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[2014] NSWCATAD 46
NCAT Administrative and Equal Opportunity
2013-09-02
Original judgment source is linked above.
The applicant's associates 42In the applicant's firearms dealer's licence application the applicant was nominated as the licence holder for the business. Mr W was nominated as a close associate of the business. At the hearing though, the applicant gave evidence that Mr K was a close associate, not Mr W. The applicant was asked about Mr K. He said it is a '50/50 partnership'. He explained that Mr K had put up the money for the business, but he, the applicant, does more hours at the shop. He understood Mr K to hold a firearms licence and that he has no criminal record. He said, other than putting up the money, Mr K is not involved in the business. He may come by 2-3 times a week. There was no evidence that Mr K was adversely known to police. 43On 10 May 2012 Sgt Havord conducted an inspection of the premises and questioned the Applicant about his need for 21 additional pistols. The Applicant told Sgt Havord that he had a dealer friend and he was in a position to acquire pistols at a cheap price. 44When interviewed on 1 July 2012 after the robbery the applicant told Police that the firearms had been purchased from Mr C. On 16 July 2012 the applicant spoke to Const. Singh and told him that he was struggling financially. As a result, the constable issued a report to the Firearms Registry raising his suitability to continue to hold a firearms licence. During that conversation the Applicant told the Police about his past association with Mr C who, according to Const. Singh, has been responsible for multiple breaches of the Act and has had his licence revoked. The Applicant allegedly told the constable that he was happy to have Mr C work for him should he obtain a firearms dealer's licence. The applicant denied that he had told Const. Singh that. 45In his evidence Const. Singh said he understood the Applicant's intention was for Mr C to work at his, the Applicant's, premises. Although there may have been some misunderstanding as to the precise words used, Const. Singh understood the applicant to have said that Mr C wanted to work for him and was happy to have him in that role. He thought the applicant was trying to demonstrate that he had arranged staff for the business. When interviewed, the applicant reportedly said that Mr C was going to work for him, but in his evidence he denied he had ever said that. He noted that at the time of the interview he was heavily medicated, as the interview was conducted shortly after the robbery during which he was assaulted. I observe that the transcript of the interview is very disjointed, which would tend to support his contention. In his evidence the applicant said Mr C had expressed no interest in working in the shop, and neither does the applicant have any interest in having him in the shop. In his evidence the applicant said that Mr C is now unwell with a serious illness. The applicant said he thought Mr C was an 'expert on guns' and they communicated well. He thought Mr C could help him, for example, if a gun jammed. He thought it was possible that Mr C had offered to work for him. It appears from further comments in the interview though that he continued to seek out Mr C for advice, but at that time, had not seen him for about 3 weeks. 46Mr C was subsequently charged with significant breaches of the Act. While he knew Mr C had been arrested, the applicant said he was unaware if Mr C associated with criminals. There was no evidence that the applicant had previously known of Mr C's activities. I accept the Applicant's evidence that once he became aware of Mr C's criminal history he "backed off" from his proposed business association with Mr C, although he may have proposed to seek technical advice from him. As it transpires, the relationship appears to have cooled. 47I find that there is no person who is a close associate, as defined, of the applicant as it is the Applicant who will be primarily responsible for the management of the business. Even if it could be said that Mr K is a close associate, there is nothing adverse known of him that would suggest he is not a fit and proper person. As to Mr C, he has no financial interest, nor was there evidence that he is a position to exert any influence with respect to the conduct of that business.
Fit and proper person 48The task for the Tribunal is to determine if the applicant is a fit and proper person who can be trusted to deal in firearms. The phrase 'fit and proper person' was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9] where the term was considered to involve honesty, knowledge and ability. 49In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [36] the High Court said: The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. 50Further, whether a person is a fit and proper person involves a value judgment to be made in the context of the particular activity to be licensed. Where there is evidence of misconduct, amongst relevant considerations are the seriousness of the misconduct to the particular activity, whether the misconduct is an isolated incident, and the person's underlying qualities of character: at [66]. 51In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said that in considering whether an Applicant is fit and proper: ...The Applicant must show not only that he is possessed of the requisite knowledge of the duties and responsibilities evolving around him as the holder of a particular licence ...but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails. 52The Respondent submitted that this is particularly relevant in the context of a person wanting to hold a firearms dealers licence especially where the Applicant has, over a period of time, attempted to mislead the Commissioner so that he can acquire a significant number of pistols. It was submitted that the Applicant had demonstrated in the applications that he had made to the Commissioner that he is not fit and proper to hold a licence and that the applications made on 30 January 2012, 9 February 2012 and 22 February 2012 were an attempt to circumvent restrictions that were identified to him by the club captain. The Applicant admitted to the Police why he had completed the applications in that way, but only after he had been asked for an explanation. 53The applicant tendered a number of character statements. Most related to his role as a security manager and spoke of a high degree of integrity and responsibility. Two of the references were from serving police officers who had known him for a number of years in that capacity. Another police officer who has also known the applicant for several years gave similar character and other evidence on his behalf. 54I note that the Applicant is otherwise considered by the Respondent to be a fit and proper person to hold personal firearms licence and also a security licence. As recently as March 2013 his firearms licence was re-instated. I accept that he has proven himself to be a responsible licence holder. The Applicant seeks a licence to be a firearms dealer, the responsibilities of which are significant. Only persons who understand the strict responsibilities of a firearms dealer and demonstrate that they willing and able to comply and undertake the role in accordance with the Act should be issued with such a licence. A licence allowing a person to be a dealer must only be granted to a person that is fit and proper and in circumstances where the issue of such a licence is not against the public interest. I have come to the view that the applicant is such a person.
