COMMISSIONER OF POLICE and ASTONE
[2005] WASAT 182
•25 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: COMMISSIONER OF POLICE and ASTONE [2005] WASAT 182
MEMBER: DR B DE VILLIERS (MEMBER)
MR J MANSVELD (MEMBER)
MR R SCAIFE (SESSIONAL MEMBER)
HEARD: 1 JULY 2005
DELIVERED : 25 JULY 2005
FILE NO/S: VR 264 of 2005
BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
PHILLIP FRANCES ASTONE
Respondent
Catchwords:
Evidence - Investigator and inquiry agent - Safety and welfare of public - Revocation of licence - Outstanding criminal charges
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 7, s 7(1), s 27, s 28, s 28(1), s 52, s 52(c), s 67(1), s 67(3), s 67(3)(a), s 67(3)(b), s 67(3b), s 72, s 72(2)(a)
State Administrative Tribunal Act 2004 (WA), s 7, s 11(4), s 17, s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 29(5), s 32(2), s 32(a), s 32(4)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Sgt S Bagley
Respondent: Mr S Watters
Solicitors:
Applicant: N/A
Respondent: In person
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Issue
The applicant has referred for review and affirmation the decision of the licensing officer to revoke the Inquiry Agent and Investigator Licence ("licence") of the respondent. The decision was made pursuant to s 67(3) 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) and the referral for review was done pursuant to s 67(3b) of the Act. The Tribunal made a decision and subsequent orders at the conclusion of the hearing and indicated it would finalise the reasons for decision in due course. These are the reasons.
The applicant contends that the decision to revoke the licence must be affirmed on grounds that the respondent has an extensive criminal record; that he faces serious outstanding charges that include sexual penetration without consent; that he is not "fit and proper" as required by the Act to hold a licence; and that it is therefore in the interest of the safety and welfare of members of the public that his licence be revoked.
The respondent contends that his criminal record is not excessive and had already been taken into account prior to the issuing of his licence; that the outstanding charges against him have not been proven; that the allegations relate to a dispute between him and his previous girlfriend and do not affect members of the public or his duties pursuant to the licence; and that there is insufficient evidence to conclude that it is in the interest of the safety and welfare of members of the public for his licence to be revoked.
Background
The respondent was issued with an Inquiry Agent and Investigator Licence under s 28 of the Act on 4 June 2003. The licence was due to expire on 4 June 2006. The issuing of the licence is regulated by s 52 of the Act. The respondent was refused a licence in September 2002 due to his criminal record. The decision to refuse the licence was appealed in the Midland Court of Petty Sessions. The appeal was dismissed on 23 December 2002. However, as noted above the respondent reapplied on 4 June 2003 and the application for the licence was approved.
The licensing officer Mark Edward Clarkson, who is appointed in accordance with s 7(1) of the Act, received an internal memorandum on 12 May 2005 in which his attention was drawn to a complaint against the respondent for sexual penetration without consent, possession of unlicensed ammunition, a replica pistol and cannabis leaves as well as the issuing of a violence restraining order against the respondent as a result of the sexually related charges. At the date of the review hearing charges for sexual penetration without consent were on foot but with no date set for the hearing, the violence restraining order had been dismissed, and a complaint against a breach of the violence restraining order was scheduled for hearing on 14 October 2005. No charges had been laid for the other alleged offences. The respondent is subject to protective bail conditions that include a prohibition of contact with the complainant and witnesses in regard to the sexual penetration charges.
The licensing officer took into account the complaints against the respondent, his criminal record, as well as offences committed since the issuing of his licence and decided pursuant to s 67(3) of the Act that it was in his opinion in the interest of the safety and welfare of the members of the public to revoke the licence. A notice of revocation of the licence was issued on 17 May 2005. A letter of review was also issued on 17 May 2005 in which the licensing officer concluded that pursuant to s 52(c) of the Act, he was not satisfied that the respondent is a fit and proper person to hold the licence.
