Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sciberras v Commissioner of Police New South Wales Police Force [2015] NSWCATAD 206 Hearing dates: 7 May 201510 July 2015 Date of orders: 13 October 2015 Decision date: 13 October 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer Senior Member Decision: (1) The decision under review is set aside. (2) In substitution the Respondent is to re-instate the applicants licence with the Special Conditions referred to in the decision of 1 August 2014 and reproduced at paragraph 9 of these reasons. (3) Order (2) is contingent on the applicant satisfying the Commissioner afresh of any nominated item in the Table to section 12 of the Firearms Act 1996. Catchwords: FIREARMS – Fit and proper – cancellation of licence – alleged conduct – alleged associations – lack of any criminal record – evidence – objects of legislation – public interest – reinstatement – special conditions on licence. Legislation Cited: Crimes (Criminal Organisations Control) Act 2012 Firearms Act 1996 Firearms Regulation 2006 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Constantin v Commissioner of Police [2012] NSWADT 172 Pobjie v Commissioner for Fair Trading [2008] NSWADT 39 Constantin v Commissioner of Police [2013] NSWADTAP 16 Sobey v Commercial and Private Agents Board 20 SASR 70 Zahra v Commissioner of Police NSW Police Force and NSW Fair Trading [2014] NSWCATAD 211 Category: Principal judgment Parties: Mark James Sciberras (Applicant) Commissioner of Police NSW Police Force (Respondent) Representation: Solicitors: Applicant: Sydney City Lawyers Respondent: Sparke Helmore Lawyers File Number(s): 1410701 Publication restriction: Section 64 (1) (d) of the Civil and Administrative Tribunal Act applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are not to be released to either the Applicant or the public. Reasons for decision 1. In February 2014 the Commissioner of Police suspended the applicant's category A Firearms Licence. This suspension followed a safekeeping inspection on 20 February 2014. Six months prior the applicant's firearms licence had been made subject to a special condition (concerning not associating with members of an 'outlaw motor cycle gang'). During an internal review of the imposition of the special condition, on 11 November 2014 the Commissioner's delegate set aside the special condition and in substitution revoked the Category A firearms licence. 2. In revoking the licence, the Commissioner decided that the applicant was not a fit and proper person to hold a firearms licence. Whilst the main reason was that the applicant had (and possible continued) to be associated with an outlaw motorcycle gang, and evidence of one instance of a possible breach of the safekeeping provisions, the decision was in contrast to the applicant's nil criminal / firearms history, and lack of prosecution for any offence. Whilst the Commissioner's delegate was of the view that the applicant was not a fit and proper person to hold a firearms licence, the Tribunal finds, for the reasons set out below, that such a finding cannot be supported by the available evidence. Background 1. The applicant has held a firearms licence since approximately 1991. During that period he has never been charged or convicted of any breaches of the relevant provisions relating to the possession, storage, handling and use of firearms. In addition he has never been convicted of any criminal offences before a Court in New South Wales or Australia. Whilst he has a number of matters on his driving / traffic history of 30 years of driving, none of these matters has required his attendance at Court. The single Court attendance was initiated by the applicant by way of an election to have a traffic matter dealt with at Court. The background to the applicant's history will be expanded upon later in these reasons. 2. With this official background, of the applicant being an apparent law abiding member of society, the Commissioner of Police identified some information about the applicant (as a result of a police operation). Whilst that information of itself did not result in any enforcement action by police, it did result in the applicant's details being matched with other police databases, and holdings. As a result of this process (conducted in February 2014), the applicant was identified as holding a firearms licence. Following that identification, an inspection took place on 20 February 2014, which resulted in police seizing the applicant's firearm and suspending his licence. 3. Whilst police made various observations about the location of the firearms safe key, the grounds for the suspension as provided in the Notice of Suspension notice dated 20 February 2014 was that (the holding of a licence) was not in the public interest. No other reason was provided on the Notice, however the COPS Event dated 20/2/2014 in the open evidence states the following: Police informed SCIBERRAS that they were suspending his Firearm Licence and seizing the shotgun as it was not in the interest of the public for him to be in possession of firearms. This being due to his membership of the Bandido Outlaw Motor Cycle Gang. The issue of the applicant's membership or formal association with the relevant outlaw motor cycle gang (OMCG), or as the applicant referred to consistently as a club, at the relevant time of the inspection in February 2014 has been in constant dispute between the parties. 