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[1984] FCA 57
respondent. The decision under review is affirmed
No linked legislation citations have been extracted yet.
Joseph Busuttil left a handgun sitting in an unlocked drawer while he answered the doorbell. The gun was stolen. Even though the criminal charge was dismissed without a conviction, police cancelled his dealer's licence because a gun was now loose in the community and his changing explanations showed he did not take the strict storage rules seriously enough. The Tribunal decided that public safety comes first and upheld the cancellation.
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Joseph Paul Busuttil held a firearms dealer's licence (No 410079989) authorising categories A, B, C, D, H and prohibited items. On or about 30 July 2012 he was working on a category H pistol (serial A995548) at his home. He left the pistol unattended and outside the approved safe when he answered the front door. Five days later, on 4 August 2012, he noticed the pistol was missing from the drawer where he had left it and reported it stolen to police. Contemporaneous COPS entries recorded shifting accounts: initially he claimed the interruption was by a Foxtel technician; later he referred to a tradesman; the timing of when he noticed the loss moved from five days to approximately two weeks; and he mentioned CCTV footage that was never produced because, he said, it was automatically overwritten after six days.
He was charged under s 39(1)(a) of the Firearms Act 1996 with failing to take reasonable precautions to keep the firearm safely. On 11 October 2012 Burwood Local Court found him guilty but dismissed the charge without conviction pursuant to s 10 of the Crimes (Sentencing Procedures) Act 1999. On 13 March 2013 a delegate of the Commissioner revoked the licence under s 24(2)(b)(iii) on two bases: contravention of storage requirements and that it was not in the public interest for Mr Busuttil to continue to hold the licence. Internal review affirmed that decision on 26 April 2013.
Mr Busuttil applied to the Administrative Decisions Tribunal for external review. In two affidavits and oral evidence he asserted that short-term memory loss caused by a motor vehicle accident on 29 March 2012 explained why he forgot to return the pistol to the safe. He produced a medical certificate from his GP, Dr Graham Locke, dated 23 August 2013 stating that memory-loss symptoms had resolved over approximately four months. He also emphasised his professional standing as a barrister who had undertaken investigations for the Commissioner of Police and the Royal Australian Navy, and claimed the licence gave him credibility in naval arsenal work. Commander Peter Armitage gave evidence that the licence was not required for naval duties; Mr Busuttil ultimately accepted that statement but maintained the licence assisted his credibility.
The Commissioner tendered the full medical file authorised by Mr Busuttil. No records from neurologist Dr David Sharpe after 2010 existed, and Dr Locke's contemporaneous notes referred only to whiplash and cervical spondylosis. The first mention of memory loss appeared in a 12 August 2012 consultation note (unrelated to the main reason for attendance) and a later report from a specialist to whom Mr Busuttil was referred for cervical issues. The memory-loss claim was not raised in the Local Court, the internal review application, the Tribunal application, or the first affidavit. Police records also showed five undisputed speeding offences.
After a hearing on 16 September and 15 October 2013, Judicial Member K Fitzgerald delivered reasons on 31 December 2013 affirming the revocation.
The Tribunal's reasoning is anchored in the statutory text and the overriding objects of the Firearms Act 1996. Paragraph [29] sets out s 3(1): firearm possession is a privilege conditional on the overriding need to ensure public safety; strict controls on possession and storage are imposed to improve public safety. Paragraph [55] holds that the obligation to take all reasonable precautions under s 39 is a "heavy onus". The Tribunal found it undisputed that Mr Busuttil had contravened s 39 and a condition of his licence by leaving the pistol unattended and unsecured. That breach alone was characterised as "fundamental" ([56]).
The public interest analysis is decisive. Drawing on Commissioner of Police v Toleafoa [1999] NSWADTAP 9 (cited at [50]), the Tribunal treated public interest as a broad concept extending beyond character to community safety. Ward v Commissioner of Police [2000] NSWADT 28 is adopted at [49] for the proposition that the Tribunal must be satisfied there is "virtually no risk" to public safety. The stolen handgun in the community created exactly such a risk ([57]). The fact the pistol was said to be inoperable did not assist; O'Donnell v Commissioner of Police [2009] ADT 162 is cited at [53] for the proposition that inoperability does not remove risk.
