Newman v Commissioner of Police

[2018] NSWCATAD 17

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Newman v Commissioner of Police, NSW Police Force [2018] NSWCATAD 17
Hearing dates:	6 September and 15 November 2017. The final submissions/documents from the parties reached the Tribunal on 21 December 2017
Date of orders:	22 January 2018
Decision date:	22 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg, Senior Member
Decision:	1. The decision under review is set aside. 2. If Mr Newman applies for a category H licence for the purpose of sport/target shooting I direct that the Commissioner have regard to the findings in this decision in considering that application.
Catchwords:	MERITS REVIEW - FIREARMS – revocation of licence – membership of motorcycle gang – firearms licence history – criminal history – traffic report - public interest test - fit and proper person - private interest.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Fulton v Commissioner of Police, NSW Police Force [2015] NSWCATAD 150 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Mielczarek v Commissioner of Police, New South Wales Police Force and Commissioner of Fair Trading [2016] NSWCATAD 34 Muratore v Commissioner of Police [2017] NSWCATOD 3 Sciberras v Commissioner of Police New South Wales Police Force [2015] NSWCATAD 206 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Wilkinson v Commissioner for Police [2002] NSWADT 59
Category:	Principal judgment
Parties:	Jimmy Newman (Applicant) Commissioner of Police (Respondent)
Representation:	Counsel: G Sundstrom (Applicant) A Douglas-Baker (Respondent)   Solicitors: Ramsland Laidler (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2017/67824
Publication restriction:	In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication, other than to the Commissioner of Police: 1. of the contents of the folder marked “Confidential documents relied upon by the Respondent” received in evidence by the Tribunal on 6 September 2017, is prohibited except for such material as was filed with the Tribunal on 14 August 2017. 2. of evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 15 November 2017, including all recordings, whether written, electronic or aural of that hearing is prohibited. 3. of the contents of documents marked “Confidential” provided by the Respondent to the Tribunal after 15 November 2017, is prohibited. 4. of any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets is prohibited.

REASONS FOR DECISION

Background

1. This matter involves an application to the Tribunal (the Application) to review a decision of a delegate of the Respondent (sometimes referred to in these reasons as the Commissioner) which affirmed the revocation of the Applicant’s category AB firearm licence (the Licence) after an internal review (the Decision).

2. The matter involved evidence and submissions of both a confidential and non-confidential nature. On 6 September 2017 evidence was heard and submissions made in open hearing in Newcastle and on 15 November 2017 confidential evidence was presented and submissions made on behalf of the Commissioner in closed hearing in Sydney, attended only by representatives and witness(es) of the Commissioner.

Jurisdiction of the Tribunal

3. There is no dispute that pursuant to s 75 (1) (c) of the Firearms Act 1996 (the Act) the Applicant may apply to the Tribunal to review the Decision in accordance with the Administrative Decisions Review Act 1997 (the ADR Act). All references in these reasons to legislative provisions are to provisions of the Act unless stated to the contrary.

4. In accordance with s 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, and may exercise all relevant functions conferred or imposed on the Commissioner. In determining the Application, the Tribunal may affirm, vary or set aside the Decision and make a decision in its place, or set aside the Decision and remit the matter for reconsideration by the Commissioner in accordance with any directions or recommendations of the Tribunal.

Material before the Tribunal

5. The Respondent relied on:

1. a paginated and tabbed bundle of documents filed under s 58 of the ADR Act on 12 May 2017, marked Exhibit R1;

2. a redacted report dated 2 August 2017 made by Detective Sergeant Bruce Groenewegen and 4 tabbed and paginated volumes of footnotes to the report, together comprising 1344 pages of documents, marked Exhibit R2;

3. [NOT FOR PUBLICATION]

4. written outline of submissions made 14 August 2017 (RS), closing submissions in respect of the open hearing made on 29 September 2017 (RCS); additional closing submissions in reply made 7 December 2017 (RCSR) said by the Commissioner to relate to matters raised by Mr Newman's closing submissions in reply which were not raised earlier; and

5. oral submissions made by Ms Douglas-Baker during both hearings.

6. Mr Newman relied on:

1. his affidavit made 5 September 2017, marked Exhibit A1;

2. written submissions made 30 June 2017 (AS), attached to which were several documents including eight references and a COPS Event created 1 November 2000. Unlike all other submissions filed by the parties in this matter, the paragraphs of AS were not numbered;

3. Undated submissions made in reply to RCS, received by the Tribunal on 12 October 2017 (ASR);

4. Some of the documents in Exhibit R1; and

5. oral submissions made by Mr Sundstrom during the open hearing.

7. In preparing these reasons the Tribunal was assisted by a transcript of the hearing on 6 September 2017 received from the Respondent on 15 November 2017. Ms Douglas-Baker informed the Tribunal that the transcript had been made available to the Applicant prior to the preparation of ASR.

8. Unless otherwise stated, references to numbered paragraphs of submissions by the Commissioner are to numbered paragraphs of RS and references to paragraphs of submissions by Mr Newman are to paragraphs of AS.

9. Extracts of submissions and decisions of courts and tribunals included in these reasons do not include footnotes from the passages extracted.

Mr Newman's case

10. AS included:

Background

11. Mr Newman has recently had his firearms license revoked by way of a Notice of Revocation …. (The Notice of Revocation). An Internal Review led to a Statement of Reasons … (The Internal Review). …. Mr Newman disputes the findings of the Internal Review and seeks to have the decision quashed to restore his firearms license.

Reasons for Revocation

12. The Notice of Revocation revoked Mr Newmans' firearms license because the decision maker has deemed him "no longer a fit and proper person." The decision maker relied upon his membership of the Gladiators Motorcycle Club (MC), noting "I assign substantial weight to your membership of the Gladiators." The Internal Review further supported this assessment of the association with the Gladiators MC. It was also noted that "The (NCAT Appeal) Panel held that such issues may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system." Consideration was given to the specific criminality of the Gladiators MC. This included a drive-by shooting for which two members were acquitted and the fact that members have been charged with certain indictable offences.

13. The Internal Review additionally introduced reference to the purpose for shooting and the theft of some of Mr Newman's firearms in 2000 as detailed in [an attachment].

…

Application of the Applicable Law

14. … Mr Newman remains a fit and proper person to hold a firearms license…. the Notice was incorrect in that it accorded disproportionate weight to matters that were irrelevant and he was denied procedural fairness in certain areas ….

The Commissioner’s case

15. The Commissioner submitted that Mr Newman should not hold a firearm licence (the licence) as:

1. he is not a fit and proper person to hold a licence; and

2. it is not in the public interest to issue a licence to him.

Consideration

Legislative context

16. In the second reading speech on 25 June 1996 the Attorney General, when introducing the Firearms Bill, which subsequently became the Act, said:

The proposed Act will improve public safety by imposing strict controls on the possession and use of firearms, promoting the safe and responsible storage and use of firearms and facilitating a national approach to the control of firearms. The objects of the bill are … to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm; to provide strict requirements that must be satisfied in relation to the licensing of firearms and the acquisition and sale of firearms; to ensure that firearms are stored and conveyed in a safe and secure manner;

17. The statutory principles and objects relevant to these proceedings are in s 3 of the Act as follows:

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) …

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f)…

18. Division 2 of Part 2 of the Act, sections 8 to 27, contains a licensing scheme which provides, amongst other matters, for applications for firearm licences, restrictions on the issue of licences, genuine reasons for having a licence, conditions of licences, and provisions for the suspension and revocation of licences and the surrender and seizure of firearms when a licence is suspended or revoked.

