CITATION: El-Hachem v Commissioner of Police, New South Wales Police Service [2003] NSWADT 181 DIVISION: General Division APPLICANT PARTIES: Charles El-Hachem RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 033030 HEARING DATES: 04/04/2003 SUBMISSIONS CLOSED: 04/04/2003 DATE OF DECISION: 08/05/2003 BEFORE: Montgomery S - Judicial Member APPLICATION: Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: FB v Commissioner of Police, New South Wales Police Service [2003] NSWADT 28 Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 APPLICANT REPRESENTATION: L Karp, barrister RESPONDENT M Dakin, agent ORDERS: 1 The Commissioner's decision to revoke Mr El-Hachem's firearms licence is affirmed. The Application 1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service ("the Commissioner") to revoke the Category ABH firearms licence held by Mr. Charles El-Hachem. Mr. El-Hachem was issued with a Category AB firearms licence for the genuine reasons of target shooting and recreational hunting on 4 April 1998 and a Category H firearms licence for the genuine reasons of target shooting on 19 February 1999. This licence was suspended on 2 January 2002 and subsequently revoked on 30 September 2002. Background 2 The decision to revoke Mr. El-Hachem's licence followed an incident on 6 February 2001 in which Mr. El-Hachem purchased five firearms from two unknown men for an amount of $500. Those firearms had been stolen on 27 or 28 January 2001 and had an approximate value of $500 each. Mr. El-Hachem phoned police the following morning to ascertain whether the firearms were stolen but was advised that the information could not be given over the phone and that he could bring the firearms to the police station for identification. He did not adopt the suggested approach nor did he provide police with any identifying particulars of the men from whom he purchased the firearms. 3 Sometime in April 2001 Mr. El-Hachem gave two of the firearms to a friend, Mr. Stephen Odelli. Sometime in May 2001 Mr. El-Hachem gave one of the firearms to Mr. Charlie Baghdadi who was an acquaintance of Mr. Odelli. On 13 August 2001 Mr. El-Hachem took the two remaining firearms to a firearms dealer for identification and attempted to register them during a firearms amnesty. 4 Mr. El-Hachem was charged with offences relating to these events. Those charges were subsequently withdrawn and dismissed. 5 On 23 October 2002 Mr. El-Hachem sought an internal review of the Commissioner's decision to revoke his licence. The internal review was finalised on 2 January 2003 and the decision was taken that the original decision to revoke Mr. El-Hachem's licence was to stand. Mr. El-Hachem applied to the Tribunal for review of that decision. 6 The facts of this matter are not generally in dispute. With the exception of the incidents associated with this particular matter, there is no issue in relation to Mr. El-Hachem's conduct or character. 7 There is some disagreement between the parties as to the application of an amnesty that was in place between June 2001 through to November 2001 which allowed the holder of a firearms licence to register previously unregistered firearms. The Commissioner suggests that the amnesty did not provide protection against anything other than criminal prosecution for having an unregistered firearm. He argues it was not the intention of Parliament to ignore facts of matters such as this when making administrative decisions about a person's fitness to hold a firearms licence. Mr. El-Hachem maintains that he could rely upon the amnesty that was in place at the time and that the amnesty provided a legislated vehicle for the registration of firearms not previously registered. Reviewable decision 8 The reviewable decision is that of the Commissioner to revoke Mr. El-Hachem's firearms licence. On 28 January 2003 Mr. El-Hachem applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal's President on 18 February 2003 at which time he made directions for the filing of documents and the matter was listed for hearing. The matter subsequently came before me for hearing on 4 April 2003 and proceeded on that day. Applicable Legislation 9 Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 10 The legislation of most relevance to these proceedings is the Firearms Act 1996 ("the Act") and the Firearms (General) Regulation 1997 ("the Regulation"). The 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 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. 11 A licence is held subject to conditions. Section 19 of the Act sets out conditions relevant to these proceedings as follows: "19 Conditions of licence (1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. (2) Without limiting subsection (1), each licence is subject to the following conditions: (a) the licensee must comply with the relevant safe keeping and storage requirements under this Act, (b) the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm, (c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee's facilities in respect of the storage and safe keeping of the firearms in the licensee's possession, (d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner, (e) the licence cannot be transferred to another person. (3) A licence is subject to such other conditions as may be prescribed by the regulations." 