Cory v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2018-11-08

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to revoke the applicant's Category ABC Firearms licence on 18 January 2018. The revocation was on the basis that the applicant had breached the firearms legislation. In addition the Commissioner formed the view that the applicant was not a fit and proper person to hold such a licence, and also that it was not in the public interest for him to hold a licence.
The Commissioner arrived at that decision based on two factual matters: the applicant's ongoing association with the Gladiators MC which the Commissioner deemed to be an Outlaw Motor Cycle Gang (OMCG); and a single breach of the safe storage requirements of the Firearms Act 1996 which was dismissed at Court after a plea of guilty. The breach involved a single shotgun shell being located inside the firearm storage locker with firearms. The safe storage requirements under the firearms legislation require ammunition to be securely stored separately from the secured firearms.
The applicant submits that he requires the licence due to his occupation, and that the Commissioner is wrong to place significant weight on the safe storage breach. In addition, the applicant submits that the Commissioner's finding that he is not a fit and proper person to hold the relevant firearms licence and that it is not in the public interest for him to hold the licence, is incorrect.

Jurisdiction

The Notice of Revocation relies on section 24 (2) (d) of the Firearms Act: 24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27) (1) … (1A) … (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulation 2017 provides: Firearms Regulation 2017 20 Revocation of licence-not in the public interest The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision.

The decision under review

In the Internal Review the senior delegate made a number of findings of fact including that the applicant was not at home when police attended for the safekeeping inspection on 5 June 2017 and that the premises were unsecured. The relevance of this issue appears to be a general contravention of the storage requirements in s 39 of the Firearms Act which provides: 39 General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm.
The respondent did not elaborate on the significance of this issue either in the review or at hearing. I infer that the dispute about the applicant's whereabouts at the time of the inspection relates to the requirements in s 39.
In respect of the 'fit and proper' grounds, the reviewer went on to examine the early decisions under this legislation by the Administrative Decisions Tribunal (ADT). Reference was made to Haining v Commissioner of Police NSW Police Service [1999] NSWADT 6 where then President O'Conner observed at [41]: 41 The Question of "Fit and Proper" Character: Whether a person is "fit and proper" to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objectives leading the legislature to regulate the industry. The reviewer observed that the nature of the industry and the public policy objectives were the basis for the need to tightly regulate the industry and deem that access to and use of firearms was a privilege rather than a right. The reviewer observed that s 11(3)(a) of the Firearms Act provides that a firearms licence must not be issued unless the Commissioner is satisfied that the person can be trusted to have possession of firearms without danger to public safety or the peace. . The reviewer suggested that involvement with an OMCG may be inconsistent with this requirement: .. people who associate with OMCG members may be a source of public risk in relation to firearms possession. (Internal Review pg. 3)
In respect of the 'contravention of the Act' ground the reviewer addressed the safe storage breach. and found that the home was unattended and unsecured when they arrived. The reviewer also found that the key was easily located and that an unauthorised person who attended the property could have accessed the firearm and the single shell. If that had happened, it could have resulted in unauthorised use of a firearm. The reviewer adopted the reasoning in Leviny v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP at [30] - [31]: 30. Other Matters. Mr Leviny referred at hearing to the three inspections recorded in the Commissioner's material where visiting officers had found his weapons to be stored safely. Clearly he considers that taking his licence off him for one infraction is too severe. 31. It may well be that in some circumstances it would be sufficient to deal with a breach of safe storage requirements by penalty proceedings rather than by removal of a licence.
The reviewer found that consistent with the approach in Leviny, the circumstances of the breach justified the revocation of the licence.
In respect of the 'not in the public interest' ground, the reviewer again relied on the finding that the property was unattended when found unlocked on 5 June 2017. In addition the reviewer referred to the OMCG association. I agree with the original decision maker that if a licence holder remains a member or continues to associate with an OMCG, public safety is a highly relevant consideration in determining whether that person's authority for the possession and use of firearms should continue.
The reviewer balanced the unchallenged 'good character' of the applicant with the OMCG association being contrary to the interests of public safety. Crucially the reviewer observed the following with regard to the OMCG association and public safety: I place significant weight upon the fact that many members of OMCG's wear the 1% patch to signify that they are not part of the 99% of law abiding citizens, but that they are the 1% who are outlaws. In my view the public would be rightly concerned if a person who identifies with such a group has authorised access to firearms.
The reviewer also addressed the balance between the individual needs and the public interest, commenting on the financial implications of such a decision.
The applicant filed his application for administrative review on 17 April 2018. The application was filed a few days out of time but on 5 June 2018 the Tribunal extended the time for lodging the application.
The matter was heard at Moree Courthouse where the applicant gave evidence and two police officers gave evidence on behalf of the respondent. A portion of the hearing was held in the absence of the public, the applicant and his representative in accordance with s 75 (5) of the Firearms Act: (5) In determining an application for an administrative review of any such decision, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013): (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11 (5A) or 29 (3A), and (b) in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant's representative.
The police witnesses appeared by Audio Visual Link (AVL) and gave evidence in both open and closed session. The respondent did not require any of the applicant's witnesses for examination.

