Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Scott v Commissioner of Police, New South Wales Police Force [2022] NSWCATOD 154 Hearing dates: 4 May 2022 Submissions closed 19 May 2022 Date of orders: 24 November 2022 Decision date: 24 November 2022 Jurisdiction: Occupational Division Before: C Mulvey, Senior Member Decision: (1) The decision under review to revoke Mr Scott' licence is set aside. Catchwords: SECURITY LICENCE – revocation of licence – fit and proper person – public interest - Security Industry Act 1997 Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Crimes (Sentencing Procedure) Act 1999 Security Industry Act 1997 Security Industry Amendment Bill 2002 Security Industry Regulation 2016 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 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 Ors (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151 Haining v Commissioner of Police [1999] NSWADT 6 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Jovanovic v Commissioner of Police, New South Wales Police Force, [2010] NSWADT 115 McDonald v Director General of Social Security (1984) 1 FCR 354 at 357 Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169 O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130 Saliba v Commissioner of Police, New South Wales Police Service [2002] NSWADT 55 Sitotaw v Commissioner of Police, New South Wales Police [2006] NSWADT 96 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Category: Principal judgment Parties: Michael Wayne Scott (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Solicitors: Applicant (Self-represented) Office of the General Council (Respondent) File Number(s): 2021/00348218 Publication restriction: None REASONS FOR DECISION Background Facts 1. This is an application from Mr Michael Scott for the Tribunal to review a decision made by the Commissioner of Police, NSW Police Force ("the Commissioner"), the Respondent, to revoke his class 1ACE 2BC security licence. 2. Mr Scott has held a security licence for over 20 years. His class 1AC security licence was issued on 1 May 2001 and was due to expire on 18 February 2022. On 22 July 2019, he was issued with a Class 1E 2B and 2C security licence and was due to expire also on 18 February 2022. His security licence was issued under the provisions of the Security Industry Act 1997 ("the Act"). On 15 September 2021, the Commissioner determined to revoke Mr Scott's security licence. This was because the Commissioner decided that he was not a fit and proper person to hold the security licence and it appeared not to be in the public interest for him to do so. 3. On 5 October 2021, at the request of Mr Scott, the Commissioner's delegate internally reviewed the 15 September 2021 decision and decided to affirm the decision. It is this Internal Review Decision which is the subject of administrative review by the Tribunal. 4. A Class 1AC licence authorises the holder to: 1. Patrol, protect or guard any property while unarmed (and whether while static or mobile); and 2. Act as a crowd controller or to act in a similar capacity. 1. A Class 1E 2B and 2C licence authorises the holder to: 1. Sell, maintain, repair and install security related equipment; and 2. Carry on monitoring centre operations. 1. In deciding to revoke the security licence, the Commissioner took into account the following: On 9 September 2021, you appeared at the Hornsby Local Court with respect of the charge, 'Attempt to or Obtain Driver Licence by False Statement Etc. You were found guilty without a conviction being recorded and you were given a Conditional Release Order for a period of 12 months commencing on 9 September 2021 and concluding on 8 September 2022. On 8 April 2021, you appeared at the Hornsby Local Court with respect 2 counts of 'Drive Motor Vehicle During Disqualification Period - 2nd +Offence. You were found guilty without a conviction being recorded and you were given a Conditional Release Order for a period of 2 years commencing on 8 April 2021 and concluding on 7 April 2023. On 27 October 2020, you appeared at the Downing Centre Local Court with respect of a charge of 'Drive With Middle Range PCA - 2nd + Offence. You were convicted and Fined $770. You were disqualified from driving from the 27 October 2020 until 27 October 2025 and you were ordered to fit an interlock device to your vehicle. On 16 January 2021, you applied to have your driver's licence renewed after serving a period of disqualification for driving with a Mid range Prescribed Concentration of Alcohol. You obtained a Licence application form and completed all relevant entries as required. Upon reaching Question 6 of the document, you were asked, "Do you have a disqualification, cancellation, suspension or pending charge against you in NSW or elsewhere, or is your licence subject to an appeal for driving, riding or Maritime boating offences?" In respect of this question, you marked the box stating "Yes", disclosing only the "Mid Range Prescribed Concentration of Alcohol" offence. You signed a declaration at the bottom of the application declaring the contents of the application true and correct. You failed to mention the offences still before the courts, therefore Transport for SW relied on your truthful declaration and were denied the ability to make an accurate assessment of your driver licence application. Therefore, you falsely obtained a SW Drive Licence. On 18 September 2021, the Notification of Revocation of Licence was served on you by personal service. 