12 The Act imposes restrictions on the purchase and sale of firearms. Relevant provisions are found in sections 51 and 51A of the Act which provide: " 51 Restrictions on sale of firearms (1) A person (the seller) must not sell, or knowingly take part in the sale of, a firearm to another person (the purchaser) unless: (a) the purchaser is authorised to possess the firearm by a licence or permit, and (b) the following documents have been produced to, and inspected by, the seller: (i) the purchaser's licence or permit, and (ii) if the purchaser is not a licensed firearms dealer the purchaser's permit to acquire the firearm (or the equivalent of any such permit that is issued under the law of another State or Territory in respect of the firearm concerned). Maximum penalty: imprisonment for 5 years. (1A) A person (the seller) must not sell, or knowingly take part in the sale of, a prohibited firearm or pistol to another person (the purchaser) unless: (a) the purchaser is authorised to possess the prohibited firearm or pistol by a licence or permit, and (b) the following documents have been produced to, and inspected by, the seller: (i) the purchaser's licence or permit, and (ii) if the purchaser is not a licensed firearms dealer the purchaser's permit to acquire the firearm (or the equivalent of any permit that is issued under the law of another State or Territory in respect of the prohibited firearm or pistol concerned). Maximum penalty: imprisonment for 20 years. (2) A person other than a licensed firearms dealer must not sell, or knowingly take part in the sale of, a firearm to a person who is not a licensed firearms dealer unless: (a) the sale has, in accordance with the regulations, been arranged through a licensed firearms dealer, or (b) in any case where a licensed firearms dealer is not (as determined by the regulations) reasonably available the sale is witnessed by a police officer authorised by the Commissioner. Maximum penalty: imprisonment for 5 years. (2A) A person other than a licensed firearms dealer must not sell, or knowingly take part in the sale of, a prohibited firearm or pistol to a person who is not a licensed firearms dealer unless: (a) the sale has, in accordance with the regulations, been arranged through a licensed firearms dealer, or (b) in any case where a licensed firearms dealer is not (as determined by the regulations) reasonably available the sale is witnessed by a police officer authorised by the Commissioner. Maximum penalty: imprisonment for 20 years. (3) For the purposes of this section, a person takes part in the sale of a firearm if: (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that sale, or (b) the person provides or arranges finance for any step in that process, or (c) the person provides the premises in which any step in that process is taken, or suffers or permits any step in that process to be taken in premises of which the person is the owner, lessee or occupier or of which the person has the care, control or management. (4) If on the trial of a person for an offence under subsection (1A) or (2A) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under subsection (1) or (2), respectively, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 51A Restrictions on purchase of firearms (1) A person (the purchaser) must not purchase a firearm from another person (the seller) unless: (a) the seller is authorised to possess the firearm by a licence or permit, and (b) the seller's licence or permit has been produced to, and inspected by, the purchaser. (2) A person other than a licensed firearms dealer must not purchase a firearm from another person who is not a licensed firearms dealer unless: (a) the sale has been, in accordance with the regulations, arranged through a licensed firearms dealer, or (b) in any case where a licensed firearms dealer is not (as determined by the regulations) reasonably available the sale is witnessed by a police officer authorised by the Commissioner. Maximum penalty: imprisonment for 14 years if the firearm concerned is a prohibited firearm or pistol, or imprisonment for 5 years in any other case." 13 Section 60 of the Act makes provision for the action to be taken by an unauthorised person who comes into possession of a firearm: " 60 Disposal of firearms by unauthorised holders (1) A person who comes into possession of a firearm, but is not authorised by or under this Act to possess the firearm, must immediately surrender the firearm to a police officer. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. (2) A person does not contravene any other provision of this Act just by surrendering a firearm in accordance with this section." 14 The Regulation makes provision for the issue of a licence only if the applicant understands the requirements of the Act concerning firearm safety and storage. Clause 7 of the Regulation provides: "7 Licence applicant's understanding of requirements concerning firearm safety and storage Before being issued with a licence, the applicant must prove to the Commissioner's satisfaction: (a) that the applicant is aware of, and understands, the requirements of the Act concerning firearm safety and storage, and (b) that the applicant will, if issued with a licence, be able to comply with those requirements." 15 The power of the Commissioner to revoke a firearms licence is set out in section 24 of the Act as follows: 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 (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations. " 16 The Commissioner may also revoke a firearms licence on public interest grounds pursuant to clause 17 of the Regulation. Clause 17 provides as follows: "17 Revocation of licence - additional reasons In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it." Mr. El-Hachem's Case 17 Mr. El-Hachem appeared and presented oral evidence on his own behalf and was subjected to cross-examination. Mr. Odelli also appeared and was cross-examined. 