19. Section 24 specifically relates to the revocation of licences. Excerpts below detail particular events for which a licence may be revoked.

General chronology

Mr Newman’s firearm history

20. There is no material dispute that Mr Newman held a licence from 1989 to 2015 under relevant legislation. The Licence, in respect of various firearm categories, was effectively renewed on several occasions.

21. In 2000 Mr Newman reapplied unsuccessfully for a licence. The decision to refuse his application was reversed after an internal review and thereafter he held a licence, with renewals in 2005, 2010 and 11 April 2015 until his (category AB) licence was suspended on 16 June 2015.

22. Police inspected Mr Newman’s firearms and safekeeping arrangements and found no breach on 13 March 1997, 19 May 2004, 1 November 2005, 28 May 2010 and 15 June 2015.

23. During the inspection on 15 June 2015 Mr Newman’s firearms, ammunition and Licence were seized and the Licence was suspended on 16 June 2015.

24. A decision was made to revoke Mr Newman’s licence on 13 January 2016. For reasons which were not provided to the Tribunal, the revocation notice was not served on Mr Newman until 16 June 2016 according to police, and 21 June 2016 according to Mr Newman. In any event service on Mr Newman occurred some 12 months after his licence was suspended and 5 months after the revocation decision was made. Pursuant to s 24(4) the revocation took effect on the date of service of the notice.

Suspension and revocation of the Licence and Internal Review

Suspension

25. The Notice of Revocation stated that police attended Mr Newman’s residence on 15 June 2015 to conduct a safe storage inspection on behalf of Strikeforce Raptor and the Alcohol & Licensing Enforcement Command. The Notice also stated:

Police asked you if you were a member of the Gladiators Outlaw Motor Cycle Group (OMCG), and you stated “yes”. …. Accordingly, police suspended and seized your firearms licence and seized your two registered firearms …

26. The grounds for decision stated in the Notice of Suspension dated 16 June 2015 were “NOT IN THE PUBLIC INTEREST”. No other reasons were contained in the document.

Revocation of Licence

27. The Revocation Notice provides that the Police Officer who determined that the Licence be revoked stated that his/her understanding of the applicable law was that:

Section 24(2)(c) of [the Act] prescribes that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

Section 24(2)(d) of [the Act] prescribes that a licence may be revoked for any other reason prescribed by the Firearms Regulation 2006.

Clause 19 of the Firearms Regulation 2006 prescribes that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

28. The reasons stated in the Revocation Notice for revoking the Licence were that, having regard to information set out in the Notice, the relevant Police Officer was satisfied that Mr Newman was:

… not a fit and proper person to hold a firearms licence without danger to the public, and it is no longer in the public interest for [Mr Newman] to be authorised to possess and use firearms”.

Internal Review

29. On 12 July 2016 Mr Newman requested an internal review of the revocation decision. In the Internal Review Statement of Reasons, the Commissioner’s delegate who conducted the review, stated that his/her understanding of applicable law was that:

Section 24(2)(b)(ii) of [the Act] prescribes that a licence may be revoked if the licensee contravenes any provision of the Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention.

Section 11(3)(a) of [the Act], prescribes that the Commissioner must not issue a licence unless 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.

Section 11(7) of [the Act] prescribes that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of the licence would be contrary to the public interest.

30. The delegate’s reasoning included:

Theft of firearms in 2000

1. The theft of Mr Newman’s handguns in 2000, his holding of a spare key in a drawer in another room of his house in breach of s 39(1) which requires him to take all reasonable precautions to ensure that firearms are not stolen, and his failure to immediately report the theft to police as required by s 37(1)(b). The delegate also noted that the Firearms Registry was not informed of the theft until police reported the outcome of the safe storage inspection on 20 April 2004. These actions have compromised the safety of the public.

Target shooting

1. Mr Newman stated that he had used his firearms for target shooting without having applied for and been a granted a licence for that purpose with category AB firearms. The delegate alleged it was an offence under s 7A to use firearms for a purpose not connected with the licensee’s genuine reason. The delegate noted that the licence issued in 2000 which expired in 2005 was for category H for target shooting and category AB for recreational hunting / vermin control. Subsequent licences were only issued for category AB recreational hunting / vermin control.

2. Mr Newman was a financial member of a target shooting club for some time. This evidences a lack of a detailed knowledge of the conditions in which firearms can be used. The delegate conceded that it is likely that Mr Newman would have been able to satisfy the requirements for a genuine reason of target shooting had he applied for authorisation for that purpose.

Gladiators club membership

1. Mr Newman confirmed in 2015 that he was a member of the Gladiators OMCG, and his request for internal review stated that he had been a member of the Gladiators for 14 years. Mr Newman has been seen in full Gladiators colours, attended monthly meetings of the club and has never held an office in the club. Other members of various branches of the Gladiators have committed crimes. A government report described OMCG members “as individuals who use the club, its reputation or membership for criminal activity including the organizing, planning, facilitating, supporting or otherwise conspiring to engage in criminal activity.” Other government bodies have reported on OMCG involvement in serious crime which put innocent Australians at risk and members of the Gladiators have been involved in firearms and drug offences.

2. [NOT FOR PUBLICATION]

Mr Newman’s criminal history

1. Mr Newman’s criminal history consists only of three spent convictions and although he provided a number of character references, only that from his partner demonstrated a knowledge of his membership of the Gladiators. The delegate holds the view that “a previously clear criminal record and a good standing in the community does not always provide a full picture of a person and is not always indicative that a person is void of criminal associations or behaviour, particularly in circumstances of a person’s membership with an OMCG.”

31. The delegate found that, in the interests of public safety, Mr Newman’s involvement with an OMCG could not be ignored. That involvement “cannot be said to be one that is entirely oblivious to [the OMCG’s] activities” and it “casts serious doubt as to the moral rectitude of a person who chooses to align themselves with such an organisation”.

32. The delegate expressed his/her belief that Mr Newman’s personal desire to remain licensed did not override the need to uphold public safety, which was the paramount consideration. The delegate found “there is a potential risk to public safety if [Mr Newman’s] authorisation for firearms and ammunition were restored” and he/she was “satisfied that it is no longer in the public interest for [him] to be licensed to possess and use firearms.”

33. The delegate determined to affirm the revocation decision.

Further evidence

Notice of confidential evidence

34. In the open hearing, Ms Douglas-Baker informed the Tribunal and the Applicant that the Commissioner relied on a confidential affidavit and a redacted report by Det Sgt Groenewegen. Substantial material segments of the report contained opinion evidence from the Det Sgt. Mr Sundstrom conceded Det Sgt Groenewegen’s qualifications as an expert concerning matters pertaining to the proceedings.

35. Det Sgt Groenewegen’s report concluded at [114] with the following:

Based on my experience, training and knowledge I am of the opinion that Newman is likely to be involved in serious and organised criminal activity along with other Members of the Gladiators.

Mr Newman’s affidavit

36. At the commencement of the 6 September hearing Mr Sundstrom sought to tender a short affidavit by Mr Newman made on 5 September 2017, a copy of which was not provided to Ms Douglas-Baker until shortly before the hearing commenced.

37. Ms Douglas-Baker informed me that the Commissioner formally objected to the admission of the affidavit into evidence while conceding that “it may be the most efficient course for the Tribunal to allow that material in any event”. Ms Douglas-Baker submitted that the tender of the affidavit was outside the orders made for the provision of evidence in support of Mr Newman’s case; there had been no prior attempt on Mr Newman’s part to go into evidence of any kind; and the late provision of the affidavit curtailed the Commissioner’s opportunity to respond.

