Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Director of Public Prosecutions v Collins [2004] VSCA 179
Director of Public Prosecutions v Smith [1991] Vic Rep, (1991) 1 VR 63
Source
Original judgment source is linked above.
Catchwords
Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Commissioner of Police v Toleafoa [1999] NSWADTAP 9Director of Public Prosecutions v Collins [2004] VSCA 179Director of Public Prosecutions v Smith [1991] Vic Rep, (1991) 1 VR 63Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Estermann v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Health Care Complaints Commission v Do [2014] NSWCA 307
Moujalli v Roads and Maritime Services [2017] NSWCATAD 141
Naziri v Director-General, Ministry of Transport [2004] NSWADT 40
O'Sullivan v Farrer [1998] HCA 61, (1998) 168 CLR 210
Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355
Smith v Commissioner of Police, New South Wales Police Force and Commissioner of Fair Trading [2014] NSWCATAD 184
Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39.
Category: Principal judgment
Parties: Mr Brett A Collins (Applicant)
Judgment (12 paragraphs)
[1]
Reasons for decision
The applicant Mr Brett Collins applied to this tribunal on 25 July 2018 for a review of the decision of the first respondent made on 23 July 2018 refusing to grant him an operator licence pursuant to s 16(1) of the Tattoo Parlours Act 2012 (TP Act). He had applied for the licence on 30 April 2013.
On 19 July 2018 a delegate of the second respondent determined that the applicant was neither a fit and proper person to be granted the licence, nor was it in the public interest for a licence to be granted, by reason of the applicant's membership of the Gypsy Joker Outlaw Motor Cycle Gang (OMCG). The second respondent accordingly made an adverse security determination (ASD) pursuant to s 19(1) of the TP Act (exhibits R2, CR8).
The Commissioner of Police having made an ASD in respect of the applicant, the first respondent was automatically required to refuse the applicant a licence, pursuant to s 16(3)(c) of the Act. A stay of the decision was granted by Hennessy ADCJ on 27 July 2018 (the transcript (TS1) of that hearing is exhibit R8). The issue in this application is whether Mr Collins is a fit and proper person to hold a tattoo operator's licence or whether it is or is not in the public interest for an operator licence to be issued to him, or both.
[2]
Applicable legislation
The legislative scheme under the TP Act is discussed in more detail below. At this point it is necessary to note only that s 7(1) of the TP Act creates an offence of an individual performing any body art tattooing procedure for fee or reward unless authorized to do so by a tattooist licence. Section 9(1)(b) provides for the granting of tattooist operator licences and tattooist licences to persons, which authorize the licensee to "perform body art tattooing procedures in accordance with this Act and the conditions of the licence": s 9(3). The provisions in part 2 of the act requiring the holding of licences came into operation on 1 October 2013.
When the first respondent's chief executive receives an application for a licence, he or she is required to refer it to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, or whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b)(i).
Section 16(1) confers on the chief executive a general power to deal with licence applications and to grant or refuse a licence. That general discretion is limited by s 16(3), which provides that "The Chief Executive must not grant a licence if…(c) an adverse security determination has been made by the Commissioner about the applicant".
Under s 27(1)(a) of the TP Act, a person whose application for a licence has been refused may apply to this tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). Section 27(3) deals with the nature of the tribunal's function. It provides as follows:
(3) If an application for a licence or for the renewal of a licence was refused or a licence was suspended or cancelled by the Secretary on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review or a close associate of the applicant:
(a) the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and
(b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and
(c) the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner.
[3]
Respondents' evidence
As the applicant was not legally represented, the respondents presented their evidence first. They relied on documentary evidence, including the s 58 documents (exhibit R1), the ASD (exhibits R2, CR8) and certain further evidence (exhibit R3), as well as the oral evidence of Detective Senior Constable Mark McLean.
In his examination-in-chief at the hearing, DS/C McLean adopted his affidavit dated 14 September 2018 (exhibit R4), which begins by explaining that he is attached to the New South Wales Police Criminal Groups Squad, of the State Crime Command. He has been a police officer for 16 years and has had specialized knowledge, based on his training, study and experience, of outlaw motorcycle gangs (OMCGs) since 2009. His unit was instructed on 15 August 2018 to provide a statement regarding the general identifying characteristics of OMCGs, the particular attributes of the Gypsy Joker OMCG, including its history, structure, culture and characteristics of motorcycle clubs known as Gypsy Jokers/Gypsy Joker, as well as the membership status and ongoing links of the applicant in the Gypsy Joker OMCG.
On the basis of his experience, training and specialized knowledge about OMCGs, he is of the opinion that Gypsy Joker OMCGs are motorcycle clubs whose memberships consider themselves, and who are considered by others, including rivals, as "outlaws" not bound by the same laws as the rest of society. They advertise their self-identification, and identification by others, as "outlaws" through insignia including patches, jewellery and tattoos, and defend their "exclusive" right to wear and display those items.
They are hierarchical in nature and governed by rules that are often enforced by violence or other criminal activity or both. They are invested in a culture and system whose recruitment and initiation periods are calculated to lay a foundation of absolute loyalty to the OMCG and its members above all else. The groups are predicated on an expectation that once a man becomes a full member, he will remain one for the rest of his life.
OMCGs are involved, or have been involved, in serious crime and threats to public safety including murder, drug manufacture, cultivation and distribution, organized property theft and fraud, violence, extortion, intimidation, riot, affray, corruption of justice and firearms and weapons-related offences. They were also immersed in a culture of violence, fear and intimidation that often results in violent conflict in public places with rivals and members of the broader community. They are recognized by law enforcement agencies throughout Australia and the world as organized crime groups that pose a significant criminal threat and risk to public safety. Those agencies allocate significant funds and resources to the ongoing investigation of their illegal activities. The affidavit details the deponent's reasons for forming those opinions in annexure 3 to exhibit R4.
[4]
Applicant's evidence
The applicant failed to supply a witness statement, despite being specifically directed by Hennessy ADCJ to do so and having been given a general indication of what it should contain (TS1, p 29). He did, however, file a bundle of certificates and other documents (exhibit A2). He said in chief that he had started his tattoo parlour business 25 years ago in Wodonga, then moved to Wangaratta. He then relocated to Albury, where he also ran a video shop, 7 years ago. He was the sole operator of all his businesses. He had been a Gypsy Joker member, having started the club in Victoria. It had been the only Gypsy Joker chapter in Victoria and probably still is. It was registered with ASIC and he had obtained for it a restricted Victorian liquor licence as a registered club.
He had purchased four factory units in Wodonga, which he had resold to North East Investments, who sold them in turn to the proprietor of a fruit business. He had helped North East to buy property, including the chapter's meeting place. The local council had objected to their development application, and an appeal to the Victorian Civil and Administrative Tribunal (VCAT) had been initiated. He had travelled to Melbourne to help North Eastern with the case, which they had won, obtaining the necessary approvals in 2013. He was simply helping friends and had received no money for his involvement. In fact he had not realized he was still a director of North East, but he had to be in order to meet VCAT's requirements.
He had participated in club rides now and then until about 3 years ago, but now had no contact with the club and was not a member. He could not have any contact because of the new association laws. Besides, he now had a different lifestyle. If he were a member, he would lose his business licence, as North East Investments was probably still leasing property to Gypsy Joker.
In cross-examination the applicant said he is now aged 52 and lives in Lavington, New South Wales, in a property that he bought in about 2003 and which is in his name. He had married his ex-wife Bianca in about 2000 and they had divorced in about 2006. Shown the recent photographs of his back, chest and arms, he explained that the artist determines the meaning of the tattoos he creates, but the customer decides on the designs he wishes to have. The artist reflects the story that is told to him.
[5]
Respondent's submissions
The respondents relied on their written submissions in which they stated inter alia that the applicant is now aged 52 and has a criminal history extending from 1986 to 2012, while he was between 20 and 46 years of age. His convictions included one for trafficking a commercial quantity of methylamphetamine. He had been an associate of, or associated with, Gypsy Joker since at least 1994 and a member since at least 1996, if not earlier. He had been president of the Wodonga chapter since at least April 1999 to at least January 2012.
