Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Habib v Commissioner of Police NSW Police Force [2015] NSWCATOD 48 Hearing dates: 12 February 2015 Decision date: 26 May 2015 Jurisdiction: Occupational Division Before: J McAteer, Senior Member Decision: 1. The decision under review is set aside. Catchwords: Security Industry Act 1997 – Refusal to grant licence - Fit and proper person – alleged conduct – evidence – onus of proof – weight of evidence Legislation Cited: Security Industry Act 1997 Security Industry Regulation 2007 Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Payne v Parker [1976] 1 NSWLR 191 AVS Group Australia Limited v Commissioner of Police, NSW Police Force [2012] NSW ADT 1 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388 at 390 Re Repatriation Commission and McCartney (1986) 9 ALD 441 at 449; Esterman v Commissioner of Police NSW Police Force [2014] NSWCATOD 70 Category: Principal judgment Parties: Shadi Habib (Applicant) Commissioner of Police NSW Police Force – (Respondent) Representation: Counsel: P. Barham (Applicant) Solicitors: Nyman Gibson Miralis Lawyers (Applicant) Office of General Counsel NSW (Respondent) File Number(s): 1420303 Publication restriction: Pursuant to section 29 (3) of the Security Industry Act 1997 paragraphs 75-80 inclusive are not for publication reasons for decision Background 1. Mr Shadi Habib (the applicant in these proceedings) held a Class 2BC security licence issued under the Security Industry Act 1997. Since 2005 the applicant has predominantly worked in the security industry being employed to work on the installation, maintenance and repair of security systems and equipment located at client's premises. 2. From 2005 to 2011 the applicant completed educational and practical requirements to qualify as a security technician and commenced work as a technician in 2011. However the applicant was terminated from that position in December 2012 as a result of the Commissioner of Police revoking the applicant's security licence. 3. The applicant made inquiries through a legal practitioner during 2013 to look into having his security licence reinstated. Those attempts to progress the matter proved unsatisfactory with the applicant engaging fresh legal representation in 2014. That representation continues with this current application to the Tribunal. 4. On 1 July 2014 the applicant's solicitors lodged an application with the Commissioner for a Class 2B/2C security Licence. On 19 August 2014 the Commissioner's delegate refused to grant the licence. 5. On 5 September 2014 the applicant's solicitors filed an application for internal review (of the decision to refuse to grant the licence) with the Commissioner. On 11 September 2014 the Commissioner's delegate determined the internal review. The decision being that the decision to refuse the applicant's application for a Class 2BC security licence is to stand. 6. On 19 September 2014 the applicant filed an Application for Administrative Review with the Tribunal. The Grounds for the review are that: 'Contrary to the decision made by the Delegate of the Commissioner of Police our client instructs that he is a fit and proper person to hold a Security Licence pursuant to section 15 of the Security Industry Act 1997.' This is the application before the Tribunal for administrative review. The Commissioner's Review 1. In re-determining the application for a security licence, the Commissioner's delegate formed the view that on the available evidence the applicant was not a fit and proper person to hold a security licence. 2. Whilst not referring to any specific material relating to the applicant in the decision, the internal review alluded to material held by the Commissioner. The review concluded with the following paragraph. 15. While, I have given due consideration to your submission, I cannot ignore the information that relates to your client. Consequently, I am satisfied that in the context of the Security Industry Act 1997 your client is not a fit and proper person to hold a security licence. The grounds under which the application for his Class 2BC licence was refused clearly fall within the provisions of section 15 (1) (a), section 15 (6) and section 15 (7) of the Security Industry Act 1997. Therefore I affirm the decision of the delegate of the Commissioner to refuse the grant of your client's application for a security licence. 1. The Internal Review statement of reasons did not set out the basis for the finding that the applicant was not a fit and proper person to hold a security licence. However the statement of reasons did indicate that the Commissioner's delegate had considered their own information holdings in addition to material supplied by the applicant. B. DOCUMENTS CONSIDERED: 2. In arriving at my decision in this matter, I have examined the following documents: Application form for a Class 2BC security licence received on 2 July 2014 Records from the Computerised Operational Policing System Notification of Refusal for the Grant of Licence served on your client by registered post on 19 August 2014 Your request for an internal review received on 8 September 2014 1. It would appear that the Commissioner's delegate decided that the applicant was not a fit and proper person to hold a security licence (of the type sought) based on information that was available to the Commissioner. The Applicable Law 1. Part 2 Division 3 of the Security Industry Act 1997 provides for licencing procedure and criteria. Section 15 provides for general suitability criteria in the areas of age, competency and residency rights relating to employment etc. amongst other general criteria. Relevantly section 15 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 not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant, or (b) is of or above the age of 18, or (c) has the competencies and experience approved by the Commissioner, or (d) has undertaken and completed the requisite training, assessment and instruction for the class of licence sought by the applicant, or (e) is competent to carry on the security activity to which the proposed licence relates, or (f) is an Australian citizen or a permanent Australian resident, or holds a visa that entitles the applicant to work in Australia (other than a student visa or a working holiday visa). ………………. ……………….. (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) Except as