De Livera v Commissioner of Police, NSW Police Service
[1999] NSWADT 87
•15 September 1999
CITATION: De Livera -v- Commissioner of Police, NSW Police Service [1999] NSWADT 87 DIVISION: General APPLICANT: Roger De Livera RESPONDENT: Commissioner of Police FILE NUMBER: 993003 HEARING DATES: 06/28/1999; 06/29/1999; 06/30/1999 SUBMISSIONS CLOSED: 06/30/1999 DATE OF DECISION: 15 September 1999 BEFORE:
P M Skinner - Judicial MemberPRIMARY LEGISLATION: Security Industry Act 1997 APPLICATION: Review of a decision to refuse to issue a security industry licence - MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
G Heathcote, counsel instructed by Houston Dearn O'Connor, solicitors
G Willis counsel instructed by F Hutchison, General Manager, Legal Services, NSW Police ServiceORDERS: 1. Set aside the decisions made by the delegate of the Commissioner of Police refusing the applicant's application for a Class 1A, a Class 1B and a Class 1C licence under the Security Industry Act 1997.
2. Substitute the Tribunal's decision that a Class 1A, Class 1B and Class 1C licence and be granted to the applicant effective from the date of refusal.
3. No order as to costs is made.
1 This is an appeal against a decision by the Commissioner of Police ('the Commissioner') refusing a security industry licence application made under the Security Industry Act 1997 ('the Act') by Roger De Livera ('the applicant').
Security Industry Licensing
2 The Act provides for the grant by the Commissioner of Police (‘the Commissioner’) of three classes of licence to persons working in the security industry: master licences (section 10), class 1 licences (section 11) and class 2 licences (section 12). The class 1 and class 2 licences are divided further into subclasses of licence.
3 Section 11 of the Act is as follows:
Application for a licence
‘ 11 Class 1 licences
(1) Class 1 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows:
(2) The relevant subclass is to be endorsed on each class 1 licence. More than one such subclass may be endorsed on a class 1 licence.’
(a) class 1A - authorises the licensee to patrol, guard, watch or protect property (including the guarding of cash in transit) or to carry on such other activities as may be prescribed by the regulations,
(b) class 1B - authorises the licensee to act as a bodyguard,
(c) class 1C - authorises the licensee to act as a crowd controller or bouncer.
4 On 4 August 1998 the applicant applied for a class 1 licence covering all three subclasses – class 1A, class 1B and class 1C. A copy of the application is Exhibit O in these proceedings.
5 Exhibit O states that the applicant is employed by Brambles Armoured NSW, trading as Brambles Security Services Ltd Inc. This must not be precisely accurate, but there was no issue in this application that the applicant was employed by some entity under the ‘Brambles’ umbrella, that entity being the holder of a master licence. Accordingly there was no issue with the proposition that the applicant was eligible under section 13 of the Act to apply for a class 1 licence.
6 The applicant complied with the procedure for an application as set out in section 14 of the Act.
Refusal by the Commissioner
7 I am not aware of when or how the applicant was notified of the original refusal by the Commissioner of his application but it seems that he requested a review by the Police Service of that decision.
8 By letter from the ‘NSW Police Service, Security Industry Registry’ under the hand of one ‘P. A. Houlton, Manager’ dated 24 December 1998, Exhibit P in these proceedings, the applicant was advised as follows:
9 In a document entitled ‘Amended Statement of Reasons’ dated 9 April 1999 issued by Kay Smith as delegate (Exhibit T) the Commissioner of Police confirmed again to the applicant that he was refused a licence under the Act upon these bases, but with a fuller exposition of the material relied upon and the reasoning process used.
‘An internal review has been undertaken in accordance with the provisions of Section 53 of the Administrative Decisions Tribunal Act 1997 and the original decision of the Delegate of Police has been affirmed.
The refusal is based on the following criteria:
I AM SATISFIED THAT YOU ARE NOT A FIT AND PROPER PERSON TO HOLD THE CLASS OF LICENCE SOUGHT.
I CONSIDER THAT THE GRANT OF THE LICENCE WOULD BE CONTRARY TO THE PUBLIC INTEREST.’
10 The Commissioner relied upon subsections 15(1)(a) and 15(3) of the Act in refusing the licences. Those subsections are as follows:
Application to this Tribunal
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, . . .
(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.’
11 This application is brought pursuant to s.29 of the Act for a review of the Commissioner’s refusal to grant a licence under the Act to the applicant. The powers exercisable by this Tribunal in relation to the application are set out in Chapter 5, Part 3 of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act').
