MU v Commissioner of Police, New South Wales Police [2004] NSWADT 197

CITATION: MU v Commissioner of Police, New South Wales Police [2004] NSWADT 197 DIVISION: General Division APPLICANT PARTIES: MU RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 033272 HEARING DATES: 30/04/2004, 28/05/2004, 26/08/2004 SUBMISSIONS CLOSED: 08/26/2004 DATE OF DECISION: 09/08/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 CASES CITED: Director of Public Prosecutions v Smith (1991) 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs McDonald v Director General of Social Security (1984) 1 FCR 354 APPLICANT REPRESENTATION: N Obrart, barrister RESPONDENT P McLaughlin, solicitor ORDERS: The decisions of the Commissioner of Police, New South Wales Police Service to refuse the applications by MU for the grant of a Class 1 ABC security licence and a Master licence under the Security Industry Act 1997 are affirmed

REASONS FOR DECISION The Application 1 These proceedings relate to a decision by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to refuse applications under the Security Industry Act 1997 ("the Act") for the grant of a Class 1 ABC security licence and a Master licence. I have decided, because of the sensitivity of the information in this case, not to publish the Applicant's name and to delete any other information which could lead to his identification. In these reasons I refer to the applicant as "MU". 2 MU had previously held a Class 1ABC Security Licence. That licence was issued on 14 August 2001 and expired on 14 September 2002. He reapplied for issue of a licence after the expiry date. The NSW Police Service received that application on 31 December 2002. The application for a Master Security Licence on behalf of a business ("MU's business") was received 23 April 2003. The applications were refused and a Refusal Notice was served on 25 August 2003. 3 By letter dated 1 September 2003 MU's solicitors requested an internal review of the decision to refuse the applications. A delegate of the Commissioner undertook the review and it was finalised on 24 September 2003. The decision ("the internal review decision") was made that the Commissioner's decision to refuse MU's licence applications is to stand. The Commissioner's delegate gave detailed reasons for the decision and MU was notified of the outcome of the review and those reasons. 4 At the commencement of the hearing Mr. McLaughlin made an application under section 75(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") for the matter to be heard in the absence of the public. I agreed to this application. Mr. McLaughlin made a further application that part of the proceedings be heard in MU's absence. This request was granted and the matter was partly heard in the absence of both MU and his legal representatives. The initial hearing was completed on 28 May 2004, however I subsequently directed that the matter be relisted so that the Commissioner's evidence could be further tested. This took place on 26 August 2004, again in the absence of both MU and his legal representatives. Background 5 MU is an office bearer in a prominent motorcycle gang. He has held that office for several years and during that time has been the subject of police scrutiny. As a consequence, the Police Service has compiled a significant amount of intelligence information in relation to MU. 6 Some of that information was made available to MU through the hearing process however the much of it was not provided to him. This evidence was presented in MU's absence and is considered pursuant to section 15(6) of the Act. 7 MU provided a statement in which he challenged the reliability of much of the information that was made available to him. He also asserts that the remainder of the information cannot be considered as reliable. It is common ground that MU has never been either interviewed by Police or charged in relation to any of the issues referred to in the Commissioner's material. Nature of proceedings 8 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the 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 another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 9 These are not adversarial proceedings in which MU carries an onus of proof. MU, by making the application, triggers a process of merits review by the Tribunal. MU does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. MU and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the ADT Act. 10 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, 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). 11 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357). Applicable Legislation 12 As indicated above, an order was made under section 75(2) of the ADT Act. Section 75 of the ADT Act provides: "75 Proceedings on hearing to be conducted in public (1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. (2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies. (2B) The Tribunal may from time to time vary or revoke an order made under subsection (2). (3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private." 13 Section 15 of the Act provides: " 15 Restrictions on granting licence--general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) is not a fit and proper person to hold the class of licence sought by the applicant, or (b) is not of or above the age of 18, or (c) does not hold the qualifications and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or (d) is not competent to carry on the security activity to which the proposed licence relates, or (e) is not an Australian citizen or a permanent Australian resident. (2) The Commissioner must refuse to grant an application for a licence to carry on a security activity that involves the possession of a firearm if the applicant is not authorised by a licence or permit under the Firearms Act 1996 to possess or use the firearm. (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. (5) A reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (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)." 14 The issue for this Tribunal is: what is the correct and preferable decision? The decision to be made is whether MU is a fit and proper person to hold the class of licences sought or whether the grant of the licences would be contrary to the public interest. The Commissioner's Case 15 The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. As indicated above, additional material was put in evidence in MU's absence and the Commissioner relies on that evidence. 