Brandusoiu v Commissioner of Police, NSW Police Force
[2011] NSWADT 57
•22 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Brandusoiu v Commissioner of Police, NSW Police Force [2011] NSWADT 57 Hearing dates: 20 September 2010 Decision date: 22 March 2011 Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed in each of these matters.
Catchwords: Revocation of licence - fit and proper person. Legislation Cited: Administrative Decisions Tribunal Act 1997
Commercial Agents and Private inquiry Agents Act 2004
Firearms Act 1996
Security Industry Act 1997
Firearms Regulation 2006
Security Industry Regulation 2007Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
Raymond Robbins v Business Licensing Authority (2000) VCAT 457
Sobey v Commercial and Private Agents Board 20 SASR 70
Toohey and Gaudron JJ said at 380:
Trilin v Commissioner of Fair Trading [2003] NSWADT 222Category: Principal judgment Parties: Tiberiu Brandusoiu (Applicant in 103079, 103080, 103081)
Exhibition and Function Security Pty Limited (Applicant in 103157)
Commissioner of Police, NSW Police Force (Respondent)Representation: Counsel
P Linegar (Applicant)
Mark Rumore (Applicant)
Sparke Helmore Lawyers (Respondent)
File Number(s): 103079, 103080, 103081, 103157
reasons for decision
Mr Brandusoiu was the holder of licences under the Security Industry Act 1997 ("the Security Industry Act"); the Firearms Act 1996 ("the Firearms Act"); and the Commercial Agents and Private inquiry Agents Act 2004 ("the Agents Act").
Exhibition and Function Security Pty Limited ("Exhibition") held a Master Licence under the Security Industry Act. Mr Brandusoiu was a nominated close associate of Exhibition. By virtue of sections 15(5) and 16(5) of the Security Industry Act a reference to the close associate is a reference to the master licence holder.
The Commissioner revoked each of the above licences on the basis that:
(a) Mr Brandusoiu is unsuitable to hold licence because he has been involved in corrupt conduct;
(b) Mr Brandusoiu was not a fit and proper person for the purposes of each Act; and
(c) that it was against the public interest for Mr Brandusoiu to hold a licence issued under the Security Industry Act or the Firearms Act.
The view that Mr Brandusoiu had engaged in "corrupt conduct" was based on a finding to that effect by the Independent Commission Against Corruption ("ICAC"). The finding was published in December 2009 in an ICAC report ("the ICAC report ") into corruption in the provision and certification of security industry training by registered training organisations ("RTOs") .
The Commissioner concluded that if Mr Brandusoiu is not a fit and proper person and is unsuitable to hold a licence because he has been involved in corrupt conduct, then the Commissioner was required to revoke the master licence held by Exhibition.
An internal review held in relation to each revocation determined that the revocation of each licence should stand. The applicants have applied to the Tribunal for external review of each of those decisions. The matters were heard together and evidence in one is taken to be evidence in the others.
The ICAC Finding
The ICAC report disclosed wide ranging corrupt conduct by staff at the Roger Training Academy including its principal Mr Ahmed Moosani. False certificates evidencing training and competency assessments were issued where the recipient had not received the training or had not achieved the level of competency stated on the face of the certificate.
ICAC made findings of corrupt conduct against Mr Brandusoiu and a number of others concerned with RTOs . The finding was based on a number of telephone intercepts and in the interpretation of oral evidence provided by a number of witnesses at hearings conducted by ICAC.
Mr Brandusoiu denies any wrongdoing in relation to those issues and in particular any suggestion that he in any way knowingly assisted Mr Nick Bosnyak to fraudulently obtain the qualification necessary to gain a security licence. Mr Brandusoiu also denies the assertion that he gave false testimony before ICAC.
The evidence before the Tribunal includes transcripts of sworn evidence and transcripts of intercepted telephone calls involving Mr Moosani and Mr Bosnyak and Mr Brandusoiu as well as statements of Mr Bosnyak and Mr Cameron Smith, the Registrar of the Security Industry Registry.