The applicant lodged the application for review under s 67(3)(b) of the Act on 26 May 2005.
Applicant and Respondent
The applicant is the Commissioner of Police represented by Sgt Simon Bagley.
The respondent is Mr Phillip Astone represented by Mr Simon Watters of Albert Wolff Chambers.
Application lodged with State Administrative Tribunal
The application was lodged on 26 May 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 the matter in accordance with the SAT Act (s 17) and the enabling Act (s 67(3)(b)).
The Tribunal comprised three persons namely Messrs B De Villiers, J Mansveld and R Scaife as is required when a matter that relates to a decision of a vocational regulatory body is considered (s 11(4) SAT Act).
Section 67(3b) requires the licensing officer to refer a decision to revoke a licence pursuant to s 67(3) of the Act to SAT for review. A "reviewable decision" includes a decision to revoke 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 appointed under s 7 of the Act.
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 that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and —
(i)substitute its own decision; or
(ii)send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate."
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 affirm the decision of the licensing officer to revoke the respondent's licence on the basis that continuance of the licence is or may cause the safety and welfare of the public to be compromised.
Security and Related Activities (Control) Act 1996 (WA)
The relevant provisions of the Security and Related Activities (Control) Act 1996 (WA) 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 27 defines an inquiry agent as "a person who supplies the services of investigators". Section 28(1) defines an investigator as a person who conducts:
"(a)investigations into the conduct of individuals or bodies corporate or the character of individuals;
(b)surveillance work in relation to the matters referred to in paragraph (a); or
(c)investigations concerning missing persons."
Section 67(3) deals with the power of the licensing officer to revoke a licence:
"If in the opinion of the licensing officer the safety or welfare of members of the public is or may be at risk from the continuance in force of a licence the licensing officer may give to the licensee written notice of the revocation –
(a)stating the ground on which the revocation is made; and
(b)advising that the Commissioner will refer the matter to the State Administrative Tribunal within 14 days of the making of the notice; and the licence is revoked when the notice is received or deemed to be received by the licensee."
Section 67(3b)
"Within 14 days of a notice given under subsection (3) the Commissioner must:
(a)refer the matter in respect to which the notice was given to the State Administrative Tribunal; and
(b)ensure that any other proceedings under this Division in respect of the matter commenced before the notice was given are discontinued."
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 23 June 2005 at which interim orders were made in regard to the preparation of the application for hearing.
At the primary hearing, Member De Villiers explained to the parties the nature of review proceedings as set out above. He invited the parties to provide the Tribunal with any evidence, information, or submissions that may be of assistance in reviewing the decision. He confirmed that the Tribunal had received and read all the information, statements, and other documents that had been submitted.
The parties were subsequently invited to give evidence, put questions to each other and make further oral submissions.
The applicant did not call any witnesses. The respondent gave evidence and also called one character witness Dr Nikoljs Zeps.
Applicant submissions
The following documents were filed on behalf of the applicant:
(a)Affidavit dated 6 June 2005 by Mark Edward Clarkson, licensing officer. The affidavit contained eight attachments, including copies of the criminal record of the respondent, the memorandum dated 12 May 2005 in regard to the complaints levelled at the respondent, the notice of revocation of the licence, and the statement of material facts setting out the alleged sexual penetration offences.
The following paragraphs summarise the written and oral submissions made on behalf of the applicant:
(a)The charges are of an "extremely serious nature" and the licensing officer has a duty to consider public interest in light of the seriousness thereof.
(b)The respondent has a "long and extensive" criminal record and has shown a "total disregard" for the law. His "ongoing" disregard for the law is illustrated by the five convictions recorded since the issuing of his licence.
(c)The duties of persons issued with such a licence include surveillance of members of the public. The recent actions of the respondent demonstrate there is a risk that he might use the powers to harass the complainant and other members of the public.