12 The Commissioner is the administrator for the purposes of the application, and the respondent to same before this Tribunal. The reviewable decision is of course the refusal to the applicant of the class 1 licences for which he applied.
13 There is no issue before me as to the preconditions for an application set out in s 55 of the Tribunal Act having been satisfied.
Evidence before this Tribunal
14 The case for the respondent that the applicant is not a fit and proper person to hold the licences for which he has applied rests on the five incidents numbered 1 to 5 on the first three pages of Exhibit T, as supplemented, explained and expanded upon by the other evidence before me.
15 An early objection was made by the applicant through his counsel to the receipt by the Tribunal of material that the applicant submitted was brought into existence for the purposes of Part 8A of the Police Service Act 1990, and therefore not admissible in the proceedings before me pursuant to s 170 of that Act.
16 s 170 of the Police Service Act is in the following terms:
17 Mr Willis for the Commissioner submitted, by way of a concession, that these proceedings do not come within subsection 1(a) of s 170. He relied rather on a literal interpretation of subsection 2(c) to include any witness, even one unconnected with the original creation of the document.
‘ 170 Certain documents privileged
(1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings:
(2) Subsection (1) does not apply to or in respect of:
(a) that concern the conduct of police officers, and
(b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.
(3) Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.’
(a) a document comprising a complaint, or
(b) a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or
(c) a document that a witness is willing to produce.
18 Mr Heathcote made a logically attractive submission against that proposition, but nonetheless I admitted the document then in question as Exhibit A and subsequently admitted over the same objection by Mr Heathcote Exhibits B, C, D, E, H, J, K, and L.
19 My reasons are set out at the top of T 28/6/99 p 12. See also at T 28/6/99 40.7. I relied upon the intent of the Tribunal Act, in particular s 73. Upon further consideration of this issue however, it seems to me that a further basis for the admission of the material is a broad interpretation, despite the concession of Mr Willis, of s 170(1)(a) of the Police Service Act.
20 It seems to me that central to these proceedings is the conduct of the applicant whilst he was a police officer, and the powers of the Commissioner to deal with police officers, and finally the effect of the finding that was made in respect of the applicant, preliminary or otherwise, under the new ‘Commissioner’s confidence’ provisions of the Police Service Act 1990 (see s 181D of that Act). In my opinion it is open to me to accept that these proceedings therefore ‘concern the conduct of police officers’, in particular the conduct of the applicant whilst he was a police officer.
21 Despite these objections raised by the applicant as to admissibility of some of the evidence, there were no real disputes between the parties as to the relevant facts. Concessions were made by counsel for the applicant as to there being no issue with findings of fact made by ‘appropriately constituted tribunals in the past’.
22 The approach of the applicant to these findings, relevant to incidents 1 and 3 as set out in Exhibit T and tendered separately as Exhibits F, G, M and N, is set out in the applicant’s ‘Outline of Reply’ to that document, Exhibit 7.
23 A further concession was made by the applicant through his counsel at the outset of the hearing as to the allegations of inappropriate sexual remarks made by him to a female work colleague – incident 4 in Exhibit T.
24 Mr Heathcote stated:
25 Although when the applicant subsequently gave evidence some of his answers to questions on this issue could be said to constitute denials, and when he did concede that he may have said the alleged words he attempted to explain it as being a joke, essentially the case was conducted as to this issue in accordance with the concession of the applicant’s counsel noted above. Upon that basis, the young woman in question was not called.
‘The allegation's dealt with in the Commissioner's outline, Mr Chairman I'm instructed that my client won't be denying that he said words to that effect, the context there may be some argument about but the actual words, as I'm presently instructed, won't be - he's not in a position to deny that.’.
26 The respondent called sworn evidence from Superintendent Robert May, Detective Inspector Alan Champion and Senior Sergeant Michael Madden, and either through these witnesses or by agreement all relevant documents such as reports, records of interview, review decisions and etc were tendered.
27 The applicant gave sworn evidence before me, as did two character witnesses. As well as Exhibit 7 noted above and other exhibits relevant to specific incidents the applicant tendered impressive material going to his good character.
Submissions
28 Full and detailed submissions were made by counsel for the parties on 30 June 1999. Mr Willis for the respondent conceded that ‘taken individually’ each of the five incidents relied upon ‘may not . . . be considered by the tribunal to disqualify him on a fit and proper basis’ but that ‘taken collectively’ they do. Mr Willis submitted that each matter must not be looked at in isolation but ‘collectively with the other conduct’, that there is ‘a cumulative effect’.
