Ping Kee v Commissioner of NSW Police Force

The premises

1. The Tribunal was assisted by a view of the premises. The Applicant's firearms storage area is a storage shed at the rear of the premises ("the shed"). The Applicant provided this summary of the layout of the premises and the security equipment that has been installed in them. I do not understand that this evidence is in dispute and I accept it as a generally accurate summary of the facilities: The retail premises are located at 126 Heber Street, Moree. The shop front faces Heber Street. There is one entry into the Business. Fish and tackle equipment is located in the main area as you walk into the retail premises and there are two security cameras. There is a separate room to the left of the entrance that is a display room for hunting gear which has two security cameras. There is an exit at the back of the retail premises which has a walkway that leads to a storage shed which is fully secured and has passed police inspections on seven (7) previous occasions. The storage shed has one sliding door for entry which is padlocked. The padlock has an anti-tamper device and is steel lined. There are also sensors on the entrance to that shed. There is also a roller door at the back of the shed which has steel lugs welded to the base of the roller door and screwed into the concrete. The roller door cannot be accessed from the outside in any way. Inside the storage shed there are various vaults and secured storage rooms which contained the bulk of the firearms and ammunition. Only one storage room, which appeared to be the reason for the charge, had a window with frosted glass and parallel security bars across it, similar to prison bars. The window was kept locked and the outer side of the window had steel mesh bolted to the wall of the storage shed covering the window. There is a sensor in the room facing the window. I have since put a steel plate across the window so now the window is completely blocked off. In addition to the measures above, the overall security for the Business premises included: a) four (4) security cameras in the shop display and retail area; b) a perimeter fence consisting of corrugated iron and heavy mesh exceeding two (2) meters in height and topped with rows of barbed wire; c) back to base electronic sensor alarms directly covering the door and window area for the storage shed; d) heavy duty concrete reinforcing mesh covering the exterior of the building and window for both the storage shed and retail business; e) double locks on the door entry to the storage shed and rooms within that shed with hardened anti-tamper covers covering the locks; f) a steel lining on the door itself. I understand that nothing is impenetrable; however anyone who wanted to break into the Business and steal firearms would have to go to considerable lengths to do so in light of the security measures I have put in place. …
2. The Applicant confirmed that the security arrangements included three set motion detectors; separate multiple programmable zones on entire premises; four zones and single zone triggers; CCTV; outside alarm system; entry key pad; and duress buttons. Doors and windows have perimeter switches. The front of the premises has motion detectors with a line cut system so that it still operates if power goes off and if the phone line is cut. The Applicant engaged a night watchman to patrol and check on the shop.
3. The Applicant explained that when the alarm is activated on the premises, it notifies the base in Tamworth. The police, the Applicant and the night watchman in Moree are then informed that the alarm has been activated.

Issues for the Tribunal

1. The Applicant has applied to the Tribunal for review of two determinations - the decision to revoke his firearms dealers licence and the decision to revoke his personal category ABC licence.
2. The issue for the Tribunal to determine is whether it is against the public interest for the Applicant to hold either or both of the licences.
3. As noted, there is no issue about the Applicant's character and there is no question over the Applicant's fitness or propriety to hold a licence.