1. Mr Scott has provided an explanation for each offence and the subsequent outcomes after he appeared before the Local Court of NSW. Mr Scott was sentenced in each matter under s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) ("CPSA"), which included a conditional release order. The 2020 Mid-range PCA he was fined $770, disqualified from driving and required to participate in the alcohol interlock program for twelve months. The 2020 drive whilst disqualified, he was sentenced under s 9 of the CSPA and conditionally released without conviction for 2 years. In 2021, for the charge of attempt to or obtain driver licence by giving false information he pleaded guilty and was sentenced under s 9 of the CSPA conditionally released without conviction for twelve months. 2. On 8 December 2021, Mr Scott applied for administrative review by the Tribunal. Nature of proceedings 1. The Tribunal has jurisdiction to determine this matter pursuant to s 29(1)(c) of the Act. 2. The Tribunal undertakes a review of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute it with another decision. Section 63(1) of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") provides that the Tribunal must determine what is the correct or preferable decision. 3. The Tribunal makes its own decision in place of the Commissioner's, and "there is no presumption that the decision of the [Commissioner] is correct. " See Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 at 77 and McDonald v Director General of Social Security (1984) 1 FCR 354 at 357. The Issue 1. The issue for the Tribunal to determine is whether Mr Scott is a fit and proper to hold a security licence and whether it is in the public interest for him to do so. Evidence before the Tribunal 1. The Tribunal had before it the s 58 of the ADR Act documents provided by the Commissioner and written submissions. Further written submissions and supplementary documents were provided after the hearing by direction of the Tribunal. 2. Mr Scott filed a bundle of documents which included written submissions and he gave oral evidence. Mr Scott' evidence 1. Mr Scott was not represented at the hearing. Mr Scott relied upon a written statement and submissions he made for the Internal Review and also new material in this proceeding. He was cross-examined. 2. In his oral evidence Mr Scott phrased his current circumstances as being "a situation of bad luck". 3. On 2 October 2020, Mr Scott went to a home of a long-term friend of his in Rose Bay. He said he had family problems and was discussing the problems with his friend. They had a couple of drinks. He decided to drive home and was detected by police who conducted a mobile random breath test ("RBT"). He failed that test and was processed at Kings Cross police station. He pleaded guilty to a mid-range PCA and sentenced as set out above. 4. On 27 December 2020, Mr Scott began preparing his car for the fitting of the interlock system device. This was at a time close to the expiration of the three month disqualification period. He said his car had a flat battery from three months of not driving it. He arranged for the car to be jump started by a contractor on the street. He proceeded to drive the car to charge the battery. Mr Scott was detected by police on Park Avenue, St Ives and subjected to a RBT returning a negative result. He was asked for his driver's licence. Mr Scott informed police that he should not be driving because his licence was suspended. He was subsequent charged for driving whilst disqualified. 5. On 14 January 2021, Mr Scott was booked in to have the interlock device installed in his car at Barrie Auto Electrics in Hornsby. He drove his car to those premises and whilst doing so he was again detected by police. He was subjected to a RBT returning a negative result. Mr Scott was again unable to produce a drivers' licence given it remained suspended. He told police that he was going to get the interlock device installed and produced paperwork. The police officer said he should not be driving and issued him with a ticket. The officer allowed Mr Scott to drive his car to the next street. He called his wife who came to his location. The car was dropped off at the service centre by Mr Scott and his wife. 6. On 16 January 2021, Mr Scott caught the train to a Service NSW centre in Chatswood. He was intending to begin the process of obtaining his driver's licence with the interlock condition marked on that licence. He took with him the required paperwork. Mr Scott said he had to return home in an Uber to get more identification and return to the Service NSW centre to finalise the process. He said he had to return to the service centre where his car was by closing time at 12pm. When completing the application for a licence he did so quickly and his mind was mainly concentrating on the interlock device. He said he completed the application forms believing it related to his PCA offence and the court order for an interlock device. In acting with such haste, he did not read the application form correctly and left out question five on the form and misstated his answer in question six, because he did not read the form properly. He was charged with attempt to or obtain driver licence by giving false information. 