What issues do these proceedings raise for determination?

On my assessment the issues are the same as those set out by the Commissioner's delegate:

Is the applicant a fit and proper person to hold a licence?
Is it in the public interest for the applicant to hold a licence?
Does the contravention of the safe storage requirements warrant a revocation of the licence?

A central question is whether the applicant, as a member or person association with an organisation known as the Gladiators Motorcycle Club, is a person for whom the privilege of firearm possession and use should be entrusted having regard to the provisions of the Firearms Act and the principles enunciated in the case law.

Evidence concerning OMCG Membership (Fit and Proper / Public Interest)

Applicant's Evidence

The applicant described himself as a farmer and rural fire fighter. There was an occupational basis for his shooting licence and evidence from his written material of distressed stock needing to be 'put down'.
The applicant also was significantly involved in his community in a positive manner and provided evidence of recognition awards and his free contribution of maintenance of community assets, and stewardship of public land.
There was evidence about his principal property with two boundaries being adjoining properties, but a National Park and State Forest adjoin the other boundaries and this is a source for large feral animals which get into his property and cause problems with stock.
The applicant stated that he had never taken firearms off his property other than to transport them in a safe manner.
Concerning his motorcycling activities and interests he acknowledged that he had been a full member of the Gladiators for three years and prior to that was an associate for five years. He had also been associated with the Vietnam Veterans Motorcycle Club for 10 years prior to that.
The involvement with these groups was characterised as getting together with like-minded individuals, having a few beers and raising money for charity. The applicant enjoyed associating and getting out with like-minded people and going on rides together. The applicant had never taken a firearm on any motorcycling activity, Gladiators or otherwise.
The applicant was not done any active military service so he did not officially join but he knew service personnel who were in the Vietnam Veterans and was asked if he wanted to come along on some rides. This was 10-13 years ago.
The applicant had attended the annual Murrurundi 'show and shine', which was held approximately 320 kilometres south of his home. These activities were to raise money for welfare, the local hospital, and the fire brigade. The applicant has about 30 or 40 friends from the NSW Chapter of the Vietnam Veterans Motorcycle Club.
The applicant's association with the Gladiators came about when he attended a 'show and shine' event at Manilla. Gladiators MC members participated in these events and women and children were also present.
The applicant continues to ride with the Vietnam Veterans but less so in recent times due to police activity or operations targeting motorcycle groups in Sydney. This police activity was referred to as: 'trouble down south'. This term was used to refer to the media publicity about motorcycle clubs, and police and the OMCG police operations looking for drugs and criminal activity. These operations had led to a reduction in the applicant's activity with motorcycle groups but the Gladiators still had a ride once a month or so. Attendances and general activity had been down lately as many members were working longer hours.
The applicant had been invited to join the Gladiators by P Fuller who was a member of the Namoi Chapter. The applicant is a member of that Chapter. Mr Fuller is an ordinary Gladiators Member who does the same sort of things as the applicant. Members are not committed to going on certain rides, as it is a matter for the individual.
The Vietnam Veterans have predominantly 'rebranded' to the 'Veterans'. The fact that police target OMCG in Sydney meant that these local groups 'don't go down south' to Sydney etc. but 'just stay local'. As far as the local Chapters are concerned the Hunter Valley and Central West are all good for the club runs but Sydney is no good, due to the big population. These rural groups are put off by Police regularly pulling over motorcyclists and "defecting" them.
The applicant did not agree with the proposition that the Gladiators are 'outlaws'. The applicant had no knowledge that any Gladiators members were involved in criminal activity. The applicant stated that he had never seen a member act criminally and has no knowledge of anyone ever doing so in his Chapter.
The applicant also filed some character evidence attached to two handwritten letters filed prior to obtaining legal representation. There was a reference to a risk to the applicant's family caused by the loss of access to firearms. This was a reference to the large feral animals and his family including grandchildren not being at risk of self-harm or adverse action.
The material attached to the applicant's signed statement (Exhibit A-2) consisted of character and personal references and other documents attesting to the applicant's positive personal attributes and character.