The applicable legislation

1. The relevant legislation concerning the licensing, use and safekeeping of firearms is the Act and the Firearms Regulation 2006 ("the Regulations").
2. The underlying principles and objects of the Act are set out in section 3 which provides: 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 supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
3. Section 11 places general restrictions on issue of licences. It provides: (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. ... (3) A licence must not be issued unless: … (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
4. Section 24 of the Act provides for the revocation of a licence: 24 Revocation of licence ... (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) … (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or … (d) for any other reason prescribed by the regulations. ...
5. Clause 19 of the Regulations provides: The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
6. Clause 37 of the Regulations provides: 37 Additional restrictions in relation to issuing firearms dealer licences (1) 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: (a) the applicant is carrying on or proposes to carry on the business of a firearms dealer at those premises, and (b) those premises are suitable for carrying on the business of a firearms dealer. (2) In considering whether or not premises are suitable for such purposes, the Commissioner is to have regard to the following: (a) the nature of the activities proposed to be conducted on the premises, (b) the kinds of firearms to which the licence relates, (c) whether adequate provision has been made for the safe keeping of firearms by means of a safe or strongroom or otherwise, (d) the security of the premises against unauthorised entry, (e) in the case of a licence that authorises the testing of firearms on the premises-whether an efficient bullet recovery box or bullet stop is provided on the premises.
7. Part 5 of the Act imposes special obligations on a firearms dealer. Section 45 provides: 45 Recording of transactions (1) A licensed firearms dealer must ensure that: (a) all transactions and dealings concerning firearms or firearm parts to which the firearms dealer's licence applies are recorded in accordance with this section, and (b) each record relating to a transaction or dealing concerning a firearm, a spare barrel for a firearm, a firearm frame or a firearm receiver is, in accordance with the regulations, sent to the Commissioner for inclusion of the particulars in the Register and in order to update the Register.
8. Subsections 45(2) - (7) set out the particulars that must be recorded and other record keeping requirements.
9. The Tribunal's jurisdiction to review the Commissioner's decision to revoke the licence is pursuant to section 75 of the Act and the provisions of the Administrative Decisions Review Act 1997 ("the ADR Act").
10. Pursuant to section 63 of the ADR Act the Tribunal is to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, and may exercise all of the functions conferred or imposed on the Commissioner. The Tribunal is confined to making decisions which were available to the Commissioner at the time that the decisions under review were made. In determining the Application, the Tribunal may affirm, vary or set aside the Decision or remit it to the Commissioner for reconsideration.
11. The issue of public interest applies equally to the ability to continue to hold an individual firearms licence as to the ability to operate a firearms dealership. Nevertheless, these are separate decisions and therefore separate findings are necessary: see my decision in Pennington v Commissioner of Police, New South Wales Police [2004] NSWADT 44 at paragraph [42].

The material before the Tribunal

1. The Commissioner has produced a bundle of documents as required by section 58 of the ADR Act. This material concerns both the Applicant and the Business.
2. The Commissioner also relies on statements by Senior Constable Wayne Jackson of the NSW Firearms Registry and the Moree Licensing Sergeant, Sergeant Henry Trow.
3. The Applicant relies on his own statements and a bundle of character references. As noted, his character is not in issue.
4. Each of the witnesses gave oral evidence and was cross-examined.
5. The Tribunal also had the benefit of viewing the premises. The question of whether the premises satisfy the safe storage requirements is relevant to the public interest argument. The Commissioner has published the Fact sheet for Level 7 Safe Storage requirements for Firearms Dealers. This Fact sheet, titled "Firearms Dealer Safe Storage - Level Seven Premises & Safes" ("the Level 7 Fact Sheet"), sets out the matters that the Commissioner believes are necessary for the adequate provision for safe keeping and the security for premises and safes for a firearms dealer. The Level 7 Fact Sheet is in evidence. Both Senior Constable Jackson and Sergeant Trow are of the view that the premises do not comply with the Level 7 safe storage requirements.

