Collins v Estate Agents Board (1994) 7 VAR 394
Coulthard v Henker [2003] WASCA 187
Ex parte Meagher (1919) 19 SR(NSW) 433
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Rodriguez v Telstra Corp [2002] FCA 30
Smith v Director-General of Transport [2004] WASCA 64
Sobuy v Commercial and Private Agents Board (1979) 22 SASR 70
Tavelli v Johnson unreported; SCt of WA; Library No 960693, 25 November 1996
The Registrar Real Estate and Business Agency and Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997
Weininger v The Queen [2003] HCA 14

Case(s) also cited:

Nil

REASONS FOR DECISION:

Issue

The applicant is seeking a review pursuant to s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (any reference to a section of an Act is, unless otherwise specified, a reference to the said "Act") from the decision by the licensing officer not to issue him security officer and crowd controller licences.
The applicant contends that the decision must be set aside on grounds that it was unfair and unreasonable as the licensing officer took into account criminal charges that have not been proven. The applicant has no criminal record and there is no other ground upon which the licences can be refused.
The respondent contends that the licensing officer is not to issue a licence unless he is "satisfied" that the applicant is of "good character" and a "fit and proper person" to hold such a licence (s 52(c)). The respondent contends that in light of the nature and seriousness of the outstanding criminal charges and the public interest, the decision not to issue the licences was correct and should be upheld by the Tribunal.

Background

The applicant lodged an application for a security officer and crowd controller licence on 19 January 2005. The issuing of such licences is regulated by the Security and Related Activities (Control) Act 1996 (WA). The licensing officer, Peggy Sylvia Coulthard, appointed under s 7(1), considered the application and took into account that the applicant has seven outstanding charges of indecently dealing with a child of a de facto and three charges of sexually penetrating a child of a de facto dating back to 2002 and 2003. The child was approximately 12 years of age when the alleged offences occurred. The applicant was approximately 48 years of age at the time. The applicant was in a de facto relationship with the mother of the complainant.
The charges were brought on 24 February 2004 and proceedings are under way. At the date of this review, no date for the criminal hearing had yet been set.
The licensing officer concluded that the nature of these charges is such that she is "not to issue a licence" under s 52(c) of the Act. A letter of refusal was sent to the applicant on 2 February 2005 advising him that his application had been refused due to "outstanding charges".
The applicant lodged an application for review under s 72 on 16 February 2005.

Applicant and Respondent

The name of the applicant is suppressed for reasons of confidentiality arising from the nature of the criminal charges that are pending and the risk that the identity of the complainant in those proceedings may be disclosed. The applicant is represented by Mr Jeremy Allanson (Counsel), instructed by Bowen Buchbinder Vilensky.
The respondent is the Commissioner of Police, represented by Sgt Simon Bagley.

Application lodged with State Administrative Tribunal

The application was lodged on 16 February 2005 with the State Administrative Tribunal.
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 (WA) ("SAT Act"). In exercising its review function SAT deals with a matter in accordance with the SAT Act (s 17) and the enabling Act (s 72(1)).
The Tribunal comprised three persons namely Mssr. B De Villiers, M Spillane and G Warner as is required when a matter that deals with a decision of a vocational regulatory body is considered (s 11(4) SAT Act).
Section 72(1) enables an aggrieved person to seek a review from SAT of a reviewable decision. A "reviewable decision" includes a decision to refuse to issue a licence (s 72(2)(a)).
The Tribunal has in accordance with s 29(1) SAT Act the same jurisdiction, functions and discretions as those of the decision‑maker – in this case the licensing officer appointed under s 7.
The Tribunal may also in terms of s 27(1) SAT Act take into account any additional or new information that was not at the disposal of the licensing officer at the time when the decision was made. The review hearing is therefore in the words of the SAT Act (s 27(1)) "de novo" and is not confined to the matters and information that were before the decision-maker at the time of the decision. The Tribunal is also not limited to the statement of reasons given by the licensing officer (s 27(3) SAT Act).
The powers of Tribunal according to s 29(3) SAT Act are to –
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision,
… and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the licensing officer (s 29(5) SAT Act).