The ICAC report concluded:
"In his evidence to the Commission Mr Brandusoiu denied he knew that Mr Bosnyak had not undertaken any coursework prior to obtaining his certificate in respect of the pre-licensing course because he said he did not see Mr Bosnyak after the conversation on 9 February 2009. However, when asked why he told Mr Bosnyak in the telephone conversation to copy the answers into the workbook he could offer no sensible explanation other than to say it was because Mr Moosani told him he would provide Mr Bosnyak with "all the paperwork".
The Commission is satisfied that Mr Brandusoiu knew that the provision of the answers to Mr Bosnyak was the type of conduct that needed to be concealed. During their first telephone conversation on 9 February 2009 Mr Moosani told Mr Brandusoiu he was concerned that Mr Bosnyak 's initial refusal to complete the workbook created a risk that any subsequent audit could lead to detection. During the later telephone conversation on that day Mr Brandusoiu responded to Mr Moosani's concerns by urging Mr Bosnyak to complete the workbook in his own handwriting.
Based on the intercepted telephone calls, the Commission is satisfied that Mr Brandusoiu arranged for Mr Bosnyak to obtain a certificate from Mr Moosani in respect of the pre-licensing course on the basis that he would not be required to undertake any training or assessment. The Commission is also satisfied that Mr Brandusoiu's denial that he knew Mr Bosnyak had not undertaken any coursework was deliberately false."
...
Findings of fact
Based on the evidence set out in this report the Commission is satisfied to the requisite degree that the following facts have been established:
...
Tibi Brandusoiu knowingly arranged for Mr Bosnyak to obtain a certificate of competency from Mr Moosani, which falsely represented that Mr Bosnyak had demonstrated prescribed competencies, for the purpose of Mr Bosnyak obtaining a provisional security licence.
4. Mr Bosnyak obtained his provisional security licence from the Security Industry Registry in circumstances where he knowingly relied upon the false certificate of competency."
...
Mr Zoppo summarised the evidence as follows:
The evidence establishes the following:
(a) At 11.53 am 27 January 2010 Mr Brandusoiu called Mr Moosani and told him that he had a friend that he wanted to do the course and that he could not speak English well. In this conversation Mr Brandusoiu told Mr Moosani that "he's a friend of mine - look after him alright".
(b) Mr Brandusoiu mentioned to Mr Moosani that he would be introducing another person to Mr Moosani when he was recorded to say " ... And I got another boy start there. Another boy ... I got another name too".
(c) Mr Bosnyak paid for the course with an opal valued at $3800 which is estimated to be about three times the costs of the courses undertaken by Mr Bosnyak .
(d) At 1.49 pm 29 January 2009 Mr Brandusoiu phoned Mr Moosani to discuss what had happened with the meeting. At the phone conversation Mr Brandusoiu stated, " ... alright man, because I want him there, he looks after you more than, you know, he suppose. He looks after you so look after him" to which Mr Moosani replied "yeah don't worry I look after him". Mr Brandusoiu replied to Mr Moosani's response by stating "You have to look after me too, you know".
(e) On 6 February 2009 a further conversation took place between Mr Bosnyak and Mr Moosani. From this conversation it was apparent that Mr Bosnyak was expecting to obtain a licence after he had paid the opal. Mr Bosnyak spoke of the "deal what we make". Mr Moosani offers the answers but this is not enough for Mr Bosnyak who, it appears expected the grant of a security licence in return for the opal that was provided.
(f) At 9.53 am 9 February a phone conversation took place between Mr Moosani, Mr Brandusoiu and Mr Bosnyak . In that conversation Mr Moosani is heard explaining the situation of Mr Bosnyak 's training. In this conversation Mr Moosani is explaining the difficulty that he is having getting Mr Bosnyak to copy the answers into his workbook to demonstrate competency. The importance of getting Mr Bosnyak to complete the workbook in his own handwriting was that such action would hide the fraud from the Security Industry Registry's auditors.
(g) Mr Brandusoiu also told Mr Moosani to "give him the first aid and the RSA, alright". This was referring to the provision of the First Aid Training Certificate and the Responsible Service of Alcohol course. Mr Moosani responds by advising Mr Brandusoiu to "just call him up, tell him to come and see me I'll give him the answers, just write the questions that's it".
