Mr Stamatelatos relied on the following documents:
Submissions
Character references; and
Case references.
[2]
Character References
Mr Stamatelatos provided letters from:
Frank Grilla, Transport Supervisor at Hymix, dated 13 June 2018;
Michael Lakkis, Director of Guardian Venue Management dated 30 June 2008;
Katalin Stern, Assistant Security Manager and Shane Brady, Security Manager of Westfield, dated 9 March 2006;
Frank McKenzie, Director of Image Security Pty Ltd dated 10 August 2005
The references refer to Mr Stamatelatos as being honest and hardworking, honest and trustworthy, displaying above average customer service and incident management skills; displaying a professional attitude, being a much-valued member of our organisation, being held in high regard by colleagues and clients; being an extremely competent security operative and a valuable employee.
None of the references refer to Mr Stamatelatos and his firearms licence.
[3]
Applicant's Oral submissions
At the hearing Mr Stamatelatos submitted that the Tribunal should take into account that he had held a firearms licence without incident for 16 years. He had worked for Armaguard for 10 years. At the end of every working day he had handed in his firearm. He had one spent conviction - being a mid-range PCA on 6 March 2005. The applicant contended that the sole reason that his firearms licence had been revoked was his membership of an outlaw motorcycle gang. There had been no consideration given at large to his entire history. He had been unfairly picked on by the police and stopped frequently as a member of outlaw motorcycle gang. On one occasion he was given a defect notice and his vehicle had to be towed away.
He referred to the Respondent's reliance upon the Toleafoa matter as support for the proposition that it was contrary to the public interest for Mr Stamatelatos to hold a firearms licence. The matter was quite distinguishable as Mr Toleafoa had many offences on his record, whereas Mr Stamatelatos does not have a criminal record. The absence of a criminal record was relevant both to the Commissioner's exercise of discretion as to whether Mr Stamatelatos was fit and proper and in relation to whether or not it was in the public interest. Bond's case was authority for the proposition that the decisionmaker should give weight to the matters that were favouring Mr Stamatelatos. He is 50 years of age and has no criminal record and weight should be given to this fact. The matter of Cusumano should also be distinguished as Mr Cusumano had many offences on his record, while Mr Stamatelatos has none.
The Tribunal should distinguish the case of Leviny as Mr Leviny had been in breach of firearm storage provisions. Mr Stamatelatos had not engaged in any such conduct.
Ward's case requires that there be "virtually no risk" in the person holding a firearms licence. The Respondent relied upon Mr Stamatelatos' membership of the Mongols as presenting the risk. However, not everyone who is an in an outlaw motorcycle gang presents a risk to the public.
The Tribunal should note that Mr Mielczarek's application was for a tattoo licence. He had not had his firearms licence removed from him. Mr Mielczarek was still a Rebel and they had not taken away his firearms licence. The Tribunal had acknowledged that there can be a rogue member in any group, but this was not Mr Stamatelatos.
The Commissioner's approach was a denial of natural justice to any member of the public who was a member of an outlaw motorcycle gang who wished to have their application for firearms considered.
In the matter of Newman, Mr Newman had been a member of the Gladiators, OMCG. He had held a firearms licence for 25 years. Similarly, to Mr Stamatelatos, Mr Newman had not breached any obligations under the Firearms Act. The Tribunal had given weight to Mr Newman's period of good conduct. The Tribunal set aside the revocation of Mr Newman's firearms licence. Similar weight should be given to Mr Stamatelatos' good conduct. See Newman v Commissioner of Police, NSW Police Force [2018] NSWCATAD 17
There were strong parallels between Mr Stamatelatos' circumstances and the matters of Newman and Mielczarek.
The Tribunal should be satisfied that Mr Stamatelatos was fit and proper. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, the Court stated that to be considered fit and proper the applicant must show that he is possessed of the requisite knowledge. The Tribunal should be satisfied that Mr Stamatelatos knows how to manage the responsibilities of a firearms licence - given his lengthy experience.
It was clear from the evidence of Detective Sergeant Groenewegen that some OMCGs are more offensive than others. The Mongols gang was much lower down the scale in its offensiveness. The Tribunal should not tar everyone in the Mongols gang with the same brush. It was clear that Mr Stamatelatos had kept away from any wrongdoing. The Tribunal should give substantial weight to the fact that no charges have been brought against any of the individuals who had been reported as attending the Wagga Wagga ride.
