Carter v Commissioner of Police [2005] NSWADT 265

CITATION: Carter v Commissioner of Police [2005] NSWADT 265 DIVISION: General Division APPLICANT PARTIES: Jared Carter RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 053152 HEARING DATES: 26/07/2005 SUBMISSIONS CLOSED: 07/26/2005 DATE OF DECISION: 11/23/2005

BEFORE: Montgomery S - Judicial Member APPLICATION: Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Security Industry Act 1997 Security Industry Regulation 1998 CASES CITED: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Sobey v Commercial Agents Board [1979] 22 SASR 70 APPLICANT REPRESENTATION: P Marsh, Solicitor RESPONDENT R Burdick, Solicitor ORDERS: The decision under review is affirmed

REASONS FOR DECISION 1 Mr Carter holds a Class 2B Security Licence. The licence was revoked following his Local Court conviction and $1,000 fine for an offence of Common Assault. On appeal to the District Court Judge Norrish confirmed the conviction but reduced the penalty to a good behaviour bond for a period of 12 months from 24 March 2005. 2 Mr Carter applied for internal review of the decision to revoke his licence. The Commissioner's delegate affirmed the revocation decision on the basis that Mr Carter was not a fit and proper person to hold a security licence and that it would be against the public interest for him to continue to possess a licence. Applicable legislation 3 Section 26(1)(c) of the Security Industry Act 1997 ("the Act") provides that the Commissioner may revoke a licence if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. Section 26(1)(d) of the Act proscribes that a licence may be revoked for any other reason prescribed by the Security Industry Regulation 1998 ("the Regulations"). 4 For the purpose of section 26(1)(d) of the Act, clause 18 of the Regulations provides that a security licence may be revoked if the Commissioner considers that it is not in the public interest for an applicant to continue to possess such licence. 5 For the purposes of subsection 26(1)(c) of the Act, subsection 15(6) of the Act provides that in order to determine whether an applicant is a fit and proper person to hold a class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other information held in relation to the Applicant. Subsection 15(7) of the Act states that 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 15(6). Background 6 Mr Carter is 22 years of age and is an employee of Chubb Electronic Security Australia Pty Ltd ("Chubb"). On the evening of 10 November 2004 he had been drinking at a hotel near Strathfield railway station. At about 10.15 p.m. he walked to the railway station to travel home. There are differing accounts of what transpired prior to and after his purchase of a ticket. 7 It seems that Transit Police Officers inspected his ticket. He was then questioned about his drinking and his travel intentions. The incident apparently deteriorated into a slanging match. Mr Carter was then warned in relation to his behaviour with a warning made that he could be fined for using offensive language. 8 The situation then escalated to the stage where Mr Carter was pushed to the ground and his hands handcuffed behind his back. The Transit Officers detained him for somewhere between 1 hour and 1 1/2 hours before two police officers from Flemington Police Station arrived. He was given a Court Attendance Notice and was then allowed to catch the train home. He then waited on the station for up to two hours for the next train to come along. He subsequently entered a plea of guilty in the Local Court to the offence of Common Assault. Evidence and Submissions 9 The Commissioner relies on the material contained in the Police brief including Mr Carter's criminal history record, as well as the confidential reports that have been tendered in evidence. 10 One of the Police officers who attended the incident at Strathfield railway station, Snr Constable Michele Law, provided affidavit evidence, attended the hearing and was cross-examined. Her evidence is consistent with the facts statement presented in relation to the assault charge. 11 The Commissioner contends 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. 12 The duties authorised by a Class 2B Licence include the sale of security equipment, inspections of security equipment and the provision of advice in relation to security equipment generally. 13 The Commissioner further contends that although Mr Carter is not engaged directly in activities protecting persons and property, the activities for which his fitness and propriety are being assessed impact on public safety in that inspections of security equipment ensure the safety of property and persons using such property. The Commissioner submits that Mr Carter is not a fit and proper person to be engaged in the activities that are allowed by a Class 2B licence. In addition to the offence for which he was convicted, Mr Carter used abusive language on numerous occasions toward law enforcement officers who were merely carrying out their duty of ensuring the peace and good order of the railways. 14 The Commissioner further submits that the Tribunal should give weight to the confidential reports which have been tendered in evidence by the Commissioner, as these reports confirm a consistent pattern of behaviour on the part of Mr Carter which further confirm that he is not a fit and proper person to be engaged in the security industry. 