provided by the regulations, 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). (emphasis added) 1. Section 16 provides for restrictions based on an applicant's criminal and other related history, if any. 16 Restrictions on granting licence—criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or (b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or (c) has, within the period of 5 years before the application for the licence was made, had a civil penalty imposed on the applicant by a court or tribunal in New South Wales or elsewhere, being a civil penalty prescribed by the regulations in relation to the class of licence sought, or (d) has, within the period of 10 years before the application for the licence was made, been removed or dismissed from the NSW Police Force or from the police force of any other jurisdiction (whether in Australia or overseas) on the ground of the applicant's integrity as a police officer. (2) Without limiting subsection (1), the Commissioner may refuse to grant an application for a licence if the Commissioner is satisfied that the applicant has a conviction that is not capable of becoming spent. Note. Under section 7 of the Criminal Records Act 1991, certain convictions are not capable of becoming spent. For example, convictions for which a prison sentence of more than 6 months has been imposed, convictions for certain sexual offences and convictions prescribed by the Criminal Records Regulation 2004. (3) The Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct. (4) (Repealed) (4A) The Commissioner may refuse to grant an application for a licence if, within the period of 10 years before the application for the licence was made, the applicant has been removed from the NSW Police Force under section 181D of the Police Act 1990 on grounds other than the applicant's integrity as a police officer. (5) A reference in subsection (1), (2), (3), (4) or (4A) to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. 1. Section 26 of the Security Industry Act 1997 deals with matters relating to revoking security licences. It is clear that the Commissioner initially revoked the applicant's licence on the basis of information held by the Commissioner. The section provides: 26 Revocation of licence (1) A licence may be revoked: (a) (Repealed) (b) if the licensee: (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or the renewal of the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) (Repealed) (d) for any other reason prescribed by the regulations. (1A) 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. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it. (3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. Note. Section 31 requires the licensee to immediately surrender the licence if the licence is revoked. (4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect. (5) For the purpose of determining whether a licence should be revoked under subsection (1A), the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the licensee that: (a) is relevant to the activities carried on under the class of licence held by the licensee, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the licensee continues to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the licensee continues to hold the licence. (6) The Commissioner is not, under this or any other Act or law, required to give any reasons for revoking 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 (5). (Emphasis added) 1. A Class 2B licence authorises the licence holder to perform the security activities set out in section 12 of the Security Industry Act 1997. (b) class 2B—authorises the licensee: (i) to sell, and provide advice in relation to, security equipment, and (ii) to sell the services of persons to carry on any security activity, and (iii) to act as an agent for, or otherwise obtain contracts for, the supply of persons to carry on any security activity, the supply of any security equipment or the supply of any security activity, and (iv) to broker any security activity by acting as an intermediary to negotiate and obtain any such activity for a person in return for a commission or financial benefit, (c) class 2C—authorises the licensee to sell, install, maintain, repair and service, and provide advice in relation to, security equipment (including electronic security equipment and barrier equipment) and to act as a locksmith, The Hearing 1. The matter came before me for hearing on 12 February 2015. At the conclusion of the open hearing the applicant's counsel wished to file written submissions. A time table was set with the consent of the parties, however by necessity the parties by consent sought an extension to that timetable. The filing of material concluded on 13 April 2015 and as a result the matter can now be determined. 2. The applicant relied upon the following material and evidence which has been filed and served: * The application for administrative review dated 18 September 2014 filed with the Tribunal on 19 September 2014. * The applicant's outline of submissions dated 12 February 2014. * The applicant's submissions in reply dated 13 April 2015. * The Affidavit of Shadi Habib dated 19 November 2014 (Exhibit A1) * The Affidavit of Fadi Habib dated 19 November 2014 (Exhibit A2) * The Affidavit of Shadi Habib dated 12 February 2015 (Exhibit A3) In addition the applicant relied on his oral evidence, the oral evidence of Fadi Habib and his Counsel's oral submissions. 1. The Respondent relied upon the following material and evidence which has been filed and served. * The Section 58 documents filed under cover letter of 17 October 2014 (Exhibit R1) * Further Section 58 material filed under cover letter dated 8 January 2014 (Exhibit R1i) containing open evidence of the information held by the Commissioner. * Material from the Commissioner produced on Summons (issued by the applicant) comprising open evidence held by the Commissioner. 1. At the conclusion of the hearing there was a confidential hearing in accordance with the provisions of section 29 (3) of the Security Industry Act 1997. 