18 Mr. El-Hachem is a responsible honest and well-respected citizen who contributes freely of his time and effort to many community and charitable organisations. A number of testimonials were put in evidence in support of Mr. El-Hachem's good character. 19 Mr. El-Hachem and Mr. Odelli also provided written statements which purported to address some of the Commissioner's concerns. Mr. El-Hachem's statement provides a reasonable outline of his case. That statement provides: "In early February 2001 I owned a chicken shop and a jewellery, shop which were situated at Shop 1 and Shop 4, 282-286 Guildford Road, Guildford. The jewellery shop was open for business and was situated within an arcade. The chicken shop was being renovated in preparation for its opening on 12 February 2001 It was at the entrance to the arcade (although the door was within the arcade gates), and faced the street. At that time I was working in the jewellery shop, and also renovating the chicken shop, sometimes by myself and sometimes with the help of family and friends. I was working 24 and 48 hour stretches, At about 2.00 a.m. on the morning of 6 February 2001 I was working alone in the chicken shop. At about this time I noticed two men who were untidy, unshaven and scrappily dressed walking past the shop. I noticed that they had firearm bags and one was pushing a mountain bike. We made eye contact through the shop window. They then walked into the arcade (the gates were open) and stopped at the entrance to the chicken shop. A conversation then took place, To the best of my recollection it proceeded as follows. One of the men said, "Would you be interested in any of this stuff?" I said, "What do you have?" He said, "We've got rifles and the mountain bike." I said, "How much do you want for the rifles?" He said, "$100.00 each" I said, "Okay, I'll buy them off you." I checked the rifles to make sure that there were no ammunition in the chambers and paid him $500.00 in cash. When the men left I shut and locked the arcade gate so that nobody could enter the shop. I put the rifles in the deep freezer until morning. I worked renovating the shop until morning. I then took the rifles home and stored them securely in my gun safe. At that time I had valid category A, B and H firearms licences. I had been issued the Category A and B licenses in 1998 and the H license in 1999. I used them for target shooting and recreational hunting, I consider that I know a great deal about firearms and the potential dangers of firearms falling into the wrong hands. I bought these five rifles strongly suspecting that they were stolen. I telephoned the police soon after. I am not sure whether it was the next day, but it was within a couple of days. I told the policeman who answered the phone the circumstances by which I acquired the firearms and asked if I could quote him the serial numbers to see whether they were stolen. I also said, "I'd like to see if they are stolen so I can hand them back if they are, If not, I'd like to claim ownership." He said "I cannot disclose this information over the phone. Get in touch with the Firearms Registry and try them." or words to that effect. I telephoned the firearms registry, and said words to the effect, "I've purchased five firearms. I've spoken to the police and they referred me to you in order to find out if the firearms are stolen or unregistered." The person to whom I spoke said, "I'm sorry, we can't disclose this information either. You will need file a "permit to acquire" and register them in order to find out." It seemed to me that I was getting the run around. At the time I was working 16 hours or more a day, seven days a week in both shops. I made no further enquiries for some time. During this time the rifles which I had purchased were securely locked in my gun safe. I did not take them out at all. In about April 2001 although I cannot be completely certain, I went on a hunting trip. I had been working for months on end and needed the break.- My companions included Steve Odelli who is a licensed gun holder whom I have known for five to seven years. I consider him a responsible person. I told Steve that I had some firearms, and when he asked I said that be could have a couple, provided that he registered them. He asked if they were stolen, and I said that I was not sure. Steve also told me that he may have a friend, who held a firearms licence, who might be interested in taking one of the rifles. I said that this was not a problem, provided that the friend registered the rifle. At some stage after this I gave two rifles to Steve Odelli, and one to Charlie Baghdadi. I told both that I did not want payment, but Charlie insisted on giving me $200.00. He said that this would make him feel more comfortable. I understand that both Steve and Charlie registered the rifles that I gave them. In August 2001 I attempted to register the remaining two rifles. I completed two "permit to acquire" forms, and sent them to the firearms registry. I thought that if the firearms were indeed stolen I would be informed by the Registry. In due course I received registration papers which I took to a licensed gun dealer. The rifles were registered it was only several weeks later that I received a call from the police saying that they wanted to interview me." 20 A statement by Mr. Odelli supported aspects of Mr. El-Hashem's evidence as did his oral evidence. Mr. Odelli stated: "I have known Charles