He had been sighted in April 1999 as part of a group of 15 or 20 riders speeding through Albury-Wodonga and disregarding a red light signal. The applicant had been identified in the police report as the president of Gypsy Joker. All riders were seen to be wearing OMCG "colours". Between November 2000 and December 2001 the applicant had been recorded as being in the company of other OMCG members and backers on three occasions wearing Gypsy Joker colours and in one instance informing police that he was president of the Wodonga chapter.
On 9 January 2012 he was seen wearing full colours in Gilgandra in the company of two Gypsy Joker members, also in colours, and had identified himself as Gypsy Joker president. In April 2012 police reported that the applicant's Twin City Tattoo parlour in Albury was run by Gypsy Joker. During the incident involving the allegation that he had been driving a VW support vehicle in company with some 60 riders and support vehicles on 13 August 2016, he had spoken to police on behalf of the other riders. From October 2002 to November 2003, May 2006 to January 2007 and July 2011 to July 2018, he had been one of several directors of North East Investments Victoria Pty Ltd and the sole secretary of the company from July 2011 to July 2018. From October 2002 to July 2006, he had been one of six shareholders holding one of the six issued shares in North East, subsequently increasing his holding to 3 issued shares by 2017. At the time of the 2013 VCAT decision granting North East a development permit for land within the Wodonga Enterprise Park, he was one of two directors of North East.
His criminal history included drug convictions on two occasions, firearms offences on two occasions, one instance of selling liquor without a licence, two prescribed concentration of alcohol disqualifications and the wildlife offence referred to above. One of the drug convictions, for trafficking amphetamine, arose as a result of a search warrant executed on his Wodonga residence on 10 October 2002. Police found 67.9 g of methylamphetamine, $18,350 in cash and a pistol, as well as a further $29,850 cash in a hollow workbench. The methylamphetamine was estimated to have a street value of $79,000. An earlier police search in February 1996 had located firearms and other property suspected of being stolen or unlawfully obtained. There was also evidence that he had been dealing in motor vehicles without a motorcar trader's licence.
[6]
Applicant's submissions
When the respondents had completed their open submissions the applicant sought an adjournment to allow him to prepare his submissions, possibly with legal assistance, saying he had been unable to keep up with the respondents' submissions and needed to speak with his accountant, who had been the accountant for North East Investments. He also wished to obtain a transcript of the present proceedings. He had no Gypsy Joker tattoos, but did have a "lethal threat" surfing design. There had been Victorian Supreme Court proceedings that were more important than those in 2002 and showed the confusion and mixed terms used in relation to the methylamphetamine conviction.
He had served four months of a 12 month sentence for that offence. In the later Local Court proceedings, however, he had proved that the money found on his premises was from his business. He had purposely distanced himself from Gypsy Joker, as he had nothing to gain from being a secret biker. He had held a real estate licence for two or three years and had passed New South Wales and federal background checks in order to obtain it.
He had held a New South Wales ABC firearms licence since the late 1980s and had been a keen skeet shooter, but had allowed his licence to lapse in about 1996 as by then he had been living in Victoria. At the time of applying for his real estate licence, he could have applied for appointment as a Justice of the Peace on the same form. Under that licence he had authority to hold moneys in trust accounts.
His business supports local charities, including the children's hospital and veterans' organizations. He does therapeutic body piercing on referral from medical staff at Wodonga Hospital, for example to rectify nerve endings in the ears. His business was above board and was a local employer. It was the only tattoo parlour in the New South Wales part of the Albury-Wodonga bi-state area.
In relation to the applicant's application for an adjournment to prepare his submissions, and bearing in mind that he proposed to apply for a transcript and that the Christmas-New Year break and school holidays were approaching, a direction was made that the applicant was to have until 25 January 2019 to file and serve his written submissions. The respondents were to have until 8 February 2019 to file and serve their reply and tender any further evidence on matters arising from the applicant's submissions.
[7]
Consideration
The tribunal has jurisdiction to hear and determine the present application by reason of s 27(1)(a) of the TP Act. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act), the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the first respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and 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 it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
[8]
The legislative scheme and the tribunal's approach
The applicant has applied for review under s 27(1)(a) of the TP Act of a decision taken by the Director-General of Fair Trading under s 16(3) of the TP Act to refuse to grant him a tattoo operator licence. The Commissioner of Police made an adverse security determination (ASD) (exhibit R2) under s 19(1) of the Act to the effect that the applicant was not a fit and proper person to be granted the licence and that it was not in the public interest for the licence to be granted. Pursuant to s 27(3), the Commissioner is a party to these proceedings.
The TP Act introduced licensing requirements for operators of tattoo parlours and tattooists that came into operation on 1 October 2013. Two kinds of licence may be granted: an operator licence and a tattooist licence. Only an individual can apply for a licence, even where the individual is applying on behalf of an organization: s 11. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to the public interest" to grant the licence. It is an offence to perform body art tattooing procedures without a tattooist licence: s 7.
A person may apply to the director-general for a tattooist operator licence pursuant to s 11. Section 13 provides for the fingerprinting and palm printing of applicants. On receiving an application for a licence, the director-general is required by s 14(b) to refer the application to the Commissioner for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, and whether it would be contrary to the public interest for the licence to be granted.
Section 19 requires the Commissioner to inquire into and determine, and report to the director-general on, those matters. For the purposes of making his determination, the Commissioner may have regard to criminal intelligence reports or other criminal information held in relation to an applicant: s 19(3). The director-general has a discretion whether or not to grant a licence in some circumstances, but must not grant a licence if the Commissioner makes an adverse security determination in relation to the applicant: s 16(3)(c). Once granted, a licence remains in force for three years; it may not be renewed, but a new application can be made: s 17.
Pursuant to s 27(1)(a), a person may apply to this tribunal for review of a refusal or failure by the director-general to grant a licence. The Act does not expressly confer jurisdiction on the tribunal to review any report or determination made by the Commissioner of Police but does so implicitly, as s 27(3)(c) provides that "the Tribunal is not prevented from determining whether the director-general made the correct and preferable decision regarding the application of the licence concerned merely because of the determination of the Commissioner": Smith v Commissioner of Police and Commissioner of Fair Trading [2014] NSWCATAD 184, [22]. Nevertheless, the tribunal is required to take the ASD into account as an essential, legally relevant, consideration to which weight must be given: id., [24].
[9]
Whether a fit and proper person
The respondents' case is that the applicant is not a fit and proper person by reason of his criminal history and his membership or association with the Gypsy Joker OMCG.
Now aged 52, Mr Collins lives at Lavington, New South Wales, a suburb of Albury. He operates two tattoo parlours trading under the name Twin City Tattoo, one in Wodonga and one in Albury, and is premises manager for both establishments. The Wodonga location is his principal place of business (TS1, p 11). He maintains the two premises some 15 or 20 minutes apart rather than consolidating them because of floor space requirements and because some of his Victorian customers prefer not to cross the border (TS1, p 12).
He had conducted the Wodonga shop for 26 years and had previously also had a tattoo parlour in Wangaratta, Victoria, but had sold it. He had operated the Albury business for about 7 years. The two businesses are owned by Lumpy Holdings Pty Ltd ATF Brett Collins Family Trust, of which he is the sole director and shareholder, as well as company secretary. The trust's beneficiaries are himself and his children. He obtained a real estate licence about two years ago but does not practise as an agent.
As regards his criminal history, a check conducted on 24 April 2018 (exhibit R2, pp 57-58, also see pp 68-70) discloses the following criminal matters:
On 18 June 2004, the applicant was convicted in the Melbourne County Court of Victoria of trafficking amphetamine (on the basis of evidence relating to events in 2002) and was given a 12-month sentence, eight months of which was to be suspended, and fined $10,000. The applicant claims that the conviction was actually for possessing a trafficable quantity, not for the more serious offence of trafficking itself. Neither the Victorian Court of Appeal report (cited below) nor the documentary evidence supports that allegation.
On the same occasion he was convicted of possessing an unregistered and unlicensed handgun and was convicted and fined $2500.
Wodonga Magistrates' Court on 21 May 2003 convicted the applicant and fined him $200 for cannabis possession, on 6 May 1997 fined him $2000 for selling liquor without a licence and on 2 July 1996 fined him $1000 for possession of an unregistered and unlicensed firearm.
