'OS' v Commissioner of Police, NSW Police [2005] NSWADT 19

CITATION: 'OS' v Commissioner of Police, NSW Police [2005] NSWADT 19 DIVISION: General Division APPLICANT PARTIES: 'OS' RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 043369 HEARING DATES: 20/12/2004 SUBMISSIONS CLOSED: 12/20/2004 DATE OF DECISION: 02/09/2005

BEFORE: Leal 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 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 CASES CITED: Director of Public Prosecutions v Smith (1991) 1 VR 63 McDonald v Director General of Social Security (1984) 1 FCR 354 at 357 APPLICANT REPRESENTATION: In person RESPONDENT P McLaughlin ORDERS: The decision of the Commissioner to revoke the applicant's licence is affirmed.

REASONS FOR DECISION 1 OS is a 19 year old man who was the holder of a Class 1 ABC security licence until it was revoked by the Commissioner of Police. The revocation was made on the basis that it was not in the public interest for OS to continue to hold a security licence and that he was no longer a fit and proper person to hold such a licence. 2 Although OS does not have any criminal convictions, he has admitted to involvement in criminal activity which were essentially home invasion offences involving the detention of several people and the extortion of money from them. OS assisted the police and the prosecution in relation to these matters which were ultimately either withdrawn or dismissed. 3 OS has applied to the Tribunal to review the decision to revoke his security licence. Confidential material 4 Generally, Tribunal hearings are held in public. However, under section 75 of the Administrative Decisions Tribunal Act 1997, the Tribunal has the power to order that a hearing be conducted either wholly or partly in private and to make an order prohibiting or restricting the disclosure to some or all parties of evidence given before the Tribunal. 5 In this case, Mr McLaughlin, who appeared on behalf of the Commissioner for Police, sought to address the Tribunal in the absence of OS in relation to additional material which, Mr McLaughlin submitted, was relevant to a consideration of whether OS was a fit and proper person to hold a licence and whether it would be in the public interest to allow him to do so. OS objected to this application submitting that he should be aware of all material put forward in the case. 6 Given the potential relevance of the material to OS's application, I allowed Mr McLaughlin's application and received the material in confidence. I have, however, given no weight to this confidential material. This is because I have been satisfied on the basis of uncontested evidence given in the presence of OS that the decision reached by the Commissioner to revoke OS's security licence was the correct and preferable one. My reasons for arriving at this decision are provided below. Review decision 7 In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then confirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of the Commissioner of Police and there is no presumption that the decision of the Commissioner is correct. (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.) 8 The Commissioner revoked OS's licence for two reasons: because he considered that it is not in the public interest for OS to continue to hold a security licence and because he is of the opinion that OS is no longer a fit and proper person to hold a licence Public interest 9 Section 26(1)(d) of the Security Industry Act 1997 allows a security licence to be revoked for a reason prescribed by the regulations. Regulation 18 of the Security Industry Regulation states that in accordance with 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. 10 The evidence before the Tribunal includes a copy of OS's criminal history which confirms OS's oral evidence that he received a bond for minor offences in 2002 and that he was charged with demanding property with menaces and detaining a person in 2003. These charges, which related to one incident in February and another in April, were all either withdrawn or dismissed. A police facts sheet details OS's alleged involvement in the April matter while a transcript of a police interview with OS relates to the February matter. Mr McLaughlin relied on this evidence in addition to oral evidence given by OS in support of his submission that it was not in the public interest for OS to continue to hold a security licence. 11 OS gave evidence acknowledging his involvement in the two home invasion style incidents and emphasising that he had assisted the police and prosecution in relation to both matters. 12 OS tendered a series of references from employers attesting to the fact that he was a trustworthy and reliable employee. He has completed a traineeship in Asset Security (Guarding) Certificate III and gave evidence that he has sought to "turn his life around" and undertake further study to assist his career in the security industry. He has been involved in voluntary work and has managed to find casual work pending a determination on the revocation of his security licence. He asked the Tribunal to acknowledge his attempts to rehabilitate himself and to take into account the fact that his traineeship qualifications would be of no use to him unless his licence were restored. 13 Despite OS's evidence that he has worked to put the past behind him, I remain concerned by his admitted involvement in two serious matters in 2003 which involved the detention of the victims and the subsequent extortion of money from them. Even though I accept that OS was not the instigator of this matters, the fact remains that he did nothing to protect or assist the victims nor did he take any steps to contact the authorities. The second incident took place in April 2003, shortly after OS had lodged his application for a security licence and only a week prior to the approval of the licence. Although the charges relating to these incidents were subsequently dropped and although I accept that OS provided substantial assistance to the authorities, the fact remains that the incidents were very serious and involved behaviour which is particularly inappropriate for a person seeking a security licence. 14 It is laudable that OS has taken control of his life and that he has undertaken studies to further his career. His completion of Asset Security (Guarding) Certificate III demonstrates that he is a young man who is able to apply himself to tasks and complete them. This bodes well for his future. It is also to be commended that OS has been prepared to take responsibility for his past actions and has shown regret for them. 15 However, the question is not whether it is in OS's personal interest to hold a security licence, but whether it is in the public interest for him to do so. Director of Public Prosecutions v Smith (1991) 1 VR 63 16 It is my view that, at this stage, it would not be in the public interest for OS to continue to hold a security licence. His recent history, in relation to events which took place in 2003, reveals that he can be easily led and has been prepared to become involved in criminal behaviour for financial reward. This is not the type of behaviour expected of the holder of a security licence, who is charged with the authority to guard and protect property or to act as a bodyguard, crowd controller or bouncer. Although OS has demonstrated to me that he has taken steps to improve himself, at this stage I consider that it would not be in the public interest for him to continue to hold a security licence. Fit and proper person 17 As I have determined that it would not be in the public interest for OS to continue to hold a security licence, it is not necessary for me to consider the second ground relied on by Mr McLaughlin, that OS is no longer a fit and proper person to hold a licence. Order 18 The decision of the Commissioner to revoke the applicant's licence is affirmed.