Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DWE v Commissioner of Police [2021] NSWCATOD 19 Hearing dates: 25 September 2020 Date of orders: 11 February 2021 Decision date: 11 February 2021 Jurisdiction: Occupational Division Before: D Dinnen, Senior Member Decision: The decision under review is affirmed Catchwords: ADMINISTRATIVE LAW – occupational licensing – security licences – criminal offences – serious conduct – honesty – discrimination – public interest Legislation Cited: Administrative Decisions Review Act 1997 Anti-Discrimination Act 1997 Crimes Act 1900 Disability Discrimination Act 1992 (Cth) Mental Health (Forensic Provisions) Act 1990 Mutual Recognition (Automatic Licensed Occupations Recognition) Act 2014 Security Industry Act 1997 Security Industry Regulation 2016 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55 Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 McMicking v Commissioner of Police, NSW Police Force [2014] NSACATOD 95 Sitotaw v Commissioner of Police, New South Wales Police [2006] NSWADT 96 Sobey v Commercial Agents Board [1979] 22 SASR 70 Texts Cited: None cited Category: Principal judgment Parties: DWE (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self Represented) Office of the General Counsel, NSW Police Force (Respondent) File Number(s): 2018/00227059 Publication restriction: Applicant's name to be identified by pseudonym 'DWE' reasons for decision Background 1. The Applicant, referred to under the pseudonym 'DWE', was issued with a Class 1ABCE licence and Class MA Individual master security licence in June 2017 pursuant to the Security Industry Act 1997 ("the Act") and the Mutual Recognition (Automatic Licensed Occupations Recognition) Act 2014 on the basis that the Applicant then held equivalent Queensland security licences. 2. On 1 June 2018 the Commissioner of Police revoked the Applicant's security licences on the basis that he was charged with serious criminal offences, involving allegations of indecent assault and sexual intercourse with a child between the ages of 10 and 14 years old ("the Revocation"). The Notice of Revocation of Licence was served on the Applicant on 8 June 2018. 3. By letter dated 18 June 2018 the Applicant sought an internal review. On 29 June 2018 the Respondent affirmed the decision to revoke the Applicant's licences ("the reviewable decision"). Both decisions relied on grounds of revocation provided by s 26(1)(d) of the Act and cl 25(1) of the Security Industry Regulations 2016 ("the Regulations"), that it would not be in the public interest for the Applicant to continue to hold a licence. On 23 July 2018 the Applicant sought review of the reviewable decision in this Tribunal, and sought a stay which was refused on 8 August 2018. Both licences have since expired. 4. On 5 December 2019 the criminal charges underlying the revocation decision and the reviewable decision were finalised by the Children's Court, by the Applicant pleading guilty to three charges of indecent assault upon a person under the age of 16 years pursuant to s 61M(2) of the Crimes Act 1900, which were then dismissed under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 ("the Mental Health provisions"). The other charges were withdrawn. Legal Principles 1. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. The Tribunal is tasked by s 63(1) of the Administrative Decisions Review Act 1997 to make the correct and preferable decision based upon the material then before it. 2. Section 11(1) of the Act sets out the authority conferred by Class 1 licences as follows: 1. Class 1A—authorises the licensee to patrol, protect or guard any property while unarmed (and whether while static or mobile); 2. Class 1B—authorises the licensee to act as a bodyguard or to act in a similar capacity; 3. Class 1C—authorises the licensee to act as a crowd controller or to act in a similar capacity; 4. Class 1E—authorises the licensee to patrol, protect or guard any property while carrying on monitoring centre operations 1. Section 4(2) of the Act sets out the following definition of a 'crowd controller': …crowd controller means a person who, in respect of any licensed premises (within the meaning of the Liquor Act 2007), public entertainment venue or public or private event or function, as part of his or her regular duties performs for remuneration any of the following functions: (a) controlling or monitoring the behaviour of persons, (b) screening persons seeking entry, (c) removing persons for behavioural or other reasons, (d) any other function prescribed by the regulations. 1. A Class MA Master licence authorises the holder (who is self-employed and who holds a class 1 or class 2 licence, or both) to provide his or her services to carry on security activities. 2. Part 2 Division 3 of the Act provides for licencing procedure and criteria. Section 15 provides for general suitability criteria in the areas of age, competency and residency rights relating to employment, amongst other general criteria. Relevantly section 15 provides: 15 Restrictions on granting licence—general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant ................... (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. ………….. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6). 