29 Right to seek administrative review from Civil and Administrative Tribunal (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions: (a) the refusal or failure by the Commissioner to grant a licence to the person, (a1) the refusal or failure of the Commissioner to renew a licence, (b) a condition imposed by the Commissioner on a licence granted to the person, (c) the revocation or suspension of a licence granted to the person. (2) For the purposes of this section, an application for the grant or renewal of a licence is taken to have been refused if the licence is not granted or renewed within 60 days after the application is made in accordance with this Act. Note. Under the Civil and Administrative Tribunal Act 2013, if the Civil and Administrative Tribunal has reviewed an administratively reviewable decision (such as a decision referred to in the above section), a party to the proceedings may appeal to an Appeal Panel of the Tribunal. An appeal on a question of law may then lie to the Supreme Court. (3) In determining an application for an administrative review of any decision to refuse to grant a licence, to renew a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013): (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6), 17 (5) or 26 (5) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. Note. Sections 15 (7), 17 (5) and 26 (6) of this Act provide that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting or renewing a licence or revoking a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) or 26 (5). Accordingly, Part 2 of Chapter 3 of the Administrative Decisions Review Act 1997 does not apply to any decision to refuse to grant (or renew) or revoke a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information. 1. The fact that there was a confidential hearing in which the Commissioner would rely on confidential material, was conveyed to the applicant (and his legal representatives) during the course of the open hearing. Under the provisions of the Security Industry Act 1997 the Commissioner relied on matters raised in the confidential hearing. General outline of the Respondent's case 1. In my view, in order to understand the thrust of the evidence it is necessary to outline the general basis of the Commissioner's finding that the applicant is not a fit and proper person to hold a security licence. These matters were first ventilated in the Commissioner's evidence and material filed with the Tribunal prior to hearing and encompassed a large portion of the parties' written and oral evidence. I note that no facts, assertions or allegations were set out in the two decisions of the Commissioner's delegate which predated this review. None of the following material was sought to be protected under section 29 (3) of the Security Industry Act 1997. 2. The Commissioner's case is based upon a belief that the applicant disclosed confidential police information to a third party who had a criminal history and active links to current criminal enterprises. The allegations are that during the applicant's access to Blacktown Police Station in April and May 2011, he took a photo with a mobile telephone of a Police intelligence board and sent that image to an acquaintance ('J.M.') via SMS from that phone. This receipt of that image was ultimately captured by a surveillance device that captured 'J.M.' purportedly receiving the text image and discussion its contents with associates. The surveillance device only captured the recipients behaviour and discussion concerning the alleged receipt of the image(s) but apparently did not identify or otherwise show any actual image received on the mobile phone. The evidence The Applicant's Evidence 1. Mr Fadi Habib (The applicant's father) gave sworn evidence at the hearing. In the evidence in chief he adopted his affidavit of 19 November 2014 (Exhibit A2). The witness's evidence was that the applicant was a loyal caring loving and trustworthy person. They had recently had a family holiday in Queensland which the applicant had contributed as a previous father's day present. 2. In cross examination the witness indicated that the applicant when employed in the security industry did cabling work. In recent years the witness and his family had not had any dealings with 'J.M.' (the person of interest to police), other than meeting at a family wedding in August 2014. 3. The witnesses in his evidence emphasised how the applicant is a person of good character. 4. In his affidavit the witness outlined the relationship with 'J.M.' was through his family. Initially the witness and 'J.M.'s father grew up together in their country of origin before coming to Australia. As problems arose over the years in Australia the witness tried to keep his family members away from 'J.M.' and his family. The witness gave evidence that the reason for this was that his 'intention was to protect his children and their future'. 5. In addition the witness gave written evidence that after giving 'J.M.' a second chance, he became aware of evidence that 'J.M.' was 'heading down the wrong path again'. As a result the witness asked 'J.M.' 'not to come to my house or socialise with my family again'. 'Except for a few events where 'J.M.' has come to pay his respects to me, my family and I have kept away from him and his family, and this is okay by me'. 6. Mr Shadi Habib gave sworn evidence at the hearing. There was an amendment of dates in his affidavit of 19 November 2014. The amendments concerned the years contained within paragraphs 23, 25 and 29 of that Affidavit. The witness otherwise adopted the affidavit with the amendments. 7. In cross examination the applicant's evidence was that he had not approached 'J. M.' (the person of interest to police) to give evidence to assist with his case. The reason given in evidence was that he was trying to stay away from 'J.M.' and steer clear from him. The applicant admitted to owning a mobile telephone with capability to send a photo(s) via the special messaging service or 'SMS'. 8. On 28 April 2011 the applicant was employed performing security work at Blacktown Police Station. His role was to give a hand to the lead worker (Steve) and to drop of parts during the day. The applicant's evidence was that his duties whilst employed involved work to do with CCTV cameras, access control, and intercoms. Anything to do with security was how the applicant described his role generally. 