Mouwad v Commissioner of Police, NSW Police Force [2011] NSWADT 93

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Mouwad v Commissioner of Police, NSW Police Force [2011] NSWADT 93 Hearing dates: 4 November 2010, 6 December 2010 Decision date: 04 May 2011 Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed. Catchwords: Security Industry Act - security industry licence -grant of licence Legislation Cited: Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Hughes and Vale Pty Ltd v State of New South Wales ; [1955] HCA 28; (1955) 93 CLR 127 Texts Cited: Nil Category: Principal judgment Parties: Robert Mouwad (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: C Evatt and M Rollinson (for the Applicant) Teakle Ormsby George (for the Applicant) J Tillott (Agent for the Respondent) File Number(s): 103146 Publication restriction: Paragraphs referred to as [Subject to suppression order] are not to be released other than to the Respondent.

Judgment 1Mr Mouwad has held licences under the Security Industry Act 1997 ("the Act") since May 1999. His licences were revoked in 2002 following convictions for assault. 2In 2007 Mr Mouwad was convicted of the offence 'Owner of massage premises allow prostitution'. On appeal to the District Court he was found guilty of the offence and, pursuant section 10 of the Crimes (Sentencing Procedure) Act 1999, he was placed on a good behaviour bond for 12 months without the Court proceeding to conviction. 3His most recent licence, a Provisional Class 1AC security licence, was issued in November 2008. He was the principal of RSM Protection Group Pty Ltd ("RSM") and was employed by RSM as general manager overseeing all operations of RSM. He was in charge of security covering venues in the Granville and Merrylands area, and venues in the Kings Cross area. 4In 2009, Mr Mouwad submitted an application for a Class 1AC2D licence. 5The application was refused on the basis that the Commissioner's delegate considered that Mr Mouwad is not a fit and proper person to hold a security licence and that it is not in the public interest for a licence to be granted. Mr Mouwad requested an internal review of the decision and the refusal was affirmed. The Commissioner relied on the grounds that Mr Mouwad was not a fit and proper person to hold a licence. The 'public interest' ground was abandoned. 6In the reasons for the determination of the internal review the Commissioner's delegate stated: "When considering an individual's right to be granted a security 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. In this regard, criminal record and other probity checks are undertaken as to identify persons who fail to meet the criteria and thereby refuse the grant of such licences. As part of my assessment I have taken into consideration Police information involving Mr Mouwad and in accordance with Section 15(7) of the Security Industry Act 1997, I decline to provide you with further details about this information. ... While, I have given due consideration to your submission, including [Mr Mouwad's] statement and other documentation you have provided I cannot ignore the Police information held against [Mr Mouwad]; consequently I am satisfied that in the context of the Act [Mr Mouwad] is not a fit and proper person to hold a security licence". 7Mr Mouwad has applied to the Tribunal for external review of the Commissioner's determination. 8The matter was initially heard on 4 November 2010. The earlier part of the hearing was held in the presence of Mr Mouwad. The later part of the hearing was held in Mr Mouwad's absence. Each party made submissions. 9Confidential material and further evidence was adduced during in camera hearings. I agreed with the Commissioner's request that the Tribunal not disclose the confidential information to Mr Mouwad: section 29(3) and section 15(7) of the Act. 10The Commissioner relies on material ("the confidential material") which the Commissioner says supports the contention that Mr Mouwad is not a fit and proper person to hold the class of licence sought within the meaning of section 15(1)(a) of the Act. 11Consistent with the Court of Appeal decision the Court of Appeal decision in Commissioner of Police NSW v Gray [2009] NSWCA 49 ("the Court of Appeal decision"), the confidential material has not been provided to Mr Mouwad. 12The Court of Appeal decision determined that the Tribunal is not entitled to order the Commissioner to provide an applicant with particulars of the criminal intelligence information on which he relies.