1. The applicant's position has consistently been that his (prior) membership of the OMCG is irrelevant to his being a fit and proper person to hold a firearms licence when one has regard to his personal circumstances and his unblemished history both in respect of firearms matters, and being a law abiding citizen. In addition the applicant consistently maintained that his formal association with the relevant OMCG ended prior to the inspection. His evidence was that after 15 year membership he had left the relevant OMCG the previous year. 2. The police operation referred to in paragraph 4 (above), involved a review of photographs which police held of the September 2013 Bandidos National Run. It appears that through checking individuals and registration details from those photographs, the applicant was identified. This process was conducted as part of the duties and operational activities of a strike force dealing with the activities of members of Outlaw Motorcycle Gangs (OMCG). The Commissioner's Review 1. On 1 August 2014 the Commissioner's delegate issued a Notice of Special Conditions on Firearms Licence. The specific impetus and timing of this review is unclear. However from the Notice of Special Conditions on Firearms Licence dated 1 August 2014 (which also constitutes the reasons for decision), it appears that a reassessment of the licence occurred due to the data matching by police of holdings from the strike force referred to above, and subsequent analysis of that data having regard to the Firearms Act 1996. 2. The conditions imposed were that: The holder of this licence does not enter the clubhouse or other premises of the Bandidos or any other outlaw motor cycle gang (OMCG). The licensee is not to attend or enter any premises that are frequented by any OMCG. In the reasons for decision the delegate stated that after reviewing information relating to the applicant's membership of the Bandidos OMCG, and the advice that the membership had ceased, the 20 years incident free firearms licensing, and complete lack of criminal history, it was appropriate to continue the licence but with conditions. 1. The Police Commissioner held the view that persons who associate with OMCG members may be a source of public risk in relation to possessing firearms. In the reasons the view was expressed that the conditions 'would be prudent as a caution to reinforce your awareness of the legitimate public concerns surrounding outlaw motorcycle gangs'. The Notice as issued on 1 August 2014 contained an error, and a subsequent notice in pertinent terms was issued on 6 August 2014. 2. On 20 August 2014 the applicant (through his legal representatives) wrote to the Commissioner of Police advising that they did not accept the conditions on the applicant's firearms licence and sought a review. Specifically they submitted that the applicant's interests in motorcycles and his maintenance of that interest by occasionally attending the premises of any motorcycle club was not inconsistent with his other sporting shooting and domestic, occupational and community interests. In addition the applicant made submissions for the unconditional return of his firearms licence, as to do otherwise was 'an infringement of civil liberties', the right to 'freedom of association', and the ability to 'exercise the freedoms expected in a democratic society'. 3. On 11 November 2014 a further Statement of Reasons was issued in respect of the review of conditions request. The outcome of the review was that in the absence of conditions, the Commissioner's delegate determined to revoke the firearms licence in the public interest. The grounds were in summary that in the context of the firearms licencing and regulation statutory regimes, the types of rights submitted by the applicant were overridden by the criteria of the scheme. In summary the Commissioner's delegate submitted that: 'The principles and objects of the Act confirm that possession and use of firearms is a privilege, not a right, and that privilege is conditional on public safety.' 4. On 9 December 2014 the application for administrative review was filed with the Tribunal. A number of grounds were contended by the applicant. Two grounds related to the apparent lack of evidence to support the position held by the Commissioner. Ground 4: No evidence has been advanced by the Police to support the revocation of the applicant's Firearms License on the grounds that it is not in the public interest. Ground 5: No evidence has been advanced by Police to support the revocation of the applicant's Firearms License on the grounds that it is against the safety of the public. It is in respect of these two grounds that a large majority of the volume of evidence filed by the Respondent related. Respondent's Evidence 1. The respondent's section 58 material was filed on 3 February 2015. A letter from the relevant shooting club (Cecil Park Clay Target Club), relating to the applicant, and produced under summons was tendered and marked Exhibit R1. 2. A copy of material obtained from the Firearms Registry was tendered by the respondent and marked Exhibit R2. 3. Two affidavits / statements were also filed by the respondent and these contained confidential information which was redacted from the copies filed in open session. A signed statement of a Detective Senior Constable 'CS' was tendered and marked Exhibit R3. An affidavit of Detective Sergeant 'BG' attached to the Task Force was tendered and marked as Exhibit R 4. 