9. It was put to the applicant that he could have requested for 'Steve' (the colleague) to attend and provide evidence in support of his case. He was also question about how often he sees 'J.M.', to which he replied that he saw him 'less than occasionally'. In further cross examination in respect of the type of work that he was performing at Blacktown Police Station on 28 April 2011, the applicant said that his evidence relating to giving 'Steve' a hand concerned the installation / replacement of cabling. When questioned about working on a faulty door he gave evidence that he did not do work fixing a faulty electronic door and that he was not a locksmith. 10. The applicant was asked in cross examination whether he sold any old security systems. He answered that he did not. He was asked whether he did any work for 'J.M.' and answered that he did not do any work for him. When asked how 'J.M.' knew that the applicant had worked in Blacktown Police Station, he advised the Tribunal that this was because his father had told 'J.M.' this previously. 11. The applicant's evidence was that he only worked at Blacktown Police Station on 28 April 2011 and 5 May 2011. On 5 May 2011 he does not recall what work he performed but that he was there with 'Steve'. On 28 April 2011 he estimates that he was on site for approximately 40 minutes. 12. When asked about the message to contact Detective Senior Constable Chaplin, the applicant gave evidence that he did not know what the message related to, in that he did not know what the police officer wanted to talk to him about. 13. The solicitor for the respondent put all the allegations to the applicant in cross examination. The applicant denied all of the allegations relating to his alleged conduct. 14. The applicant gave evidence that he did not speak to police between the conversation with Detective Senior Constable Chaplin and the ensuing two months when he handed in his revoked licence. 15. In his affidavits the applicant gave the following relevant evidence in addition to his oral evidence: * From 2005 after completing High School until 2012 he studied and was employed in positions in relation to the security industry. * 'J.M.' and his family were introduced to him by his father when he was 12 years old, and understood to be distant cousins. * The applicant learnt through his father about 'J.M.'s legal and criminal problems and that he had spent time in prison. * The applicant's father gave 'J.M.' permission to contact the family after his release from prison. The applicant barely knew 'J.M.' as it had been many years since they would occasionally spend time together as boys, and both had become adults in the intervening years. * Whilst 'J.M.' regularly attended on the applicant's family home, the applicant rarely dealt with him as he was away at work five or six days a week when 'J.M.' would visit. * On one occasion the applicant was asked about his work by 'J.M.' and cannot recall the specifics of the conversation. The applicant did recall that on one occasion he mentioned that some of his work was carried out in Police Stations. * While at work the applicant was approached by detectives from Blacktown Police Station asking about his relationship with 'J.M.' He was asked whether he was sharing any work information with 'J.M.' or an outlaw motorcycle club. * The applicant told police that 'J.M.' was his distant cousin and when he asked what the inquires related to, rather than answering police threatened to take away his security licence. * Two months later the applicant's father conveyed a message that the applicant was to attend Green Valley Police Station. At the Police Station an officer informed the applicant that his security licence was revoked and to hand it in. The applicant's evidence was that no reason was given. * The applicant's employer was contacted by police and as a result he was terminated from his employment. * The applicant has never taken photos inside Blacktown Police Station. The applicant has never provided any photographs of Blacktown Police Station to 'J.M.'. The applicant has never taken photographs of the inside of any NSW police station. * The applicant does not have a criminal record. The applicant has never been charged with any offences in relation to the allegations in the police material filed with the Tribunal. * The applicant does not associate with 'J.M.' or any persons who to his knowledge are members of an outlaw motorcycle gang. * He has once delivered work materials to Granville Police Station but has never been inside it. He has never had a gun pulled on him inside that Police Station and has never told any person that he had. * In April and May 2011 he only worked in the area of Blacktown Police Station that linked the station to the Courthouse. He and his colleague entered the public (reception area) of the Police Station and were then directed outside to enter the work area on the right side of a driveway. In this period he did not work on any door at the Police Station. * He worked in an area where there were no police working and the area was a worksite not an area where police could work. The worksite area was not secured. * The only telephone that he possessed at that time was the one provided by his employer. The applicant did not have any other mobile telephone account. The phone was returned to his employer when he ceased employment later that year. 1. Annexed to the applicant's affidavit of 19 November 2014 were seven annexures comprising educational and skills qualifications and a nil criminal history report. 2. Annexed to the Applicant's affidavit of 12 February 2014 were 7 pages of photographs of an aerial view of Blacktown Police Station and ground views of different aspects of the outside of the Police Station. The Respondent's open (Non confidential) evidence 1. Detective Senior Constable gave sworn evidence in the non-confidential hearing. In evidence was a witnessed statement of 5 January 2015 (Exhibit R1(i) ). A date from paragraph 3 of that statement was amended. Annexed to the statement was a 3 page COPS Event and a Transcript of the audio of a surveillance device which captured a conversation which took place on 3 May 2011. Also attached were two COPS Events relating to intelligence related to the applicant which was received in open evidence. The witness adopted his statement of 5 January 2015. 2. The witness's evidence was that the surveillance device (mounted on a wall) captured audio and video. No video or audio was before the Tribunal, but the transcript of the audio was adopted (without objection). 