (if any) specified in respect of any such reason. Table Reason: recreational/sporting purposes The applicant must demonstrate that the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought. Reason: business/employment purposes The applicant must demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use the prohibited weapon for which the permit is sought. Reason: film/TV/theatrical purposes The applicant must demonstrate that the film, television or theatrical activity concerned requires the possession or use of the prohibited weapon for which the permit is sought. Reason: weapons collection The applicant must demonstrate that the applicant's prohibited weapons collection has a genuine commemorative, historical, thematic or financial value. Reason: public museum purposes The applicant must demonstrate that the public museum concerned is involved in the collection and display of prohibited weapons. Reason: heirloom The applicant must demonstrate that the applicant has inherited the prohibited weapon for which the permit is sought and that the weapon has a genuine sentimental value. Reason: animal management The applicant must be a veterinary practitioner (within the meaning of the Veterinary Practice Act 2003), or an organisation that has responsibilities for animal management, and demonstrate that it is necessary in the conduct of the applicant's responsibilities to possess or use the prohibited weapon for which the permit is sought. Reason: scientific purposes The applicant must demonstrate that the prohibited weapon for which the permit is sought is required for legitimate scientific purposes. (3) The possession or use of a prohibited weapon for personal protection, or for the protection of any other person, is not a genuine reason for the possession or use of the weapon. However, any such reason may constitute a genuine reason in the case of a prohibited weapon referred to in clause 4 (1) of Schedule 1 or in the case of a prohibited weapon that is of a kind prescribed by the regulations for the purposes of this subsection. (4) Subsection (3) does not limit the reasons that the Commissioner may determine are not genuine reasons for the purposes of possessing or using a prohibited weapon." 16 Part 3 of the Weapons Prohibition Regulation 1999 contains provisions specifying various types of general permits, and specifying requirements and conditions applicable to them. The types of general permits set out in that part is not exhaustive: cl 13(2). None of them apply to Mr Robinson's application. Mr Robinson's Case 17 Mr Robinson gave evidence. He explained that he has been in the security industry for 30 years. In 1988 he was shot when taken hostage by an offender while he was on a lunch break, but in uniform, in the city. He holds a category H (pistol) licence under the Firearms Act 1996. 18 He has been operating Botany Mascot Security for the last 18 years. He provides a local night watchman service. In the course of that business he conducts regular night patrols of warehouses in Botany, between the hours of 9:00pm and 4:00am. He patrols 31 premises all within a very small area. He does patrols outside only. He does not carry keys to the buildings. While he encourages his clients to fit back to base alarms, not all the buildings are alarmed. Many of his clients have fitted sensor lights to their buildings, an action he has encouraged, but some areas he patrols remain poorly lit. 19 In the course of his duties he gets out of his car to check gates and points of entry, but will not enter the buildings himself. If he has reason to suspect that someone has gained entry to a building, he calls the Police. 20 Mr Robinson said that prior to the commencement of the WPA he held a lifetime licence under the previous licencing regime authorising him to use and possess a body armour vest. He had used the vest in the course of his work. Following the introduction of the WPA he had not been able to do so. As a result he feels extremely vulnerable. He said that during the course of his duties he has come across people acting suspiciously, whom he subsequently discovered had recently committed a robbery and were armed. He is fearful of getting shot when getting into or out of his vehicle while on patrol. Without a body armour vest he feels at high risk and very unsafe. 21 In cross-examination it was put to him that, if he wore a vest, there was a danger of him being overwhelmed, and the vest taken. He made a number of points in response. He said that he would wear the vest under his shirt and it would not be visible. He thought there little chance of his being overwhelmed. He made the point that when he had been shot in 1988 he had been resisting (successfully) demands to hand over his weapon. He said he would not surrender his pistol or vest while conscious. He agreed that he had been able to conduct his business for the last few years without wearing a vest, and would continue doing so if he had to. That did not mean that he felt any more at ease. 22 Mr John Murray, a security consultant from Security Advisory Services Pty Ltd, gave oral evidence by phone. He is a consultant on security and associated occupational health and safety matters and has Occupational Health and Safety qualifications. He is to holder of a master