1. Section 26 of the Act deals with the revocation of security licences: 26 Revocation of licence (1) A licence may be revoked: (a) (Repealed) (b) if the licensee: (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or the renewal of the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) (Repealed) (d) for any other reason prescribed by the regulations. (1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it. (3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. Note. Section 31 requires the licensee to immediately surrender the licence if the licence is revoked. (4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect. (5) For the purpose of determining whether a licence should be revoked under subsection (1A), the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the licensee that: (a) is relevant to the activities carried on under the class of licence held by the licensee, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the licensee continues to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the licensee continues to hold the licence. (6) The Commissioner is not, under this or any other Act or law, required to give any reasons for revoking a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (5). (Emphasis added) 1. Clause 25 of the Regulations states 25 Revocation of licence-additional reasons: section 26 (1) (d) For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it. Fit and proper 1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Toohey and Gaudron JJ said at 380: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. In Sobey v Commercial Agents Board [1979] 22 SASR 70 Walters J said at 76: In my opinion, what is meant by [the expression fit and proper] is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, 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, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 1. A person's fitness is to be considered in the light of the activities that the person will undertake. Fitness with respect to an office is said to involve honesty, knowledge and ability: see Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156 - 7. Public interest 1. The Courts and the Tribunal have 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 and Others (1995) 131 ALR 657, Wilcox CJ and Keely J said at 681: 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. 1. In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. 1. The Tribunal has also found that an applicant's personal interest in retaining his or her licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry (Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at [32]). 2. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] the Appeal Panel held: 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 concept of the 'public interest' was discussed by the Tribunal in Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 at [25] as follows: The 'public interest' is an inherently broad concept giving an appellant [the Respondent] 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 in the same section [section 15], it is reasonable to infer that the parliament intended that the public interest discretion operated 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 Tribunal has determined that the 'public interest' embraces the high standards expected of security licence holders. In McMicking v Commissioner of Police, NSW Police Force [2014] NSACATOD 95 the Tribunal discussed the concept of the 'public interest' in the context of revocation of a security licence: 113 In Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 at 47, JM Montgomery analysed the objects of the SIA, and the public interest to be served in exercising the discretion to revoke a licence on public interest grounds: The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted Accordingly, the objects and purposes of the Act are relevant, that is, the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130 The security industry has a special role ensuring that public order is maintained, safeguarding community assets and private property and ensuring that public venues are safe Haining v Commissioner of Police [1999] NSWADT 6. 114 In the matter of Naylor v Commissioner of Police NSW Police Force [2014] NSWCATOD 43, SM Molony referred to the Second Reading Speech accompanying the introduction of the SI Act: On the introduction of the SI A, Mr Gaudry, Parliamentary Secretary, in the NSW Legislative Assembly on 12 November 2002 said at page 6544 of Hansard: The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security. 115 In the matter of Nakad v Commissioner of Police NSW Police Force [2013] NSWADT169, JM Isenberg said at 57: The Security Industry Act 1997 was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard Feuerstem v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11]. 1. The Tribunal has also held that the discretion should be exercised in such a way as to promote the objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23]. Consideration 1. The final disposition of the Applicant's criminal charges by the Children's Court on 5 December 2019 removed from the Tribunal's potential consideration the 10 year and 5 year 'mandatory disqualification' provisions of s 16(1)(a), (b) of the Act and clause 15(1)(c) of the Regulations. Nevertheless the Applicant's conduct the subject of those charges is still relevant to whether the Applicant is a fit and proper person, and whether it is in the public interest for him to hold a security licence. As noted by the Appeal Panel in Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55 at [20]: …It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. 1. The Respondent submitted that the Tribunal should affirm its decision on the following bases: 1. The serious nature of the conduct involved in the indecent assault of the victim, subject of the criminal charges; 2. The subsequent dishonesty displayed by the Applicant; and 3. The Applicant's mental condition. The conduct 1. The Respondent submitted that the serious nature of the Applicant's conduct subject to the criminal charges fell within one of the (limited) classes of offences that Parliament has specifically identified as being of particular adverse relevance to persons seeking or holding security licences, because of the functions of those licences. 