The public interest

1. The concept of the "public interest" has been considered in numerous matters before this Tribunal and the former Administrative Decisions Tribunal. Senior Member Ransome recently considered various authorities that have dealt with the concept in Crowther v Commissioner of Police, NSW Police Force [2017] NSWCATAD 62: 43 In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) ALR 657, it was stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the 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." 44 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said that the "public interest": "…is an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual." 45 In Cusumano v Commissioner of Police [2001] NSWADT 50, Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act." 46 Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety: "27 The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 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 that there is virtually no risk." 47 It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30. Responsibilities extended to 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 [2005] NSWADT 75 at [25]. 48 In Vella v Commissioner of Police, NSW Police Service [2003] NSWADT 91 it was stated that the principal issue in matters where there has been a failure to store firearms safely is whether there is a risk to the safety of the public if the applicant retains the licence. It is, of course, trite to say that a failure to store firearms properly may have catastrophic consequences. The respondent has referred to the case of Rosenboom v Commissioner of Police [2006] NSWADT 10 where the applicant left a firearm unattended for a short time and the applicant's son killed himself.
2. The Appeal Panel recently considered the concept of the "public interest" in Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44. The Appeal Panel stated at paragraphs [34] - [36]: 34. We agree with the submission for the Commissioner that a finding that a person is not of fit and proper character to hold the type of licence under notice would necessarily also mean that it would be contrary to the public interest to allow the person to hold the licence. 35. Equally there can be cases, and this is an example of that kind, where the material might be problematic in relation to the question of fitness but strong in relation to the public interest. A person may not be so lacking in fitness as to warrant the conclusion that he or she is not a fit and proper person to hold the relevant licence. But nonetheless there may be matters in the material considered in that regard that properly found a case for denial of the licence in the public interest. There is no problem, as we see it, in an administrator (or the review tribunal) differentiating in that way. 36. It does not follow that because a person is 'fit' to hold a licence, that therefore it must also be in public interest for the person to hold the licence. The 'public interest' enables a range of factors some of which may be specific to the person (personal associations, health considerations, and so on) and others of which may be external to the person (need for more licences in a particular geographical area, number of licences already held, risks of penetration by criminal elements, and so on) that might militate against grant of a licence.
3. That view is relevant to the circumstances of this matter. The Applicant's fitness and propriety is not in question. However, a separate determination must be made as to whether or not it would be against the public interest for him to continue to hold the Licences.

The Level 7 Fact Sheet

1. The Commissioner has significant concerns about whether the Applicant is able to meet and comply with the strict requirements imposed by the Act. The Commissioner holds the view that the standards outlined in the Level 7 Fact Sheet are a guide to the relevant standards that must be met to satisfy the requirements of the legislation. However, the Level 7 Fact Sheet states that "information provided in the FACT Sheet is for general guidance only".
2. Included in those standards are the following requirements:

• the premises must be suitable for carrying on the business of a firearms dealer. To be considered suitable, the premises must be a permanent structure with secure locks on all openings.
• All external walls of the premises must be of solid construction consisting of concrete, brick or steel.
• All perimeter doors must be of solid construction (i.e. solid core doors), securely hinged in hardwood or steel framework and fitted with mortise locks or deadlocks.
• All perimeter windows and roof skylights must be fitted with either external or internal security grilles.
• Premises must be fitted with an installed intruder alarm system with movement/motion detectors and off-site 24 hour monitoring.
• All firearms must be secured in a manner to prevent their removal except by the dealer or authorised employee.
• Where a safe or strongroom is used for the safe keeping of firearms the safe or strongroom must be adequate for the task.

1. In relation to Vaults and Strongrooms the Level 7 Fact Sheet notes:

• A vault or strongroom is a room wholly enclosed within the firearms dealer premises.
• All walls of the vault/strongroom must be of solid construction and be of reinforced concrete, double brick or steel.
• There must be a single entry point to the vault/storeroom with a door of at least 75mm thickness. The door must be manufactured from heavy steel with hardened plate over all lock areas.
• The door frame must be of at least 6mm steel and fixed to the structure of the room and floor by at least 6 expanding bolts 90mm long and 10mm diameter minimum.
• Locks to the vault/strongroom must be constructed of solid metal secured by a six lever key lock or other equivalent locking mechanism or a keyless lock. Time delay locks are preferable.

1. As noted above, the Commissioner relies on the evidence of Senior Constable Jackson and Sergeant Trow in regard to the concerns in regard to the premises' compliance with the requirements of the legislation.