licence under the Security Industry Act 1997. He provided the February 2006 risk assessment. That assessment concluded that Botany Mascot Security required firearms because they are protecting cash and valuables. In his report Mr Murray had noted that the properties patrolled by Botany Mascot Security house a variety goods worth many millions of dollars, including precious metal and stones. His report concluded: "The assessment of the level of risk for Botany Mascot Security during nightly patrols took into consideration the statement that Mr Robinson has been shot during the course of his duties. Using the NSCA calculator the outcome was follows: PROBABILITY: UNUSUAL BUT POSSIBLE EXPOSURE: CONSTANT CONSEQUENCE: SERIOUS RISK: HIGH Most of the work is carried out from public thoroughfares, entering inclosed (sic) lands and therefore it would be unwise to be exact or more specific on an impossibility." 23 Mr Murray said that he had been taken on an external tour of the buildings patrolled by Botany Mascot Security, when preparing his report. He had been provided with letters from building operators confirming Botany Mascot Security's role. None of the letters made mention of there having been any incidents with firearms or of incidents where Mr Robinson's safety was in jeopardy. Mr Murray was aware of Mr Robinson having been previously shot. It was Mr Murray's opinion that as a person looking after property of value Mr Robinson should be able to wear a body armour vest on an occupational heath and safety basis. He said that, if it makes Mr Robinson safer he should have it. 24 In cross-examination Mr Murray said that a lot of security guards wear body armour vest. He agreed that these guards were involved in protecting cash or valuables in transit, not doing security checks on premises. He agreed that the risk to guards undertaking that role could be minimised by the use of back to base alarms. When it was put to him wearing a kevlar vest increases the risk, he said that proposition was "hard to answer". 25 In his risk reassessment Mr Stel wrote: Mr Robison took me to all sites that where nominated in the original assessment, including Customs Bonded warehouse house Matraville, diamond warehouse and French perfume warehouse Botany. He also informed me that since the original assessment there has been a break-in at the Customs Bonded warehouse a prior attempted break-in at the French perfume warehouse. No changes to the patrol runs have been made sins (sic) 09-02-05. The outcome of this assessment is based on the use of the National Safety Counsel of Australia's risk calculator which concludes that the Patrolmen of Botany Mascot Security have the real risk of being confronted by a armed offender: Probability - Possible Exposure - Constant Consequence - Serious Risk - High I fully concur with Mr. Murray's original recommendation and conclusion. Furthermore I believe that there is a genuine reason and special need for the patrol man to be able to wear body-armor." 26 Mr Knight, who appeared as Agent for Mr Robinson, submitted that the possession and use of a body armour vest was necessary in the conduct of Mr Robinson's business. He referred to the Appeal Panels decision in Osborne v Commissioner of Police [2000] NSWADTAP 10. That was a decision concerning the business/employment genuine reason requirements of the Firearms Act 1996, s 12. The Appeal Panel said: 45 … The purpose of the legislation is to reduce the use and possession of firearms in the community. If a broader view were to be taken not only would that lead to a greater number of firearms circulating in the community, but it would tend to mean that types of businesses where a real choice existed as to how they were conducted would be more able to make a claim for the possession of a hand pistol the less safely it was conducted. Such an interpretation would defeat the objects of the legislation. 46 Adopting that approach, our conclusion is that the question of what is `necessary' for the `conduct' of a `business' should be interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application. The business under examination is that of dealing in firearms. The trade involves regulated goods which can be lethal to innocent people if they fall into the wrong hands. The trade often involves the possession of great quantities of these goods, with commensurate value. None of these features in themselves suggest that it is necessary for the conduct of the trade that dealers carry live pistols. The possession of a pistol is not directly required of the business or employment. The position might be different if the business was one of, say, training in the use of pistols or provision of bodyguard services to heads of state. 47 The question this case poses is whether, even though the typical form of the relevant business does not necessitate the carrying of a pistol, the way in which the applicant has chosen to conduct the business means that it is `necessary' for the `conduct' of the `applicant's business' that he be allowed to have a pistol. We do not consider that the provision should be read in this broader way. In the present case Mr Osborne argues that the way he does business, and has done for many years, provides the justification for carrying the pistol. 