[10]
Whether the issuing of a licence would be contrary to the public interest
The phrase "public interest" is not defined in the TP Act or the regulations. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms:
[A]n inherently 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. 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.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said:
The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].
Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53].
[11]
Orders
1. Decision under review affirmed.
2. Pursuant to s 64(1)(d) of the CAT Act, the contents of confidential exhibits CR 8 and CR 11 and the transcripts and records of the confidential hearings are not to be disclosed to the applicant.
3. Pursuant to s 64(1)(c) of the CAT Act, the contents of confidential exhibits CR 8 and CR 11 and the transcripts and records of the confidential hearings are not to be published.
4. The stay order made on 27 July 2018 is to remain in operation until 12 April 2019.
[12]
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: 12 March 2019
The affidavit states (annexure 4) inter alia that the Gypsy Joker Motorcycle Club is an OMCG embracing and promoting the 1% or "outlaw" image. It was originally formed in San Francisco, California in 1956 and has spread to Australia, Germany, Norway and South Africa. It is often referred to in Australia as the "Gypsy Jokers", but about 10 years ago the name was altered to bring it into line with the United States, Germany, Norway and South Africa, where the club is called the Gypsy Joker. The club displays a three-piece patch with a top "rocker", or section, that reads "Gypsy Joker". The centre patch features a laughing skull with an earring through the left ear to symbolize a gypsy. The bottom rocker consists of the word "Australia".
The Gypsy Joker is an OMCG whose membership displays the standard characteristics of that genre. Members wear identifiable insignia or club "colours" or paraphernalia, they use the "1%" patch and symbolism and claim the right to use it, they use a three-piece patch which is "earned" incrementally and claim the right to use it. They self-identify as "outlaws" and are recognized by rival OMCGs and the community at large as such. They adhere to a culture of silence towards non-members, particularly law enforcement, and have members who engage in organizing, supporting or conspiring to engage in, criminal activity. They pose a risk to the safety and order of the community and meet regularly in clubhouses or other meeting places. As an OMCG, they have a club identity and ideology and a sense of territoriality and territorial control. The use of fear and intimidation against non-members and a reputation for violence and the use of firearms and other weapons is characteristic. They have some affinity with motorcycles and hold mandatory motorcycle runs.
As is typical, they have chapters, more than three in number, which have the same ideology and enforced loyalty. It is not possible simply to join the organization.
Not all OMCGs have the same ideology. Probation rules and hierarchical structures may vary, but they will all say that they are 99 percent outside the law, have a rank and file structure and defend their club colours. Gypsy Joker members wear three patches on the back of their jackets. The older type of colours bore the name "Gypsy Jokers" in the plural (for example exhibit R4, p 109), but later versions changed to the singular (e.g. exhibit R4, p 111).
In the witness's opinion, the Gypsy Jokers and Gypsy Joker are the same entity. At present they have some 7 chapters in Australia with approximately 150 members. Many OMCGs in New South Wales have moved underground because of the consorting laws, but there is believed to be one chapter in New South Wales and one at Wodonga, Victoria. They are apparently part of the same organization, as no OMCG branch would tolerate the existence of a club with a similar name, just as they defend their colours by force. The Ulysses motorcycle club, which is a social club and not an OMCG, was forced to delete its own 3-piece patch from its members' jackets.
New South Wales law enforcement consider the Gypsy Joker to be a criminal threat. In New South Wales, numerous Gypsy Joker members and nominees have been involved in, or arrested for and convicted of, or all three, serious criminal offences.
In the witness's opinion, available information shows that the applicant has been a member of the Gypsy Joker OMCG since at least 1996 and has held the rank of president, in the Wodonga branch, and may still hold that rank. The execution of a search warrant by Wodonga CIB in 1996 discovered that the applicant was president of the Wodonga branch. If he was president in 1996, he must have been a member for some years before that. He had to serve as a "nom" (nominee or probationer) for a year and then progress through the ranks. A 1994 Victoria Police report listed him as a member. The witness believed he was still president or at least a member. Leaving an OMCG would usually entail an exit fee of between $10,000 and $20,000, handing over the member's Harley-Davidson and removing any club tattoos. Sometimes a departing member could negotiate to retain his motorcycle. As there is no information other than Mr Collins mentioning to a police officer that he had left the club, the witness believes that he remains a current member of the Gypsy Joker OMCG (exhibit R4, annexure 5). After 10 years, a member can become a life member.
The inference that the applicant remains a member was supported by a report on 13 August 2016 stating that Narranderra police stopped approximately 60 motorcycles and support vehicles at about 3:00 pm. The group consisted of a number of riders wearing Gypsy Joker OMCG and Fourth Reich OMCG colours and clothing. The applicant was identified through previous dealings and was spoken to by police. At that time he was driving a VW van with Victorian plates which was registered to Gypsy Joker Motorcycle Club Inc., of Wodonga. He spoke to police on behalf of the other riders.
Groups will sometimes ride together if the clubs represented are on friendly terms. The Fourth Reich chapter was based at Albion Park. For the applicant to serve as spokesman and have authority to talk to the police he would have to be an office bearer or a life member. The witness had not seen him in club colours displaying a life member patch, nor had he seen any documents attesting to that status, and could accordingly not be certain that he was a life member.
In cross-examination the applicant put a number of propositions to the witness, including that his gypsy tattoo related to a tattoo parlour, not a club, and one of the tattoos on his arm related to surfing, not a motorcycle club. He then stated that a tiger tattoo which he bore was designed to cover up a club tattoo and asked the witness if the fact of covering a club tattoo would show that he was no longer in the club. The witness agreed with that proposition, adding that a person could not remain in the club if he had covered up his club tattoos.
In relation to the Narranderra episode, the applicant asserted that he had not shown his licence and was not in fact there driving a VW van. The witness said he himself was not there either and that he had to go by the information in the COPS database, and it was hard to keep it accurate because of the OMCG code of silence. The witness was then asked if a member who had started the Wodonga chapter and served as president was likely to have been charged $20,000 if he wished to leave.
The witness replied that other clubs have that practice, but he could not be sure that Gypsy Joker does. He agreed that Gypsy Joker might in fact not charge anything, adding that chapters and clubs were not all the same. He also agreed that the applicant, or signs relating to him, had not been seen in the course of the police raid on the Horsley Park clubhouse on 3 January 2018.
In re-examination the witness was asked about the applicant's claim that he had received a call relating to the club's Christmas run from an Albury detective, replying that his information was from his own interactions. If a former member was used for liaison with police, he would not necessarily have a report about it unless an intelligence report had been created. But research would capture any intelligence reports.
In relation to a tattoo parlour "flash sheet" of specimen designs, Detective McLean said that a swastika emblem did not mean a connexion with Gypsy Joker but was a white power symbol used by Fourth Reich OMCG. Asked whether anyone might have a clown tattoo, the witness answered that he had seen it only on Gypsy Joker members, mainly on the forearm.
A confidential hearing of further evidence in chief was then held.
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Following the adjournment part heard of the Albury hearing on 29 November 2018, a further confidential hearing was held at Sydney on 20 February 2019. A closed hearing order was made pursuant to s 49 of the CAT Act.
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His earring had been a gift from his business partner, Michael Uzzell, when he had opened his first shop. Twin City Tattoo is the name he has used for his businesses, and he currently operates two parlours, one in Albury and one in Wodonga, the Wangaratta business having been sold. His Albury salon is about 15 to 20 minutes' drive from the Wodonga premises. He is the premises manager for both operations, which are owned by Lumpy Holdings Pty Ltd ATF Brett Collins Family Trust. The beneficiaries are himself and his children, and previously Bianca also. He is the only director and shareholder of Lumpy and is also the company secretary. He had applied for an operator licence in 2013, on 30 April. The form had been filled out by his accountant.
He has 6 workers, including himself. Those at Albury are casuals, and those in Wodonga are sub-lessees, as the Victorian licensing requirements are different. In New South Wales the workers must be casuals and cannot be sub-lessees, otherwise they would need an operator licence also. He himself is not paid as premises manager but draws a weekly wage of $700 from the trust, together with allowances for a car, fuel, telephone, airfares and legal expenses. He had received a car, a 2012 Mercedes-Benz, registered in the name of Lumpy Holdings. Previously he had also driven a Holden Grange HSV, a Toyota Sahara 4WD, a Toyota Land Cruiser (possibly in his own name) and a Mitsubishi Pajero. The company had owned a BMW M3 years ago. He had owned some classic cars.