Evidence of Senior Constable Luke

This officer was involved with conducting the inspections and issuing the breach notice. His duties at that time were to conduct inspections of suspected OMCG members or associates who had registered firearms. He undertook six inspections that week. None of the other inspections related to 'Gladiators'. In all six inspections separate breach notices were issued due to the owner's membership of an OMCG and storage issues. In each instance it was a combination of both issues.
Police would have issued a suspension notice even if there were no breaches of the legislation. The applicant's admissions about OMCG membership would have been a sufficient reason to suspend the applicant's licence.
The officer confirmed that the applicant was very cooperative with the attending police. He answered all of their questions and volunteered information. When asked if such behaviour was indicative of the officers experience in dealing with OMCG members the officer said that members of OMCGs are sometimes cooperative and sometimes not.
In the officer's view, membership of an OMCG equates to an assessment as 'not a fit and proper person' especially in the context of the firearms legislation.
The officer gave evidence that his affidavit of 10 August 2018 was based on his recollection of the events, his police notebook, reviewing the COPS Event and the applicant's licencing history.

Evidence of Senior Constable Sorensen

This officer was either not required or not available for examination. A signed statement of 10 August 2018 (contained within Exhibit 'R-3') contains the following relevant evidence of that officer. That evidence is consistent with the other witness that the applicant was wearing a jumper embroidered with the words 'Gladiators MC'.
The statement states that: 22. I asked Mr Cory words to the effect of, "Are you affiliated with the Gladiators OMCG?" He replied with words to the effect of, "Yes, I've been a full member for about 2 years". Mr Cory further stated words to the effect of, "I have been riding with the Veterans and the Gladiators for about 10 years."
The officer also sighted a Gladiators MC vest on a shelf, photographed it and annexed the photo to the statement.

Evidence of Detective Sergeant Groenewegen

Detective Sergeant Groenewegen gave evidence in both the open hearing and the confidential session. His evidence was essentially offered as expert evidence in the area of OMCG behaviour and culture in a law enforcement context. His open affidavit was adopted in evidence in chief.
There are five identified chapters of the Gladiators that Police are aware of. In recent times the Naomi Valley was possibly now part of the Macquarie Lakes chapter, but this evidence was retracted with the clarification that they were part of the Gunnedah chapter. There are also Grafton and Hunter Valley chapters with the possibility that a Maitland chapter may now exist. Police had recently learned that some of the Gladiators chapters had closed.
The officer's affidavit and report set out the history of the OMCG concept, the notion of the 'one percenters' and its meaning in OMCG parlance, as well as the identifying features being a culture of silence, retribution in the way of vigilante violent activity if outsiders transgress or insiders break the solidarity of the group. The officer's evidence included statements as to the varying levels of criminal activity and involvement in organised crime among OMCGs.
When specifically asked to take the Tribunal to the evidence in his affidavit as to the Gladiators OMCG criminality when contrasted with the more well know OMCGs the officer stated that: 'the affidavit is as much about the culture and embedded way of thinking than contrasting the criminal activities of one group over the other'.
The affidavit gave concrete examples of types of offences that OMCG members collectively commit. The Gladiators OMCG offending is at the lower end of the range of severity for OMCG offences generally. The offences attributable to Gladiators members were less serious than the average or typical OMCG offender.
The officer was asked whether he would accept that there is not always a link between the activities of (for example) two different chapters? The officer did not agree with such a general proposition.
The open evidence also concerned estimates by police of the number of individuals involved with the Gladiators and the size and strength of the various chapters. However at hearing there was no evidence of the number of members in New South Wales who were involved in criminal activities. The witness confirmed that there was no police intelligence to confirm that the applicant was involved in criminal activities.
In respect of the 'culture of silence' the issue of the applicant's full cooperation with police was raised. Police acknowledged that the applicant was cooperative with them during the safekeeping inspection.
The officer advised that the Veterans Motor Cycle Club is not currently considered to be an OMCG entity.

Confidential Hearing - not for publication

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Observations on confidential evidence

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Evidence concerning safe storage findings (Contravention warranting a revocation of the licence)

Applicant's Evidence

In respect of the safekeeping inspection on 5 June 2017 the applicant's evidence was that he was at home and saw police arrive. He was approximately 50-60 metres away from the house fixing a fence near the shearer's quarters. The applicant was adamant that he was not on a neighbouring property but on his own property when police arrived. The applicant stated that police were quite polite and he answered all of their questions fully.
The applicant described his property as having a driveway on the eastern side of the house. He did not hear Police call out but he saw them pull up near a tree.
When he spoke with police the applicant denied saying that he said, 'I saw you arrive from a neighbouring property'. In evidence about the gun safe keys the applicant gave the following evidence. The keys were kept in a glasses (spectacles) case up the back of a drawer. The drawer was at about waist height. The applicant's evidence was that he usually moves it around a bit but that he had a heart scare recently and he had not moved the keys for a while. In respect of the single live shotgun round the applicant said that it was 'right up in the corner'. The Tribunal understood this evidence as clarified later that the applicant was out of sorts and dealing with his health problem and so matters had fallen to the wayside to some extent.
The applicant referred to a cardiovascular issue and said that as a result at that time he had been in and out of hospital; once or twice a fortnight.
The applicant had since moved the gun safe and had taken up the suggestions of police. His firearms arrangements were reinspected at a later time by the applicant's own initiative and arrangement with police.
In respect of the claimed disclosure to police that he had been on a neighbour's property when police arrived for the safe-keeping inspection, the applicant was asked whether he could have said that he was on the fence of the neighbouring property. The applicant's evidence was that he was on his property and that there was an area between his fence and the beginning of the neighbour's land but that he could see the house clearly from the side of the shearer's quarters where he was working.