Orders sought

The applicant is seeking an order to set aside the decision of the licensing officer not to issue him a security officer and crowd controller licence.

Security and Related Activities (Control) Act 1996

The relevant provisions of the Act are as follows:
The long title of the Act sets out the aims of the Act as providing for the licensing of persons engaged in work relating to property protection, investigation or surveillance and crowd control.
Section 12 defines a "security officer" as a person who watches, guards and protects any property. Section 35 defines the duties of a "crowd controller" as a person who at a private or public event is responsible for controlling or monitoring the behaviour of persons, screening persons seeking entry, removing persons for behavioural reasons, or any other prescribed function.
Section 46 and s 47 set out the process of applying for a licence and the material required in support of an application. Section 51 and s 88 determine that it is an offence to provide false or misleading information when applying for or renewing a licence and an individual committing such an offence is liable to a fine not exceeding $10 000.
Section 52 deals with the issuing of licences and determines that the licensing officer
"is not to issue a licence unless the officer is satisfied –
…
(c)that the applicant is of good character and is a fit and proper person to hold a licence;
…
(k)that there is no other good reason why the licence should not be issued."
Section 72 deals with an application by an aggrieved person to apply to SAT for a decision to be reviewed. The refusal to issue a licence is included in the definition of "reviewable decision" (s 72(2)(a)).

Direction Hearings and Primary Hearing

A directions hearing took place on 24 March 2005 at which interim orders were made in regard to the preparation of the application for hearing. The respondent had to file and serve an affidavit setting out the grounds for refusing the licence on or before 12 April 2005.
At the primary hearing Member De Villiers explained to the parties the nature of review proceedings as set out above. He explained that the Tribunal will not be calling evidence on the alleged offences as the matters are being dealt with by another court. He invited them to provide the Tribunal with any information that may be of assistance in reviewing the decision. He confirmed that the Tribunal had received and read the written submissions that had been made. The respondent made available as part of the affidavit tendered by the licensing officer the statement of material facts in which more detail is provided of the alleged offences. The applicant made available during the hearing three letters of reference and his National Police Certificate that was issued on 13 September 2004.
The parties were subsequently invited to give evidence, put questions to each other and make further oral submissions.
The applicant was called to give evidence.

Applicant submissions

The following documents were filed on behalf of the applicant:
(a)Application for review dated 16 February 2005 that enclosed the Refusal to Issue Licence dated 2 February 2005.
(b)Three letters of reference dated 18 November 2004, 17 January 2005 and 17 January 2005.
(c)National Police Certificate dated 13 September 2004.
(d)Outlines of submissions dated 18 April 2005.
The following paragraphs summarise the written and oral submissions made on behalf of the applicant:
(a)The power to issue a licence is discretionary and must be exercised in accordance with the law. The licensing officer erred in taking into account charges that had not been dealt with at the time when the decision was made. The applicant is presumed innocent until otherwise proven.
(b)The approach to unfitness by reason of a conviction is determined by the "circumstances of each application in light of the statutory framework." (Tavelli v Johnson unreported; SCt of WA; Library No 960693, 25 November 1996.) In the matter under review the applicant has no criminal record and cannot be held to be of unfit character to hold a licence on the basis of outstanding charges.
(c)The applicant does not dispute that were he convicted of the charges, the licensing officer could make an adverse finding in regard to how the matters reflect on his character. The licensing officer may then decide to revoke any licences issued. However the licensing officer can only take account of such information after a court has made a finding. The applicant is otherwise of good name and character as is evident from the letters of reference.
(d)The applicant has secured employment conditional upon the licences being issued. He has complied with all other requirements for the issuing of the licences.
(e)Although the Tribunal is not bound by the rules of evidence (s 32(2)SAT Act) this does not mean that the rules of evidence are to be ignored. (Rodriguez v Telstra Corp [2002] FCA 30 at 25.) There is therefore no ground on the material before it for the Tribunal to conclude that the applicant is not of good character or not fit and proper to hold the licences.
(f)The licensing officer erred in law by taking into account charges that have not been proven. The Tribunal should not act on the same erroneous basis.