He currently owned 3 Harley-Davidsons and a Triumph, but had started out with a Suzuki. He still has a silver (chromed) Harley-Davidson, and his others are black and blue respectively. He also now has two KTMs.
North East Investments Victoria Pty Ltd was registered in 2002. Their accountants since 2008 had been Stewart Tracy. Wodonga is the company's principal place of business. The Kendall Street factory units are now owned by the fruit and vegetable company, Gypsy Joker having sold them to North East. The club premises had been at Kendall Street. He was not now a director of North East. When it was pointed out that his dates as a director were shown as 2011 to 2018, he replied that he had been helping with the planning matter with Wodonga City Council. He had taken the matter to VCAT because of the inordinate time the council was taking to process the application. He had not given evidence in the proceedings but had given some instructions. The permit was received in mid-2013.
The witness agreed that his letter of resignation from the company (exhibit R7, Tab S) was dated 23 July 2018, but added that he had not thought about his membership until the NCAT hearing was approaching. He was not sure why he had become a director of North East, and he was bad at dates, but it could have related to the sale of the factory units. He has held a real estate licence for two years.
The hearing was then adjourned part heard to Albury courthouse on 29 November 2018. In his resumed cross-examination on that date, the applicant said that North East Investments had sought a VCAT review of a planning permission application for a development in Wodonga as part of the Wodonga Enterprise Park, as the local council had proved dilatory. The intention had been to use this development in part as a meeting place and store that would be leased to Gypsy Joker, and in part as a mechanical workshop. VCAT gave the necessary permission (exhibit R5), but the construction was never completed by North East as the development's financiers had withdrawn. He himself had been a director and shareholder at that time. He had retired from Gypsy Joker about 10 or 12 years ago because his life and interests had changed. He did not have time for that activity any more because of work commitments and his responsibilities towards his three young children.
At the time he applied for his licence in May 2013 he might have been a director of North East, as he had been in and out of the corporation a few times. He agreed that he had been appointed as a director in July 2011 and remained such until July 2018 and that he had not declared his directorship in his application, as he had not been aware that he had to disclose it. He had declared only his interest in Lumpy Holdings, but his accountant had filled out the form, although he had signed it himself. His non-declaration about North East was not motivated by his concern about the association with Gypsy Joker, but because his accountant had completed the form.
He had ceased to be a director of North East on 28 July 2018 because he had become aware that he was still a director of the company, having been told so by counsel at the stay hearing. He had been playing no part in the company's operations and had last been active at the time of the VCAT hearing, purely in order to help out. He could recall nothing after the VCAT decision except that he had lent a hand with the laying of the concrete slab, dealing with the privately-employed inspector and paying the concrete company, the inspector and the lawyers, from North East Investments' accounts. But there had been another signatory for those accounts as well, a man named Max.
He recalled the incident in April 1999 recorded in police event report E6428464 (exhibit R2), which described him as the president of Gypsy Jokers and stated that he had approached police and enquired what was happening. All persons in the group of Gypsy Jokers and Black Uhlans he was riding with were wearing colours and were seen drinking at a bar together. He recalled talking to police, his motorcycle having broken down. It was possible he had been president from about 1994, but was certainly president from 1996.
Police event report E46766859 dated 9 January 2012 (exhibit R2, p 60) recorded that the applicant had been seen with two other Gypsy Joker members in full colours and carrying a bag of Jim Beam cans at Gilgandra. Police had informed the three that they were in breach of the Local Government Act as the entire town was an alcohol-free zone and alcohol was not to be consumed within Gilgandra streets and lanes, and had issued them with a warning. The applicant acknowledged the incident but said he was not president at that time, having retired, and had just gone for a ride with the others. He had been allowed to keep his club colours but later gave them away.
As regards a South Australia Police Department report dated 3 January 2001 concerning the applicant being sighted at Mount Barker in a group of club members, all wearing club colours, riding towards Adelaide for the Gypsy Jokers national run, he said he did not remember the incident but the report could possibly be correct as he had been on quite a few national runs. He would have taken part as president of the Wodonga chapter. Each chapter is a separate entity and a member wishing to transfer to another one would have to apply, although a club might feel constrained to accept a former president.
In relation to the police report that he had been stopped at Narrandera in August 2016 while driving a VW Van as a support vehicle, he denied that he had been driving a VW van. He had ceased having anything to do with Gypsy Joker about four years ago, as he now holds a business licence (presumably meaning his real estate licence, which he has held for two years). He still owns a chrome Harley-Davidson (No. 1W4YB), but last rode with Gypsy Joker some three or four years ago and in 2016 the club would not have regarded him as a member.
In 2012 a wildlife offence had been found proven against him. It concerned a diamond python that he kept in his shop as part of a display. He had held a snake licence but had overlooked renewing it because of an accident, and was fined as a result. In Victoria it is illegal to display reptiles without a special licence.
By way of re-examination he said that a lot of police intelligence gets misconstrued. He had left Gypsy Joker on good terms but now had nothing to do with it. He had been in it since at least 1994 and had been a member since at least 1996. He had been president of the Wodonga chapter since at least April 1999. He hardly rides his Harley-Davidson any more and has considered selling it.
Following the first respondent's refusal of his operator licence application by the first respondent, the applicant was granted a stay by Hennessy ADCJ on 27 July 2018.
At the stay hearing the applicant in his evidence had said he was a member of Gypsy Joker (singular) and had been for approximately 10 years. The organization was a registered club based in Wodonga, Victoria. He would see his friends who were members of Gypsy Jokers (plural) in New South Wales at Anzac rallies and during runs. He had three full-time employees at his tattoo parlour in Albury, but they were paid casually, earning $60,000, $30,000 and $54,000 respectively in the last financial year. The applicant himself was paid a wage of $700 a week and received a car and fuel in his salary package. He said that although his two tattoo parlours were located a 15-minute drive from each other, his Victorian clientele did not like crossing the border. He maintained that he had not been convicted for "trafficking" methylamphetamine, but of possessing a trafficable quantity of that drug.
He did not declare his directorship of North East at the time be applied for a tattoo operator licence in April 2013 as he had not been aware that he was currently a director, although he accepted that he was a director for the purposes of the planning application by that company to VCAT in early 2013. He disagreed that he did not declare his association with that company because he knew that it was associated with the Gypsy Jokers and asserted that the planning application concerned a meeting place for the Gypsy Joker (singular). He had last gone riding with Gypsy Joker over two or three years previously.
The respondents submitted that his evidence was a transparent attempt at obfuscation and the tribunal should find that he was not an honest witness. He was not a fit and proper person to hold a licence, nor was it in the public interest that a member of an OMCG with the applicant's extensive criminal history should be permitted to carry on business in an industry known for its involvement in organized crime.
The applicant's business served little or no public benefit. His long criminal history, in particular his engaging in illegal activities such as drug trafficking, illegal motor vehicle trading, receiving stolen goods and firearms offences showed his disregard for the law, consistently with the outlaw culture of OMCGs.
The expert evidence of DS/C McLean was that in New South Wales, the names "Gypsy Joker" and "Gypsy Jokers" are used interchangeably by members of the organization. The claimed distinction was illusory and inherently implausible also because it was highly unlikely that the Gypsy Jokers would permit Gypsy Joker to operate a chapter in Wodonga, unchallenged by the Gypsy Jokers. In his report, DS/C McLean stated that in his opinion the applicant had been a member of Gypsy Joker since at least 1996, had held and may still hold the rank of president, and that in the absence of information that he has left the club, he remains a current member of Gypsy Joker.
After outlining the tattoo parlour regulatory scheme, the tribunal's jurisdiction and the concepts of fit and proper person and public interest, the respondents argued that the applicant has a criminal history spanning three decades that includes serious criminal offences, drug offences and firearms offences. At the stay hearing he had given evidence that attempted to mislead the tribunal concerning the seriousness of his criminal history. He is a long-term member of Gypsy Joker and a high-ranking member, having been president since at least April 1999. As recently as August 2016 he was stopped by police in convoy with other members of Gypsy Joker, and at that time acted, in effect, as a spokesman on behalf of the group.