Evidence of Senior Constable Luke

An affidavit of the witness (Exhibit R-2) referred to similar evidence on the safe-storage inspection except for one paragraph (to which the applicant raised a formal objection -paragraph [9]) which said that the property was unattended when police arrived and that the applicant made an admission that he had been on a neighbouring property.
When the officer was asked if he had ever made a note in his Notebook of the purported statement that the applicant said that he 'had been at a neighbouring property when you arrived' he was unsure and not certain that he had but remembered it. It was suggested to the officer that the above statement was never said by the applicant and that what the applicant actually said was that he was 'working on a fence'. The officer said that he recalled something about a neighbouring property or a neighbour's property but never anything about a fence.
The officer confirmed that the applicant was very cooperative with the attending police in that he answered all of their questions and volunteered information.

Evidence of Senior Constable Sorensen

The signed statement of 10 August 2018 (contained within Exhibit 'R-3') contains the following relevant evidence of that officer. The statement states that: 'Upon arrival at the premises it appeared that Mr Cory was not home. … Both acting Sergeant and I walked around Mr Cory's premises to make sure he wasn't close by. A short time after we arrived at the residence a vehicle drove into the property and the male occupant identified himself as Mr Cory.'
The evidence annexed to the statement (copies of the officer's Notebook) make no reference to the premises being unattended, but there are references to video being taken of: Several doors opened to the premises (left unlocked and unsecured).

Applicant's submissions

The applicant submitted that there needs to be some nexus between his membership of the Gladiators and the conduct of that OMCG generally. Reference was made to the case of Stamateletos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156. (Stamateletos). The respondent referred to paragraphs [139] - [142] where the Tribunal did not dispute the membership of the relevant OMCG, and then considered an earlier ADT decision, concluding that the current risk had not been articulated.
At [139] - [142] the Tribunal observed: 139. The Respondent pressed that even in the absence of a criminal record, Mr Stamatelatos should be considered as not being fit and proper because of his membership of the Mongols OMCG. 140. The Tribunal has considered the factors both for and against Mr Stamatelatos' position. These include his lack of a criminal record; the views of Kris Chappelow and the objective fact that Mr Stamatelatos held a firearms licence for at least 4 ½ years without incident while he was a member of the Mongols OMCG between May 2013 to December 2017. The Tribunal also accepts Detective Sergeant Groenewegen's evidence about the violent characteristics of OMCG and the Mongols. However, there is no nexus drawn between these accepted characteristics of OMCGs and the Mongols and Mr Stamatelatos himself. 141. The Tribunal has considered the issue of risk to public safety as paramount in considering whether it is in the public interest for Mr Stamatelatos to hold a firearms licence. As noted Mr Stamatelatos had a period of at least 4 ½ years between May 2013 to December 2017 of holding a firearms licence and being a member of the Mongols. The Tribunal was not made aware of any incident during that time. The case law indicates that when considering future risk, the Tribunal must consider the past conduct of the applicant as a significant guide. There is no conduct on Mr Stamatelatos' part, other than his membership of the Mongols, for the Tribunal to consider in this regard. The Respondent did not set out any specific risks relating to Mr Stamatelatos' firearms licence and his membership of the Mongols. 142. Webb's case stated "only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration." In this respect, the Tribunal cannot find that there is a real and appreciable risk presented by Mr Stamatelatos holding a firearms licence. Detective Sergeant Groenewegen's evidence concerning the characteristics of OMCGs and in particular the Mongols is not "fanciful risk". However, this evidence in the context of Mr Stamatelatos' conduct does appear to make the risk "minimal". No clear theory was provided to the Tribunal as to how the risk might materialise. See Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 at [32].
The case of Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 is referred to in Stamatelatos (above). The applicant submitted that when looking at the public interest issue in the firearms jurisdiction the primary issue is to see if there is a risk to the public. At [32] of Webb the ADT observed: 32 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has lead to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act.
In both written and oral submissions the applicant conceded that the Gladiators are an OMCG. However the applicant submitted that a person associated with the Gladiators is not necessarily unfit and not a proper person to hold a firearms licence. Reference was made to Newman v Commissioner of Police, NSW Police Force [2018] NSWCATAD 17 on this point of 'mere association' by a person with an OMCG. From [131]-[135] the Tribunal observed: 131. The Commissioner submitted at [49] that Mr Newman: .... is not a fit and proper person to hold a firearms licence as he is a patched member of the Gladiators OMCG, some of whose members have been known to have engaged in criminal activity, including drugs and firearms offences. In addition, the President of the Gladiators OMCG was the victim of a drive-by shooting alleged to have been perpetrated by two former members of the Club. 132. I observe that, notwithstanding Mr Newman's long-term association with the Gladiators and some or all of its members and the opinion of Det Sgt Groenewegen as to the likelihood of Mr Newman's involvement in serious and organised criminal activity, there is no evidence before the Tribunal that Mr Newman has ever been charged with, let alone convicted of, any non-driving offence and his last conviction for a driving offence was in 1999, some 19 years ago. 133. I have regard to Muratore at [85] where the Tribunal stated the inability of the respondent to establish as a matter of legal principle that evidence of a past association establishes lack of fitness and propriety (in the absence of any other adverse evidence) ...". I find that the Commissioner's inability, as referred to in that matter, also applies in these proceedings. 134. I have also had regard to the conditions imposed by the Tribunal in restoring firearm licences in Sciberras and Muratore. 135. In making my findings as set out in the paragraph immediately below, I have had regard to Mr Newman's membership of the Gladiators Club and his long-term association with members of that club, several of whom may well have committed serious criminal offences. In my opinion, by associating himself with the club and its members, Mr Newman was somewhat naïve and probably ill- advised. …
The applicant's solicitor submitted that the applicant gave his evidence in a credible manner, and that from the totality of the evidence before the Tribunal it is clear that there is no real evidence that the applicant has ever been part of any claimed 'culture of silence'.
The applicant had no criminal convictions and the only history was the recent finding of offence proven concerning the storage issue. But for the contentious storage issue there was an otherwise unblemished 26 year firearms history much of that time as a commercial or contracted shooter. In addition, aspects of the applicant's Category ABC Firearms Licence relating to shooting of vermin, and contract shooting were clearly matters where the issuing of the licence was in the public interest. The applicant was a person of good character and there was no evidence of any criminality.