4. The respondent also relied upon material tendered in a confidential session under section 75 (5) of the Firearms Act 1996. The Applicant's Evidence 1. The applicant filed an affidavit which he swore 5 March 2015. The affidavit was tendered and marked Exhibit A1. 2. The applicant gave evidence at the hearing and was subject to lengthy cross examination by the Respondent. The Tribunal also asked questions of the applicant. The Hearing Witness 1. 1. The respondent called Detective Senior Constable 'CS'. The witness gave evidence in chief concerning the firearms inspection that he carried out on 20 February 2014, and the material recorded in the resulting COPS Event entry. The witness's evidence was that he inspected the firearms safe and that there was no ammunition near or in the safe. His evidence was that the applicant reached above the doorframe and produced the key to the firearms safe. The firearm was a double barrel shotgun. The COPS event was created from the witness's memory or recall of the matters that occurred during the inspection. He also gave evidence that in his knowledge the 'Bad Company' patch (as worn by club members), identified someone who had previously committed assaults. 2. In cross – examination when asked why he suspended the applicant's licence, the witness answered that he did so because in his view the applicant was not a fit and proper person to hold such a licence. It was put to the witness that he forgot to ask the applicant about ammunition. It was also put to the witness that there was another locker / safe present in addition to the one in which the shotgun was located. The witness answered that he did not recall seeing another locker or safe. Questions were put to the witness that he went to the applicant's premises with the intention of suspending his licence and seizing his firearms. The witness denied these propositions. 3. When questioned about the issue of why the witness believed that the applicant was not a fit and proper person, the witness answered that this view was based on the applicant's associates. Witness 2. 1. The respondent called Detective Sergeant 'BG'. The witness gave evidence in chief in respect of his knowledge and expertise of the culture, activities and structures of various outlaw motorcycle gangs. Evidence was given concerning the notion of a 'one-percenter' (1%) being the outlaw moniker that members of these OMCG's attached to themselves. 2. The witness took the Tribunal to the relevant parts of his affidavit evidence which dealt with the Bandidos OMCG. The witness had no specific awareness of the Chapter of the OMCG which the applicant was associated with other than what he had since ascertained. In that regard the witness gave evidence that the 'Northside Chapter' was founded in 1998. There were 29 incidents recorded by the respondent, some which in fact pre-dated 1998. 3. In respect of the witnesses general affidavit evidence, the witness advised that he only included Events where there were no court proceedings arising. Where matters did proceed to court, the relevant Court Attendance Notices, Charges, Summons and Facts etc. were provided. The witness gave detailed evidence in the open hearing about his role and knowledge arising from his experience tasked in the Gangs Squad and various strike force and task forces. Much of this witness's evidence was not subject to any challenge or cross examination, partly due to the general nature of the evidence. Witness 3. 1. The applicant gave evidence in support of his application before the Tribunal. In evidence in chief he adopted his affidavit. He gave evidence that he currently works as a roofing contractor, and has his own company. His employment occupies 6 days a week of his time. Whilst he attends to his family, his spouse is a full time mother / parent of their children. 2. When asked why he needs a firearms licence and the reason for the proceedings, the applicant's evidence was that he wishes to re-engage with clay target shooting. 3. The applicant gave evidence that he previously had a licence for automatic weapons in the early 1990's. When the amnesty came in in 1996 following the legislation and policy amendments following the Port Arthur incidents, he surrendered his automatic weapons. 4. When questioned about the firearms inspection conducted on 20 February 2014, the applicant gave the following evidence. He stated that Witness 1 advised him that police were 'seizing this gun as you are not a fit and proper person to have a shotgun.' The applicant further asserted that Witness 1 added that 'people like you might cut the barrels off and use it.' 5. When the applicant was asked whether witness 1 asked him during the inspection about ammunition, the applicant was adamant that he was not asked. The witness subsequently located ammunition (after the inspection had concluded). His evidence was that over the following days he telephoned to speak to witness 1 about this, and was told that he was 'not here'. He spoke to an officer named 'Cook' at Parramatta Police Station. That officer advised the applicant to surrender the ammunition straight away, and arrangements were made to hand it in at Blacktown Police Station. The applicant was questioned about the number of rounds that he handed in, and gave evidence that he had possessed a 're-loading' machine. 