Neilson v Commissioner of Police, NSW Police Force [2008] NSWADT 186

CITATION: Neilson v Commissioner of Police, NSW Police Force [2008] NSWADT 186

DIVISION: General Division

APPLICANT Richard Charles Neilson PARTIES: RESPONDENT Commisioner of Police, NSW Police Force

FILE NUMBER: 073273

HEARING DATES: 10 June 2008

SUBMISSIONS CLOSED: 10 June 2008

DATE OF DECISION: 26 June 2008

BEFORE: Handley R - Deputy President

CATCHWORDS: Security industry licence - revocation of licence

MATTER FOR DECISION: Principal matter

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

Commissioner of Police v Gray [2008] NSWSC 414 MU v Commissioner of Police [2004] NSWADT 197 CASES CITED: Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994)

APPLICANT M Pesman, barrister REPRESENTATION: RESPONDENT G De Courcey, solicitor

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 This is an application by Richard Neilson for a review of a decision of the Commissioner of Police made under the Security Industry Act 1997 ('the SI Act') to revoke Mr Neilson's Class 1 ABC security licence on the ground that he is not a fit and proper person to hold such a licence. Background Facts 2 Mr Neilson is aged 38. He stated that after leaving school, he commenced a greenkeeper apprenticeship, which he completed in 1991. He continued working as a greenkeeper until 1997 and, during this period, he completed a landscaping trade certificate. In 1999, Mr Neilson was employed as "second in charge" at Woodville Golf Course and, from 2000 to 2002, he worked as a lawn consultant. 3 Mr Neilson was first issued with a security licence in 1989 when he commenced casual work as a security guard. Thereafter, he undertook such work at various venues. From 2000 to 2006, he worked for Phantom Security, initially as head doorman and then moving into supervisory work. From 2005, he was their operations manager. In 2006, Mr Neilson was employed as operations manager of TNR Security and, in 2006/2007, he acted as the security supervisor for the Rydges Hotel in Parramatta. This involved supervising up to 65 security guards on Rose Hill race days and liaising with and assisting up to 12 "user pays" police employed by the Rydges Hotel. 4 In about March 2000, Mr Neilson joined the Bandidos Motorcycle Club. He currently holds the position of club secretary in the Northside chapter. 5 Mr Neilson's most recent security licence, a Class 1 ABC licence, was issued on 13 April 2004 with an expiry date of 13 April 2009. He told the Tribunal this licence authorises him to work as a bodyguard or static guard, or undertake mobile guarding work or crowd control. On 4 August 2007, Mr Neilson was served with notification of the revocation of his licence, the stated grounds for the decision being that it was considered he was no longer a fit and proper person to hold a security licence and it was not in the public interest for him to continue to hold such a licence. 6 By letter dated 22 August 2007, Mr Neilson's solicitors sought an internal review of this decision, enclosing 13 character references for Mr Neilson. On 3 September 2007, the decision was confirmed after an internal review. The delegate was satisfied that Mr Neilson is no longer a fit and proper person to hold a security licence. The Relevant Legislation 7 Section 26(1A) of the SI Act states that 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 the Act to be refused. Section 15(1)(a) states that the Commissioner must refuse to grant a licence if satisfied that the applicant "is not a fit and proper person to hold the class of licence sought". Section 15(6) states that for the purpose of so determining, the Commissioner "may have regard to any criminal intelligence report or other criminal information held in relation to the applicant" that is relevant. Section 15(7) states: (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). 8 Pursuant to section 29(1), a person may apply to the Tribunal for a review of a decision to revoke a licence. Section 29(3) provides that in reviewing a decision to revoke a licence on the ground that a person is not a fit and proper person to hold a licence, the Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15(6) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. Oral evidence 9 Sergeant Raphael Rahme, who is attached to Granville Police Station, gave evidence that he first met Mr Neilson when undertaking "user pays" duties at the Rydges Hotel on the corner of James Ruse Drive and Prospect Street at Rose Hill. Sergeant Rahme worked there on at least 30 occasions over a period of about two years. He is aware that Mr Neilson is a member of the Bandidos Motorcycle Club. 10 Mr Neilson was responsible for supervising security at the Hotel. Sergeant Rahme said he thought Mr Neilson carried out his duties in a professional manner and, in doing so, assisted the Police. The number of assaults at the Hotel has dropped dramatically since Mr Neilson took over supervision of security and since there has been a Police presence there. Sergeant Rahme said from the point of view of the Hotel, he would consider Mr Neilson a fit and proper person to hold a security licence. 11 Sergeant William Green, who is attached to Rose Hill Local Area Command, said he has known Mr Neilson since about August 2005 when Mr Neilson was supervisor of the security company working at the Rydges Hotel. Sergeant Green dealt with Mr Neilson on a fortnightly or monthly basis when undertaking "user pays" duties at the Rydges Hotel. There were usually 6 to 12 Police, the majority in uniform, working there in conjunction with the security company. Until 2006, the security company was Phantom Security and thereafter TNR Security. Sergeant Green said his relationship with Mr Neilson was a purely professional one concerning public order management with customers at the Rydges Hotel, mostly those who had attended Rose Hill racecourse. 