7. Mr Scott provided a copy of the transcript from the Local Court hearing when he was sentenced for the offence of attempt to or obtain driver licence by giving false information. I note that following his cross-examination, the learned Magistrate found Mr Scott to be a truthful and reliable witness. His evidence, which was given under oath and it is essentially in similar terms as set out in the preceding paragraph. The Magistrate accepted his explanation for why he answered the questions on the licence application incorrectly. In this hearing, Mr Scott maintains that his failure to answer a question relating to pending charges for his licence being suspended or disqualified was an honest mistake. Similarly, he failed to answer a question about his driver's licence being disqualified or suspended, again being an honest mistake. I, like the learned Magistrate, also accept his evidence. 8. Mr Scott relies on a number of character witnesses which were tendered before the Local Court in support of his drink driving offences in 2020. One if from his friend, Christopher Harris, with whom he was drinking with on 1 October 2022, prior to being detected by police. I note that the character reference does not include any known history of Mr Scott's prior drink driving offences in 2000, 2001 and 2002. I have given the reference moderate weight. I have also considered the other two character references from, Geoffrey Nicholson and Andrew Price which attest to Scott's good character. 9. Despite a robust cross-examination, I find Mr Scott to be an honest and reliable witness. Applicable Legislation 1. The Commissioner relied on the provisions of s 15(1)(a), s 26(1)(d) and 26(1A) of the Act, and clause 25(1) of the Security Industry Regulation 2016 ("the Regulation"), as provisions which required the Commissioner to revoke Mr Scott' security licence because of his offending, such that he is not a fit and proper person to hold a security licence and that it is not in the public interest for him to hold the licence. 2. The relevant sections of the Act are set out below. 3. Section 26(1A) of the Act provides: (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. 1. Section 15(1)(a) of the Act provides: (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, or… 1. Section 26(1)(d) of the Act provides: (1) A licence may be revoked – … (d) for any other reason prescribed by the regulations. … 1. Clause 25(1) of the Regulation provides: (1) For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it would be contrary to the public interest for the person to whom it is granted to continue to hold it. Mr Scott' Case 1. Mr Scott contends that he is not proud of his driving history and explains his offending set out above. He admits that he made a grave mistake in breaching the traffic laws driving whilst under the influence of alcohol. However, he submits that the Tribunal should find he is a fit and proper person to hold a security licence and that it is in the public interest for him to do so. 2. Mr Scott rejects the Commissioners contention that he knowingly gave false information to Services NSW in applying for his drivers' licence. He relies upon the explanation he gave to, and which was accepted by, the learned Magistrate who dealt with him in the Local Court. As indicated above, I also accept his evidence in this regard. 3. Mr Scott relied on the following documents. 1. Local Court Transcript, Hornsby Local Court 9 September 2021 before Magistrate Denes ("Local Court Transcript"); 2. Written statements, criminal record and medical report in bundle; 3. Reference from Christopher Harris; 4. Reference from Geoffrey Nicholson; 5. Reference from Andrew Price. 1. Mr Scott had worked in an entertainment/security background since receiving his licence in 2000. In the course of his work, he had worked in bars, clubs, for large corporate events and in hospitals, and in so many years of work, he had never had any adverse incident in carrying out his work. 2. If Mr Scott does not hold a security licence, he will lose his livelihood. After working in the security industry for 20 years, it is difficult for him to gain employment in other sectors. Mr Scott has been working as an Uber driver since losing his security licence. 3. Mr Scott is 64 years of age and has prior traffic related convictions and one offence to the person, common assault, in 1998. 