QR v Commissioner of Police, NSW Police [2006] NSWADT 307

CITATION: QR v Commissioner of Police, NSW Police [2006] NSWADT 307

DIVISION: General Division

APPLICANT PARTIES: QR RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 052415

HEARING DATES: 26/06/06, 31/07/06

SUBMISSIONS CLOSED: 07/31/2006

DATE OF DECISION: 11/01/2006

BEFORE: Leal S - Judicial Member

CATCHWORDS: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Security Industry Act 1997 Security Industry Regulation 1998

Abdel-Ghani v Commissioner of Police, NSW Police Service [2002] NSWADT 20 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 CASES CITED: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Saadieh v Director General, Department of Transport [1999] NSW ADT 68

APPLICANT In person REPRESENTATION: RESPONDENT W Pisani, agent

ORDERS: Pursuant to s63 of the Administrative Decisions Tribunal Act 1997, the Commissioner's decision to refuse the applicant's Class 1ABC security licence is affirmed.

REASONS FOR DECISION Introduction 1 QR is a 39 year old man whose application for a Class 1ABC security licence was refused on 6 September 2004 by the Commissioner of Police. The licence was refused on the basis that it was not in the public interest for QR to be granted a security licence and that he was not a fit and proper person to hold such a licence. 2 In reaching this decision, the Commissioner of Police referred to QR's conviction on a charge of conspiracy to import a commercial quantity of a prohibited drugs, namely cocaine, for which QR was sentenced on 5 October 1993 to a term of imprisonment of four years with a non-parole period of two years and six months. 3 An internal review of this decision, which was conducted on 3 November 2004, upheld the decision of the Commissioner of Police. 4 QR then lodged an application for review to this Tribunal, differently constituted. As part of the proceedings before this Tribunal, a hearing was held in the absence of QR and his legal representatives, pursuant to section 75(2) of the Administrative Decisions Act and section 15(6)(a) of the Security Industry Act 1997. In making its decision, the Tribunal took into consideration confidential material placed before it by the Commissioner of Police. 5 On 7 June 2005, the Tribunal affirmed the decision of the Commissioner of Police to refuse to grant a Class 1ABC security licence to QR. QR appealed this decision to the appeal panel of the Tribunal who, on 14 November 2005, allowed the appeal and ordered that the matter be reheard by the Tribunal, differently constituted. 6 In its decision, the appeal panel gave the following directions for the further consideration of the matter: 1. To reconsider whether any of the confidential evidence should be exposed to the appellant (with the Tribunal to give parties the opportunity to make any submissions in this regard). 2. To give confidential reasons if it decides that some or all of the evidence should not be exposed. 3. To allow the respondent to withdraw any evidence and not rely on that evidence, if it is decided that it is evidence that should be exposed to the appellant. 4. To reconsider the appellant's application, in light of the evidence ultimately relied upon by the respondent and any response that the appellant is permitted to give to any evidence previously confidential which has not been exposed. 5. To provide confidential reasons (in addition to its public reasons) if the Tribunal is minded to rely in reaching its decision on any of the confidential evidence. 7 I held a hearing in this matter on 31 July 2006. 8 The first part of this hearing was held in the presence of the representative for the Commissioner of Police, Mr Pisani, and QR, who was, on this occasion, self-represented. A later part of the hearing was held in QR's absence. Open hearing 9 The brief of evidence, including QR's criminal history, and an information report summary was tendered into evidence. Senior Constable Cripps gave evidence for the Commissioner of Police while QR and his wife gave evidence in support of QR's application. 10 Evidence contained in the brief confirms QR's evidence that he was issued a security licence in Tasmania on 5 June 2001 which was valid until 5 June 2004. On 31 May 2004, QR applied for a security licence in NSW. 11 According to QR's criminal history, he was sentenced in 1986 to a three year good behaviour bond for an offence of demand money with menaces and in 1993 to 4 years imprisonment (2 years 6 months non parole period) for conspiring to import cocaine. In 2004, he was fined for using an unregistered vehicle on road area. 12 The Information Report Summary documents an incident on 8 May 2004 during which QR was stopped by a police officer, Senior Constable Cripps, for speeding. According to the report summary and the oral evidence from Senior Constable Cripps, QR had become hostile and threatening towards him. 13 QR gave evidence that he has worked as a security officer since he was eighteen years old in different areas, including clubs, function centres and hospitals. He told the Tribunal that he was professional in his work and keen to further himself. He also said that he had always disclosed his criminal history in his applications and been granted a security licence in Tasmania despite his record. He also noted that it had now been over ten years since his conviction for conspiracy to import cocaine. QR admitted that he had made mistakes and that he now wishes to get on with his future. He told the Tribunal that he believed he was a fit and proper person to be granted a security licence. 14 QR's wife gave evidence that she has been in a relationship with QR for three years but that they have known each other since she was a child. She is aware that he has served time in prison and gave evidence that QR has never been aggressive towards her or her family. Although she has not seen him working in his capacity as a security guard, she told the Tribunal that he always dealt with his work 'in a good way.' 15 Contained on the brief of evidence are a series of certificates held by QR including: Certificate II in Hospitality (Operations) Certificate III in Security (Guarding) Defensive Tactics (Control & Restraint) Senior First Aid Assault Management workshop Fire safety. 