It is not disputed by his legal representative that Mr Addison is a member of the Bandidos and is the club's National President.
This accords with the photograph produced by Mr Macken said to be of Mr Addison posing outside the Bandidos Mid North Coast clubhouse. Further photographs are contained on file including one said to be of Mr Addison wearing a motorcycle jacket with Bandido colours, namely the red and yellow patch with the words 1%er of it, and the three-piece cloth patch on the back of the jacket, with the words 'Bandidos' above the Bandidos' emblem and 'Presidente' below it. Also on the jacket were the patches '15 years Presidente' and 'Vida Miembra,' as confirmation of life membership of the Bandidos.
A company extract dated 6 June 2017 describes the applicant as the director of A.C. Addison & Sons Pty Ltd which, in a further document supplied by the applicant is described as a monumental masonry company operated by the Addison family for four generations.
In a reference dated 4 April 2016, Mr Thomas Weyrich, former Mayor at Moama in NSW, commends Mr Addison for the work he does with young adults at Junior Motor Cross and describes him as a 'good man and valued member of the Junior Motor Cross community.'
In an undated reference, Ms Margaret Clifford, describes Mr Addison as having been of enormous assistance to her family during a severe flood in Echuca. She describes Mr Addison as an excellent husband and father who is of assistance in delivering meals on wheels in Echuca.
In a reference dated 4 April 2016, Ms Jennifer Whelan, Marriage Celebrant, describes the applicant as a highly regarded craftsman, a businessman and 'an incredibly generous benefactor.' She describes him as an 'extremely decent man, incredibly hard working' and a man 'of high values, ethics and loyalty' who 'cares deeply about others, especially children.'
Given that these references appear to have been prepared for proceedings predating this review and none of the referees make mention of this review or acknowledge an awareness of it, I have afforded little weight to them.
[2]
The applicant's criminal record
It is not disputed that Mr Addison has the following criminal record:
1. Possession of cannabis for which he was fined in 1989
2. Possession of amphetamine for which he was fined in 1994
3. Possession of cannabis for which he was fined in 1996
4. Refusal to be sworn in or affirmed for which he was fined in 1998
5. Providing false or misleading documents for which he was fined in 2016.
In his affidavit dated 7 October 2018, the applicant's solicitor notes the following in relation to the applicant's criminal record:
1. Charges of theft and fraud laid against the applicant in 2015 were withdrawn by police in 2016 with the applicant pleading guilty to two summary offences against s53 of the Transport Operations (Road Use Management Act (Qld), for which he was fined $800 with no convictions recorded.
2. A charge of extortion was made against the applicant in 2015. Following a jury trial, the applicant was found not guilty of all charges in 2017.
Given that the drug related offences are now over twenty years old and that the other offences do not appear to involve either firearms or violence, I have afforded the applicant's criminal record limited weight in reaching my decision in this matter.
[3]
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[4]
Conclusion
On the evidence before me, I accept that as the National President of the Bandidos, Mr Addison is the head of an outlaw motorcycle gang where some of its members are involved in criminal activity and have been convicted of offences involving violence and firearms. I am also satisfied that by virtue of his association with the Bandidos and his position of National President, he is capable of intimidating members of the community generally and other members of the Bandidos in particular. As National President of the Bandidos, I am satisfied that Mr Addison is empowered to direct and declare disciplinary action on Bandidos members. By directing a club where its members engage in criminal activity and where, according to the Bandidos rules, solidarity between members is required, I am satisfied that Mr Addison's association with the club is such that his loyalty to Bandidos members may encourage a use of violence, thereby creating a risk to public safety and public protection.
Although neither Mr Addison nor his legal representatives are aware of the confidential material provided to the tribunal by the Commissioner, I have given some weight to it. When considering it in conjunction with the other material before me, I am satisfied that as National President of the Bandidos outlaw motorcycle gang, Mr Addison is not fit, in the public interest, to have possession of a firearm. On this basis, I am satisfied that public interest considerations make it appropriate to issue a firearms prohibition order against Mr Addison. In that case, the Commissioner's decision to issue a firearms prohibition order against Mr Addison was the correct and preferable decision and should be affirmed.
I understand the potential for abuse of the powers that are authorised by a firearms prohibition order and that they can be used as a random search power without the need for a search warrant and therefore without the protections associated with a search warrant. This potential for abuse gives me the same concerns as those articulated by the NSW Ombudsman in its review of firearms prohibition orders.
Despite this potential for abuse, the law is clear that where the Commissioner, or the Tribunal standing in the shoes of the Commissioner, is satisfied that the applicant is not fit, in the public interest to hold a firearm licence, it is appropriate to issue a firearms prohibition order against him or her.
[5]
Orders
Decision under review affirmed.
Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, the transcript and recording of the confidential hearing, all confidential material placed before the Tribunal and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 31 May 2019
Parties
Applicant/Plaintiff:
Addison
Respondent/Defendant:
Commissioner of Police, NSW Police Force
Cases Cited (10)
Role of the Tribunal
The Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, that the Commissioner's decision is the correct and preferable one. (s63 of the Administrative Decisions Review Act 1997)
In reviewing the Commissioner's decision, the tribunal is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set is aside: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
The Tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (s 30) and the Firearms Act 1996, including the Commissioner's making of a firearms prohibition order: (s 75(1)(f) of the Firearms Act.) The 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; (1984) 1 FCR 354.
The standard of proof that applies in these proceedings is the civil standard, that is, the balance of probabilities.