36. Mr Sundstrom submitted, on Mr Newman’s behalf, that the affidavit related to a significant event which occurred the previous week when Mr Newman ceased his membership of the Gladiators club. That membership was initially stated by the police as the reason for the suspension of the Licence. Mr Sundstrom submitted that this would affect the Commissioner’s case to a significant degree and if the Commissioner considered that he would be prejudiced in some way he may wish to conduct his own enquiry and may seek to be afforded some time to do so.

37. I determined to receive the affidavit in evidence. However, I accepted that the late production of the affidavit, which related to a potentially critical issue in the proceedings, restricted the Commissioner’s opportunity to respond. Accordingly, I granted Ms Douglas-Baker an opportunity to obtain instructions as to whether the Commissioner would seek an adjournment to obtain evidence in response. I also said that I would consider any application by the Commissioner for an order for costs thrown away if an adjournment was granted, having regard to the recent resignation from the Gladiators and the late tender of the affidavit.

38. After a brief adjournment, Ms Douglas-Baker informed the Tribunal that the Commissioner would not seek an adjournment and that there were no other objections to Mr Newman’s affidavit.

Mr Newman’s membership of and resignation from the Gladiators

41. [NOT FOR PUBLICATION]

42. The report states at paragraph (viii) on page 71 that Mr Newman was stopped and spoken to by police at Maitland in July 2010. “He refused to speak to Police although complied with being searched. Police noted he had a “defiant” attitude and had a Gladiators tattoo on his neck.”

The reference used by the report for the incident relevantly states Mr Newman “is a member of Gladiator OMCG with tattoo on neck”. The reference to the tattoo may be somewhat ambiguous. However, it does not state that Mr Newman had a “Gladiator” tattoo on his neck.

43. From my recollection there is no other evidence before the Tribunal that Mr Newman had a Gladiator tattoo on any part of his body and I reject the Commissioner’s submissions to the contrary.

44. Mr Newman’s affidavit evidence was to the effect that he contacted the club President on 23 August 2017 and arranged to meet him. When they met Mr Newman informed the President that he was resigning from the club, and handed back his club colours and associated clothing. “The Treasurer and Sergeant of Arms were also present at the time. This was my formal resignation from the Gladiators Motorcycle Club”. Mr Newman confirmed this meeting in cross-examination.

Det Sgt Groenewegen’s evidence

45. In cross-examination, and in response to the Tribunal’s questions, Det Sgt Groenewegen’s open evidence included the following:

1. In response to the question “Do you have any — or much knowledge of the operations of the Firearms Registry?” Det Sgt Groenewegen said “No, I don’t. Only in what I could term as general sense, in that they are responsible for regulating the administration of firearms licences and so forth.”

2. He could not say for certain whether information reports and police event reports which were referred to in his report would ordinarily find their way to the Firearms Registry nor whether any particular operator would have access to that information.

3. On 25 May 2003 some police were aware that Mr Newman was acting consistently with some sort of membership with the Gladiators, on 4 October 2003 police observed some things about Mr Newman which were consistent with him being an associate member of the Gladiators, and on 17 April 2004 Mr Newman was seen by police wearing a set of Full Member Colours of the Gladiators that the police reported were “new in appearance” indicating “that he had only recently been made a Full Member”.

4. Det Sgt Groenewegen agreed that it appeared that in 2003 or at least 2004 members of the police service working in the Maitland Station were aware that Mr Newman had become a member of the Gladiators.

5. Det Sgt Groenewegen was asked if members of the police force in Maitland would have been aware that Mr Newman held firearms licences and permits in 2003 or 2004. His reply was that he could not answer that question as there was nothing in the report that he could recall that says that Mr Newman was a firearms licence holder.

6. Det Sgt Groenewegen was referred to a police report in evidence generated on about 6 or 7 November 2010 and identified by a particular number. That report refers to over 40 Gladiators being stopped at Coffs Harbour and notes that Mr Newman “is a full member of the Gladiators Maitland Chapter” and “He’s the holder of a firearms licence” with an identifying number, and specifies which firearms Mr Newman possessed at that time. It was put to Det Sgt Groenewegen that in “November 2010 — a report has been provided in the system which links the very things that are now being agitated in the court as being indicative of some public risk. That's correct, isn't it?”

7. Det Sgt Groenewegen’s answer was to the effect that it was very difficult for him “to answer for another police officer who has put this report together, and I can't really answer for changes in policy and what is litigated and what's not in terms of, you know, sort of firearms licences or other kind of regulatory …”

8. Det Sgt Groenewegen said that the material he considered indicated that Mr Newman’s membership of the Gladiators commenced in around 2002.   

9. Det Sgt Groenewegen said that based on his experience, community involvement is something that is engaged in by outlaw motorcycle gangs. He regards it to be a public relations activity to promote their image and their standing in the community. However, he does not believe that those activities balance unsavoury activities such as becoming involved in conflict and intimidating and assaulting members of the public or becoming involved in public place violence with a rival organisation. He has no knowledge of community activities conducted by the Gladiators in general or Mr Newman in particular.

10. Det Sgt Groenewegen said that he could not indicate the number of members of the Gladiators involved in criminal activity nor what percentage of Gladiator members were involved in such activity. He said it can be something that may vary from organisation to organisation [amongst OMCGs] and even from chapter to chapter within an organisation.

11. It was Det Sgt Groenewegen’s evidence that there was fluidity of the OMCG environment, a code of silence amongst OMCG members and there was difficulty in identifying the number of Gladiator members. He also said that criminal activity against members of the community is often underreported due to fear of reprisal or just a general fear of OMCGs.

12. Det Sgt Groenewegen said that notwithstanding that there was no evidence of which he was aware that Mr Newman had been involved in any criminal activity in the 14 or 15 years that he had been involved with the Gladiators, let alone serious organised criminal activity, it remained his opinion that Mr Newman was likely to be involved in such activities as part of his membership. He believed that his membership created an environment where the likelihood of such involvement was high.

Findings concerning the evidence

Mr Newman’s evidence generally

46. In his affidavit Mr Newman said he had had no contact with anyone associated with the Gladiators club since 23 August 2017. In his oral evidence he confirmed that he had no contact with any member of the club since 23 August and in almost the same sentence said that about a week ago he spoke to a long standing friend of his who had moved to Cairns and who remained a member of the club. That was a week prior to the hearing on 6 September.

47. In Mr Newman’s oral evidence he said the club Treasurer attended his home a few nights before the hearing and picked up his club colours which he had packed in a box. This contrasts with his affidavit in which he said that when he met the club President he handed back his club colours and associated clothing and that he had had no contact with anyone associated with the club since 23 August.

48. Mr Newman’s evidence is that he came to Australia when he was about 11 or 12 years old. He spoke no English at that time. He left school “halfway to year 10” and then became a bricklayer at the age of 16 or 17.

49. In his oral evidence Mr Newman said that he had one tattoo which was on the left-hand side of his neck. A few minutes later he said he had other tattoos on his back and on his arm.

50. Mr Newman also said that the last occasion he spent time with club members, other than the meeting with the president on 23 August, was at the club run in November 2016. This contrasts with his oral evidence that he thought he attended the club’s Christmas party in December 2016

51. I did not form the impression that Mr Newman deliberately attempted to mislead the Tribunal. However, I did form the impression that Mr Newman is an unsophisticated witness who did not necessarily relate answers he gave to individual questions to the answers he gave to other questions or to circumstances which were not in the forefront of his mind.