4. Mr Scott asked that the Commissioner's decision to revoke his security licence be reversed, and that he be re-issued with his security licence. The Commissioner's Case 1. The Respondent relied on the contents of the s 58 documents, additional documents and written submissions. Respondent's written submissions 1. The Commissioner submits Mr Scott has an atrocious driving record. He has four PCA offences, three driving whilst disqualified in 2000, and two in 2021. He has eleven speeding offences three of which occurred in a school zone. 2. The Commissioner submits in relation to the 2020 PCA offence, that Mr Scott made a conscious decision to drive home form Rose Bay at 1am, probably whilst fatigued and under the influence of alcohol. His conduct was a potentially dangerous situation. Given that neither Mr Harris or the Mr Scott were aware of his level of intoxication and he drove home, is open to the Tribunal to speculate that this may have occurred on other occasion. I reject this contention. It is not for the Tribunal to speculate or make an inference to this extent based on the evidence before me. 3. The 27 December 2022 offence involved Mr Scott driving whilst suspended. I accept the Commissioner's submissions that this was a deliberate breach of the court imposed suspension of Mr Scott's drivers' licence. However, while I understand his explanation for driving, Mr Scott had other alternatives available to him, such as, charging his car battery at home, leaving the car idle in his driveway (under supervision) or, buying a new one. Despite this he made an error of judgment, he chose to drive in breach of the law. I give this moderate weight. 4. The Commissioner contends that Mr Scott's explanation that he was unaware that driving to have an interlock device fitted to his vehicle was not an offence. I tend to agree. I have taken into consideration that the statement provided by Mr Scott presumably, for the interlock program included a notation, which was accepted by Mr Scott, that he understood he could only drive a motor vehicle fitted with an interlock device. I give this moderate weight. 5. As it concerns the charge of given false information to obtain a drivers' licence, the Commissioner contends that Mr Scott continues to show a lack of contrition to his offending which is of great concern. I accept that Mr Scott was not acquitted of the offence as he submits. However, Mr Scott's technical understanding of being dealt with by way of a 'good behaviour bond' rather than a conditional release order can be excused, as, a conditional release order in the old terms used to be referenced as a s 9 or good behaviour bond. Indeed, the Magistrate in sentencing Mr Scott also used the term "to be of good behaviour for 12 months". The relevance of this offence in my view, must be considered in the context of the comments made on sentencing in Local Court Transcript, where Magistrate Denes accepted Mr Scott's explanation. 6. The Commissioner also contends that due to Mr Scott's self-admission of experiencing anxiety, and apparently having little professional help, the public would not have confidence in his ability to carry out the duties of a security guard. I reject this contention. Mr Scott has recognised that he was experiencing difficult circumstances after marital difficulties and him losing his security licence. He sought help from his general practitioner and other health professionals. The evidence does not reveal, sufficiently, a lack in mental wellbeing that might cause the public to hold such a concern. 7. As a result of the recent traffic related incidents, and the charge of attempt to or obtain driver licence by giving false information guilty plea and the conditional release orders to be of good behaviour for 12 and 24 months, the Commissioner was not satisfied that Mr Scott is a fit and proper person to hold a security licence. The Commissioner was also satisfied it would be contrary to the public interest for Mr Scott to hold a security licence. Additional matter 1. During the hearing Mr Scott gave evidence that he was working with the ACES Group, to assist with training of security guards. The ACES Group is a security training organisation. As part of Mr Scott's evidence, he tendered a letter from the ACES Group dated 6 May 2022. The letter confirms that the training duties that Mr Scott was engaged with did not require him to hold a 2D security licence. This is because he was not facilitating training or assessing candidates. In the most part he was engaged in role plays. 2. The Commissioner contends that Mr Scott's role he was carrying out a "security Activity" which required him to hold a class 2D security licence. I am not satisfied on the evidence before me that the Commissioner has established that Mr Scott was carrying out a "security Activity" as a trainer. Mr Scott said he was not providing the training or giving instruction. That was a role of the ACES Group. Mr Scott said he was demonstrating scenarios to candidates by way of a role paly. 3. I am also not satisfied on the evidence that Mr Scott was undertaking security activities in conducting remote security monitoring at Goldman Sachs. This was not properly put to Mr Scott at the hearing given it arose in submissions after the hearing. Mr Scott refers to monitoring of motor vehicles via a company QuickTrak Pty Ltd and MultiTrak Pty Ltd. Given the late notice of these matters, I am not satisfied that Mr Scott has been afforded procedural fairness to properly understand the submission and respond. I give it no weight. The Tribunal's Findings Findings of Fact 1. The Tribunal is satisfied from the evidence before it that Mr Scott has a poor driving record, which includes three historic PCA offences and the more recent mid-range PCA offence in October 2000. He has three convictions of driving whilst disqualified, one historical offence and the two which are addressed above. Mr Scott also has eleven speeding offences and one conviction for common assault. 