Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Hamdan v Commissioner of Police, NSW Police Force [2012] NSWADT 52 Hearing dates: 10 February 2012 Decision date: 23 March 2012 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The Tribunal affirms the decision revoke Mr Hamdan's Class 1 AC licence under the Security Industry Act 1997. Catchwords: Security Industry - fit and proper person Legislation Cited: Security Industry Act 1997 Liquor Act 2007 Crimes Act 1900 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 LJ v Commissioner of Police [2003] NSWADT 230 Mercer v Commissioner of Police (GD) [2005] NSWADTAP 55 R v Katarzynski [2002] NSWSC 613; (2002) 9 Crim LN 54 [1445] Category: Principal judgment Parties: Fawzy Hamdan (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Hanna Legal (Applicant) NSW Police Force - J Tillot (Respondent, agent) File Number(s): 113223 REASONS FOR DECISION 1[GENERAL DIVISION, (P. H. Molony, Judicial Member)] Mr Hamdan is the holder of Class 1AC licence under the Security Industry Act 1997 (the SI Act). 2On 17 October 2010, shortly after 2am, in the course of his duties as a crowd controller at Fusions Night Club, Cronulla, Mr Hamdan was involved in an incident in which it is alleged he assaulted a male patron, who was seeking to gain readmission to the club. The club is a "licensed premises" under the Liquor Act 2007. 3As a result of that incident the patron lost consciousness and suffered injuries to his face and lips. He was taken by ambulance to hospital where he was treated and subsequently discharged. 4Two CCTV cameras recorded the incident giving rise to the allegations of assault. The recordings are visual only: there is no sound. 5Mr Hamdan has always maintained that the patron was abusive, intoxicated and quarrelsome, and refused a direction the he remove himself from the vicinity of the licensed premises. He has also consistently asserted that in his physical confrontation with the patron he was acting in self-defence, having reasonable grounds to fear for his own safety as a result of the patron's behaviour. 6On 21 July 2011 Mr Hamdan was charged with assault occasioning actual bodily harm and common assault of the patron. 7On 1 August 2011 the Commissioner determined to revoke Mr Hamdan class 1AC licence under the SI Act on public interest grounds. 8Mr Hamdan subsequently sought to review that decision in this Tribunal and sought an urgent stay of the decision revoking his class1AC licence. On 18 August 2011 a stay was granted. 9On 16 December 2011 the criminal charges against Mr Hamdan were withdrawn and a Local Court Magistrate dismissed them accordingly. The Commissioner says that the charges were withdrawn because the patron had gone overseas for 18 months and was not available to give evidence. 10On 10 February 2012 the review of the decision to revoke Mr Hamdan's class 1AC came before me. At the conclusion of the hearing I reserved my decision. Material before the Tribunal 11The Tribunal considered the following material: * The s 58 documents lodged for the stay hearing by the Commissioner. * The brief of evidence in Police v Hamdan. This includes statements of investigating Police, a statement form the patron, a statement from the licensee, photographs of injuries to the patron, and the transcript of an electronically recorded record of interview with Mr Hamdan on 28 November 2010. * A CD containing the CCTV footage. * An expert certificate under s 177 of the Evidence Act 1996 from Dr Peter Clemens relating to the injuries sustained by the patron, and further photographs of those injuries. * Four references for Mr Hamdan. * Two written submissions from the Commissioner. * Affidavit of Mr Hamdan. * 12Mr Hamdan's representative opposed the admission of the patron's statement on the basis that the patron was not available for cross-examination, and that Mr Hamdan was thereby severely prejudiced. In support of this submission he relied on the decision of the Appeal Panel in Mercer v Commissioner of Police (GD) [2005] NSWADTAP 55 at [20] that: ... It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed. 13Ms Tillott, for the Commissioner, argued that patron's statement should be admitted arguing that it was substantially verified by the CCTV footage. She said that Mr Hamdan has been aware that the Commissioner was relying on the Police brief since the directions hearing on 1 November 2011, and, that at no time had his representative given notice that an objection would be made on the basis that the patron was not available for cross-examination. 