The weight of evidence supported the contention that he remains a member, most likely a high-ranking member. Any recent attempt by him to dissociate himself from Gypsy Joker should be construed as an impermanent arrangement designed to assist him in his application for a tattoo parlour licence. The tribunal should therefore, the respondent submitted, affirm the decision under review.
In oral submissions at the hearing the respondents reiterated those points and inter alia itemized their specific allegations about his record and current conduct. The respondents then further submitted that the tribunal should accept DS/C McLean's evidence concerning the applicant's tattoo, which was plainly similar to a Gypsy Joker design and could not credibly be seen as a "lethal threat" surfing logo. His wearing of a gold earring was consistent with Gypsy Joker symbolism and showed that he is still sympathetic to their activities. He was a founding member of Gypsy Joker on his own evidence and his attempted distinction between the singular and plural forms of the name was without substance as the organizations were one and the same.
The respondents referred to D/SC McLean's evidence in the transcript of the 18 September 2018 hearing as establishing that Gypsy Joker would not tolerate a similarly named organization in the Wodonga area using its colours and symbols. The confrontation with the non-OMCG Ulysses motorcycle club and assaults on persons found wearing colours without authorization established that (transcript 18 September 2018 (TS2) pp 15-16). The applicant himself had testified that he had been a founding member of the Wodonga chapter in 1994 and president from about 1996, which was consistent with a police intelligence report that he had been president since about 1996.
The applicant had admitted he was wearing Gypsy Joker colours at the time of the relatively recent Gilgandra incident in 2012, saying that he had retired but had been allowed to keep his colours and was not required to surrender them. It was notable that his club tattoo had not been covered over as is usually required of members leaving the organization and also his wearing of a club patch and a gold earring in the left ear, important components of Gypsy Joker insignia. He had denied driving a club support vehicle at the time of the 2016 Narrandera incident, which conflicted with the police report. He said he had not been in Narrandera with other members, but it is clear that he still maintains good relations with Gypsy Joker, as is demonstrated by his visible tattoo and his possession of club colours - at Narrandera in 2016 he had been seen in full colours.
He is sympathetic to the club's objectives, even if not actually a member. His denial about the Narrandera episode should be rejected as he had not been candid in attempting to draw a distinction between the singular and plural forms of the club's name. He had a material interest in concealing the truth because to run his tattoo parlour business he needed an operator licence. He had attempted to downplay his criminal history, notably in relation to his Victorian conviction for trafficking in methylamphetamine. Although that conviction was now 14 years old, it was still significant.
His claim that he has had a change of lifestyle does not mean that he has turned over a new leaf. Further, his trafficking conviction occurred when he was in his 40s, and not as a young man. He understands the sophisticated financial structure for his tattoo operations under the transitional provisions. He was a director of North East instructing at the VCAT hearing, was involved in the physical construction work for the planned development, and had arranged payment to contractors. He and his co-accused had sought to have the venue for their Victorian County Court proceedings moved to Melbourne because articles in the Border Mail newspaper had caused them to acquire a certain notoriety in the Albury-Wodonga area in 2002. The evidence showed that the applicant's duties were Australia-wide and showed an intimate relationship with Gypsy Joker of long duration. The Gypsy Joker OMCG was still active and a significant threat to public safety, and the applicant still had significant standing in that organization. He was thus not a fit and proper person to hold an operator licence because of his criminal history and his OMCG association.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
On 23 January 2019 the applicant filed a bundle of documents that included a summary of submissions. In it he stated inter alia that it had been alleged against him that he had been a member of the Gypsy Joker Motor Cycle Club Inc. since at least 1996 and that he had become president of it. "I was president of it but I ceased to be a member of it some years ago and I ceased to be a member of the Gypsy Jokers [sic] OMCG years ago". He said that he is not a member of the Gypsy Jokers motorcycle club and was never president of it. He submitted that there is no record of any evidence in the criminal proceedings brought in the Victorian County Court in 2004 that he was commercially trafficking in illegal substances. The conviction imposed on him was only in relation to possession of illegal substances. Nor was there any evidence to show that Gypsy Joker and Gypsy Jokers were related entities and that members of either have membership of both.
He had never received any complaints from persons who have had tattoos undertaken by him at either of the parlours that he has managed in Wodonga since 1993 and in Albury for 8 years.
Certain photographs relied upon by Detective McLean as being of persons who were apparently members of the Gypsy Jokers were not photographs of himself. He did not produce any evidence of the applicant's having been a member of that club. He was never president of Gypsy Jokers. He denied that North East Investments Victoria Pty Ltd was in any way associated with Gypsy Jokers OMCG. The company had been associated with the Wodonga Gypsy Joker Motor Cycle Club Inc. that organization has no history of being associated with illicit drugs.
It was not correct to say that he has or has had a criminal history spanning 3 decades. The Victorian County Court proceedings in 2004 resulted in his imprisonment and he had no criminal history since then. Those charges were now 14 years old. He had learned from his conviction and the penalty imposed on him in that case. His New South Wales real estate agent licence issued in May 2017 demonstrated that the controlling authority of that industry was satisfied with his honesty. He had a list of moneys that had been paid in advance for people who are to be tattooed, or have now been tattooed at either of his shops. There is no history or allegations of any of that money being misappropriated.
He also produced two character references, one from Mr Aaron van , Werkhoven, managing director of LJ & SM Contracting, dated 18 January 2019 and another [3 lines long] from Rev. Colin Prestidge of New Plymouth, New Zealand (part exhibit A1).
Subsequently, on 4 February 2019, the applicant lodged a further written submission, which covered much the same ground as the previous one. In it he denied being a member of Gypsy Jokers OMCG and said he had had no relevant criminal history since his conviction in the Victorian County Court in 2004. Since then he had not committed any offences, apart from the 2012 fine for keeping wildlife, which did not involve a conviction.
His membership and past presidency of the Gypsy Joker Motor Cycle Club Inc. was not the same as membership and presidency of the Gypsy Jokers. The Wodonga club was never a controlled member of a declared organization. The wildlife fine was irrelevant to the question whether he is a fit and proper person to hold a licence to operate a tattoo parlour. Since his imprisonment in 2004 he had been running and managing both the tattoo parlours at Wodonga and at Aulbury under the business name Twin City Tattoo and Body Piercing.
Neither business had been directed or participated in by the Gypsy Jokers. He had not been and was not now a controlled member of a declared organization. Both businesses under his direction had made a number of contributions to charities and he could produce the acknowledgements and thanks from those charities. Since having been imprisoned he had ceased his criminal activities and had been accepted by the New South Wales Real Estate Agency Board, notwithstanding that he had disclosed his background to them.
The assessment of whether an applicant is a fit and proper person rests with the Commissioner of Police, but the Act makes it clear that it is the director-general's decision that is under review, not the Commissioner's determination. Under s 8(2) of the ADR Act, the person or body whose decisions are administratively reviewable is taken to be the only administrator in relation to the making of an administratively reviewable decision, even if some other person or body also had a role in the making of the decision.
As with all legislation, the provisions of the TP Act and the powers that it confers must be construed and applied in such a way as to be consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28: (1998) 194 CLR 355, [69]. The Act contains no objects clause, but the tribunal may have regard to the minister's second reading speech to ascertain the purpose of the legislation, the mischief that it was designed to cure. The second reading speech of the TP Act noted that the Act was introduced in response to gang crime in New South Wales. It aimed to break the stranglehold that OMCGs had over the tattoo industry. It was expected that removing bikers from the tattoo industry would reduce the reasons for rival gangs to engage in turf wars, because those businesses would no longer be symbols of a gang's territory. The Act's purpose is not, however, limited to eradicating the influence of OMCGs in the industry. The "fit and proper" criterion applied in the Act is of much broader application, as Montgomery SM explained in his comprehensive review of the authorities in Smith, at [38] to [41].
In Smith, Montgomery SM set out the approach to be adopted when undertaking a review of a decision to refuse an application for a licence as a result of an ASD (at [24] - [28] and [32] - [37]). Those principles may for present purposes be summarized as follows:
1. As was noted above, the tribunal is required to take the ASD into account as an essential, legally relevant consideration to which weight must be given: at [24].
2. While the ASD does not constitute a prima facie position which the applicant bears the burden of displacing, due weight must be given to it: at [25] - [26].