2. In relation to the Applicant's conduct, the Respondent relied on the Agreed Facts tendered to the Children's Court, the victim's account presented in the transcript of a police interview with the victim which was recorded a few days after the incident occurred in January 2015, references to the conduct as recorded in a psychological evaluation prepared for the Applicant's criminal proceedings, and the Applicant's own account submitted in relation to a firearms application. 3. The Applicant was initially charged with: 1. Two charges under the Crimes Act 1900, section 61M(2): Indecent assault person under 16 years of age; 2. Three charges under the Crimes Act 1900, section 66C(1): have sexual intercourse with person aged 10 years or over and under 14 years; 3. One charge under the Crimes Act 1900, section 66D: attempt to have sexual intercourse child over 10 under 14 years. 1. The Applicant pleaded guilty to three charges under the Crimes Act 1900, section 61M(2): Indecent assault person under 16 years of age, and the other charges were withdrawn. The Agreed Facts tendered with respect to those pleaded charges contains the following information, in more specific and fulsome detail than is necessary to repeat for these proceedings: 1. The Applicant was 17 years old at the time of the offence in early 2015. The victim was 12 years old. 2. The Applicant and the victim met online via a social media app in late 2014/early 2015. The victim had used her actual name for her profile and had selected her age at registration as being 16, but had also included "I am actually 12" in her profile description. 3. The communications between the Applicant and the victim quickly became sexual in nature and the Applicant sent the victim a picture of his penis, which the victim objected to. 4. After communicating for a relatively short period of time, the Applicant and the victim arranged to meet in person. The Applicant went to the victim's house and indecently assaulted her. After the Applicant left, the victim called police who attended her home and obtained fingerprints. The victim was taken to a hospital where she underwent a forensic sexual assault investigation procedure, and swabs were taken for DNA analysis. 5. In 2017 the Applicant's fingerprints were captured for the purpose of his security licence application. Those fingerprints were matched in the national fingerprint database with the fingerprints taken from the victim's house in early 2015. 6. In May 2018 investigators contacted the Applicant and requested he attend Coffs Harbour police station in relation to a sexual assault investigation. The Applicant attended the Coffs Harbour Police Station on 30 May 2018 and was arrested. He participated in an electronic record of interview during which he denied ever meeting the victim, attending her house, or assaulting her. He did not provide any explanation as to how his fingerprints were located within her home on the day of the assault. 7. The applicant provided a buccal swab which was analysed. The DNA from that swab matched the DNA obtained from the victim's body and clothes after the assault. 1. In the criminal proceedings the Applicant relied on a psychological evaluation report, diagnostic assessment by Autism Spectrum Australia, and a treatment plan to support an application that the charges be dealt with under the Mental Health provisions, which was accepted by the Court. The psychological evaluation report contained references to the Applicant's conduct which were accepted by him, stating "He was able to recall the index offences clearly and was willing to discuss them in detail. He did not dispute the agreed facts but added some contextual information…", including that he claimed to have not realised the victim was 12 years old. 2. The Applicant's evidence and submissions in these proceedings in relation to his conduct in 2015 were similar to that referred to in the psychological evaluation report relied on in his criminal proceedings. He described a history of childhood neglect and abuse, an unusually isolated upbringing without socialisation or formal education, and the impact this had on him once he left his parents' home at age 15. His contextual submissions were to the effect that at the time of the offences he was traumatised, naïve, and inexperienced in appropriate social conduct and relationships. He also submitted that the Agreed Facts were not, in fact, agreed by him, that he could not initially recall any details of the offences which is why he had denied them to the Police at interview, and that he had made an "honest mistake" as to the age of the victim: The facts are not exactly as was described in the agreed facts as I had to make some compromise when reaching a plea agreement, therefore the original agreed facts are not a completely accurate description of what happened… After reading the brief of evidence and seeing photographs of the house I was able to recall a lot more detail, some things I remember in great detail however there are other's which I have great difficulty remembering. I clearly recall [the victim]'s height… I have no recollection of some other details such as what she was wearing, her hair colour or style. I'm not sure whether my lack of recollection in some areas is a result of the fact that I met [the victim] more than 5 years ago or whether I have forgotten certain things due to the fact that it was not particularly a pleasant experience… I made an honest mistake with regards to the age of [the victim], while I believe that any reasonable person in my situation likely would have made the same mistake, I do acknowledge that there may be a causal relationship between my early life and the mistake that I made with relation to the index offense. 