El-Hashem for more than seven years. On or about August 2001 Charles told me that he had in his possession some fire arms. Charles also told me that these firearms needed to be registered and that he did not need them all. I then told Charles that I will be interested in having two of these fire arms if Charles would give them to me. Charles agreed to give me those firearms however, he informed me that he would only give them to me on the condition that I go and register them. I agreed to do that and informed Charles that one of my friends named Charlie Baghdadi would be interested in buying one of those fire arms if Charles would give him one. I also told Charles that Mr. Baghdadi was a very responsible person and that he would be ready and willing to register the firearm that would be given to him. Charles then agreed to give the firearms to both Mr. Baghdadi and I as he knew us both and had my assurance that Mr. Baghdadi was a responsible person. At no time during this whole conversation, did Charles make mention of any payment in return of the firearms about to be given to us. All that Charles wanted to do was to find a firearm licence holder responsible enough, reliable and law abiding that would get the guns registered. I then took two guns from Charles and another gun for Mr. Baghdadi. I then went to the gun shop and filled in the forms to get those guns registered. I am informed and verily believe that Mr. Baghdadi did the same." 21 Mr. Dakin submitted that the circumstances of this matter are unusual and it is unlikely that they will re-occur. Both Mr. El-Hashem and Mr. Odelli gave evidence freely and both made admissions against their interests. Their evidence should be accepted. 22 Mr. El-Hashem admitted that he purchased the firearms contrary to the Act but submits that this does not lead to an automatic cancellation of his licence. Mr. Dakin argued that Mr. El-Hashem had in fact shown pubic spirit in obtaining the firearms, because he believed that they were better in his hands than in those of the persons from whom he purchased them. This excuse is reasonable and should be accepted. He made an error of judgement in not taking them to the police but there is no evidence that Mr. El-Hashem used the firearms. This error will never be repeated. 23 Mr. El-Hashem also concedes that he made an error of judgement in giving the firearms to Mr. Odelli and Mr. Baghdadi. He submits that these errors should not be fatal. The effect of losing his licence has been punishment enough and the passage of time without further incident is evidence that Mr. El-Hashem has been rehabilitated. He undertakes that in the future he will comply with all legislative requirements. 24 With respect to the Commissioner's view that it is not in the public interest that Mr. El-Hashem hold a firearms licence, Mr. Dakin submitted that Mr. El-Hashem's evidence is consistent with his recognition that possession of a firearm is a privilege and is subject to the public's right to safety. Mr. El-Hashem presents no threat to the public. He had a genuine reason for acquiring the firearms and those circumstances are unlikely to be repeated. There is therefore no reason why his licence should not be returned. The Commissioner's Case 25 The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner's case is essentially that outlined in the reasons provided following the internal review. 26 With the exception of the particular circumstances of the case, there is no general suggestion that Mr. El-Hachem is not a person of good character. The Commissioner conceded that Mr. El-Hachem is a person of good character and also concedes that no conviction is recorded against Mr. El-Hachem in relation to breaches of the firearms legislation. However, the Commissioner has concerns about Mr. El-Hachem being the holder of a firearms licence due to his failure to comply with several legislative provisions as outlined in the reasons for decision. The Commissioner argues that there is a public interest issue to be considered and that the interest of public safety must outweigh any personal interests that Mr. El-Hachem might have in possessing his firearms licence. 27 The Internal Review Reasons on which the Commissioner relies provided in part: "D. REASONING PROCESS: The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions, which allow the Commissioner to revoke a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application. After fully and independently considering all relevant matters I make the following fresh determination. In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms. In undertaking this review I have noted your solicitor's submission that the offences for which you were charged were not found proven and dismissed, that the charges should not have been laid in the first place and that once the error had been pointed out, police withdrew those charges. In this regard I concede that the matters were withdrawn by the police and did not proceed at court. However, after weighing those submissions against the underlying principals of the Act, I am of the opinion that you have forfeited the privilege of firearms ownership because you have contravened the principals of the Act and because it is not in the public interest for you to continue to hold a firearms licence. The police interviewed you on 2 January 2002 at Burwood Police Station where you made the following admissions. On the 6 February 2001 during the early hours of the morning you were at your business premises at Guildford Road, Guildford. You purchased five