Muratore v Commissioner of Police NSW Police Force

NCAT Occupational|2016-09-29

Background

Mr George Muratore (the applicant in these proceedings) held a Class 1ABCDEF 2ABC Security Licence issued under the Security Industry Act 1997. The applicant had held a security licence (in some form) since he commenced work in the security industry since the mid 1990's issued under previous legislative provisions. In addition the applicant had held a firearms licence in some form since the late 1980's and recently held a Class ABH Firearms Licence issued under the Firearms Act 1996.
Since 1992 the applicant has predominantly worked in the security industry being employed to work as an armed security guard for other employers and his own business since 2004, and prior to that it would appear in 'non armed' security work.
On 17 May 2016 the respondent's delegate made a decision to revoke the applicant's Security Licence on the basis that in the respondent's view the applicant was not a fit and proper person due to their life membership of the Lone Wolf Outlaw Motor Cycle Gang (OMCG). In similar terms on 12 May 2016 a decision was made to revoke the applicant's Firearms Licence. Based on this information the Commissioner decided that the applicant was not a fit and proper person and the licence was revoked having regard to the relevant legislative provisions.
On 7 June 2016 the applicant sought an internal review of those decisions and reviews were completed on 23 June 2016. The Commissioner's delegate reviewed their holdings on the applicant and decided that those holdings (on their assessment) 'imply a lack of respect for the law.' (Pg 7 Internal Review decision). After reviewing the relevant case law the delegate concluded that they were not satisfied that it would be in the public interest for the applicant to hold a Security Licence or a Firearms Licence at this time.

The Applicable Law

Part 2 Division 3 of the Security Industry Act 1997 provides for licencing procedure and criteria. Section 15 provides for general suitability criteria in the areas of age, competency and residency rights relating to employment etc. amongst other general criteria. Relevantly section 15 provides: (1)… (2)… (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. (5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6). The Firearms Act 1996 relevantly provides: 24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27) ……. (2) A licence may be revoked: …… (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations. The Firearms Regulation 2006 relevantly provides: 19 Revocation of licence - additional reasons (cf 1997 cl 17) 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.
The relevant classes of licence held by the applicant permitted him to preform services as: Class 1A - Unarmed Guard, Class 1B - Bodyguard, Class 1C - Crowd Controller, Class 1D- Guard Dog Handler, Class 1E - Monitoring Centre Operator, Class 1F - Armed Guard, Class 2A - Security Consultant, Class 2B - Sell and provide advice in relation to security equipment and sell services of persons to carry on security activity, Class 2C - Sell, maintain, repair, install and service security equipment and to act as a locksmith. The Firearms Licence was an ABH Licence allowing: Recreational hunting / vermin control, Target shooting and Security guard provisions. The applicant in addition to his security work is a life member of a local pistol club.

The Hearing

The matter came before me for hearing on 29 September 2016. The matters were heard concurrently as they involved the same parties arguments, and predominantly the same evidence and statutory tests. As a result these joint reasons have been prepared having regard to the objects of the Civil and Administrative Tribunal Act 2013.
The applicant relied upon the following material and evidence which had been filed and served:

The application for administrative review dated 11 July 2016 filed with the Tribunal on 13 July 2016 Exhibit 'R 1'.
The applicant's outline of submissions dated 28 August 2016.
The applicant's material annexed to the submissions of 28 August 2016 comprising industry and character references, regulatory records and qualifications. In addition the applicant relied on his oral evidence given at hearing.

The respondent relied upon the following evidence and material which had been filed and served:

The section 58 material filed pursuant to section 58 of the Administrative Decisions Review Act 1997.
A signed statement of Detective Sergeant 'B.G.' dated 26 September 2016 and 48 attachments. In addition the respondent relied upon the oral evidence of Detective Sergeant 'B.G.' given in the open hearing.