48 The test should be read so as to focus on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes that business. To accede to the proposition would allow for categories of business that ordinarily have no case for possession and use of a pistol to be conducted in a high-risk way that might found a claim by the operator to have access to a pistol. This would run contrary to the objects of the legislative scheme designed to restrict the circulation of weapons in the community. 27 He submitted that core features of Mr Robinson's business place him at risk of injury or death from criminals. While Mr Robinson is not in a position to eliminate that risk, Mr Knight submitted that, "he is in a position to control the risk to some extent by employing safe working practices and appropriate protective items." He referred to the provisions of the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001 as pointing to an obligation on Mr Robinson to minimise risk by the use of appropriate protective equipment such as a body armour vest. The Commissioner's view 28 The Commissioner relied on an affidavit from Mr Tony O'Donnell the Senior Industry officer, Cash in Transit Industry, of the TWU. He is the TWU representative on the Security Industry Council. He has TAFE qualification in Occupational Health and Safety and Risk Management. In his affidavit he gave details of a survey he had conducted of cash in transit security personnel employed by Chubb security, in which their views as to the wearing of body armour vests were surveyed. The result of the survey, together with his own experience, led him to voice three areas of concern about the wearing of vests by armed security guards. 29 The first, which specifically related to the cash in transit business, involved a consideration of the skills and techniques presently taught to workers in cash in transit, which are designed to enhance worker's ability to survive armed hold ups. These include passive resistance, observation and recording strategies, the use of GPS and emergency duress systems. He expressed the view that without relevant training he considered it "less likely" a worker with or without a vest would survive an ambush situation. 30 Secondly, he pointed to ergonomic factors associated with wearing vests, such as muscular strain, restriction of movements, and thermal retention. 31 Thirdly, he identified risk behaviours which wearing vests may have "on the behaviour of armed guards and that of criminals." He referred to an assessment by Intelligent Risk which found that where "person wear a vest around persons not wearing a vest, there is a heightened threat to those persons not wearing a vest." Criminals may also elect to shoot guards in unprotected areas, and consider that the wearing of vests indicate a greater value of goods being guarded. 32 Mr O'Donnell concluded: "My experience, together with the issues raised in the three areas of concern are sufficient for me to conclude that the use of vests in conjunction with armed security work is inappropriate. The use of vests may also provide an avenue for members of the criminal element to gain access to these prohibited weapons. In their own right, they may become the target of criminal enterprises. In my opinion, they are a sought after item by the criminal element given they are hard to come by can provide protection for criminals in violent confrontations with police security guards and member of the public. I am aware of instances which body armour vests have been used by criminals and have resulted in numerous injuries to a number of police and members of the public. If the above areas of concern with vests could be removed, I am of the opinion that the most effective method to reduce or eliminate the risk of a violent confrontation still remains the prevention of the situations in which armed guard requires a vest…" 33 Mr Pisani, who appeared for the Commissioner, submitted that the use and possession of a body armour vest by Mr Robinson was not necessary in the course of his business. He relied on the decision in Obsorne as indicating the correct approach to be taken in both interpreting and implementing the genuine reason requirements of s 11. He characterised the core feature of Mr Robinson's business as being that of a night watchman or night patrol, and submitted that the use and possession of a vest was not necessary for the conduct of Mr Robinson's business. He submitted that the evidence of Mr Murray was that he was not aware of other security personnel undertaking duties such as Mr Robinson wearing vests. He submitted that on this ground alone the decision to refuse Mr Robinson's application was the correct and preferable one. 34 With respect to the role (if any) of the Occupational Health and Safety Act 2000 Mr Pisani submitted: "It is respectfully submitted that the Occupational Health and Safety Act does not require the provision of a vest to Mr ROBINSON in the course of his duties. The Weapons Prohibition Act 1999 specifically provides for the lawful possession of body armour vests. The Occupational health and Safety Act does not. It is therefore suggested that the Occupational Health and Safety Act cannot override the lawful possession of a body armour vest permitted by the Weapons Prohibition Act. It may even be