Addison v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 99

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99

Hearing dates:

14 February 2019

Date of orders:

31 May 2019

Decision date:

31 May 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior Member

Decision:

1. Decision under review affirmed.

2. Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, the transcript and recording of the confidential hearing, all confidential material placed before the Tribunal and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

Catchwords:

FIREARMS – firearms prohibition order – whether person ‘not fit, in the public interest’ – relevance of association with an outlaw motorcycle gang.

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Crimes (Criminal Organisations Control) Act 2012
Firearms Act 1996

Cases Cited:

Bassal v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 276
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43
McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354
Sciberras v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206
Stealth Enterprises Pty Ltd v Calliden Insurance Ltd [2015] NSWSC 1270,
Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Category:

Principal judgment

Parties:

Jason Addison (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:

 

Mr McCarthy (Applicant)
Mr El-Hage (Respondent)

  Solicitors:
David Tamanika (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2018/00250507

Publication restriction:

The confidential material and any information therein is not to be disclosed to the applicant or his legal representatives (in accordance with s64(1)(d) of the Civil and Administrative Tribunal Act) and is not to be published (including in the Tribunal’s reasons for decision) (s64(1)(c) of the Civil and Administrative Tribunal Act.)

REASONS FOR DECISION

Summary

1. In 2018, the Commissioner of Police issued Mr Addison with a firearms prohibition order, which prohibits him from acquiring, possessing or using a firearm. Mr Addison has requested that this decision be reviewed.

2. The Commissioner of Police may make a firearms prohibition order against a person if of the view that the person is not fit, in the public interest, to have possession of a firearm. In order to check whether a person issued with a firearms prohibition order has firearms in their possession, the police are empowered to detain the person, to search their premises and to stop and detain a vehicle occupied by the person. The police are not required to have a search warrant to exercise these powers and may conduct a search pursuant to these powers ‘as reasonably required.’

3. The Commissioner is of the view that Mr Addison is not fit in the public interest to hold a firearms licence because he is the National President of the Bandidos Motorcycle Club and because he has a criminal record for offences outside of NSW.

4. It is not in dispute that Mr Addison is not only a member of the Bandidos Motorcycle Club but is also the Bandidos’ National President. It is Mr Addison’s view that neither his membership of the Bandidos nor his criminal record, which does not include offences related to firearms, is enough to find that he is not fit, in the public interest, to hold a firearm.

Role of the Tribunal

5. The Tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, that the Commissioner’s decision is the correct and preferable one. (s63 of the Administrative Decisions Review Act 1997)

6. In reviewing the Commissioner’s decision, the tribunal is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set is aside: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409

7. The Tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (s 30) and the Firearms Act 1996, including the Commissioner’s making of a firearms prohibition order: (s 75(1)(f) of the Firearms Act.) The Tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354.

8. The standard of proof that applies in these proceedings is the civil standard, that is, the balance of probabilities.

Hearing procedure

9. Mr Addison attended a hearing at the Tribunal together with his solicitor and his barrister. Following the receipt of evidence with all parties present, Counsel for the Commissioner of Police requested a confidential hearing in order to provide further information to the tribunal in the absence of Mr Addison and his legal representatives.

10. To prevent the disclosure of any criminal intelligence reports or criminal information, the Firearms Act requires the Tribunal to receive the relevant evidence and hear argument on it in the absence of the public, the applicant and the applicant’s representative. (s75(5) of the Firearms Act 1996)

11. Having perused the material sought to be tendered, I found it to comprise information sourced by the police pertaining to criminal matters. Satisfied that the information fell under the umbrella of criminal information and criminal intelligence reports, I held that s75(5) of the Firearms Act 1996 had been activated, requiring me to receive the information and hear argument on it in a confidential hearing. Accordingly, this part of the hearing was heard in the absence of the public and Mr Addison and his legal representatives.

12. I do not propose to discuss any material that was presented on a confidential basis in open reasons. Those parts of the reasons that are not to be disclosed are identified as “[not for publication]’ (s64 of the Civil and Administrative Act)

Issue for determination

13. The issue in this case is whether Mr Addison ‘is not fit, in the public interest, to be permitted to have possession of a firearm.’