Not fit, in the public interest to have possession of a firearm
In determining what it means to be 'not fit, in the public interest to have possession of a firearm', I am assisted by the underlying principles of the Firearms Act that declare firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.' (s3(1) of the Firearms Act)
I am also assisted by those provisions of the Firearms Act which provide that a licence must not be issued:
1. unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace (s11(3)));
2. if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that (a) the person is a risk to public safety and (b) the issuing of the licence would be contrary to the public interest. (s11(5A))
3. if it would be contrary to the public interest. (s11(7))
Although Mr Addison is not applying for a firearms licence or permit, I agree with the reasoning of Senior Member Walker who, in the decision of Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43, found that the approach illustrated by those licensing provisions in the Firearms Act is applicable by analogy when considering the power to issue a Firearms Prohibition Order.
In particular, I agree with Senior Member Walker that the language used 'not fit, in the public interest' - being materially different from the 'fit and proper person' test in the Firearm Act's licensing provisions - implies that even though a person may have an unblemished record, public interest considerations may render the person unfit and make it appropriate to issue a firearms prohibition order against him or her.
As set out in Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, the concept of public interest allows for matters going beyond the applicant's character to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration
I agree with the following discussion of the public interest in Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149 at [31] that 'given the breadth of the Commissioner's discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence":
In both Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79, it was held that where an applicant voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety with which the Commissioner is concerned and that person may therefore be not fit, in the public interest, to be in possession of a firearm. In those circumstances, a firearms prohibition order may be justified.
The NSW Court of Appeal has acknowledged that it is commonly recognized that outlaw motorcycle gangs are involved in criminal activities: Stealth Enterprises Pty Ltd v Calliden Insurance Ltd [2015] NSWSC 1270
The enactment of the Crimes (Criminal Organizations Control) Act 2012, which can limit the activities of certain outlaw motorcycle gangs for specific periods, indicates that the legislature regards the activities of outlaw motorcycle gangs and their members as a risk to public safety: Sciberras v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206.
In Bassal v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 276, Senior Member Walker found that 'where there is evidence demonstrating that an applicant is a member of an outlaw motorcycle gang whose members are known to have engaged in criminal activity but the applicant refuses to dissociate himself or herself from it, it is appropriate to refuse the applicant a firearms licence.' In light of the overriding principles of the Firearms Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety, I agree with these findings.
The status of the Bandidos motorcycle club
As set out above, according to the NSW Court of Appeal, it is commonly recognised that outlaw motorcycle gangs are involved in criminal activities. This tribunal has also found it appropriate to refuse an applicant a firearms licence who is a member of an outlaw motorcycle gang. (See Bassal v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 276)
In considering the relevance of the applicant's membership of the Bandidos motorcycle club, it is instructive to first determine whether the club is an outlaw motorcycle gang at all.
To determine this, I have had regard to the affidavit evidence of Anthony Macken, criminal analyst and Intelligence Team Leader with the NSW Police, which sets out his knowledge of the history, structure, culture and characteristics of the Bandidos motor cycle club.
In light of his specialised knowledge, gained through his training, study and experience of outlaw motorcycle gangs since 2002, it is Mr Macken's view that the Bandidos motor cycle club:
1. is a motorcycle club which self-identifies as a 1% 'outlaw' club, where the 1% symbol is, according to Mr Macken, a primary identifier of the club's status as an outlaw motorcycle gang. It is Mr Macken's evidence that outlaw motorcycle gangs use their colours to intimidate and obstruct members of the public and rival outlaw motorcycle gangs.
2. has members who have been involved in criminal activity, including violence, weapons and drug offences
3. has a documented history of violence and possession and use of weapons;
4. has a culture and general expectation that members of the Bandidos support each other in response to any situation and that any such response is for the protection of members and the advancement of the reputation of the Bandidos.
5. has a hierarchical structure which is used for governance with rules that are enforced by violence.
6. is a criminal organisation having as one of its objectives the commission of serious violence offences, in propagation of its reputation, defence and its indicia and 'territory' and in furtherance of other criminal activity.
7. has members who engage in organising, planning, facilitating, supporting or otherwise conspiring to engage in criminal activity. In support of the statement, Mr Macken has annexed to his affidavit a list of men who were charged with criminal offences - including offences involving the possession and use of firearms - and were members of the Bandidos at the time they were charged. Mr Macken's chart does not show whether the men were convicted of the offences for which they were charged.
According to Mr Macken, outlaw motorcycle gangs have office bearers who are responsible for the administration and operation of the organisation. These include the president who according to Mr Macken:
has absolute power within the club and who has the right to veto decisions made by members concerning club business. The President may also sanction discipline, which may include serious assaults, on Members.
According to Mr Macken, all outlaw motorcycle gangs have a culture of silence towards anyone outside the hierarchical structure of the organisation, and particularly law enforcement. It is Mr Macken's experience that the culture of non-cooperation of outlaw motorcycle gang members with police is particularly prevalent. He has investigated many incidents of violence in which an outlaw motorcycle gang member has been the victim and has refused to assist police investigations.
Mr Addison did not provide any evidence to dispute the material contained in Mr Macken's affidavit, nor was Mr Macken required for cross-examination. Accordingly, there is no material before me to dispute the material provided by Mr Macken apart from the submissions by Mr Addison's Counsel disputing the nature of Mr Addison's role as National President of the Bandidos, stating that 'it never crystallised that Mr Addison has power over the members.'
In light of the material provided by Mr Macken, for the purposes of this review, I am satisfied that the Bandidos meet the definition of an outlaw motorcycle gang.