Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police
[2006] NSWADT 114
•04/19/2006
CITATION: Blissett v Commissioner of Police, NSW Police; Web Protection Australia Pty Limited v Commissioner of Police, NSW Police [2006] NSWADT 114 DIVISION: General Division PARTIES: FIRST APPLICANT
Web Protection Australia Pty Ltd
FIRST RESPONDENT
Commissioner of Police, New South Wales Police
SECOND APPLICANT
Dione Trevor Blissett
SECOND RESPONDENT
Commissioner of Police, New South Wales PoliceFILE NUMBER: 053086; 053087 HEARING DATES: 21/12/05 SUBMISSIONS CLOSED: 12/21/2005
DATE OF DECISION:
04/19/2006BEFORE: Fitzgerald K - Judicial Member CATCHWORDS: Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Security Industry Act 1997
Security Industry Regulation 1998CASES CITED: Australian Broadcasting Tribunal v Bond (1999) 170 CLR 321
Carter v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 265
Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657
Commissioner of Police, New South Wales v Mercer (GD) [2005] NSWADTAP 55
Forbes v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 151
Haynes v Commissioner of Police, New South Wales Police Service [2001] NSWADT 52
Hughes & Vale Pty Limited v State of New South Wales (1955) 93 CLR 127
IJ v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 230
Jasmin v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 45
McDonald v Director General of Social Security (1984) 1 FCR 354
O’Neill v New South Wales Commissioner of Police [2005] NSWADT 130
QA v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 81
Saadieh v Director General Department of Transport [1999] NSWADT 68
Sweet v New South Wales Commissioner of Police [2000] NSW ADT 185
Toleafoa (No 2) v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 48
Toleafoa v Commissioner of Police, New South Wales Police Service [1999] NSWADTAP 9REPRESENTATION: FIRST & SECOND APPLICANTS
FIRST & SECOND RESPONDENTS
P Rowe, barrister
T Venditti, agentORDERS: 1. The decision of the Commissioner of Police, New South Wales Police Service to revoke the Class 1ABC security licence of the First Applicant and the Master Security Licence of the Second Applicant under the Security Industry Act 1997 is affirmed; 2. The stay previously ordered is revoked.
Background
1 This is an application by Mr Dione Trevor Blissett and Web Protection Australia Pty Limited (of which Mr Blissett was the sole director) from a decision of the New South Wales Commissioner of Police to revoke the Class 1ABC Security Licence of Mr Blissett and the Master Security Licence of Web Protection on the grounds that Mr Blissett was not a fit and proper person to hold the licence under Section 26(1)(c) of the Security Industry Act 1997 and that it was not in the public interest for him to hold a licence under section 26(1)(d) of the Security Industry Act 1997 and clause 18 of the Security Industry Regulation 1998.
2 The Class 1ABC security licence was issued on 4 December 2004 and the Master Security Licence on 15 November 2003.
3 The original decision to revoke the licences was made on 7 February 2005 and a successful application to this Tribunal was made for a stay of the decision which remains in place. Subsequently on 31 March 2005 an internal review confirmed the decision to revoke the licences. Mr Blissett has applied to this Tribunal to review the decision to revoke the licences.
4 Since the application was made Web Protection Australia Pty Limited was placed into voluntary liquidation with Messrs Albarran and Pleash appointed liquidators. Counsel appearing for Mr Blissett, Mr Rowe, confirmed that he had instructions to act for the liquidators but that the application was not pressed in relation to Web Protection Australia Pty Limited.
The Applicant’s Case
5 Acknowledging that Mr Blissett has a history offences predominantly relating to traffic matters but also including damage to property and assault, the main argument put by Mr Rowe on behalf of Mr Blissett was that he is a fit and proper person because as at the date of the hearing he had had no further convictions for approximately a nine month period. Second, that the Commissioner had thought he was a fit and proper person on 4 December 2004 when he was granted the licence despite many of Mr Blissett’s offences having occurred before that time.