1. The Applicant submitted that he had intended to run a defence of "honest and reasonable mistake" in the criminal proceedings on the basis that the victim looked older than 12 years old. He also explained in his submissions relating to his conduct that he had learned from his mistakes: … Mistakes I've made in the past have enlightened me to the nature of society, particularly the fact that girls frequently lie about their age which is why I am a lot more careful with anyone I meet and I take steps to make sure there is no chance of making such a mistake again. I am aware that females frequently make up elaborate stories seemingly with no reasonable explanation as to why, therefore I am careful to make sure I don't put myself in any situation where someone would have the opportunity to make false statements about myself in the future. 1. In relation to his fitness and propriety to hold a security licence, the Applicant submitted that: "…the fact that I did hold a security licence for I think it was about a year in New South Wales and a number of years in other States, I have never had any issues with a security licence. In performing my duties there has never been any complaints made against me or anything like that. So, and this matter was something that happened when I was a child, it shouldn't affect my ability to perform the duties as a security officer at all. 1. Under cross examination the Applicant was questioned about various police reported events which occurred before he turned 18 years old, including incidents involving his possession of a taser, apprehended violence orders against him for abusive emails to a 15 year old girl, using stolen number plates, breaking and entering, and possession of other prohibited weapons for which he was cautioned by police. His explanation for that conduct generally was: I would just say that I have made a lot of mistakes as a child that I've learnt from. 1. The Applicant was also questioned about an incident which had occurred in June 2019 in which he had arranged to meet someone he had been interacting with on Tinder, and had instead been met, threatened and shot at by an aggressive man, which he had assumed was the result of him seeking repayment of a sum of money owed to him by an ex-girlfriend. 2. I do not consider the incident of June 2019 to have any bearing on the Tribunal's consideration of the Applicant's conduct in relation to his fitness and propriety. However, the other incidents relied on by the Respondent are relevant to the Tribunal's consideration of the Applicant's conduct, irrespective of them occurring when the Applicant was a minor. 3. I accept the Respondent's submissions that the Agreed Facts and the Applicant's own account demonstrate the serious nature of the Applicant's conduct. The other evidence referred to by the Respondent, being the victim's account as recorded in a transcript of interview and the Applicant's record of interview, are of limited relevance to the Tribunal's findings in relation to the Applicant's conduct, but are of more relevance to the Applicant's dishonesty, which I will address below. 4. The Applicant sought to diminish the seriousness of his conduct and to deflect responsibility from himself onto the victim, or others, throughout his oral and written "contextual" evidence and submissions. It was his parents' fault for his upbringing, or the victim's fault because she looked older than 12, or his flatmate's fault, or the fault of unnamed others who had threatened him which meant that he possessed prohibited weapons, or his lawyer's fault for pleading to the wrong charges. These deflections demonstrated to me that he has not, in fact, "learned from his mistakes", and that he does not seriously consider his conduct to have been improper, understand the seriousness of that conduct, or its impact on this application. Applicant's dishonesty 1. The Respondent submitted that the Applicant's interview with police on 30 May 2018 demonstrated the Applicant's dishonesty, which impacted on his fitness and propriety to hold the relevant security licences. Whilst the reviewable decision did not rely on the Applicant's fitness and propriety, it remains a relevant consideration for the Tribunal in determining whether the Applicant holding security licences is in the public interest. 2. Initially when contacted by police in relation to the sexual assault allegations on 3 October 2017, the Applicant stated "I don't remember much" and "It was some time ago", and declined to be interviewed. Following the issue of a warrant in May 2018 the Applicant attended the Coffs Harbour Police Station on 30 May 2018 and participated in a recorded interview. 3. During that interview the Applicant repeatedly denied any knowledge or recollection of the assault, denied ever meeting the victim, and claimed to have no recollection of any of the associated circumstances. Despite his professed lack of recollection during the interview on 30 May 2018 he ultimately agreed to the relevant facts as included in the Agreed Facts in the criminal proceedings, and volunteered additional contextual information to the psychologist who prepared his mental health evaluation. His explanation during hearing for this inconsistency was that he had "compromised on the agreed facts to get a plea agreement", but this doesn't explain his entire lack of recollection during the interview in contrast with the information he provided to the evaluating psychologist, and the clear and detailed account of the incident, and the events leading up to it which he volunteers in separate correspondence to the Respondent's Firearms Registry. 