2. I am satisfied there is no evidence that Mr Scott committed any the offences in his criminal record whilst carrying out his work as a security guard. 3. Mr Scott entered a plea of guilty to each of the more recent traffic related offences from 2000 – 2021. He also entered a plea of guilty to the charge of attempt to or obtain driver licence by giving false information. 4. In relation to the offence of dishonesty, The Magistrate referred to, and accepted, Mr Scott's explanation for his offending as follows: HER HONOUR: Mr Scott, because you pleaded guilty to this offence relating to the obtaining a drivers licence, the offence is actually by false statement and in this case it is really an act of omission by failing to disclose the pending court cases. I certainly acknowledge your plea of guilty, notwithstanding the evidence you have given, and I note particularly that this was evidence given on oath and you were subject to cross-examination that you at the time had your mind on the interlock issue because that is why you were disqualified because you had not put the interlock in and not turning your mind you said in Court to the forthcoming driving whilst disqualified matters. I think I am being asked to record a conviction because that would effectively void your licence and then you are back at square-one. I guess the real issue is, I don't know what Transport for NSW would have done if you would have answered "yes I have pending matters" and it may well be realistically, even in April when I dealt with you, I would have adjourned it for you to get your licence and sought all that out. Particularly noting that you have given on oath about your beliefs at the time and whilst it was subject to cross-examination I have no reason to disbelieve it. FOR THOSE REASONS I AM GOING TO DEAL WITH THE MATTER WITHOUT RECORDING A CONVICTION TODAY AND PLACE YOU ON A CONDITIONAL RELEASE ORDER TO BE OF GOOD BEHAVIOUR FOR TWELVE MONTHS. But at the end of the day now your licence is your responsibility and I am pretty sure that you have run out of your chances, you do not have a good driving history. If you need your licence it is up to you to look after it. 1. The Tribunal notes that these sentencing remarks are in part aimed at the seriousness of Mr Scott's offending. I find that minimal weight should be given to Mr Scott's criminal history is disposing of the administrative review application. 2. I am not satisfied that the circumstances of the October 2020 mid-range PCA offence should be considered as serious in respect of this application. By no means do I condone a person driving under the influence of alcohol in contravention of the law. However, in Mr Scott's circumstances, he could not be described as a habitual offender despite having historical PCA offences in his record. 3. I am satisfied that the circumstances of the two driving whilst disqualified offences fall in the low to moderate range. While Mr Scott has explained his offending, that explanation does not excuse his behaviour. However, in my mind his offending is at the lower end of the scale. Grounds for revocation Not a fit and proper person: ss 15(1)(a) and 26(1A) of the Act 1. The Commissioner said that ss 15(1)(a) and 26(1A) of the Act, required the Commissioner to revoke Mr Scott' security licence because he could not be considered fit and proper to hold a security licence as a result of his finding of guilt concerning the traffic and the attempt to or obtain driver licence by giving false information and receiving conditional release orders. 2. If the Tribunal is satisfied that Mr Scott is not a fit and proper person, there is no discretion as to whether his security licence should be revoked. See Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169 at [8]. 3. During the Second Reading Speech for the Security Industry Amendment Bill 2002, Parliamentary Secretary Mr Gaudry noted that: ...the determination of whether a person is "fit and proper" is contextual, as has been recognised in common law. For example, in Australian Broadcasting Tribunal v Bond, Justice Toohey and Gaudron found 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. The Tribunal has held that "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". See Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11] 2. The issue of whether a person is fit and proper to hold a licence has also been considered in numerous cases before the Courts and the Tribunal. 3. In Sitotaw v Commissioner of Police, New South Wales Police [2006] NSWADT 96 ,34 Judicial Member Higgins 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. The Commissioner submitted that Mr Scott's conduct demonstrates that he cannot be trusted to act professionally, responsibly and without risk to public safety when conducting his duties as a security guard. This is particularly so given Mr Scott entering a guilty plea to the charge of giving false information to obtain a driver's licence. 