The references that Mr Stamatelatos had produced go back for 10 years.
[4]
Applicant's written submissions.
Mr Stamatelatos provided written submissions, set out as follows.
The Commissioner's Decision stated that "Inherent in the licensing requirements is that the person who has access to firearms must act responsibly and in accordance with the Legislation"
The Commissioner noted that:
1. Mr. Stamatelatos is 49 years of age and has no criminal convictions other than traffic offences.
2. Mr. Stamatelatos has held a firearms licence for 11 years "which is an unblemished record."
Despite recognising these as "positive elements," the Commissioner referred to Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16 (18 April 2013), as supporting authority for the revocation of Mr. Stamatelatos' licence. The Commissioner referred to the observations made by the Appeal Panel at [33], that., 'public interest issues allows for issues going beyond the character of an applicant...and these may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.'
The Commissioner omitted to refer to the balance of what the Appeal Panel held in the paragraph - as follows.
"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."
At paragraph [10] it was highlighted that the reasons why the Commissioner refused Mr Constantin a licence was due to his criminal history and the Misleading and inaccurate information he provided relating to his application made for a security guard and firearms licences in Queensland.
At paragraph [11], Mr Constantin's criminal history was highlighted:
"In the period 1990-1991 he committed the following offences: armed robbery (6 April 1990); armed robbery (12 November 1990); assault and maliciously inflict grievous bodily harm and assault (23 April 1991). These offences resulted in convictions in 1996 for the following sentences: two counts of armed robbery - minimum term of 1 year 5 months from 4 July 1998, following on from the sentences in relation to the assault and malicious harm offences, for which the combined sentences were for a period of 3 years and 9 months from 5 October 1994."
It was highly misleading, inaccurate, a grave error and highly prejudicial to Mr. Stamatelatos for the Commissioner to rely on Constantin's case. A fortiori, that Mr. Stamatelatos has no criminal record, an unblemished firearms record, and for all purposes can be seen as a responsible member of the Community.
There is no evidence otherwise, and ultimately no evidence that he is unfit to hold a firearms licence. The Commissioner also refers to Mr. Stamatelatos' 'only convictions being in relation to traffic offences.'
The Commissioner stated that ..."the combination of your membership of the Mongols OMCG and your employment as an armed security guard, gives rise to the very real possibility that you are at heightened risk of being used by members of that OMCG to facilitate their illegal activities..."
However, it is acknowledged that Mr. Stamatelatos' firearms licence is for work only and does not allow any purchase of ammunition. Mr Stamatelatos is a man of 49 years of age, with a family, having a responsible job, and no criminal record being told that in the opinion of the Police he is a risk to public safety.
The Appeal Panel in Constantin at [29] referred to the well-known principles of House v R [1936] HCA 40 (1936) 55 CLR 499 (17 August 1936). As Starke J. held:
"But the sentence imposed upon an accused person for an offence is a matter peculiarly within the province of the judge who hears the charge: he has a discretion to exercise which is very wide, but it must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion. In the present case, the appellant was guilty of a dishonest act, and I am quite unable to discover any reason whatever for interfering with the discretion exercised by the learned judge."
In Mr. Stamatelatos' case, there had been no evidence of dishonesty, criminality, or any abuse of the privilege to hold a firearms licence that enables him to earn a living. It follows, that the Commissioner has made a decision 'on error of law grounds, being unreasonable and unfounded.' In particular, the Commissioner in one breath accepts Mr. Stamatelatos' need for a firearms licence and its restrictions (that have never been breached) yet opines that this does not mitigate the risk to public safety.
Mr. Stamatelatos' employment determines he must 'hand in' his firearm at the end of every day he is at work. This mitigates any risk to the public.
The Commissioner had not put any relevant weight on this, inter alia, which had determined an uncompromising loss financially and otherwise to Mr. Stamatelatos.
The considerations bearing on the public interest test, must be considerations that may be properly regarded as relevant, and effectively and fairly address the objectives of the Firearms Act 1996.
In Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 (4 June 2004), the Tribunal when considering the question of public safety stated at [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 led to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act."
In Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 (30 March 2017the Tribunal stated at [66] in referring to Webb,
"The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety."
In Hijazi v Commissioner of Police NSW Police [2014] NSWCATAD 148, Senior Member Frost at [38] highlighted that appropriate weight must be given when an applicant has a "fully compliant history in the particular regulated activity under consideration." At paragraph [39] he held:
"The best indicator of future behaviour is past behaviour, and in that regard, I am satisfied that Mr. Hijazi's continued holding a firearms licence does not place public safety at risk"
Mr Hijazi had 'links' with member of the Comancheros OMCG, and his brother (Mick Hijazi) was a 'high-ranking member,' however, the Tribunal held there was no evidence that Mr. Hijazi's character or his behaviour was 'tainted.' The Commissioner had alleged nothing 'specific' against Mr. Hijazi only that his brother was a member of the OMCG.
There is no evidence that Mr. Stamatelatos', association with the 'Mongols' has tainted his character in any way that would cause genuine concern for the public's safety.
These authorities and their findings represent, and vigorously support Mr. Stamatelatos' submission that he is not a 'risk to the public,' and is entitled to hold a Category H firearms licence.
[5]
Tribunal's Findings of fact
The Tribunal makes the following findings of fact.
A Category H firearms licence was issued to Mr Stamatelatos on 6 October 2006 in connection with his employment as a security guard for Armaguard. It was re-issued on 30 November 2011 and again on 30 November 2016. The licence was revoked on 7 December 2017.
Mr Stamatelatos' criminal history shows that he was convicted of "Drive in a manner Dangerous" on 28 January 1989 and Drive with Middle Range PCA on 6 March 2005. Mr Stamatelatos submitted that this was a spent conviction.
The Tribunal is satisfied that Mr Stamatelatos has no other criminal convictions. He has no history of non-compliance with firearms provisions.
The Tribunal is satisfied, and it was not contested by Mr Stamatelatos, that Mr Stamatelatos has been a member of the Mongols since at least May 2013; and that he participated in a Mongols' ride to Wagga Wagga 31 May - 1June 2014.
[6]
Findings about whether Mr Stamatelatos is fit and proper
In FD v Commissioner of Police, Judicial Member Molony considered fitness and propriety for firearms licensing involved an assessment of the person's "knowledge, honesty and ability" in relation to the role of holding a firearms licence.
[7]
Knowledge and Ability
Mr Stamatelatos was issued with and held a firearms licence without recorded incident from October 2006 until its revocation on 7 December 2017. The Tribunal is satisfied that Mr Stamatelatos has the requisite knowledge and ability to hold a firearms licence.
[8]
Character references
The Tribunal has considered the character references provided by Mr Stamatelatos.
One group of character references comments positively on Mr Stamatelatos' character. However, they do not disclose that any of the writers were aware of the revocation of Mr Stamatelatos' firearms licence and the reasons for the revocation. The Tribunal refers to Loye's case, Loye -v- Director General, Department of Transport [2000] NSWADT 145 at 42 and 44, in which the Tribunal gave less weight to references which did not contain the referee's knowledge of the "offences" of which the Applicant was accused. Mr Stamatelatos has not been found guilty of any offences.
However, the referees' comments do not address the issue of the revocation of Mr Stamatelatos' firearms licence, his fitness and propriety to hold it or the public interest. In this respect they do not assist the Tribunal to understand Mr Stamatelatos' fitness and propriety in relation to firearms licensing. The Tribunal gives the testimonials little weight as to whether Mr Stamatelatos is fit and proper to hold a firearms licence or whether it is in the public interest for him to hold it.
The Tribunal had a reference from Kris Chappelow who has known Mr Stamatelatos for 5 years. Ms/Mr Chappelow refers to the revocation of Mr Stamatelatos' firearms licence and his membership of a motorcycle club. Relevantly, Kris Chappelow states that Mr Stamatelatos "would not hurt a member of the public; he is very much his own man and he is a person fit to hold a firearms licence." The Tribunal gives weight to Kris Chappelow's view of Mr Stamatelatos' fitness to hold a firearms licence.
