Claimant's Licence Applications Rejected for Public Safety Reasons

The Tribunal affirmed the Commissioner's decisions to refuse licences to the claimant based on public interest and fitness and propriety grounds, citing concerns over public safety and the claimant's past criminal convictions and associations with outlawed motorcycle gangs.

Civil and Administrative Tribunal [NAME]: [NAME] v Commissioner of Police [2015] NSWCATOD 160 Hearing dates: 23 July 2014; 20 October 2014; 10 November 2014 & 23 February 2015. Date of orders: 6 October 2015 Decision date: 06 October 2015 Jurisdiction: Occupational Division Before: A Scahill Senior Member Decision: Decisions of Respondent affirmed Catchwords: Fit and proper; Not in public interest; Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Commercial Agents and Private Inquiry Agents Act 2004 Evidence Act 1995 [NAME] Act 1996 Firearms Regulation 2006 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 [NAME] v Commissioner of Police, [NAME] Service [2003] NSWADT 254 [NAME] v Commissioner of Police, [NAME] [2009] NSWADT 222 [NAME] v Commissioner of Police, [NAME] ([NAME]) [2011] NSWADTAP 47 [NAME] v Commissioner of [NAME] (No. 2) ([NAME]) [2012] NSWADTAP 6 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [NAME] v Commissioner of [NAME] ([NAME]) [2013] NSWADTAP 16 [NAME] v. Commissioner of Police, [NAME] Service [2001] NSWADT 50 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 [NAME] v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. [COMPANY] v [NAME] (No. 2) [1955] HCA 28; (1955) 93 CLR 127 [NAME] v Commissioner of Police, [NAME] Service [2003] NSWADT 230 [NAME] v Commissioner of Police, [NAME] [2005] NSWADT 130 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 [NAME] v Commissioner of Police, [NAME] Service [1999] NSWADT 42 [NAME] (No 2) v Commissioner of Police, [NAME] Service [2000] NSWADT 48 [NAME] -v- Commissioner of Police, [NAME] Service [2000] NSWADT 28 Category: Principal judgment Parties: [NAME] (Applicant) Commissioner of Police, [NAME] (Respondent) Representation: Counsel: [redacted]

Solicitors: [redacted] File Number(s): 1410201 and 1410272

Reasons for decision

Background 1. This is a matter in which all three Applicants, [NAME] and [NAME] are from one family. As at the dates of hearing, all three Applicants lived in the same household in Western Sydney. The family has a rural property near Mudgee, west of Sydney. [NAME] and [NAME] are married. [NAME] is the son of [NAME] and lives together with [NAME] and [NAME]. The Tribunal understands that [NAME], son of [NAME] and [NAME] had also lived in the family home before he was taken into custody. The Tribunal understands that [NAME] will be in custody serving a sentence in relation to drug supply until February 2016.

2. Members of the [NAME] have brought these applications seeking review of decisions made by the Commissioner of Police in relation to their firearms licences. In addition, [NAME] is seeking review of the Commissioner's decision to refuse him master and operator licences under the Commercial Agents and Private Inquiry Agents Act 2004 [NAME] ([NAME])

3. All the applications were heard together.

[NAME]'s applications matters number 1420201 and 1410272 1. [NAME] has two applications before the Tribunal. Application number, 1410272 is an application concerning the Commissioner's rejection of his application for a firearms licence in the category AB. [NAME] had sought a category AB licence for the purpose of recreational hunting/vermin control. This was rejected on 29th October 2013 and affirmed under internal review on the 24th of April 2014. The reasons provided for the rejection of the application on internal review were that [NAME] was not a fit and proper person and that the Commissioner should not exercise his discretion to grant [NAME] a firearms licence because it was not in the public interest.

2. The other application number 1420201 seeks review of the decision of the Commissioner of Police, [NAME] to reject his applications made on 5th March 2014 for a master and operator's licence under [NAME]. That decision was affirmed under internal review on the 13th of May 2014.

3. The Commissioner refused him these licences on the basis that he was a "disqualified person" and therefore, not a fit and proper person under [NAME]. This was because a finding of corrupt conduct was made against him by the Independent Commission Against Corruption (ICAC) in December 2009. The Commissioner also said that it was not in the public interest for [NAME] to be granted these licences. 4. [NAME] had previously had his [NAME] and firearms licences cancelled after ICAC had made findings against him in December 2009.

5. These cancellations were affirmed by the [NAME] Tribunal [NAME] ([NAME]) in 2012 after [NAME] unsuccessfully sought review of the cancellation decisions.

Application of [NAME] 1410192 1. [NAME]'s application is in relation to the suspension on 8th January 2014 and the subsequent revocation of his firearms licence on 24th March 2014. The reasons set out in the letter of 24th March 2014 for the revocation of [NAME]'s firearms licence were that the Commissioner had reasonable cause to believe that [NAME] may not personally exercise continuous and responsible control over firearms because of his way of living and his domestic circumstances and because it was not in the public interest that [NAME] continue to hold a licence.