(h) The intercepted phone call at 10.38 am on 9 February 2009 between Mr Brandusoiu, Mr Bosnyak and Mr Moosani provides clear evidence that Mr Brandusoiu is not only aware that a fraudulent certificate was to be issued but also provides clear evidence that he has actively encouraged or progressed the issuing of such notices by telling Mr Moosani to provide the answers and then telling Mr Bosnyak to write the answers in his own handwriting.
(i) By this statement it is apparent that Mr Brandusoiu is aware that Mr Bosnyak was paying well in excess of the normal price for the courses and that Mr Brandusoiu was expecting something more than a conventional competency based security training package.
(j) The transcripts of the conversation demonstrate that Mr Brandusoiu's involvement in the fraudulent activity extends beyond the introduction of a friend to the Roger Training Academy for a lawful activity.
(k) In early February 2009 Mr Bosnyak was provided with answers to the questions to competency assessments and asked to complete the assessments in his own handwriting so that it appeared that he had completed the assessments and demonstrated his competency in the relevant subject matter. The certificates state that Mr Bosnyak successfully completed a course and met certain competencies where it is apparent that this had not occurred.
In response to Mr Zoppo's summary, Mr Linegar submits that:
As to (a) this call does no more than establish that Mr Brandusoiu knows Mr Moosani and knows someone who wants to do the course. lt is noted that according to the statement of Mr Bosnyak that he first went to "Roger Academy" in March 2008.
As to (b) this does no more than show that Mr Brandusoiu is prepared to refer interested persons to Mr Moosani. This is understandable given that they are both involved in the same industry.
As to (c) it is not disputed that an opal was offered for payment in an arrangement that existed only as between Mr Moosani and Mr Bosnyak. This fact is made clearer by the contents of the call between Mr Moosani and Mr Bosnyak on 6/2/09 (at 910 am).There is no evidence that indicates Mr Brandusoiu is aware of this arrangement , either from the telephone calls or other evidence. It is also noted that the fact of the opal as payment was never put to Mr Brandusoiu when there was every opportunity to do so.
As to (d) the contents of this call are not evidence of anything that may be construed as "corrupt conduct" on the part of Mr Brandusoiu.
As to (e) it is not agreed that the contents of this call provides evidence of "corrupt conduct". It does appears that there is an agreement between Messrs Moosani and Bosnyak in relation to the "papers" and an acknowledgement by Mr Brandusoiu that if he (Mr Bosnyak) has the answers anyway then he can "copy them". In the context of the fact that the course is being run by "Roger Academy" and that Mr Brandusoiu has earlier said that he was not aware as to whether Mr Bosnyak had "done any courses" (at the Academy - see t-p. 356) this conversation is not entitled to be taken as Mr Brandusoiu acting corruptly or dishonestly. Further, at t.p. 356 in answer to the Commissioner asking: "Why are you telling him to copy the answers?",
Mr Brandusoiu replies; "Because Andy Moosani told me he would give him all the paperwork what is necessary" further suggesting that any conduct to secure the certification for Mr. Bosnyak was well in train by that point and as part of the arrangement between he (Mr Bosnyak) and Mr Moosani.
As to (f) this interpretation is not agreed.
As to (g) the conversation referred to only tends to reinforce the assertion that any "deal" is strictly between Mr Moosani and Mr Bosnyak. It is also further proof that Mr Bosnyak is capable of bargaining and negotiating on his own behalf without any involvement of Mr Brandusoiu.
As to (h) this was obviously a matter for Mr Bosnyak and related to his discussions as to completion of the paperwork to the satisfaction of Mr Moosani.
As to (i) Mr Moosani is outlining difficulties he is facing in dealing with Mr Bosnyak. Toward the end of the conversation it is clear that Mr Moosani is prepared to fully assist Mr Bosnyak when he states "Tell him come and see me I'll give him the answers....". Earlier in the conversation, Mr Brandusoiu stated "Oh mate, but you give him a little homework mate you know?" which can be understood to suggest that Mr Brandusoiu believed that Mr Bosnyak needed assistance in the course work.