14. In determining this question, I have considered all the evidence before me under the following categories:

1. Documentation in relation to police behaviour

2. The status of the Bandidos motorcycle gang

3. The applicant’s role and activities within the Bandidos

4. The applicant’s character

5. The applicant’s criminal record

6. Confidential material

Not fit, in the public interest to have possession of a firearm

15. In determining what it means to be ‘not fit, in the public interest to have possession of a firearm’, I am assisted by the underlying principles of the Firearms Act that declare firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.’ (s3(1) of the Firearms Act)

16. I am also assisted by those provisions of the Firearms Act which provide that a licence must not be issued:

1. unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace (s11(3)));

2. if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that (a) the person is a risk to public safety and (b) the issuing of the licence would be contrary to the public interest. (s11(5A))

3. if it would be contrary to the public interest. (s11(7))

17. Although Mr Addison is not applying for a firearms licence or permit, I agree with the reasoning of Senior Member Walker who, in the decision of Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43, found that the approach illustrated by those licensing provisions in the Firearms Act is applicable by analogy when considering the power to issue a Firearms Prohibition Order.

18. In particular, I agree with Senior Member Walker that the language used ‘not fit, in the public interest’ – being materially different from the ‘fit and proper person’ test in the Firearm Act’s licensing provisions – implies that even though a person may have an unblemished record, public interest considerations may render the person unfit and make it appropriate to issue a firearms prohibition order against him or her.

19. As set out in Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, the concept of public interest allows for matters going beyond the applicant’s character to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration

20. I agree with the following discussion of the public interest in Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149 at [31] that ‘given the breadth of the Commissioner’s discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence”:

21. In both Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79, it was held that where an applicant voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety with which the Commissioner is concerned and that person may therefore be not fit, in the public interest, to be in possession of a firearm. In those circumstances, a firearms prohibition order may be justified.

22. The NSW Court of Appeal has acknowledged that it is commonly recognized that outlaw motorcycle gangs are involved in criminal activities: Stealth Enterprises Pty Ltd v Calliden Insurance Ltd [2015] NSWSC 1270

23. The enactment of the Crimes (Criminal Organizations Control) Act 2012, which can limit the activities of certain outlaw motorcycle gangs for specific periods, indicates that the legislature regards the activities of outlaw motorcycle gangs and their members as a risk to public safety: Sciberras v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206.

24. In Bassal v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 276, Senior Member Walker found that ‘where there is evidence demonstrating that an applicant is a member of an outlaw motorcycle gang whose members are known to have engaged in criminal activity but the applicant refuses to dissociate himself or herself from it, it is appropriate to refuse the applicant a firearms licence.’ In light of the overriding principles of the Firearms Act that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety, I agree with these findings.

Documentation in relation to police behaviour

25. A series of documents are contained on file in relation to charges laid against a number of police officers and alleged criminal behaviour by police officers.

26. According to Counsel for Mr Addison, this material is relevant to whether, in determining if Mr Addison is ‘not fit, in the public interest, to have possession of a firearm’, regard should be had to the conduct of others, including persons who are not alleged to have any association with the applicant, and treating that conduct as the determining factor.

27. According to the Counsel for Mr Addison, if that ‘were the test commanded by s73, the Commissioner would be required to issue a firearms prohibition order against himself and every member of the NSW Police Force, they being sworn to serve as members of a group whose membership includes numerous persons convicted of criminal offences and who each have ready access to firearms. Clearly that cannot be the way in which s73 is intended to operate, yet that is the way in which it has been applied in this instance.’

28. Given that Mr Addison is the applicant in this case rather than the Commissioner, I have given no weight to this submission. I do not agree that the comparison between the NSW Police Force, whose members are employed for law enforcement purposes, and the Bandidos who, for the reasons set out below, I have found to be an outlaw motorcycle gang, is apposite.