4. The Applicant's submission in relation to his honesty at interview on 30 May 2018 was to the effect that he had been coerced or otherwise misled into providing an interview. I do not accept that submission on the evidence provided by the Respondent, being the audio and video recordings of the interview and its transcript which include the formal warnings and cautions provided to the Applicant at the time, and the custody management records which include the Applicant's acknowledgement. In any event, it would only account for the giving of the interview, not the answers provided therein. I agree with the Respondent's submission that the Applicant's responses during the recorded interview demonstrate a lack of honesty. 5. The Respondent submitted that the Applicant's lack of disclosure and candour in other specific circumstances further demonstrated his lack of honesty. The Applicant accepted in cross examination that he did not disclose the full extent of his criminal history to the Firearms Registry when making an application for a firearms licence, stating that this was because he did not believe it needed to be disclosed since the history occurred when he was a child. He also accepted that had failed to provide full details of his criminal history or relevant information about the incidents described above at 32 and 33 to the clinical psychologist who conducted an assessment for the purpose of his firearms licence application. I therefore accept the Respondent's submissions in relation to the Applicant's lack of honesty. Applicant's mental health 1. The Applicant's pleas of guilty in the criminal proceedings were dealt with under the Mental Health provisions. The Respondent submitted that the medical evidence considered under the Mental Health provisions in the criminal proceedings demonstrated the Applicant's lack of fitness to hold the relevant licence, namely that the Applicant's autism and his difficulties with social awareness and social interactions limited his ability to perform the work authorised by the security licences he sought. 2. The Respondent relied on a Confidential Psychological Evaluation ("CPE") prepared by psychologist Thea Gumbert-Jourjon, Diagnostic Assessment ("DA") for DWE prepared jointly by Nicole Mathieson and Dr Fiona Aldridge at Autism Spectrum Australia, Treatment Plan Recommendations by Elias Lazos at Legal Aid NSW, and a Treatment Plan signed by Dr Cheryl Choong. The CPE draws on information contained in the DA. 3. The CPE included the following relevant observations: The Applicant displayed deficits in social communication in terms of reciprocal conversation, gesturing and understanding social cues and expectations He often required prompts to elaborate on brief or concrete responses The Applicant has a history of anxiety and difficulties with social adjustment He found it difficult to go out, be in crowds, or talk to people he did not know. He is still impacted by social anxiety A Depression, Anxiety and Stress Scale assessment indicated that he was in the "Mild" range for depression symptoms; in the "Severe" range for Anxiety; "Normal" range for stress. The DA indicated a diagnosis of 299.00 Autism Spectrum Disorder which would require "substantial support" for social and communication difficulties. The Applicant has ongoing and significant distress associated with features of social and generalised anxiety. 1. The Respondent submitted that the social limitations associated with the Applicant's medical conditions were relevant to his capacity to deal with the inherent demands of a class 1ABCE security officer. 2. The Applicant submitted that: My autism spectrum disorder affects my ability to engage in social activities and impacts the forming of personal relationships, however, this has never impacted my ability to perform any duties associated with providing security services and there is no reason why this diagnosis would have any effect on such abilities in the future. 1. The Applicant relied on reports prepared by Darren Bartlett, Clinical Psychologist, and Kyle Bodenham, occupational therapist. Mr Bodenham's report contains some of the Applicant's self-reported history in relation to his upbringing and is focussed on the development of his social skills. It makes no mention of the Applicant's criminal charges or criminal proceedings, any of the other conduct or honesty issues raised by the Respondent, and does not refer to any of the criteria for a security licence relevant to these proceedings. I therefore do not consider it relevant and do not take it into account. Mr Bartlett's report does refer to the Applicant's criminal proceedings but, as mentioned above at 41, the Applicant did not provide Mr Bartlett with all appropriate and relevant information to support his assessment, and so Mr Bartlett's report is of limited utility. 2. With reference to the Applicant's diagnosis of Autism Spectrum Disorder and previous diagnoses of Social Anxiety Disorder and Panic Disorder, Mr Bartlett noted that "neither of these [diagnoses] are presently contributing to a mental state which would pose a major risk to public safety should DWE be licensed to use firearms". However, the question before the Tribunal in these proceedings is not whether the Applicant's conditions pose a "major risk to public safety", and the considerations for the safe use of a firearm are separate and distinct from the functions and responsibilities of a Class 1ABCE security licence. 