3. The witness gave evidence that he was stationed at Blacktown from late 2010 to 2013. The Police Station comprised two buildings. The renovation did not deal with the main building but the adjoining building housing cells etc. The witness's evidence was that there was a faulty door, in that the door swipe mechanism was not working. 4. The witness went through the layout of Blacktown Police Station. The public is not taken through the muster room. The witness was working at the Police Station at the time of the renovations. The cells area was not operational, but all other aspects of the station were operational. The witness gave evidence that the faulty electronic door goes out to a Courtyard. 5. The witness gave evidence that some of the facial images from the Intelligence board had been defaced by police. 6. The witness's evidence was that the surveillance device showed a bag containing a mobile phone on a kitchen bench. A person retrieves the phone from the kitchen (which is at the back of the main room under the surveillance device). The witness explains in evidence in chief who the relevant names or 'nick names' referred to in the transcript relate to. 7. The evidence in chief was that some of the names on the Intelligence board were members of outlaw motorcycle gangs, and their addresses were identified on the board. One of the persons depicted on the board was living at a location of a shooting which took place soon after the matters identified by the surveillance device. 8. The witness was subjected to extensive cross examination by the applicant's Counsel. He was questioned about the notebook entry that he made about the surveillance incident. His evidence was that he watched and heard the surveillance live. Records and entries were subsequently made on the Police 'Eagleii' system. When asked about whether checks had been made about other telephones used by the persons under surveillance and whether warrants had been applied for those phone numbers, his evidence was that this was likely. 9. The witness's evidence was that no telephone intercept material was used in the Affidavit in support of the warrant. The Transcript infers that ('J.M.') claimed to have received 10 photos and 10 pages of information over his phone. 10. The witness was questioned as to whether he recollected the applicant attending Blacktown Police Station on 28 April 2011. He could not recollect whether the applicant was present on 28 April but knew that he was present on 5 May 2011. In cross examination the witness conceded that he had not checked whether the applicant was working alone, and had not made any inquiries as to whether the applicant was working alone. 11. When asked why he had not sought call charge records for the period 28 April 2011 to 3 May 2011 his evidence was that he did not know what the applicant's phone number was. His evidence was that he had an exact time and date as to when the transmission took place. 12. The witness's evidence was that the intelligence board was located on a wall, and was of a cork board type. It was large and about 1 foot from the floor and 1 foot from the roof. He was not sure where on that large board the intell card (which allegedly was the source of the transmitted material), was located. 13. The witness was asked whether he had taken steps to identify the phone used by 'J.M.' which he confirmed that he had, but they were unsuccessful. In respect of CCTV evidence the witness gave evidence that there was no CCTV coverage in the area where the Intell Board was located, and that CCTV was in the reception area. 14. In respect of what actions the witness did and did not take at the time to pursue various matters relating to the alleged security breach, the witness's evidence was the substantive inquiry was a highly protected investigation, and for that reason he did not wish to alert other officers. So no rigorous inquiries or investigation was made in respect of who may have had access to or entered the muster room. 15. The witness did not subsequently interview 'J.M.' about the incident that was captured on the surveillance device. The witness was asked whether various trade persons would be allowed into the muster area, and if so why the sensitive material would not be covered up. The evidence was that you would not expect those type of persons (authorised visitors) to be in that area of the police station. The Applicant's Submissions 1. The applicant filed two sets of submissions. One set was an outline of submissions filed on the day of the hearing. A further set of submissions in reply were filed after the hearing pursuant to a timetable set at the conclusion of the open hearing. 2. The applicant submits that the respondents case rests on the unsubstantiated statement (as captured by a surveillance device during a conversation), of a convicted criminal. ('J.M.'). The applicant submits that the references by the respondent to matters involving the applicant on 5 May 2011 are irrelevant as the conversation monitored by police occurred on 3 May 2011. 3. The respondent has not attempted to interview the other person (Steve) who the applicant attended Blacktown Police Station with on 28 April 2011. The respondent has not checked the facts of the allegation concerning the applicant's attendance at Granville Police Station where guns were pulled on him by police. The applicant submits that this statement is false and that it was open to the respondent to follow it up in order to determine the truth of what was being said by 'J.M.' in the surveillance recording. 'J.M.' has not been interviewed and asked where he obtained the photograph. 4. The applicant further submitted that the reference to 10 photos in the transcript of the surveillance recording, contradicts the fact that other aspects of the respondent's evidence assert that one photo was taken by the applicant when he bent down to pretend to tie his shoelace. There was some questioning and discussion concerning the ability of modern smartphones to send more than one image via a SMS. Whilst this discussion left the position in respect of telephone camera ability somewhat unclear with the evidence being equivocal, the real issue pertinent to the evidence was whether multiple images were gathered, as this related to the circumstances of the taking of any photograph(s). Therefore the only relevant issue here, in my view based on the conflicts in the evidence, pertains to whether the applicant was able to take numerous photos of the relevant intell board. If this could occur then whether they were capable of being subsequently 'transmitted' to a third party becomes relevant. 