2. This was on the basis that [NAME] and those with whom he was residing had alleged associations with outlawed motorcycle gang ([NAME]) and drug activities.

3. The Commissioner did not rely on any specific behaviour of [NAME] in relation to firearms in drawing these conclusions.

Application of [NAME] 1410187 1. [NAME]'s application is in relation to the revocation of her firearms licence on or around 28th March 2014. She had held this licence since 26th August 2011. The reasons for the revocation of [NAME]'s firearms licence were the same as those for [NAME]. They were that the Commissioner had reasonable cause to believe that [NAME] may not personally exercise continuous and responsible control over firearms because of her way of living and her domestic circumstances and because it was not in the public interest that [NAME] continue to hold a licence.

Powers of NCAT Review - Relevant law 1. Section 75 of the Firearms Act 1996 provides for the review of decisions to revoke or refuse firearms licences under the Act to be reviewed by the [NAME] Tribunal (NCAT).

2. Section 63 of the Administrative Decisions Tribunal Act 1997 provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides: (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

1. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: [NAME] v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

Procedure of hearing 1. The matters were heard on 23rd of July 2014; 20th October 2014; 10th November 2014 and 23rd February 2015.

2. On 10th November 2014, on application of the Respondent, the Tribunal ordered that the hearing on 10th November 2014 be conducted in private – in the absence of the Applicants pursuant to section 49(2) of the Civil and Administrative Tribunal Act 2013 [NAME] ([NAME]). The Respondent had submitted that it was desirable to do so as it wished to put confidential evidence to the Tribunal.

3. On 10th November 2014 the Tribunal also made the following orders pursuant to section 64(1) of [NAME]: 1. section 64(1) (b) prohibiting the publication or broadcast of any report of proceedings in the Tribunal on 10th November 2014; and 2. section 64(1) (c) an order prohibiting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal on 10th November 2014; and 3. section 64(1) (d) an order prohibiting the disclosure to the Applicants to the proceedings of evidence given before the Tribunal, and of the contents of documents lodged with the Tribunal and received in evidence by the Tribunal, in relation to the proceedings on 10th November 2014.

1. The Tribunal notes that at the end of the hearing on 10th November 2014, the Tribunal returned to the Respondent the documents tendered. Copies were not retained on the Tribunal's file.

2. The Tribunal does not rely on the evidence given, or the contents of the documents tendered on 10th November 2014 in reaching its decision.

Oral evidence before the Tribunal 1. The Applicants did not give oral evidence in the matters.

2. The Respondent called 2 witnesses, [NAME] Senior [NAME] ([NAME]) [NAME]. [NAME] cross examined these witnesses on each of the Applicants' behalf.

3. The Respondent provided to the Tribunal and screened during the course of the hearing, the contents of a memory stick showing the police recording of the execution of the search warrant at the [NAME]' home on 30th April 2013.

Documents before the Tribunal 1. None of the Applicants filed written evidence other than their applications. [NAME] submitted photos of herself with lacerations on her arm which she contended were the result of an attack by a kangaroo. She also produced a letter addressed to [NAME] from the [COMPANY] in Mudgee concerning control options for wild dogs.

2. The Respondent provided a set of section 58 documents in relation to each of the applications. In addition to the memory stick with the recording of the execution of the search warrant, the Respondent also provided a bundle of documents that related to the execution of the search warrant at the [NAME]' home on 30th April 2013.

3. The 3 Applicants were represented by [NAME] on the last day of the hearing on 23rd February 2015. At the end of the hearing on 23rd of February 2015, the Tribunal set a timetable for the filing of written submissions and reply by each of the parties. Unfortunately this timetable had to be elongated as result of matters beyond the parties' and the Tribunal's control.

4. The Applicants filed submissions dated 27th April 2015.The Respondent filed submissions dated 16th June 2015. The Applicant filed submissions in reply dated 3rd July 2015.

Respondent's Evidence

Evidence of [NAME] Senior [NAME] 1. [NAME] had been in charge of the execution of a search warrant at the [NAME]'s home on 30th April 2013. At that time, [NAME] was attached to the Gang Squad.

2. He was investigating an alleged matter of drug supply by the [NAME]'s younger son [NAME]. He said that at the time of the Tribunal's hearing, [NAME] was in custody having pleaded guilty to the charges and was awaiting sentencing.