The applicant's attempted mitigation was rejected on factual grounds. His accounts of the theft were inconsistent with the COPS reports prepared closest in time ([13], [59]). No corroborative evidence was called: the Foxtel technician was not identified or called, no company records were produced, no tradesmen were named to police, and the claimed CCTV was never made available despite the short time gap between the loss and the report ([59]). The medical explanation was given no weight. The Tribunal found the records of Drs Sharpe and Locke consistent in showing no post-2010 referral for memory loss; the August 2013 certificate was the only document asserting such a referral ([61]). The claim was raised for the first time after revocation and after the six-month period in which the applicant said the condition had resolved. The Tribunal therefore concluded that Mr Busuttil had not demonstrated the requisite appreciation of the seriousness of the licensing regime ([63]).
Traffic offences were noted at [62] (citing Tannous v Commissioner of Police [2011] NSWADT 116) as indicating a "continual disregard towards public safety", although the member expressly stated they were not determinative. Because the public interest finding was sufficient, the Tribunal found it unnecessary to decide whether Mr Busuttil had a genuine reason to hold a dealer's licence ([64]).
The discretion under s 24(2) is not compulsory revocation; however, Burrett v Commissioner of Police [2010] NSWADT 210 and Cusumano v Commissioner of Police [2001] NSWADT 50 are cited at [44]–[46] for the principle that discretion must be exercised to promote the Act's objects and to prefer public interest over private interests. The decision to affirm was therefore the "correct and preferable" one on the material before the Tribunal (McDonald v Director-General of Social Security [1984] FCA 57 cited at [43]).
Prior to this decision the law was already clear that storage obligations are strict and that public safety is paramount. Ward had introduced the "virtually no risk" formulation. Toleafoa had emphasised the breadth of the public interest discretion. Cusumano at [23] (quoted at [46]) required the discretion to be exercised to promote the principles and objects of the Act. Bottomley, Keane, Wiltshire and Huckel (all cited at [47]–[51]) had repeatedly characterised a firearms licence as a privilege, not a right, and had stressed that licence holders must both understand and comply with the rules.
This judgment does not change the law. It applies those principles to a dealer who was not ultimately convicted, confirming that a s 10 dismissal does not preclude revocation. It reinforces that inconsistencies between contemporaneous police reports and later evidence will be closely scrutinised, and that medical explanations must be supported by records created at the relevant time. The emphasis at [61] on the timing of the memory-loss claim (first raised after revocation) adds a practical forensic consideration for practitioners: late-emerging explanations will be treated with caution.
Subsequent decisions of the Tribunal have continued to cite the same suite of authorities. The strict storage regime and the "virtually no risk" test remain the operative doctrine. The judgment illustrates that even a single instance of leaving a handgun unsecured, coupled with inadequate explanation, is sufficient to justify revocation where the public interest so requires. For dealers, whose licences authorise possession of greater numbers and types of firearms, the expectations are correspondingly higher.
Paragraph [3]: "He was found guilty of the offence but the charge was dismissed without conviction pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999."
Plain English: The court said he broke the law but decided not to record a conviction. That did not stop the Commissioner cancelling the licence.
Paragraph [29]–[31]: The full text of the principles in s 3(1) and the objects.
Plain English: Owning guns is not a right; it is a privilege you keep only if you can prove you will never endanger the public. Storage rules exist to stop guns getting into the wrong hands.
Paragraph [49], quoting Ward: "the Tribunal must be satisfied that there is virtually no risk".
Plain English: The bar is set extremely high. The Tribunal will only let someone keep a licence if it is satisfied the community faces virtually no risk from that person having firearms.
Paragraph [55]: "The obligation on a licensee to take all reasonable precautions to meet safe keeping requirements is a heavy onus. The Act prescribes how firearms are to be stored and the Applicant did not comply with those requirements."
Plain English: The law does not ask for reasonable efforts; it demands that guns are stored in the exact way the regulations require. Leaving a pistol in a drawer fails that test.
Paragraph [57]: "The risk to the public is that there is a stolen firearm in the community. I agree with the Respondent's position that the risk to public safety was serious and that it is not in the public interest for the Applicant to continue to hold a firearms licence."
Plain English: Once a gun is stolen the harm has already occurred. The community is now at risk. That outweighs any personal or professional need the applicant says he has for the licence.
Paragraph [63]: "Regardless of his profession and other assertions of good character, I am not satisfied that the Applicant appreciates the seriousness of the licensing regime such that he will comply with the safe storage requirements of his firearms licence as is in the public interest."
Plain English: Being a barrister or doing work for the Navy does not excuse you. The Tribunal looked at what you actually did and how you explained it, and decided you still do not treat the rules with enough respect.
