ALQ June 2022 Merits review

Issue: June 2022

Merits Review decisions

Tribunal affirms firearm prohibition order against former senior leader of Comanchero Outlaw Motorcycle Gang

Access the decision: Tukel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 104.

The applicant, a former senior member of the Comanchero outlaw motorcycle gang (OMCG), sought review of the decision of the respondent to make a firearms prohibition order against him pursuant to s. 73(1) of the Firearms Act 1996 .

At issue was whether the applicant was 'not fit, in the public interest, to have possession of a firearm'.

The applicant submitted that he had severed his association with the Comanchero OMCG in 2016 and that he was not currently associated with any OMCG or organised criminal group.

The respondent submitted that the applicant continued to voluntarily associate with prominent and senior members of the Comanchero OMCG and that this ongoing association created a danger to public safety and public protection.

The Tribunal found: that because the applicant continued to associate with senior members of the Comanchero OMCG; this association might be a source of public risk in relation to firearms possession; and, that, given the applicant's former roles within the Comanchero OMCG, there was a real and significant risk that the applicant would be involved in serious crime related activities.

It affirmed the respondent's decision.

Education and care services: cancellation for inactivity

Access the decision: Forever Family Day Care v Secretary, Department of Education [2022] NSWCATAD 185.

The applicant sought administrative review of the Secretary's decision cancelling the applicant's provider approval to operate a family day care service pursuant to s. 31(f) of the Children (Education and Care Services) National Law 2010 ("the National Law") because it had not operated any education and care service for a period of more than 12 months. Three questions arose for consideration in the Tribunal: a question of fact as to whether the applicant had provided care of any kind to children in the relevant period on two alleged occasions; a question of law as to whether the provision of care on two occasions amounted to the provision of an education and care service; and, a question of discretion as to whether the applicant's provider approval should be cancelled.

The Tribunal found for the applicant on the question of fact but found for the Secretary on the question of law. The applicant had not operated on a regular basis and it was not sufficient that the applicant subjectively intended to resume operations in the future if it obtained a subsidy from the Commonwealth. The Tribunal upheld the cancellation of the applicant's provider approval, having regard to the long period of inactivity in the applicant's operation.

If you have any questions about the contents of this newsletter, please contact john.mcdonnell@cso.nsw.gov.au.

Other decisions in this issue

 

Last updated:

16 Nov 2022

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