The status of the Bandidos motorcycle club

29. As set out above, according to the NSW Court of Appeal, it is commonly recognised that outlaw motorcycle gangs are involved in criminal activities. This tribunal has also found it appropriate to refuse an applicant a firearms licence who is a member of an outlaw motorcycle gang. (See Bassal v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 276)

30. In considering the relevance of the applicant’s membership of the Bandidos motorcycle club, it is instructive to first determine whether the club is an outlaw motorcycle gang at all.

31. To determine this, I have had regard to the affidavit evidence of Anthony Macken, criminal analyst and Intelligence Team Leader with the NSW Police, which sets out his knowledge of the history, structure, culture and characteristics of the Bandidos motor cycle club.

32. In light of his specialised knowledge, gained through his training, study and experience of outlaw motorcycle gangs since 2002, it is Mr Macken’s view that the Bandidos motor cycle club:

1. is a motorcycle club which self-identifies as a 1% ‘outlaw’ club, where the 1% symbol is, according to Mr Macken, a primary identifier of the club’s status as an outlaw motorcycle gang. It is Mr Macken’s evidence that outlaw motorcycle gangs use their colours to intimidate and obstruct members of the public and rival outlaw motorcycle gangs.

2. has members who have been involved in criminal activity, including violence, weapons and drug offences

3. has a documented history of violence and possession and use of weapons;

4. has a culture and general expectation that members of the Bandidos support each other in response to any situation and that any such response is for the protection of members and the advancement of the reputation of the Bandidos.

5. has a hierarchical structure which is used for governance with rules that are enforced by violence.

6. is a criminal organisation having as one of its objectives the commission of serious violence offences, in propagation of its reputation, defence and its indicia and ‘territory’ and in furtherance of other criminal activity.

7. has members who engage in organising, planning, facilitating, supporting or otherwise conspiring to engage in criminal activity. In support of the statement, Mr Macken has annexed to his affidavit a list of men who were charged with criminal offences – including offences involving the possession and use of firearms - and were members of the Bandidos at the time they were charged. Mr Macken’s chart does not show whether the men were convicted of the offences for which they were charged.

33. According to Mr Macken, outlaw motorcycle gangs have office bearers who are responsible for the administration and operation of the organisation. These include the president who according to Mr Macken:

has absolute power within the club and who has the right to veto decisions made by members concerning club business. The President may also sanction discipline, which may include serious assaults, on Members.

34. According to Mr Macken, all outlaw motorcycle gangs have a culture of silence towards anyone outside the hierarchical structure of the organisation, and particularly law enforcement. It is Mr Macken’s experience that the culture of non-cooperation of outlaw motorcycle gang members with police is particularly prevalent. He has investigated many incidents of violence in which an outlaw motorcycle gang member has been the victim and has refused to assist police investigations.

35. Mr Addison did not provide any evidence to dispute the material contained in Mr Macken’s affidavit, nor was Mr Macken required for cross-examination. Accordingly, there is no material before me to dispute the material provided by Mr Macken apart from the submissions by Mr Addison’s Counsel disputing the nature of Mr Addison’s role as National President of the Bandidos, stating that ‘it never crystallised that Mr Addison has power over the members.’

36. In light of the material provided by Mr Macken, for the purposes of this review, I am satisfied that the Bandidos meet the definition of an outlaw motorcycle gang.

Culture of violence within the Bandidos outlaw motorcycle gangs

37. Mr Macken describes a culture of violence within outlaw motorcycle gangs. Whilst he has provided details of incidents of violence where statements have not been provided and charges have not resulted, he has also described incidents where charges did result and the relevant Bandidos members were convicted, details of which are provided below:

1. In 1984, conflict between Comanchero and Bandidos outlaw motorcycle gangs became known as the ‘Milperra Massacre’ which resulted in the murder of seven people and members of the Bandidos and Comanchero clubs being convicted of offences relating to the confrontation;

2. In 1998, Bandidos Sergeant at Arms, Robin David suffered a gunshot wound following an altercation with members of the Rebels outlaw motorcycle gangs. He was charged and later convicted of the offence of ‘Conceal Serious Offence of Another’ and sentenced to a bond;