6. The applicant's evidence was that he had retired from the OMCG chapter due to work and family commitments. The 'Bad Company' patch was purchased by the applicant. His evidence was that these could be purchased by any 'full patch' member. That is they were not exclusively awarded, but available for purchase to help fund the running of the club. 7. The applicant gave evidence that he has a gun safe and next to it is a lockable / locked drawer which houses his ammunition. The key to the gun safe was located on the timber frame of the wall out of sight in a portion that was not gyp-rocked. When asked again about the ammunition the applicant stated that he was positive that witness 1 did not ask him about the ammunition during the inspection. 8. In cross examination the applicant was asked about his work. He confirmed that he worked 6 days a week, and that Sunday was his day off. He confirmed that he had been a member of the Bandidos since about 1999. His oral evidence was that he had retired from the Bandidos in February 2014. 9. The applicant was questioned about where he kept the key to the ammunition safe, and advised that it was in a drawer in his office, which was a separate room to where the items were stored. 10. He was questioned about his gun club membership lapsing (Exhibit R 1), and conceded that he did not tell the Police that his membership had lapsed. The applicant was also questioned about whether he still owns a Harley Davidson Motorcycle. Whilst his evidence was that he owned such a motorcycle, it was a different one to the one that he owned in 1999 as referred to in paragraph 16 of Exhibit A 1. 11. The applicant was asked under cross examination whether the Northside Chapter still exists. His evidence was, 'maybe, a few of them get together every now and then'. 12. He was questioned about an incident at a Wollongong restaurant in 2011, where rice and beer were being thrown around as referred to in paragraph 19 of Exhibit A 1. The applicant agreed that his employees were acting in a stupid manner and that 'acting like geese' was a fair description of the incident. His evidence was that he was not involved in the fracas and in fact paid the bill. 13. In further cross examination the applicant was questioned about incidents involving pizza shops which he owned with his wife / family. A pizza shop in Windsor was firebombed in 2009. He agreed under cross examination that the Cops Event states what occurred. He was questioned repeatedly about not assisting police in the matters relating to his being a victim of crime. The applicant was consistent and gave his evidence in a compelling and resilient manner, notwithstanding rigorous cross examination. His evidence was that he did assist police. 14. He was asked about his involvement and association with the Bandidos OMCG. The applicant's evidence was that he was no longer active in the Bandidos, he saw and associated with members 'once in a blue moon', such as every three months or so. 15. The applicant again gave evidence in response to questions concerning the 'Bad Company' patch. He answered that the patch is purely to make money for the Chapter. 16. It was put to the applicant that a fundamental issue in this review was whether he is a member of an OMCG. The applicant gave evidence that he had never seen the rules of the Bandidos, and that in addition he has not or never witnessed the various behaviours arising from that OMCG as referred to in the respondent's open evidence. 17. Further questions were put to the applicant about the veracity of the information that he had provided the Firearms Registry either directly or indirectly via his various applications, and submission of letter of authorities from landowners / controllers. 18. The applicant was asked a number of questions by the Tribunal, in respect of aspects of his evidence. In respect of his work and free time the applicant was asked about any annual leave. His evidence was that in addition to Sundays, he would take 10 days leave every year which was 'family time'. He would stay at a resort and take the family with him. 19. In respect of the issue of locating and subsequently surrendering the ammunition, the applicant advised that on the day following the inspection he remembered that the officer (Witness 1) had not asked him about the ammunition. Witness 1 (recalled) 1. Witness 1 was recalled and asked questions about the ammunition and the inspection. It was put to the witness in cross examination that based on his written and oral evidence he had attended the applicant's residence with his mind made up. The witness denied these assertions. However as matters relating to the basis or lawfulness of the inspection are not directly relevant to the administrative decision under review, they will not be dealt with by the Tribunal. Confidential Hearing 1. The matter proceeded to a confidential hearing after the conclusion of the open hearing. Whilst the hearing was sought by the respondent in accordance with section 75 (5) (b) of the Firearms Act 1996, the fact that there was such a hearing was not confidential between the respondent, the applicant and the Tribunal. Due to time constraints it was agreed that the open evidence and submissions would be dealt with first and the closed evidence and submissions on a later date. 2. The section provides: 75… (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. 