14I determined to admit the statement as material before the Tribunal. In doing so I indicated that I accepted that Mr Hamdan was potentially disadvantaged by not having the patron available for cross-examination, and indicated that in those circumstances I would be unable to give the statement any significant weight. As appears below, having heard and considered the evidence, I ultimately gave the patron's statement no weight, instead determining the issues on the basis of Mr Hamdan's evidence and the CCTV footage. I did so because patron's statement did not address any of the matters raised by Mr Hamdan. I considered that as a consequence fairness required that I not give it any weight with respect to those matters. The evidence 15By agreement, before Mr Hamdan gave oral evidence, the Tribunal, in the presence of the parties, viewed the CCTV footage of the incident. Mr Hamdan then gave evidence and was cross-examined. An analysis of the CCTV footage was a substantial part of that cross-examination. 16It is convenient to describe the events portrayed in the CCTV footage, while at the same time noting what Mr Hamdan evidence about each event was. To simplify that process the left had column of the table below describes the time and events depicted in the footage, and from which of the two CCTV cameras the footage comes. Camera A provides a closer view of the entrance to the nightclub, while Camera B provides a longer view. The right hand column summarises Mr Hamdan's evidence CCTV Mr Hamdan Mr Hamdan and another guard are seen standing outside the entrance to the nightclub. Partons entering the club have to walk up a step from the footpath and take two steps to arrive at the recessed doors. The patron walks outside the venue (Time 2:10:24) onto the footpath dressed in a short sleeve light t-shirt and dark jeans, and looks in both directions along the street. The other guard told the patron he would not be allowed back in if he left the club The patron attempts to walk back inside the venue but is stopped by the second guard (Time 2:11:04). He remains remains near the entrance and immediately makes a phone call, continuing to look up and down the street, When finished on the phone he speaks to the guards for a short time (Time 2:11:33). The patron said he wanted to go back in to find his girlfriend and friends. He was calm and not abusive. He is not obviously aggressive. Mr Hamdan entered the discussion (Time 2:11:43), with Mr Hamdan leaning against a wall. The discussion Mr Hamdan was reinforcing the message that the patron would not be readmitted. He said he did not speak aggressively. The patron made no threat. In his record of interview said that at 2:11:51 the patron was swearing. appears calm with Mr Hamdan becoming more animated as time passes ((Time 2:12:24). The other guard crossed his arms (Time 2:12:29). The patron steps away to allow 5 people to leave the club (Time 2:12:29). As the last of those persons leave the second guard turns and takes a step towards the patron. Mr Hamdan takes four steps and stands face to face with the patron, leaning forward as he does so (Time 2:12:54). The last person who exited is turning, looking at them. The patron was swearing at the guards, his facial expression was hostile. Mr Hamdan said he was reacting to verbal abuse. He agreed that the CCTV did not show any obvious body language on the patron's part. Mr Hamdan can be seen speaking emphatically to the patron and the pushes him with his right arm in the left shoulder, causing him to stumble back a meter or more (Time 2:12:59). The patron was abusing Mr Hamdan, and complaining that he could not contact his friends. Mr Hamdan said, when it was suggested that he had no right to push the patron, that "I felt I could push him away." The patron steps forward and continues speaking with the guards. His hands are initially in his pockets, then his left hand is held out at mid level, palm up. (Time 2:13:11). Mr Hamdan said that the patron was verbally aggressive. He agreed that there was no sign of physical aggression on CCTV. The patron turns looking down the street (Time 2:13:18). He then takes a few steps in that direction but is followed and stopped by Mr Hamdan (Time 2:13:34). Mr Hamdan then walks towards the men outside Woolworths. Two people outside Woolworths had yelled at the patron, "Hey, dickhead, leave those boys alone." The patron walked towards them Mr Hamdan stopped him. In his record of interview Mr Hamdan told Police that the patron had said to them ,"Who are you calling dickhead." Mr Hamdan told the other guard to watch the patron while he went to deal with the interlopers. The other guard and the patron walk back to the front of the club (Time 2:13:40). They talk. Neither is apparently aggressive. The patron gets out his phone (Time 2:13:52). Meanwhile Mr Hamdan walks towards the interlopers who move off before he reaches them (Time 2:13:37). He catches up with and has a short conversation before returning to the club (Time 2:13:49). When Mr Hamdan reaches the club he immediately stands toe to toe with the patron, who is holding his phone in both hands against his belly. Mr Hamdan points away from the club, with his right arm (Time 2:13:56). The patron, still holding his phone steps back. Mr Hamdan then makes leave gestures, waving both arms (Time 2:14:01). Mr Hamdan says that at this stage he was "slightly frustrated" and again asking the patron to leave. He had told the patron that he had done him a favour by moving the interlopers on, and had told him to be 50 meters off the premises. The patron appears to be making a phone call (Time 2:14:05). Mr Hamdan approaches him, again toe to toe (Time 2:14:09).The patron appears to be talking on the phone. Mr Hamdan says something to him, and then seizes that patron's left arm, below the shoulder, and pushes him (Time 2:14:14). Mr Hamdan says the patron was mouthing off at the guard with the phone to his ear. He formed the view that the patron was a threat to the public. Mr Hamdan propels him down the street in the direction of a pole. Mr Hamdan said that he told the patron, "If you don't move you will get dragged." He denied the suggestion that this action was unprovoked. He referred to the patron's verbal aggression and the look on his face. Mr Hamdan shoves the patron in the direction of the pole beside the gutter, with apparent force (Time 2:14:16). Mr Hamdan agreed that he had shoved the patron ion the direction of the pole. Propelled towards the pole the patron, quickly swaps his phone to his left hand, and using his right hand grabs hold of the pole, and with the momentum of the push swing round the pole so that he is heading back across the footpath. Mr Hamdan steps into his path. (Time 2:14:17). When Mr Hamdan realised that the patron was swinging around the he stepped in to defend himself. As he releases his hold of the pole the patron takes an over arm swing with his right arm, apparently at Mr Hamdan. Mr Hamdan apparently moves his right arm to block the swing and push him off with his right arm. The view of Mr Hamdan's right arm is obscured. The patron's swing does not connect. (Time 2:14:18). Mr Hamdan says he blocked the patron's blow. The patron stumbles a short distances down the footpath and falls to the ground. Mr Hamdan follows him (Time 2:14:19). Mr Hamdan comes up and stands over the patron in a hunched stance. Mr Hamdan then delivers a backwards blow with his right arm to the back of the patron's head. (Time 2:14:20).Mr Hamdan then grabs the patron's head and shoulder in a hold, and rolls him onto his back. (Time 2:14:23). Mr Hamdan said that because there was no sign that the patron was going to stop and had already thrown a punch, he had delivered the backward blow to his head and restrained him. For several seconds Mr Hamdan holds the patron on his back on the ground, with his left hand at the patron's neck, and it appears his knee is on the patron's chest. The patron appears to be trying to get up. (Time 2:14:36). Mr Hamdan said that his left hand was on the patron's chest, not his neck. The patron was grabbing onto Mr Hamdan's arm and trying to get up. Mr Hamdan pulls the patron to his feet and, standing behind him, holds his arms (Time 2:14:42). The patron appears to be turning his trunks to the left in the direction of Mr Hamdan (Time 2:14:44). Mr Hamdan says that when he got the patron up, the patron was struggling, trying to get his hands free. Mr Hamdan said that at this time he was fearful. Mr Hamdan pushes the patron who appears to be resisting the momentum (Time 2:14:46) over the gutter in the direction of a parked car and pushes him onto the bonnet (Time 2:14:48). The patron lands on the bonnet, then stands up, and takes one step up over the gutter. He has his left arm up in front of him, at waist height, with his palm open, facing forward (Time 2:14:50). In his record of interview Mr Hamdan said that he thought the patron had sworn at him when he landed on the bonnet. "I just remember I heard fuck you and then he's come at me, once he's come at me, I've just reacted before he did and collected him with a right." Mr Hamdan delivers a forceful punch with his right hand to the patron's head. The patron collapses to the ground, apparently unconscious. His head lands in the gutter (Time 2:14:51). Mr Hamdan steps off the footpath to the patron's side and lifts his arm. There is no response from the patron. Holding a pole with one hand and using his leg to lever the patron from behind, the applicant attempts to support the patron and roll him from his back to his side on the footpath. (Time 2:14:57). A number of other patrons stop and look. They are shepherded away by the second guard. (Time 2:15:15). 