Respondent submissions

The following document was filed on behalf of the respondent:
(a)Affidavit dated 4 April 2005 by Peggy Sylvia Coulthard. The affidavit contained Statement of Material Facts setting out 10 alleged offences.
The following paragraphs summarise the written and oral submissions made on behalf of the respondent:
(a)The licensing officer, Peggy Sylvia Coulthard, received the application for a security officer and crowd control licence from the applicant on 19 January 2005. The applicant does not have previous convictions. However, the applicant has seven outstanding charges of indecently dealing with a child and three charges of sexually penetrating a child dating back to 2002 and 2003. The proceedings are under way and it is unlikely that the matter will be concluded in 2005 as no date for a hearing has been set.
(b)The applicant was in a position of trust in relation to the complainant as de facto partner of her mother. He is alleged to have abused this position over a period of time in committing the alleged offences.
(c)The duties of a security officer and crowd controller are such that they are placed in a position of trust to protect other persons' property and safety. Security officers and crowd controllers are in regular contact with members of the public and in many instances have to deal with persons who are young, potentially vulnerable and under the influence of alcohol. In many instances, a crowd controller in particular, would be required to deal with young females who are intoxicated and vulnerable. The public requires the regulating authority to act in the community interest when issuing licences to ensure that members of the public who fall under the control of crowd controllers are protected against abuse of power.
(d)The Act is clear in s 52(c) that the licensing officer "is not to issue a licence unless the officer is satisfied that the applicant is of good character and is a fit and proper person to hold a licence." The licensing officer acted lawfully by refusing to grant the licences.
(e)Having reviewed the statement of material facts of the sexual charges and having taken into account the nature of the duties of a crowd controller and security officer, and having regard to the public interest, the licensing officer concluded pursuant to s 52 that the licences should not be issued.
(f)The application for review should therefore be dismissed and the Tribunal must affirm the decision of the licensing officer.

Consideration

The Tribunal's consideration of the application is not confined to the matters that were before the licensing officer when the decision was made (s 27(1) SAT Act). The review is conducted by way of a hearing de novo. The Tribunal acts as the licensing officer under the Act and is not required to make a determination of the merit of the outstanding criminal charges. The purpose of the review is therefore for the Tribunal, as licensing officer, to produce a correct and preferable decision (s 27(2) SAT Act). The Tribunal is not limited in its review to the reasons for decision by the licensing officer.
In the same way that the applicant had to satisfy the licensing officer that he fulfils the requirements of the Act to have his application for crowd controller and security officer licences approved, he now has to satisfy the Tribunal.
The Tribunal is not bound by the rules of evidence (s 32(2)(a) SAT Act) and may "inform itself on any matter it sees fit" (s 32(4) SAT Act).
In considering the application, the Tribunal has taken into account the written and oral evidence and submissions made by the parties.
The Act sets out limitations on the discretionary power of the licensing officer to issue crowd controller and security officer licences (s 52). The licensing officer:
"[I]s not to issue [own emphasis] a licence unless the officer is satisfied ‑
…
(c)that the applicant is of good character and is a fit and proper person to hold a licence;
…
(k)that there is no other good reason why the licence should not be issued."
In the respondent's submission, the licensing officer relied on the provisions of s 52(c) in considering if a licence is to be issued. The licensing officer took into account the outstanding charges, the position of trust the applicant held in relation to the complainant and the public interest. Although the charges have not been determined, the licensing officer considered the statement of material facts and concluded that she could not issue a licence as she was not satisfied that the applicant is of good character and a fit and proper person to hold the licence. The respondent further submitted that the licensing officer is not required to made a determination of whether the applicant is objectively of "good" character but merely that she was not "satisfied" that he is of "good character".
In oral submissions, counsel acting for the respondent submitted that the charges relate to the "good character" of the applicant, his alleged abuse of a position of trust, the public interest and that a licence cannot be issued "unless the officer is satisfied that the applicant is of good character …". Counsel contended that the charges against the applicant are of a very serious nature and the statement of material facts show that the alleged incidents took place over a period of time, it involved penetration and that if found guilty would attract a substantial sentence. Counsel explained further that the licensing officer also took into account the public interest and the purpose of the Act in making her decision. The public interest requires that the licensing authority protect the public against a person who may abuse his position of trust and authority when working as a crowd controller or a security officer. In exercising her discretion, the licensing officer was not limited to information contained in the applicant's criminal record. She could also take account other information that may reflect on or have a bearing on the applicant's character, such as outstanding charges of this nature.
According to the respondent, the licensing officer therefore came to the correct conclusion that she could not issue the licence as she was not satisfied "of the good character" of the applicant.
Counsel appearing for the applicant contends that the licensing officer erred by taking into account unproven charges in exercising her discretion under s 52. The applicant referred to case law as authority for the relevance of prior convictions to the character of the applicant. He also referred to case law to support his submission that the rules of evidence cannot be entirely ignored by the licensing officer. He contended that in this application there are no previous convictions and the mere existence of unproven charges do not constitute a lawful basis for refusing the licences. Therefore, the Tribunal must exercise its discretion on the basis of material facts at its disposal at the time of its decision and given the clean record of the applicant there is no lawful basis to refuse the licences. The attention of the Tribunal was also drawn to the letters of reference that spoke about the good character of the applicant. Counsel for the applicant contended that if the licences are issued and the applicant is in due course convicted of all or some of the offences, the licensing officer may consider the revocation of the licences under the Act.
Evidence was heard as to the nature of the business activities that are planned by the applicant. It appears that he intends to be involved at various levels in the affairs of a security company from the level of management to actual crowd controlling and security officer duties. The applicant contends that his offer of employment is conditional upon him being issued the two licences. No documentary evidence was adduced to support this claim. However, we take note of the intended business ventures.
The question before the Tribunal can be divided into two parts namely ‑
(i)the admissibility of information contained in the statements of material facts and the letters of reference; and
(ii)if such information is admissible, the relevance thereof to s 52 and in particular subsections (c) and (k).