12 Sergeant Green said he was aware of the nature of these proceedings. He found Mr Neilson to be competent as a security officer, noting that Mr Neilson never did anything illegal or tolerated such behaviour by others. Mr Neilson told him of his membership of the Bandidos Motorcycle Club. Sergeant Green said he did not have a problem with Mr Neilson holding a security licence. 13 Sergeant Graeme Bull, who has served in the NSW Police Force for 19 years, and now works in area licensing at Parramatta, said he first met Mr Neilson in late 2006 when undertaking licensing duties because of Mr Neilson's security activities in that area. Sergeant Bull's only dealings with Mr Neilson have been on a professional basis. Sergeant Bull observed Mr Neilson and his staff undertake their security duties every Thursday, Friday and Saturday nights during the festive season. He said Mr Neilson had a good relationship with licensees and the Police, and Mr Neilson's staff were professional and helpful to the Police. Sergeant Bull said that in his opinion, Mr Neilson's company was one of the best security companies in Parramatta. 14 Sergeant Bull recalled an incident on 18 March 2007, at 12.15 am, when he and Senior Constable Field were in Parramatta near the Roxy Hotel. Sergeant Bull saw Mr Neilson doing a random drive around the area to check on the security situation and had a quick conversation with him. Not long afterwards, a disturbance occurred outside the Roxy Hotel when the crowd turned on Sergeant Bull and Senior Constable Field, during the course of which Senior Constable Field was injured. Mr Neilson was one of the first to come to their assistance, for which Sergeant Bull is very grateful. In cross-examination, Sergeant Bull said he had been assaulted on numerous occasions and has seen members of the public come to the assistance of the Police. 15 Sergeant Bull said he has never seen Mr Neilson do anything illegal nor tolerate such behaviour by others. He is aware that Mr Neilson is a member of the Bandidos Motorcycle Club – he discovered this on entering Mr Neilson's name into the Police computer. Sergeant Bull said in his opinion, Mr Neilson should be permitted to hold a security licence. 16 Mr Neilson provided an affidavit dated 12 February 2008 and gave oral evidence at the hearing. In his affidavit, he set out his employment history, to which reference is made above. He said that in 2006 and 2007, he was the security supervisor for the Rydges Hotel in Parramatta, which involved supervising up to 65 security guards on Rose Hill race days. On race days, he had dealings with between 4 and 12 "user pays" Police employed by the Rydges Hotel, including Sergeants Rahme and Green. On many occasions, he was required to assist the Police with their duties. This included preventing Police being assaulted. 17 Mr Neilson said that on or about 27 January 2007, he participated in a motorcycle poker run for charity with approximately 250 people, including both members of the Bandidos Motorcycle Club and members of the public. In late February 2007, Police Officer Benjamin questioned him about an assault that occurred in the course of the poker run. He told the officer he had been riding up the front and did not see an assault. 18 Mr Neilson said that on 18 March 2007, he had finished work at the Rydges Hotel, Parramatta and was driving a work colleague to the Roxy Hotel on the way home. On arriving at the Roxy Hotel, he saw two licensing Police that he knew, Sergeant Bull and Constable Field. Mr Neilson parked his car and approached the officers with whom he had a brief conversation. During the course of this, a scuffle occurred outside the door of the nightclub between the doorman and a group of males. The two Police officers went to talk to the males and told them to move on. The doorman returned inside the Hotel. One of the group of males then pushed the Police officers and punched Constable Field in the head, knocking him to the ground unconscious. Mr Neilson said Sergeant Bull was struggling with a number of other males, so Mr Neilson ran across the road from his car to assist, restraining the male who had hit Constable Field until further Police assistance arrived, at which time Mr Neilson left. 19 Mr Neilson described how in late March or early April 2007, he was questioned by Police officers after having had dinner with friends at the Ettamogah Hotel at Rouse Hill. The officers were asking questions about the assault that occurred on the Bandidos charity bike run in January 2007. Mr Neilson told them he did not see the assault. He described the manner adopted by the Police on this occasion as "aggressive and uncalled for". One of the officers was Detective Walpole who, in June 2007, while Mr Neilson was in Melbourne, asked doormen working for TNR Security questions about Mr Neilson. Two of the doormen phoned Mr Neilson in Melbourne to tell him of this. Mr Neilson phoned another doorman who Detective Walpole happened to be questioning about Mr Neilson at the time. So Mr Neilson asked to speak to Detective Walpole and repeated that he did not know who was responsible for the assault at the bike run in January. Detective Walpole told Mr Neilson that he knew Mr Neilson was a Bandido, and he said this treatment would continue until Mr Neilson or someone else told him who was responsible for the assault. 