17Mr Hamdan's evidence to the Tribunal was generally consistent with the record of Interview he participated in, having obtained legal advice, on 28 November 2010. This was a month after the incident. 18The four references Mr Hamdan relied on went to not only his general reputation, but to the respect with which he is held by others in the security industry. Three of the four authors say that they are aware of the matters alleged against Mr Hamdan, but it is not clear precisely of what they are aware, or whether they have seen the CCTV footage. Consideration 19Mr Hamdan submitted that his actions were authorised by the Liquor Act 2007. Section 77 relevantly provides - (1) In this section: authorised person means a licensee, an employee or agent of a licensee or a police officer. employee includes, in the case of a registered club, a person engaged under a contract for services. vicinity of licensed premises means any place less than 50 metres from any point on the boundary of the premises. (2) An authorised person may refuse to admit to, or may turn out of, licensed premises any person: (a) who is at the time intoxicated, violent, quarrelsome or disorderly, or (b) whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or ... (e) whom the authorised person, under the conditions of the licence or according to a term (of the kind referred to in section 134 or 136D) of a liquor accord, is authorised or required to refuse access to the licensed premises. (3) If, under subsection (2), a person has been refused admission to, or has been turned out of, licensed premises, an authorised person may, at any time, refuse to admit that person to the licensed premises or may turn the person out of the licensed premises. (4) If a person in respect of whom an authorised person is, under subsection (2) or (3), entitled to refuse admission to the licensed premises is on the premises, the person must, on being required so to do by an authorised person, leave the premises. Maximum penalty: 50 penalty units. (5) For the purposes of this section, such reasonable degree of force as may be necessary may be used to turn a person out of licensed premises. (6) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section because the person was intoxicated, violent, quarrelsome or disorderly, must not re-enter or attempt to re-enter the premises within 24 hours of being refused admission or being turned out. Maximum penalty: 50 penalty units. (7) After the 24-hour period ends in relation to any such person, an authorised person is not prevented from exercising the powers under subsection (3) in relation to the person. (8) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section because the person was intoxicated, violent, quarrelsome or disorderly, must not, without reasonable excuse: (a) remain in the vicinity of the premises, or (b) re-enter the vicinity of the premises within 6 hours of being refused admission or being turned out. Maximum penalty: 50 penalty units. (9) Without limiting subsection (8), a person has a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises if: (a) the person reasonably fears for his or her safety if he or she does not remain in, or re-enter, the vicinity of the premises, or (b) the person needs to remain in, or re-enter, the vicinity of the premises in order to obtain transport, or (c) the person resides in the vicinity of the premises. (10) In the prosecution for an offence under subsection (8), the burden of proving that a person had a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises concerned is on the person charged. (11) The functions that may be exercised under this section by an authorised person who is a licensee or employee or agent of a licensee may only be exercised in relation to the licensed premises to which the licensee's licence relates. (12) A reference in this section to turning a person out of licensed premises includes a reference to causing the person to be turned out. (13) Nothing in this or any other section of this Act operates to limit any other right a person has to refuse to admit a person to, or to turn a person out of, licensed premises. 20Mr Hamdan's own evidence was that the patron was refused readmission to the club, because he had left the club premises and it was after lock out. No one could be admitted to the club at that time. The patron had not been turned out of the premises, or refused admission, because he was intoxicated, violent, quarrelsome or disorderly. 21Mr Hamdan submitted that the patron was refused admission under s 77(2)(b) on the ground that his presence in the club would render the licensee liable to a penalty under the Liquor Act. As a result, Mr Hamdan was of the view that he was lawfully entitled to require the patron to leave the vicinity of the premises. 