3. The Tribunal was subsequently informed that [NAME] was sentenced to 2 years and 10 months and would be in custody until at least January or Feb 2016. 4. [NAME] said the first priority when they were executing the search warrant was to locate and secure the firearms registered to [NAME]. The video showed [NAME] retrieving the keys for the firearms storage unit from the side of the bed on which [NAME] slept and where he kept his mobile telephone. [NAME] was not at that time licensed to possess firearms. [NAME] also said that [NAME] had difficulty in opening the bedside cabinet in which the keys were contained. When she was asked how many guns there were in the safe and what kind of firearms they were, she seemed uncertain. She said to [NAME] that she was feeling quite shaken up and could not respond at that time. [NAME] was then asked which firearm a particular bolt belonged to. She identified the relevant firearm. [NAME] alleged that he saw on the internal wall in the house a photograph of [NAME] with his two sons, standing next to a dead boar.

5. This photo was not produced to the Tribunal. 6. [NAME] told the Tribunal that when the main bedroom shared by Mr and [NAME] was searched, three batons, prohibited weapons, were found underneath [NAME]'s side of the bed. A samurai sword and a smaller dagger were found between [NAME]'s side of the bed and a bedside table. The samurai sword and the dagger were not prohibited weapons. [NAME] said that when [NAME] was asked why she had the three batons on her side of the bed, she did not provide a response. [NAME] said he had the swords underneath his side of the bed because he liked them and he liked to keep them near his bed. 7. [NAME] also said that while they were searching the premises they found a memorial card for the late [NAME]. He had been a member of an outlawed motor cycle gang, the [NAME] and he was killed at work. [NAME] had said "he was a nice person and a friend." 8. [NAME] said that the concern about Mr and [NAME] and their son having firearms was that their son [NAME] was an associate of [NAME], a Sergeant at Arms of an [NAME], the [NAME]. They had both pleaded guilty in relation to a drug supply matter. His concern was that legal associates of outlaw motorcycle gang members are able to provide assistance to the activities of [NAME] members with firearms or ammunition. 9. [NAME] said that [NAME]'s weapons had been stored safely. [NAME] said that the [NAME] had been entirely cooperative with the execution of the search warrant and there had been no problem. 10. [NAME] was asked by [NAME] why, when the police attended the home, [NAME] had asked where [NAME] was, when the search warrant was being executed in relation to the activities of [NAME]. [NAME] indicated the he could not recall, but may have been confusing [NAME] with [NAME].

Evidence of [NAME] 1. [NAME] said that she was a member of the Gang Squad. She had not been involved in executing the search warrant at the [NAME]'s house. She had provided a seven page report dated 18th December 2013 which was relied on by the Respondent. 2. [NAME] had been involved in the investigation of drug dealing leading to the arrest and charging of [NAME] and his co-accused [NAME]. The primary concern about [NAME] was that there was a serious risk of her firearms falling into the hands of [NAME] members, given the association between her son and his co-convicted, [NAME]. She observed that [NAME] had long fingernails which would prevent her from using high-powered firearms appropriately. This also suggested that she was not really the user of the firearms. 3. [NAME] said that their intelligence holdings indicated that [NAME] was implicated in drug dealing.

4. When asked why it had taken eight months for the Commissioner to revoke [NAME]'s firearms licence after the search in April 2013, [NAME] said that [NAME]'s firearms had been seized and were no longer on the premises after the search on 30th April 2013. She would be concerned if the firearms were returned to [NAME].

Intelligence report re [NAME] I 33748562 1. [NAME] submitted to the Tribunal an intelligence report numbered I 33748562. The report, provided by a police officer whose name had been blacked out, is dated 24th April 2008. It notes amongst other things, that [NAME] had been sighted at Liverpool Mall in the company of [NAME] who was thought by police to be a [NAME] member. Mr [NAME] had been wearing a [NAME] t shirt - although he had denied being a full member.

Applicants' Evidence 1. None of the Applicants gave oral evidence. They relied on the contents of their applications for review. These included, in [NAME]'s case, a number of character testimonials.

Applicant's Submissions

Submissions in relation to [NAME] 1. [NAME] noted that the Respondent had placed a significant weight on the ICAC 2009 findings in finding him not fit and proper to hold either a firearms or a [NAME] licence. He submitted that there were defects with the ICAC procedure and findings. He submitted that the Tribunal ought to examine, in particular, the telephone interception evidence. Without proper testing of the participants to the phone calls, the findings of ICAC should be disregarded. Further, a criminal court had rejected the prosecutions made subsequent to the ICAC findings. This further undermined the reliance upon the ICAC findings.

2. He questioned the relevance of [NAME]'s report which had been prepared in relation to [NAME]. He rejected the idea that [NAME] had shown poor understanding of firearms. She had held a licence in the past. In any event this did not impact upon his own fitness.

3. The length of [NAME]'s finger nails did not impact upon his fitness. A positive inference should be drawn that he and [NAME] were people who could be trusted to store firearms properly - given [NAME]'s history of complying with firearms storage requirements.

4. There was a positive history in the household of storing firearms appropriately and this should be taken into account in his favour. It should be taken into positive account that he had taken a damaged firearm to Green Valley Police Station.