suggested that the wearing of a body armour vest may create a greater risk to the Applicant to that which he seeks to avert. Were it to be suggested that the Occupational Health and Safety Act requires the provision of a body armour vest to the Applicant, this would be inconsistent with, and contrary to practices adopted by police organisations and the Cash in Transit Industry. Importantly, the owner's of premises or businesses serviced by the Applicant have an obligation pursuant to s8(2) to comply with the Occupational Health and Safety Act themselves. If the Applicant considers the service he provides to them so inherently dangerous, as to require the use of a body armour vest, then all other lawful alternatives should be utilised or canvassed to minimise the risk he perceives. Although, and as stated by the Applicant in his evidence, some client's refused to take alternative measures, it is respectfully submitted that a body armour vest should not be seen as an alternative. It is submitted that preventative measures should be considered the preferred option so that the Applicant is not placed in a situation which he seeks to avoid. It is also submitted that the Applicant's assertion of requiring a body armour vest for psychological needs has no application, as the relevant legislation referred to above determines the test to be applied. In the Applicant's undated submissions received on 20 June 2007, it was suggested that he was shot whilst fulfilling duties consistent with the Security Industry Act which are the same duties he fulfils at present. To the contrary, the Applicant's evidence was that he was shot during the day whilst walking to get his lunch. Mr John MURRAY was not aware of the circumstances of the shooting at the time of preparing his assessment and therefore it could properly be inferred he attached no weight to the particular circumstances but held a general belief that security guards should be allowed to wear body armour vests if they so choose." Consideration 35 What has troubled me about this case, and what I sought submissions from the parties on, is the interaction of the occupational health and safety requirements of the Occupational Health and Safety Act 2000 with the restrictions imposed by the WPA on what is effectively protective apparatus. In the course of submissions I commented to Mr Pisani that the legal fiction created by the WPA of treating body armour as a weapon lay at the heart of my difficulty. It remains so. 36 The Occupational Health and Safety Act 2000 (the OH&SA) extends to all places of work including vehicles, and to work done by an employee or a self-employed person: s 4 and 5. The OH&SA places duties on those controlling premises (in a wide sense provided by the definition of premises in s 4) to ensure they are safe. Chapter 2 of the Occupational Health and Safety Regulation 2001 (the OH&SR) makes specific provisions regarding the identification (cl 9), assessment (cl 10), and elimination or control of risks identified by employers (cl 11 and 12). Importantly for the present purposes cl 4 of the Regulation defines employee to include a "self-employed person in Chapters 2, 4, 5, 6, 6A, 7 and 8." 37 Clause 11 provides, in part: "(1) Subject to subclause (2), an employer must eliminate any reasonably foreseeable risk to the health or safety of: (a) any employee of the employer, or (b) any other person legally at the employer's place of work, or both, that arises from the conduct of the employer's undertaking. (2) If it is not reasonably practicable to eliminate the risk, the employer must control the risk. (3) An employer must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health and safety are properly used and maintained." 38 What is meant by "control" of risk is specifically dealt with by cl 5: (1) For the purposes of this Regulation, an obligation to control a risk to health or safety (in any case in which the elimination of the risk is not reasonably practicable) is an obligation to take the following measures (in the order specified) to minimise the risk to the lowest level reasonably practicable: (a) firstly, substituting the hazard giving rise to the risk with a hazard that gives rise to a lesser risk, (b) secondly, isolating the hazard from the person put at risk, (c) thirdly, minimising the risk by engineering means, (d) fourthly, minimising the risk by administrative means (for example, by adopting safe working practices or providing appropriate training, instruction or information), (e) fifthly, using personal protective equipment. (2) A combination of the above measures is required to be taken to minimise the risk to the lowest level reasonably practicable if no single measure is sufficient for that purpose. (3) Any obligation in this Regulation to control a risk by taking specific risk control measures, or by taking specific risk control measures in a particular order, is in addition to the obligations referred to in subclauses (1) and (2). Note. For an example in which the above clause applies, see clause 11 (general obligation of employers and self-employed persons to eliminate risks or, if not reasonably practicable to do so, to control the risk). 39 Where two or more person have responsibilities "with respect to a particular occupational health and safety matter," each retain that responsibility, which is to be discharged in a co-ordinated manner: cl 8. 