rifles from two unknown men on Guildford Road for the sum of $500. You stated that you phoned police the following morning to ascertain whether the firearms were stolen but that you were advised that the information could not be given over the phone and that you could bring the firearms to the police station for identification. Sometime in April 2001 two of the firearms were given to a friend, Stephen Odelli. Sometime in May 2001 one of the firearms was sold to Charlie Baghdadi who was introduced to you by Stephen Odelli. On the 13 August 2001 you took the two remaining firearms to a firearms dealer for identification and attempted to register them during a firearms amnesty. When surrendering the firearms at Granville Police Station on 18 December 2001, you stated to Sergeant Lagats that you saw two Australian males on Guildford Road with firearms and that you went over to the men and offered to buy the firearms. When asked whether you thought that it was suspicious for these men to be carrying firearms around late at night, you replied with something to the effect of "I thought it best to be in my hands as a licence holder and out of theirs. If I called the police, by the time you came they would have got away" Notwithstanding that the charges against you were withdrawn, I hold concerns in regard to your actions. You have admitted to purchasing five firearms in most unusual circumstances. They were purchased `on the spot' in the early hours of the morning in a public street from two unknown men. Section 51(2) of the Act states that a person other than a licensed firearms dealer must not purchase a firearm from another person unless; (a) that other person is a licensed firearms dealer, or (b) the purchase has been arranged through a licensed firearms dealer, or (c) in any case where a licensed firearms dealer is not (as determined by the regulations) reasonably available, the purchase is witnessed by a police officer authorised by the Commissioner. You were not a licensed firearms dealer, the purchases were not arranged through a licensed firearms dealer and the purchases were not witnessed by a police officer. In addition, section 50(b) of the Act states that a person must not purchase a firearm unless the person is, except in the case of a licensed firearms dealer, authorised to acquire the firearm by a permit (or the equivalent of any such permit that is issued under the law of another State or Territory in respect of the firearm concerned). You held no such permits for the purchase of five firearms. Further, once the firearms were illegally in your possession, you sold or gave away three of the firearms to `friends', again, without the benefit of a licensed firearms dealer or permits to acquire. As such you have contravened important provisions of the Act and the conditions on which your licence was issued. Your solicitor submits that you had committed no offences, because you could rely upon the amnesty that was in place at the time and that the amnesty provided a legislated vehicle for the registration of firearms not previously registered. The five stolen firearms had previously been registered. They were registered by their rightful owners, in accordance with the law and had been stolen during a break, enter and steal, one week prior to you purchasing them. It is my understanding that the legislation regarding the amnesty did not suggest that it would provide protection against anything other than criminal prosecution for having an unregistered firearm (whether licensed or unlicensed) and that it was not the intention of Parliament to ignore facts of matters such as this when making administrative decisions about a person's fitness to hold a firearms licence. Notwithstanding your solicitor's assertion that no offences had been committed because you could rely upon the amnesty that was in place at the time and notwithstanding that the police withdrew all charges in relation to these contraventions, I am satisfied that you knowingly and willingly breached fundamental provisions of the Act. As such, the legislation is clear that your firearms licence may be revoked for such contraventions. In regards to the remaining ground I note that this is the first occasion on which you have come to adverse notice in respect to firearms and that you have no known criminal history. However, the issue of public interest is operated in the absence of character defects with respect to exercising discretion adversely to an individual. I refer to Tolefoa v COP (2000) NSWADT 9, which provides: "(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 the public interest discretion to 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 objection. " I do not accept your advice to police that your intentions in purchasing the firearms in these circumstances were altruistic - "I thought it best to be in my hands as a licence holder and out of theirs. If I called the police, by the time you would come they would have got away." Each stolen firearm was valued by their legal owner at approximately $500, yet you purchased a total of five firearms for this price. This suspiciously cheap price and the time, place and way in which the transaction occurred lends support to my belief that you must have known or at least suspected that the firearms were stolen. In my view, even had your motivation been truly to get these guns off the street, it would be expected that the firearms would be immediately surrendered to a police officer as is required by Section 60(1) of the Act. You did not phone police immediately after