[9]
Criminal history
The Tribunal considered the intelligence report I 51924968 event dated 4 May 2013 to 12 May 2013. This noted that Mr Stamatelatos had been wearing a Mongols jacket; visiting a venue in Cronulla and identifying himself as a member of the Mongols on Facebook. The report stated that the Mongols originated from the USA and are regarded as one of the most violent 1% OMCG in the USA.
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
Mr Stamatelatos' has no criminal history. His traffic record is unremarkable.
[10]
Membership of the Mongols OMCG
The Respondent submitted that the issue for the Tribunal was whether the Tribunal is satisfied that the Mr Stamatelatos' 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 so, then Mr Stamatelatos is not fit and proper to hold a firearms licence. Further Mr Stamatelatos' holding of a firearms licence risked public safety and it was not in the public interest for him to hold a firearms licence.
It was put to the Tribunal that Mr Stamatelatos' membership of the Mongols itself reflects upon his character. No specific actions of Mr Stamatelatos as part of his membership of and activities with the Mongols were relied upon as impugning his honesty.
[11]
Evidence of Detective Sergeant Bruce Groenewegen
The Tribunal understands from Detective Sergeant Groenewegen's evidence that membership of the Mongols entails membership of a hierarchical organisation which is not bound by the same rules as the rest of society. Members are expected to give obedience to senior members and to support each other mutually when challenged. The Mongols' constitution gives a clear message of expected behaviour and requires absolute loyalty and life membership from which it is difficult to disconnect. The Mongols share the characteristics of other OMCGs in that they are involved in serious crime and are invested in a culture of violence, fear and intimidation which may lead to violence in public places. OMCGs may become involved in conflicts which involve violence and the use of weapons. The Mongols are a criminal organisation.
The Tribunal accepts Detective Sergeant Groenewegen's evidence that these are the characteristics of OMCGs and the Mongols. However, there was no evidence that Mr Stamatelatos himself exhibited these characteristics. There was no evidence that Mr Stamatelatos had engaged in any of this behaviour individually. The Tribunal is not satisfied that Mr Stamatelatos' membership of the Mongols OMCG renders Mr Stamatelatos as lacking in the requisite honesty as an element of fitness and propriety to hold a firearms licence.
The Respondent relied upon the provisions of section 24 which permit the revocation of a firearms licence if the decision maker is no longer satisfied that the holder of the licence is fit and proper to hold it. The Commissioner did not point to a specific event that prompted the Commissioner to conclude that he was no longer fit and proper in December 2017. Mr Stamatelatos was issued with a firearms licence in October 2006 and it was renewed most recently in November 2016. The Tribunal notes that Mr Stamatelatos had been a member of the Mongols to the Respondent's knowledge since May 2013. He held a firearms licence at the same time for 4 1/2 years. The Tribunal does not find that Mr Stamatelatos' criminal history is such that he should be considered not fit and proper to hold a firearms licence.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33 , (1990) 170 CLR 321 per Mason CJ at [63], the High Court said that in determining fitness and propriety a decision maker needed to consider factors both for and against the applicant.
The Tribunal takes into account both the matters against and for Mr Stamatelatos in considering his fitness and propriety. There are no specific matters of Mr Stamatelatos' conduct which are against him. Even if the Tribunal accepts the Respondent's contention that membership of an OMCG should cause concern in relation to Mr Stamatelatos' fitness and propriety to hold a firearms licence - the Tribunal also takes account of factors in his favour. These include the lack of criminal activity proved against Mr Stamatelatos and the views of Kris Chappelow which were not contradicted before the Tribunal.
Previous matters determined in the Tribunal were relied upon by both the Applicant and Respondent concerning Mr Stamatelatos' fitness and propriety. The Tribunal notes that each of these cases were determined on the basis of the Tribunal's analysis of the facts of the individual case. The Tribunal is not bound by previous decisions when determining a merits review of a decision.
However, the Tribunal observes that the cases do not dictate a singular approach to membership of an OMCG and fitness and propriety to hold a firearms licence.
The Tribunal is not satisfied that Mr Stamatelatos' firearms licence should be revoked on the basis that he is not fit and proper to hold a firearms licence.
Mr Stamatelatos referred to grounds including "taking into account irrelevant considerations and failure to take into account relevant considerations." As the Tribunal's mandate is to undertake a merits review, the Tribunal has not considered these matters.