3. Although the decision under review may be that of the secretary rather than the Commissioner, the tribunal may make a fresh determination as to whether the person is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the applicant to be granted a licence: at [31] - [32]; and
4. The tribunal is to determine what the correct and preferable decision is on the basis of the material before it and any other lawful, discretionary basis; it is not confined to the grounds relied upon by the Commissioner or the secretary: at [27] - [28], [32] - [33].
The first issue to be considered, therefore, is the applicant is a fit and proper person to hold a tattoo operator licence.
On 10 December 1986 and on 12 September 1988 he was convicted, fined and disqualified by the New South Wales Local Court for driving with more than a prescribed concentration of alcohol (PCA) and while unlicensed.
The applicant was found guilty in Castlereagh Street Local Court on 18 February 1986 of stealing by finding, but the matter was dismissed pursuant to s 556A.
In February 1996 he admitted to Victoria police that he had been dealing in motor vehicles without a licence, but the charge was not pursued.
On 14 August 2012 Wodonga Magistrates' Court found him to have been in possession of protected wildlife and fined him $250. The applicant said at the hearing that he had held a Victorian licence to exhibit reptiles and had been in possession of a diamond python used as part of a display, but because of a motor vehicle accident he had overlooked renewing his licence -- not an implausible explanation.
The circumstances of the methylamphetamine trafficking conviction as set out in the Victorian Court of Appeal's reasons (DPP v Collins [2004] VSCA 179, [6] - [10]) were that police executing a search warrant at the applicant's Wodonga residence found 67.9 g of 70 percent pure methylamphetamine, $18,350 cash, a pistol and ammunition. In a shed at the rear of the garden was a workbench with a false cavity inside containing $29,850 cash. It was estimated that if sold in bulk the drug would be worth $12,000, and if cut to street level strength would have a value of $79,000. The applicant maintains that in later court proceedings it was found that (some or all of) the cash derived from his legitimate business.
The jury was invited to, and did, return a verdict that the applicant was guilty of trafficking and on sentence the trial judge concluded that the applicant was involved in the commercial distribution of methylamphetamine. The applicant was sentenced to imprisonment for 12 months, 8 months of which was to be suspended, and fined $10,000. By the applicant's account, the drug had come from a deceased estate, he had kept it in his safe (TS1, p 21) and had not been trafficking.
There is no documentary support for the applicant's claim that he was actually convicted of possessing a trafficable quantity, not of the more serious offence of trafficking itself, although it might be thought that the sentence could seem rather light for a conviction for trafficking in such a dangerous illegal drug. On the other hand, Hennessy ADCJ thought the sentence somewhat heavy for a possession offence (TS1, p 21). A prosecution appeal on sentence was dismissed, but none of the relevant findings was disturbed on appeal.
As the applicant pointed out, there does not appear to have been any specific evidence of trafficking by him. At the same time, however, the Court of Appeal noted that the trial judge had said it was "reasonably clear that [the applicant] was not trafficking at 'street level', but he rejected the [applicant's] evidence (consistently with the jury's verdict) that he had come into the possession of the drugs fortuitously; and concluded that he was involved in distribution commercially, but could 'say no more than that'" (at [10]).
Further, it is well established that in the context of fitness and propriety it is the applicant's conduct, not the fact of conviction itself, that is of concern to the tribunal: Birch v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 166, [69]; Estermann v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. Consequently, those events weigh significantly against the applicant. On the other hand, as he pointed out, they occurred 14 years ago and he has had a good record since then.
Thus, apart from the 21 May 2003 conviction in Wodonga Magistrates' Court for cannabis possession for which he was fined $200 and the wildlife offence that he has plausibly explained, the applicant's course of serious criminal behaviour appears to have come to an end in 2002. But on the issue of fitness and propriety there remains the evidence of his association with the Gypsy Joker OMCG.
DS/C McLean's unchallenged evidence was that OMCGs are organizations whose members and hierarchy consider that they are not bound by the laws governing the rest of society. They have a rigid hiera-rchy and rules that they enforce by violence. They demand absolute loyalty from members and it is expected that members will remain in the organization for life. They are recognized by law enforcement in Australia and overseas as organized crime gangs and as a threat to public safety.
Gypsy Joker MC is an OMCG embracing and promoting the "1 percent" or "outlaw" image whose members have been involved in serious violence and intimidation offences, often in public, against members of rival OMCGs and members of the public. The incidents have not always proceeded to prosecution or conviction because of the reluctance of victims or witnesses to give evidence by reason of a fear of retribution and adherence to the culture of silence, or both. Members across the full spectrum of levels of membership have been charged and convicted of cultivating, manufacturing and supplying prohibited drugs.
Gypsy Joker MC Australia was founded in November 1969 by former members of the St Mary's Motorcycle Club who were based in the western suburbs of Sydney. Following a friendly amalgamation with the South Australian Mandamas MC, the Gypsy Joker group has had a high profile in Australia, especially in the southern and western states. The OMCG is often referred to in Australia as the "Gypsy Jokers", but about 10 years ago that name was changed to bring the club into line with the United States, Germany, Norway and South Africa, where the club is called Gypsy Joker, in the singular. Some older sets of colours still bear the name "Gypsy Jokers" in the plural. The applicant disputes this part of D/SC McLean's evidence, maintaining that the New South Wales-based Gypsy Jokers club is a separate entity from the Victorian-based Gypsy Joker.
On his own evidence, Mr Collins became a member of Gypsy Joker (in the singular) in about 1994, having been a co-founder of the Wodonga chapter, and served as chapter president from 1996 onwards. He had been a member for approximately 10 years but had resigned from the club 10 or 12 years ago when he had a change of lifestyle and interests (TS1, p 8). He distinguished between his organization and "Gypsy Jokers" in the plural, although he had friends who were members of the latter organization and occasionally met them at rallies and on runs (TS1, pp 8, 9, 13). The respondents contended that his drawing of that distinction represented an attempt to distance himself from the club for the purposes of his licence application. That could be true, although it is not easy to see how it would be particularly effective in that regard.
Granted that he had been a high-ranking member of the club starting in about 1994 or earlier, for the purposes of these proceedings the central question is whether he remains one today, or is otherwise closely associated with it. There is abundant and uncontested evidence up to December 2001 that he was an active member and chapter president, but it is necessary to focus particularly on the period from 2006 or 2008 onwards, which is the stage at which he said he had a change of lifestyle and resigned from the presidency and the club. Thereafter, he said, he had occasionally participated in rides, and had been allowed to retain his club colours.
D/SC McLean testified that on one occasion the applicant had told police that he was no longer a Gypsy Joker member but that there was no evidence to support that claim (exhibit R4, annexure 5(i)). The applicant, however, was adamant that he had retired as a life member (TS2, p 49). He had gone for a ride with them now and then but ceased to do so probably three years ago and now had nothing to do with the club: "The association laws and all the rest of it just is just I can't and I probably live a different lifestyle".
Further, the detective acknowledged that among the photographs of persons in club colours taken at the time the search warrant against the Gypsy Joker clubhouse was executed on 3 January 2018, there was no picture of the applicant, nor was there anything to do with him to be seen (TS2, p 33). He was also unable to say that Mr Collins is a life member of the club because he had never seen a photograph of him in colours or any patches belonging to him. "To my knowledge if he was wearing colours he'd have a life member's patch on the front left-hand side of his vest if he is a life member and I haven't seen any documents in New South Wales to say that he is a life member or what his status is" (TS2, p 23).
The applicant argued that there would be no point in maintaining any connexion with the club: "Sir, if I was a member of this club and I'm hiding that fact to keep my business licence, what would be the point when if I got caught with the club I just lose my business licence [presumably meaning his real estate licence]? That doesn't make any sense at all. I've - just be nothing to gain, it's - just a waste of time" (TS2, p 50).
Further evidence of an association with the OMCG, the respondents submitted, was provided by the applicant's tattoos. DS/C McLean stated that OMCGs advertise their self-identification, and identification by others, as "outlaws" by insignia including patches, jewellery and tattoos, and defend their "exclusive" right to wear and display them (exhibit R4, p 2). He attached to his statement some photographs of Gypsy Joker tattoos (exhibit R4, pp 31 - 32). The applicant tendered some photographs of his own torso (part exhibit A1) which the respondent said showed tattoos resembling Gypsy Joker designs.