5. No weight should be given to photos which might have shown himself with [NAME] standing next to a dead boar as demonstrating that he had used his wife's firearms. There was no other evidence to support the idea that [NAME] might allow her husband and son to use her firearms.

6. Intelligence holdings alluded to had not been produced and he had not been given an opportunity to address them. There was no evidence of connection between [NAME]'s activities and himself.

7. He submitted that his criminal history did not prohibit him from holding a firearms licence. His most recent criminal offence was seven years ago and no conviction had been recorded. He submitted that his criminal history consisted of matters which had occurred too long ago; were trivial; for which he had received good behaviour bonds or which had been dismissed.

8. Generally speaking he was fit and proper and having licences both for firearms and under [NAME] was in the public interest.

9. He also wished to be heard should the Tribunal consider imposing a storage condition upon his firearms licence.

Respondent's submissions

Respondent's submissions in relation to the applications of [NAME]

1. The Respondent submitted that both [NAME]'s firearms application and his [NAME] applications had been rejected because he was not fit and proper and the grant would be contrary to the public interest. The Respondent noted that [NAME] had not addressed the [NAME]'s previous findings in 2012 that he was not a fit and proper person as set out in paragraphs 27 to 32 of the Panel's decision. [NAME] v Commissioner of [NAME] (No. 2) ([NAME]) [2012] NSWADTAP 6.

2. The Respondent referred to the evidence of [NAME] noting that [NAME]'s mobile phone and the keys for the firearms safe were stored on the same side of the bed - indicating that [NAME] continued to have control over the storage of the firearms. He had also noted [NAME]'s lack of knowledge about the individual firearms and her assertion that she only used them at the family farm in Mudgee.

3. There was a Samurai sword and a shorter sword between [NAME]'s side of the bed and the bedside table. 4. [NAME] had described the deceased [NAME] as a "friend" and "a nice person". [NAME] stressed the role of associates of [NAME] in the provision of firearms and ammunition to [NAME].

5. The Respondent referred to the evidence of [NAME]. She had noted [NAME]'s lack of knowledge about the firearms which were previously owned by [NAME]. [NAME] had not obtained a firearms licence until after [NAME] had lost his. She referred to [NAME]'s dominant personality. These factors meant that [NAME] continued to be in charge of the firearms. 6. [NAME] had links with [NAME] and [NAME] had his own links with [NAME]. While the serious indictable charges emerging out of the ICAC corruption findings against [NAME] had been dismissed by the District Court on 16th December 2013, there was no new evidence before the Tribunal in relation to [NAME]'s fitness and propriety.

7. The Respondent referred to the specific [NAME] requirements for a licence holder to be fit and proper. There was the same requirement in relation to firearms.

8. This was supported by the line of cases dealing with a person's fitness and propriety to hold a licence. The words fit and proper gave the widest scope for judgment and for rejection. Fitness for an office involved three things, honesty, knowledge and ability. The conduct of the person needed to be considered in light of the person's suitability for the specific task for which they were being licensed. The person needed to possess the requisite knowledge of the duties and responsibilities attached to the licence. They also needed to have sufficient moral integrity and rectitude of character as to permit the person to be safely accredited to the public. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; [COMPANY] v [NAME] (No. 2) [1955] HCA 28; (1955) 93 CLR 127 and Sobey v Commercial and Private Agents Board [1979] 22 SASR 70.

9. The Respondent referred to the Tribunal's findings in [NAME] v Commissioner of Police, [NAME] Service [2003] NSWADT 230 at [27]: "I note that a person may well be a fit and proper person to hold a taxi licence while at the same time not be a fit and proper person to hold a security licence. I agree with the view expressed by the Commissioner's delegate that the expression "fit and proper person" takes its meaning from its context. A higher standard is applicable to licensees in the [NAME] because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe."

1. The Respondent submitted that a higher standard is applicable to [NAME] licensees using the same rationale that has been applied to security officers. The objects of [NAME] included the overriding need to ensure public safety and the protection of property.

2. In relation to public interest the Respondent referred to the [NAME]'s statement concerning public interest in Police v Toleafoa [1999] NSWADTAP 9 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. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

1. The activities the person is to be involved in are relevant to the public interest. In this instance it was relevant that the objects and purposes of the [NAME] are regulation to protect the public and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity. [NAME] v Commissioner of Police, [NAME] [2005] NSWADT 130 2. The Respondent submitted that the public interest would not be served by [NAME] having either [NAME] or firearms licences.

3. The Respondent submitted that references which do not disclose an understanding in the referee of the person's offences – such as those accompanying [NAME]'s application, should be accorded little or no weight.