6 Particular mention was made of a recommendation made by Mr Dick, Magistrate when sentencing Mr Blissett to a 12 month good behaviour bond at Nowra Local Court recommending that no action be taken by the Commissioner in respect of Mr Blissett’s security licence. I note this recommendation was in 2001. Mr Rowe also pointed out that Mr Blissett had at times been sentenced at the lower end of the range and that in 2004 he had requested a sentence of periodic rather than home detention as it allowed him to keep working.
7 Further it was put for Mr Blissett that he had undergone significant rehabilitation and had been undergoing psychological counselling with Mr Herbert Cannon since late June 2004. Several reports by Mr Cannon were tendered in support of his application. Mr Cannon did not give oral evidence, although he did provide four reports dated 20 August 2004, 2 February 2005, 22 April 2005 and 25 July 2005.
8 In summary the reports speak of Mr Blissett’s history and the issues that had given rise to his conduct and conclude that in Mr Cannon’s view Mr Blissett’s risk of re-offending is low. Mr Rowe submitted on behalf of Mr Blissett that he is a “fit and proper person” to hold a security licence because of matters contained in the reports particularly that of 22 April 2005. I note that in the most recent report of 25 July 2005, Mr Cannon described the risk of re-offending as lower than in late 2004.
9 A case of this Tribunal, O’Neill v New South Wales Commissioner of Police [2005] NSWADT 130 was relied on for Mr Blissett on the basis that in O’Neill the Tribunal confirmed the decision to refuse a licence but noted that had the applicant there provided necessary evidence from a psychiatrist about his mental health at the time the Tribunal would have made a finding that Mr O’Neill was fit to be issued with a licence. O’Neill differs from the case presently before the Tribunal as it involved a matter of a serious psychiatric illness, the comments were made about psychiatric treatment in the particular circumstances and they were hypothetical. No general statement of principle was determined. Further, the decision is ultimately one for the Tribunal and Mr Cannon’s opinion is only one of the matters that informs the decision I should make. See Sweet v New South Wales Commissioner of Police [2000] NSW ADT 185 at 20.
10 Mr Rowe made no specific arguments in relation to public interest other than that Mr Blissett would not pose a risk to public safety if he held a security licence.
The Commissioner’s Case
11 The Commissioner relies primarily on the Applicant’s criminal history and traffic record reports as well as various Police Facts Sheets contained in the Police brief to argue that Mr Blissett is not a fit and proper person to hold a security licence and it is not in the public interest for him to do so. Aspects of the Facts Sheets are subject to objections which are discussed below. The Commissioner also tendered a table summarising the charges that Mr Blissett had been subject to and there was no objection to this tender by Counsel for Mr Blissett.
12 Of particular concern to the Commissioner was that Mr Blissett’s record evidenced many offences over a period from 1999 and most recently late 2004, the offences were serious including damage to property and breaching a court order as well as the fact that Mr Blissett was still serving periodic detention. The Commissioner also noted that Mr Cannon’s evidence confirms that Mr Blissett was using illicit substances while previously working in the security industry.
13 The Commissioner also relies, though to a lesser extent, on the fact that Mr Blissett had had two companies placed in liquidation and had a tax debt. It was acknowledged that the tax debt had now been made and arose following settlement of family law proceedings.
Admissibility of Police Facts Sheets
14 There was dispute about the admissibility of certain of the police evidence namely whether the Commissioner was entitled to rely on the original Police Facts Sheets in relation to the three charges, H23010914, H19452248 and H19693313. In each of those matters the prosecution presented amended Police Facts Sheets to the Court and aspects of the original charges were either amended or withdrawn. The Commissioner wishes now in these proceedings to tender the original Police Facts Sheets.
15 It was agreed by the Commissioner that the amended Police Facts Sheets were later in time and represented the revised police position as was presented to the Court. However, it was argued for the Commissioner that the earlier Police Facts Sheets could be tendered in accordance with Commissioner of Police, New South Wales v Mercer (GD) [2005] NSWADTAP 55.
16 I do not agree with the Commissioner in this regard and have not taken into account the original Police Facts Sheets. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all of the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another.
17 Where Police Facts Sheets have been amended to reflect a revised position in relation to an incident, the amended statement of facts will usually be the appropriate one to consider.