16 The Commissioner argues that MU is not a fit and proper person to hold the licence sought and further, that the grant of the licence would be contrary to the public interest. 17 The reasons provided following the internal review provide a reasonable summary of the Commissioner's arguments. Those reasons stated in part: "D. REASONING PROCESS: 9. The Security Industry Act, 1997 established a scheme for licensing people to carry on security activities. Within the Act, there are clearly defined circumstances where the Commissioner must refuse to grant an application for a licence. Additionally, the Commissioner may refuse to grant a licence where it is not considered in the public interest to do so. I have formed the view that the legislative provision listed above is relevant to your client's particular case. Further, I have noted the issues raised by you. 10. After fully and independently considering all relevant matter, I make the following fresh determination. 11. Your client's application has been received for a Class 1ABC security licence: The duties authorised by a Class 1A licence include the guarding and protection of persons and property including the transport of cash and other valuables (hotel, club revenue and gaming machine takings), static and mobile patrols and security monitoring station activities; The activities authorised by a class 1 B licence include providing close personal protection. The duties authorised by a class 1 C include engaging in crowd control activities at public and private venues which may include public exhibitions and concerts, monitoring access to licensed premises, hotels, clubs, nightclubs, etc and ejecting patrons from these venues. Your client also applied for a Master licence on behalf of [MU's business] and a Master licence authorises the licensee to conduct a business of providing properly licensed persons to carry on security activities. 12. The Security Industry Act 1997, enacted by government in 1998, 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. 13. When considering an individual's right to be granted a licence under the Security Industry Act, 1997, I formed the view that any decision should be made with the specific consideration to whether the applicant is of fit and proper character to be granted a licence and if it is in the public interest for a licence to be issued. In this regard, criminal record and other checks are undertaken as to identify persons who fail to meet the criteria and thereby refuse the grant of such licences. 14. I have taken into consideration a number of Police reports and at this stage I decline to provide you with further information regarding these reports, in accordance with Section 15(7) of the Security Industry Act 1997, as inserted by the Security Industry Amendment Act, 2002 15. Regarding the concept of "fit and proper" in the context of the Security Industry Act 1997 and for the purpose of the revocation of your security licence, the Second Reading speech for the Security Industry Amendment Bill 2002 by Mr. Gaudry (Parliamentary Secretary) on 12 November 2002 established that "... Currently section 15(1)(a) of the Security Industry Act provides that the Commissioner of Police must refuse a security licence application if the Commissioner is satisfied that the applicant is not a fit and proper person to hold the class of licence which is being sought. However there is no definition of "fit and proper person" in the legislation. As a result, the current security licensing system allows persons who are not fit and proper persons, because they are suspected but not charged or convicted of criminal or terrorist links, access to sensitive information and premises as a result of being granted a security licence. The difficulty from a licensing perspective is that such persons of concern have not been subjected to a charge which would automatically preclude them from obtaining a security licence. This may be due to the fact that victims are afraid to lay charges against the person, or that they withdraw charges following threats against them. The only basis the Commissioner could refuse a security licence under these circumstances would therefore be on the grounds that the applicant is "not fit and proper" or it is "not in the public interest" that he/she receive a licence. The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security. 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. However, 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. Justices 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 person" 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 those 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" The Deputy President of the Administrative Decisions Tribunal has also held that there should be some 'nexus' between the conduct complained of and the activities to which the licence relates. This would apply, for example, in the case of a security guard who is reported to be associated with criminals with convictions for the armed robbery of banks. It is therefore considered that there is insufficient direction within the Security Industry Act to ensure that the balance is maintained between the interests of public safety in ensuring a crime free security industry, and the interests of individual licence holders in retaining their licences to work within the industry. To this end, it is proposed to clarify the definition of "fit and proper person" in section 15 of the Act such that it can be clearly seen to include, but is not limited to, circumstances where: criminal intelligence is held on a licence applicant/holder which has a relationship to the duties performed under the licence applied for/held; which cause the Commissioner of Police to conclude that improper conduct is likely to occur if the person were to be granted/continue holding a security licence; or which cause the Commissioner of Police to not have confidence that improper conduct will not occur if the person were granted/continued to hold a security licence. Clearly it is in the public interest that persons thought by police to present a public safety or a 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 with a specific criminal offence" ... (Hansard page 6544). 