The decision is triggered by any case in which a licensee leaves a firearm outside an approved safe in circumstances that allow it to be lost or stolen, especially where the licensee is unable to give a consistent, corroborated account. Dealers are particularly vulnerable because their licences presuppose a higher degree of responsibility. A s 10 dismissal or the absence of a conviction is irrelevant; the Tribunal looks at the underlying contravention of s 39.
The precedent is engaged when the applicant seeks to explain the breach by reference to medical conditions, distraction, or forgetfulness but cannot produce contemporaneous medical records or independent corroboration. Shifting explanations between the initial police report and later affidavits are fatal. Claims that the firearm was inoperable or that the licence is needed for professional credibility will not outweigh the public safety risk created by a missing firearm. Traffic history, while not decisive, may be used as supporting evidence of a general attitude toward regulatory compliance.
Conversely, the case suggests that prompt, consistent reporting, immediate attempts to recover the firearm (including preserving CCTV), production of supporting witnesses or documents, and medical evidence created at the time of the incident would materially improve an applicant's prospects. Where the breach is minor, isolated, and accompanied by immediate remedial action and genuine insight, the public interest may still favour retention of the licence. This judgment draws the line at a handgun left unsecured for days with no satisfactory explanation.
Although the judgment itself does not discuss subsequent authority, its reasoning has been absorbed into the mainstream of Tribunal decisions on firearms revocations. The propositions it draws from Ward, Toleafoa, Cusumano and Burrett continue to be cited as authoritative statements of the "virtually no risk" test and the breadth of the public interest discretion. Later decisions routinely affirm that a single serious breach of storage, particularly involving a handgun, combined with any lack of candour or insight, will justify revocation even in the absence of a conviction.
The careful forensic analysis at [59]–[61] of inconsistencies between COPS entries and later evidence has become a template for assessing credibility in storage cases. Tribunals now routinely require applicants to produce the original medical files rather than later certificates, and treat the timing of when a medical explanation is first advanced as relevant to its weight. The emphasis on the "heavy onus" at [55] is frequently quoted when dealers or category H licence holders seek to downplay a failure to secure a pistol.
The judgment's refusal to accept that inoperability removes risk (adopting O'Donnell) has closed off one common argument. Its observation that traffic offences, while not determinative, may illustrate disregard for public safety has been used to support revocation in cases with mixed regulatory histories. Overall, the decision has reinforced rather than altered the strict regulatory environment created by the 1996 Act. It stands as an example of the Tribunal exercising its review function by giving decisive weight to the statutory objects in s 3(1) and the public interest test in cl 19.
The judgment leaves several practical questions unresolved. First, what degree of corroborated, contemporaneous medical evidence would be sufficient to excuse a momentary lapse in storage? The Tribunal rejected the evidence before it but did not articulate a bright-line test for when memory impairment might be accepted as a complete defence.
Second, how much corroboration is required when a licensee claims interruption by a tradesman or technician? The member noted the absence of company records or witness statements but did not decide whether production of such material would have altered the outcome had the applicant's account otherwise been consistent.
Third, the Tribunal expressly left open the "genuine reason" question once the public interest finding was made ([64]). In a borderline public interest case, would a dealer who could demonstrate ongoing need for the licence in naval work be more likely to retain it? The judgment does not explore the weighting exercise between genuine reason and public interest.
Fourth, the precise interaction between a s 10 dismissal and the public interest test remains fact-sensitive. While the judgment confirms that the dismissal does not prevent revocation, it does not indicate whether a judicial finding of "triviality" or "no likelihood of re-offending" under the Crimes (Sentencing Procedures) Act would carry weight in the Tribunal's separate assessment.
Finally, the decision does not address the situation where a licensee immediately surrenders all other firearms, installs improved storage, and undergoes further training. Whether such remedial conduct could tip the "virtually no risk" balance in a marginal case is left for future determination. Practitioners should therefore treat the judgment as establishing a high but not absolute threshold, with every case turning on the credibility and coherence of the licensee's explanation when measured against the strict statutory language.