3. None of the medical evidence available to the Tribunal addresses the Applicant's suitability to hold the relevant security licences. Whilst there is evidence in the CPE and DA of his social limitations and difficulties there is no medical opinion on the Applicant's capacity and ability (or lack thereof) to fulfil those inherent requirements of the work for which those licences are required. I therefore make no findings as to whether or not the Applicant's conditions have any impact on his ability to carry out the inherent requirements of a Class 1ABCE security officer and I cannot accept the Respondent's submission that the Applicant's autism has any bearing on whether he is a fit and proper person to hold the relevant licence. 4. The Applicant submitted that it would be discriminatory for his licence to be revoked or refused on the basis of his diagnosis of Autism Spectrum Disorder, pursuant to s 19 of the Disability Discrimination Act 1992 (Cth). That provision makes discrimination on the basis of disability unlawful by "qualifying bodies" in conferring, renewing, extending, revoking or withdrawing an authorisation or qualification that is needed for or facilitates the practice of a profession. The Respondent submitted that s 19 was limited by s 12(6) to the exercise of a power under Commonwealth law, which the Respondent's decision is not. However s 49J of the Anti-Discrimination Act 1977 (NSW) is a similar provision relevant to State based "qualifying bodies". Unlawful discrimination is excluded by operation of s 49J(2) where the person, because of his or her disability, would be unable to carry out the inherent requirements of the profession, trade or occupation. 5. The Respondent submitted that the Applicant's licence revocation would fall under that exclusionary provision, namely that any disability discrimination by the Respondent as a qualifying body revoking the Applicant's licence would not be unlawful because the Applicant's disability impacted his ability to carry out the inherent requirements of the job. However, the Respondent emphasised that the reviewable decision was not made on the basis of the Applicant's disability, limitations resulting from his condition, or any inherent requirements of the security licence. As the Applicant's security licences were not revoked because of his diagnosis of autism spectrum disorder, or any of its characteristics, including his difficulties with social awareness or interactions, it is not necessary for me to consider or make any finding as to whether the Respondent's decision contravenes discrimination legislation. Conclusion 1. The offences to which the Applicant pleaded guilty are of particular adverse relevance to persons seeking or holding security licences, because of the functions of those licences. A security licence places its holder in a position of authority and power, in circumstances in which there are often heightened risks of aggression and physical altercation. It is a position requiring the public's trust. 2. In Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 the Tribunal commented, at [11]: the Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high degree. 1. In Sitotaw v Commissioner of Police, New South Wales Police [2006] NSWADT 96, the Tribunal noted at [35]: It is well established that a person's fitness and propriety must be considered in the context of the activity for which the person is licensed (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond (supra)). In this regard as pointed out by the Tribunal in Haining v Commissioner of Police [1999] NSWADT 6 and followed in Toleafoa (No) 2 v Commissioner of Police [2000] NSWADT 48, the security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the private and public venues are safe. 1. Although the Applicant's criminal conduct occurred when he was a minor, it cannot be ignored in circumstances where the offending was serious and there is no or minimal evidence of rehabilitation, personal responsibility or insight. The Applicant asserted that he had "learned from his mistakes", but there was no evidence to support a finding that he had, in fact, done so, or that he had even recognised the serious and improper nature of his conduct. His written submissions that "girls frequently lie about their age" and "I am aware that females frequently make up elaborate stories seemingly with no reasonable explanation as to why" as the basis for why he was "a lot more careful with anyone I meet" conflict with any finding that he had realistically "learned from his mistakes". 2. These submissions also do not imbue the Tribunal with any confidence that the Applicant could or should be able to exercise power or authority over members of the public as a holder of a Class 1ABCE security licence. His lack of honesty and his deflection of personal responsibility for his conduct furthers that concern and diminishes any possibility that the Applicant should be in a position of public trust or confidence. The Applicant's lack of rehabilitation following serious criminal conduct and his dishonesty additionally demonstrate that he is not a fit and proper person to be the holder of the relevant security licences. 3. In the circumstances I find that it is not in the public interest for the Applicant to hold a Class 1ABCE security licence, or a Class MA Individual master security licence. The correct and preferable decision is therefore to affirm the reviewable decision. Orders 1. The decision under review is affirmed. ********** 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 Amendments 11 February 2021 - Paragraph 43 Applicant anonymised 11 February 2021 - Paragraph 48 Applicant is anonymised 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: 11 February 2021