Evidence of Senior Constable Jackson

1. Senior Constable Jackson gave evidence in regard to his attendance at the premises on 13 December 2013 and the observations that he made of the premises on that day. He conducted a dip sample of the Applicant's collection. He made observations regarding the Applicant's record-keeping and the manner in which the firearms were stored and these gave rise to the charges referred to above.
2. In regard to the premises, he noted that the Applicant's vault appeared to be of solid masonry construction and appeared to be the most secure facility on the premises. He did not inspect the Applicant's cool room where other firearms were stored.
3. Senior Constable Jackson does not consider that the shed complies with the Level 7 Fact Sheet requirements. The shed is made of corrugated iron sheets and not of solid construction. Senior Constable Jackson's view is that this does not meet the requirements for the outer structure because it could be dismantled using regular hand tools. The Rio Mesh on the external wall of the shed can be easily cut with bolt cutters.
4. Further, he does not consider that the Applicant's vault complies with the Level 7 Fact Sheet requirements because, while the vault is of solid construction, it is contained within the non-compliant outer structure.
5. In Senior Constable Jackson's opinion, the shed could be made compliant by building an external wall to an acceptable standard.
6. However, even if the Applicant made the external portion of the shed compliant with the Level 7 requirements, and only uses the vault to store firearms, the Commissioner is still concerned about the willingness or ability of the Applicant to comply with the strict requirements placed on a firearms dealer.
7. An audit of the Applicant's records following Senior Constable Jackson's inspection revealed that fifty two firearms were missing. The Applicant was unable to provide an explanation as to where the firearms were located. Further checks reduced the number of unaccounted for firearms to fourteen.
8. In Senior Constable Jackson's opinion, the missing firearms would not have been handed into the Police as part of an amnesty as the Police would have recorded the firearms as being destroyed. He provided two possible explanations for the discrepancy: a. the Applicant disposed of the firearms without properly accounting for them; or b. the Applicant disposed of the firearms or they were lost or stolen without the Applicant being aware of when the disposal, theft or loss occurred.
9. The Commissioner contends that the Applicant's approach to recording of transactions with firearms played some part in the loss of the firearms. The Commissioner contends that the Applicant's failure to properly account for the firearms is a matter of the upmost significance. The labelling of firearms is a requirement under the Act and it is an important part of the business of a firearms dealer. The specific entry in the register maintained by the Applicant allows firearms to be identified and tracked.

Evidence of Sergeant Trow

1. It is common ground that Sergeant Trow's investigation led to the charges that were referred to above. The Sergeant gave evidence of his observations regarding the premises, the Applicant's storage of firearms and the deficiency in the Applicant's labelling of firearms. For example, the Applicant used poor quality labels, some of which had fallen off the firearms.
2. It is not in dispute that Sergeant Trow had previously inspected the premises and passed them as being compliant with the safe storage requirements. Sergeant Trow has subsequently undertaken a firearms licensing course and with the benefit of that additional training and knowledge he is now of the opinion that the premises do not comply with the safe storage requirements.
3. He was of the view that in order to meet the safe storage requirements there would need to be upgrades to the premises. This would include an upgrade to the security system, the eastern and northern corrugated iron walls and the sliding door. More secure locks to the cement vault door and the sliding door would be required. In addition, the firearms would need to be stored in the masonry vault.