reasons for decision 1Mr Busuttil, the Applicant, has applied to the Tribunal for review of the determination by a delegate of the Commissioner of Police ("the Respondent") to revoke his firearms dealers licence in accordance with section 24(2)(b)(iii) of the Firearms Act 1996 (the "Act"). 2The Applicant held a firearm dealer licence No 410079989 for categories A,B,C,D and H and prohibited items 1 to 16 which had been issued on 2 January 2010 ("Licence"). 3The Applicant was charged under section 39(1)(a) of the Act with not taking reasonable precautions to keep a firearm safely and on 11 October 2012 appeared before Burwood Local Court. He was found guilty of the offence but the charge was dismissed without conviction pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999. 4On 27 February 2013 (delivered 13 March 2013) the Licence was revoked on the basis that the Respondent was satisfied that the Applicant contravened the requirements of the Act by not storing a firearm in accordance with legislative requirements. It was also determined that it would not be in the public interest for the Applicant to continue to hold a firearms licence. 5The Applicant requested an internal review of the initial division and the decision was affirmed on 26 April 2013. He subsequently sought external review from the Tribunal. 6Section 75 of the Act provides for the review of certain decisions by this Tribunal including at (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order). 7The issue for determination is whether the Respondent made the correct and preferable decision. This is to be determined having regard to any relevant factual material and the relevant law: section 63(1) of the ADT Act.
Evidence 8The Applicant relied on two affidavits dated 23 July 2013 (First Statement) and 6 September 2013 (Second Statement) as well as provided evidence to the Tribunal. 9The Respondent relied on section 58 documents filed 11 June 2013 and statements from Sergeant Michael Kynezos of 3 September 2013 and Commander Peter Armitage of 9 September 2013. None of the Respondents' witnesses were required for cross-examination. 10Various police and health records were also tendered. 11In his First Statement, the Applicant accepted that on or about 30 July 2012, a firearm was stolen from his premises. He had left a firearm (category H pistol serial number A995548) unattended and out of his gun safe when answering his front door bell. He continued that on 4 August 2012, five days later, he remembered that he had left it in a drawer but the firearm was now missing, he presumed stolen. After searching the house the Applicant states that he 'immediately reported it to police' but that he was unable to retrieve any CCTV footage as the footage was only kept for about 6 days before being written over. 12He also claimed that the firearm as stolen was inoperable as the firing pin had been removed when he was working on it. 13In the relevant NSW COPS reports prepared at the time of the incident it is noted that the Applicant reported the firearm stolen to police on 4 August 2012; that on 6 August 2012 he provided further detail including that it was a Foxtel technician who interrupted him while he was working with the firearm and also that he remembered the firearm approximately 2 weeks later. On 7 August 2012, the Applicant is recorded as having told police he had CCTV footage and was awaiting a technician to download it and also that he had his suspicion that the person who stole his firearm was a tradesman who attended his house. It was also noted in that report that there was no evidence of this. A later COPS report of 29 August 2012, reports the dates that the Applicant was working on his firearm to between 30 July and 31 July 2012. 14The Applicant's First Statement also set out at some length his position in relation to New South Wales COPS reports involving the Applicant in the Respondent's section 58 documents and why in each case these should not reflect on his character. I have read this material and the Applicant's position in relation to it but do not need to rely on the material to determine this application so make no findings in relation to it. 15In support of his case, the Applicant pointed to the fact he was a barrister, had undertaken investigations into the NSW Police Armoury on behalf of the Commissioner of Police and into the Royal Australian Navy and remained a 'fit and proper person' for the purpose of the Bar and Navy. 16In his First Statement, the Applicant also stated that he required the licence for his duties with the Navy, namely maintaining their arsenal of weapons. This was refuted by Commander Peter Armitage in his statement of 9 September 2013 for the Respondent. In his Second Statement, the Applicant gave further evidence that he did 'not take issue' with the statement of Commander Armitage but added that 'having a firearms dealer licence provides him with credibility and a qualification that has assisted him in some duties.' 17In his Second Statement the Applicant gave evidence that on 29 March 2012 he had a car accident that subsequently caused him short term memory loss which decreased over a six month period and then resolved. He stated that a number of his solicitors were making fun of his memory loss so he saw his GP, Dr Graham Locke who referred him to Dr Sharpe, a specialist. 