3. In 2001, Ian Melder, Sergeant at Arms of the Hunter Valley Chapter of the Bandidos was charged and convicted in relation to an assault on members of the Gladiators at a hot bread shop;

4. In 2006, following the discovery by police of a pistol and sawn-off shotgun in their possession, Bandidos members Jason Fahey and Aleksander Knezevic were charged with and convicted of a number of firearms offences;

5. In 2007, following the discharging of firearms near the Royal Oak Hotel in Parramatta, Bandidos Probationary Member Ingi Ingvarsson and Member Khushwant Dhillon were charged and convicted of fire firearm offences, including the possession of an unauthorised pistol;

6. In 2007, following the stabbing of Rebels Member, Said Said, Bandidos Member Alan Young was charged with and later convicted of two counts of maliciously inflict grievous bodily harm with intent;

7. In 2008, following a search warrant at the residence of Bandidos Member Kane Carroll where police located inside a stolen car with a number of fraudulent drivers’ licences, a shotgun and methylamphetamine, Kane Carroll was charged and later convicted of drug, firearms and fraud offences;

8. In 2008, following a stabbing assault on the victim, Bandidos Member Jae Tregear was charged with and later convicted of causing wounding/grievous bodily harm with intend to murder and Bandidos Members Hayan Chandab was charged and later convicted of recklessly wounding another whilst in company;

9. In December 2008, four rounds of ammunition were fired into a house. That evening, following a police search on a vehicle in which two rifles were located, four (according to Mr Macken still current) members of the Bandidos - Bradley Duff, who according to Mr Macken is a Chapter President, Todd Obeirzynski, Malcolm Greig, who according to Mr Macken is a Chapter Secretary-Treasurer and Joshua Clarke - were charged with and later convicted of firing a firearm at a dwelling-house with disregard for safety, participating in a criminal group, assisting criminal activity and firearm possession offences;

1. Following assaults on members of the Life and Death outlaw motorcycle gangs at the Boolaroo Hotel in Boolaroo near Newcastle, Patrick Griffin who, according to Mr Macken, is the President of the Newcastle Chapter of the Bandidos, was charged with and later acquitted of affray;

2. In 2014, Bandidos Member Glen Millard was issued with a ‘banning notice’ under the Inclosed Lands Protection Act 1901 for 24 months due to his threatening and intimidating behaviour at a school near Newcastle. He was also charged with and later convicted of using offensive language when he attended the Toronto Police Station;

3. [NOT FOR PUBLICATION]

38. Criminal histories are also provided for those people listed below, who Mr Macken also claims are members of the Bandidos:

Frank Elnis

Brendan Fish

Jason Bloomfield

Todd Obierzynski

Bradley Coombes

Noel Lamont

Khushwant Dhillon

Tony Alexander

Troy Grieve

Christopher Brown

Arian Capoulde

39. I accept Mr Macken’s expertise in criminal analysis, which includes a specialist knowledge of the Bandidos. Mr Macken was not cross-examined on his evidence, nor was evidence called by Mr Addison to contradict it. On this basis, I give weight to his evidence of a culture of violence within the Bandidos as demonstrated by those members of the Bandidos convicted of criminal offences.

40. I give no weight to the table produced by Mr Macken setting out charges made against people said to be members of the Bandidos on the basis that no details are provided as to whether the charges were withdrawn or proceeded to conviction.

41. A document entitled ‘Bandidos Motorcycle Club – Australia National Chapter – Club Rules’ was seized by police on 21 February 2013 during a search warrant at the residence of Mr Addison. Mr Macken was not required for cross-examination and no evidence was provided by the applicant to dispute that these are, in fact, the rules of the Bandidos. Counsel for Mr Addison contests the material stating that the National President has control over other Bandido members and does not concede that the document found during the search constitutes the rules of the Bandidos.

42. By way of introduction the document provides that

These Rules will be known as the Club Rules of the Bandidos Motorcycle Club, Australia National Chapter, (‘the Club’) and will be binding on all members (including prospective and probationary members) of all Chapters of the Australia National Chapter of the Club.