The Applicant's case

1. The Applicant provided statements and also appeared at the hearing and was cross-examined. He gave evidence of the circumstances that lead to the charges as well as the impacts that the revocation of the licences have had on him personally as well as on the Business. The Business has suffered financially. He fears that if he is unable to regain his firearms dealer licence that he will eventually have to close the shop. In addition to the financial impact, the revocation of his personal firearms licence means that he can no longer do one of his main recreational activities, clay target shooting, and because of that he has not fired a shot since December 2013.
2. His evidence is that he was not aware of the Level 7 Fact Sheet requirements prior to the December 2013 inspection but points to the fact that the records and security of the premises were found to be compliant with the legislative requirements on each occasion on which they had been inspected. No mention was made of discrepancies or non-compliance with the legislative requirements after Sergeant Trow undertook the inspection in May 2013. Prior to the December 2013 inspection he was under the impression that the Business met the legislative requirements.
3. He provided evidence of the security measures that are in place at the premises. I have referred to that evidence above.
4. The Applicant's annexed to his statement a bundle of character references which were tendered on his behalf in the Local Court proceedings. References were provided by: Mr. Mark Winter; Mr. Dean Jagers; Mr. Mark Coulton MP; Mr. Kevin Humphries MP; Mr. Frank O'Neill; Mr. Charles Tattam; Mr. Paul T. Tattam; Mr. John Mulligan; and Mr. David Schultz.
5. As I have previously note, the Applicant's character is not in issue. I note the comment by the Local Court Magistrate who stated: "Well I can tell you at this stage that I am satisfied of his good character and his significant contribution to the community ..."
6. I accept that this remains the case.
7. The Applicant takes issue with the Commissioner's interpretation of the safe storage requirements. He contends that there is nothing in the Level 7 safe storage requirements that requires the level of security that Senior Constable Jackson proposes.
8. As noted above, the window of the storeroom within the shed has metal bars across it and a sheet of metal inside the window to block out entry to that room altogether via the window. There is also Rio Mesh across the window on the exterior of the rear building.
9. The Applicant takes issue with Senior Constable Jackson's view that the vault or strongroom must be wholly enclosed within the premises, so the external wall cannot make up part of that strongroom. The Applicant contends that this is not a component of the Level 7 safe storage requirements.
10. The Applicant also contends that the shed meets the requirement of being made of steel and it also meets the requirement that the premises' outer structure be of solid construction. He says that it is a permanent, fixed structure that has a concrete base and that it is made of steel (galvanised iron) construction. It has secure locks on all openings. The safes and store rooms are inside the shed. The side door is barred from the inside and has Rio Mesh covering on the outside, screwed into the wall. The Applicant takes issue with Senior Constable Jackson's view that nevertheless, the shed does not meet the Level 7 safe storage requirements.
11. In relation to Senior Constable Jackson's view that corrugated iron could be dismantled by regular hand tools, the Applicant contends that there is no evidence that anyone had actually removed hexagonal bolts from the side of the building or otherwise cut the reinforced Rio Mesh on the external wall of the building to gain access to the rear premises. He submitted that any attempt by someone trying to gain access in that way would cause a lot of noise and would set off the sensor alarms that are located in the shed. He further submitted that several of the measures that Senior Constable Jackson described as acceptable were not contained in the Level 7 Fact Sheet and that under the Act a dealer would only be required to take all reasonable precautions. He further submits that the measures and level of security that he has put in place were reasonable precautions and that this view is supported by the six previous successful inspections.
12. Those inspections were undertaken in light of the Level 7 safe storage requirements. While the standards have not changed, the Commissioner's interpretation of the standards has changed. The Applicant submits that he met those standards on at least six previous occasions and was regarded as compliant until he was met with Senior Constable Jackson's interpretation of the standards.

