David v Commissioner of Police, NSW Police

[2008] NSWADT 223

CITATION:	David v Commissioner of Police, NSW Police [2008] NSWADT 223
DIVISION:	General Division
PARTIES:	APPLICANT David David RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	083099
HEARING DATES:	30 June 2008
SUBMISSIONS CLOSED:	30 June 2008
DATE OF DECISION:	14 August 2008
BEFORE:	Montgomery S - Judicial Member
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Commissioner of Police v Gray [2008] NSWSC 414 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
REPRESENTATION:	APPLICANT In person RESPONDENT G De Courcey, solicitor
ORDERS:	The decision under review is affirmed.

1 This matter concerns an application by Mr David to the Tribunal seeking review of a decision of a delegate of the Commissioner of Police ("the Commissioner") to refuse his application for a security license under the Security Industry Act 2005 ("the Act”).

Background Facts

2 Mr David is 26 years old. He has undertaken the training and has obtained the necessary certificates to enable him to work as a security guard if the licence is granted. He has a job offer pending if he obtains a security licence.

3 In November 2007 Mr David lodged an application for a Provisional Class 1ACG security licence with the Commissioner. The Class 1ACG security licence authorises the following:

Class P1A-authorises the licensee to patrol, protect, watch or guard any property while unarmed (and whether while static or mobile), but only while being supervised as required by section 29A of the Act.

Class P1C-authorises the licensee to act as a crowd controller, venue controller or bouncer or to act in a similar capacity, but only while being supervised as required by section 29A of the Act.

Class P1G-authorises the licensee to patrol, protect, watch or guard any property while carrying on retail loss prevention, but only while being supervised as required by section 29A of the Act.

4 In January 2008 a delegate of the Commissioner refused Mr David’s application pursuant to section 21 of the Act. The determination to refuse the application was affirmed on internal review. Mr David applied to the Tribunal and sought a review of the Commissioner's decision.

5 It is common ground that Mr David has not been charged with any criminal offences and does not have a criminal record.

The Relevant Legislation

6 The Commissioner relied on section 15(1)(a) and section 15(3) of the Act to refuse to grant the licence. These subsections provide:

15 Restrictions on granting licence—general suitability criteria

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) is not a fit and proper person to hold the class of licence sought by the applicant, or

(3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.

7 The Commissioner also relied on section 15(6) and section 15(7) of the Act which provide:

(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:

(a) is relevant to the activities carried out under the class of licence sought by the applicant, or

(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or

(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.

(7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).

8 Pursuant to section 29(1) of the Act, a person may apply to the Tribunal for a review of a decision to refuse to grant a licence. Section 29(3) provides that in reviewing a decision to refuse to grant a licence on the ground that a person is not a fit and proper person to hold a licence, the Tribunal:

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and

(b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant’s representative and any other interested party, unless the Commissioner approves otherwise.

9 Section 75 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) provides in part:

75 Proceedings on hearing to be conducted in public

(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make anyone or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

10 Mr David gave oral evidence at the hearing and provided brief written submissions. He stated that he has not been involved in any criminal activities and confirmed that he does not have a criminal record.

11 He stated that he was previously employed by Australia Post and while employed by them he was a victim of mistaken identity, which resulted in his losing that job. He said that he was not involved in any criminal activities and in fact was a victim of other people's wrong doing. He was re-employed by Australia Post once that issue was resolved. He submitted that to be employed by Australia Post a clean record is necessary and that his reemployment with Australia Post is an indication that his record was and is clear.

12 Mr David also gave evidence that he had attended Campsie Police Station and made enquiries about what information was held in regard to him and that he was advised that there was nothing on his record that would have prevented him from obtaining a security licence.

13 Mr David contends that he is a suitable person to hold a security licence. He wants to be able to commence employment in the field of security, to better his life and future and his family’s life, and also to be able to provide services to the public and government.

14 In support of his contention that he is a suitable person to hold a security licence Mr David relies on two references. He stated that he had informed the authors of those references that he was seeking a security licence and that the references have been provided in support of that application.

15 Dr Hong Gan is Mr David’s doctor. He certified that he has known Mr David for 3 years and that during this period he has known him to be of good character and very reliable.

16 Sheikh Khalil Chami is a Minister of Muslim religion and J.P. He stated that he has known Mr David for more than 3 years and that in his opinion Mr David is very good and reliable man. He is an honest person he always helps the needy. He stated that he believes that Mr David is fit for any position or any committee work.

17 Bill Rifi, Operations Manager with Reliable Protective Services advised that once Mr David has obtained a security licence there would be future employment for him at Reliable Protective Services.