22The exclusion of persons from being in the vicinity of licensed premises provided for by s 77(8)(b), however, applies only to those persons who have been refused admission or turned out "because the person was intoxicated, violent, quarrelsome or disorderly." Neither was the case here on Mr Hamdan's own evidence. As a consequence, the patron was not required by the Liquor Act to leave the vicinity of the club. 23Further s 77(5) provides that the application of reasonable force only applies with respect to turning a person out of licensed premises. Once again this is not the case here. 24As a result, the Liquor Act did not authorise Mr Hamdan to use reasonable force in removing the patron from the vicinity of the premises, or at all. 25I would add that, if that were not the case, I do not accept the force used by Mr Hamdan was reasonable in the circumstances. 26It follows that I do not agree that Mr Hamdan's action were authorised under the Liquor Act 2007. 27Mr Hamdan also argued that he had acted in self-defence under s 418 of the Crimes Act 1900. That section relevantly provides - (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the of-fence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) ... In criminal prosecutions the prosecution bears the burden of proving beyond reasonable doubt that self-defence does not apply: s 419 Crimes Act. 28In R v Katarzynski [2002] NSWSC 613; (2002) 9 Crim LN 54 [1445] Howie J said: 23 ...The Crown will negative self-defence if it proves beyond reasonable doubt either (i) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence or (ii) that what the accused did was not a reasonable response to the danger, as he or she perceived it to be. 24 The issue as to the reasonableness of the accused's response is objective in so far as the jury is not concerned with what the accused believed was necessary to respond to the circumstances as he or she perceived them to be. The current provision is not concerned with whether the accused's belief as to what was the necessary response was a reasonable one or whether he or she had reasonable grounds for that belief. This is where the current provisions are in contrast to the position at common law: the accused need not have reasonable grounds for his or her belief that it was necessary to act in the way he or she did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief. 25 It will be a matter for the jury to decide what matters it should take into account when determining whether the response of the accused was reasonable in the circumstances in which he or she found himself or herself. The jury is not assessing the response of the ordinary or reasonable person but the response of the accused. In making that assessment it is obvious than some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury. Whether or not some particular personal characteristic of the accused is to be considered will depend largely upon the particular facts of the case. 29Having viewed the CCTV footage and heard Mr Hamdan's evidence with respect to his conduct, I find that that from the time the patron left the nightclub until the time when Mr Hamdan physically pushed the patron in the direction of the pole, the patron had not physically threatened or attempted to assault Mr Hamdan. In that time Mr Hamdan had twice assaulted the patron: first by pushing him away, and secondly, somewhat later, by pushing him in the direction of the pole. 30Mr Hamdan says that each of those actions was a result of his own fear, brought about by the patron's language and the look on his face. Mr Hamdan is an experienced security guard, who has worked as a crowd controller in the one venue for some years. Dealing with abusive and belligerent drunks is an unfortunate but necessary part of his duties. He is a large, heavily built man, whose physical presence is suited to his duties. The CCTV footage demonstrates that he is a larger man that the patron. 31Having heard Mr Hamdan's evidence I do not accept that, at the time he first pushed the patron or subsequently, he genuinely believed that it was necessary for him to act in self-defence. I am reinforced in that view by the fact that after the first assault Mr Hamdan left the patron, still standing and unrestrained, while he dealt with the men in front of Woolworths. If Mr Hamdan were genuinely in fear this would not have been the case. 32Further, I do not accept that Mr Hamdan's actions were a reasonable response to the threats he perceived the patron to be making: they consisted of offensive and provocative language combined with a threatening look on his face. It is to be noted that the patron's observable body language does not verify Mr Hamdan's perceptions. 