2. Mr Scott's conduct meant that the Tribunal cannot be satisfied that the Applicant is a fit and proper person, and the correct and preferable decision is to affirm the decision to revoke the Mr Scott's security licence. Mr Scott' submissions on Fit and Proper Person 1. Mr Scott relied on the same character references that he tendered on sentence in the mid-range PCA sentencing hearing. The references are from people who have known him personally and professionally for many years. 2. The meaning of 'fit and proper person' was considered in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321: '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 a 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". 1. There is no evidence to suggest that Mr Scott is likely to re-offend. This is apart from Mr Scott having PCA offences in his history over twenty years ago. I accept Mr Scott's explanation for the October 2020 offence, that his conduct was on the background of him having marital difficulties. The twenty year gap in his PCA offences is instructive. I accept Mr Scott shows remorse for his offending and that he made some ill informed decision in an attempt to prepare his car for the interlock program. I find there is a very low likelihood he will offend in respect of driving whilst disqualified. I also accept that he did not intend to give false information in applying for his driver's licence. 2. In Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151, several factors were identified to determine a person's fitness to hold a security licence, which include: (a) The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted - in Mr Scott' case, he has multiple traffic related offences, and the more recent charges, for which some matters no conviction was recorded; (b) The nature, seriousness and frequency of any complaints made against the applicant - as previously stated, there is no evidence of complaints being made against Mr Scott in the course of his work; (c) The applicant's reputation in the community - Mr Scott' references show that he is a person of good standing in the community; (d) The likelihood that the applicant will re-offend, be the subject of further complaints of commit further offences - as previously stated, there is nothing to suggest that Mr Scott will re-offend. 1. In Nakad, the Tribunal considered several prior cases in which applicants were found to not be a fit and proper person to hold a security licence. In contrast to those cases, there is no evidence or record of Mr Scott to suggest that, apart from the incidents involving the offences, he is not a fit and proper person. He has not been dishonest. He has not demonstrated a significant and serious disregard for the law in the past, apart from a number of speeding offences, which are at the lower end of the range of seriousness. 2. Further, in Nakad at [40], the Tribunal quoted "Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded of crucial importance. I would not go as far to say that one criminal offence must necessarily deprive a person of that fitness...". 3. Mr Scott has been a fit and proper person to hold a security licence for the most of twenty years, but for the incidents involving the offences. His conduct is unlikely to occur in the future, and at the very least there is little to no evidence suggesting that it will occur. The Tribunal's findings on "Fit and Proper" 1. The meaning of fit and proper person in the context of issuing a driver authority was considered by the NSW ADT Appeal Panel in the matter of Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at 20. In that matter Deputy President Hennessy said that the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of all of the evidence. 2. The Appeal Panel in Murray referred to the approach of the High Court to the phrase "fit and proper person" as set out in Bond. 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. (emphasis added) 1. The content of fitness and propriety was defined in the matter of Hughes & Vale in the High Court as having 3 components -"honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [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. The requirements in this matter are that Mr Scott' 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 Mr Scott' honesty, knowledge and ability as it relates to the specific role of security guard. The Tribunal needs to have some satisfaction about Mr Scott' likely future conduct. The Tribunal needs to make the determination by taking into account and weighing up matters both contrary to and in favour of Mr Scott. 2. It is clear that Mr Scott has been affected by his behaviour, the court proceedings and the loss of his security licence. This was clear from the references provided by Mr Scott; the letter from his general practitioner, Dr Rhee and his own anxiety during the Tribunal proceedings. Mr Scott also told the Tribunal that his career options had been limited by the findings of guilt and the community corrections orders. However, the impact of loss of security licence on Mr Scott is not a relevant factor in determining whether he is fit and proper to hold a licence. 