Respondent's Submissions

In oral submissions the respondent referred to the common ground that the applicant was a member of an OMCG. The respondent submitted that their evidence establishes that the Tribunal needs to consider the actions of the group or individuals in that group as attaching to all members. This submission was based on the observation from the expert witness that by virtue of the proclivities of these OMCG organisations, they operate as a group. By this the Tribunal infers that all members are tainted by the adverse behaviour of individuals as they all support that behaviour and may be required to join in or participate in criminal or other inappropriate behaviour.
It was also submitted that the Tribunal needed to look at the evidence of the culture of silence in these groups in a similar manner. The evidence on this point was set out in some detail in the open affidavit of Det Sgt Groenewegen.
In closing the respondent submitted that the correct approach to the criteria in the legislation is set out in Stamateletos at [34] and [35]. 34. The Commissioner revoked the licence because the police believed that Mr Stamatelatos is a current member of the Mongols Outlaw Motorcycle Gang ("OMCG"). Accordingly: (a) the Commissioner is not 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: ss 11(3) (a) and 24(2)(a), Firearms Act; (b) the applicant is a risk to public safety, and the issuing of the licence would be contrary to the public interest: ss 11(5A) and 24(2) (a), Firearms Act; (c) the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence: s. 24(2)(c)), Firearms Act; (d) the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence: cl. 20, Firearms Regulation 2017 and s. 24(2) (d), Firearms Act; and (e) the Commissioner considers that issue of the licence would be contrary to the public interest: s. 11(7) and 24(2)(a), Firearms Act. 35. If the Tribunal is satisfied of any or all of the grounds at (a) - (e) then the correct and preferable decision is to affirm the Commissioner's decision to revoke the licence. The issue for the Tribunal is a fairly confined one: whether the Tribunal is satisfied that the applicant's membership of the Mongols OMCG, with all that entails, is incompatible with the privilege formerly accorded him of the possession and use of a firearm. If the answer is yes, then the decision under review should be affirmed on all or any of the grounds at (a) - (e).
I note however that the matters in [35] of Stamateletos arise in the respondent's submission in that case rather than any finding or obiter of the Tribunal. For that reason I find that they are of little weight.
The respondent's submission went through the concepts and case law attached to the notion of 'fit and proper' and referred to the lead cases of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The respondent in accordance with those cases submitted that when assessing fitness and propriety, character and reputation may play a determinative role, with character being relevant as an indicator of a person's likely future conduct and reputation being relevant as an indication of public perception of future conduct in the role for which the licence is sought.
The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
On the notion of public interest the respondent submitted that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s 3 (1) (a) of the Act. Reference was made to the case of Azzopardi v Commissioner of Police, NSW Police Force [2013] NSWADT 205.
Reference was also made to the objects of the governing legislation. Section 3 of the Firearms Act provides: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and
The respondent submitted that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.
The respondent also relied upon the decision in Sciberras v Commissioner of Police, NSW Police Force [2015] NSWCATAD 206 as authority for the notion that OMCG's are entities whose activities pose a risk to public safety. At [80] of Sciberras: 80. Whilst the Crimes (Criminal Organisations Control) Act 2012 can limit the activities of certain OMCG's for specific periods, it is not a OMCG 'dissolution bill' making such an organisation illegal. However the passing of such legislation provides insight as to how the legislature (and therefore the community) view the broad activities of such entities and their members, even if transgressions are usually dealt with under the criminal law on a case by case basis.
The respondent's case turns on a finding that when the evidence demonstrates than an applicant is a member of an OMCG whose members are known to have engaged in criminal activity but that applicant refuses to disassociate themselves from the OMCG, it is appropriate that the Tribunal affirm a decision to refuse that applicant a firearms licence.