Discussion

1. It is not in dispute that the premises had been inspected on at least six previous occasions and that those inspections did not identify any discrepancies in the adequacy of the security measures. It is also not in dispute that the Level 7 Safe Storage requirements were in place at the time of those inspections.
2. The Level 7 Fact Sheet is "for general guidance" to assist dealers in meeting the safe storage requirements of the legislation. The legislative requirement is clearly open to interpretation and Senior Constable Jackson's interpretation differs from that of the officers who undertook the earlier inspections.
3. As noted, I undertook a view of the premises. I have also set out above the Applicant's summary of the security measures that are in place at the premises. I have formed my own view of the adequacy of the existing security measures.
4. In my view, the issue of what security measures are required is to be determined by reference to the principles and objects of the Act. There is an 'overriding need to ensure public safety' with 'strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms'. An object of the Act is to ensure that firearms are stored and conveyed in a safe and secure manner".
5. There is a general requirement to take all reasonable precautions to ensure the safe keeping of firearms. A firearm safe is to be made from steel that cannot be easily penetrated. Alternative arrangements to the prescribed standards are permissible providing that they are of a standard not less than the requirements set out in the Act.
6. Section 48 of the Act provides that where a firearms dealer has firearms that are displayed the dealer must take reasonable precautions to prevent firearms from being stolen.
7. Clause 37 of the Regulations makes it clear that premises are required to be suitable for carrying on the business of a firearms dealer and relevant considerations are whether adequate provision has been made for the safe keeping of firearms and the security of the premises against unauthorised entry.
8. In my view, these provisions are all intended to ensure public safety as far as can reasonably be achieved. The standard applicable to a firearms dealer should be significantly higher than that applicable to a licensee who is licenced for personal firearms use because of the role played by dealers in the system.
9. As was noted in Commissioner of Police v Joseph [2016] NSWCATAP 124: "a dealer has a critical role in ensuring that the values and goals of the firearms legislation are upheld. Dealers must be able to be trusted by the community as persons of honesty and integrity, as persons who will be candid and open in their dealings with police, and conscientious in adhering to the strict requirements of the legislation in a wide variety of administrative matters, such as security of premises, safekeeping of weapons, bookkeeping, and transparency of transactions. The Commissioner depicted the dealer as sitting at the 'apex' of the regulatory system. The Commissioner emphasised the central role played by firearms dealers in the orderly and lawful circulation of firearms in the community. We agree with the thrust of the Commissioner's submissions in this regard."
10. As far as I am aware, the issue of the suitability of a firearms dealer's premises has not been considered in the detail that is in issue in this matter. In Lynch v Commissioner of Police NSW Police Force [2014] NSWCATAD 36 I considered circumstances where a collector of antique firearms stored his firearms in a garage that was adapted for that purpose. The issue in dispute was whether the walls of the garage satisfied the requirements of clause 34(7)(c) of the Regulations which required that the area where the firearms were stored "must have solid walls that provide a substantial barrier to forced entry".
11. At paragraphs [11] - [14] of my decision I noted the construction of the garage as follows: It does not appear to be in dispute that the exterior of the wooden framed garage comprises cyprus pine weatherboard panels of 20 mm thickness. Those panels are placed over a pre-existing fibro cladding of 7mm in thickness attached to the wooden frame with coiled nails. The pre-existing fibro cladding was in good condition. The inside of the garage is lined with gyprock of 10 mm thickness. Insulation batts are placed in the gaps between the studs of the wooden frame. The total thickness of the wall is 138 - 139 mm. The studs and noggins of the wooden frame are each approximately 100 mm x 50 mm. The studs are at 600 mm centres and the noggins are approximately 1.2 metres above the bottom of the frame. The floorplate, roof plate and noggins are all 100mm x 50mm. The floor plate and roof plate extend the full length of the building on each side and at the end. Angled braces set into the framework are each 75 mm x 50 mm. The roof is of new corrugated iron with the iron screwed to the rafters. The rafters are of 50mm x 100mm dimensions at 900mm centres braced on each side. Above the rafters, longitudinally along each side of the roof are steel battens 900mm apart and running the length of the roof with dimensions of 42mm x 22mm, with one at the top, one at the bottom and one intermediate batten. The ridge capping and the metal roof is fixed in place by three rows of roofing screws, screwed into the battens so that there are about 14 screws holding each sheet of metal roofing onto the battens. Insulation Batts are inserted beneath the rafters and the ceiling then lined with gyprock. The