[12]
Tribunal's findings - Is licence contrary to Public Interest?
A test in relation to whether the Tribunal should exercise its discretion to revoke a firearms licence is whether the Tribunal is satisfied there is virtually no risk to the public. See Ward v Commissioner of Police [2000] NSWADT 28.
In Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 (4 June 2004), the Tribunal when considering the question of public safety stated at [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 led to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act."
In Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 the Tribunal stated at [66] in referring to Webb,
"The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety."
In Hijazi v Commissioner of Police NSW Police [2014] NSWCATAD 148, Senior Member Frost at [38] highlighted that appropriate weight must be given when an applicant has a "fully compliant history in the particular regulated activity under consideration." At paragraph [39] he held:
"The best indicator of future behaviour is past behaviour, and in that regard, I am satisfied that Mr. Hijazi's continued holding a firearms licence does not place public safety at risk"
Mr Hijazi had 'links' with member of the Comancheros OMCG, and his brother (Mick Hijazi) was a 'high-ranking member,' however, the Tribunal held there was no evidence that Mr. Hijazi's character or his behaviour was 'tainted.' The Commissioner had alleged nothing 'specific' against Mr. Hijazi only that his brother was a member of the OMCG.
In considering whether it is not in the public interest for Mr Stamatelatos to retain his firearms licence, the Tribunal places public safety as a paramount concern as set out in the Objects and Principles of the Act.
The matters of Webb, Martin and Hijazi focussed on the safety of the public in determining the public interest. In each of these matters the Tribunal stressed the importance of considering a person's prior conduct in assessing any risk to public safety.
NOT FOR PUBLICATION.
The Tribunal does not have evidence before it of Mr Stamatelatos' prior conduct compromising public safety.
[13]
Consideration of the Respondent's case
The Tribunal has considered the Respondent's contention that it took account of a range of factors as required in Bonds case to determine Mr Stamatelatos' fitness and propriety to hold a firearms licence.
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.
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.
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.
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].
Further the Tribunal notes that Mr Stamatelatos' category H firearms licence was granted for the purpose of his work. This required him to hand in his firearm at the end of each working day.
The Tribunal is not satisfied that Mr Stamatelatos' holding of a category H firearms licence presents a risk to public safety or that it is contrary to the public interest.
[14]
Decision
On the basis of all the evidence the Tribunal is satisfied that Mr Stamatelatos is a fit and proper person to hold a Category H firearms licence.
The Tribunal is satisfied that it is not contrary to the public interest for Mr Stamatelatos to hold a category H firearms licence.
The correct and preferable decision is to set aside the decision under review.
[15]
Orders
1. The decision under review is set aside .
2. Pursuant to s 64(1)(b), (c) and (d) of the Civil and Administrative Tribunal Act 2013,
1. (i) the recording and transcript of the confidential hearing held on 15 June 2018 pursuant to s 49(2) of the Act,
2. confidential exhibit 8 , and
3. paragraphs of these reasons which commence NOT FOR PUBLICATION are for publication only to the Respondent. They are not for publication or for release to the Applicant or any other person.
[16]
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
[17]
Amendments
24 July 2018 - Initial of Applicant's Counsel amended
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 July 2018
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Ward v Commissioner of Police [2000] NSW ADT 28
Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110
Zahra v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211
Category: Principal judgment
Parties: Paul Stamatelatos (Applicant)
Commissioner of Police, NSW Police Force
(Respondent)
Representation: Counsel:
G Beveridge (Applicant)
A Bhalla (Respondent)
Tribunal's Power to review the decision
The Tribunal has jurisdiction to review the Decision pursuant to section 75(1) (c) of the Firearms Act 1996 (NSW) and section 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
In determining the application, the Tribunal must decide what is the correct and preferable decision having regard to the material before it. The material the Tribunal may consider includes material that now exists, but which did not exist at the time of the Decision and material that was otherwise not considered by the relevant administrator. See Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
The Tribunal may affirm, vary, set aside and make a substitute decision or set aside the decision and remit it to the administrator.