(1) Breach of Firearms Act

The evidence demonstrates that the applicant had a single unspent shotgun cartridge / shell in his firearms locker / safe, which is clearly in contravention of s 40(d) of the Firearms Act 1996 as live ammunition must be stored securely away from firearms. The Local Court made a finding of 'offence proven' on the basis of a guilty plea.
Whilst objectively a serious safe storage breach it is clear that having regard to the applicant's unblemished record as both a citizen and an authorised firearms user of long standing, and the early guilty plea the Court saw fit to make a s10 (1) (a) order dismissing the matter without proceeding to a conviction. I note that the Court had before it some untested evidence of the applicant's membership of the Gladiators OMCG, as various detailed references to this matter are included in page 2 of the FACTS.
In my view having regard to all of the evidence this matter should not count against the applicant in respect of his suitability to hold a firearms licence.

Consideration of other 'safe keeping' issues for determination

In respect of the other adverse matters, I find that the applicant was within the boundary of his property when police attended on 5 June 2017. In that regard his property was attended when police arrived and having observed them, the applicant headed across to the residence to meet them. On this basis all of the issues about doors or windows being unsecured fall away.
In making the finding on this issue I note the following:

The applicant's evidence was consistent; he made full admissions on a number of issues and had no basis to lie on one issue (whether he was on the property). Whilst such a lie might have benefited his situation, it seems inconceivable that the applicant would do so, when he made other consistent and honest admissions which were to his detriment. Such honest admissions include providing a frank account of the location of the keys, accepting responsibility for the shell and providing full answers to police questions, especially concerning his OMCG activity.
I note that the evidence of Senior Constable Luke was given from an account prepared over 14 months after the matters occurred, albeit refreshing his memory from reviewing the police records. He was uncertain as to whether any notebook entry was made about the premises being unattended. The notebook entry provided at Tab 6 of 'R-3' makes no mention of the applicant not being home.
Senior Constable Sorensen was not examined. His signed statement was prepared over 14 months after the matters in question. His notebook was produced (Tab 7 'R-3'). There was no reference to the applicant not being at home - contained in that notebook entry.
The Police FACTS tendered at the Court in respect of the breach offence makes no reference to the applicant being absent when police arrived. To the contrary they state the following relevant evidence - as tendered by the respondent at Tab 3 (E) of the s 58 documents received as 'R-1'. About 17:05 on Thursday the 5th of June 2017 Police attached to the Public Order & riot Squad attended the above address to conduct a firearm safe storage inspection. Upon arrival at the premises, Police met with the accused, who invited Police inside the residence ….. (emphasis added)

In nearly every aspect at hearing the applicant's evidence was not open to any successful challenge other than on some very minor points. Even on these issues, such as the reference to putting the family at risk in the early correspondence filed in the proceedings, it is clear to me that the applicant was referring to the risk arising from not being able to control vermin including wild pigs as a result of his suspension and subsequent revocation.
In forming the views I have about the applicant's candour and honesty, I note the manner in which he gave his evidence, his previously unblemished firearms use and management over three decades, his good community standing and his lack of any criminal record of convictions in 60 years. His evidence was consistent on all points and for the reasons set out on this issue above I prefer his version of events as it is supported by stronger evidence to which I attach greater weight.