15 The Commissioner refers to the decision in Sobey v Commercial Agents Board [1979] 22 SASR 70 where Walters J. said at 75: "I cannot imagine anything that is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded of crucial importance. 1 would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness...." 16 The Commissioner further contends that for the same reasons it would be against the public interest for a person of Mr Carter's character to hold a licence. 17 Commissioner submits that the authority conferred upon the holder of a security licence is granted with the clear expectation that the licensee utilises that authority for the good order of society and for the well being of its members. Mr Carter's individual interest in retaining his security licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated 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." 18 The Commissioner contends that Mr Carter would pose a risk to public safety if he were licensed as a security officer, and that consequently it would be against the public interest for Mr Carter to retain his licence. For these reasons, the decision of the Commissioner to revoke Mr Carter's licence should be upheld. 19 Mr Carter's disputes the Commissioner's version of the event of the night of 10 November 2004. He contends that the Transit Police Officers treated him unreasonably and that the situation escalated because of their behaviour. His case is essentially that he was affected by alcohol on that occasion and that his conduct was out of character. 20 Mr Carter relies on two testimonials provided on his behalf. Those testimonials were from Mr Peter Irish, the National Purchasing Manager for Chubb, and from Mr Tony Harrison who is the Distribution Manager for Chubb and Mr Carter's supervisor. Each testimonial refers to Mr Carter's character and suggests that the sequence of events that resulted in Mr Carter's conviction were inconsistent with the conduct Mr Carter has demonstrated in the course of his employment with Chubb. Each of the authors indicated that they could vouch for Mr Carter's good character. 21 Mr Harrison attended the hearing and elaborated on his working relationship with Mr Carter. In particular he referred to the progress that Mr Carter had made from an unskilled worker with little understanding of business, to a person who is able to operate with minimum supervision. He presents an image of Mr Carter as a very responsible worker with a strong career path in the industry. Findings 22 I have considered all the material presented by the parties, including the confidential reports on which the Commissioner relies. The Commissioner's material presents Mr Carter in a significantly different light to that suggested by Mr Irish and Mr Harrison. The Commissioner's material suggests a long history of behaviour that has attracted the attention of the police that is in total contrast to that referred to by Mr Irish and Mr Harrison. 23 The most favourable view to Mr Carter would be that he has made an effort to turn his life around and that the event of the night of 10 November 2004 was a departure from that effort. Mr Irish and Mr Harrison suggest that this behaviour is out of character however it is totally in keeping with the image presented by the Commissioner's material. 24 It is apparent from the District Court transcript that Judge Norrish was aware of at least part of Mr Carter's background. The Judge concluded that Mr Carter's behaviour on 10 November 2004 was 'uncharacteristic conduct that was excited by a consumption of alcohol and a frustration of missing his train and being delayed by the proper conduct of the relevant transit authority officers'. The Judge also stated: "I am prepared to accept that you are not the sort of person when you are sober, to go around abusing transit officers and assaulting them. I am prepared to accept that. Your criminal history seems to suggest that, but clearly when you are affected by alcohol, it might be a different situation and perhaps it's time for you to think about what alcohol really means to you and whether it's just worthwhile putting your work future in jeopardy." 25 Judge Norrish clearly determined that in the circumstances Mr Carter should be allowed to continue in the security industry. Nevertheless the Tribunal is not bound by that approach. 26 I note that I have no evidence to suggest that Mr Carter has taken any steps to address the concerns that were raised by Judge Norrish. I have no reason to conclude that a similar incident could not arise in the future. Indeed Mr Carter's background gives cause to think that there is a real risk that he will again come to the attention of the police if he does not take steps to address the issue of how he is affected by alcohol. 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. I agree that it is not in the public interest that Mr Carter hold the licence. In my view, the Commissioner has made the correct and preferable decision in revoking his licence. Accordingly that decision should be affirmed. 28 This view does not mean that Mr Carter should be prevented from re-entering the security industry at some time in the future. In light of the testimonials given by Mr Irish and Mr Harrison, it is likely that if he were to take steps to address the issues raised by the Commissioner and by Judge Norrish, and if he makes a further application for a licence, Mr Carter could satisfy the Commissioner that there is no risk to the public and that he is a fit and proper person to hold a security licence. Findings The decision under review is affirmed.