The Commissioner’s Open Submissions

18 The Commissioner advised that pursuant to section 15(6) of the Act he has had regard to criminal intelligence reports held in relation to Mr David for the purpose of determining whether he is a fit and proper person to hold a security licence. However, the Commissioner did not disclose reasons for the refusal to grant Mr David's licence application in reliance on section 15(7) of the Act. The Commissioner has informed Mr David of the existence of Police Intelligence Reports but not of the content of those Reports.

19 The Commissioner submitted that section 75(2)(d) of the ADT Act would enable the confidential information that the Commissioner has lodged with the Tribunal to be considered by the Tribunal but not disclosed to Mr David.

20 Mr De Courcey, for the Commissioner, made an application under section 75(2) of the ADT Act for the Tribunal to hear submissions from the Commissioner in private and for an order prohibiting publication of any report of those proceedings. Having satisfied myself that it was desirable to do so by reason of the confidential nature of the evidence and the Commissioner’s submissions concerning that evidence, I made the requisite orders.

21 Mr De Courcey submitted that no weight should be accorded to Mr David’s evidence of the advice that was given to him when he attended Campsie Police Station because the officers at that station would not have had access to the material that is before the Tribunal on a confidential basis. That material must be weighed against the references provided in support of Mr David's application.

The Commissioner’s Confidential Material And Submissions

22 Mr De Courcey said the Commissioner relies on section 15(7) of the Act and the confidentiality of the Police intelligence information provided to the Tribunal.

23 Non-Publication Order

24 Non-Publication Order

25 Non-Publication Order

26 Non-Publication Order

27 Non-Publication Order

28 Non-Publication Order

29 Non-Publication Order

30 Non-Publication Order

Findings

31 In my view, the facts of this matter can be distinguished from those in Commissioner of Police v Gray [2008] NSWSC 414 because further particulars of the alleged conduct relating to Mr David could not be provided without disclosing the content of the confidential material. Thus, I am satisfied, that pursuant to section 15(7), the Commissioner is not required to disclose further particulars to Mr David.

32 I acknowledge the difficulty faced by Mr David in trying to address the case advanced against him without knowing what that case is. He is in the unenviable situation that he can only guess at the case advanced against him.

33 I have reviewed the material provided to me in confidence by the Commissioner and have considered the Commissioner’s confidential submissions on this material. I accept Mr David’s evidence that he has never been questioned or charged in relation to any of that material. He has provided a number of references that support the view that he is well regarded by their authors. Mr David advised the authors of his application for a security licence and the references were provided in that context. There is no suggestion that the authors of the references were privy to the material that has been presented to the Tribunal in confidence. The weight to be given to the references must be assessed by reference to the limitation on the knowledge of the authors.

34 The principal issue is whether Mr David is a ‘fit and proper person’ to hold a security licence. Section 15(1)(a) of the Act requires the Commissioner to refuse to grant the licence if he is not satisfied that Mr David is a fit and proper person for that purpose.

35 The meaning of the phrase ‘fit and proper person’ was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at paragraph 9, where Dixon CJ, McTiernan and Webb JJ found the word ‘fit’, in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase ‘fit and proper person’ was also discussed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said at paragraph 36 of their judgment:

“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.”

36 Whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed. Thus, whether Mr David is a fit and proper person must be determined in the light of the activities likely to be undertaken by the holder of a security licence.

37 The references presented on behalf of Mr David support his contention that he is a fit and proper person to hold a security licence. On the other hand, the Commissioner has presented me with confidential information that suggests that this may not be the case.

38 Having reviewed the confidential information, I am satisfied that Mr David is not a fit and proper person to hold a security licence.

39 Non-Publication Order

40 Non-Publication Order

41 In the Second Reading speech on the introduction of the Security Industry Bill into the NSW Legislative Assembly on 19 November 1997 the responsible Minister, Mr Whelan the then Minister for Police stated:

"If at any time a person fails to meet the licensing criteria, his or her licence will be refused or revoked. These provisions are designed to protect the industry against infiltration by the criminal element and ensure that sensitive information which may assist in the planning of armed robberies does not fall into the wrong hands."

42 Similar sentiments were expressed on the introduction of the Security Industry Amendment Bill into the NSW Legislative Assembly on 19 November 2002 where Mr Gaudry, Parliamentary Secretary on behalf of Mr Iemma, stated:

"The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security.

It is the view of NSW Police that persons who are known to have extensive links to organised crime figures, who are members of an outlaw motor cycle gang linked to organised crime, or who are suspected of offences relating to drug trafficking, murder or other violence offences, should be regarded as "not fit and proper" to hold a security licence.

Clearly, it is in the public interest that persons thought by police to present a public safety or a criminal risk are not given special access to premises, persons or goods under the security licensing system. This should apply even where the person has yet to be charged with a specific criminal offence."

43 Bearing in mind the context of the work that Mr David would be authorised to undertake in the security industry if the licence were granted, I am satisfied that the refusal to grant the licence is the correct and preferable decision.

Order

The decision under review is affirmed.