43. The rules that are set out in the document include the following:

1. All Chapters must comply with any by-laws and/or directions issued by or on behalf of the Australia National Chapter or the National President; (rule 3.1)

2. Members, including prospective and probationary members, must at all times, use their best efforts to promote the best interest of the club and harmony and solidarity between members (rule 7.1)

3. Without limiting the effect of rule 7.1, members must not steal from, cheat or belittle other members; use hypodermic syringes to inject drugs (other than prescribed medication) or smoke cocaine, heroin, ecstasy or ice. (rule 7.2.1 and rule 7.2.2);

4. Subject to these rules and to any direction given from time to time by the National President, the President of a Chapter may declare appropriate disciplinary action to be taken against members, including probationary and prospective members, who breach these rules. (rule 8.2)

44. A similar document, also entitled ‘Bandidos Motorcycle Club- Australia National Chapter – Club Rules’ was obtained by police following a search on the premises of Luke Harris on 16 January 2014 and a further document entitled ‘Membership Rules” and headed ‘Bandidos MC, Australia’ was obtained by police following a search on the premises of Ronald Leggett on 11 February 2015.

45. According to these documents, the National President and the President of a Chapter may declare appropriate disciplinary action to be taken against members who breach the rules.

46. In Bassal v Commissioner of Police [2017] NSWCATAD 276, the Tribunal noted at [68] that (in that case) there was prima facie evidence that the applicant had an association with an outlaw motorcycle gang and the applicant had not availed himself of the opportunity to give or adduce evidence to provide an explanation or address the case. The Tribunal noted at [69] that while Jones v Dunkel (1959) 101 CLR 98 does not apply in NCAT proceedings, a failure to lead evidence does impact on the case that is presented to the Tribunal.

47. In this case, in the absence of evidence from Mr Addison, I accept that the document located during the search of his premises in 2013 was, as it states, the Bandidos Club rules. In light of the two later documents also entitled Bandidos rules that also state that the National President is able to declare disciplinary action against members who breach the rules, I accept that the National President of the Bandidos – who currently is Mr Addison - is empowered to exert authority over other members of the club.

48. I also accept that one of the rules of the Bandidos is that referred to as rule 7.1, which provides that Members, including prospective and probationary members, must at all times, use their best efforts to promote the best interest of the club and harmony and solidarity between members.

The applicant’s character

49. It is not disputed by his legal representative that Mr Addison is a member of the Bandidos and is the club’s National President.

50. This accords with the photograph produced by Mr Macken said to be of Mr Addison posing outside the Bandidos Mid North Coast clubhouse. Further photographs are contained on file including one said to be of Mr Addison wearing a motorcycle jacket with Bandido colours, namely the red and yellow patch with the words 1%er of it, and the three-piece cloth patch on the back of the jacket, with the words ‘Bandidos’ above the Bandidos’ emblem and ‘Presidente’ below it. Also on the jacket were the patches ’15 years Presidente’ and ‘Vida Miembra,’ as confirmation of life membership of the Bandidos.

51. A company extract dated 6 June 2017 describes the applicant as the director of A.C. Addison & Sons Pty Ltd which, in a further document supplied by the applicant is described as a monumental masonry company operated by the Addison family for four generations.

52. In a reference dated 4 April 2016, Mr Thomas Weyrich, former Mayor at Moama in NSW, commends Mr Addison for the work he does with young adults at Junior Motor Cross and describes him as a ‘good man and valued member of the Junior Motor Cross community.’

53. In an undated reference, Ms Margaret Clifford, describes Mr Addison as having been of enormous assistance to her family during a severe flood in Echuca. She describes Mr Addison as an excellent husband and father who is of assistance in delivering meals on wheels in Echuca.

54. In a reference dated 4 April 2016, Ms Jennifer Whelan, Marriage Celebrant, describes the applicant as a highly regarded craftsman, a businessman and ‘an incredibly generous benefactor.’ She describes him as an ‘extremely decent man, incredibly hard working’ and a man ‘of high values, ethics and loyalty’ who ‘cares deeply about others, especially children.’