Mr Newman’s Criminal history

52. There is no dispute that Mr Newman’s criminal history consists of three spent convictions. The convictions are for one low range and two mid-range PCA matters in 1990, 1998 and 1999.

53. The evidence is that Mr Newman has been associated with, or a member of, the Gladiators from about 2002 until, on his evidence, he resigned in August 2017, some 15 years later and only a short time before the hearing commenced.

54. Det Sgt Groenewegen’s evidence included that he reviewed the records held in the police database on 6 July 2017 and found that there were no charges currently outstanding for Mr Newman. It was the Det Sgt’s understanding that apart from some traffic matters and some historic PCA matters Mr Newman had no criminal record and as far as he was aware there was no evidence in the material he had considered of any other crime having been committed by Mr Newman.

55. [NOT FOR PUBLICATION]

56. [NOT FOR PUBLICATION]

Mr Newman’s traffic record

57. Mr Newman’s traffic record in evidence is not something to be proud of. In addition to the PCA convictions it contains numerous instances of speeding offences, riding a motorbike without a helmet, start or driving a vehicle causing unnecessary noise/smoke, drive using a hand-held mobile phone and in December 2012 negligent driving. On more than one occasion Mr Newman’s licence has been suspended.

58. However, there is no evidence of the commission of any traffic offence for over five years and there is evidence that Mr Newman’s circumstances have changed during that period in relation to his cessation of motorbike use, his interaction with Gladiator club members and his family responsibilities.

Theft of firearms in 2000

59. The firearm theft was referred to by the Commissioner as follows:

17.   On or about 31 October 2000 to 1 November 2000 there was a break and enter at the applicant's then home and the spare key to his firearms safe was found in a drawer and used to open the firearms safe. Four firearms were stolen in the incident, being three pistols and one revolver. The applicant had been absent and returned home on 6 November 2000 but did not attend Maitland Police Station to report the theft until 7 November 2000 and Police did not attend the home to inspect the premises until 8 November 2000 when the applicant is said to have notified Police of the loss of four firearms in the break and enter.

60. The Commissioner submitted at [50] that Mr Newman failed to immediately notify a police officer of the theft and the failure constitutes a breach of s 37(1)(b).

61. Mr Newman’s evidence is that the theft was reported the same day it occurred. He was in Sydney working and the theft was reported on his behalf by a neighbour who was looking after his home. The relevant COPS Event states that the theft occurred between 1330 on 31 October 2000 and 0800 on 1 November 2000. The matter was reported to police at 08:40 on 1 November 2000. Mr Newman returned home on 6 November and attended Maitland police Station on 7 November. On attending the police station Mr Newman was informed that the relevant police officer was not on duty until 8 November. Mr Newman formally notified police of the theft on 8 November.

62. Section s 37(1)(b) relevantly requires that if a firearm is stolen from a person the person must immediately notify a police officer of the theft and provide the Commissioner within seven days after the firearm was stolen with particulars of the theft.

63. I find that on the evidence before the Tribunal, Mr Newman did not fail to report the theft as required by s 37(1)(b).

64. The Internal Review noted that the Firearms Registry was not informed of the theft until police reported the outcome of the safe storage inspection in April 2004. The Tribunal understands that the Firearms Registry is part of NSW Police Force and the Commissioner has not provided the Tribunal with any authority to the effect that Mr Newman had any obligation to report the theft to both the Firearms Registry and a police officer.

65. The Commissioner submitted at [51] that the fact that Mr Newman:

… kept the spare key to his firearms safe in a drawer in a room adjacent the room in which his firearms safe was located is arguably insufficient to constitute the applicant taking "all reasonable precautions to ensure" the safe-keeping of his firearms, that they are not lost or stolen and that they do not come into the possession of someone not authorised to possess them, as the applicant was required to do pursuant to s 39(1) of the Act. It is arguable that the applicant breached s 39(1) of the Act.

66. I accept that the requirements of s 39(1) are as stated by the Commissioner. However, I also accept that the COPS Event referred to above, which was created by the police officer to whom Mr Newman provided on 8 November 2000 details of the stolen firearms, states “The spare key to the safe was in a drawer in another room.” Accordingly, the Commissioner has been aware of the location of the spare key since 2000. No charges were laid against Mr Newman, nor is there any evidence of any other action taken against Mr Newman by the Commissioner pursuant to the Act prior to June 2015. I do not find that the potential breach of s 39 (1) constitutes sufficient grounds by itself to cause the Licence to be revoked.

Target shooting without a genuine reason

67. The Internal Review referred to Mr Newman’s use of firearms for target shooting without having been granted a licence for that purpose, after an earlier licence granted for that purpose expired in 2005. This was not in accordance with s 7A. The Internal Review also noted that it was likely that Mr Newman would have been able to satisfy the requirements of a licence for the genuine reason of target shooting had he applied for same.

68. Relevantly s 7A(2)(a) provides that a person must not use a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for using the firearm.

69. I acknowledge the admission apparently made by Mr Newman. However, I do not find the potential breach of the section as sufficient grounds by itself to cause the Licence to be revoked.

Mr Newman’s compliance with firearm licensing requirements including the Firearms Act 1996

70. Mr Newman’s firearm licence record shows substantial compliance with relevant legislation from 1989 until his licence was suspended more than 25 years later, in 2015, and then revoked. That revocation is the issue before the Tribunal in these proceedings.

71. Other than the above matters concerning ss 7A(2)(a), 37(1)(b) and s 39(1) the Commissioner has not submitted that Mr Newman has breached any of his obligations under the Act.

72. I find that there is no evidence before the Tribunal that Mr Newman has so grievously breached the provisions of the Act, whether in relation to any of the sections referred to either individually or collectively, as to make it appropriate that his Licence should be revoked.

Mr Newman’s tattoos and his resignation from the Gladiators

73. The Commissioner referred at [48] to “the nub of the issue for the Respondent” being:

… that the applicant is a member of the Gladiators OMCG, that Gladiators' members are known to have engaged in criminal activity, including drugs and firearms offences, and that the applicant's membership of the Gladiators OMCG in and of itself gives rise to a risk to public safety….

74. On the evidence before the Tribunal and the Commissioner’s submissions there is no doubt that the primary reason for the suspension and subsequent revocation of the Licence, and the determination on Internal Review, relate to Mr Newman’s lengthy membership of the Gladiators club and his association with its members. There is also no doubt, on the evidence before me, that the Gladiators is, what is commonly regarded as, an outlaw motorcycle gang (OMCG).

75. The Commissioner submitted that Mr Newman gave no evidence in chief about why he only commenced taking steps to resign from the Gladiators in June 2017 and why he only resigned 14 days prior to the hearing. The Commissioner further submitted that he was only informed on the morning of the hearing of the affidavit which refers to the resignation.

76. The Commissioner submits in RCS:

20.   In cross-examination, the applicant stated that the President of the Gladiators was "not surprised" that the applicant wanted to resign and that the topic had come up over the last "two and a half years" because the applicant (in effect) wanted his firearms licence.

….