As to (j) it is unclear as to whether Mr Brandusoiu is aware as to whether or not Mr Bosnyak has undertaken the necessary course work to be awarded either one of these certificates. In any event, it is submitted that this response does not establish that Mr Brandusoiu has been guilty of corrupt conduct.
As to (k) this suggestion is refuted.
The Applicable Law
The Security Industry Act
Section 15(1) of the Security Industry Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant is not or is no longer a "fit and proper person" to hold a licence. Section 15(5) of the Act prescribes that in the case of an application for a master licence a reference to an applicant includes a reference to each close associate of the applicant. Accordingly, the "close associate" is subject to the "fit and proper person" test.
In addition the Commissioner may revoke a licence should he determine that it is not in the public interest for the person to whom it was granted to continue to hold it (section 26(1); clause 29 of the Security Industry Regulation 2007 ("the Security Regulations"). Section 21 of the Interpretation Act 1987 provides that in any Act or instrument , "person" includes an individual, corporation or body corporate. Further, by virtue of section 16(3) of the Act the Commissioner may 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 either the applicant has been involved in "corrupt conduct" or, by reference to section 16(5) , that a "close associate" of the applicant has been so involved.
The Agents Act
Section 17 (I) of the Agents Act provides that the Commissioner is to cancel an operator licence "if the licensee is a disqualified individual".
Pursuant to section 17 (2) the Commissioner may cancel an operator licence if the licensee:
(a) contravenes a condition of the licence, or
(b) is convicted or found guilty of a minor offence
Section 4 (I) of the Agents Act defines a "disqualified individual" as, inter alia, an individual who, in the opinion of the Commissioner, is not a "fit and proper person" (whether because of sub-section (2A) or otherwise) to hold a licence.
The Firearms Act
Section 24(2) of the Firearms Act provides that a licence may be revoked:
(a) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence;
(b) for any other reason prescribed by the regulations.
Clause 19 of the Firearms Regulation 2006 provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to continue hold a licence.
The ICAC Act
The general nature of corrupt conduct is set out in section 8 of the Independent Commission Against Corruption Act 1988 ("the ICAC Act"). Section 37 and 38 of the ICAC Act Provide:
37 Privilege as regards answers, documents etc
(1) A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not entitled to refuse:
(a) to be sworn or to make an affirmation, or
(b) to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a compulsory examination or public inquiry, or
(c) to produce any document or other thing in the witness's custody or control which the witness is required by the summons or by the person presiding to produce.
(2) A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.
(3) An answer made, or document or other thing produced, by a witness at a compulsory examination or public inquiry before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.
(4) Nothing in this section makes inadmissible:
(a) any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or
(b) any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or
(c) any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.
(5) Where:
(a) an Australian legal practitioner or other person is required to answer a question or produce a document or other thing at a compulsory examination or public inquiry before the Commission, and
(b) the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between an Australian legal practitioner (in his or her capacity as an Australian legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a compulsory examination or public inquiry before the Commission, the Australian legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.
38 Declaration as to objections by witness
The Commissioner or person presiding at the compulsory examination or public inquiry may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing.
The Commissioner's Case
The Commissioner concurs with the view of the ICAC. The Commissioner submits that Mr Brandusoiu engaged in corrupt conduct by arranging for Mr Bosnyak to obtain a false certificate of competency from Mr Moosani for the purpose of Mr Bosnyak obtaining a provisional licence. The Commissioner contends that this conduct adversely affected either directly or indirectly, the exercise of official functions by officers of the Security Industry Registry.
Mr Zoppo submitted that Mr Brandusoiu's conduct may amount to the following criminal offences:
(a) Make false or misleading statement - Section 307C of the Crimes Act;
(b) Accessory to the fact of making a false and misleading statement or representation contrary to s33(2)(a) of the Act.
Mr Zoppo also submitted that Mr Brandusoiu has aided, abetted, counselled or procured the commission of an offence and that he is punishable as the principal offender.