Relevant Law
18 The role of the Tribunal is to determine whether, having regard to the underlying facts in the matter and the applicable law, the decision of the Commissioner is the correct and preferred one, see Section 63 Administrative Decisions Tribunal Act 1997.
19 The Tribunal must make its own decision and there is no presumption that the decision of the Commissioner is correct (Section 63(1) of the Administrative Decisions Tribunal Act; McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357.)
20 Section 26(1)(c) of the Security Industry Act 1997 relevantly provides that the Commissioner may revoke a licence, if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. Section 26(1)(d) of the Security Industry Act allows a security licence to be revoked for a reason prescribed by the Security Industry Regulations 1998. Clause 18 of the Regulations states that a security licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.
21 The term fit and proper is not defined in the Security Industry Act but the reasoning in Australian Broadcasting Tribunal v Bond (1999) 170 CLR 321 has often been cited by this Tribunal. In Bond at 63 Chief Justice Mason said:
- “The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring a person whose fitness and propriety are under consideration”.
22 Further, in Jasmin v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 45 at 33ff citing Hughes & Vale Pty Limited v State of New South Wales (1955) 93 CLR 127 at 156 it was said that fit and proper involves three things, honesty, knowledge and ability.
23 As stated in IJ v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 230 at 27:
- “…fit and proper takes its meaning from its context. A higher standard is applicable to licensees within the security industry because of the special role it plays in ensuring public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe”
24 Breaches of the law and any propensity to re-offend are of crucial importance. See for example Carter v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 265 at 15.
25 In Forbes v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 151 at 16 the factors identified in Saadieh v Director-General Department of Transport [1999] NSWADT 68 at 17 were found readily adaptable to determining a person’s fitness and suitability to hold a security licence. These included:
- the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
the nature, seriousness and frequency of any complaints made against the Applicant;
the Applicant’s reputation in the Community; and
the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.
26 In assessing the last factor, the length of time since the offences were committed and the circumstances in which they were committed is relevant as is the applicant admitting responsibility and showing remorse as well as any efforts of the applicant to rehabilitate and any change in the applicant’s circumstances for example increased support from others including professional service providers.
27 The concept of public interest was described by the Appeal Panel in Toleafoa v Commissioner of Police, New South Wales Police Service [1999] NSWADTAP 9 at 25. See also Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657 at 681:
- “The purpose of the reference to public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation”.
28 The correct and preferable decision is that Mr Blissett’s Class 1ABC Security Licence be revoked as he is not a fit and proper person to hold a security licence and it is not in the public interest for him to do so.
29 Although not now strictly required to do so, I would also make the same decision in relation to the Master Security Licence of Web Protection Australia Pty Limited. It has been recognised often by this Tribunal that the obligations and responsibilities on people who hold Master Security licences are more onerous than on a person who is merely employed. See for example Haynes v Commissioner of Police, New South Wales Police Service [2001] NSWADT 52 at 22.
30 Mr Blissett has a history of criminal and traffic offences including damage to property and assault. Mr Blissett is currently serving an order for periodic detention for driving while disqualified and it is not the first time that he has been convicted of that offence although only the current conviction post-dates the issuance of the security licence. The fact that periodic detention was requested by Mr Blissett as an alternative to home detention does not take away from the seriousness of the offence or that fact that a period of incarceration was ordered.
31 While the evidence of his rehabilitation and the observations of Mr Cannon are relevant they are outweighed in these circumstances. There was no evidence of Mr Blissett offending during the 9 month period prior to the hearing but this is an insufficient time period to have elapsed since his last offence in light of his history. Compare QA v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 81.
32 Mr Blissett’s personal interest in retaining his licence cannot outweigh the public interest in having confidence in people involved in the security industry.
33 This view does not mean that Mr Blissett should be prevented from re-entering the security industry at some time in the future if he does not re-offend as his efforts at rehabilitation are to be commended. However, at this time he is not a fit and proper person to hold a security licence and it is not in the public interest for him to do so. It follows that the stay ordered previously in these proceedings be revoked.
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