29 In my opinion that proposition must be true. Like any case, the whole of the evidence must be looked at, and unless there is a compelling reason to the contrary, the (effect of the) whole can be greater than the sum of the (effect of the) parts. I can see no compelling reason to the contrary in this case.
30 Mr Willis relied upon the arguments as set out in Exhibit T, supplemented by his oral submissions.
31 Mr Heathcote relied upon the arguments set out in Exhibit 7, supplemented by his oral submissions.
32 Mr Heathcote emphasised the age of some of the matters, the nature of the findings made by the various tribunals before which the applicant had been brought to task in respect of the relevant incidents, and his good character and service record over many years.
The question of ‘fit and proper’ character
33 I was referred by counsel for the respondent to the decision in this division of the Tribunal by K P O’Connor, President, in Haining v Commissioner of Police, [1999] NSWADT 6. In that case the President stated (para [41]):
34 His Honour was in that case considering the security industry as regulated by the Act. He referred to the intent of the Act to more strictly regulate the industry than had been the case previously. His Honour noted the mandatory refusal requirements under the Act and the special provisions dealing with police officers (para [42]).
‘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 objectives leading the legislature to regulate the industry.’.
35 His Honour noted that the scheme of the Act created in effect a threshold for the imposition of the mandatory policy of refusal. His Honour stated that ‘[i]n cases that fall below the line, the scheme requires that the matter be resolved on general fitness grounds’ (para [48]). His Honour noted that there are many cases where the relevant considerations are discussed and noted that he had been referred in particular to Hughes & Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
36 This case falls below the mandatory threshold or line. As noted above the Commissioner relies upon subs. 15(1)(a) and subs. 15(3). In this case there was no removal of the applicant from the Police Service pursuant to s 181D of the Police Service Act 1990, merely the initiation of a process that may or may not have led to that end result (see paragraphs 4 to 6 of the affidavit of Detective Inspector May, Exhibit U). But even if the applicant had been so removed, s 16(2) of the Act makes it clear that that would only provide a discretionary ground for refusing the granting of the application for a licence.
37 Similarly then to the case involving Mr Haining, above, this case requires resolution ‘on general fitness grounds’.
38 I was also referred by counsel for the respondent to O’Sullivan v Farrer (1989) 168 CLR 210, at 216; Director of Public Prosecutions v Smith [1991] 1 V R 63, at 75. These decisions emphasise the general discretion that I have, and the interest of the public as distinct from the interest of an individual or individuals.
39 Counsel for the respondent also cited Re Dowling and Secretary to Department of Health, (1985) 8 ALD 171, in which Hughes & Vale Pty Ltd v New South Wales (No.2), above, is cited.
40 Counsel for the applicant, Mr Heathcote, also referred me to Haining, above, and to Armani v Director General, Department of Transport [1999] NSWADT 20, in which Australian Broadcasting Tribunal v Bond, above, is cited.
The Tribunal’s decision making process
41 Mr Willis conceded that the Commissioner bears the onus of establishing that he was justified in the refusal of the application under s 15(1)(a) or s 15(3) of the Act. Further he acknowledged that given the possible effect upon the livelihood of the applicant, the comments in Briginshaw v Briginshaw(1938) 60 CLR 336 were relevant.
42 However he submitted that that case applied to a different fact finding exercise, and that my task sitting as the Tribunal in this case was to stand in the shoes of the administrator, in this case the Commissioner, and to then in accordance with s 63 of the Tribunal Act ‘decide what the correct and preferable decision is having regard to the material before it’.
43 I accept those submissions. In my view a decision focused overly on the effects upon the applicant, because of an emphasis upon the Briginshaw test, above, or otherwise, would be erroneous. I have in mind the passages in O’Sullivan v Farrer, above, and Director of Public Prosecutions v Smith, above, to which I was referred, and also the terms of s 63 of the Tribunal Act, subsections (1) and (2) of which are as follows:
Findings
‘63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.’.
(a) any relevant factual material,
(b) any applicable written or unwritten law.
44 Looking firstly at each of the five incidents separately, I am not persuaded by any one of them on its own that the applicant is not a fit and proper person to hold the class 1 licences under the Act that he seeks.