There was a brief confidential session whereby the respondent's witness gave evidence about some material tendered in confidential session in accordance with the provisions of section 29 (3) of the Security Industry Act 1997 and section 75 (5) of the Firearms Act 1996. 29 Right to seek administrative review from Civil and Administrative Tribunal (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions: (a) the refusal or failure by the Commissioner to grant a licence to the person, (a1) the refusal or failure of the Commissioner to renew a licence, (b) a condition imposed by the Commissioner on a licence granted to the person, (c) the revocation or suspension of a licence granted to the person. (2) For the purposes of this section, an application for the grant or renewal of a licence is taken to have been refused if the licence is not granted or renewed within 60 days after the application is made in accordance with this Act. Note. Under the Civil and Administrative Tribunal Act 2013, if the Civil and Administrative Tribunal has reviewed an administratively reviewable decision (such as a decision referred to in the above section), a party to the proceedings may appeal to an Appeal Panel of the Tribunal. An appeal on a question of law may then lie to the Supreme Court. (3) In determining an application for an administrative review of any decision to refuse to grant a licence, to renew a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, 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 criminal information referred to in section 15 (6), 17 (5) or 26 (5) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. Note. Sections 15 (7), 17 (5) and 26 (6) of this Act provide that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting or renewing a licence or revoking a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) or 26 (5). Accordingly, Part 2 of Chapter 3 of the Administrative Decisions Review Act 1997 does not apply to any decision to refuse to grant (or renew) or revoke a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information. ……………… 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (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 fact that there was a confidential hearing in which the Commissioner would rely on confidential material, was conveyed to the applicant during the course of the open hearing. Under the provisions of the Security Industry Act 1997 and the Firearms Act 1996 the Commissioner relied on matters raised in the confidential hearing. The confidential session was however brief and the matter returned to open session prior to concluding.

General outline of the Respondent's case

In my view, in order to understand the thrust of the evidence it is necessary to outline the general basis of the Commissioner's finding that the applicant is not a fit and proper person to hold a security licence. These matters specifically are that the applicant was not a fit and proper person due to their life membership of the Lone Wolf Outlaw Motor Cycle Gang (OMCG). Based on this information the Commissioner decided that the applicant was not a fit and proper person and the licence was revoked having regard to the relevant legislative provisions. For those reasons the respondent held that it was not in the public interest to grant the licence.

Evidence of Detective Sergeant 'B.G.'

In evidence in chief the witness adopted his statement as true and correct.
The witness took the Tribunal through the types of patches worn by and associated with what was referred to as 'outlaw' motorcycle gangs or OMCG's and gave evidence about the 'three patch' organisations and the use of the term 1 % or 'one percenter' as referenced by OMCG's and in OMCG 'culture'. The annexures to the statement provided a large about of source material which the respondent sought to establish the criminal and anti -social or outlaw nature of OMCG's generally and their members.
Various patches unique to the applicant's club were referred to. The '20 year' member patch, the 'EGF' patch was in the witnesses view an example of patches only used by members of the 'Lone Wolf' OMCG. It was referred to in evidence that EGF stood for 'everyone get f…..' and that this was a central and some unique marking / descriptor used solely by 'Lone Wolf' members.
Reference was made to various patches being code for contraband and specific drugs or similar. It was suggested that a specific number equated to a specific letter of the alphabet and that letter was submitted by the witness as signifying a related drug or illegal substance.
Other patches previously worn by the applicant and members of 'Lone Wolf' were not conclusively understood by the respondent's witness (who had significant experience in OMCG culture and practices).
Reference was made to a photo of the applicant and another person seated on a motorcycle cycle in 'Lone Wolf' colours at a funeral ready to depart as part of the cortege.
The witness took the Tribunal through various rules and indicated their view that the rules promoted a culture of silence, anti-social behaviour, lack of cooperation with authorities and how persons who speak to police or rivals are dealt with within 'Lone Wolf'.
The witness was recalled as the Tribunal proceedings were interrupted by external matters for approximately 50 minutes.
When recalled the witness gave evidence that a life member leaving an OMCG had to return their colours and have their club tattoo removed.
The witness gave evidence about another individual who was the applicant in the case of Sciberras v Commissioner of Police New South Wales Police Force [2015] NSWCATAD 206. Mr Sciberras had given evidence at a Tribunal hearing in respect of a different licence. The evidence was that he had left the relevant OMCG. In part his application before the Tribunal succeeded and the re-instatement of the relevant licence was conditional on his not associating with OMCG members.
The witness gave evidence that Mr Sciberras had been stopped and spoken to by Police wearing full colours of his 'former' OMCG including wearing a President patch. This had occurred after the conditions had ben placed on his licence and as a result his licence had been cancelled or otherwise revoked.
In cross examination the applicant asked the witness whether he had ever been to a 'Lone Wolf' meeting, to which the witness answered 'no' as he is not a member of 'Lone Wolf'.
The witness was asked where in the 'Lone Wolf' colours does it refer to OMCG's. The witness answered that the colours and patches only refer to 'Lone Wolf M.C.' However the witness stated that sporting clubs don't have a three patch - three piece patch or 1% patches.
The witness was asked whether the evidence in the material proves evidence of any crime committed by him, to which the witness answered 'no'. The Tribunal was taken to Tab 28 of the R'-2' bundle. The material confirms that the applicant has no Court matters.
The Tribunal raised matters with the witness concerning the meaning of the 'wings' or 'flying wings' patches. The witness advised that it was a generally accepted proposition within law enforcement that the Wings refer to sexual activity.
However the witness conceded that the badges and patches in and of themselves do not signify anything illegal or signify the execution of any criminal activity as a matter of fact.
In re-examination the witness was asked about the circumstances of the Sciberras matter. The evidence was that Mr Sciberras was observed near Rookwood Cemetery wearing Bandidos Colours with other Bandido members.

