Forbes v Commissioner of Police, New South Wales Police [2005] NSWADT 151

CITATION: Forbes v Commissioner of Police, New South Wales Police [2005] NSWADT 151 DIVISION: General Division APPLICANT PARTIES: Travis Richard Forbes RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 053053 HEARING DATES: 16/05/2005 SUBMISSIONS CLOSED: 05/16/2005 DATE OF DECISION: 07/06/2005

BEFORE: Leal S - Judicial Member APPLICATION: Security Industry Act - security industry licence -grant of licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Road Transport (Driver Licensing) Act 1998 Security Industry Act 1997 Security Industry Regulation 1998 Abdel-Ghani v Commissioner of Police, NSW Police Service [2002] NSWADT 20 CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 McDonald v Director General of Social Security (1984) 1 FCR Saadieh v Director General, Department of Transport [1999] NSW ADT 68 REPRESENTATION: M Bellingham, solicitor 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 set aside.

REASONS FOR DECISION 1 Mr Forbes is a 26 year old man who applied for a Class 1ABC security licence under s11 of the Security Industry Act 1997. When the Commissioner of Police refused to grant the application, Mr Forbes applied to the Administrative Decisions Tribunal ("the Tribunal") to review the decision (Security Industry Act 1997, s29). Review decision 2 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. (Administrative Decisions Tribunal Act 1997, s63) 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.) 3 The Commissioner refused to grant a class 1ABC Security Licence to Mr Forbes under s15(1)(a) of the Security Industry Act 1997 because he was satisfied that Mr Forbes was not 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. It would appear that this decision was made because Mr Forbes has a conviction under section 22 of the Road Transport (Driver Licensing) Act 1998 for falsely obtaining a drivers licence by statement or misrepresentation and because he allegedly provided false information in relation to questions he answered in his application for a Class 1ABC security licence. 4 The evidence before me in relation to this application can be divided into two categories: Mr Forbes' conviction under the Road Transport (Driver Licensing) Act 1998 and whether he provided false information in response to questions 3.1 and 3.2 on the application form for a Class ABC security licence. Conviction 5 In 1999, Mr Forbes pleaded guilty to falsely obtaining a drivers licence by statement or misrepresentation under section 22 of the Road Transport (Driver Licensing) Act 1998. Mr Forbes had used a friend's birth certificate to obtain a driver's licence for himself. At the time of the offence, Mr Forbes was 19 years old, he was working as a security guard and had lost his drivers licence. According to Mr Forbes' evidence, he lost his licence at a "time that he could not afford to lose it" and it was for this reason that he used his friend's birth certificate to obtain a licence. In his evidence, Mr Forbes agreed that this was a stupid thing to do and that he would never do it again. Since this time, Mr Forbes has been fined for speeding but has had no further traffic or criminal convictions. He has retained his firearms licence which expires on 26 October 2005. 6 When he was arrested, Mr Forbes told the police that he was concerned that if convicted for the offence, he risked losing his security licence. According to his evidence, the police told Mr Forbes that he would be charged under the Traffic Act and that, provided he were to plead guilty, the conviction would not affect his security licence. On this information, and without any legal advice, Mr Forbes accordingly pleaded guilty and was fined $400. Mr Forbes told the Tribunal that he believed that the offence formed part of his traffic record and would not be recorded on his criminal record. 7 Following his conviction, Mr Forbes' security licence was revoked on the basis that he had been convicted of a prescribed offence involving fraud or dishonesty. Upon review, the original decision was set aside and Mr Forbes' licence reinstated until its expiry in September 2004. Application form 8 On 10 September 2004, Mr Forbes completed an application form for a security licence. He answered 'no' to question 3.1, which states as follows: Have you ever been refused a Licence or had a Licence suspended, cancelled or revoked in New South Wales or elsewhere? 9 Mr Forbes gave evidence that he provided this answer of the basis that although his licence had been revoked, the decision had been set aside. Mr Pisani for the Police Commissioner submitted that despite the setting aside of the decision, Mr Forbes should still have answered yes to the question and explained the situation in the space available below the question. 10 I do not agree with Mr Pisani. It was a reasonable assumption on the part of Mr Forbes that since the original decision had been set aside, he did not have to disclose it. 11 Mr Forbes also answered 'no' to question 3.2 of the application form, which states as follows: Have you been to court in the last 10 years in New South Wales or elsewhere and been convicted of an offence, eg Monetary Penalty, Good Behaviour Bond, Community Service Order etc? 12 Mr Forbes answered no to this question on the basis of advice received from the arresting police officer that such an offence under section of the Road Transport the Road Transport (Driver Licensing) Act 1998 would not form part of his criminal record. Mr Forbes gave evidence that because of this advice, it was his view that he did not have to disclose his conviction and so could truthfully answer no to question 3.2 on the application form. 13 I accept Mr Forbes' evidence that he did not intend to give a false answer on the application form as he believed that the conviction did not form part of his criminal record, but rather formed part of his traffic record only, and so was not an offence for the purposes of question 3.2 of the application form. Whether Mr Forbes is a fit and proper person 14 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. 15 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 16 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. 17 I agree with Mr Pisani that Mr Forbes' actions in submitting false information the Road Transport Authority show a lack of honesty on his part. 18 In Mr Forbes' favour, however, I note that apart from one speeding matter, Mr Forbes has had not any further matters, either criminal or traffic related, since this date. At the time of the offence he was nineteen years old. Since that time, he has been working in car sales and has continued to act as a security guard. His former employer, Mr Chris Brown, describes Mr Forbes as follows: He has always conducted himself with proficiency and integrity in the performance of his duties, and presents himself in a manner conducive towards both patrons and staff alike. I am aware of the offence that Travis committed when he was 19, and he has discussed it with me. Although there can be no excuses for what he did, in mitigation he realises that he was a complete idiot and puts it down to immaturity. 19 I accept Mr Forbes' contrition in relation to the offence and am satisfied that there is little likelihood that he will re-offend. 20 As I have already discussed, I accept Mr Forbes' evidence that he did not knowingly give false information on his application form for a security licence. 21 For the above reasons, I find that Mr Forbes is a fit and proper person to hold a security licence. Whether it would be in the public interest for Mr Forbes to hold a security licence. 22 Mr Forbes presents as a man who regrets his earlier actions and who since 1999 continued to work without incident as a security guard and who has forged a career in car sales. I am satisfied that there is little chance of re-offending by Mr Forbes and that he is able to demonstrate the type of behaviour that the community could expect of an individual operating within the security industry. For these reasons, it is not contrary to the public interest within the meaning of s15(3) of the Security Industry Act 1997 for Mr Forbes to continue to hold a security licence. Conclusion 23 For the above reasons, I am satisfied that the Commissioner's delegate has not made the correct and preferable decision in refusing to grant a class 1ABC security licence to Mr Travis Forbes. 24 Pursuant to s63 of the Administrative Decisions Tribunal Act 1997, the Commissioner's decision to refuse the applicant's Class 1ABC security licence is set aside.