3. The Tribunal accepts the submissions made to the Internal Review by Mr Scott'. I have found there is little to no evidence to suggest that Mr Scott is likely to re-offend. 4. I have considered the nature, seriousness and frequency of criminal offences for which Mr Scott has been arrested or convicted - in Mr Scott' case, this essentially traffic related offences and the offence of giving false information to obtain a driver's licence. 5. I have considered the nature, seriousness and frequency of any complaints made against the Mr Scott of which there are none in the course of his work; 6. Mr Scott' references show that he is a person of good standing in the community. Factors about fitness and propriety 1. The Tribunal accepts the Commissioner's contention that factors against a finding of fitness and propriety include that fact sheet before the Local Court demonstrates that Mr Scott' drink driving was unnecessary and blatantly in disregard for the law. In addition, the fact that Mr Scott committed the offence driving whilst disqualified offences increases the gravity of his conduct. However, Mr Scott's offending is at the lower end of seriousness. 2. I do not accept the Commissioner's contention that the incidents demonstrate that Mr Scott cannot be trusted to act professionally, responsibly and without risk to public safety when conducting his duties as a security guard. 3. I am satisfied on the basis of all the information put before me that I should affirm that Mr Scott fit and proper to undertake the role of security guard. Discretionary Grounds for Revocation Not in the public interest: s 26(1)(d) of the Act and clause 25(1) of the Regulation 1. Section 26(1)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the Regulation. 2. Clause 25(1) of the Regulation provides that a licence may be revoked if the Commissioner considers that it would be contrary to public interest for the person to whom it is granted to continue to hold it. 3. The Respondent relied on the provisions of s 26(1)(d) of the Act, and Clause 25(1) of the Regulation, as having given the Commissioner the discretion to revoke Mr Scott' security licence because it was not in the public interest for Mr Scott to hold a security licence as a result of his findings of guilt and receiving the two community correction orders. 4. The term 'public interest' has been considered by numerous Courts and Tribunals, particularly within the context of security industry licensing. 5. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual." 6. In Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 at [33], the Appeal Panel held 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. Mr Scott's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. See 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. Mr Scott's need to continue to hold his licence, is subordinate to the need to ensure public safety. See Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 3. The Commissioner must exercise the discretion to revoke a licence having regard to the objects of the Act. While these are not expressly stated in that Act it can be inferred that they include an object of ensuring that those who are licensed under the Act can be trusted by the public to properly perform the duties of watching, guarding or protecting property, act as a bodyguard or carry out crowd control functions in a professional manner. See Sitotaw at [40]. 4. Judicial Member Grant also provided a useful summary of the 'public interest' ground in Jovanovic v Commissioner of Police, New South Wales Police Force, [2010] NSWADT 115, at [100] - [101] within the context of considering the revocation of a licence as a result of the Applicant's criminal record and conduct: 100 The objects and intentions of the Security Industry Act must be readily kept in mind and the highest standard that is applicable to licensees within the security industry. I note the statement made by Mr Gaudry, Parliamentary Secretary in the New South Wales Legislative Assembly on 12 November 2002 when he said, at page 6544 of Hansard: "Clearly it is in the public interest that persons thought by police to present a public safety or criminal risk are not given special access to premises, persons or goods under the security licensing system. This should apply even where the person has yet to be charged (or convicted) with a specific criminal offence." 101 The public interest in the paramount consideration to be given public safety demands that the public is not exposed to security officers who, for whatever reason, are incapable of undertaking their responsibilities in a professional manner and curbing their anger and impulse to inflict harm on others. 106 In regard to the term "public interest": "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." (Director of Public Prosecutions v Smith (1991) 1 VR 63). 114 In Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT114, the Tribunal observed, at [11]: "The Security Industry Act 1997 established a scheme for licensing people to carry on security activities. Within that Act there are several provisions that allow the Commissioner to revoke a licence. 