garage has a concrete floor. The structure is connected to the house in that the roof of the house extends over part of the roof of the garage, with a short walkway underneath. A carport is erected in front of the garage. … The Applicant's firearms are stored in a safe within the garage. In addition, the Applicant advised the Respondent that he has taken the following steps in an endeavour to satisfy the requirements: additional bolts to his rifle safe bolted to the floor, trigger locks on all pistols, pistols in approved pistol safe, steel mesh both inside and outside the only window to the room, and a solid core door with interior hinges inside and a deadlock. The room itself is an interior room only accessible through other locked doors. the residence ... is surrounded on 3 sides by metal fences, which cannot be easily scaled, having a height of 5 or 6 feet to the sides and rear with access at the rear blocked by other structures and access at the front blocked by a driveway, which when the premises are occupied, accommodates one or two motor vehicles and when the premises are unoccupied, is blocked by a locked gate which is also the pedestrian entrance. The gate is a substantial metal structure.
12. The issue in Lynch was limited to whether the garage walls provide a substantial barrier to forced entry. I noted the Commissioner's argument in that matter at paragraph [19]: The Respondent says that the garage does not provide a considerable obstacle to powerful and vigorous efforts to gain entry to the garage and, therefore, it does not provide a substantial barrier to forced entry. The Respondent says that it is possible that criminals could gain forced entry to the garage by prying away the weatherboard exterior and then breaking their way through the fibro and gyprock walls with relative ease. The Respondent contends that it would be relatively easy and physically possible for a criminal to use a crow bar or other tool to jimmy or pry away the weatherboard panel that is nailed into the pre-existing fibro and wooden frame on the outside of the garage.
13. I accepted the Commissioner's argument that Clause 34(7)(c) required that the walls be able to meet the test of providing substantial resistance to forced entry. They must be able to withstand a vigorous and powerful effort and provide a barrier against that effort. However I did not agree that the weatherboards failed to meet that standard.
14. From paragraph [79] in Lynch I considered the meaning of a number of terms that are either referred to in the Level 7 Fact Sheet or that I consider relevant to this matter: 79. The Macquarie dictionary provides a number of definitions of "solid". The most relevant are: adjective 1. having three dimensions (length, breadth, and thickness), as a geometrical body or figure. 3. having the interior completely filled up, free from cavities, or not hollow: a solid ball of matter. 4. without openings or breaks: a solid wall. 9. substantial, or not flimsy, slight, or light, as buildings, furniture, fabrics, food, etc. 80. ... 81. The Macquarie dictionary provides a number of definitions of "barrier". The most relevant are: noun 1. anything built or serving to bar passage, as a stockade or fortress, or a railing. 3. anything that restrains or obstructs progress, access, etc.: ... 4. a limit or boundary of any kind: the barriers of caste. … 84. The Macquarie dictionary provides a number of definitions of 'substantial'. The most relevant are: adjective 1. of a corporeal or material nature; real or actual. 3. of solid character or quality; firm, stout, or strong. 6. of real worth or value ... 7. relating to the substance, matter, or material of a thing. 8. of or relating to the essence of a thing; essential, material, or important. 85. The Oxford English Dictionary definition of 'substantial' includes: Of a structure, etc.: of solid material or workmanship, stout, solid. Firmly or solidly established; of solid worth or value; of real significance, weighty; reliable; important, worthwhile.
15. I stated at paragraphs [86] - [88]: [T}he garage walls consist of weatherboards that are firmly attached to studs and could only be removed with either a power tool or considerable effort with conventional tools such as a crowbar. Any attempt to lift the weatherboards at the point where they overlap is most likely to result in the weatherboard splitting. If that did not occur, the weatherboard would need to be lifted at each stud. This would be a difficult process. Access would be easily gained by cutting the weatherboards on the edges of the studs using a power tool. This would then allow ready access to the interior of the garage. I accept that a well prepared criminal could remove weatherboards with minimum ease. Similarly, with power tools a well prepared criminal could remove bricks or cut steel bars to gain access to the interior or a building. If the standard of wall that is necessary to meet the requirements of clause 34(7)(c) of the Regulation were one with the ability to resist access using power tools, very few walls would be able to meet that standard. Similarly, few structures would resist the 'powerful and vigorous efforts' that the Respondent contends to be the standard. ... In my view that cannot be the required standard.
16. Clause 34(7)(c) does not apply in this matter. However, in my view the standard required for premises of a firearms dealer should be comparable to those required of a collector on antique firearms, in that they should be able to resist 'powerful and vigorous efforts'. The standard will not be met if the premises can be easily penetrated.