Findings of fact 1. The Tribunal must be satisfied of the case before it on the balance of probabilities, the standard set out under the Evidence Act 1995 section 140 as follows: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

Findings of fact in relation to [NAME]

1. The Tribunal had before it the findings of ICAC in its Report on corruption in the provision and certification of [NAME] training made in 2009. The Commission's findings at page 34 in relation to [NAME] are: "The Commission finds that [NAME], by arranging for [NAME] to obtain a false certificate of competency from [NAME] for the purpose of [NAME] obtaining a provisional security licence from the SIR, engaged in corrupt conduct on the basis that his conduct adversely affected, either directly or indirectly, the exercise of official functions by officers from the SIR (that is, those functions connected with the determination of [NAME]'s application for a security licence) and could involve fraud on his part and therefore comes within section 8 (2)(e) of the ICAC Act."

1. In his submissions, [NAME] has sought to challenge the ICAC findings before this Tribunal. Paragraph 47 of [NAME]'s written submissions sets out: "The findings made by the ICAC are tenuous and lacking proper foundation…….Significant weight was placed upon the telephone intercept material. It is submitted that without a proper testing of the participants to the phone calls, the findings made by ICAC should be disregarded. "

1. Elsewhere in his submissions to this Tribunal [NAME] alleges there was a lack of procedural fairness to him in ICAC's procedure.

2. The Tribunal notes that similar submissions were made to and considered by the [NAME] in its decision [NAME] v Commissioner of [NAME] (No. 2) ([NAME]) [2012] NSWADTAP 6.

3. These are set out as follows at paragraphs [15-22]: The appellant has pressed two points: one, his consistent denials of any complicity in [NAME]'s practices; and two, what he contends is, the forensic weakness of the adverse findings made by the ICAC. He has also relied on a large number of references from clients expressing satisfaction with the work of his then [NAME], many from the period 2000-2003. The clients included a number of major Sydney hotels. There is a set of further references from the 2009-2010 period including ones that referred to the adverse findings and expressed surprise. They include recent testimonials from a church and a [COMPANY] with which he has been associated. The appellant rejects the opinion expressed in the Commissioner's submissions that the contents of the recorded conversations can properly be interpreted as demonstrating that the appellant was aware of 'wide ranging corruption' at [NAME]. The submissions point out, we think properly, that the only evidence before the ICAC referred to the single set of events involving the appellant, [NAME] and [NAME]. We accept that there is no basis in the ICAC's material to which our attention has been drawn for attributing to the appellant any knowledge of 'wide ranging corruption'. In support of his case that he was unaware of any improper practice by [NAME], the appellant refers to the statement given to the ICAC by [NAME] (15 July 2009), at transcript p 481 of the ICAC's hearing. He notes that it only made two references to the appellant, each confined to the fact that the appellant introduced [NAME] to [NAME], but nothing further. The appellant was also critical of the procedure adopted by the ICAC at hearing, and asserted that only one of the three calls to which the appellant was a party was played to him by the ICAC when he gave evidence (the call of 10.38 am on 9 February 2009). The appellant rejected the Commissioner's submissions insofar as they might be seen as seeking to implicate the appellant in extraneous suspicious conduct involving [NAME] and [NAME]. [NAME] accepted as payment from [NAME] an opal said to be worth $3800-$4000, three times the usual cost of a training course, $1600. We accept that in the material to which our attention has been drawn there is nothing to indicate that the appellant was aware of this arrangement. As to the contents of the telephone conversations relied upon by the ICAC, the submissions note that they do not include any express statement by the appellant to the effect that he knew the certification practice was wrong and fraudulent. It is submitted that at the highest his statements only provide a basis for mere suspicion or speculation. The submission notes the absence of any questioning of the appellant from counsel assisting the commission or from the bench as to what awareness he had of the acceptability of certification practices of the kind in issue. The submission is that the ICAC failed to establish the foundation for its adverse findings.

1. Having considered [NAME]'s submissions the [NAME] concluded however at paragraph [26]:

26. In our view, this material supports an inference, and a prima facie case that he was aware, at the time he recommended [NAME] to enrol with [NAME], that he would be provided with the answers needed to meet the work book requirement, and that he was aware that the practice was improper and fraudulent.

27. He has not availed himself of the opportunity to give evidence in these proceedings to counter this inference. He has relied entirely on the submissions put on his behalf by counsel. We accept that he may see himself as having difficulty in co-operating in this way with our process given the possibility of criminal charges; and that he is entitled to exercise the privilege against self-incrimination. 1. [NAME] did not himself give evidence to this Tribunal and did not call witnesses. It was not possible to test the participants to the phone calls referred to in the ICAC hearing and findings - as suggested in his submissions. There is insufficient evidence before the Tribunal to cause it to contradict the ICAC findings, or the [NAME]'s reliance on those findings in 2012.

2. Accordingly this Tribunal is satisfied that [NAME] engaged in corrupt conduct as set out in the ICAC findings in 2009.