55. Given that these references appear to have been prepared for proceedings predating this review and none of the referees make mention of this review or acknowledge an awareness of it, I have afforded little weight to them.

The applicant’s criminal record

56. It is not disputed that Mr Addison has the following criminal record:

1. Possession of cannabis for which he was fined in 1989

2. Possession of amphetamine for which he was fined in 1994

3. Possession of cannabis for which he was fined in 1996

4. Refusal to be sworn in or affirmed for which he was fined in 1998

5. Providing false or misleading documents for which he was fined in 2016.

57. In his affidavit dated 7 October 2018, the applicant’s solicitor notes the following in relation to the applicant’s criminal record:

1. Charges of theft and fraud laid against the applicant in 2015 were withdrawn by police in 2016 with the applicant pleading guilty to two summary offences against s53 of the Transport Operations (Road Use Management Act (Qld), for which he was fined $800 with no convictions recorded.

2. A charge of extortion was made against the applicant in 2015. Following a jury trial, the applicant was found not guilty of all charges in 2017.

58. Given that the drug related offences are now over twenty years old and that the other offences do not appear to involve either firearms or violence, I have afforded the applicant’s criminal record limited weight in reaching my decision in this matter.

Confidential material [NOT FOR PUBLICATION-WHOLE SECTION]

59. [NOT FOR PUBLICATION]

60. [NOT FOR PUBLICATION]

61. [NOT FOR PUBLICATION]

62. [NOT FOR PUBLICATION]

63. [NOT FOR PUBLICATION]

64. [NOT FOR PUBLICATION]

65. [NOT FOR PUBLICATION]

66. [NOT FOR PUBLICATION]

67. [NOT FOR PUBLICATION]

68. [NOT FOR PUBLICATION]

69. [NOT FOR PUBLICATION]

70. [NOT FOR PUBLICATION]

71. [NOT FOR PUBLICATION].

72. [NOT FOR PUBLICATION]

73. [NOT FOR PUBLICATION]

74. [NOT FOR PUBLICATION]

Conclusion

75. On the evidence before me, I accept that as the National President of the Bandidos, Mr Addison is the head of an outlaw motorcycle gang where some of its members are involved in criminal activity and have been convicted of offences involving violence and firearms. I am also satisfied that by virtue of his association with the Bandidos and his position of National President, he is capable of intimidating members of the community generally and other members of the Bandidos in particular. As National President of the Bandidos, I am satisfied that Mr Addison is empowered to direct and declare disciplinary action on Bandidos members. By directing a club where its members engage in criminal activity and where, according to the Bandidos rules, solidarity between members is required, I am satisfied that Mr Addison’s association with the club is such that his loyalty to Bandidos members may encourage a use of violence, thereby creating a risk to public safety and public protection.

76. Although neither Mr Addison nor his legal representatives are aware of the confidential material provided to the tribunal by the Commissioner, I have given some weight to it. When considering it in conjunction with the other material before me, I am satisfied that as National President of the Bandidos outlaw motorcycle gang, Mr Addison is not fit, in the public interest, to have possession of a firearm. On this basis, I am satisfied that public interest considerations make it appropriate to issue a firearms prohibition order against Mr Addison. In that case, the Commissioner’s decision to issue a firearms prohibition order against Mr Addison was the correct and preferable decision and should be affirmed.

77. I understand the potential for abuse of the powers that are authorised by a firearms prohibition order and that they can be used as a random search power without the need for a search warrant and therefore without the protections associated with a search warrant. This potential for abuse gives me the same concerns as those articulated by the NSW Ombudsman in its review of firearms prohibition orders.

78. Despite this potential for abuse, the law is clear that where the Commissioner, or the Tribunal standing in the shoes of the Commissioner, is satisfied that the applicant is not fit, in the public interest to hold a firearm licence, it is appropriate to issue a firearms prohibition order against him or her.

Orders

1. Decision under review affirmed.

2. Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, the transcript and recording of the confidential hearing, all confidential material placed before the Tribunal and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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

Decision last updated: 31 May 2019