Applicant's Evidence

The applicant was assisted at hearing by Ms Brown who is the Partner of the Applicant. In evidence in chief the applicant stated that he resides at 993A Old Northern Road Dural New South Wales. He has worked for over 20 years as a security officer.
The applicant's evidence was that he was unaware that he was doing anything illegal and had been a member of 'Lone Wolf' for 40 years.
The applicant stated in evidence that he was no longer a member of 'Lone Wolf' because of his age. The applicant then read into his evidence paragraph 79 from the Sciberras decision (a decision by me sitting in this Tribunal). The reference read onto the record was as follows: 79.Whilst these 'gang' provisions have had a somewhat difficult history in the domestic jurisdictions and have been subject to various constitutional challenges with various levels of success, the current provisions referred to above are in force, and in my view provide some legal basis for the general allegations directed at the activities of OMCG's and their members. However I note that broadly individuals remain at liberty to apply to and join these organisations, and applications for declarations must be substantiated by evidence which satisfies a superior Court. In that regard there is no current legal basis to 'outlaw' the existence of certain OMCG or alleged criminal organisations in the same was as some Commonwealth legislation prohibits certain organisations under terror provisions.
In cross examination the applicant was asked when he became a member of 'Lone Wolf' to which he answered 'Easter 1977'. The applicant's evidence was that he was a 'prospect' or 'nominee' for 12 months and that he thinks that he joined the Club about five years after it started.
The witness stated that his brother was a member of the Club. When asked when the brother joined the applicant stated that it was about 25 years ago and that his brother is currently about 60 years old.
The applicant's brother lives in a block adjacent to the applicant and his partner, that is 993 Old Northern Road as opposed to 993A Old Northern Road.
The applicant was asked what chapter of the Club he was in prior to resigning. The applicant stated that he was in the Dural Chapter. When asked if he was always in that Chapter he answered 'no' and stated that Dural was only founded about 25 years ago. The applicant was in a different Chapter prior to the formation of the Dural Chapter. The Chapter probably had about 20 members - founders.
The Club premises is furnished with a fridge and tables and chairs. The applicant's evidence was that there is no bar. The applicant gave evidence that he had never seen a member not succeed in obtaining an active role / office bearer in the Club, and that he obtained such a role after 20 years.
When asked what his role in the Club was, the applicant stated that his role was to arrange rides. He has not held any formal roles but participated in rides and parties. He has not held any formal positions in the club and Life Membership is the only 'title' he holds or has held. When asked whether the bestowing of life membership changed his role in the Club the applicant stated that 'obviously with seniority you have more say'.
The applicant gave evidence that the rules are decided by majority vote. A member might not personally agree with a certain rule and in that way it is a bit like a democratic society. The applicant stated that he personally does not agree with all of the 'Lone Wolf' rules but when he was a member he was bound to accept them.
The applicant was asked about an individual subject to a consorting warning. The applicant's evidence was that the individual had never (to his knowledge) been a member of the club.
The applicant was taken to page 20 of the section 58 documents which comprised a Cops Event E 60638xxx. The contents of the Event refer to the persons of interest ('POI's') all wearing colours (as in Club OMCG Colours). It was put to the applicant that the individual subject of the consorting warning was one of the POI's and therefore in colours and as a result a member of 'Lone Wolf'. The applicant denied that on the occasion the event refers to, that individual was in Club Colours.