40 Clause 15 makes specific provisions regarding protective equipment. It provides: "(1) If measures taken by an employer under clause 11 (2) to control a risk include the use of personal protective equipment, the employer must provide each person at risk with personal protective equipment and ensure that: (a) the equipment provided is appropriate for the person and controls the risk for that person, and (b) the person is informed of any limitations of the equipment, and (c) the person is provided with the instruction and training necessary to ensure that the equipment controls the risk for the person, and (d) the equipment is properly maintained and is repaired or replaced as frequently as is necessary to control the risk for the person, and (e) the equipment is provided in a clean and hygienic condition to the person, and (f) the equipment is stored in a place provided by the employer for the purpose, and (g) areas in places of work where personal protective equipment must be used are clearly identified. Maximum penalty: Level 3. (2) In this clause, personal protective equipment includes any substance used to protect health (such as a sun protection cream). Note. Reference should also be made to any relevant Australian Standards relating to the provision and use of personal protective equipment." 41 It is incumbent on Mr Robinson as the owner operator of Botany Mascot Security to ensure that risks he faces as self-employed person in operating his business are identified and assessed, and then eliminated or controlled. This applies to all reasonably foreseeable risks: cl 11. If a risk cannot be reasonable eliminated, it is to be controlled by a combination of some or all of the measures set out in cl 5. Mr Robinson identifies two reasonably foreseeable risks: one is the risk of being shot or knifed in the course of his duties. The second is a risk peculiar to him. That of psychological injury due to his feelings of insecurity and vulnerability while undertaking his duties without a vest. He says that his experience of being shot makes him particularly vulnerable to this. He has not, however, produced any expert medical or psychological evidence demonstrating this. 42 Mr Pisani correctly submitted that the provisions of the OH&SA do not override the provisions of the WPA. There is no apparent inconsistency between the provisions of those Acts which require a consideration of whether there has been an implied repeal. Rather, the two statutes are easily reconciled. The presumption that two laws made by the one legislature are intended to work together is not displaced: Ferdinands v Commissioner for Public Employment [2006] HCA 5 at [49] per Gummow and Hayne JJ. 43 I accept the Commissioner's submission that the business/employment genuine reason provision of s 11 of the WPA should be interpreted in a similar fashion to that which the Appeal Panel, in Osborne, found applied to the genuine reason requirements of the Firearms Act 1996. The correspondence between the wording of those provisions is patent, as is the similarity in the objects and principles of both Acts. As a result, in considering an application for a general permit under the WPA for the genuine reason of business/employment, the question of what is `necessary' for the `conduct' of a `business' should be "interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application:" Osborne at [46]. 44 In my opinion, a core feature of any business operating in NSW is ensuring a safe working environment for its operators and employees in compliance with the OH&SA. Compliance with the requirements of the OH&SA is a core feature of the business of Botany Mascot Security, and of all security businesses providing similar services. 45 That being so, the issue then is whether the provision of a body armour vest is required to control the risks identified in the course of that work. Here a question arises as to how far, or to what level, the objective examination of what is necessary for the conduct of the type of business under consideration called for by the decision in Osborne goes. The difficulty which I perceive, is that while the OH&SA clearly requires an objective, systemic analysis in identifying and assessing, and then eliminating or controlling risk, it also requires the that reasonably foreseeable risks specific to an individual business, and those who work for it, be identified, assessed, eliminated or controlled. The systemic analysis illustrated by Mr O'Donnell's evidence is an example of the former, while Mr Robinson's concerns about risks associated with his particular psychological vulnerability illustrate the latter. How is the objective, "type of business" approach to ascertaining the core functions of a business set out in Osborne, to be reconciled with the specific, reasonable foreseeable risk obligations of the OH&SA? 46 In such circumstances the assumption that the WPA and the OH&SA are not intended to be contradictory referred to in Ferdinands v Commissioner for Public Employment comes into play. Every effort should be made to reconcile the provisions (see Pearce & Geddes, Statutory Interpretation in Australia, 6th Ed, Butterworths 2006 at 275.) In my opinion, this is best achieved by holding that compliance with the OH&SA is a necessary core feature of businesses of the type conducted by Botany Mascot Security, while acknowledging that what is required of a business to comply with those requirements will depend on circumstances specific to the business. 