20 Mr Neilson said the following Saturday, he phoned Police Officer Benjamin to ask why Detective Walpole was targeting people who worked for Mr Neilson and asking personal questions about him. Officer Benjamin said she had told Detective Walpole that Mr Neilson did not know who was responsible for the assault, but that knowing Mr Neilson was a Bandido, Detective Walpole expected him to find out who was responsible. 21 Mr Neilson gave oral evidence that since his licence was revoked in July 2007, he has helped his fiancé in her pizza shop. She is pregnant and expecting their baby in early December. Mr Nelson hopes to support her with his security work in the future. Mr Neilson's Submissions 22 Mr Pesman, for Mr Neilson, referred to the Supreme Court decision in Commissioner of Police v Gray [2008] NSWSC 414 ('Gray'), where Associate Justice Malpass found that that an order made by the Tribunal for the Commissioner to provide details of any alleged conduct that supported the contention that Mr Gray was not a fit and proper person to hold a security licence, did not involve the disclosure of the content of confidential material contrary to section 15(7) of the SI Act. 23 Mr Pesman raised as a preliminary issue Mr Neilson's lack of knowledge as to why his security licence was revoked. He submitted that the references available to the Tribunal support the view that Mr Neilson meets the minimum standards to work in the security industry and, moreover, that he is an exceptionally good manager of security for licensed premises, with an ability to defuse potentially violent situations. Mr Pesman said the only matters advanced against Mr Neilson are contained in reports not available to him. However, it appears likely that the Respondent's real difficulty with Mr Neilson is his membership of the Bandidos Motorcycle Club, a fact predating the issue of his 2004 licence. 24 Mr Pesman submitted that pursuant to the decision in Gray, Mr Neilson is entitled to know the nature of the alleged conduct that renders him not a fit and proper person to hold a licence. Mr Pesman asked the Tribunal to make an order for further particulars. 25 Mr Pesman doubted that the internal review delegate had undertaken, as claimed, a full and independent review of all relevant matters, in particular, because the reasoning bears a striking similarity to that in MU v Commissioner of Police [2004] NSWADT 197. Mr Pesman also noted that in Gray, the Commissioner submitted that reference should not be made to the Second Reading Speech (for the Security Industry Amendment Bill 2002) in determining the meaning of 'fit and proper person' in the SI Act, since such extrinsic material could only be taken into account where the meaning of a statutory provision is ambiguous or obscure. However, in the internal review decision in this matter, the delegate referred to the Second Reading Speech at length and, specifically, set out the following passage: "It is the view of NSW Police that persons who are known to have extensive links to organised crime figures, who are members of an Outlaw Motor Cycle Gang linked to organised crime, or who are suspected of offences relating to drug trafficking, murder or other violence offences, should be regarded as 'not fit and proper' to hold a security licence." 26 Mr Pesman said there is no such thing as an Outlaw Motor Cycle Gang. He noted that the delegate expressed the view that: "I would find it difficult to convince the public that your client holds the necessary attributes consistent with the standard of behaviour and integrity required to hold a licence." 27 However, it appeared from the decision that while the delegate took into account entries concerning Mr Neilson on the Computerised Operational Policing System ('COPS') and in Police Intelligence Reports, no further enquiries were made and the delegate "glossed over" the references provided in support of Mr Neilson's application. 28 Mr Pesman noted that, as in Gray, the Respondent has disclosed the existence of confidential material – Police Intelligence Reports – contrary to section 15(7) of the SI Act. In Gray, at paragraph 31, Associate Justice Malpass said that if there is an ambiguity as to the intention of Parliament, reference could be made to the Second Reading Speech where, relevantly, reference was made to the legislation not being designed "to circumvent the appeals process or hinder the ADT or the courts in the exercise of their review functions". Mr Pesman submitted that it should be possible to provide some information to Mr Neilson so that he is aware of the reason for taking his livelihood away. 29 Mr Pesman provided a schedule of Tribunal decisions dealing with challenges to the Respondent's security licensing decisions, noting that no review applicant has ever succeeded in having a licence restored where the Respondent has relied on confidential information and section 15(7) of the SI Act. Applicants have been denied the opportunity to test what has been alleged against them. He submitted that the Tribunal should be circumspect in dealing with the confidential information and should not accept at face value what is contained in that information. 