Also indicative of a continuing association with Gypsy Joker, in the respondents' submission, was the applicant's position as a director and shareholder of North East Investments. Over a period of approximately 10 years, the applicant as president of the Wodonga chapter had negotiated the purchase of four factory units, one at a time. The units had then been sold to North East Investments, the plan being that the company would construct a warehouse type of building containing two entities, one part being storage and a mechanical workshop, and the other part a meeting place which North East would lease to Gypsy Joker for that purpose.
The development project had ultimately not proceeded, however, when the financial backers had withdrawn. The applicant had become a director and shareholder of North East in July 2011 and had remained so (although not necessarily continuously as a director) until 28 July 2018. He had still been listed as a shareholder on 15 May 2018 (TS1, p15). He said he had been "in and out [of North East] a few times".
Because of his real estate background, and because he had conducted the club's case when they obtained their Victorian club liquor licence, the other directors had asked him to represent the company before VCAT in their appeal relating to their development application. He had to be a director in order to represent the company, but already held that position and was happy to lend a hand to a group of friends, had received no payment and had no financial involvement in the project (TS1, p 9). The team travelled to Melbourne, and the applicant assisted with the presentation of their case, which was successful in obtaining the necessary permits on 14 June 2013.
He had not declared his directorship of North East at the time he applied for his operator licence in April 2013, and listed only Lumpy Holdings Pty Ltd ATF Brett Collins Family Trust, of which he is the sole director and shareholder and which owns both his Wodonga and his Albury salons. He said that after 2013 he had forgotten that he was still a director of North East and had become aware of the fact only at the NCAT stay hearing as a result of a comment by counsel. He denied that his failure to declare his association was because he knew it was linked with Gypsy Joker.
Asked when was the last time he went out for a ride with members of the club, he replied "I can't even remember. I know it's over three years ago, two or three years ago" (TS1, p 17).He acknowledged the correctness of police report E46766859, which states that on 9 January 2012 police approached the applicant and two other riders in a park in Gilgandra. All three were wearing full colours (exhibit R2, p 60). They were told that the whole town was an alcohol-free zone and they should not be drinking. They were cooperative and left without incident.
Mr Collins said he was no longer president at the time and had retired from the club. At the stay hearing he said, "I retired over 10 years ago from it. But I did still have friends that were in it although I didn't associate with them because of work and staff and family and I'm 52 years old, a bit old for it" (TS1, p 17) He had just gone for a ride with the two others. He had been allowed to retain his Gypsy Joker colours after retiring, but later "gave them away".
Of the Gilgandra incident, he said, "I remember being in Gilgandra for some boat races but yeah I didn't, I never… (not transcribable)... of this. I was up there on a motorcycle yeah, but you know I used to still - I retired from the club a long time ago but I still go for a ride with them. And then I stopped even doing that, I won't even go and talk to them. It's pretty sad, I can't even have a beer with people who used to be my friends, but I don't. I'm not in it. It seems to be just hounding me" (TS1, p 17).
The report of the Narrandera incident of 13 August 2016 (information report I62035418) is more contentious, however. Police reported stopping approximately 60 motorcycles and support vehicles. A number of riders were wearing Gypsy Joker OMCG and Fourth Reich OMCG colours and clothing. The applicant was identified through previous dealings and was spoken to by police. At the time he was driving a VW Transporter van with Victorian plates, RSE805, registered to Gypsy Joker Motorcycle Club Inc. of Wodonga. The applicant spoke to police on behalf of the other riders.
The applicant repeatedly denied that he had been in Narrandera driving a VW van. He put it to D/SC McLean in cross-examination that no-one had looked at his licence, to which the witness replied that he could only go from the information provided in the COPS database, which stated that police had recognized him through previous dealings with him. He acknowledged that because of the OMCG code of silence, it was "very -hard for us to keep an accurate database of who's a member, who's not a member now, what their rank is within the organisation that they belong to" (TS2, p 30). The police at the scene would not have had access to photographs of OMCG members in the database.
Detective McLean agreed that police would sometimes ask ex-members of a motorcycle club to liaise between them and the club. The reason was that "with their life experiences and their ability to be able to talk to law enforcement civilly and not be aggressive in their manner, they seem to get their point across a lot easier and they're often used as a go-between, yes" (TS2, p 33). The applicant stressed that he had had nothing to do with the club for four years (at the stay hearing he had said "two or three years ago": TS1, p 17) and that he had not been driving a VW van at Narrandera.
He did not, however, appear to deny that he had been in Narrandera with the group of 60 club members, that he had been wearing colours and that he had spoken to police on behalf of the members. Nor were those matters put to him in cross-examination. As can be seen from the above, his estimates of the time since he had last ridden with Gypsy Joker members ranged between two years and four years (he said more than once that he is "bad at dates"). If the interval was in fact two years, the Narrandera incident could have occurred at a time when he was still occasionally taking part in a club ride.
On the issue of fitness and propriety, it might be relevant to know something about his licensing history in Victoria. He has operated his Wodonga tattoo parlour for 26 years and it is his main place of business (TS1, 11). I understand that in Victoria there is no statewide legislation comparable to the TP Act, the matter being left to county and city governments. As the applicant alluded to differences between New South Wales and Victorian licensing requirements applying to his operations (TS2, p 63), it would appear that Wodonga has a licensing system. Neither party adduced any evidence or made any submissions about the applicant's current or past Victorian tattoo licence status.
It may also be noted that the applicant has no history of violence, or of threatening violence, and there appear to have been no complaints about his tattoo parlours or about any breaches of health or other standards, or of any improper dealings with client funds. He said that he supports local charities and helps bolster the local economy. The respondents pointed to the lack of evidence to support those claims. Supporting local charities is, however, a common practice among businesses in country centres and for present purposes I accept that they are correct.
In my view the lapse of time since his significant 2004 drug conviction suffices to enable the tribunal to conclude that his character and conduct are now such as to warrant licensing him to conduct a tattoo operator business. He is now an established businessman who holds a real estate licence and, as he contended, he would appear to have nothing to gain from being a secret biker. That, however, still leaves the question of a possible continuing association with an OMCG.
I accept Det.S/C McLean's evidence that the Gypsy Jokers and the Wodonga Gypsy Joker club of which the applicant was a founder and president are a single entity, if only because, given what is known about the ferocity with which OMCGs protect their emblems and their extreme territoriality, it seems improbable in the extreme that Gypsy Jokers would have tolerated the existence of the Wodonga Gypsy Joker group with such a similar name just across the Victorian border. It will be recalled that the Ulysses motorcycle club, which is not an OMCG, was forced to change its own club patches because they were in three parts, like those of an OMCG.
It also appears that Gypsy Jokers OMCG is still engaging in criminal conduct and represents a danger to public safety. On the other hand, there is no unambiguous evidence that the Wodonga group (including the applicant) has itself been engaging in criminal activities and the applicant's unchallenged evidence was that he had come into contact with New South Wales Gypsy Jokers members only occasionally and in the course of club rides. The witness also acknowledged that the applicant, given his previous standing in the Wodonga group, could have been allowed to keep his colours and tattoos after leaving and that it was unclear whether or not he had life member status.
The applicant does appear to have attempted to distance himself from the Gypsy Jokers (and may have managed to convince himself of his group's separate status) by drawing an unconvincing orthographic distinction, but in view of his own good record over the past 14 years, that may not be a decisive consideration.
The applicant admits that he was associating with Gypsy Joker members at the time of the 2012 discussion with police at Gilgandra in the course of a club ride. He strongly denies, however, that he was driving a VW backup van at Narrandera in 2016. Police identified him at the scene of the ride on the basis of their prior interactions with him, but he was apparently not asked to produce his licence. Det. McLean conceded that police records of membership and other contacts could not be comprehensive because of the biker code of silence. The fact that police at Narrandera were dealing with a group of some 60 riders at once could also have created a possibility of confusion and error. The applicant did not appear to deny that he had in fact been in Narrandera at the time, only that he had been driving the support van. That point was not, however, clarified at the hearing.