The applicant stated in his evidence that he was not aware that the individual was a convicted offender but agrees that he received a consorting warning about the sole association.
When asked about his involvement with the Club the applicant advised that he used to attend fundraisers.
The applicant was taken back to the issue of the 'EGF' references and that the registration of his motorcycle contains the consecutive letters 'E G F'. It was noted that from the respondent's bundle attached to the statement of 'B.G.' the applicant's former colours contained patches with the reference to 'EGF'. The applicant was asked what does this reference mean?
There was some banter and exchange between the Respondent's solicitor and the applicant / witness over this matter. The applicant answered somewhat reluctantly and in my view bashfully that 'it means what you said before', being a reference to the respondent's witness's evidence about the 'Lone Wolf' symbols and codes. (see paragraph 16 above).
The applicant was taken through the registration details of various vehicles owned or operated by him including 2 cars and a motorcycle. Whilst EGF stands for 'Everyone Get F…..' on Club documents, in his private capacity it refers to his security company 'Elite Guard Force'. The applicant' evidence was that the two cars had company markings on them, and that from time to time he used his motorcycle for 'cash runs' and ATM responses. When taken to a list of 'EGF' registrations the applicant identified a Mr 'H', a Mr 'M', and another 'L.W.' as being another Club Member with 'EGF' plates.
The applicant re-iterated his evidence in chief that he was no longer a member of any OMCG including 'Lone Wolf'. The applicant was pressed with questions concerning the Club Rules. The witness declined to answer questions about the Club Rules.
When asked about an individual N Todorovski (who is deceased due to violence), the applicant stated that the deceased may have been a member of the Club, but that he was not a member of the Dural Chapter, and was not sure what chapter the deceased was a member.
The applicant was specifically questioned about whether he would report matters to Police even if they involved 'Lone Wolf' members while wearing security guard uniform (notwithstanding apparent legal advice not to speak to police). The applicant advised that he would as he is no longer in 'Lone Wolf' and that he left the 'Lone Wolf' Club the previous Thursday (22 September 2016). The applicant's sworn evidence was that he handed in all of his colours, jackets, shirts and t-shirts.
The applicant was asked about a 'club tattoo'. The applicant stated that he has some tattoos but he does not have a 'Lone Wolf' or any OMCG tattoo. The respondent did not require further verification or inquiries of that evidence.
The applicant was asked about his current residence at 993A Old Northern Rod Dural. The applicant stated that the residence on that lot consisted of a three bedroom detached (freestanding) dwelling. When asked what current motorcycle(s) he owned the applicant stated that he currently only owned a 2014 model Harley Davidson motorcycle.
When question about the status of various classes of former security licences he held, the applicant advised that the master Licence for 'Elite Guard Force' expired in 2009. The (EGF) plate was on a previous bike and he transferred it over to his current bike.
In respect of his current circumstances the applicant stated that he has not worked since May 2016 (when his licences were cancelled) and he has been living off savings. The applicant's evidence is that he is getting on in years and will enter his 60th year later in 2016.
At the conclusion o his evidence the applicant sought to tender a media article from a newspaper headed 'Bikie gun ban shot to pieces'. The article referred to recent developments in Queensland to wind back the strict conditions attaching to members of deemed OMCG's, in that such membership would revert back to being an aspect of the character test / fit and proper, not the overall automatic exclusion. The Tribunal noted at the time of it's tender it's limited relevance and weight to the specific considerations in the current application.
At this point the applicant concluded his evidence and the matter moved into a confidential hearing where the applicant and his partner were excluded from the hearing.