30 Mr Pesman submitted that the following matters strongly indicate that Mr Neilson is a fit and proper person to hold a security licence: (1) he has worked in the industry for almost 20 years with no suggestion prior to 2007 that he was unsuitable to do so; (2) he has gone to the aid of Police officers in difficulty without regard for his personal safety: and (3) his references specifically relate to his fitness for work in the industry, including as to his ability to defuse potentially violent situations. Moreover, three Police officers, who have a history of dealing with Mr Neilson immediately before the revocation of his licence, gave oral evidence at the hearing that he is a fit and proper person to hold a licence and made positive comments about his work. 31 Mr Pesman noted that Mr Neilson has not committed a criminal offence. He said it is ironic that in some cases where a review applicant has committed a criminal offence, their licence has been returned to them, yet Mr Neilson has not committed an offence and does not know the nature of the case against him. Membership of the Bandidos Motorcycle Club is not illegal in New South Wales and the fact that other members of the Club have been involved in criminal activities should not affect Mr Neilson if he has not been involved. It seems here that Mr Neilson has been judged guilty by association. The Respondent's Open Submissions 32 Mr De Courcey, for the Respondent, noted that of the 13 references provided to the Respondent with Mr Neilson's request for an internal review, only three refer to their knowing Mr Neilson is a member of the Bandidos Motorcycle Club. Moreover, one of the referees, Jason Coughran, was dismissed from the NSW Sheriff's Office for misconduct, and Mr De Courcey submitted no weight should therefore be accorded to it. (Mr Pesman acknowledged this, but noted that Mr Coughran still holds a security licence.) 33 With regard to the decision in Gray, Mr De Courcey noted that in that case the Judicial Member had heard evidence from the Commissioner in confidential session and indicated that he proposed to have regard to that material: Gray, at paragraph 5. Moreover, as Associate Justice Malpass said, at paragraph 12, "it may be inferred that the Judicial Member considered that the particulars could be provided without a disclosure of the content of the confidential material". Further, at paragraph 38, His Honour noted that the Commissioner had not provided any evidence "that the providing of particulars would involve disclosure of the content of confidential material". At paragraph 34, His Honour said: "34. What the order for particulars made in this case requires the plaintiff to do is to provide his allegations as to time, place and manner of what is restricted to "conduct" relied on to support the contention that the first defendant is not a fit and proper person to hold a security licence. The order is not framed in terms that require the disclosure of the existence or content of any confidential information." 34 Mr De Courcey noted that His Honour recognised, at paragraph 26, that each case "largely turns on its own particular circumstances". 35 Mr De Courcey said the Respondent relies on section 15(7) of the SI Act and the confidentiality of the Police intelligence information provided to the Tribunal. He submitted that the evidence of the three witnesses did not go to the revocation of the licence. With regard to Mr Pesman's submission concerning Mr Neilson's loss of livelihood, Mr De Courcey contended that the revocation did not prevent Mr Neilson from working – only in the security industry. 36 Mr De Courcey made an application under section 75(2) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') for the Tribunal to hear submissions from the Respondent in private and for an order prohibiting publication of any report of those proceedings. Having satisfied myself that it was desirable to do so by reason of the confidential nature of the evidence and the Respondent's submissions concerning that evidence, I made the requisite orders. The Respondent's Confidential Submissions 37 Non-Publication Order 38 Non-Publication Order 39 Non-Publication Order 40 Non-Publication Order 41 Non-Publication Order Open Discussion 42 Mr Pesman referred me to the decision in Gray and asked me, as a preliminary issue, to make an order requiring the Respondent to provide Mr Neilson with particulars of the alleged conduct the Respondent says supports the contention that Mr Neilson is not a fit and proper person to hold a security licence. Mr Pesman stated that Mr Neilson's references support the view that he meets the minimum requirements for the grant of a security licence and the only matters advanced against him appear to be in reports not available to him. Mr Pesman noted that the Respondent resists such an order and contends that the provision of further particulars would disclose Police intelligence contrary to section 15(7) of the SI Act. 43 I have reviewed the Police Intelligence Reports provided to me in confidence by the Respondent and have considered the Respondent's confidential submissions on this intelligence. I note the Respondent has informed Mr Neilson of the existence of Police Intelligence Reports but not of the content of those Reports. I acknowledge the difficulty faced by Mr Neilson in trying to address the case advanced against him without knowing what that case is. Obviously, this raises significant natural justice issues. He is in the unenviable situation that he can only guess at the case advanced against him. Mr Pesman said it appears likely that the Respondent's real difficulty with Mr Neilson is his membership of the Bandidos Motorcycle Club. Having reviewed the confidential material, I am satisfied that it is alleged conduct that is the basis for the Respondent's determination. 