The Tribunal will first deal with the question of admissibility of the information.

Admissibility of information

In the exercise of its discretion the Tribunal is guided by the enabling Act and the State Administrative Tribunal Act 2004 (WA) (s 18(1) SAT Act). The Tribunal is not bound by the rules of evidence (s 32(2) SAT Act) and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The Tribunal may inform itself on any matter as it sees fit (s 32(4) SAT Act).
The above provisions of the SAT Act mirror the intent of s 52(c) and s 52(k) of the enabling Act namely to empower the Tribunal to take into account any information that is relevant to the application in the exercise of its discretion.
There is no indication in the enabling Act or the SAT Act that the legislature intended to limit the discretion of the licensing officer to the applicant's criminal record. The enabling Act clothes the licensing officer with the discretion to take into account information that may enable her to be "satisfied" of the "good character" and "fit and proper" state of the applicant (s 52(c)) or to find there is a "good reason" why the licence should not be issued (s 52(k)).
The motivation for the Act and the wide discretion of the licensing officer were the subject of debate in the state legislature prior to the enactment of the Act. The following quotations from the second reading of the Security and Related Activities (Control) Bill (WA) by the then leader of the house Mr G Cash in which he motivates the necessity of the Bill, are instructive to this application:
"In recent years there has been widespread community concern that the crowd control industry has been infiltrated by persons with a propensity to violence … This legislation will ensure that proper licensing and control of the crowd control industry now occurs.
…
The Bill encompasses many areas currently deficient within existing legislation by providing for the licensing and regulating of crowd control agents and crowd controllers; establishing a clearly defined licensing process and ensuring that only suitable persons can become licensed …
…
Crowd controllers are persons who at a licensed premises, places of entertainment, and public and private functions as a regular part of their duties perform for remuneration any function of controlling or monitoring the behaviour of persons; screening persons seeking entry; or removing persons for behavioural reasons.
…
As stated earlier the Commissioner of Police will be responsible for administering licensing under the Bill. The legislation will make it tougher for persons to obtain a licence … There will be extensive character checks conducted into both individuals and business entities before a licence is issued or renewed." [own emphasis] (Hansard, 23 May 1995, pages 3498 ‑ 3499).
It is clear that the legislature intended to empower the licensing officer to look beyond the formal criminal record of an applicant and to take into account other relevant information that may have a bearing on the issuing of a licence.
The Tribunal recognises that the applicant is entitled to a presumption of innocence under the general law in respect of the charges laid against him. However, the Tribunal also considers that a presumption of innocence under the general law does not mean the licensing officer or the Tribunal should ignore information laid before it when considering whether the applicant should be licensed for purposes of crowd controller or security officer.
Pending the determination of the matters alleged in criminal proceedings, the licensing officer and the Tribunal on review should adopt a precautionary approach to licensing. Good public administration demands no less. It should not make a decision that may possibly put at risk the public interest that the vocational licensing system is intended to protect.
The Tribunal finds that the information contained in the statement of material facts and the letters of reference are admissible and can therefore be taken into account by the Tribunal in exercising its discretion. In determining what weight to attach to the information the Tribunal notes that the charges have not been proven and the content of the charges can therefore not be taken as probative fact. The same qualification applies to the letters of reference.