33Having dealt with the interlopers Mr Hamdan then returned and spoke with the patron. The CCTV shows Mr Hamdan standing face to face with the patron, talking and gesturing volubly, before again pushing him. The patron made no physical move directed at him, but Mr Hamdan pushed the patron and propelled him in the direction of the pole. 34As the patron swung round the pole Mr Hamdan stepped into his path. It is at this point that the patron attempted to defend himself, by offering an ineffectual roundhouse swing, which Mr Hamdan easily blocked. Mr Hamdan then forced the patron to the ground and, crouching over him, delivered a forceful blow with his right arm to the patron's head. 35Mr Hamdan them rolled the patron onto his back and held him down at the neck, with his knee on the patron's chest. He says at this time the patron was struggling and refusing to calm down. Rather than continuing to hold him down until he calmed, Mr Hamdan then pulled the patron up tho his feet, pushed him across the footpath and propelled him onto a parked car. Mr Hamdan explains this by saying that the patron was abusing him at that time. 36When the patron stood, and attempted to walk out of the gutter, again offering no apparent threat, Mr Hamdan knocked him out. 37Even if Mr Hamdan genuinely believed that he was being physically threatened by the patron (a matter I do no accept) I do not accept that in the circumstances his response was a reasonable response to the threat, as he perceived it. Mr Hamdan said the threat was constituted by belligerent words and the look on the patron's face: the patron's body language, as shown on CCTV, is not consistent with that perception. 38Mr Hamdan's repeated assaults on the patron were not a reasonable response to the threat that Mr Hamdan perceived. The threat he perceived is one that a licensed crowd controller, such as Mr Hamdan, is trained and expected to manage and diffuse, without resorting to physical force. Mr Hamdan's response was to resort to strong and unwarranted violence. 39Section 15 of the SI Act provides that the Commissioner must refuse to grant an application for a licence if the applicant is not a fit and proper person to hold the class of licence sought. Section 26 provides 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 this Act to be refused 40An assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: 'The question 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.' Toohey and Gaudron JJ said at 380: "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. 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." 41A person's fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." 42Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability is the context of the role they are seeking to undertake. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry: 'Whether a person is 'fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.' In LJ v Commissioner of Police [2003] NSWADT 230 at [27] Judicial Member Montgomery found that: A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe. 43The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." See also Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at [25]. 44In my view a licence holder who, without lawful excuse and in response to verbal provocation, repeatedly assaults a patron and knocks that patron unconscious, is not a suitable person to hold a licence under the SI Act. The nature and purpose of the security industry is to protect against and deter the type of violent and thuggish behaviour exemplified by Mr Hamdan in the CCTV footage. Mr Hamdan's job was to deter such behaviour, not indulge in it. 45Mr Hamdan has demonstrated by his conduct that he does not have the requisite people management skills, self-restraint, or understanding of the applicable law and of the nature of his role, required of a licence holder under the SI Act. 46This conclusion appears to be at odds with his high reputation as a security guard, as indicated by the references from those who employ him and who work with him. I have already noted that it is unclear precisely what his referees know about the events in issue. The references do not persuade me that Mr Hamdan is fit and proper. The CCTV footage and Mr Hamdan's own evidence demonstrate this is not the case. 47As a consequence I affirm the decision to revoke his licence. 48I note that the Commissioner also argued that Mr Hamdan's licence should be revoked on public interest grounds. Given the conclusion I have reached, I think it unnecessary to consider that ground. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2012