purchasing the firearms and while there was some chance of the police speaking to the two persons. On your account, you rang the next morning - but only to enquire if the firearms were stolen. You were told that such information could not be given over the phone but that you could bring the firearms into a police station for confirmation. Yet you did not take the firearms to a police station to ascertain if they were stolen. Instead you retained two of the firearms in your possession for a period of over ten months. The other three firearms were given or sold to `friends', again without the use of `permits to acquire' or a licensed firearms dealer. This is contrary to one of the underlying principles of the Act to provide strict requirements over the acquisition of firearms. Your actions, in my opinion, do not suggest that you presently hold an attitude that is conducive to responsible firearms ownership. Your failure to notify change of address details is another indicator of your past attitude towards acting in accordance with the Act and Regulations. Further, it highlights your disregard for the conditions upon which your firearms licence was granted and to the principles and objectives of the Act. In determining whether or not the Registry (acting as the Commissioner's delegate) made the correct and preferable decision in exercising his discretion to revoke your licence I refer to the decision of Cusumano v COP where the Administrative Decisions Tribunal held at Para 23: "There is no guidance in the legislation in relation to how these discretions should be exercised. In my view the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. " Further, the Act does not list the factors which a decision maker must take into account when deciding whether to revoke a person's licence. In those circumstances the discretion should be exercised in a way which promotes the principles and objects of the Act as set out in Section 3 of the Act. I am satisfied that the public would view your actions in regards to the original purchase of five stolen firearms and your possession of two of those firearms for a period of over six months prior to your attempt to have them registered as a threat to their safety. In addition I am satisfied that the public would view your actions in regards to the unlawful way in which you subsequently transferred three of these firearms to `friends', as serious breaches of the conditions upon which you were granted a firearms licence and also in direct contradiction of the principles of the Act, in aiming to improve public safety. Notwithstanding that an amnesty was in operation when you attempted to register the stolen firearms and notwithstanding that a decision was made by the police not to proceed with charges against you, I am satisfied that you have contravened provisions of the Act and the condition upon which your licence was issued. Further, I am satisfied that Parliament intended the amnesty to allow licence holders to register previously unregistered firearms. It did not amount to an `open season' on trading stolen and lawfully registered firearms between licence holders. While the amnesty provided immunity in respect to criminal offences under the firearms Act in this case, it is my belief that it was not parliament's intention to prevent such information being used for any purpose - such as assessing a person's suitability to hold a firearms licence. I have weighed your stated desire to hold a firearms licence for the purposes of target shooting and recreational hunting, together with your lack of previous adverse history and the circumstances surrounding these incidents, against the `public safety' scope of the Act. Because of your past actions I am not satisfied that you can be trusted in the future to comply with the strict requirements of the Act relating not only to the registration, acquisition and disposal of firearms but to your responsibilities as a licence holder in general. The 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 to them. As such, I have decided against varying the decision to revoke your firearms licence. 28 Mr. Karp for the Commissioner argued that this matter is only unusual because of Mr. El-Hachem's actions. He decided not to call the police when he was confronted with the opportunity to purchase the firearms. A public spirited approach would have been to contact the police, to attempt to get the firearms into custody and to investigate the circumstances. Mr. El-Hachem is an experienced firearm holder. He is aware of the legislative requirements. Nevertheless, on the facts, Mr. Karp submitted, there is an inference of at least 23 breaches of the Act regarding the buying, selling, possessing and failing to surrender the firearms. 29 Mr. Karp referred to the decisions in the matters of FB -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 28 and Cook -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 30. He argued that these are authorities for the principal that the Tribunal must be satisfied that there is virtually no risk to the public before Mr. El-Hachem's licence would be reinstated. 