CONFIDENTIAL reasons not for publication next 8 paragraphs

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Consideration and Analysis of Confidential Evidence

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Respondents Submissions at hearing

The respondent made oral submissions at the conclusion of the evidence. Reference was made to the case whereby a member of 'Lone Wolf' had been murdered (see paragraph 49 above), and relied upon the subsequent case of R v Abdallah (No 7) [2014] NSWSC 829. Reference was made to the conduct of members of 'Lone Wolf' their illegal use of firearms and propensity to unlawful activity in inflicting and inciting extreme violence. 17. Through their interaction at the gym, the offender learned that Todorovski was a chief in the Lone Wolf bikie club. Todorovski would often be accompanied by other members of the club at the gym. It was clear to the offender that they deferred to him and acknowledged his seniority. The offender also said that Todorovski struck him as a violent man and the sort of person he would not like to get on the wrong side of. Todorovski had shown him a handgun in the change room at the gym once, stating that he had it to deal with some "drama". For reasons not satisfactorily explained by the evidence, there was a falling out towards the end of 2011. The offender blamed this on Todorovski. He denied he had given Todorovski any offence, specifically he denied the suggestion raised peripherally in some evidence that he owed Todorovski money (see Ms Julian (845.35 - 346.25T).
The respondent submitted that the events as referred to in Abdallah involved three members of 'Lone Wolf' whilst not as protagonists in the killing, at least in other aspects of the tragic and violent events that transpired.
The respondent adopted the submissions from the internal reviews. Reference was also made to the case of IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230. Reference was made to the Tribunal's view that the security industry required a higher standard attaching to the expression 'fit and proper' than was required in a less responsible or highly regarded position such as that of a Taxi driver. At Paragraph 27 the Tribunal observed: 27 With respect to the fact that IJ has been- driving- taxis for the past 10 years, I note that a person may well be a fit and proper person to hold a taxi licence while at the same time not be a fit and proper person to hold a security licence. I agree with the view expressed by the Commissioner's delegate that the expression "fit and proper person" takes its meaning from its context. A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.
On this basis the respondent argued that a high or higher standard applied to this applicant.

Applicant's Submissions at hearing

The applicant tendered the media article referred to above, and stated that current or former association with a Bike Club or an OMCG was not a legislative bar to holding the relevant licences including firearms and security licences.

Consideration

In AVS Group Australia Limited v Commissioner of Police, NSW Police Force [2012] NSW ADT 1 Judicial Member Montgomery (as he was) examined the issue of who bears the onus of proof in security industry cases under the Security Industry Act 1997 from paragraphs 12-24. Onus Of Proof 13. Section 29 of the Act permits an application to the Tribunal for review a decision in relation to a licence under the Act. There is no provision in the Act for the onus of proof in such a review. Whilst Part 2 of Chapter 6 of ADT Act empowers the ADT to determine its own procedure, it is silent as to the onus of proof in an application for review. Accordingly, it is appropriate to consider the administrative context in which the provisions of the Act operate, and the issues relevant to the review of the Commissioner's decision. 14. Whilst it is clear that the Tribunal can determine its own procedure, and undertake its own inquiries if so minded, the reference to "receive evidence and hear argument" in section 29 (3)(b) contemplates the Tribunal will conduct a hearing in which the Commissioner will seek to sustain the revocation. 15. The administrative context is whether circumstances existed to justify the cancellation of the licence. …………………. 17. They submit that if the review is characterized as analogous to that in a breach of discipline matter, the onus of proving such a breach lies on the party alleging the breach. The Applicants cited the decision of Beaumont J in Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213 in which his Honour quoted with approval Professor Campbell's explanation of legal burdens of proof: " ... where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence ... the onus of proving that these circumstances have arisen would devolve on the accuser." ………………… 24. Whilst I accept that there is disagreement in Thompson as to the allocation of the onus of proof, it is significant to me that the Commissioner is alleging a change of circumstance. I consider that the onus lies upon the party alleging that change of circumstance to prove it. It is also significant that the Commissioner is alleging that he has material directly concerning Peter and AVS GC, which he contends, justifies revoking the licences. I consider the onus lies upon the party alleging that such conduct has occurred or circumstances exist to prove it.
In this matter the respondent has asserted certain matters as attributable to the actions of the applicant. Those matters predominantly go to allegation of peripheral criminal knowledge and possible conduct essentially through the applicant's former association with the 'Lone Wolf' OMCG. The applicant refutes those assertions and submits that there is no basis for the Tribunal to make adverse findings in respect of those matters.
Section 63 of the Administrative Decisions Review Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Re Repatriation Commission and McCartney (1986) 9 ALD 441 at 449; Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388 at 390.
I make a finding that on the available evidence the respondent has only established the matters conceded by the applicant. That is his former long -term association with the OMCG. The respondent has not established any evidence (through both the open evidence and confidential evidence) that indicates that the applicant has not been truthful in his disclosures before the Tribunal. Whilst it may have been open to the respondent to produce further witnesses or evidence to establish certain matters concerning the applicant, it has not done so.