1. NOT FOR PUBLICATION Two pieces of confidential evidence were tendered. One was the open / non redacted affidavit of Detective Senior Constable 'CS' which was the companion to R 1 and was marked exhibit 'RC 1'. The other was the open / non redacted affidavit of Detective Sergeant 'BG' which was the companion to R 2 and was marked Exhibit 'RC 2'. Exhibit RC 1 1. NOT FOR PUBLICATION 2. NOT FOR PUBLICATION Exhibit RC 2 1. NOT FOR PUBLICATION Consideration of confidential evidence 1. NOT FOR PUBLICATION 2. NOT FOR PUBLICATION 3. NOT FOR PUBLICATION 4. NOT FOR PUBLICATION 5. NOT FOR PUBLICATION 6. NOT FOR PUBLICATION 7. NOT FOR PUBLICATION END OF CONFIDENTIAL PARAGRAPHS Respondents Submissions 1. The respondent made detailed submissions as to why the applicant was not a fit and proper person to hold a firearms licence. In respect of the narrow consideration (such as basis and criteria for firearms ownership), the respondent's submission pointed to the apparent evidence of non- compliance. These issues related to the lapsing of the applicant's gun club membership, alleged failures in timely notifications of changes in circumstances (relating to lapsed permission for recreational / vermin shooting), as well as the respondent's disputed claims concerning safe storage breaches by the applicant. 2. In summary the respondent submitted that there were four issues for determination. Is the applicant a fit and proper person to hold a firearms licence, does the applicant have a genuine reason for holding a firearms licence, has the applicant contravened provisions of the legislation and regulations (without being convicted), and overall, is it in the public interest for the applicant to hold a firearms licence. 3. On the fit and proper consideration the respondent submitted that the case of Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 was the proper authority, and submitted that fit and proper takes its meaning from its context. Reference was made to various cases which examined the issue in the context of the Firearms Legislation. Reference was made to the case of Constantin v Commissioner of Police [2012] NSWADT 172 and the summary of the relevant authorities as set out in Pobjie v Commissioner for Fair Trading [2008] NSWADT 39 paragraphs 113 – 117 below. Fitness and Propriety 113 The Law - Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good repute. 114 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration." Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 115 A person's fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." 116 In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 117 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. What fit and proper means must be viewed in the light of, "... the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 paragraph [41]. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused because, despite there being no evidence that he was dishonest or of bad repute, evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case, as here, the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth). 1. The respondent submitted that the Tribunal can be satisfied of certain facts based on the evidence it placed before the Tribunal. In addition the respondent submitted that it is reasonable for the Tribunal to reach certain conclusions based on the import of the evidence submitted by the respondent. Those conclusions go to the applicant's lack of fitness and proprietary, the lack of any genuine reason, and the breaches of the provisions relating to his former licence by the applicant. 2. The Respondent also made various submissions that certain matters could be inferred from other matters. For example assertions were made that the applicant's extensive history of contravening the road rules is relevant in considering his attitude towards compliance with the law. 3. In respect of the public interest considerations the respondent submitted that the public interest allows a consideration of issues going beyond the applicant's character to be taken into account. At paragraph 33 of Constantin (on appeal) Constantin v Commissioner of Police [2013] NSWADTAP 16, 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. Applicant's submissions 1. The applicant filed written submissions which focused on the open evidence submitted in the hearing. The case of Australian Broadcasting Tribunal v Bond was also relied upon by the applicant in submissions. The applicant submitted that as per that decision, the conduct of the person is an important component in judging whether the person is fit and proper. 2. Reference was also made to the case of Sobey v Commercial and Private Agents Board (see paragraph 116 of Pobjie v Commissioner for Fair Trading [2008] NSWADT 39) reproduced above. The submission being that a person's knowledge duties and responsibilities are the first component in considering whether a person is fit and proper to hold a particular licence. 3. The applicant in submissions refuted the respondent's contentions that he was still a member of the OMCG. An important point of difference between the parties was that from the applicant's perspective an OMCG is actually an Outlaw Motor Cycle Club rather than a gang. Notwithstanding the reference in common parlance to 'Bikie Gangs' and the use of the term OMCG throughout these reasons, it is conceded that members refer to themselves as members of a Club rather than a Gang, and the use of terms 'Club House', 'membership' and other references are consistent with a club or association. The term 'gang' appears to arise from the unlawfulness of various activities by these groups, and I note that the reference to the term 'outlaw' is agreed between the parties, both in these proceedings, and in society in general as a descriptor of these motorcycle groups also known as the 'one percenters'. 