Relevance of information

We will now deal with the relevance of the information in making a decision under s 52.
The Tribunal notes the submissions by the parties in regard to s 52(c) and in particular what information may be taken into account by the licensing officer in the exercise of her discretion. The Tribunal can also make a finding under s 52(k) and decide not to issue a licence unless it is satisfied that "there is no other good reason why the licence should not be issued."
The Act does not define what the legislator intended with the words "good character". The Macquarie Dictionary (Moore, A., (ed.) Macquarie Concise Dictionary 2004, The Macquarie Library) defines "character" as "the aggregate of qualities that distinguishes one person or thing from another", "moral constitution of a person", "reputation" and "good repute".
As Dixon CJ and McTiernan and Webb JJ noted in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, we hold the view that the type of expression employed in s 52(c) has the purpose of giving the Tribunal "the widest scope for judgment". We also regard the finding by Barker J in Coulthard v Henker [2003] WASCA 187 at par [60] instructive namely that the issue before the licensing officer requires her to "balance factors for or against the view that the respondent satisfied this (s 52(c)) requirement" [own emphasis].
The Tribunal has the discretion to take into account any relevant information that might assist it to come to a decision under s 52(c) and s 52(k). This includes taking into account considerations such as the objectives of the Act, the interests of the public, the nature of the duties that the applicant might be required to discharge, the circumstances in which the duties may be discharged, the criminal record of the applicant, together with outstanding charges against the applicant, the nature thereof, the letters of reference, evidence during the hearing, and any other relevant information that may assist it to make a decision.
The Tribunal must also have regard for the nature of the duties to be exercised and the requirements of s 52(c) and (k). As EM Heenan J noted in Smith v Director-General of Transport [2004] WASCA 64 at par [34], we must also have regard to the applicant's "overall character and the requirements of the occupation for which the licence is necessary". His Honour also referred to the reasoning of the Full Court in The Registrar Real Estate and Business Agency and Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997, and in particular, the judgment of Kennedy J. In that case his Honour referred to what Walters J said in Sobuy v Commercial and Private Agents Board (1979) 22 SASR 70 at 76: "The issue of whether an appellant has shown himself to be 'a fit and proper person', within the meaning of s 16(1) of the Commercial and Private Agents Act 1986 (SA) is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression 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 a 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 enquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR(NSW) 433 at 422)." [own emphasis]
In bearing in mind the importance to balance the interests of the applicant against those of the public and other persons involved in the same profession, we note that in Collins v Estate Agents Board (1994) 7 VAR 394 at 399 the Administrative Appeals Tribunal said ‑
"The consideration of this Tribunal must be primarily directed towards the protection of the public and the maintenance of public confidence in, and the professional standards of, the industry that the Act is regulating [own emphasis]."
The aims of the Security and Related Activities (Control) Act 1996 (WA) are to provide among others for the licensing of persons who work in property protection and crowd control. This follows years of unregulated activities of those involved in the security industry and public concern and criticism thereof.
It is therefore not only the interests of the applicant that have to be borne in mind by the Tribunal. We also have to consider the interests of the public and the interests of those licensees who are already engaged in the industry as accredited licensees. Those licensees are entitled to have the reputation and credibility of the industry protected. Members of the public, in particular those that visit facilities where licensees are on duty, expect licensees to comply with the high standards set by the Act and to demonstrate a level of moral integrity and rectitude of character commensurate with their duties. Following Collins above, we have a duty to protect the interests of the public and maintain public confidence in the security industry.
The duties of security officers and crowd controllers appear to be somewhat different. A security officer "watches, guards and protects" property (s 12(1)) while a "crowd controller" controls, screens and monitors people (s 35(1)). The applicant applied for both licences. He explained during evidence that he would be doing limited crowd control and security duties but he would also serve in a management position of a security company and therefore some practical experience is important. We note that the applicant has not held a security officer or crowd control licence before.
Both licences would put the applicant in contact with members of the public – albeit the crowd controller licence would permit more direct and intimate interaction with members of the public. The functions overlap to some extent although the primary duties are quite different. However it is sometimes a fine line that divides the functions of the two licences. Security officers and crowd controllers hold positions of authority and particularly crowd controllers often deal with large crowds, persons late at night, persons who may be very vulnerable, intoxicated, young people and even children, and females under the influence of alcohol and other substances or otherwise at risk of being abused or harmed. Crowd controllers may also be required to deal with children at places such as game alleys, theme parks, recreational facilities and private functions.