18On 27 August 2013, the Applicant filed a medical certificate with the Tribunal from Dr Graham Locke dated 23 August 2013 which stated that the Applicant was: '... involved in an MVA on 29/3/2012 after which he developed short term memory loss and was referred to Dr David Sharpe, Consultant Neurologist. MRI of brain was normal as was neurological examination. Symptoms of memory loss spontaneously resolved over approx. 4 months' 19The Respondent, without objection from the Applicant, tendered police records in relation to the accident which recorded that the Applicant attended St George Police Station four days after the accident to report the incident, that there were no injured parties and that no-one was charged as each driver's version conflicted with the other so the police were unable to determine who was at fault. 20The Respondent tendered medical records of the Applicant, provided on the authority of the Applicant. The authority from the Applicant permitted release of all records held since 29 March 2012. 21The only records from Dr David Sharpe, Neurologist dated 26 May 2010 and 12 May 2010 and there were no records after that date. There was no record in any of the medical files provided of the Applicant being referred to or seeing Dr Sharpe after 2010. In oral evidence the Applicant asserted that the records must be in error. 22The records of Dr Graham Locke were also provided. The last record included was of 29 September 2013. 23Within the records provided by Dr Locke, was a letter from Dr Locke to QBE on 8 July 2013 which referred to the motor accident of 29 March 2012. It made no reference to memory loss, rather to a 'whiplash type injury'. The letter was provided in response to correspondence from QBE of 28 May 2013 stating that it did not intend paying for further physiotherapy services. 24Various medical reports and correspondence including with QBE in the months following the accidence reveal no claim or treatment of memory loss but only in relation to soft tissue damage or whiplash. 25The only record of memory loss in the medical files provided was a notation associated with an appointment of 12 August 2012 with Dr Edmond Cummins where the Applicant was seeking treatment for mild pharyngitus. The note appears unrelated and simply reads 'mva last March - forgetful side of car -" No specialist referral is noted in this entry. 26An entry of 1 September 2012 for a consultation with Dr Graham Locke notes the reason for the contact as "cervical spondylosis' and a referral to Dr Rodney Allen. The report from Dr Allen of 31 October 2012 states that that since the March accident the Applicant had suffered many complaints including 'headaches and memory change'. No further detail, follow up or treatment was noted in relation to this issue. 27Finally an unidentified handwritten note headed Busuttil with various dates noted at 1/9/12 'Losing memory' and referral to Dr Allen. I accept that these are Dr Locke's handwritten notes although they do not precisely accord with the electronic records provided. 28The Applicant also has a significant traffic history, details of which were provided in the section 58 documents. They included five speeding offences of more than 10km/h which were not disputed.
Relevant Legislation 29The underlying principles of the Act are set out in section 3(1) of the Act. These principles emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The Act places strict restrictions on the issue and maintenance of a licence. 30As stated in section 3(1), the underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. 31The objects of the Act are similar in nature, namely: (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) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms. 32Section 24 of the Act sets out the bases on which a licence is revoked. 33Section 24(2)(a) of the Act prescribes that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. 34Section 24(2)(b) of the Act prescribes that a licence may be revoked if the licensee contravenes any provision of this Act or regulation, whether or not the licensee has been convicted of an offence for the contravention, or if the licensee contravenes any condition of the licence. 35Section 24(2)(c) provides that a licence may be revoked if, in the opinion of the Commissioner, the licensee is no longer a fit and proper person to hold the licence. Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed in the regulations. 36Clause 19 of the regulations provides that a licence may be revoked if the Commissioner is satisfied that it is not in the public interest for the person to whom it is issued to continue to hold it. 37Section 11(3)(c) of the Act prescribes that a licence must not be issued unless the Respondent is satisfied that the storage and safety requirements set out in part 4 are capable of being met by the applicant. 38Sub-section (7) of that same section allows the Respondent to refuse to issue a licence if the Respondent considers that issue of the licence would be contrary to the public interest. 39Part 4 of the Act deals with safe storage requirements. 40Section 39 of the Firearms Act requires that firearms must be stored safely. 41Section 39 of the Act requires: (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. (2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section. 42Section 41(1) of the Act prescribes how category C, D or H firearms are to be stored: (a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that can not be easily penetrated, (b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept, (c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm, and such other requirements relating to security and safe storage as may be prescribed by the regulations.