In proceedings before the Tribunal under the ADR Act, there is no onus of proof. However, when there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be to the civil standard of proof, that is, on the balance of probabilities as set out in section 140 of the Evidence Act 1995 (NSW) which provides:
Section 140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
Onus of proof
There is no onus of proof in administrative review proceedings: Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 at [62] per Button J.
Public Interest
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [24] the Appeal Panel held that:
"... public interest is a term embracing matters against others, of standards of human conduct and of the functioning of government and government instrumentalities et cetera established and accepted to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct to the interest of the individual or individuals. 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.
In Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194, the Tribunal said, at [94]
"The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33] "
Fit and proper
The Tribunal has often considered the term "fit and proper" by regard to the following authorities in Australian Broadcasting Tribunal v Bond [1990] HCA 33 , (1990) 170 CLR 321 per Mason CJ at [63], the High Court said that:
"'The question of 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 "
In Hughes & Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127 at 156, the High Court said that:
"The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. 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 - 'honesty to execute it truly, without malice affection or partiality, knowledge to know what he ought duly to do, and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it' - Coke "
Furthermore, in Ward v Commissioner of Police [2000] NSWADT 28, the former Tribunal held, at [27], when considering "fit and proper" in the context of the Firearms Act, having regard to the objects of the Act:
"The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the applicant] would not pose a risk to public safety if he had access to firearms.
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."
See also Leviny v Commissioner of Police (NSW) [2015] NSWCATAD 267 at [13].
NCAT has considered OMCG members or associates on previous occasions, both in respect of firearms licences, and in respect of tattoo industry licences. In Zahra v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211, the Tribunal reviewed a decision to refuse an application for a Tattoo-Operator Licence. The Commissioner had made an adverse security determination to the effect that it was contrary to the public interest for the applicant to be granted a licence and that the applicant was not a fit and proper person to hold a licence. This is broadly similar to the reasons for revocation in Mr Stamatelatos' circumstances. The Tribunal found that Mr Zahra was a member of the Rebels OMCG (despite his assertion that he was a retired member). The Tribunal noted (at [64]) that:
"... 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."
At [65], the Tribunal said:
"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."
And, at [69], it concluded:
"The public would not expect that a person with the Applicant's background and associations would be granted such a licence. Until such time as he fully disassociates himself from the Rebels, this risk will remain, and he should not be granted the licence."
Mielczarek v Commissioner of Police, New South Wales Police Force and Commissioner for Fair Trading [2016] NSWCATAD 34 also involved tattoo licensing. Mr Mielczarek was a Rebels OMCG member who did not have a criminal record. At [162], the Tribunal found that:
"Also relevant to the public interest is the fact that occupational regulatory schemes such as the TP Act not only directly protect the public from harm, but also help to preserve public confidence in the regulated activity and its members: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Kirbach v Health Care Complaints Commission (No. 2) [2015] NSWCATAD 234, [39] - [40], [45]. The Tribunal should place itself in the position of a member of the public knowing of the applicant's associations or record and consider whether that person would object to having the applicant perform the relevant services: Naziry v Director-General, Ministry of Transport [2004] NSWADT 40, [55]."
Mr Stamatelatos' former licence was, essentially, an occupational licence, being a Category H firearms licence.
In Mielczarek, the Tribunal found that a fact relevant to the public interest was that Mr Mielczarek was a member of "an organization that has a long history of involvement in violent crime": [163]. The Tribunal also found that (at [167]):
"(Mr Mielczarek's) continuing association, however fragmentary it might be, adds to the public risk presented by the organization by making him a possible target of competing factions."
In finding that the decision to deny the applicant a licence was the correct and preferable one, the Tribunal said, at [171]:
"... I find that it would be contrary to the public interest for the applicant to be granted the licence that he is seeking. The public would expect that a person with the applicant's connections would not be granted such a licence. Following Montgomery SM in Zahra (at [69]), I may add that 'Until such time as he fully dissociates himself from the Rebels, this risk will remain, and he should not be granted the licence'".
In Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194, the Tribunal reviewed a decision to refuse to issue a category AB firearms licence for the purpose of hunting. The applicant was a member of the Outcasts OMCG, and the Tribunal found that he had a continuing association with that group: at [78]. In upholding the decision to refuse Mr Adams' firearms licence application, the Tribunal said, at [90], that:
"... Although there is no evidence that the applicant has personally engaged in any drug dealing, firearms trafficking, violence or similar criminal activities, he could, as the Respondent contends, come under pressure to make guns or ammunition available to members of the Outcasts if he continues to associate with them. On the basis of all the evidence, I find that the applicant is not a fit and proper person to be licensed to possess or use firearms"
And, at [98]:
"I have found that the applicant retains an association with the Outcasts and even now equivocates about whether he would remain a member if he were to accept that it is in fact an OMCG . He admits that he has made no effort to dissociate himself from the Outcasts. The Tribunal in Azzopardi has recognized that OMCG membership in itself entails a firearms risk. See Azzopardi v Commissioner of Police New South Wales Police Force [2013] NSWADT 205 Further, confidence in the firearms licensing system could suffer if its elaborate requirements failed to prevent the licensing of a person known to be associated with an organization having a propensity for violence and other criminal conduct."
In Adams, the Tribunal affirmed the decision under review on the grounds that the applicant was not a fit and proper person to hold a firearms licence and that it was not in the public interest for him to do so.
Newman v Commissioner of Police, NSW Police Force [2018] NSWCATAD 17 may be distinguished from Mr Stamatelatos' circumstances. In Newman, the Tribunal set aside a decision to revoke a firearms licence. However, in that matter, the applicant had resigned his membership of the Gladiators OMCG. Mr Stamatelatos has not done this.
In Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, the Deputy President noted that in respect of the revocation of licences that the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
The provision and power must be construed in a way that is consistent with the language and purpose of all the provisions of the Act: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (at [69]) per McHugh, Gummow, Kirby and Hayne JJ.
When considering whether to issue a firearms licence, a decision maker should have regard to the principles and objects of the Act at s. 3.
It is through that prism, as well as the plain language of s. 24 (and s. 11), that the Commissioner's discretion must be exercised, and his actions understood. And, because "the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision" (s. 63(2), ADR Act), the Tribunal's review decision must similarly be made having regard to the principles and objects at s. 3 of the Act. (See also Ward, supra).
The decision to revoke Mr Stamatelatos' licence furthered, and furthers, each of the relevant principles and objects at s. 3 of the Act, in that:
1. it confirms the notion that firearms possession and use is indeed "a privilege that is conditional on the overriding need to ensure public safety": s. 3(i)(a);
2. it improves public safety by "imposing strict controls on the possessionand use of firearms": s. 3(1) (b) (in this case, by refusing such possession and use).
Section 24 of the Act does not require the decision maker to take into account hardship in determining whether or not to revoke a firearms licence.
The financial hardship of the applicant is an irrelevant consideration for the decision maker to take into account when considering whether the correct and preferable decision was made to revoke the licence: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J; Lai v Director-General, Department of Transport [2001] NSWADT 74 at [47]. Section 3 relevantly focuses on public safety, not the financial hardship of any particular applicant. The Act does not require a "balancing" of community interests against such hardships, although an applicant must demonstrate a genuine reason for having a licence: s. 12. However, that reason is an additional hurdle for an applicant, and not to be balanced in any way against the community's interest in public safety.
Adopting the reasoning used in Mielczarek at [171], the "public would expect that a person with the applicant's connections would not be granted such a licence." Mr Mielczarek's application was for a tattoo industry licence, but it applies by analogy (and perhaps with even more force) to Mr Stamatelatos, an OMCG member, who wishes to retain the privilege of a firearms licence. Such reasoning is also entirely consistent with Adams (a firearms licence matter) at [94], in that for an OMCG member to be accorded the privilege of a firearms licence would erode "public confidence in the administration of the licensing system".
The Groenewegen evidence details the violent and criminal nature of OMCGs. It cannot be said that there is "virtually no risk" to public safety in an OMCG member having ready access to a firearm: Ward at [27]. Furthermore, given that evidence, it cannot be said that an OMCG member such as the applicant is a fit and proper person to enjoy the privilege of a firearms licence, despite the lack of any substantive criminal record: Adams at [90].
Mr Stamatelatos' membership of the Mongols OMCG, and the evidence of Bruce Groenewegen, mean that the decision under review can and should be affirmed upon all the bases set out.