(d)The licensing officer is not limited in the exercise of his discretion to taking into account the criminal record of the respondent. He may also to consider any other information that may assist in exercising his discretion under s 67(3) or s 52(c) of the Act.
(e)The licensing officer took into account all of the information set out in the attachment to his affidavit and concluded there were sufficient grounds pursuant to s 67(3) of the Act to revoke the respondent's licence with immediate effect.
Respondent submissions
The following document was filed on behalf of the respondent:
(a)Affidavit dated 28 June 2005 by the respondent. In addition to responding to the issues raised in the affidavit of Mr Clarkson, two character references were included and a transcript of the proceedings which dealt with the cancellation of the restraining order.
The following paragraphs summarise the written and oral evidence and submissions made on behalf of the respondent:
(a)The licensing officer erred by taking into account outstanding charges that are the subject to separate legal proceedings. Those charges have not been proven and will be "vigorously" defended by the respondent. The violence restraining order has been lifted and no charges have been laid in regard to the alleged possession of unlicensed ammunition, a replica pistol, and cannabis leaves.
(b)The dispute that gave rise to the sexually related charges is albeit serious, of a personal nature following a fall out between the respondent and his previous girlfriend. The charges do not reflect on the ability or suitability of the respondent to discharge his duties under the licence. The licensing officer considered his criminal record prior to the issuing of the licence and found him fit and proper to be issued a licence. The additional offences committed since the issuing of the licence are of a minor nature and relate mainly to traffic related incidents.
(c)There is no evidence or other information in support of the decision by the licensing officer that the respondent's licence had to be withdrawn due to concerns for the safety and welfare of members of the public as required by s 67(3) of the Act. It is also noted that protective bail conditions are in place to ensure the respondent does not contact the complainant or any witness to the alleged offences.
The decision by the licensing officer has caused the respondent to become unemployed and has also affected the employment of two other persons who were employed by him.
The application for the decision to be affirmed should therefore be dismissed, the decision of the licensing officer set aside and the licence of the respondent restored.
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 licensing had to consider all relevant information prior to reaching a decision pursuant to s 67(3), the Tribunal now has the same duty prior to it forming an "opinion".
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 the framework within which the discretionary power of the licensing officer to revoke the licence has to be exercised (s 67(3)). The test to apply by the licensing officer is whether "in the opinion of the licensing officer the safety or welfare of members of the public is or may be at risk from the continuance in force of a licence…" (own emphasis). The test to be applied by the licensing officer is clearly different from the "character" and "fit and proper" considerations provided for under s 52(c) or s 67(1) of the Act.
The actions of the applicant in revoking the licence were curious in two regards. Firstly, in the notice of revocation the licensing officer informed the respondent as follows: "I have made this decision having regard to the following, but not exclusive grounds …". The licensing officer seemed to suggest that there were additional considerations he took into account other than those listed in the notice. If so it would be a contravention of s 67(3)(a) of the Act that clearly requires from the licensing officer to state all the grounds on which the revocation is made. Sgt Bagley was not able to explain during the hearing what other information the licensing officer may have referred to. According to Sgt Bagley the only factors on which the applicant sought to rely were those listed in the notice of revocation. The second curious aspect was the letter of Review sent to the respondent by the licensing officer on 17 May 2005. In this letter, the licensing officer refers to the requirements of s 52(c) of the Act that deal with the refusal to issue a licence.
It seems that the licensing officer confused the requirements of the Act dealing with the issuing and revocation of a licence. The licensing officer had the following options:
Section 52(c) of the Act deals with the refusal by the licensing officer to issue a licence. In this application, the licence was issued in 2003 and it was therefore inappropriate for the licensing officer to issue the letter of 17 May 2005 informing the respondent that he does not comply with the provisions of s 52(c) of the Act.