3. There has been no evidence put before the Tribunal by [NAME] going to his current honesty and integrity.

4. The Tribunal is satisfied that [NAME] has had association with a member of an outlawed motorcycle gang – the late [NAME] who was murdered. [NAME] has an association with [NAME] who is at least an associate of an [NAME]. Further, [NAME]'s son [NAME] who was previously living in the family home, has been found guilty of drug supply, together with [NAME] a Sergeant at Arms of the [NAME].

5. A Samurai sword and small dagger were found next to [NAME]'s side of the bed at the time of execution of the search warrant on the [NAME]'s home in April 2013. At the same time, batons were found next to [NAME]'s side of the bed. [NAME] is reported not to have explained why the batons were there. [NAME] is reported to have said he kept the sword and dagger there because he liked them. In the absence of further explanation, the Tribunal draws the inference that the items were on either side of the bed for protection. The Tribunal also draws the inference that Mr and [NAME] apprehended some risk to their safety.

6. The Tribunal is satisfied that [NAME] has a criminal history as set out in the Respondent's section 54 documents. The major part of [NAME]'s criminal history occurred prior to the last issue of a firearms licence to him in December 2007. That firearms licence was to have expired on 19th December 2012. There is only one matter in [NAME]'s criminal history which has occurred since the revocation of his category AB firearms licence on 6 January 2010. This is a matter which occurred on 15th July 2010 in which he was found guilty of drive with low range PCA and placed on a good behaviour bond for 12 months.

Relevant legislation in relation to [NAME] Inquiry Agents Act 2004 ([NAME])

1. The Commissioner refused [NAME]'s applications for a [NAME] operators and master licence on similar grounds to the refusal of a firearms licence. [NAME] was not fit and proper and it was not in the public interest to issue him with [NAME] licences.

2. The relevant provisions of [NAME] are section 7 in relation to a refusal of a masters licence and section 13 in relation to a refusal of an operators licence. They are expressed in identical terms. Applications for masters and operator licences must be refused if the Applicant is a disqualified individual or disqualified corporation.

3. A disqualified individual is defined relevantly in section 4(c) of [NAME] as an individual who, in the opinion of the Commissioner, is not a fit and proper person (whether because of subsection (2A) or otherwise) to hold a licence.

4. Section 4(2A) of [NAME] further defines a "disqualified individual" as follows: "an individual is not a fit and proper person to hold a licence under this Act if the Commissioner has reasonable grounds to believe from information held in relation to the individual: (a) that the individual is a member of, or regularly associates with one or more members of, a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012 , and (b) that the nature and circumstances of the individual's relationship with the declared organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the individual were to hold or continue to hold a licence under this Act."

1. Applications for masters and operator licences may be refused if the Applicant has been convicted or found guilty of a minor offence, or if the Commissioner is of the opinion that the grant of the licence would be contrary to the public interest.

Firearms application 1. The Commissioner relied on his powers to refuse an application for a firearms licence set out in section 11 of the Firearms Act 1996. The grounds were that [NAME] was not a fit and proper person (section 11(3) (a) and that it was not in the public interest (section 11(7)).

2. The Tribunal notes that section 11(3) (a) expresses a mandatory requirement for the Commissioner not to issue a licence unless the Commissioner is satisfied that the Applicant is fit and proper. At the same time, the Commissioner has a discretion not to issue a licence if the Commissioner considers it would be contrary to the public interest see section 11(7).

3. The Respondent's internal review decision of 24th April 2014 concludes that [NAME] is not fit and proper and that it is not in the public interest for him to be issued a firearms licence. The Internal Reviewer relied on the discretionary public interest grounds in refusing to grant [NAME] a firearms licence and not the mandatory fit and proper ground.

Consideration of "not fit and proper" - refusal of [NAME] licences 1. The High Court dealt with the phrase "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. "

1. In the same case, Mason CJ stated at [63] that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."

1. The content of fitness and propriety was defined in the matter of [NAME] & Vale in the High Court as having 3 components -"honesty, knowledge and ability." [COMPANY] v State of [NAME] [1955] HCA 28; (1955) 93 CLR 127 at para 9.

2. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

1. This Tribunal's synthesis of these requirements in this matter is that [NAME]'s fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it about [NAME]'s honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant.

2. The Tribunal also refers to [NAME]'s and the AIC case - see Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 and the Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65. The findings of the [NAME] in these matters indicates that some of the testimonials provided by [NAME] with his applications for review do not provide real value - given some of the the providers do not disclose a knowledge of the ICAC findings.

3. The findings of the Tribunal's [NAME] in the AIC case - see Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at 12 mean that the attestation to [NAME] being a fit and proper person must be positive and not simply a failure of the case against him to meet a reasonable doubt. Further, the judgement of a reasonably minded person is an important consideration in deciding whether [NAME] is now fit and proper.