Mr Zoppo also referred to other matters that are included in the material filed by the commissioner:
(a) In 1995 Mr Brandusoiu was convicted of stealing and received a small fine;
(b) In 2004 Mr Brandusoiu knowingly had access to firearms without a licence;
(c) In 2008 Mr Brandusoiu was charged with Resist Hinder Police officer in the execution of his duty, Assault police officer and resist police officer in the execution of duty. The charge of assault was withdrawn and Mr Brandusoiu pleaded guilty to the other charges. the matters were found proven but no convictions were recorded, under section 10 of the Crimes (Sentencing Procedures) Act 1999 and Mr Brandusoiu received a 12 month Good Behaviour Bond for each offence.
(d) In March 2010 Mr Brandusoiu was detected for possessing prohibited articles ( police batons) without a Commissioner's permit.
Mr Zoppo submitted that in order for the Tribunal to be satisfied that Mr Brandusoiu is a fit and proper person he must be able to demonstrate qualities that would allow the Tribunal and the public to have confidence in his honesty, knowledge and capacity in relation to these licences.
He submits that honesty and integrity are implicit requirements for the holder of each of the relevant licences.
While it is conceded that Mr Brandusoiu has not been charged or convicted of any such offence, the Commissioner contends that, when considering whether Mr Brandusoiu is a fit and proper person, it is appropriate for the Tribunal to consider Mr Brandusoiu's conduct and not whether he is charged or convicted.
The Commissioner contends that Mr Brandusoiu has demonstrated a lack of integrity and a capacity for dishonesty that has no place in the Security and Commercial Agents industry nor for the holder of a firearms licence. He further contends that Mr Brandusoiu has not demonstrated that he is a fit and proper person within the meaning of the legislation.
The Commissioner also considers that it is not in the public interest for the Mr Brandusoiu to continue to hold the licences.
Mr Zoppo submitted that it appears that, pursuant to sections 37 and 38 of the ICAC Act, the evidence of Mr Brandusoiu as given in the ICAC is not admissible in proceedings before the Tribunal. He further submitted that even if the evidence that he provided to the ICAC was admissible in proceedings before the Tribunal, the answers given to the ICAC do not provide any evidence on which the Tribunal could interpret the conduct of Mr Brandusoiu as anything other than acts to facilitate the preparation of false certificates of competency.
It is submitted that the correct and preferable decision is to affirm the decision of the Commissioner in each of the matters.
The Applicants' Cases
Mr Linegar, counsel for both Mr Brandusoiu and Exhibition, submits that there is no sound basis for revocation of any of the licences. It is accepted that a licence holder is required to demonstrate qualities that would allow the Tribunal and the public to have confidence in the honesty, knowledge and capacity in relation to the licence holder under scrutiny. He says that Mr Brandusoiu satisfies this standard.
Mr Brandusoiu has filed a number of references each of which supports his contention that he is a person of good character and a fit and proper person to hold these licences.
The Commissioner has relied on the ICAC finding rather than any other complaint or matter alleged involving Mr Brandusoiu. Mr Brandusoiu strenuously denies any wrongdoing in relation to those matters that were before ICAC and he denies the assertion that he gave false testimony before ICAC concerning his contact with Mr Bosnyak. To date, no charges have been laid against Mr. Brandusoiu and therefore there has been no occasion for any hearing on the merits of any of the allegations levelled against him.
Mr Linegar submits that Mr. Brandusoiu has been dealt with unnecessarily harshly by the revocation of his licence on the basis of untested allegations flowing from the ICAC inquiry. He submits that there is no evidence, nor does it appear to be alleged, that Mr. Brandusoiu sought any financial gain in suggesting that Mr Bosnyak contact Mr Moosani in order for him to attempt to gain the required licence to undertake security work. Mr Linegar submits that in merely providing an introduction for an acquaintance to assist that person in gaining employment does not involve him in corrupt conduct.