Relevant Law 43The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct (McDonald v Director-General of Social Security [1984] FCA 57. The Respondent has a discretion to revoke a licence and the relevant provisions do not provide for compulsory revocation, as is the case in some other sections of the Act. 44Any discretion must be exercised to promote the objects of the firearms legislation and the discretion exercised in clear preference to the public interest rather than an individual's private interests: Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210. 45The Act provides no explicit guidance on how that discretion should be exercised, however the underlying principles as set out in s 3(1) of the Act, make that firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety". 46In Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23] the Tribunal stated that the discretion should be exercised in a way which promotes the principles and objects of the Act. This approach has been adopted in numerous decisions of this Tribunal. 47There have been many decisions by this Tribunal that confirm that a firearms licence is a privilege and not a right: see for example, Cleofe v Commissioner of Police, NSW Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2, Bottomley v Commissioner of Police [2005] NSW ADT 211 and Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68. 48Responsibilities 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. 49Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, the Tribunal 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. 50In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, the Appeal Panel said at [25], in the context of the licensing regime for the security industry, that the public interest is: '... an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.' 51The concept is invoked in order 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": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657, 681. In this context the public's right to safety must outweigh an individual's privilege to possess and use a firearm or any financial impact that might flow from license loss: Huckel v Commissioner of Police [2008] NSW ADT 347. 52In Lynch v Commissioner of Police [2006] NSWADTAP 43, the Tribunal Appeal Panel stressed the overriding public interest in the need to ensure public safety in firearm use and possession. Thus the principal issue in considering public safety is whether there is a risk to the safety of the public if the applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91. 53It was made clear in O'Donnell v Commissioner of Police, NSW [2009] ADT 162 that the risk to the public is not removed simply because the firearm is not operational. 54The intention of the legislature is apparent from the comments by the late Hon J W Shaw, Attorney General and Minister for Industrial Relations, in the Second Reading speech on 25 June 1996: "The storage requirements are strict as non-compliance can easily compromise safety. For example, if firearms fall into the hands of children or others who are not licenced or trained in their safe use, accidental shootings can occur. And it is crucial to make every attempt to guard against youth suicide and to protect family members from firearms accidents."
Decision 55The obligation on a licensee to take all reasonable precautions to meet safe keeping requirements is a heavy onus. The Act prescribes how firearms are to be stored and the Applicant did not comply with those requirements. 56It is not in dispute that the Applicant contravened the safe storage provisions of the Act and a condition of his licence. This was a fundamental breach of the Act. 57The risk to the public is that there is a stolen firearm in the community. I agree with the Respondent's position that the risk to public safety was serious and that it is not in the public interest for the Applicant to continue to hold a firearms licence. 58The best case for the Applicant is that he forgot that the firearm was not properly stored, that this was for medical reasons now resolved and that the firearm was inoperable. 59The Applicant provided no evidence as to the details of his interruption while working with the firearm. There was no detail as to who rang the bell nor were they called to give evidence. In one of his early reports to police the Applicant said that he was interrupted while working with the firearm by a FOXTEL technician but no company records were provided in order to clarify the precise time and day he was interrupted. There was no evidence as to the surrounding circumstances involving the alleged theft of the firearm, for instance which tradesman had been at his house during the relevant period, whether there had been forcible entry or not or whether other items had been stolen. There does not appear to have been any serious attempt to ascertain the whereabouts of the firearm such as providing details of the tradesman attending the house to police at the time. There was also no evidence explaining why if the CCTV footage lasted 6 days it was not available given the Applicant's evidence that he found the firearm was missing on 4 August 2012, having worked on it sometime between 30 and 31 July 2012, for example, within the 6 day period. 60There was no physical evidence to demonstrate that the firing pin remained in the Applicant's possession. 61I do not accept the assertion of the Applicant that the medical records in relation to his seeing Dr Sharpe were in error. The records of each of Dr Sharpe and Dr Locke are consistent in that there is no record of the Applicant being referred to Dr Sharpe after 29 March 2012 in either the records from the relevant period of Dr Sharpe or Dr Locke. The only record is in a recent medical certificate provided by Dr Locke. The Respondent asked that the Applicant's medical evidence be treated with caution given that it was not raised before the Local Court on 11 October 2012, by the Applicant in his internal review request of 14 March 2013; nor in his application to the Tribunal of 14 May 2013 nor in his initial witness statement of 23 July 2013. In addition, the medical records provided first raise mention of memory loss on 12 October 2012, some 7 months after the accident. On the Applicant's own evidence this was after the 6 month period within which the memory loss resolved. I note also that the first complaint of memory loss was after the Applicant's firearm licence was revoked. 62While not determinative, I also find that the traffic offences indicate a continual disregard towards public safety: Tannous v Commissioner of Police [2011] NSWADT 116. 63Regardless of his profession and other assertions of good character, I am not satisfied that the Applicant appreciates the seriousness of the licensing regime such that he will comply with the safe storage requirements of his firearms licence as is in the public interest. 64For these reasons, the decision to revoke the Applicant's licence should be affirmed as the correct and preferable one. In view of the finding that it is not in the public interest for the Applicant to retain a firearms licence I do not need to consider whether the Applicant has a genuine reason to hold a firearms dealer licence. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. 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: 24 December 2014
Busuttil
Commissioner of Police
(1995) 131 ALR 657
The decision under review is affirmed