22.   The Tribunal ought infer that the applicant's leaving the Gladiators as recently as 14 days prior to the hearing (and his providing evidence in relation thereto on the morning of the hearing) is a step that the applicant has taken for the sole purpose of supporting his application for review. The applicant has provided no evidence corroborating his claimed resignation from the Gladiators, such as an affidavit from the President or the Treasurer. In light of the material in Detective Sergeant Groenewegen's report (in particular the material pertaining to the "code of silence") the Tribunal ought infer that the applicant's resignation is not genuine and that the applicant has no intention of dissociating from the Gladiators. Moreover, the absence of any evidence to corroborate the applicant's claimed resignation from the Gladiators from any relevant office-bearer (a matter which the Senior Member found unsurprising) itself supports the Commissioner's contention that the Gladiators is an OMCG and its members consider the Gladiators to be an OMCG.

23.   In cross-examination the applicant admitted that he continues to see his friends who remain members of the Gladiators (including in particular his friend for whom he joined and who has since moved to Cairns), this notwithstanding his sworn statement that he has "had no contact" with anyone "associated" with the Gladiators OMCG since 23 August 2017 — again, 14 days prior to the hearing.

77. I accept that some part of the reason for Mr Newman’s resigning from the Gladiators may well be because he wanted his firearms licence. This by itself does not invalidate his evidence concerning his resignation and I reject any submission to the contrary.

78. Mr Newman has provided evidence on oath concerning his resignation including that it was accepted by the President, the Treasurer and the Sergeant at Arms of the Gladiators. The Commissioner has provided no evidence to the effect that the resignation is not genuine.

79. In relation to the Commissioner’s implied lack of opportunity to respond to the late tender of evidence on behalf of Mr Newman, I refer to my above comments concerning the opportunity provided to the Commissioner to adjourn the proceedings to obtain additional evidence and to seek an order for any costs thrown away as a result of the adjournment. The Commissioner chose not to seek any adjournment and cannot now infer that there was no opportunity granted to him to obtain additional evidence.

77. The Commissioner submitted, and I acknowledge, that there was no corroborative evidence concerning the resignation. However, the Commissioner provided no contrary evidence and had the opportunity to seek to adjourn the hearing and obtain statements from the persons said by Mr Newman to have been present when he resigned from the Gladiators. The Commissioner did not avail himself of that opportunity. I accept Mr Newman’s evidence as to his resignation.

78. The Commissioner submitted at [23] that Mr Newman “continues to see his friends who remain members of the Gladiators” and implies that that continuity existed up to at least the date of the hearing. The submission is not supported by a consideration of the transcript except to the extent that Mr Newman spoke with a long-standing friend in Cairns after his resignation and his evidence that the Treasurer of the Gladiators attended his home a few nights before the hearing to collect a box containing the Gladiators’ colours which Mr Newman had at that time.

79. Mr Newman has given evidence, referred to in these reasons, concerning a lack of recent involvement with activities of the Gladiators. That evidence is corroborated by his partner’s statement, to which I refer below.

80. Mr Newman said his last club ride with the Gladiators was in November 2016. He did not ride on that occasion because his bike was not working, so he drove. He could not recall the last time he went on a club ride prior to November 2016.

81. The Commissioner referred at [27] and following in RCS to Mr Newman’s tattoos. Mr Newman’s evidence was that he had several tattoos on his body including a Roman style skull in a helmet. He also said that his tattoos were nothing like the Gladiator club tattoos whether in colour or in the use of the word “Gladiator(s)“.

82. [NOT FOR PUBLICATION]

83. [NOT FOR PUBLICATION]

84. I have dealt above with conflicting evidence given by Mr Newman under the heading “Mr Newman’s evidence generally” and there is no need to repeat my comments.

85. Having regard to the material before me, I find that on or about 23 August 2017 Mr Newman resigned from the Gladiators’ club and his resignation was accepted by the club.

The Gladiators generally

89. [NOT FOR PUBLICATION]

90. At pages 68 and 69 of his report Det Sgt Groenewegen provided his opinion as to what he states are conclusions he has reached concerning the Gladiators’ OMCG and relevance to the public interest. Having regard to both the open and confidential evidence brought to my attention I note the following.

1. I accept Det Sgt Groenewegen’s opinion that OMCG culture provides an environment conducive to the facilitation of serious criminal activity.

2. To the extent that Det Sgt Groenewegen’s expressed opinion is that:

1. members of OMCGs engage in the commission of serious criminal offences, I accept the opinion in relation to some members of OMCGs.

2. [NOT FOR PUBLICATION]

3. [NOT FOR PUBLICATION]

4. The impact on a person’s reputation if those he regularly associates with are OMCG Members is likely to be generally negative because of …. factors that are inherent to the OMCG culture and nature … I accept that such an association may have such an impact. However, without supporting evidence, I am not satisfied that such an association would necessarily have that impact. Nor is there any evidence as to the extent of the likelihood of the impact.

5. It would be against the public interest for a Member of an affiliate of an OMCG to have access to firearms. I note that Det Sgt Groenewegen qualified his assertion by acknowledging that it was based on his “general understanding of “fitness and propriety”” rather than any “in-depth knowledge of relevant legislation”.

6. “The Gladiators are an OMCG whose Members exhibit the traits and behaviours typical of members of such organisations”. I note that the evidence before the Tribunal relates to some but not all members of the Gladiators and some but not all members of other OMCGs. I also repeat my observation that Det Sgt Groenewegen was unable to provide any evidence as to relevant numbers of members of either the Gladiators or any other OMCG at any time, nor the percentage of such persons who are or were involved in serious criminal acts.

7. “Criminal activity has taken place in Gladiators clubhouses and is the habitual resort of convicted criminals.” I observe that the evidence before the Tribunal supports this opinion up to the word “and”. However, in respect of the remainder of the expressed opinion I am not satisfied that the evidence before the Tribunal goes beyond satisfying me that some of the persons identified as having been present in one or more Gladiators clubhouses on one or more occasions have been convicted of serious offences.

8. “Members of the Gladiators are recorded in [police] records as having been involved in serious criminal activity. Others are suspected of being involved in serious criminal activity, although they have not proceeded to charge or conviction.” I accept the opinion in the first sentence to the extent that it relates to some Gladiators’ members who have been convicted of serious criminal offences. I accept the opinion expressed in the second sentence only to the extent that some persons may suspect that some Gladiators’ members, who have neither been charged nor convicted of criminal offences, may at some time have been involved in serious criminal offences. Having regard to the evidence before me, to the extent that the opinion implies that all Gladiators’ members who have not been convicted of serious criminal activity are suspected on reasonable grounds of having been involved in serious criminal activity, I reject the opinion and the implication.

91. Having regard to the evidence before me, I find that certain members of the Gladiators have been involved in serious criminal activity which has occurred over a lengthy period, including occurrences while Mr Newman was a member of the Gladiators.

92. The Commissioner submitted in RCS that issues concerning the activities of OMCGs:

9 …. arose after the introduction of the Firearms Act [and are] reflected in the Second Reading Speeches for legislation introduced in New South Wales in 2012, in particular the Tattoo Parlours Act 2012 (NSW) (Tattoo Parlours Act) and the Crimes (Criminal Organisations Control) Act 2012 (NSW) (Crimes (COC) Act), in response to those concerns.

10.   While Parliament has not enacted anything akin to an OMCG "dissolution bill" making such organisations illegal, it is apparent that it is Parliament's intention to disrupt and frustrate the activities of OMCGs by reducing opportunities for OMCGs to launder the proceeds of crime through businesses such as tattoo parlours, by reducing opportunities for rival gangs to engage in "turf wars" by preventing such businesses from being symbols of an OMCGs' territory, and by reducing opportunities for OMCGs to exercise effective control over such businesses.