4. The Tribunal notes the findings and decision of the [NAME] in 2012 to affirm the decision to cancel [NAME]'s [NAME] operators licence on the basis that he was not fit and proper.

5. In his application to the Commissioner on 5th March 2014 for an operators and master licence under [NAME] advised that the criminal conviction after the ICAC findings, entered on 2nd April 2013, was overturned in December 2013 and that he is now a fit and proper person. This Tribunal notes however that the decision of the [NAME] in 2012 that [NAME] was not fit and proper, did not rely on the prosecutions arising out of the ICAC findings to find that [NAME] was not fit and proper. Both the conviction and overturning of that conviction occurred after the [NAME] made its findings in 2012.

6. This Tribunal refers to the decision of the [NAME] in paragraphs 27 through to 32. [NAME] v Commissioner of [NAME] (No. 2) ([NAME]) [2012] NSWADTAP 6. [NAME] did not give evidence in the [NAME] proceedings. He claimed protection against self-incrimination in the [NAME] proceedings. 7. [NAME] did not give evidence in the current proceedings. He did not claim protection against self-incrimination in the current proceedings. This Tribunal is not aware of potential criminal proceedings in relation to [NAME]. The [NAME] noted [NAME]'s continued disinclination to give evidence and counted this against him in its own considerations.

8. Paragraph [28] of the [NAME]'s decision sets out an obligation of candour on a licensee in dealing with an administrator or decisonmaker: "However, the administration of occupational licences sits in a different part of the legal system to a criminal trial. Persons who hold licences have, as we see it, a duty of candour in relation to matters of concern to the administrator (and, on review, the review Tribunal exercising the powers of the administrator)." 1. [NAME] has not complied with this duty of candour by giving evidence before this Tribunal.

2. The current Tribunal has insufficient evidence to counter the previous findings of the [NAME] set out at paragraphs [30] and [31] of its decision. These found that [NAME] could not be regarded "for the time being" as a person fit to hold a security licence. The [NAME] left the door open for a different decision to be made in the future.

3. The [NAME] determined at paragraphs [30-31]: "30. We are left with a strong prima facie case, and an inference that has not been rebutted. There is a grave doubt as to the appellant's integrity and honesty. Without more, we do not accept that a person of his experience in the industry would have been unaware that [NAME] was wrong and fraudulent.

31. This conduct is so gross that he cannot be regarded for the time being as a person of integrity fit to hold a [NAME] licence, and nor can [NAME] of which he is a close associate be regarded as fit to hold a master [NAME] licence. For the same reasons, he can no longer be trusted to maintain a commercial and private agent's licence."

1. The findings as to [NAME]'s integrity and honesty and the grossness of his conduct have not been contradicted by any evidence placed before the Tribunal. The mere effluxion of time since the [NAME]'s 2012 decision is not sufficient in this regard. The Tribunal must be able to attest positively to [NAME]'s fitness and propriety.

2. The Tribunal does not have new evidence before it to suggest that [NAME] has regained his fitness and propriety to hold a [NAME] licence.

Fit and Proper and firearms licence 1. The [NAME] has previously found in 2012 that [NAME] is not fit and proper to hold a firearms licence. "32. The position in relation to the firearms licence is, perhaps, not as clear cut. This appears, on its face, to be a private, recreational licence rather than a business licence. But these cases have been conducted by both parties on common material and common arguments. We therefore reach the same conclusion in relation to the firearms licence". 1. [NAME] has not presented evidence to contradict this finding 2. The Respondent has not made specific submissions about [NAME]'s fitness and propriety to hold a firearms licence. The Internal Review refers to [NAME]'s corrupt conduct which was the basis for the ICAC findings. The Internal Reviewer concludes that this conduct clearly demonstrated that [NAME] cannot be trusted to be honest and truthful and to consistently obey the law. 3. [NAME]'s case also defines fitness and propriety in relation to firearms licensing, see [NAME] v Commissioner of Police, [NAME] Service [2003] NSWADT 254. At paragraph [22], Senior Member Higgins stated the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. "That is, s. 11(3) (a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace."

1. In [NAME] v Commissioner of Police [2000] NSWADT 28 the Tribunal's Deputy President, [NAME] considered the fitness and propriety of [NAME] to hold a firearms licence. The Deputy President stated at paragraphs [27 – 28]: "27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] would not pose a risk to public safety if he had access to firearms. 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." 1. [NAME] has no history of firearms offences. Since the revocation of his category AB firearms licence on 6 January 2010, [NAME]'s only offence occurred on 15th July 2010 in which he was found guilty of drive with low range PCA and placed on a good behaviour bond for 12 months. The Tribunal does not consider that this matter alone would justify refusal of firearms or [NAME] licences on the basis that [NAME] is not fit and proper. 2. [NAME] does however have a history of findings of corruption by ICAC in relation to the public licensing system in the [NAME]. The Tribunal notes that this demonstrates a lack of regard for the public licensing system in the [NAME].

