Williams v Commissioner of Police, NSW Police [2007] NSWADT 102

CITATION: Williams v Commissioner of Police, NSW Police [2007] NSWADT 102

DIVISION: General Division

APPLICANT PARTIES: Troy Joseph Williams RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 063302

HEARING DATES: 31 October 2006

SUBMISSIONS CLOSED: 2 January 2007

DATE OF DECISION: 1 May 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: 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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 CASES CITED: IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 McDonald v Director General of Social Security (1984) 1 FCR 354 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 QR v Commissioner of Police, NSW Police [2006] NSWADT 307

APPLICANT P Krebs, barrister REPRESENTATION: RESPONDENT W Pisani, solicitor

ORDERS: The decision to refuse Mr Williams' application for a security licence is affirmed

REASONS FOR DECISION BACKGROUND 1 Mr Williams held a Class 1ABC security licence in NSW that expired in November 2002. In May 2006 he applied for the issue of a new licence. The Commissioner of Police refused that application on the basis that Mr Williams was not a fit and proper person to hold such a licence and that it is not in the public interest for him to do so. 2 In reaching this decision, the Commissioner of Police referred to a number of Police reports, printouts from the Computerised Operational Policing System ("the COPS system") and printouts from the Integrated Licensing System ("the ILS"). 3 Pursuant to section 15(7) of the Security Industry Act 1997 ("the Act") the Commissioner declined to provide Mr Williams with further information regarding those reports. 4 The decision of the Commissioner was upheld after an internal review. Mr Williams has applied to this Tribunal for review of the determination to refuse his application. 5 The first part of the hearing of this matter was held in the presence of Mr Pisani, the representative for the Commissioner, Mr Williams and his counsel Mr Krebs. A later part of the hearing was held in the absence of Mr Williams and Mr Krebs. Each party made submissions. Confidential hearing 6 Generally, Tribunal hearings are held in public. However, under section 75 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), 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. Mr Pisani sought to have a confidential hearing in this matter and I agreed to that request. In the absence of Mr Williams and Mr Krebs, I heard from Mr Pisani as to the nature of the material he wished to put before the Tribunal. Having heard Mr Pisani's submissions in relation to the material that he wished to tender to the Tribunal on a confidential basis, I formed the 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. 7 I determined to proceed on that basis and advised Mr Williams and Mr Krebs accordingly. Consequently Mr Williams was not made aware of the material that was tender on a confidential basis. 8 I agreed to hear from a witness for the Commissioner and to consider the relevant material on a confidential basis. I have given weight to this confidential material and any reference to that material is deleted from the published reasons. Those parts of the decision where the confidential material is discussed are identified as "Subject to suppression order". 9 The brief of evidence filed for the Commissioner contains the material provided to the Commissioner in support of Mr Williams's application, the original determination and the internal review determination. 10 The confidential material tendered to the Tribunal included: A confidential report in relation to Mr Williams comprising print outs of a number of entries contained in the COPS system and the ILS [Subject to suppression order] Mr Williams's case 11 Mr Williams gave evidence that he has held a licence in NSW and has worked in the security industry in both NSW and Qld. He said that he has never had any problems relating to his work in the security industry. He has undertaken the training to obtain the relevant qualifications and has been advised that he will be able to obtain work at Singleton if the licence is granted. 12 His evidence is that he does not knowingly associate with criminals. He is married with two children and his wife is pregnant. 13 Contained in the Commissioner's brief of evidence are relevant certificates held by Mr Williams including Certificate II in Security (Guarding) and Senior First Aid and a statement of the results of his training. Also contained in the brief of evidence are references from David Bennett, Carol Dunn, and Andrew Flint. Each has known Mr Williams for a number of years and has found him to be an honest, polite and responsible person who is worthy of holding a Security Licence. Mr Williams also included statement from Stefan Desch Operations Manager with Imperial Protection Services. Mr Desch indicated that as at April 2001 Mr Williams had been employed by that business on a casual basis for approximately 2 months. He stated that during that period they had received strong positive comments from both venue managers and work colleagues regarding Mr Williams' professionalism and work ethic. 14 Mr Williams asserts that he has not had any criminal convictions for more than ten years, that he is a fit and proper person to be granted a security licence and that there is no public interest reason to preclude the grant of the licence. The Commissioner's case 15 The Commissioner's concerns with respect to Mr Williams' application are outlined in the confidential material that has been filed. Mr Williams is not considered to be a fit and proper person to hold a security licence. 16 [Subject to suppression order] 17 [Subject to suppression order] 18 [Subject to suppression order] 19 [Subject to suppression order] 20 Mr Pisani submitted that it is not in the public interest for Mr Williams to be granted the licence. He argues that Parliament's intention, reflected in the Act, is to ensure that a high standard of the industry and that entry to the industry is restricted to reduce the likelihood of criminal activity. He refers to the decision in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 as indicative of the approach that should be taken. A high standard applies to the grant of a licence. Moral integrity and rectitude of character is an essential requirement of licensees. If a person does not possess these traits it is not in the public interest that they be given the special access that is permitted by the grant of a security licence. 21 Mr Pisani says that the fact that Mr Williams was not spoken to by Police about any particular incident or that he was not charged or convicted of an offence is not a barrier to refusing his application. The approach adopted by police may reflect the fact that victims are afraid to give evidence against a person, or that they withdraw their cooperation following threats against them. He referred to the views expressed by Rice JM in Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 and the authorities cited in that decision at paragraph [21] as making it clear that it is the person's conduct, not the fact of a conviction, which is to be considered. He submits that in light of the evidence presented, the Tribunal should err on the side of caution and affirm the determination to refuse the application. Findings 22 The Commissioner refused to grant a security licence to Mr Williams for two reasons: because he was not satisfied that Mr Williams 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. 23 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.) 24 Section 15(1)(a) of the Act requires an application for a security licence to be refused if the Commissioner is of the view that the applicant is not a fit and proper person. Section 15(3) of the Act provides that an application for a security licence may be refused if the Commissioner considers that it would be contrary to the public interest. The Tribunal stand in the shoes of the Commissioner and has the same powers of the Commissioner in regard to the grant or refusal of the licence and is subject to the same restrictions. Public Interest 25 Section 15(3) of the Act provides that an application for a security licence may be refused if the Commissioner considers that it would be contrary to the public interest. 26 Mr Williams has a criminal history dating back some 15 years and there is evidence before me that was presented on a confidential basis. 27 This evidence supports the Commissioner's concerns in relation to Mr Williams and the possibility of his involvement in criminal activity. I note that the latest information dates from 2004, however it is clear from the evidence that the Commissioner remains concerned about these potential links. 28 I accept that evidence and I agree with the Commissioner that the Tribunal should err on the side of caution. 29 Taking into account the evidence presented on behalf of the Commissioner it is my view that it would not, at this stage, be in the public interest for Mr Williams to be granted a security licence. Fit and proper person 30 The question of whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. 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. 31 It has been held in this Tribunal (see for example QR v Commissioner of Police, NSW Police [2006] NSWADT 307) that factors which should be considered when determining a person's fitness and suitability to hold a security licence include: 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. 32 As I have determined that it would not be in the public interest for Mr Williams to continue to hold a security licence, it is not necessary for me to consider the second ground relied on by Mr Pisani, that Mr Williams is not a fit and proper person to hold a licence. DECISION The decision to refuse Mr Williams' application for a security licence is affirmed.