30 The Tribunal has a responsibility to ensure adherence to the legislative requirements. There is a need to promote general compliance with those requirements. Findings Generally 31 I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have reached the following findings of fact: · Mr. El-Hachem was issued with a Category AB firearms licence for the genuine reasons of target shooting and recreational hunting on 4 April 1998 and a Category H firearms licence for the genuine reasons of target shooting on 19 February 1999; · Mr. El-Hachem's licence was suspended on 2 January 2002 and subsequently revoked on 30 September 2002; · Mr El-Hachem enjoys the sport of hunting and target shooting; · Mr. El-Hachem is aware of his responsibilities as a firearms licensee. · on 6 February 2001 Mr. El-Hachem purchased five firearms for an amount of $500 from two unknown men; · the five rifles purchased by Mr. El-Hachem were stolen on 27 or 28 January 2001; · the rifles purchased by Mr. El-Hachem had an approximate value of $500 each; · Mr. El-Hachem did not provide police with any identifying particulars of the men from whom he purchased the firearms; · Mr. El-Hachem gave two firearms to Mr. O'Delli and sold one firearm to Mr. Baghdadi. He surrendered the other firearms to police on 18 December 2001; · the firearms amnesty held between June 2001 and November 2001 allowed the holder of a firearms licence to register previously unregistered firearms; · the firearms offences for which Mr. El-Hachem was charged on 29 January 2002 were withdrawn by police; · That Mr. El-Hachem has no prior criminal history or adverse firearms history; · if his licence is restored and firearms returned Mr. El-Hachem intends to comply with the legislative requirements in regard to firearms? 32 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. El-Hachem's licence is reinstated. Before a licence is issued, the Commissioner must conclude that there is virtually no risk to the public associated with the issue of the licence. In these matters the Tribunal stands in the shoes of the Commissioner and must assess that risk. The likelihood of risk must be assessed by reference to Mr. El-Hachem's prior conduct. 33 By his own admission Mr. El-Hachem has breached certain provisions of the Act in relation to purchase, keeping and sale of firearms although he was not convicted of any offences. He was aware of his responsibilities with respect to the firearms but chose to not comply with his obligations. He concedes that this was an error of judgement. 34 Against this must be weighed his undisputed good character; his history of firearms use that is incident free but which is overshadowed by this failure to comply with the legislative requirements; and his undertaking as to future conduct. 35 One of the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms. One of the objects of the Act is to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms. Ensuring that firearms are acquired and sold in accordance with these provisions decreases the likelihood that they may be used in committing serious offences against the community. The principles and objectives have been reinforced in numerous decisions of this Tribunal. Mr. El-Hachem's conduct must be viewed with reference to them. Parliament did not leave the manner in which firearms are to be acquired and transferred to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements. 36 Section 50(b) of the Act provides for the purchase of firearms. Mr. El-Hachem was not authorised to purchase the five stolen firearms. Once the firearms were in his possession, Mr. El-Hachem sold or gave away three of the firearms without the benefit of a licensed firearms dealer or permits to acquire. He retained the other two firearms for a period of some ten months before they were surrendered. As such he contravened important provisions of the Act and the conditions on which his licence was issued. 37 I accept Mr. El-Hachem's explanation with respect to how he came to purchase the firearms and that his intentions in purchasing the firearms in those circumstances were altruistic. I make no criticism of his actions in that regard. Nevertheless I agree with the Commissioner's view that a public-spirited approach would have been to contact the police, immediately surrender the firearms and offer the police assistance to investigate the circumstances. Following his acquisition of the firearms Mr. El-Hachem acted in complete disregard of the statutory requirements and made a conscious decision to not comply with what he knew to be his obligations. The fact that Mr. El-Hachem was not convicted of offences relating to these activities does not diminish the gravity of his actions. 38 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. On the evidence presented I accept that Mr. El-Hachem was aware of the statutory obligations. Nevertheless, his actions suggest that he did not fully appreciate the importance of strict observance of those obligations. They do not suggest an attitude that is conducive to responsible firearms ownership. Having weighed the evidence, it is my view that that the gravity of Mr. El-Hachem's actions following his acquisition of the firearms outweigh the other relevant factors. They are serious breaches of the conditions upon which Mr. El-Hachem was granted a firearms licence and also in direct contradiction of the principles of the Act, in aiming to improve public safety. 39 I am satisfied that the public would view Mr. El-Hachem's actions as a threat to their safety. I cannot as yet be satisfied that sufficient time has passed since that incident for the public to be comfortable with Mr. El-Hachem holding a firearms licence. It follows in my view that the correct and preferable decision is to revoke Mr. El-Hachem's firearms licence. Accordingly I affirm the Commissioner's decision. Orders 1. The Commissioner's decision to revoke Mr. El-Hachem's firearms licence is affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.