5. The applicant was found to be a fit and proper person of sufficiently good character to hold a security licence. The applicant has numerous qualifications relevant to a career in the security industry. 6. The applicant submitted that in the absence of any positive evidence that the applicant attended the part of the police station where the intell board was located (the muster room) and as the applicant's evidence is that he denies that he attended that area, then there is no evidence that the respondent has provided which indicates that he did. (the respondent relies upon the apparent receipt of that image by 'J.M.' as evidence that he must have attended that area). 7. The applicant's evidence was that he entered the area of the police station that they were working in, by going down / along a driveway into a carpark, and entering a door on their right (to a separate building). In evidence and submissions it became apparent that the muster room was in the main police building (closer to the rear and behind reception). As the applicant's evidence was that he exited reception (without ever going beyond the public area) went outside and entered the other building were the work was carried out, (to the right of the driveway and carpark), then he was unable to engage in the conduct as alleged, as he was not present in the relevant part of the police station. Applicant's written submissions 1. The applicant's written submissions in reply to the hearing, focused on the gaps in the evidence, and indicate that the deficiencies go against the respondent's case rather than the applicant's. In particular the applicant submitted that matters pertaining to the lack of evidence, or the ability of a party to call evidence, in this instance work against the respondent rather than the applicant. 2. General submissions were made concerning the lack of any direct evidence from 'J.M.'. It was submitted that this witness could not be called by the applicant. The applicant further submitted that it was never established that this witness was available to be called. Various submissions were made along the lines of the principles set out in the case of Jones v Dunkel (1959) 101 CLR 298. In broad terms that case outlines that the unexplained failure by a party in a case to give evidence, call witnesses and or tender documents, could lead to an inference that the evidence not presented by that particular party would have been evidence that would not have assisted that party's case. That is the evidence not called, if called might have undermined the party's case. 3. GLASS J.A.'s judgment in the case of Payne v Parker [1976] 1 NSWLR 191 at 192 is also referred to in the applicant's written submissions. The jury found a verdict in favour of the defendant. The plaintiff seeks from this Court a new trial upon one ground only, viz.: "that his Honour was in error in failing to direct the jury in relation to the defendant's failure to call a certain Dr. Greenwell in terms of the principle laid down by the High Court in Jones v. Dunkel (23),." ………………. Emphasis was made by the Applicant of Glass J.A.'s sixth point in his judgment when examining the principle arising from Jones v Dunkel. (6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained. 1. The applicant submitted that the three tests set out by Glass J.A. were not met on the material before the Tribunal. As a result no adverse inference should be drawn against the applicant. In addition it has not been established (as part of the Respondent's case) as to where they believe that the applicant was located. No CCTV footage from the Police Station showing which way the applicant turned after leaving the public foyer area has been provided by the respondent. 2. The applicant submitted that he had a good general recollection of where he went and what he did when he attended to police station on the two dates. The applicant submitted that as he could not access the relevant part of the police station, then he could not have taken the photo. As a result his evidence should be preferred to the evidence of 'J.M.' who is a convicted criminal. Respondent's submissions 1. The respondent made oral submissions at the conclusion of the hearing. Despite a timetable being set for the filing of writing submissions (if desired), as at 14 April 2015 none had been received by the Tribunal. I note the reference to the respondent's submissions at various parts of the applicant's submissions. In any event the Registry clarified this aspect with the Respondent's solicitor on 15 May 2015, with a copy to be provided (if any within 7 days). 2. On 22 May 2015 submissions were received from the respondent's Solicitor addressing the evidence, the apparent gaps in the evidence (from the applicant's perspective), and addressing on the notions of fit and proper and public interest. In addition closed submissions were filed in respect of the closed / confidential aspect of the hearing. I have considered those submissions, and will address aspects of the open submissions. 3. I note the matters outlined in the submission that infer that the Tribunal can be reasonably satisfied that the respondent's evidence should be accepted and given weight. I also note the submission which infers that the applicant's version is unsupported by any contemporaneous records / evidence and as a result should be given little or less weight. The respondent takes issue with apparent failings of the applicant to obtain specific evidence in support (such as at paragraphs 8 and 13 of the submissions). However the applicant did give reasons in his evidence for not formalising or escalating lines of inquiry in respect of obtaining witness statements. 4. The respondent also submits that the applicant's earlier affidavit omits specific crucial evidence and that this is only deposed just prior to the hearing. Whilst the applicant was never questioned about this, I note that at the time of the first affidavit (November 2014), the respondent had not set out any of the factual matters which led to the decision that he was not a fit and proper person to hold a security licence. Whilst the respondent's witness statement indicates at paragraph 17 that he raised the issue of a photograph of an intelligence board with the applicant, no details beyond that are provided. The original decision, the internal review, and the initial bundle of section 58 documents do not disclose the specific allegation that caused the Commissioner to determine that the applicant was not a fit and proper person to hold a licence. In this regard I refer to the matters outlined at paragraphs 9 and 20 (above) of this decision. 