COLLARD and COMMERCIAL AGENTS
[2005] WASAT 52
•7 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996
CITATION: COLLARD and COMMERCIAL AGENTS [2005] WASAT 52
MEMBER: DR B DE VILLIERS (MEMBER)
MR T J CAREY (MEMBER)
BRIG A G WARNER (SENIOR SESSIONAL MEMBER)
HEARD: PRIMARY HEARING 30 MARCH 2004 DIRECTIONS HEARINGS: 24 FEBRUARY 2005; 10 MARCH 2005
DELIVERED : 7 APRIL 2005
FILE NO/S: VR 115 of 2005
BETWEEN: BEVAN A COLLARD
Applicant
AND
COMMERCIAL AGENTS
Respondent
Catchwords:
Security activities - Fit and proper person - Refusal to grant application for licence - Criminal record
Legislation:
Security and Related Tribunal Act 2004 (WA), s 35, s 46, s 47, s 52, s 52(c), s 72(1), s 72(2)(a), s 72,
State Administrative Tribunal Act (WA), s 11(4), s 17, s 27(3), s 29(1),s 29(3), s 29(5),
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Sgt S Bagley
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Re a Practitioner ((2004) WASCA 283
Case(s) also cited:
Nil
DR B DE VILLIERS (MEMBER), MR T J CAREY (MEMBER), BRIG A G WARNER (SENIOR SESSIONAL MEMBER):
REASONS FOR DECISION
Issue
The applicant is seeking a review in terms of s 72(1) of the Security and Related Activities (Control) Act 1996 ("the Act") of the decision by the licensing officer not to issue him a Security Officer's and Crowd Controller's Licence on the basis that he is not regarded as a "fit and proper person" to hold such a licence in terms of s 52(c) of the Act. The licensing officer had the applicant's criminal record in regard when the decision was made. The applicant contends that the decision must be set aside on grounds of his personal circumstances, his previous work as a security officer and his desire to start a new life.
Applicant and Respondent
The applicant is Bevan Allan Collard from PO Box 154, Bakers Hill, WA 6562.
The respondent is Commercial Agents represented by Sgt Simon Bagley from 297 Hay Street East Perth 6004.
Application lodged with 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 ("SAT Act"). In exercising its review function SAT deals with a matter in accordance with the SAT Act (s 17) and the enabling Act in this case being the Security and Related Activities (Control) Act 1996 (s 72(1)).
The Tribunal comprised three persons namely Messrs B De Villiers, T Carey 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) of the Act 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) of the Act.
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. 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 decision-maker at the time when the decision was made. The review hearing is therefore in the words of the SAT Act "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 decision-maker (s 27(3) SAT Act).
The powers of Tribunal according to s 29(3) SAT Act are to –
a. Affirm the decision;
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 decision-maker (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's and Crowd Controller's 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 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 in the application or renewal of a licence and an individual committing such an offence is liable to a fine not exceeding $10000.
Section 52 deals with the issue 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…"
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 February 2005 at which interim orders were made in regard to the preparation of the application for hearing. The parties had to file affidavits and/or any other submissions or documents by 4 March 2005 and 9 March 2005 respectively. A further directions hearing was held on 10 March 2005 at which the matter was listed for hearing on 30 March 2005.
At the primary hearing Member De Villiers explained to the parties the nature of review proceedings as set out above. 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 were made. He drew the attention of parties to s 98 SAT Act which determines that it is an offence to give false or misleading information.
He subsequently invited both parties to make further submissions and to put questions to each other.
Applicant submissions
The applicant made the following written submissions in addition to his oral evidence during the hearing: undated letter received on 21 January 2005 and letter dated 18 March 2005. He also handed the Tribunal at the conclusion of the hearing a letter of reference dated 18 March 2005.
The following are a summary of the written and oral submissions made by the applicant:
(a)He has held a licence to work as a security officer for approximately 5 years. He gained his level 2 Security Officer and Crowd Controller Licences in 1998 and worked for MSA Security and Chubb Security. He did a "really great job" in the positions where he served and got along well with other workers. His licence expired in November 2003 and he did not apply for a renewal due to him not receiving the necessary renewal forms. He was told to undertake the course again before he could apply for a licence. He completed the course successfully on 18 November 2004. When he submitted his application it was rejected on the basis of his criminal record.
(b)He has been offered employment with Paramount Security and Citizens Security Solutions (letter of offer dated 18 November 2004). He does not hold a position with them as indicated in the letter from the company dated 17 March 2005. The type of work required would include the control of people.
(c) He contends that "most of my criminal record was when I was young and most of it is over 10 years old." He then offers an explanation of circumstances involving three of the more recent convictions. He also contends that due to his aboriginality he has suffered prejudice and discrimination.
(d)He has 6 children to support, one of which is at year 11 at Guildford Grammar. He wants to start a new life and "stop hanging around with the wrong crowd." He is involved with a children's band, has become a Christian and worked in the security industry for 3 years with "nothing bad happening". He confirms that he does not have any criminal charges pending.
(e)He concludes that he does not have qualifications for any other work and would therefore appreciate it if the application could be reconsidered.
(f)The letters of reference provided to the Tribunal commented on the good name and character of the applicant.
Respondent submissions
The respondent made the following written submissions in addition to his oral submissions during the hearing: affidavit by Mark Edward Clarkson (licensing officer in terms of s 7(1) of the Act) dated 8 March 2005 with several attachments including a copy of the applicants criminal record and the application form filled out by the applicant. During the hearing the respondent also tendered two previous applications for a licence by the applicant dated respectively 15 October 1998 and 15 November 1999, and a previous application for renewal of a licence by the applicant dated 20 October 2000.