(2) Findings on Fit and Proper Person

The general tests for fitness and propriety have been developed from the earlier lead cases of Bond (referred to at [91] above), and the case of Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127. In respect of Bond, I observe that the case reasoned that fit and proper takes its meaning from its context.
The case of Pobjie v Commissioner for Fair Trading [2008] NSWADT 39 paragraphs 114 - 117 of summarises the relevant authorities. 114 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration." Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 115 A person's fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." 116 In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 117 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. What fit and proper means must be viewed in the light of, "... the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 paragraph [41]. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused because, despite there being no evidence that he was dishonest or of bad repute, evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case, as here, the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).
However in the case of Ward the ADT stated that in respect of the issuing of a firearms licence there must be 'virtually no risk' to public safety. (Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28). 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
There is clearly no argument as to the applicant's 'reputation', probity or similar issues, however I note the respondent's argument that his association with the OMCG does come to bear on elements of his reputation. The applicant has the necessary knowledge honesty and ability to possess a licence based on his past demonstrated firearms conduct. Consistent with Stamateletos it is clear that during his period of membership of the Gladiators, when he held a licence, no adverse matters came to police attention. The safe storage inspection was carried out solely because of his association with the Gladiators and, on the evidence of Senior Constable Luke, for no other reason.
The main case against the applicant is based on adverse inferences because of his membership of the Gladiators. The breach of the storage requirements was completely unrelated to a membership or association with the Gladiators even if that membership was the basis for the inspection. There was no evidence of any criminal use or conduct relating to the firearms in any manner connected with OMCG activities or use contrary to the terms of the Category ABC Licence. The sole breach has been in relation to the safe storage requirements.
The police had identified the applicant as a member of the Gladiators prior to conducting the inspection and asking any further questions of him. The applicant was aware, due to his prior roadside contact with police, that police knew that he was in the Gladiators.
Whilst there was a submission about the applicant's honesty, (primarily due to his OMCG obligations), I find that there is no cogent evidence about this issue directly related to the applicant. Whilst arguably his OMCG membership may create deceitful or dishonest behaviour in certain circumstances such matters do not arise from the actual evidence about the applicant's conduct. His candour before the Tribunal and uncontested evidence, and the findings that I have already made about the one contested issue stands in his favour.
The applicant presents his membership and association with the Gladiators as like-minded individuals sharing a common interest in motorcycling. Detective Sergeant Groenewegen's evidence was unable to confirm that any members of the Namoi Valley Chapter had any significant criminal antecedents nor that the applicant had any direct association with criminals.
From his oral and written testimony the applicant gave evidence about the 1% patch that was different from the police understanding, or the sole meaning that police attribute to that patch. The applicant understood it to refer to the 1% 'who do not fit in with the other 99%'. The 'outlaw' notion about the 1% patch has, in the applicant's view, been 'misunderstood'. Whilst Detective Sergeant Groenewegen gave an 'expert account' as to the meaning of the 1% patch and term, I note that over recent decades there have been other explanations as to what it means. Some OMCG's define the 1% term in their Club rules and documents, whereas others do not. In some quarters it refers to the motorcycling community generally where the OMCG's represent 1% of motorcyclists and the generally law abiding motorcyclists represent the majority 99% of riders not affiliated with OMCG's.
In some respects this term has slightly different meanings in different parts of the world, and different meanings at different times in the near 70 years of the OMCG or 'bikie' concept. It is clear from Detective Sergeant Groenewegen's detailed evidence that there is some fluidity to the meaning of the term. I make no findings about the '1%' meaning in the context of these proceedings other than to observe that all identified OMCG's use that term and have a version of that 'patch'. I am unable to make any positive finding along the lines of the respondent's submission that all such affiliates operate as outlaws, in that they disregard the law as required.
Whilst the Gladiators Rules were in evidence, the version supplied does not explicitly state any purpose to the organisation. The applicant's evidence paints a picture of a social collective as referred to at [103] above. His desire for membership arose from his association with the Vietnam Veterans Club over many years and the need to stave off boredom and depression due to social isolation as a farmer and grazier in a somewhat remote part of the State.
Whilst I might accept that evidence concerning the OMCG membership, I also note that the respondent was unable to link any verifiable concerns to the applicant in respect of OMCG activity. The totality of the evidence indicates that the applicant is a person who individually possesses the requisite knowledge, skill and integrity to hold a firearms licence notwithstanding his OMCG association. In that regard I find that he is a fit and proper person to hold a firearms licence.