44 I note that the alleged conduct on which the Respondent's decision is based does not include an assault that occurred in the course of a charity motorcycle ride on 27 January 2007. Mr Neilson has always maintained he knew nothing of this assault or who was responsible, but it is clear that he believed the Police investigation of that matter might be a factor in the revocation of his security licence. On 3 June 2008, I upheld the Respondent's objection to producing documents in relation to the investigation of that matter, pursuant to a summons, on the ground that there was no legitimate forensic purpose to the production of the documents sought in relation to the present proceedings. 45 In my view, the facts of this matter can be distinguished from those in Gray because, unlike in Gray, further particulars of the alleged conduct relating to Mr Neilson could not be provided without disclosing the content of the confidential material. Thus, I am satisfied, that pursuant to section 15(7), the Respondent is not required to disclose further particulars of the alleged conduct. 46 The principal issue is whether Mr Neilson is a 'fit and proper person' to hold a security licence. As explained above, section 26(1A) of the SI Act requires the Respondent to revoke a licence if satisfied that this is no longer the case. 47 The meaning of the phrase 'fit and proper person' was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at paragraph 9, where Dixon CJ, McTiernan and Webb JJ found the word 'fit', in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase 'fit and proper person' was also discussed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said at paragraph 36 of their judgment: "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." 48 As their Honours recognised, at paragraph 66, whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed. Where there is evidence of misconduct, amongst relevant considerations are the seriousness of the misconduct to the particular activity, whether the misconduct is an isolated incident, and the person's underlying qualities of character: see McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994) , in particular, the judgments of Kirby P, at paragraphs 21 to 26, and Powell JA, at paragraphs 59 to 73. 49 Thus, whether Mr Neilson is a fit and proper person must be determined in the light of the activities likely to be undertaken by the holder of a security licence. Mr Neilson has worked in the security industry since 1989. The fact that he has risen from a position as doorman to a supervisory position responsible for managing a significant number of security guards and venues indicates he is proficient in this work. Mr Neilson provided 13 references with his internal review application. These speak highly of Mr Neilson's work. I note that one of the referees, Jason Coughlan, was dismissed from the NSW Sheriff's office for misconduct and, as Mr Pesman acknowledged, his reference should therefore be discounted. I also note that only two referees (one being Mr Coughlan) make reference to Mr Neilson's membership of the Bandidos Motorcycle Club and one other referee does so obliquely. Several referees speak of Mr Neilson's ability to defuse potentially violent situations. 50 The three Police sergeants who gave oral evidence at the hearing and who had worked with Mr Neilson all commended Mr Neilson's professionalism. They were aware of his Motorcycle Club membership and yet considered him fit to hold a security licence. Sergeant Bull spoke of the incident on 18 March 2007 when Mr Neilson came to the assistance of him and Senior Constable Field, for which Sergeant Bull said he was very grateful. This incident is described in the COPS entries, a copy of which Mr Neilson annexed to his affidavit dated 12 February 2008. 51 Thus, the evidence presented on behalf of Mr Neilson is very favourable in terms of his fitness to hold a security licence. On the other hand, the Respondent has presented me with confidential information with allegations of conduct in which Mr Neilson has been involved, of which Mr Neilson is unaware and has therefore had no opportunity to address. I agree with Mr Pesman that in such a situation I must be circumspect in the weight I attribute to such information. 52 However, whilst acknowledging this, having reviewed the confidential information, which comprises a number of Police Intelligence Reports, the existence of which the Respondent has revealed to Mr Neilson although not their content, I am satisfied that the confidential information indicates Mr Neilson is not a fit and proper person to hold a security licence. The alleged conduct referred to in the confidential information is of a serious nature and, bearing in mind the context of Mr Neilson's work in the security industry, I am satisfied that the revocation of his licence is the correct and preferable decision. 53 Mr Pesman suggested that for Mr Neilson, loss of his licence equated to loss of his livelihood. I accept that Mr Neilson has worked in the security industry for 18 years, from 1989 to 2007, and, it appears has risen through the industry by dint of his work. However, he also worked as a greenkeeper for many years and, it appears, in golf club management. If he is as competent as his referees make him out to be, it seems likely that he will find other avenues of employment, especially given his relatively young age of 38 years. Confidential Discussion 54 Non-Publication Order 55 Non-Publication Order Orders The decision under review is affirmed.