Further, it is submitted that any understanding between Mr. Moosani and Mr. Bosnyak that the former would act improperly, was a matter between them with no cogent evidence involving either Mr. Brandusoiu or another third party. He says that whilst Mr Moosani and others were arguably involved in "corrupt conduct" in knowingly supplying candidates with the course workbooks complete with answers, the same description should not, based on the available evidence, be applied to Mr Brandusoiu. Further, there is no cogent evidence that Mr Brandusoiu had any power to influence the decision of Mr Moosani as regards the recommendation by Mr Moosani for certification into the Industry of Mr Bosnyak.
In summary, Mr Linegar submits that it is open to the Tribunal to decide that the ICAC finding of "corrupt conduct" against Mr Brandusoiu was not properly based nor supported by the evidence.
Mr Linegar referred to sections 37 and 38 of the ICAC Act and submits that it is incumbent upon the Tribunal to not interpret the conduct of Mr. Brandusoiu in a way that is not open to it or is otherwise impermissible. He submits that the approach of the Commissioner is disingenuous in seeking to rely on the fact of the finding of "corrupt conduct" by ICAC and at the same time reject the oral evidence of Mr Brandusoiu as inadmissible before the Tribunal based on the operation of sections 37 and 38 of the ICAC Act.
Mr Linegar submits that in any event the ICAC finding does not negate the positive aspects of Mr Brandusoiu's background.
Discussion
The task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997. Most of the material before the Tribunal concerns the ICAC finding that Mr Brandusoiu had engaged in corrupt conduct. The Commissioner contends that, as a result of his conduct, Mr Brandusoiu is not a fit and proper person to hold any of the licences and that it is not in the public interest for him to do so.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:
'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'
Toohey and Gaudron JJ said at 380:
"The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
A person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. Criminal convictions can be of great importance in such as assessment: the more so where the activity to be undertaken requires public confidence and reliance on the propriety and integrity of the licensed person: Raymond Robbins v Business Licensing Authority (2000) VCAT 457. Thus the nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:
`Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.
A person who has been found to be of bad character, and not a fit and proper person to operate in an industry, may redeem him or herself: see comments by Judicial Member Molony in Trilin v Commissioner of Fair Trading [2003] NSWADT 222 at paragraph [46] and the cases referred to there.
In the present matter, the ICAC has made a finding of corrupt conduct against Mr Brandusoiu. In my view, the Tribunal cannot go behind that finding. The Tribunal cannot question the facts found by the ICAC that were material to its conclusion or make a determination about whether Mr Brandusoiu was in fact guilty of an offence or whether the ICAC finding was warranted.
Although Mr Brandusoiu maintains his innocence of the allegations, he has not challenged the fact that the ICAC has made a finding of corrupt conduct against him. The finding is a relevant consideration in the Tribunal's exercise of its discretion.
I agree with the Commissioner that honesty and integrity are implicit requirements for the holder of each of the relevant licences. I also accept the submission that in light of the ICAC finding the burden shifts to Mr Brandusoiu to demonstrate that he is a fit and proper person to hold the licences notwithstanding the finding.
I appreciate that fact that no charges have been laid against Mr. Brandusoiu and therefore there has been no occasion for any hearing on the merits of any of the allegations levelled against him. Should that happen, an alternative finding may well be the outcome. However, in my view the ICAC finding is sufficient to shift the burden at this stage.
In my view, Mr Brandusoiu has not satisfied that burden. The evidence that has been filed in support of his case is insufficient to tip the balance in his favour. On the totality of the material before me I am not satisfied that Mr Brandusoiu is a fit and proper person for the purposes of any of the licences. It follows that the master licence held by Exhibition should also be revoked because Mr Brandusoiu was a nominated close associate of Exhibition. That will remain the case so long as Mr Brandusoiu remains a nominated close associate.
Mr Brandusoiu may, of course, redeem himself and at some time in the future may be able to satisfy the Commissioner that he should be granted the licences that he seeks.
In the circumstances it is not necessary to consider the public interest aspect of the Commissioner's case.
It follows, in my view, that each of the decisions should be affirmed.
Orders
The decision under review is affirmed in each of these matters.
Decision last updated: 23 March 2011
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