3. There is a strict scheme of public regulation in relation to firearms possession set out in the Firearms Act 1996. The Tribunal cannot at present be satisfied that [NAME] would be observant of and compliant with this strict scheme of regulation.

4. Further as already noted, there is a requirement for the Tribunal to be positively satisfied of [NAME]'s fitness and propriety to hold a firearms licence. In the absence of [NAME]'s direct evidence on this issue, the Tribunal cannot be satisfied as to his fitness and propriety to hold a firearms licence.

Public Interest in relation to [NAME] licences 1. The Tribunal's findings in respect to whether the Applicant is fit and proper to be issued with [NAME] licences is enough to dispose of this application as a finding that the Applicant is not a fit and proper person gives rise to a mandatory refusal. However, in the event that the Tribunal is incorrect about this, the Tribunal has also considered the public interest ground of refusal.

2. Public interest was referred to by the [NAME] in Police v Toleafoa (1999) NSWADTAP 9 at [25]. This matter related to [NAME] licensing. "(Public interest) is an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended the public interest discretion to operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant objection."

1. The activities the person is to be involved in are relevant to the public interest. In this instance it is relevant that the objects and purposes of the [NAME] are regulation to protect the public and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity. [NAME] v Commissioner of Police, [NAME] [2005] NSWADT 130 2. The Tribunal considers that [NAME]'s integrity in relation to public regulation continues to be damaged by the ICAC findings of corruption in the [NAME]. He cannot be considered to be a person of integrity in relation to the objects of [NAME]. It is not in the public interest for him to obtain [NAME] licences in these circumstances.

Public Interest in relation to Firearms licence refusal 1. The Tribunal notes the description of "public interest" as embracing standards acknowledged to be 'for the good order of society and the wellbeing of its members' - see Director of Public Prosecutions v Smith (1991) 1 VR 63. Further the purpose of a reference to public interest is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for consideration. See Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at [p 681]

2. In [NAME] v. Commissioner of Police, [NAME] Service [2001] NSWADT 50), the Deputy President of the Administrative Decisions Tribunal, [NAME] discussed the discretion in relation to public interest at [23]: "There is no guidance in the legislation in relation to how these discretions should be exercised. In my view the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."

1. The underlying principles and objects of the Firearms Act are set out in section 3 :

3 (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) to facilitate a national approach to the control of firearms. 3 (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 in a safe and secure manner, (f) ……..

1. The Tribunal sets out below the oft quoted comments of [NAME] in [NAME]'s case see [NAME] v Commissioner of Police, [NAME] Service [2000] NSWADT 28 "27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether [NAME] is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that [NAME] would not pose a risk to public safety if he had access to firearms. 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."

1. In that matter the Deputy President's comments were made in the context of considering the Commissioner of Police's decision to revoke [NAME]'s firearms licence because of [NAME]'s fitness and propriety – not in relation to the public interest grounds under the Firearms Act. This Tribunal has already affirmed the decision to revoke [NAME]'s firearms licence on the basis of his fitness and propriety.

2. The Deputy President's comments on public safety and risk set out above in [NAME] have been extrapolated in other decisions to found a basis for refusing or revoking a firearms licence on public interest grounds because of the risk presented to public safety by the licence holder. The concept of risk to public safety underpins all of the grounds for refusal of firearms licences – whether it be because the Applicant is not fit and proper or whether the refusal is based on public interest. The principles of the Act focus on the need to ensure public safety.

3. The Tribunal considers that the maintenance of public confidence that the Firearms Act is being administered to protect public safety is a significant concern. In [NAME] v Commissioner of [NAME] ([NAME]) [2013] NSWADTAP 16 at [33] the [NAME] stated that: The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.

1. The Respondent's witnesses expressed concerns about: • [NAME]'s criminal conviction and his involvement with an [NAME]; • [NAME]'s connections with [NAME] members; and • the possibility of [NAME] using associates to obtain access to firearms.

1. The Tribunal has drawn an inference that Mr and [NAME] have kept weapons in their bedroom in response to a perception of risk. [NAME]'s son, [NAME], a resident of the home has been engaged in criminal enterprise with an [NAME] member. [NAME] counted a deceased [NAME] member as a friend.

2. There is no certainty that public safety would be compromised were [NAME] to have licensed access to firearms. This is not the test. The Tribunal considers that the circumstances described above create an objective risk to public safety were [NAME] to have access to firearms.

3. Further it is in the public interest for members of the public to have confidence that the firearms licensing scheme is being administered in the overriding interest of public safety. In these circumstances the Tribunal cannot be satisfied that the public interest in ensuring safety can be met if [NAME] is now licensed to possess firearms.

Decision The Tribunal affirms the Respondent's decisions to refuse [NAME] licences under [NAME] and the Firearms Act. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of [NAME]. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2023