4. The applicant submitted that matters relating to his driving record were broadly irrelevant to this decision and noted that in other cases matters of a traffic nature were only considered in addition to criminal convictions. 5. The applicant refutes all of the respondent's allegations / assertions in respect of the safe storage requirements / breaches. In respect of the need to have a genuine reason to possess a firearms licence, the lapsed membership of the shooting club should only be seen as a minor issue. The applicant submitted that the lack of any breach notice indicates the minor nature of any infractions. 6. In respect of the public interest grounds the applicant points to there being no evidence to refute the applicant's evidence concerning current OMCG membership, no evidence to establish any breach of safe storage requirements, and no evidence that he is either a criminal or connected with any criminal activity. Consideration 1. In my view the central issue for consideration in these proceedings is whether the applicant is a fit and proper person to hold a firearms licence. The live issue circulating around that issues is (a) whether the applicant is a current member of an OMCG and (b) whether or not he is a current member is he suitable (by being a fit and proper person) to hold a firearms licence. The issue of (b) relates to his ongoing association with members of an OMCG. If it were not for this conceded association, then other than some non- prosecuted matters arising from the firearms inspection of 2014, and some issues about his actual need for such a licence, little material has been advanced against the applicant's holding of such a licence. 2. In more simple terms, when considering the issue of fit and proper the question being considered is 'should associates of OMCG members have a right to legally possess firearms'. Put another way, the question could be phrased as 'are associates of OMCG's fit and proper persons in respect of the meaning of those words in statute'. Additionally is it in the public interest. 3. There were also residual arguments put by the respondent concerning the applicant coming to police attention and being stopped and searched, criminal intelligence, matters relating to criminality directed at the applicant and his business interests, and complaints of a lack of public order in respect of work related incident at a restaurant. In my view these 'residual' matters add no weight to the respondent's argument that the applicant is not a fit and proper person to possess a firearms licence, having regard to the evidence given by the applicant. I form the same view in respect of the applicant's traffic history, in particular noting his evidence at hearing, both oral and written, and having particular regard to the fact that he has not appeared before a Court and had any finding of an offence proven. 4. 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 . 5. 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. 6. 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. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. I make a finding that on the available evidence the applicant is no longer a member of an OMCG. I also make a finding that noting the applicant's complete lack of any criminal record, and any adverse finding concerning the use and safe storage of firearms (on the evidence presented to the Tribunal), the applicant meets the fit and proper person requirement to hold a licence. 7. In contrast, due to the evidence of the applicant's continued (albeit occasional) association with his former club colleagues, and having regard to the respondent's evidence in respect of that Club and OMCG's in general, the question remains as to whether the applicant should be permitted to hold an unconditional licence. In my view having regard to Clause 19 of the Firearms Regulation 2006, the decision to impose licence conditions was appropriate. 8. What is not supported by the evidence is the broad grounds which were relied upon in the decision to revoke the licence due to the non- acceptance of the conditions, on 11 November 2014. 9. However, the appropriate course is that the respondent re-issue the applicant with a licence which imposes the conditions previously proposed by the Commissioner of Police on 1 August 2014. 10. It follows that the correct and preferable decision is to set aside the decision of the respondent dated 11 November 2014, and substitute that decision with a fresh decision in accordance with the orders of the Tribunal. Conclusion 1. It follows that the orders shall be made in the following manner having regard to the reasons outlined above. Orders 1. (1) The decision under review is set aside. (2) In substitution the Respondent is to re-instate the applicants licence with the Special Conditions referred to in the decision of 1 August 2014. (3) Order (2) is contingent on the applicant satisfying the Commissioner afresh of any nominated item in the Table to section 12 of the Firearms Act 1996. 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: 13 October 2015