Fit and Proper

The meaning of the terms 'fit and proper' has regularly been addressed by this Tribunal and the Administrative Decisions Tribunal (ADT) in respect of occupational matters.
In the case of Esterman v Commissioner of Police NSW Police Force [2014] NSWCATOD 70 Senior Member Leal reviewed the authorities on this issue. 13. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 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. 14. In Sobey v Commercial Agents Board [1979] 22 SASR 70 Walters J said at 76: In my opinion, what is meant by [the expression fit and proper] is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, 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, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 15. A person's fitness is to be considered in the light of the activities that the person will undertake. Fitness with respect to an office is said to involve honesty, knowledge and ability: see Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156 - 7.
The respondent referred to the line of cases in its Reasons for Decision / Internal Review / Submissions. I have considered those submissions. The above cases cited from Esterman (above) summarise the head cases including Bond and Hughes and Vale.
I note that in oral submission the Tribunal was taken to the case of IJ where reference was made to the 'higher' standard. In considering this matter I note that the facts in IJ contrasted the applicant's history as a Taxi Driver (requiring a prior finding of fit and proper), and his then current application for a security licence. I note further than in IJ the applicant had been involved in the attempted murder and murder of a person overseas some years prior. Whilst the case focused on IJ's lack of conviction for the matter, the evidence on the public record seems to imply because the crime of extreme violence occurred in a political context, and a new regime came to power, IJ was pardoned by the new government.
Even if these facts or observations are not entirely accurate they illustrate the different context that the Tribunal was considering on the facts before it having made findings. In my view the current case bears little or no resemblance to the facts in that matter, so the issue of the higher standard as raised in IJ is noted and given some appropriate weight in such circumstances.
In respect of the submission by the respondent that the Tribunal needs to keep in mind the activities that the person will be engaged in (when exercising It's discretion), and the references from O'Neill v Commissioner of Police NSW Police [2005] NSWADT 130 and the second reading speech (at page 6 of their reasons for decision), I have considered the matter.
In the current context, other than an extremely peripheral connection to aspects of the Abdallah case circumstances, the evidence in my view dos not establish any criminality or close association with persons likely to be involved in the types of activities for which the applicant (as an armed security guard) might be compromised. There was no evidence before the Tribunal of any such adverse matters arising over the many years work by the applicant as an armed guard.
The applicant has a very lengthy career history with no significant incidents or complaints. He is highly regarded both for his skill and diligence in that field and this (due to the nature of the work) brings an 'implied' integrity to that conduct and circumstances. (Operational Guard matters). The references and certificates of the applicant in that regard were not challenged by the respondent and I note that they were in part aware of the circumstances of the cancellations.