16 Also contained on the brief of evidence are references from previous employers of QR in relation to his expertise as a security officer from 2000 to 2004 in addition to a personal reference. 17 In his evidence, QR told the Tribunal that I have made mistakes many years ago and I wish to go on with my future. I believe I do have a future in this industry and believe I am fit and proper. Confidential hearing 18 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 of evidence given before the Tribunal to some or all parties. 19 Mr Pisani sought to have a confidential hearing in this matter. 20 In the absence of QR, the Tribunal heard from Mr Pisani as to the nature of the material he wished to put before the Tribunal. This included: [details of confidential material deleted] 21 Having heard Mr Pisani's submissions in relation to the material that he wished to tender to the Tribunal on a confidential basis, I then re-convened the hearing to discuss the situation with QR. I told QR that I was considering whether I should allow the tender by Mr Pisani of material which would be provided to me on a confidential basis. I told QR that I was not able to disclose the nature of the material but wished to hear his views on the tender of the material. 22 QR said to the Tribunal: I have no objection to the tender of the material. How can I object to something, I don't know what it is? It's like being found guilty without being able to be proven innocent. 23 I then re-convened the confidential proceedings with Mr Pisani, in the absence of QR. 24 It is my view that the confidential information is 'of such importance and cogency that justice is more likely to be done by receiving the information in confidence and denying the party access to it than by refusing an order to exclude the party.' Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. 25 Having allowed this information into evidence, I then asked QR back into the hearing room and requested any further submissions from him. He told the Tribunal that: I've never done anything wrong in the line of duty. Bosses say good things about me. I've worked in hospitals and liaised with Police in all things. I have held my head up high and will continue to do that. I've had my livelihood taken away from me. I have studied a lot and will continue. Review decision 26 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.) 27 The Commissioner refused to grant a class 1ABC Security Licence to QR for two reasons: because he was not satisfied that QR was a fit and proper person to hold the class of licence sought and because he considered that the grant of the licence would be contrary to the public interest. Public interest & fit and proper person 28 Section 15(1)(a) of the Security Industry Act 1997 requires an application for a security licence to be refused if the Commissioner of Police (or in this case, the Tribunal) is of the view that the applicant is not a fit and proper person. Section 15(3) of the Security Industry Act 1997 provides that an application for a security licence may be refused if the Commissioner (or Tribunal) considers that it would be contrary to the public interest. 29 According to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question of 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. 30 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17], the Deputy President of this Tribunal set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority. These included: the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; · the nature, seriousness and frequency of any complaints made against the applicant; · the applicant's reputation in the community; and · the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 31 I agree with the view taken by the Tribunal in Abdel-Ghani v Commissioner of Police, NSW Police Service [2002] NSWADT 20, that these factors are readily adaptable to the requirements of the Act when determining a person's fitness and suitability to hold a security licence. Public Interest 32 Section 15(3) of the Security Industry Act 1997 provides that an application for a security licence may be refused if the Commissioner (or Tribunal) considers that it would be contrary to the public interest. 33 The evidence before me includes QR's criminal history which comprises convictions for the following offences: in 1986, demand money with menaces; in 1993, conspiracy to import cocaine and in 2004, for using an unregistered vehicle on road area. 34 In addition to his criminal history, there is the following evidence before me: Threatening and hostile behaviour by QR towards Senior Constable Cripps on 8 May 2004, as documented in Police Information Summary and outlined in oral evidence by Senior Constable Cripps; [details of confidential material deleted] 35 [Consideration of confidential material deleted] 36 Having heard Senior Constable Cripps' evidence which was tested through cross-examination by QR, I accept his evidence that QR was hostile and aggressive towards him to the extent that Senior Constable Cripps felt threatened and advised other officers of the situation. 37 I accept that QR has worked hard to add to his qualifications in the security industry and that he held a licence in Tasmania from 2001 to 2004. I also note that he last came to the notice of the police in 2004. Since this time, he has married and that his wife has provided evidence as to his solicitous behaviour towards her. I accept that QR is committed to the security industry and has taken steps to improve his qualifications within this area. 38 Nevertheless, taking into account the evidence of threatening behaviour by QR, together with QR's criminal history, which includes the conviction for the offence of conspiracy to import cocaine, it is my view that it would not, at this stage, be in public interest for QR to be granted a security licence. Fit and proper person 39 As I have determined that it would not be in the public interest for QR to continue to hold a security licence, it is not necessary for me to consider the second ground relied on by Mr Pisani, that QR is not a fit and proper person to hold a licence. Order Pursuant to s63 of the Administrative Decisions Tribunal Act 1997, the Commissioner's decision to refuse the applicant's Class 1ABC security licence is affirmed.