Section 67(1) of the Act deals with an application to the Tribunal to revoke a licence for disciplinary reasons. An application brought under this sub-section brings in several considerations for the licensing officer to take into account including the "character" and "fit and proper" tests provided for in s 52(c). However, the application under consideration was not brought under s 67(1) and the licensing officer can therefore not rely on s 67(1) for the licence to be revoked.
Section 67(3) of the Act deals with the revocation of a licence by the licensing officer in public interest with subsequent review of decision by the Tribunal. This power enables the licensing officer to revoke the licence due to the urgency of the situation and the real or potential risk to members of the public.
The application under consideration relates to the circumstances provided for in s 67(3) of the Act where the licensing officer is of the opinion that urgent action is required to revoke the licence due to information that the ongoing licensing of the respondent may place the safety or welfare of members of the public at risk. The distinction between an application for disciplinary action under s 67(1) and review of revocation under s 67(3) is therefore clear. The licensing officer cannot revoke the licence under s 67(3) and at the same time refuse to issue a licence under s 52(c) of the Act.
Although counsel for the applicant contended that the revocation of the licence was justified in light of the information contained in the affidavit of the licensing officer, he failed to demonstrate why the continuance of the licence "is or may" place the safety or welfare of the public at risk. The applicant submitted that the respondent might abuse his licence to engage in unlawful surveillance of the complainant or witnesses in the sexual charge proceedings. However, counsel for the respondent responded convincingly that the respondent is subject to restrictive bail conditions and that no evidence has been given to substantiate the concern of the applicant.
Counsel for the applicant also referred to the criminal record of the respondent and in particular the offences he had committed since the issuing of the licence. However, the Tribunal notes that the same licensing officer issued the licence in 2003 while he was fully aware of the criminal record of the respondent. If he had concerns about the compliance of the respondent with s 52(c), he could have refused the licence at the time. The applicant failed to show why the convictions incurred since the issuing of the licence, gave rise to a decision under s 67(3).
The Tribunal notes that no charges are on foot for the other alleged offences referred to in the affidavit of the licensing officer namely possession of unlicensed ammunition, a replica pistol, and cannabis leaves. The Tribunal also notes that the violence restraining order was cancelled on 22 June 2005.
It is agreed between the parties that the charges of sexual penetration without consent are serious. The question for the Tribunal is whether these charges are sufficient to comply with the requirements of s 67(3). The applicant contends that the respondent shows an ongoing disregard for the law and that in light of the seriousness of the sexual charges the decision to revoke the license should be affirmed. The respondent on the other hand contends that the evidence before the Tribunal is insufficient to enable the Tribunal to form an opinion that the safety or welfare of members of the public is or may be at risk by the continued licensing of the respondent. The Tribunal concurs with the submission of the respondent. The revocation of a licence under s 67(3) is an urgent and drastic action and can have a severe impact on the livelihood of a licensee and persons employed by him. The Tribunal therefore requires reliable and relevant information to form an opinion as to possible risk to the welfare or safety of members of the public if the licence were not revoked. The applicant failed to demonstrate that the information available at the time of the decision supported the opinion formed by the licensing officer or that the information before the Tribunal is sufficient for it to affirm the decision of the licensing officer.
If the licensing officer were of the view that the respondent is no longer a "fit and proper" person to hold the licence, an application for disciplinary action pursuant to s 67(1) might have been a better course of action.
Finding
Following the above, the Tribunal finds pursuant to s 29(3) SAT Act that the decision by the licensing officer to revoke the licence of the respondent did not meet the requirements of s 67(3) of the Act and must be set aside. The licence must therefore be re‑issued.
Order
1.The application to affirm the decision by the licensing officer to revoke the Inquiry Agent and Investigator Licence of the respondent in terms of s 29(3) of the SAT Act is dismissed.
2.The notice of revocation dated 17 May 2005 is set aside.
3.An Inquiry Agent and Investigator Licence be re‑issued to the respondent.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
0
0
2