In my last blog, I looked at the concept of being ‘a fit and proper person’. This time, I am going to look at the ‘Public Interest’ discretion.
Public Interest can be used by the authorities to defeat an applicant, notwithstanding the shooter may be a ‘fit and proper person’, have a ‘genuine reason’ and ‘special need’ to own a firearm and have no convictions or AVO’s that may also preclude an application.
As with ‘fit and proper person’, ‘public interest’ takes its meaning by looking at the purpose of the Firearms and Weapons acts around Australia, namely public safety. Cusumano v Commissioner of Police, NSW Police Service  NSWADT 50.
The public interest discretion is clearly to be exercised in preference to the private interests of an individual or group.
It has been included in the Act to ensure that private interests are not the only matters taken into account and to amplify the scope and purpose of the legislation. Public interest is a very broad subject matter, and gives the Commissioner a capacity to exercise a discretion adversely to even an individual who can demonstrate need and fitness.
Public interest is a very broad concept giving the Commissioner the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. Commissioner of Police v Toleafoa  NSWADTAP 9
The ‘public interest’ allows, consideration of issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
One of the main issues to be dealt with by the Tribunal when considering the public interest is that of public safety. As Hennessy DP said at  in the often-quoted decision in Ward v Commissioner of Police  NSWADT 28, the Tribunal must be satisfied that there is “virtually no risk” to public safety if the Applicant is given access to firearms.
The recent case of Masterson v Commissioner of Police (2017), is an example of how severe this standard is. Masterson had obtained a category AB licence in 2011, he had three items that concerned the authorities:
- A Vektor rifle with a stock that he had modified, and there was a dispute about the nature of modifications performed.
- A Tactical Machining 80% receiver for a Ruger 10/22 this is an aftermarket 10/22 receiver purchased by mail order that is sold in a form that is 80% complete, without a serial number. Basic finishing and the drilling of several holes using a guide template being all that is required to finish the action.
- He also had a Ruger 10/22 magazine casing (not the internals) and there was evidence that he was experimenting with the manufacture of magazine housings using a 3D printer.
Criminal Prosecutions against Mr Masterson before the District Court were not successful, a District Court judge having been of the view that the 80% complete receiver was just a block of metal. But remember. Here it is not a conviction that is relevant but rather conduct, the conduct here being activities that may be precursors to an attempt at undermining the objectives of the Firearms Act 1996.
The Tribunal was satisfied that it was not in the Public Interest for Mr Masterson to have a firearms licence because they could not be satisfied that Mr Masterson would not experiment in future, and his activities at experimenting with manufacture had the potential to undermine the objects of the Firearms Act 1996.
National Firearms Lawyer
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Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.
He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.
This article is written for general information only and does not constitute advice.
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