Public interest and conclusion 55It remains to consider the public interest. 56In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, the Appeal Panel said, in the context of the licensing regime for the security industry, that the public interest is an inherently broad concept giving the Commissioner, and the Tribunal on review, the ability to have regard to a wide range of factors in choosing whether to exercise discretion adversely to an individual: at [25]. 57The 'public interest' allows, a consideration of issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16. 58The underlying principles of the Act stated in s.3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23]. 59I acknowledge that a firearms licence is a privilege and not a right. The Applicant's individual interest in obtaining his licence is subordinate to the public interest in ensuring public safety: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at [681]. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25]. 60In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28] ('Ward'), DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would not pose any risk to public safety. The Respondent contended that the Tribunal cannot be satisfied that there is virtually no risk when considering the whole of the circumstances of this matter. 61A relevant consideration in the context of this matter is the nature of the licence sought, the activities that the licence will authorise and the nature of risks to public safety that arise when a licence is issued. The conduct of the Applicant is of particular relevance to the administration of the firearms licensing system and the Respondent submitted the Applicant's conduct demonstrates that it is not in the public interest for the Applicant to be provided the privilege of a firearms dealers licence. 62I have found that there no person who is a close associate of the applicant who is not fit and proper to hold a firearms dealers licence or who may exert influence over the applicant in the business. I have also found that, on balance, the premises are suitable for use as a firearms dealership. 63While the applicant has been involved in violent confrontations I do not accept that this necessarily leads to a conclusion that he, in particular, may be targeted by criminals. Notwithstanding the principle of Ward, in my view, any firearms dealership, especially if it sells firearms considered attractive by the criminal milieu, is at risk. Inevitably this would lead to the absurd result that there could be no such dealerships. 64I accept that the applicant previously demonstrated lack of understanding of the responsibilities and obligations as a holder of a firearms licence. I have accepted his explanation in relation to his applications. I have also accepted that while the applicant completed a number of firearms applications incorrectly, he had informed police he was collecting the firearms for the purpose of his business. 65I also have accepted that the applicant could easily have disposed of the rusted air rifle without advising police but chose otherwise, and to me, this demonstrates an understanding of his role with respect to firearms. 66I have placed significant weight on the references that were provided on behalf of the applicant. 67I understand there is another firearms dealership nearby. Whether the applicant's business may be viable is not a consideration for me. 68In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant to be refused a firearms dealer's licence.
DECISION 69The decision under review is set aside. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 14 April 2014
Joseph
Commissioner of Police NSW Police Force
Relevant Legislation 4The general principles of the Firearms Act 1996 ('the Act') are set out in s.3: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) .... ... 5Section 11(3) of the Act, in setting out restrictions on the issue of licences, provides, relevantly: ... (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace 6Section 11(7) of the Act prescribes that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. 7Section 11(8) of the Act prescribes that the Firearms Regulation 2006 (the Regulation) may provide other mandatory or discretionary grounds for refusing the issue of a licence. 8Clause 37(1)(b) of the Regulation prescribes a firearms dealer licence that authorises a firearms dealer to carry on business at specified premises must not be issued unless the Commissioner is satisfied that those premises are suitable for carrying on the business of a firearms dealer. 9The Act also identifies the important part that firearms dealers play in the administration of the firearms system by imposing significant requirements, over and above the requirements imposed on those that hold firearms licences. For example, a holder of a firearms dealers licence is required to record specific information in respect of all transactions and dealings concerning firearms to which the licence relates: s.45(1)(a) and (2) and to provide quarterly returns of all transactions and dealings in the previous quarter: s.46, and make available for inspection by a police officer at the premises to which the licence relates all the firearms that are in his/her possession: s.19 and cl. 40 the Regulation. 10A firearms dealer's licence authorises not only the individual named in the licence but also its employees: cl. 43 of the Regulation. The Commissioner, and Tribunal on review, must not issue a licence if of the view that a close associate of a firearms dealer is not fit and proper to hold a firearms dealers licence or that the Applicant will not be the person primarily responsible for the management of the business. A close associate is, in effect, a person who holds a financial interest and by virtue of that interest is able to exercise a significant influence with respect to the conduct of that business: s.4B. 11Section 63 of the Administrative Decisions Review Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
(1955) 93 CLR 127
(1990) 170 CLR 321
(1995) 131 ALR 657