Public Interest

In respect of the 'public interest' submission by the respondent, I note the reference to the case of Constantin v Commissioner of Police [2013] NSWADTAP 16. In that case at paragraph 33, the Appeal Panel held that: 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.
I also note that the respondent made submissions at hearing in respect of the case of Commissioner of Police v Toleafoa [1999] NSWADTAP 9. At paragraph 25 the Appeal Panel observed: 25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range 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 appellant appears to have adopted a similar view in formulating its reasons. Its argument, in effect, is that if its objections fail on character grounds, the matters as to character combined with the nature of the activity proposed to be engaged in are, at least in the case of the Class 1C licence application, sufficient to justify refusal in the public interest. 26 In the present instance the Member appears to have had regard to two factors in forming a view as to the public interest. The first was the absence of any additional adverse information in respect of the applicant's criminal record since the hearing in 1997. Clearly in our view this is a relevant matter, both as to the exercise of the character discretion and as to the public interest. If a person has maintained a clean record since the last time the matter was reviewed, that should count in their favour.
In my view applying the guidance of the Appeal Panel of the ADT, other than an inference arising from an association with the relevant Club, there is nothing additional, which arises from any character findings, which would in my view additionally, subvert or be contrary to the notion of the 'public interest'. Whilst the circumstances of the applicant's long-term former association with the 'Lone Wolf' Club may make the idea of exercising the discretion of interest to the public generally, it is not on the evidence and material before me contrary to the notion of the public interest as referred to in the relevant legislation and case law.
Relevantly in the applicant's favour is the unrefuted evidence that the respondent was fully aware of the applicant's membership of 'Lone Wolf' from at least 2004, when at the relevant time the applicant held both Firearms and Security licences issued by the respondent. This coupled with the applicant's lack of criminal history, his lack of any current association with members of OMCG's, and the inability of the respondent to establish as a mater of legal principle that evidence of a past association establishes lack of fitness and propriety (in the absence of any other adverse evidence), leads the Tribunal to a specific conclusion.
Having regard to the evidence submitted by both parties, I believe that in making any order concerning the reinstatement of the various licences, it would be appropriate to make an order concerning a specific condition. It would therefore be appropriate for the Tribunal to consider placing any relevant conditions on the licences.