11. For these reasons, therefore, the Tattoo Parlours Act is directed in significant part to limiting the involvement of OMCGs and their members in the operation of tattoo parlours and the industry generally. The Crimes (COC) Act confers power on the courts powers to curtail the activities of OMCGs by making declarations that an organisation is a criminal organisation7 and by making interim and final control orders in relation to persons.

12.   The absence of any reference to OMCGs in the Second Reading Speech in 1996 must necessarily therefore be construed in the context of the concerns that have developed within the community, the legislature and law enforcement since at least 2009 in relation to OMCGs, their members and their activities, and the risks thereby posed to the public and the public interest.

13.   Consistent with Parliament's policy of disrupting and frustrating the activities of OMCGs (see paragraph 10 above), it is in the public interest that OMCGs and their members do not have access to firearms in order to reduce to nil the opportunities for such persons to misuse firearms and abuse the privilege of a firearms licence.

….

15.   The Tribunal has accepted, albeit in the context of a tattooist licence, that the public would expect that a person with connections to an OMCG would not be granted a licence.

16.   The Tribunal, if persuaded that the applicant is a member of an OMCG,

should likewise find that the public would expect that a person with the applicant's connections would not be granted a firearms licence.

93. The Commissioner’s authority for [15] above is “Mielczarek v Commissioner of Police, New South Wales Police Force and Commissioner of Fair Trading [2016] NSWCATAD 34 at [171], per Senior Member Walker”. At [16] above, the Commissioner submits that the Tribunal should extend a finding as to public expectation in that a person with OMCG connections “would not be granted a firearms licence”.

94. The Commissioner did not include the whole of what Walker SM said at [171] in Mielczarek. That paragraph states:

171   For the above reasons, 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”. [Emphasis added.]

95. I have found above that Mr Newman has resigned as a member of the Gladiators. The only evidence as to an ongoing association between Mr Newman and members of the Gladiators since the Mr Newman’s quite recent resignation is that Mr Newman spoke with a long-standing friend living in Cairns, who apparently retained his membership of the Gladiators, and that the Gladiators’ Treasurer attended Mr Newman at his house in order to collect Gladiators colours. No evidence has been brought to the attention of the Tribunal concerning how a person living in Cairns, who was a friend of Mr Newman prior to any involvement of either of them with the Gladiators, maintains an active membership of the Gladiators. There is also no evidence that the recent contact between Mr Newman and the Treasurer of the Gladiators was a social event. No evidence has been brought to the attention of the Tribunal that Mr Newman has maintained any substantial association with Gladiators’ members since his resignation, and I reject the Commissioner’s submission to that effect.

96. As the Commissioner conceded, Mielczarek was a Tribunal review of a decision refusing a grant of a tattooist licence. What the Commissioner did not refer to in his submissions was that while Mr Mielczarek failed in his tattooist licence application, he held a firearm licence notwithstanding his membership of the Rebels OMCG. Mr Mielczarek’s firearm licence was mentioned on several occasions in Walker SM’s decision. There are several parallels in the factual background of Mr Newman and Mr Mielczarek in that Mr Mielczarek had been a long-standing member of an OMCG, he had three PCA convictions, the most recent being 12 years prior to the decision, but otherwise no criminal record and he held a firearm licence. Walker SM observed at [134]:

… in June 2012 police seized his firearms as he had failed to renew his licence. They were returned to him after he renewed his licence, but police required him to affix two additional dynabolts to his firearms safe. No charges were laid in relation to those events.

97. Walker SM went on to say:

135   Relying on Smith and Zahra, the respondents invoke the parliamentary debates as support for the proposition that membership of an OMCG such as the Rebels is a very strong indicator of lack of fitness and propriety and may be determinative of that question. The applicant replies that the TP Act does not preclude a person from holding a tattooist licence merely by reason of membership of an OMCG and that, following ex parte Beane, the second reading speech in Parliament cannot be used to ignore the language of the legislation or to substitute the parliamentary speeches for the precise terms of the Bill as enacted.

136 In my view those contentions are not necessarily mutually inconsistent. As Montgomery SM said in Smith (at [19]), in the absence of a “principles and objects” section in the Act, the tribunal may have regard to the minister’s speech to ascertain the purpose of the Act, the mischief that the statute was designed to cure, in this case the stranglehold that OMCGs had on the New South Wales tattoo industry. That has been the position at common law since Heydon’s Case in 1584 ((1584) 3 Co Rep 7a, 7b, 76 ER 637), and the High Court made it clear in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 634 that in modern statutory interpretation practice regard may be had to extrinsic materials to discern the mischief that the statute was intended to remedy at the outset, not merely at some later stage when ambiguity might be thought to arise. But that is far from saying that extrinsic material may be used to contradict the plain language that the Legislature has used or to insert some other language that it has not used.

137 On the basis of the open and confidential evidence, there is no doubt that the Rebels OMCG is considered, both internationally and within Australia, to be an organized crime group. That is apparent from the s 19 assessment determination, including the redacted version that has been supplied to the applicant, the unredacted version given to the tribunal and the respondent’s confidential evidence. Both versions of the s 19 determination note the tribunal’s comment in Zahra at [52] that “the Rebels are an organised crime network and … the club poses a significant threat to the public interest”. It may also be noted that organized groups with violent propensities that wear distinctive uniforms or emblems have been an object of legislative concern since the Statutes of Livery of 1377 to 1468. See also Liquor Act 1992 (Qld), ss 173EA to 173AD, declaring OMCG colours to be prohibited items that must not be worn on licensed premises.

138   In the present context, the correct position seems to be that membership of an OMCG such as the Rebels is a major factor in the consideration of fitness and propriety and may come close to establishing a prima facie case, but that other factors, such as the applicant’s criminal history or lack of one, and his or her other known activities or qualities, may prevent, or alternatively reinforce, an inference of lack of fitness or propriety.

139   The respondents rely on Smith and Zahra, recent tribunal decisions in which the reviewable decisions were affirmed. The applicant in Smith was not an OMCG member but had a long history of illegal drug use, including two convictions for illegal drug possession. He was also facing pending charges for serious indictable drug supply offences. He had taken steps to turn his life around, but Montgomery SM thought it was too soon to be sure that he was a fit and proper person to hold the licence and that it was not contrary to the public interest for him to do so. He agreed with the Commissioner that the applicant might be able to demonstrate by subsequent conduct that he is a person of good character, but thought that a drug-free period of at least a year would need to have expired before he could be said to have demonstrated that.

140   In Zahra, the applicant was a continuing Rebel member with a criminal record for malicious wounding, selling liquor without a licence, and possession of a prohibited plant. The Commissioner had contended that the applicant had engaged in criminal activities on behalf of the Rebels (at [55]), and the tribunal appeared to accept that. Despite his record, the tribunal intimated that he could or would qualify for a licence if he fully dissociated himself from the Rebels (at [69]).

141   In the present case the applicant has no non-traffic criminal history at all and there is no cogent open or confidential evidence personally implicating him in criminal activity. The assessing officer conceded that this factor “weighed heavily in the applicant’s favour”.

142   The applicant’s three PCA contraventions are not minor matters, but the most recent was 12 years ago and he has had no other convictions or charges of any kind. He said his failure to renew his firearms licence was the result of an oversight as he did not receive the renewal notice. Given his multiple business interests in various locations, it is possible that if a renewal notice was sent to him, it could have been mislaid or overlooked without gross negligence on his part. In any event no charges were laid and his firearms were returned to him after he renewed his licence.