(3) Findings on Public Interest

When looking at the issue of public interest the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
The applicant has no history of violence. However I interpret aspects of the matters referred to in Toleafoa to mean that notwithstanding the various positive aspects and elements of the applicant's character, the public interest takes into account the import of aspects of the applicant's membership and ongoing association with the Gladiators OMCG. There would be valid concerns that someone with that history and association would be entitled to access and use firearms, notwithstanding the absence of any formal adverse matters. The broad concept of the public interest does not directly identify right or wrong notions or positive attributes and assign weight to them. It requires an analysis of the whole circumstances and whether the result sits positively within the public interest.
There is evidence in the public domain of OMCG involvement in crimes of violence involving offensive weapons including firearms. In this jurisdiction there is evidence that criminal elements target authorised firearms users as a potential source of and access to firearms. Such evidence is uncontested and the targeting not limited to OMCG activity or membership. Nevertheless these concerns sit squarely within the public interest. In addition these matters clearly come up against the public safety objects in s 3 of the Firearms Act.
In addition the case law indicates that the individual's interests would always be subordinate to the public interest in the issuing of a licence. The case of Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 is relevant on this issue. At paragraph 681 of the Report: The purpose of the reference to 'public interest' is to ensure that private interests are not 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.
In Toleafoa at paragraph [25], the Appeal Panel said that the public interest: "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
In addition I note that the body of case law indicates that the discretion is to be applied for the public benefit rather than the individual benefit.
In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
This issue has been noted by the ADT in respect of the proclivities of OMCGs and the risk to the public of their activities and persons who associate with them. In Azzopardi at [50] the ADT observed: [50] The known proclivities of OMCGs as described in exhibits R2 and R3, including the apprehension and conviction of Claudio Ungureanu, a Rebels member, on serious drug charges, support the respondent's view that people who associate with OMCGs members may be a source of public risk in relation to firearm possession. The internal review (exhibit R1, tab 7c) also refers to an opinion of the Queensland Crime and Misconduct Commission stating that firearms offences were one of the major concerns with OMCGs and that they were often committed in support of other criminal enterprises such as drugs or extortion.
However, in my view it is clear that the applicant's preference to join the Gladiators as a social pursuit, in the manner that he has (membership of the Gladiators), in situations where those pursuits raise concerns, (as referred to in Azzopardi), then those individual preferences from a public interest perspective are somewhat incompatible.
Whilst the case of Stamatelatos dealt with a very similar situation in respect of history and lack of criminal antecedents, the main difference to the current case was the fact that the licencing was entirely occupational and the firearm was returned to the employer at the end of each day. In this circumstances the risk to public safety, notwithstanding that applicant's membership of the Mongols OMCG, was considered minimal.
In the case of Newman the applicant was no longer a member or in any way associated with the Gladiators. Newman is also differentiated from the current case because like Stamatelatos the matter concerned a Category 'H' licence, which involved target / clay shooting. Such licences only provide for low calibre pistols. The applicant's Category A, B, and C licence allowed a much larger range of firearms including pump action, rim fire and magazine rifles and shotguns and long-arms. These are significant public interest considerations especially having regard to the current membership and association of the Gladiators. These factual differences set this case apart from the reasoning and conclusions in Stamatelatos and Newman's case.
In my view there remains some concerns about a person with a broad Category ABC firearms licence, being involved with an organisation which does not shirk from an association with some criminal activities and OMCG culture generally. In such circumstances I believe that the desire to hold a firearms licence would be contrary to the public interest.
I therefore find based on the evidence set out above, that it is not in the public interest for a member of an OMCG to have authorised access to firearms. This finding is adverse to the applicant.

Conclusion

Because of the findings that I have made, it is appropriate to affirm the decision of the respondent. The respondent's decision was based on a number of discretionary matters which were exercised on findings made in part on incomplete evidence. By referring to incomplete evidence I mean that at the time of the decision under review there was not the same amount of evidence for the delegate to assess. Based on the totality of the evidence available to me I have made findings contrary to two of the three grounds relied upon by the respondent.
However as all three grounds would need to be overcome for the applicant to succeed, even though I have found against two of the Commissioner's basis for revoking the licence, ultimately the result remains the same. As it is not in the public interest for the applicant to at this time hold a firearms licence, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
However, consistent with the single adverse finding that I have made the applicant will need to weigh up his need for the licence against his personal preferences, interests hobbies and pursuits with motorcycling. In my view on the available evidence the one impediment to firearms possession is the applicant's ongoing membership of an OMCG and the impact this has on the general public interest grounds. It is for that reason alone that the decision will be affirmed.
As the applicant's Category ABC licence expired on 31 October 2018, if the applicant prioritises firearm possession over other matters, he will need to make a fresh application to the Commissioner. The Commissioner should have regard to these reasons in determining whether to issue any further licence (on application), and may wish to have regard to s19 (1) of the Firearms Act 1996.

Orders 1. The decision to revoke the Applicant's Category ABC Firearms Licence is affirmed.

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: 28 February 2019

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