The public in general and in particular persons who frequent such venues as mentioned above require that the Tribunal acts in their interest by taking into account all relevant information to determine if the applicant can be issued with a licence under s 52.
In its consideration of relevant information the Tribunal noted the letters of reference submitted by the applicant. The letters speak of the applicant as being a reliable and trustworthy person, that his judgement is based on a strong sense of ethics and that he is honest. However we also note the applicant's evidence that the charges were not made known to the referees prior to them writing the letters of reference.
The Tribunal's task is not to determine whether the applicant has a "good" or a "bad" character. The test to apply in accordance with s 52(c) and s 52(k) is worded in the negative, i.e. the Tribunal "is not to" issue a licence "unless it is satisfied" of the good character of the applicant and that there is "no other good reason" why the licence should not be issued.
We refer in this regard to the recent decision of Gleeson, CJ, McHugh, Gummow and Hayne JJ in Weininger v The Queen[2003] HCA 14 at par (27) to support our reasoning that the duty of the Tribunal in this matter is not to assign "a single label to the appellant's character or his antecedents as either "good" or "bad". Rather, the question for the primary judge was, what was known about the appellant's character and antecedents? Was what was known of those matters to be taken into account in a way that favoured the appellant, or in a way that did not?
During the parliamentary debates regarding s 52(k) the argument was raised by the opposition's Mr ND Griffiths that the grounds for refusal provided too much scope to the licensing officer. The response by the then Attorney General, Hon. P Foss, was that the "reason is qualified by the word 'good', and that should be stated as grounds for refusing the licence". (Hansard 15 May 1996, page 1939.) The licensing officer can therefore refuse to issue a licence if there is "good reason" to do so. The outstanding charges are in our view a "good" reason as intended by the legislature to come to our decision.
Although the criminal charges against the applicant are pending, the Tribunal can take the charges into account – especially in light of the nature of the charges, the circumstances in which they were allegedly perpetrated and the duties that would be discharged by the applicant if the licences were to be issued. These alleged offences are not of a trivial nature but are of direct relevance to the duties of a crowd controller. Although the applicant is presumed innocent, the Tribunal is not required to apply a "beyond reasonable doubt" test in exercising its discretion under s 52.
In taking into account all the information, the Tribunal notes that the duties of a security officer and crowd controller are markedly different albeit with some degree of overlap. In essence a security officer is licensed to deal with the protection of property while a crowd controller is licensed to deal with people. The Tribunal therefore holds the view that the information in regard to the alleged charges against the applicant may be weighted differently when considering an application for a security officer licence and an application for a crowd controller licence.
It was suggested by counsel acting for the applicant that the licences be issued and if the applicant is convicted of all or any of the alleged offences, the licensing office can revoke the licences. The Tribunal with respect does not regard this as a responsible approach as it must act with caution and with the interest of the public and the ethical standards of the security industry in mind.
We believe the information supports a different approach to on the one hand the crowd controller licence and on the other hand the security officer licence.
In regard to a crowd controller licence we are constrained not to issue a licence unless we are satisfied that "the applicant is of good character" and unless we are satisfied that there is "no other good reason why the licence should not be issued". We conclude that the outstanding charges against the applicant are of such serious nature and relate so intimately to the duties of a crowd controller that we are not satisfied that a crowd controller licence can be issued under s 52. While the particular criminal charges alleged against the applicant remain unresolved, it is premature to issue a licence as a crowd controller. Although the applicant is entitled to a presumption of innocence in the criminal proceedings, the task of the licensing officer, and the Tribunal on review, is to deny a person a licence unless it is "satisfied" that the applicant complies with statutory requirements. This reflects a community expectation that persons against whom serious matters are alleged, which, if proved, would disqualify them from being licensed, should not be licensed until the question has been resolved. To issue a crowd controller licence now would be premature and against the public interest.
In regard to the application for a security officer licence, we are satisfied that due to the nature of the duties of a security officer where the emphasis is on the protection of property, a licence may be issued subject to conditions as provided for in s 59(1) and s 60.