5. I note the matters outlined at paragraph 25 of the submissions. However, notwithstanding the importance of the substantive inquiry into criminal gang related activity, it would appear that there were clear lines of inquiry that could be pursued through the applicant's employer at that time (or subsequent) if police wished to build a more robust case. In my view this responsibility would fall in the first instance to the respondent, especially when my observations on the onus in these proceedings are taken into account. 6. I also note the respondent's submissions in respect of fit and proper. These are addressed below. In respect of the submissions on section 15 (3) of the Security Industry Act 1997, concerning whether the Commissioner believes that the granting of a licence would be contrary to the public interest, I note that this argument has not been previously ventilated by the respondent and as a result has not previously been addressed by the parties. The respondent's administrative decisions to date have relied solely on the 'fit and proper' ground. However for completeness, noting that section 15 (1) matters and section 15 (3) are mandatory considerations, I will address those submissions in this decision. 7. I note and broadly accept the submissions and case law put forth by the respondent on this point. In particular I note the submission at paragraph 52 that: 52. Even if the Tribunal were satisfied with respect to the "fit and proper" ground in section 15 (1) of the SI Act (and we are not suggesting that the Tribunal should), Mr Habib's conduct fails the public interest test. 1. I note the reference to the term 'conduct' in the above submission. 2. In also note the respondent's submissions in respect of the possible consideration a conditional licence in the matter. I address that aspect below. 3. Not for publication 4. Not for publication 5. Not for publication 6. Not for publication 7. Not for publication 8. Not for publication Consideration 1. In AVS Group Australia Limited v Commissioner of Police, NSW Police Force [2012] NSW ADT 1 Judicial Member Montgomery (as he was) examined the issue of who bears the onus of proof in security industry cases under the Security Industry Act 1997. Onus Of Proof 13. Section 29 of the Act permits an application to the Tribunal for review a decision in relation to a licence under the Act. There is no provision in the Act for the onus of proof in such a review. Whilst Part 2 of Chapter 6 of ADT Act empowers the ADT to determine its own procedure, it is silent as to the onus of proof in an application for review. Accordingly, it is appropriate to consider the administrative context in which the provisions of the Act operate, and the issues relevant to the review of the Commissioner's decision. 14. Whilst it is clear that the Tribunal can determine its own procedure, and undertake its own inquiries if so minded, the reference to "receive evidence and hear argument" in section 29 (3)(b) contemplates the Tribunal will conduct a hearing in which the Commissioner will seek to sustain the revocation. 15. The administrative context is whether circumstances existed to justify the cancellation of the licence. …………………. 17. They submit that if the review is characterized as analogous to that in a breach of discipline matter, the onus of proving such a breach lies on the party alleging the breach. The Applicants cited the decision of Beaumont J in Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213 in which his Honour quoted with approval Professor Campbell's explanation of legal burdens of proof: " ... where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence ... the onus of proving that these circumstances have arisen would devolve on the accuser." ………………… 24. Whilst I accept that there is disagreement in Thompson as to the allocation of the onus of proof, it is significant to me that the Commissioner is alleging a change of circumstance. I consider that the onus lies upon the party alleging that change of circumstance to prove it. It is also significant that the Commissioner is alleging that he has material directly concerning Peter and AVS GC which he contends justifies revoking the licences. I consider the onus lies upon the party alleging that such conduct has occurred or circumstances exist to prove it. 1. In this matter the respondent has asserted certain matters as attributable to the actions of the applicant. The applicant refutes those assertions and submits that there is no basis for the Tribunal to make adverse findings in respect of those matters. 2. Section 63 of the ADT Act says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Re Repatriation Commission and McCartney (1986) 9 ALD 441 at 449; Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388 at 390. 3. The Respondent's decision is reliant on an acceptance of the assertion that he 'captured' the image of the photo array from the intell board, and transmitted it to the criminal third party ('J.M.'). It is this position which (if positively accepted) gives rise to the respondent's finding that the applicant is not a fit and proper person in the context of the Security Industry Act 1997. 4. However the Respondent's position is in part based on a belief that the applicant associates with 'J.M.' and is likely to associate with him. It is in the context of this association that the alleged improper conduct (the taking and forwarding of the image) occurs. No evidence has been produced in respect of the two telephones / devices that would have been used in such an enterprise. The linking of the data to the applicant is based on the audio surveillance of 'J.M.' in conversation with his associates. The video surveillance (which was not before the Tribunal) does not advance the matter any further. In the respondent's evidence it was conceded that the surveillance device did not capture (or adequately capture) any image received on 'J.M.'s phone. Whilst some of the matters relied upon by the respondent would appear possible, the question is whether the evidence establishes that it is more likely than not that they occurred in the manner alleged. 