Mr Newman’s references

98. The delegate’s expressed reasoning process in the Internal Review for his/her decision to affirm the revocation of the Licence included:

… you have provided a number of references attesting to your good character … of those references, only your partner has demonstrated that her support for the re-instatement of your firearms licence has been provided with the knowledge of your membership to the Gladiators [club] …

99. Annexed to AS are several references on behalf of Mr Newman. Three of the referees, including Mr Newman’s partner and two referees who had not provided references for the Internal Review, expressly referred to his membership of the Gladiators while a fourth referee referred to his membership of “a club” without naming the club. The statement in the Internal Review that the only referee who demonstrated knowledge of Mr Newman’s membership of the Gladiators was his partner, is overtaken by the material before the Tribunal.

100. The Commissioner submitted at [48]:

Among the documents upon which the applicant relies are a number of references in support of his claim to be a fit and proper person to hold a firearms licence. While the references are fairly recent, being variously dated June/July 2016 to July 2017, none of the authors of those references addresses the nub of the issue for the respondent, which is that the applicant is a member of the Gladiators OMCG, that Gladiators' members are known to have engaged in criminal activity, including drugs and firearms offences, and that the applicant's membership of the Gladiators OMCG in and of itself gives rise to a risk to public safety. In all the circumstances, the Tribunal should place little to no weight on these references, particularly in circumstances where the applicant has chosen not to go into evidence in support of his application for review.

101. I accept that several of Mr Newman’s referees did not refer to his membership of the Gladiators and that none of the referees referred to the Commissioner’s opinion as set out at [48]. While I attach less weight than I otherwise might to references which do not acknowledge Mr Newman’s membership of the Gladiators, I attach minimal weight to an expectation by the Commissioner that character references should refer to the Commissioner’s submissions including that Mr Newman’s membership of the Gladiators “in and of itself gives rise to a risk to public safety”.

102. During the hearing, at the end of Mr Newman’s evidence, Mr Sundstrom informed the Tribunal that the Commissioner had asked that Mr Newman’s partner, Ms Catherine Waretini, be available for cross-examination. He also informed the Tribunal that Ms Waretini had filed a statement which was attached to AS, she was available for cross-examination and was outside the hearing room. Ms Douglas-Baker then informed the Tribunal that the Commissioner no longer proposed to cross-examine Ms Waretini. In those circumstances I find that the content of Ms Waretini’s statement is unchallenged and may be relied on by Mr Newman in these proceedings.

103. Accordingly, I have regard to the content of Ms Waratini’s statement, in particular to her comments as to Mr Newman’s character such as references to him being a positive and strong role model for her children and his priority to teach them the value of honesty, his enjoyment in helping run annual Gladiator shows which raised money for local charities, that her personal experience with Mr Newman is “he is an honest, law-abiding citizen”, that in the year prior to the reference, dated 5 July 2016, his involvement with the Gladiator Club was minimal, his full-time work and taking care of their family has been his priority, and that the reasons given by the Commissioner for taking Mr Newman’s firearms licence were “not due to any bad or criminal behaviour on his part or any changes in his behaviour”.

101. I have also had regard to the other references, although I have placed minimal weight on those which did not refer to Mr Newman’s membership of the Gladiators.

The firearm licensing regime and the Commissioner’s primary submissions

105. The Act authorises the Commissioner to revoke a firearm licence if in his opinion a licence holder is not a fit and proper person to hold a licence or if it is not in the public interest that a person hold a licence.

106. The Commissioner submitted at [10] and [11] that the ground for suspension of the Licence was that it was not in the public interest that Mr Newman hold the licence as he then was a patched member of the Gladiators OMCG.

107. As noted above, the Commissioner submitted at [48]:

…. the nub of the issue for the respondent …. is that the applicant is a member of the Gladiators OMCG, that Gladiators' members are known to have engaged in criminal activity, including drugs and firearms offences, and that the applicant's membership of the Gladiators OMCG in and of itself gives rise to a risk to public safety ….

108. In RCS the Commissioner submitted:

17.   In the context of what weight should be afforded to the applicant's antecedent traffic and firearms histories, the issue arose whether it was the Commissioner's primary submission that the applicant was not a fit and proper person by reason of his membership of the Gladiators OMCG.

18.   The Commissioner's primary submission is that the applicant's 15-year membership of the Gladiators OMCG means that the applicant is not a fit and proper person to hold a firearms licence. This notwithstanding that the applicant has not been charged with any criminal offences or offences pertaining to his use or storage of firearms.

Fit and proper person test

109. The Act provides:

11 General restrictions on issue of licences

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(3) A licence must not be issued unless:

(a) 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,

….

24 Revocation of licence

…

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind

…

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

110. The issue of whether a person is “fit and proper” in various licencing contexts has been dealt with on numerous occasions by courts and tribunals.

111. In Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Dixon C.J., McTiernan and Webb JJ said at [9] that the expression 'fit and proper person' generally involves honesty, knowledge and ability.

112. In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 the High Court observed that the expression "fit and proper person" takes its meaning from its context. 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.

113. The question of whether the Applicant is a fit and proper person involves a value judgement to be made in the context of the particular activity to be undertaken. In Wilkinson v Commissioner for Police [2002] NSWADT 59 the ADT said:

25. As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

114. Having regard to the material before the Tribunal and to my findings I am satisfied that, notwithstanding his involvement with members of the Gladiators, Mr Newman is a fit and proper person to hold a firearms licence, as he did for more than 25 years until its suspension in June 2015.

Public interest test

115. The Act and Regulations relevantly provide:

11 General restrictions on issue of licences

(1)    The Commissioner may issue a licence in respect of an application, or refuse any such application.

….

(7)   Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

24   Revocation of licence

…

(2)   A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind

….

(d) for any other reason prescribed by the regulations

Clause 19

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence

116. The Commissioner submitted:

11.   It was not in the public interest that the applicant hold a licence as the applicant was at the time of the suspension (and still is) a "patched'' member of the Gladiators Outlaw Motorcycle Gang (OMCG) and had been observed by Police wearing full Gladiators' colours on several occasions.

117. In Fulton v Commissioner of Police, NSW Police Force [2015] NSWCATAD 150, a matter before the former Administrative Decisions Tribunal involving a review of a decision by the Commissioner to revoke a firearms licence, I adopted part of a submission by the Commissioner, the respondent in that matter, in relation to the relevant public interest test. That submission is relevant to these proceedings. I said at [118]:

118   The Respondent provided at [10] a summary of the law in relation to the importance of having regard to the public interest when decisions are made to grant applications for firearms licences or revoke such licences. Set out below is a substantial part of that submission:

10.1 The Tribunal may revoke Mr Fulton's firearms licence if the Tribunal is satisfied that it is not in the public interest for him to continue to hold the licence.

10.2 The courts and the ADT have consistently held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, the court stated:23 :

The purpose of the reference to 'public interest' is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.

10.3 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 the ADT's Appeal Panel said in relation to the public interest (at ¶25):

25. The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.

10.4 In Constantin v Commissioner of Police [2013] NSWADTAP 16 the ADT's Appeal Panel held that the 'public interest' allows a consideration of issues going beyond Mr Fulton's character to be taken into account:

33. …. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.

10.5 Strict controls on the possession and use of firearms are imposed in the interests of public safety. Ward v Commissioner of Police [2000] NSWADT 28 at [28] is often quoted when considering the public interest in the context of a firearms licence As mentioned above, the Tribunal must be satisfied that there is virtually no risk to public safety if Mr Fulton is given access to firearms.