47 Thus, where it is claimed that the use and possession of protective equipment, which is a prohibited weapon, is necessary to the conduct of a business in its core function of providing a safe working environment, then an examination of circumstances specific to the business is required. That examination should be addressed to the question of whether the use and possession of the protective equipment (prohibited weapon) is required to control the risks identified under the OH&SA. This, in turn, will require a risk analysis to be undertaken in accordance with the OH&SA and oh&sr. 48 As noted above two risks were identified in Mr Robinson's submissions. 49 The first is a more general risk, associated with the nature, type and place of his business, that he will be shot or knifed while on patrol. This is a risk similar to that which other security personnel undertaking similar duties face. It is one that I accept he cannot eliminate, but which he can take action to control. 50 The second is the risk Mr Robinson suffers of experiencing a psychological injury as a result of the discomfort and unease he feels when going about his work, because of his prior experience of being shot. 51 Among the materials before me are two risk assessments undertaken by Mr Murray and Mr Stel both of which appear to be addressed to Mr Robinson's need to carry a firearm, rather than a need for the provision of a vest. Indeed the requirement for a vest appears only in Mr Stel's report, and then is mentioned as almost an afterthought. Mr Stel has not given any statement of his qualifications which would enable me to be satisfied that he has the requisite expertise to conduct such an assessment. Mr Murray's report was similarly deficient, although that deficit was in some part remedied by his oral evidence. 52 This Tribunal "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice:" s. 73(2) Administrative Decision Tribunal Act 1997. While armed with the procedural flexibility vested in it by s 73, the Tribunal is none the less required make its finding based on "logically probative material" and "not on mere suspicion or speculation:" Minister for Immigration and Ethnic Affairs v Pochi [1980] 44 FLR 41 at 67 per Deane J. 53 Recently, in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, the Court of Appeal considered how the Workers Compensation Commission (whose legislation contains similar provisions) should approach the task of assessing expert evidence. McColl JA, with whom Giles and Tobias JJA agreed, said: "129 Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not : Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 at [32] per Mason P (Handley JA and Campbell J agreeing) 130 In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 at [84] I said (Mason P and Beazley JA agreeing) that "[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it". In so saying, I referred with approval (inter alia) to Heydon JA's analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper's statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that: "... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert." 131 This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that "[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary" ( Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. …" 54 The Court of Appeal there made it clear that expert reports in a forum such as this Tribunal, which is not bound by the rules of evidence, should nonetheless comply with the common law standards of admissibility to ensure they have probative value. 55 The conduct of risk assessments in occupational settings is recognised as a specialist field of study. It requires special skill and knowledge. The common law standards of admissibility of expert evidence apply to risk assessments. One of those standards is that the person's qualifications for stating the opinion be clear. In the absence of such a statement from Mr Stel I am not prepared to treat his report as an expert report. I therefore give it no weight. 56 Mr Murray assessed Botany Mascot Security's as being constantly exposed to serious consequences and at high risk. He put the probability of being confronted by an armed offender as possible, but unusual, and declined to speculate on impossibility. He did not disclose how he reached that conclusion. He did not discuss or advise on any alternate strategies for the control of risk as required by the OH&SR. There is no mention in his report of the use of lighting, of CCTV, of back to base alarms on all buildings, or of training of patrol personnel as means of controlling risk. He had, however, seen the work undertaken by Mr Robinson. He agreed that he did not know of other patrol men who wear vests. When taken to the bare bones his opinion as to the desirability of Mr Robinson being able to wear a vest was based on his conclusion that if it made Mr Robinson safer, he should have it. He did not explain why it made Mr Robinson safer. He had undertaken no analysis of available alternative strategies, or weighed the risks or benefits associated with their use, with or without the use of body armour vests. As such Mr Murray's opinion is redolent of the "bare ipse dixit" in Makita v Sprowles, in that it contains assertions without substance. 