16. Regarding 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 It is my understanding that the authority conferred upon the holder of a security licence is granted by the Commissioner of Police with the clear expectation that the licensee utilizes that authority for the good order of society and for the well being of its members or 'in the public interest'. I consider that the need for your client to be granted a security licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 provides: "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." 17. Finally, public interest in the context of Section 15 (1) (3) of the Security Industry Act 1997 requires paramount consideration be given to public safety. I have taken into account all the Police reports involving your client and I have weighed these factors against your client's desire to obtain a security licence together with your submission. Having considered the aforementioned, and with a focus upon public safety, I am not satisfied that it would be in the interest of the public for your client to hold a security licence. Further, I am of the opinion that in the context of the Security Industry Act, 1997 your client is not a fit and proper person to be granted a security licence and accordingly affirm the decision of the delegate of the Commissioner to refuse the grant of your client's application for a security licence." MU's case 18 MU presented evidence in the form of statements with annexures. Those statements provide a response with respect to that part of the Commissioner's material which was made available to him as well as a considerable amount of material which support his assertions as to the legitimacy of his various business activities. His case is essentially based on the argument that even though he has been the subject of close scrutiny for many years he has never been interviewed or charged with any of the offences that are suggested by the Commissioner's material. 19 MU also stated that he holds licences that have required assessment of his fitness and propriety. Accordingly, given the total absence of any charges or even questioning, the Commissioner should have no doubt that he is a suitable person to the hold the licences he seeks. 20 Several written testimonials were provided in support of MU's application. Those testimonials support the position put by MU that he is honest and reliable and a man of great integrity. 21 MU also relies on a statement by Mr Bryan Coulthart, a Security Consultant. After setting out his background and experience, Mr Coulthart states: "9. I have inspected a bundle of documents being police intelligence documents which are annexed to the Statement of MU ('the Intelligence Documents'). 10. During my period of work as a criminal Intelligence Analyst, I was involved in obtaining the type of information that is contained in the Intelligence Documents as part of my proactive an reactive duties within the New South Wales Police Service. 11. I have been requested to provide my opinion based on my experience referred to above as to the accuracy and reliability of the form of police information that is contained in the Intelligence Documents. 12. The type of information contained in the Intelligence Documents is typically obtained by general duty Police Officers, who are usually junior in rank and inexperienced. 13. In my experience, information such as that contained in the Intelligence Documents would more often than not be just information not intelligence. Intelligence is information that has been through a process where it is analysed. Often information such as that contained in the Intelligence Documents that is subsequently analysed, is often found to be inaccurate and unreliable. 14. If this information is correct, then charges would be preferred upon the persons of Interest contained within the report. 15. The reasons for the often inaccuracy and unreliability of such information was often found to have been caused by the inexperience of Police obtaining the information. The integrity of the source of the information has not been scrutinised, some facts are assumed and are not verified. The whole report is graded generally where usually only some information contained within the reports can be verified by other sources." 22 MU directly challenged some of the Commissioner's material that he has been given as factually incorrect. Ms Obrart submitted that it can be reasonably inferred that Mr Coulthart's comments would be applicable to that part of the Commissioner's material which has not been made available to MU. Reasons and decision 23 In my view the reasons provided in relation to the internal review decision correctly state the law in regard to the approach to be taken in deciding whether an individual is a fit and proper person to hold a security licence or whether it is not in the public interest for them to do so. It serves no purpose to repeat it here. 24 Mr. McLaughlin, for the Commissioner, submits that the material placed before the Tribunal in MU's absence makes it abundantly clear that MU is not a fit and proper person to hold a security licence and that it is not in the public interest for him to do so. I agree with that submission. 25 In determining whether MU should be granted the licences sought I have taken into account evidence to which he is not privy. Further, I have concluded that he should not be made aware of that evidence. On the basis of that material, I find that the Tribunal's discretion should be exercised against MU being granted the licences. Accordingly, the Commissioner's decisions are affirmed. 26 Section 15(7) of the Act provides that the Commissioner is not required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence of particular types of information. As the Tribunal stands in the shoes of the Commissioner, it follows that the Tribunal similarly has no obligation to provide reasons in those circumstances. It is my view that in the circumstances of this matter no such reasons should be given. 27 I appreciate that this puts MU at a significant disadvantage in that his licence applications are refused and he is given an inadequate explanation for the decision. Nevertheless, that must be the case in these circumstances. I am unable to offer MU any further explanation for this decision. Orders 1. The decisions of the Commissioner of Police, New South Wales Police Service to refuse the applications by MU for the grant of a Class 1 ABC security licence and a Master licence under the Security Industry Act 1997 are affirmed.