Further Consideration

In the case of Sciberras (referred to above) I made various observations and findings on a some what similar factual basis for the decision of the Commissioner to cancel or otherwise revoke the applicant's relevant (Firearms) licence. At paragraphs 74 to 81 I observed the following matters from the Commissioner's case and evidence. 74. I also note that when the respondent determined to place conditions on the applicant's licence, the only issue which might go to the question of 'fit and proper' related to his alleged association / membership of the OMCG. In this regard it would appear that the respondent's only concerns were that a person who remained associated with OMCG members (either formally or informally), was (in the respondent's view) not a fit and proper person having regard to reading that expression into the objects of the Firearms Act 1996 . 75. However whether that position is sustainable or not, I am still unclear as to what has transpired from an evidence perspective between the making of the proposed conditional licence determination, and the subsequent cancellation / revocation of the licence by way of substituting the previous decision. 76. In the case of Zahra v Commissioner of Police NSW Police Force and NSW Fair Trading [2014] NSWCATAD 211 the Tribunal examined the central issue of fitness and proprietary to hold a specific licence when a person was a member or associated with individuals from OMCG's. The main difference with that case was that the evidence was that the applicant remained a member of an OMCG. Another important distinction was that the applicant had a criminal history. Whilst that case deals with tattoo industry licencing, in my view it is relevant because of its consideration of fit and proper following evidentiary findings which contrast with the current case. At paragraph 60 the Tribunal found: 60.On the material before me, I am satisfied that the Applicant has continued his involvement with the Rebels. He does not dispute this fact but maintains that he is a retired member. The evidence suggests otherwise. 61.[not for publication]. 62.[not for publication] 63.It is clear that the Applicant has continued his associations with the Rebels and other club members. He has been permitted to retain his vest and has continued to receive updated patches. He has retained a club tattoo. He has continued to participate in club activities while wearing club colours. 64.I accept that the Applicant has not continued the level of involvement with the Rebels that he had shown in the past. For example he no longer attends regular club meetings. However, this lessened level of participation does not alter the fact of his continued associations. Nor does it alter the fact that he continues to be accepted by the Rebels as a member of the club. This fact is evidenced by the patches that he has received. 65.On the material before me I am satisfied that the Rebels are recognised as an organised crime network and that the club poses a significant threat to the public interest. 77. The issue of the existence of OMCG's in our society is a matter which Police and Law enforcement bodies are continually assessing. This process is often carried out (especially in recent years) in the context of legislative considerations by the elected representatives. 78. In New South Wales the Crimes (Criminal Organisations Control) Act 2012 remains in force. Relevantly that Act provides for the making of control orders by the Courts preventing individuals from associating with other members of certain entities including some OMCG's. The relevant entities need to first be declared a 'criminal organisation' by the Court on application by the Commissioner of Police. Control orders appear to prevent association between relevant individuals in an attempt to limit the functionality of the entity in respect of any matters (including criminal conspiracy and other related activity). These provisions are similar to consorting provisions which have been enacted and repealed and reintroduced at various times over the last century in New South Wales. 79. Whilst these 'gang' provisions have had a somewhat difficult history in the domestic jurisdictions and have been subject to various constitutional challenges with various levels of success, the current provisions referred to above are in force, and in my view provide some legal basis for the general allegations directed at the activities of OMCG's and their members. However I note that broadly individuals remain at liberty to apply to and join these organisations, and applications for declarations must be substantiated by evidence which satisfies a superior Court. In that regard there is no current legal basis to 'outlaw' the existence of certain OMCG or alleged criminal organisations in the same was as some Commonwealth legislation prohibits certain organisations under terror provisions. 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. 81. In this regard it would seem appropriate that having regard to the objects of the Firearms Act, and noting that the discretion should be exercised in a way which promotes the principles and objects of the Act, that whilst the applicant may be a fit and proper person to hold a firearms licence, it seems that it would not be in the public interest for such a licence to be issued without specific conditions.
I note that the applicant tendered paragraph 79 of that decision as part of his evidence and submissions in the matter.
In the current case in my view the abovementioned public policy considerations (coupled with the evidence) apply. In addition the matters referred to in the paragraphs above in my view add some weight to the relevant considerations and view on the evidence that I observed at paragraph 84 (above).
In the current case (contrasted with Sciberras), Police were aware of both suites of licences and the applicant's membership of the 'Lone Wolf' Club, for a dozen years prior to the taking action that lead to these two sets of proceedings. No evidence has been submitted to establish any adverse change to the applicant's character or standing as a matter of fact allowing some other legal principle to be applied. (Other than one consorting warning which on the evidence before the Tribunal is not in and of itself an adverse matter leading to any breach).
Whilst the activities of OMCG's generally have come under closer scrutiny in Australian jurisdictions in the last 5-7 years, the applicant's position remained unchanged until his resignation from the OMCG on 22 September 2016. His resignation in my view recalibrates the case for and against, and if anything clearly on the evidence received by the Tribunal, diminishes the respondent's case to some degree.
I again note in concluding that there has been no adverse change from the applicant since 2004 nor any change in respect of the New South Wales Police knowledge of the applicant. If anything the sole consorting warning (to which a defence was / is offered) is balanced out by the applicant's cessation of his association with the 'Lone Wolf' Club

Conclusion

It therefore follows that on the assessment of all of the evidence before the Tribunal, the applicant is a fit and proper person to hold, and it is in the public interest to grant or reinstate the applicant's Class 1ABCDEF Class 2ABC Security Licence, and I so find.
Consequent on this finding, for similar reasons in my view the applicant's Category ABH Firearms Licence should be granted or re-instated.
As a result, the correct and preferable decision is for the Tribunal to set aside the decision of the Commissioner in respect of Mr Muratore's Security and Firearms Licences. In addition the orders will be that both Licences referred to in paragraph 93 and 94 (above) are to be re-instated, but on the conditions (as provided for by the Firearms Act 1996 and the Security Industry Act 1997) that the applicant not associate with any current members of Outlaw Motor Cycle Gangs (or OMCG Clubs).

Orders

I make the following orders 1. The decision under review in proceedings 1620188 is set aside. 2. In substitution for that decision the respondent is to re-instate the applicant's Class 1ABCDEF Class 2ABC Security Licence. 3. The decision under review in proceedings 1610441 is set aside. 4. In substitution for that decision the respondent is to re-instate the applicant's Category ABH Firearms Licence. 5. In respect of Orders (2) and (4) both licences are reinstated on the condition that the applicant / licence holder, does not associate with any current member of an OMCG. 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: 24 April 2023

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Judgment (16 paragraphs)

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Cases Cited (13)