118. The Commissioner made express written submissions in these proceedings concerning the public interest test in RS, RCS and RCSR as well as providing oral submissions by Ms Douglas-Baker. I have had regard to those submissions.

119. I will not refer to all of the Commissioner’s submissions. However, I note the following key submission by the Commissioner in RCS:

13   Consistent with Parliament's policy of disrupting and frustrating the activities of OMCGs …. it is in the public interest that OMCGs and their members do not have access to firearms in order to reduce to nil the opportunities for such persons to misuse firearms and abuse the privilege of a firearms licence.

120. Section 3 provides that the first of the underlying principles of the Act is that firearm possession “is conditional on the overriding need to ensure public safety”.

121. In the often-quoted decision of Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, DP Hennessy said at [28]:

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. [Emphasis added.]

122. The Commissioner’s unsupported submission at [13] goes beyond evidence before the Tribunal as to the wording of relevant legislation, speeches in Parliament, and decisions of this Tribunal and its predecessor concerning firearm licences, as referred to in these reasons. The submission may well represent a policy which the Commissioner would like to see adopted. However, in my opinion it does not represent the law in New South Wales today, and I reject it.

123. The Commissioner submitted at [40]:

…. where the evidence before the Tribunal demonstrates that an applicant is a member of an OMCG whose members are known to have engaged in criminal activity but the applicant refuses to dissociate himself or herself from the OMCG, it is appropriate that the Tribunal refuse to set aside a decision to refuse that applicant a firearms licence.

124. The Commissioner’s authorities for the above submission, other than those relating to tattoo parlours, were, by way of comparison, Sciberras v Commissioner of Police New South Wales Police Force [2015] NSWCATAD 206 at [71] ff and Muratore v Commissioner of Police [2017] NSWCATOD 3 at [95]. In both Sciberras and Muratore, McAteer SM set aside decisions of delegates of the Commissioner revoking firearms licences. The revocations occurred mainly because of the involvement of the applicants in those matters with respectively the Bandido OMCG and the Lone Wolf OMCG. The Commissioner decided that each of the applicants was not a fit and proper person to hold a firearm licence. In both cases the applicants had no prior material criminal record, no adverse firearms history and no prosecution for any offence.

125. In Sciberras the Tribunal found that the applicant was no longer a member of an OMCG. The applicant’s evidence at [6] was that after a 15-year membership he had resigned from the Bandido club “the previous year”. The applicant said at [39] he “saw and associated with members ‘once in a blue moon’, such as every three months or so”.

126. In Muratore the evidence was that the applicant resigned from his 40-year membership with the Lone Wolf club seven days before the hearing. The Tribunal held:

84   In my view …. other than an inference arising from an association with the relevant Club, there is nothing additional, which arises from any character findings, which would in my view additionally, subvert or be contrary to the notion of the ‘public interest’. Whilst the circumstances of the applicant’s long-term former association with the ‘Lone Wolf’ Club may make the idea of exercising the discretion of interest to the public generally, it is not on the evidence and material before me contrary to the notion of the public interest as referred to in the relevant legislation and case law.

85   Relevantly in the applicant’s favour is the unrefuted evidence that the respondent was fully aware of the applicant’s membership of ‘Lone Wolf’ from at least 2004, when at the relevant time the applicant held both Firearms and Security licences issued by the respondent. This coupled with the applicant’s lack of criminal history, his lack of any current association with members of OMCG’s, and the inability of the respondent to establish as a matter of legal principle that evidence of a past association establishes lack of fitness and propriety (in the absence of any other adverse evidence), leads the Tribunal to a specific conclusion. [Emphasis added.]

86   Having regard to the evidence submitted by both parties, I believe that in making any order concerning the reinstatement of the various licences, it would be appropriate to make an order concerning a specific condition. It would therefore be appropriate for the Tribunal to consider placing any relevant conditions on the licences.

127. I observe that in the present proceedings there is evidence that Mr Newman has, albeit recently, resigned from the Gladiators, returned his colours to that club and materially ceased his social interaction with that club’s active members. I also observe that the evidence is that for some time prior to the proceedings, Mr Newman limited his involvement with the Gladiators and its members.

Public interest versus private interest

128. Mr Newman’s representatives have placed substantial weight on Mr Newman’s ongoing desire to resume his hobby of using firearms for target shooting. Ms Waratini has referred to this strong desire and also his passion for motorbike riding and his desire to introduce her daughter to the sport of skeet shooting and training for competition.

129. Mr Newman has given evidence that he has not ridden his motorbike for some time, it is no longer registered, and he has put it up for sale. That evidence was not challenged, and I accept it.

130. I accept that Mr Newman’s desires to resume target shooting are genuine. However, I regard the importance of the public interest as expressed in Ward at [28] as having more weight than Mr Newman’s personal desires.

Decision

131. The Commissioner submitted at [49] that Mr Newman:

…. is not a fit and proper person to hold a firearms licence as he is a patched member of the Gladiators OMCG, some of whose members have been known to have engaged in criminal activity, including drugs and firearms offences. In addition, the President of the Gladiators OMCG was the victim of a drive-by shooting alleged to have been perpetrated by two former members of the Club.

132. I observe that, notwithstanding Mr Newman’s long-term association with the Gladiators and some or all of its members and the opinion of Det Sgt Groenewegen as to the likelihood of Mr Newman’s involvement in serious and organised criminal activity, there is no evidence before the Tribunal that Mr Newman has ever been charged with, let alone convicted of, any non-driving offence and his last conviction for a driving offence was in 1999, some 19 years ago.

133. I have regard to Muratore at [85] where the Tribunal stated the inability of the respondent to establish as a matter of legal principle that evidence of a past association establishes lack of fitness and propriety (in the absence of any other adverse evidence) …”. I find that the Commissioner’s inability, as referred to in that matter, also applies in these proceedings.

134. I have also had regard to the conditions imposed by the Tribunal in restoring firearm licences in Sciberras and Muratore.

135. In making my findings as set out in the paragraph immediately below, I have had regard to Mr Newman’s membership of the Gladiators Club and his long-term association with members of that club, several of whom may well have committed serious criminal offences. In my opinion, by associating himself with the club and its members, Mr Newman was somewhat naïve and probably ill- advised. I recommend that he give serious consideration to not renewing his association with members or associates of any OMCG, whether or not those persons have similar interests to him, such as fishing or motorcycle riding.

136. Having regard to the material before me I am satisfied that Mr Newman is a fit a proper person to hold a firearm licence and can be trusted to have possession of firearms without danger to public safety or to the peace. Having had regard to any criminal intelligence report or other criminal information brought to the attention of the Tribunal, and having had regard to the evidence before me as to Mr Newman’s character, I am satisfied that Mr Newman is not a risk to public safety nor that his holding of a firearm licence would be contrary to the public interest.

137. Accordingly, the correct and preferable decision of the Tribunal is that the revocation of Mr Newman’s licence be set aside.

138. I observe that the genuine reasons for the possession and use of firearms pursuant to Mr Newman’s most recent application for a firearm licence did not include category H sport/target shooting. If Mr Newman wishes to use his firearms for such purposes it will be necessary for him to make an application in the usual course. If Mr Newman does make such an application I direct the Commissioner to have regard to the findings expressed in these reasons in considering that application.

Orders

1. The decision under review is set aside.

2. If Mr Newman applies for a category H licence for the purpose of sport/target shooting I direct that the Commissioner have regard to the findings in this decision in considering that application.

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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: 22 January 2018