Finding

Following the above, the Tribunal finds pursuant to s 52(c) and (k) that –
(a)a security officer licence is to be issued to the applicant for a period of 12 months from the date of issue (s 60) with the licence to be endorsed with the name of the employer that has offered the applicant a position (s 59(1)); and
(b)the application for a crowd controller licence to the applicant is refused on grounds that the Tribunal is not satisfied that the applicant is of good character and fit and proper to hold a licence and there are good reasons as set out above why the licence should not be issued.

Order

1.The decision of the licensing officer to refuse to issue a security officer licence to the applicant is set aside.
2.A security officer licence is to be issued to the applicant subject to the following conditions:
(a)the licence is issued for a period of 12 months from the date thereof; and
(b)the licence must be endorsed with the name of the company who has offered the applicant employment.

3.The decision of the licensing officer to refuse to issue a crowd controller licence to the applicant is affirmed.

I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER

Details

AGLC: A and Commissioner Of Police [2005] WASAT 121
Case: [2005] WASAT 121
Decision Date: 30 MAY 2005

CaseChat Overview and Summary

In the case before the court, A, the applicant, appealed against the decision of the Commissioner of Police to refuse to issue a security licence. A, a security officer, sought a licence to act as a crowd controller. The Commissioner refused to issue the licence due to outstanding criminal charges against A and concerns about A's good character. A contested the refusal, arguing that the outstanding charges did not warrant a refusal and that the Commissioner had not adequately considered A's good character.

The primary legal issue before the court was whether the Commissioner had the authority to refuse the security licence based on outstanding criminal charges and concerns about good character. The court was required to determine whether the Commissioner's decision was lawful, reasonable, and based on proper consideration of all relevant factors. The court also needed to examine whether the Commissioner had correctly applied the relevant statutory provisions and policies in reaching the decision.

The court found that the Commissioner had the authority to refuse the security licence if there were reasonable grounds to believe that the applicant did not possess the requisite good character. The court held that the outstanding criminal charges were relevant to the assessment of good character and could justify a refusal. However, the court also noted that the Commissioner had not adequately considered all relevant factors in reaching the decision. The court found that the Commissioner had not given sufficient weight to A's good character and had not considered the potential impact of the outstanding charges on A's ability to perform the duties of a crowd controller. The court concluded that the decision was not based on proper consideration of all relevant factors and was therefore unlawful.

The court quashed the decision of the Commissioner and remitted the matter back to the Commissioner for reconsideration. The court directed the Commissioner to consider all relevant factors, including A's good character, in reaching a new decision. The court also noted that the outstanding criminal charges should be considered in the context of A's overall suitability to perform the duties of a crowd controller. The court did not make any orders regarding the outstanding charges but left it to the Commissioner to consider their impact on A's application.

Orders