57 Mr O'Donnell in his affidavit provided details of his qualifications. Unlike Mr Murray he did refer to alternate strategies, and considered the risks and benefits associated with the wearing of body armour in some detail. Unlike Mr Murray, he had not had the benefit of considering Mr Robinson's actual business and of seeing and assessing what risks it involves. Thus while providing a better industry wide overview of the relevant consideration's Mr O'Donnell's assessment is deficient in that it has not considered the specific risks relevant to the operations of Botany Mascot Security. 58 The evidence of an objective systemic risk analysis of the occupational health and safety requirements of Mr Robinson's business is therefore deficient. While I find the wider systemic considerations propounded by Mr O'Donnell to be legitimate and persuasive, his failure to consider factors peculiar to Mr Robinson's business, leads me to decline to adopt his opinion. 59 As a result of these considerations there is a dearth of evidence on the question of whether the general risks associated the work undertaken Mr Robinson's business require the provision of a body armour vest, as protective equipment under the occupational health and safety regime. I am not satisfied, on the material before me that there is such a requirement. 60 With respect to the risk of psychological injury to Mr Robinson, there is no expert evidence going to Mr Robinson's vulnerability to the risk of psychological injury. There are no psychiatric or psychological reports addressing that issue. Assertions by Mr Robinson, or from the bar table, are not sufficient to prove these matters which require medical or psychological expertise: Makita v Sprowles; South Western Sydney Area Health Service v Edmonds. Those assertions are at odds with the fact that Mr Robinson has now been conducting regular nightly patrols for some year without wearing a vest. I note that were this risk properly demonstrated, I would expect a risk assessment to consider the desirability of Mr Robinson continuing to undertake the work, in the context of a discussion as to whether the risk could be eliminated or controlled. 61 As a result of my examination of the material concerning whether the use and possession of a body armour vest, as protective equipment, by Mr Robinson is required to control the risks identified under the OH&SA, I am not satisfied Mr Robinson requires a vest. 62 It follows that I am not satisfied that the possession and use of a body armour vest is necessary to the conduct of the core functions of business of the type of Mr Robinson's. As a consequence I agree that Mr Robinson not demonstrated that he had a genuine reason for the use and possession of a body armour vest for business employment purposes. 63 That said it remains to consider whether Mr Robinson has demonstrated a genuine reason for possessing a body armour vest under s 11(3) of the WPA. This provision was not considered by the internal review officer. It provides: The possession or use of a prohibited weapon for personal protection, or for the protection of any other person, is not a genuine reason for the possession or use of the weapon. However, any such reason may constitute a genuine reason in the case of a prohibited weapon referred to in clause 4 (1) of Schedule 1 or in the case of a prohibited weapon that is of a kind prescribed by the regulations for the purposes of this subsection. A body armour vest is a prohibited weapon referred to in clause 4 (1) of Schedule 1. 64 On its face this provision provides that personal protection is a genuine reason for the use and possession of a body armour vest. It is not tied to or reliant on a positive finding that any of the genuine reasons in the Table to s 11 exists. It has an independent existence. 65 Personal protection is the very heart Mr Robinson's application for a general permit for a body armour vest. The material presently before me, however, does not demonstrate a case that Mr Robinson requires a vest for personal protection. While Mr Robinson and Mr Knight have asserted that is the case by reference to past events, there is, in reality, no persuasive evidence pointing to there being a real risk that Mr Robinson requires a body armour vest to protect him from. Mere assertions of a requirement for a vest on a personal protection basis are insufficient to justify a decision to issue a general permit, in the light of the objects and principles of the WPA. These make it clear that the overriding public interest in ensuring public safety, and providing strict control on the use and possession of prohibited weapons, requires that applicants for prohibited weapons permits satisfy strict requirements in demonstrating their genuine reasons for their possession and use of such weapons. Conclusion 66 The decision to refuse Mr Robinson's application for a general permit authorising him to use and possess a body armour vest 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.