If clearly established, the Narrandera observation of his acting as a spokesman for the group could, in view of its recency, have been viewed as significant evidence of a continuing association with an OMCG. As the precise facts of that interaction are unclear, however, it would be inadvisable to place great weight on it. I therefore conclude that the evidence against the applicant on the fitness and propriety issue is insufficient to warrant a finding adverse to him, and I so find. That still leaves the question of whether issuing an operator licence to the applicant would be contrary to the public interest.
That objective must implicitly be one of the purposes of this legislative scheme and is relevant to the interpretation of its provisions. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 in the context of taxicab licensing, decision-makers must so far as possible place themselves in the position of a member of the public who might use the applicant's services and ask whether that member of the public, knowing of the applicant's record, would object to the applicant as the driver of the taxi.
A finding that an applicant is not of fit and proper character to hold the type of licence in question would normally also necessarily mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles, [34]. In this case, however, I have found that the applicant meets the fitness and propriety standards required for a tattoo operator licence. The question therefore becomes whether there are other public interest grounds justifying refusal.
The legislation's main object is to rid the tattoo industry of influence and infiltration by other criminal elements. In the context the present application, therefore, the issue is whether the granting of an operator licence to Mr Collins would tend to permit or strengthen OMCG influence on, and infiltration into, his Albury tattoo parlour business.
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The consideration set out above of whether the applicant retains an association with Gypsy Jokers OMCG that is relevant for the purposes of deciding the fit and proper person issue also assists the tribunal in resolving the public interest question. A number of points merit emphasis in the present context, however.
First, I accept DS/C McLean's evidence that Gypsy Jokers is an OMCG that has engaged in criminal activities and still represents a threat to public safety and order. For the reasons given above, I also prefer his testimony that Gypsy Jokers and the Wodonga-based Gypsy Joker Motorcycle Club Inc. co-founded by the applicant are part of the same overarching entity.
The applicant, however, has steadfastly maintained throughout the proceedings that the Wodonga-based Gypsy Joker club was entirely separate from the Gypsy Jokers organization. For example, at the stay hearing before Hennessy ADCJ he said he was a member of a club in Victoria called "Gypsy Joker MC which is a completely different entity, separate entity to Gypsy Jokers which is a New South Wales one" (exhibit R8, p 8).
Later he said, "I was never in the Gypsy Jokers, I was in the Gypsy Joker, it was a Victorian club a long time ago" (id. p 13) and that a reference in the VCAT decision to Gypsy Jokers was incorrect, a mistake (id. pp 14 - 15). Notwithstanding his emphasis on strict observance of that nomenclature, his own signed submissions filed on 23 January 2019, when referring to his former presidency of the Wodonga group, stated that "I ceased to be a member of Gypsy Jokers OMCG years ago".
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In that connexion I also note the admissions made by the applicant's counsel, Mr P Chadwick, at the Victorian County Court venue hearing. He said, "It will be impossible to conduct the defence without identifying that Mr Collins was the president of the Wodonga chapter, he had duties within the Gypsy Joker Motorcycle Club fraternity throughout Australia. Your Honour will understand that whilst the Gypsy Jokers was a motorcycle club, there is an umbrella organisation, there are chapters in various locations including Sydney, Albury/Wodonga, South Australia, Western Australia and Mr Collins is involved with the Wodonga chapter as the president for some ten years" (exhibit R10, p 18, my emphasis).
At the same time, the applicant averred that he had had only occasional contacts with Gypsy Jokers members (not members of the Wodonga chapter), in the course of club rallies and rides, and that Gypsy Jokers did not in practice control the activities of his Wodonga group. There is little evidence to contradict his claim as regards control, nor his assertion that he has never been president of Gypsy Jokers OMCG.
From 2002 to 2018 he had served (though perhaps not continuously) as a director, shareholder and sole secretary of North East Investments. He said he had forgotten that he was still a director and had stepped down in 2018 only after only after becoming aware of that fact at the stay hearing in these proceedings. That would appear to be credible, as it would be consistent with his rather careless attitude to administrative matters, which is apparent inter alia from his disregard of Hennessy ADCJ's case management directions made at that hearing.
In 2013 he had taken an active role in a planning appeal to VCAT by North East concerning a permit to build what was intended to be partly a Gypsy Joker clubhouse at Wodonga. He agreed that North East was associated with the Wodonga chapter but denied that it had any connexion with the Gypsy Jokers OMCG and maintained that the chapter had never dealt in drugs. Again, on the last-mentioned point, there was no direct evidence to contradict him.
Det. S/C McLean's evidence drew attention to a number of points that he thought indicated continuing membership by the applicant of the club. They included the fact that he had not been charged an exit fee, that he had retained his club colours and that he had a tattoo similar to those worn by Gypsy Joker members (rather than resembling a "lethal threat" surfing tattoo). He also continued to wear a loop earring in his left ear like Gypsy Joker members. Mr Collins agreed that the earring was similar to those worn by Gypsy Joker members as part of their insignia, but endeavoured to explain it as being a gift from a business partner when he opened his first shop. That would not, however, necessarily be inconsistent with its being part of club insignia. I am satisfied that the applicant was permitted to retain his club colours, tattoos and earring and was not charged an exit fee but, as Det. McLean acknowledged, that might have been because of his record and standing in the organization.
Det. McLean also expressed the view that such circumstances as retaining his club colours and tattoos, and not being required to pay an exit fee suggested that the applicant was still a member, or at least was sympathetic to the organization. Life members were permitted to transfer from one chapter to another, and while the applicant might have resigned from the Wodonga group, he could have transferred to a Sydney chapter, for example. That proposition, while plausible, is speculative.
The applicant claimed to have resigned 10 or 12 years ago but that he had thereafter continued to take part in some club rides. He said he had, however, ceased to have anything to do with Gypsy Joker in recent years as he did not wish to jeopardize his real estate licence. He variously estimated the time when he broke off all contact as being between two years ago and four years ago. But, especially in relation to events in the immediate past, there is a considerable difference between two years and four years and it is not enough merely to say, as the applicant did repeatedly, that he is "bad at dates".
He has repeatedly been sighted in the company of Gypsy Joker or Jokers members. He acknowledged that on 9 January 2012 he had been seen with two other Gypsy Joker members in full colours and had been spoken to by police at Gilgandra and had identified himself as a chapter president. He was also sighted by police at Narrandera in August 2016, possibly driving a VW support van, but for reasons given above I do not regard that incident as being fully estblished.
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In view of the evidence showing his past, long-term and active association with a known OMCG, the applicant needed to adduce cogent evidence to show that granting him a tattoo operator licence would not run counter to the public interest by opening the way for OMCG influence on, or infiltration into, his Albury business. The probability that, as Det. McLean opined, he is at least still sympathetic to the Gypsy Joker organization might not be decisive, but he needed to be able to show the Commissioner, and by derivation the tribunal, that he is not vulnerable to pressure to engage in, or support, its nefarious activities. His prominent involvement with Gypsy Joker has been too long-standing and recent to permit a favourable decision on his application.
He is undoubtedly aware of Gypsy Jokers' sulphurous reputation and he needed to establish that he has effected a complete and enduring rupture with the club for an extended period and is not vulnerable to pressure or influence from it. For the reasons given above, he has failed to do so. Instead, he is vague about when he ceased to be a member, giving the time lapse variously as "some years ago", or "10 or 12 years ago" and equally vague about when he last participated in a club ride.
He regrets that he feels he must now refrain from meeting former associates for a beer. He acknowledges that he was allowed to keep his Gypsy Joker colours after leaving the club, but states that he simply "gave them away" at some stage, without any further detail or explanation. Det. McLean's expert evidence as to the supreme importance that OMCGs attach to their colours suggests that giving away a set of those colours might be likely to provoke a violent reaction from the club.
On the basis of all the evidence before the tribunal, I therefore find that it is not in the public interest for the applicant to hold a tattoo operator licence. The decision under review is thus affirmed.
On 27 July 2018 a stay order was made pursuant to s 60 of the Administrative Decisions Review Act 1997 in accordance with the principles enunciated in Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39. The Albury tattoo parlour has 3 full-time staff whose livelihoods would be impacted if the stay order were terminated immediately. In order to allow time for the applicant and the staff to withdraw from the operations of the Albury parlour and perhaps make alternative arrangements, the stay order made on 27 July 2018 is to remain in operation until 12 April 2019.