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 standard. 115 Aggressive behaviour, and persons that exhibit such behaviour, have no role in the security industry, as was observed in Carter v Commissioner of Police [2005] NSWADT 265 at [27]: "I agree with the Commissioner in relation to the risk to the public and that the violent and aggressive behaviour that Mr Carter displayed during the commission of his offence is not in keeping with the special role that is played by the Security Industry in ensuring that public order is maintained." 1. The Commissioner submitted that it would be contrary to the public interest for the Applicant to continue to hold his security licence for the following reasons: 1. Mr Scott had been found guilty of mid-range PCA; 2. Mr Scott's criminal record included three previous PCA offences, numerous speeding offences, common assault and giving false information to obtain a driver's licence; 3. In relation to his most recent offending he was sentenced under s 9 of the CSPA. 1. In those circumstances, the Tribunal should be satisfied that it would be contrary to the public interest for Mr Scott to continue to hold his security licence. 2. In Saliba v Commissioner of Police, New South Wales Police Service [2002] NSWADT 55 at [62], the Tribunal considered the concept of public interest for security licence holders. The Tribunal stated: "The interests of the public in circumstances such as these consist mainly in the strict and fair control of security industry licensing and personnel and the protection of the community and its collective and private property." 1. Mr Scott takes his work seriously and takes responsibility for his work. Mr Scott' work is to protect the community, a job which he has done well, without incident, for 20 years. This recent offending does not diminish his competency to protect the community, nor does it demonstrate any inability to continue protecting the community. 2. Further, due to Mr Scott' length of service as a security guard, his experience in protecting the community is invaluable and the loss of his security licence would be a loss to the community. 3. There is no risk to public safety for Mr Scott to hold a security licence, as demonstrated that it is unlikely that he will be involved in similar again. I find it is in the public interest for Mr Scott to hold a security licence. Tribunal's findings on "Not in the Public Interest" Not in the public Interest 1. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Toleafoa at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "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. 'Public interest' embraces standards acknowledged to be 'for the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the 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 the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd at [681]. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith. 2. When considering licensing matters it is to keep in mind the activities that the person will be engaged in if the licence is retained. Accordingly, the objects and purpose of the Act are relevant i.e. 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 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: Haining v Commissioner of Police [1999] NSWADT 6. 3. Public interest requires that the interests of the whole community must be considered. 4. It is in the public interest that persons thought by police to present a public safety or criminal risk are not given special access to premises, persons or goods under the security licensing system. Further the public should not be exposed to security officers who, for whatever reason, are incapable of undertaking their responsibilities in a professional manner and curbing their behaviour and impulse to inflict harm on others, or breach the laws. 5. The references provided to the Local Court and the comments of the Magistrate indicate that Mr Scott is not a public safety or criminal risk in the future. Mr Scott has recently failed to make informed and responsible decisions whilst operating a motor vehicle and when filling out his licence application form. The comments of the Magistrate, referees and Mr Scott himself indicate that Mr Scott is likely to act in a professional manner and not re-offend in the future. Mr Scott has had between one to three years from his recent offending by the time of the Tribunal's hearing to reflect on these professional responsibilities. 6. I have considered whether the public's confidence in the licensing system would be undermined by Mr Scott holding a security licence in the circumstances set out. The Tribunal considered that the views of Mr Scott' referees, and the Local Court Magistrate, which I find each have confidence that Mr Scott does not present a risk to public safety. 7. In all the circumstances, I am satisfied that it is in the public interest for Mr Scott to hold a security licence. Order 1. The decision under review to revoke Mr Scott' licence is set aside. 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 16 December 2022 - Order 2 removed from Coversheet and end of decision. 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: 16 December 2022