The following are a summary of the written and oral submissions made on behalf of the respondent:
(a)The applicant has a criminal record (24 convictions) that spans 19 years. The most recent convictions were in 2003 for common assault and threatening words/behaviour. The number and nature of the offences demonstrate an "ongoing disregard for the law" on the part of the applicant. The statements of material facts of recent offences committed by the applicant indicate a "disregard for property and persons in authority." They were committed on 30 July 2002 (possessed a controlled weapon likely to cause fear) and 29 May 2003 (common assault and threatening abusive or insulting behaviour).
(b)Several of the convictions since 1998 have a bearing on the ability of the applicant to be considered a fit and proper persons - for example, possession of smoking implement (1998), threatening behaviour (1998), disorderly conduct (2000), driving in excess of legal alcohol limit (twice in 2001), possession of dangerous weapon (2002), common assault and threatening words/behaviour (2003). The applicant has shown himself to have difficulty controlling his temper. This is in contrast to the characteristics required from a person seeking a licence of this nature.
(c)Based on this "attitude and standard of behaviour" the applicant is not a fit and proper person for the purposes of working as a security officer or crowd controller. The applicant was informed in a letter dated 26 November 2004 that the licensing officer is not satisfied that he is a "fit and proper" person due to his criminal history.
(d)The applicant "lied" in his previous application forms (dated 15 October 1998 and 15 November 1999) and the application for renewal (dated 20 October 2000) by each time indicating that he had "no previous conviction by a court anywhere".
(e)The majority of the convictions were not during the applicant's youth, but since the age of 18 years. Serious offences were committed during the period in which the applicant held a licence. The applicant committed offences by providing false information on three occasions when he completed the application and renewal forms without disclosing his criminal record.
(f)The aim of the Act and the interests of the public demand that the applicant not be issued with a licence.
Consideration
The Tribunal's consideration of the application to review the licensing officer's decision to refuse to issue a licence to the applicant, is not confined to the matters that were before the licensing officer when the decision was made (s 27(1) SAT). The purpose of the review is to produce a correct and preferable decision (s 27(2) SAT). 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 approved, he now has to satisfy the Tribunal. For all practical and legal purposes the Tribunal is therefore placed in the shoes of the licensing officer and we have to rely on the Act to determine if the application for review must succeed.
In considering the application the Tribunal has taken into account the written and oral evidence and submissions made by the parties.
The Act makes it clear that the Tribunal "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 the licence;" (s 52(c)).
The Act does not define what the legislator intended with the words "fit and proper" person. The Tribunal has a discretion to take into account various factors that might impact on the ability of a person to be regarded as fit and proper to be issued a licence. Among the factors that the Tribunal has to take into account are the objectives of the Act, the interests of the public, the nature of the duties that the applicant might be required to discharge and any other relevant information that may determine if a person is "fit and proper" to be issued a licence.
The Application for a Licence which is completed by aspirant security officers also provides an indication of some of the factors that must be taken into account by the Tribunal - for example, the applicants previous experience in the field, possible employment offers that have been made, previous refusals/suspension/cancellation or revocation of a licence, and the applicant's criminal record, if any.
In the matter Re a Practitioner ((2004) WASCA 283 12 November 2004) the court considered what is meant by a fit and proper person in the context of the legal profession. In our view the test applied by the court is also of relevance in determining what is meant by fit and proper under the Act. Malcolm CJ at [14] referred to the importance of "maintenance of proper standards and the protection of the public". McKechnie J at [17] referred to the person's criminal record as "the convictions are of so serious nature and were committed in circumstances so intimately related to the practitioner's practice that the protection of the public and the maintenance of proper standards" justified certain action.
The applicant has raised two main reasons for the decision of the licensing officer to be reviewed. The first is that, according to the applicant, most of the offences he has been convicted of were committed when he was much younger. He also contends that in regard to two of the recent offences he was subjected to provocation. The second is that he wants to change his life, that he has a family to take care of and that he does not have any other training than to become a security officer.
The Tribunal has taken note of the desire of the applicant to start a new life but at the same time it must take into account the interests of the public and the nature of the duties the applicant would be required to fulfil. A security officer may be required to deal with complex situations where special skills and a controlled temperament are required to stay on top of the situation. A person who is easily provoked into violence or who himself has a recent record of alcohol abuse or damage to property cannot in our opinion be regarded as "fit and proper" as required by the Act.
The criminal record of the applicant spans 26 offences over a period of 19 years. The majority of the offences were committed since the age of 18 years. The submission by the applicant that he has changed his ways is not (yet) reflected in his criminal record. Since the year 2000, the applicant has been convicted of 7 offences. These offences are not of a trivial nature but are of direct relevance to determine if he is a fit and proper person for purposes of the Act. To adopt the words of McKenchie J in Re Practitioner the criminal record "intimately relates" to the duties of a security officer.
Serious offences were committed during the period in which he held a security officer licence. Although he does not have any criminal proceedings pending, the applicant admitted during cross examination that he had given false information when he completed his previous application and renewal forms by not disclosing his criminal record. That may cause further proceedings to be commenced under s 51 of the Act.
The actions of the applicant during the past 15 years demonstrate an ongoing and regular disregard for the law. Many of the offences involve the use of alcohol, violence and threatening behaviour. There is a high risk that, given his record, the applicant would when provoked by individuals or a crowd, react again in a violent and/or abusive manner.
Finding
The Tribunal finds that in terms of s 52(c) of the Act a licence should not be issued to the applicant on the grounds that the Tribunal is not satisfied that he is a fit and proper person to hold such a licence.
Orders
The application is dismissed.
I certify that this and the preceding 9 pages comprise the reasons of judgment of the State Administrative Tribunal.
________________
Dr Bertus De Villiers - Member
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