17. The definitions that I have referred to above suggest that the expression 'solid' is to be regarded as more than 'not hollow'. Or 'without openings or breaks'. I prefer the definition that solid means ' substantial, or not flimsy, slight, or light'.
18. I still hold the view that the ability to resist access using power tools cannot be the required standard. However, I share the Commissioner's concern that if the premises can be easily penetrated using hand tools then they are not sufficiently secure. This will be the case regardless of whether they are constructed from concrete, brick or steel.
19. On the evidence before me I am not satisfied that a corrugated iron wall alone provides that necessary level of security. However, it may be that the addition of strong material to the corrugated iron could be sufficient to meet that standard. It is not in dispute that Rio Mesh is in place across much of the exterior of the shed. However, large areas of the shed exterior do not have Rio Mesh attached. Those exposed parts of the shed could be easily penetrated using hand tools.
20. It will be a matter of fact whether the Rio Mesh could be easily cut with hand tools such as bolt cutters. I have no evidence in regard to that issue. If in fact Rio Mesh could be easily cut with hand tools, it is my view that the addition of Rio Mesh to the corrugated iron would not be sufficient to provide the necessary level of security. This is because the corrugated iron wall would provide little resistance to powerful and vigorous efforts to gain entry if the Rio Mesh could be easily cut.
21. I note that the Applicant has high levels of additional security arrangements in place - including motion detectors, CCTV and a number of alarm facilities. This provides some comfort in regard to the security of the premises. However, as has been noted above, during a previous break-in the alarm system did not work. In my view, the additional security arrangements do not replace the need for the premises to be able to resist powerful and vigorous efforts to gain entry.
22. The Level 7 Fact Sheet provides that a vault or strongroom "is a room wholly enclosed within the firearms dealer premises". In my view this is a requirement of a complete room separated from the outside wall of the premises. This requirement provides for an extra layer of security. The Applicant's cool room appears to be such a room. However, while the vault is solid built construction with a solid concrete roof it is my understanding that it is not separated from the outside wall of the premises. If that is the case, then it would not be "a room wholly enclosed within the firearms dealer premises".
23. I agree with Senior Constable Jackson's view that the Level 7 Fact Sheet provides that both the outside wall of the premises and internal safe and storeroom must comply with the safe storage requirements. Nevertheless, I note that the Level 7 Fact Sheet is a guideline. The Applicant may be able to meet the legislative security requirements without total compliance with those guidelines.
24. It is my view that at the time of the hearing the Applicant's monitoring equipment provided a strong addition to the security arrangements. However, the premises did not meet the legislative security requirements because the corrugated iron wall would not be able to resist powerful and vigorous efforts to gain entry.
25. I have referred above to the decision in Ward v Commissioner of Police. At paragraph [28] of her decision, Deputy President Hennessy said: 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 that there is virtually no risk.
26. The standard should be no less in the case of a dealer. I am not satisfied that there is virtually no risk to public safety if the premises would not be able to resist powerful and vigorous efforts to gain entry.
27. It follows in my view that until such time as the premises can be made to satisfy that standard, it is not in the public interest for the dealers licence to be returned.
28. I do not have the same concerns in regard to the Applicant's personal licence.
29. There is no question about the Applicant's fitness and propriety and I am satisfied that these proceedings have focused his mind on the legislative requirements. I am satisfied that he has the ability and knowledge to meet those requirements.
30. In the circumstances I am satisfied that there is virtually no risk to public safety if he were given access to a firearm. In my view the decision to revoke his personal category ABC licence should be set aside.

Findings

1. The correct and preferable decision is to affirm the decision to revoke the Applicant's dealer licence. However, on the evidence before me I see no reason why he should not be able to hold the licence if he is able to satisfy the Commissioner that the premises have been altered so that they satisfy the legislative requirements.
2. In regard to the personal licence, the correct and preferable decision is to set aside the decision to revoke the Applicant's category ABC licence. If in the circumstances the licence cannot simply be reinstated, and it is necessary for the Applicant to make a fresh application, I see no reason why he should not be able to hold the licence.

Orders 1. The decision to revoke the Applicant's Firearm Dealer Licence is affirmed. 2. The decision to revoke the Applicant's Category ABC Firearm Licence 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: 06 April 2017