5. The applicant raised significant issues about the weight that should be attributed to the evidence contained in the audio transcript of the surveillance device. In addition to matters relating to the general credibility of 'J.M.' certain issues were highlighted (eg: the police allegedly drawing their firearms on the applicant and his colleague at Granville Police Station), so as to cast doubt on the veracity of much which was said by 'J.M.' in the audio. In my view much of what 'J.M.' says in the transcript was never established by the evidence. Some of the exchanges imply that the applicant can check all the cameras inside police stations across Sydney on his mobile phone. Initially in the transcript 'J.M.' asserts that he has photos and shows them to a third party. At another part of the transcript there is apparently a conversation whereby 'J.M.' asks a male person on the other end of the phone to send him more photos. 6. In examining all of the evidence and material, the respondents case is predominantly assisted by the audio transcript. When taken at its highest the transcript contains highly circumstantial material / evidence adverse to the applicant. Is the material in the transcript of sufficient weight to counter the matters in the applicant's evidence? The evidence (record) is credible, but significant doubt remains in respect of the veracity and meaning of the contents. Some of the statements are contradictory, how many photos, when received etc, whilst others appear somewhat fanciful or exaggerated. (eg: the issue of the guns being drawn). In the absence of call records, reverse call records, evidence of 'J.M.' or any evidence showing the image and a SMS incoming number, it is difficult to place significant weight on the respondent's assertions. 7. In addition, the respondent has been unable to produce any evidence (other than the alleged transmission of the image) that places the applicant in the muster room. 8. The applicant and his father gave their evidence in a straightforward manner. When challenged under cross examination, the applicant denied all allegations. I note that the applicant is a person with no criminal record / antecedents and based on the oral and written evidence provided in support of him, is a person of good character and standing. 9. The applicant has assisted police in their dealings with him up until the time that his licence was revoked and he obtained legal advice. In my view no adverse weight should attach to the applicant's dealings with the police over this matter. 10. I make a finding that on the available evidence, the respondent has not established their case to the requisite standard, in respect of the alleged conduct. Fit and Proper 1. The meaning of the terms 'fit and proper' have regularly been addressed by this Tribunal and the Administrative Decisions Tribunal in respect of occupational matters. 2. In the case of Esterman v Commissioner of Police NSW Police Force [2014] NSWCATOD 70 Senior Member Leal reviewed the authorities on this issue. 13. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 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. 14. In Sobey v Commercial Agents Board [1979] 22 SASR 70 Walters J said at 76: In my opinion, what is meant by [the expression fit and proper] is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 15. A person's fitness is to be considered in the light of the activities that the person will undertake. Fitness with respect to an office is said to involve honesty, knowledge and ability: see Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156 - 7. 1. As I have made a finding in respect of the respondent's grounds, and noting the evidence of the applicant, I believe that on any construction there remains no cogent evidence that to the requisite standard the applicant is not a fit and proper person, in the context of the Security Industry Act 1997. 2. In respect of the respondent's submissions in respect of section 15 (3) of the Security Industry Act 1997, I note that these grounds were only raised in the recent submissions, and the applicant has only addressed on the grounds relied upon by the Commissioner's delegates in the original decision and internal review (fit and proper). 3. In respect of the 'public interest' submission by the respondent, I note my observations at paragraph 72 and 73 (above). At paragraph 53 of the respondent's submissions the linking of the allegation concerning the applicant's conduct to being contrary to the public interest is again raised. The effect of the applicant's conduct leads inevitably to the conclusion that it is not in the public interest for the tribunal to issue the applicant with a class 2BC licence. (Emphasis added). 1. In my view, as I have made findings in respect of the respondent's grounds for determining that the applicant is not a fit and proper person to hold the relevant licence, there are no remaining grounds before me that would indicate that it was not in the public interest for the applicant to be issued a licence. 2. At the end of the open hearing there was some discussion by both parties that if I was to find against the respondent, then it was open to the Tribunal to make an order that any licence issued to the applicant could be conditional. Specifically a condition that the applicant not be permitted to enter the premises of any Police Station in New South Wales. In my view whilst it may be a matter for the applicant as to how he might wish to manage his duties within the scope of the licence authorising those duties, in view of the finding that I have made, it would be inappropriate for the Tribunal to place any conditions on the licence. Conclusion 1. It therefore follows that on the assessment of all of the evidence before the Tribunal, the applicant is a fit and proper person to hold a Class 2BC Security Licence. 2. As a result, the correct and preferable decision is for the Tribunal to set aside the decision of the Commissioner in respect of Mr Shadi Habib's application for a Class 2BC Security Licence. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 26 May 2015 - Amended Cases Cited field in cover sheet. 26 May 2015 - typo error in Paragraph 71 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: 26 May 2015