45 Nor am I persuaded by any one of them on its own that it would be contrary to the public interest to grant the applicant those licences. There may be circumstances where even though it was not held that a person was not fit and proper it would be in the public interest to refuse a licence. However in my opinion the circumstances of this case, considering the scheme of the Act, do not create a dichotomy between the issue of ‘fit and proper’ and the issue of ‘public interest’ and effectively they are for present purposes to be determined as the one and the same question.
46 In the paragraphs following I use the numbering for the incidents as used in Exhibit T, the respondent’s Amended Statement of Reasons.
47 Incident 1: This is an incident that took place on 17 May 1989 and its circumstances were fully litigated before learned tribunals more able than this Tribunal (see Exhibits F and G), if only because of the contemporaneity of their deliberations and the completeness of the evidence put before them, to decide the facts. In any event the applicant through his counsel took no issue with these findings – see at paragraph 21 above .
48 The findings relating to this incident were that the applicant had solicited a loan from an elderly lady, which in the circumstances was likely to bring discredit upon the police force, as it then was. Nonetheless his Honour Judge Shadbolt, sitting as the Police Tribunal of New South Wales, found that ‘[n]o pressure was exerted by Sergeant De Livera and it was understood by both parties that any further discussion would be with [the elderly lady’s] son’.
49 His Honour fully set out his fact findings in his reasons for determination, Exhibit F.
50 Leaving aside the issue of its antiquity, in my opinion this incident on its own does not persuade me that the applicant was or is not a fit and proper person under s 15(1)(a) of the Act.
51 Incident 2: This is an incident that took place on 16 March 1994. Senior Sergeant Michael Madden gave the relevant evidence as to this incident, and through him the respondent tendered Exhibits Q, R, S and V, and the applicant tendered Exhibit 6. Exhibit E was also relevant.
52 Essentially, the facts of this incident are that the applicant came on duty after a prisoner had been inadvertently bailed from the police station on the previous shift, rather than being returned to his former custody, and the applicant failed to do anything constructive during his shift to achieve the return to custody of the prisoner. I note also that the prisoner seemed to be a fairly petty criminal serving a relatively minor sentence, and that on the evidence such an administrative mixup is, or was at least, not uncommon.
53 A fair summary of Sergeant Madden’s view of the applicant’s actions the subject of his investigation is that he lacked initiative, and was neglectful of his duty – see Sergeant Madden’s report, Exhibit S.
54 Sergeant Madden was also of the view that in his responses to the investigation of this incident by the Sergeant the applicant had been evasive, bordering on the untruthful. However in cross-examination Sergeant Madden readily conceded that he did not consider that the applicant had crossed over that border.
55 Sergeant Madden in his report recommended that the applicant only be counselled for neglect of duty, and that he was not as culpable as other officers involved in the incident.
56 Ultimately upon a review of the situation by the Police Service solicitor, no departmental charges were laid against the applicant for lack of evidence. This incident does not on its own persuade me that the applicant was or is not a fit and proper person under s 15(1)(a) of the Act.
57 Incident 3: This incident as it was relevant to the applicant involved the alleged negligent investigation by him of an offence committed by a probationary constable from the police station where the applicant was supervising sergeant.
58 Exhibits H, J, K, L, M and N were relevant, the latter two exhibits being respectively the judgment of Taylor DCJ sitting as the Police Disciplinary Tribunal on 26 February 1997 and the appellant’s successful appeal to the Government Related Employees Appeal Tribunal on 10 May 1999.
59 The appeal was successful essentially because the applicant had left the Police Service by that time and both parties accepted that ‘no good disciplinary purpose’ would be served by the imposition of the fine.
60 That reasoning diminishes the force of any argument based upon an inference to be drawn from the penalty imposed, but nonetheless the finding of Judge Taylor was only that the applicant be counselled and reprimanded, and the evidence as to the nature of this incident and the applicant’s testimony before me as to the reasons for his acts convince me again that this incident falls short of persuading me that the applicant was or is not a fit and proper person under s 15(1)(a) of the Act.
61 Incident 4: This was an incident or incidents relating to sexual harassment in 1995 by the applicant of a more junior female colleague.
62 The evidence was dealt with before me in the manner as I have indicated in paras 23 – 25 above. As well, Exhibits A, B, C, D and W were tendered by the respondent and the applicant tendered Exhibit 1. This was a memorandum indicating that the Police Service had decided not to pursue the complaint as to inappropriate remarks in all the circumstances set out therein, but again essentially because the applicant had left the Police Service by that time.
63 The Police Service is to be applauded for the seriousness with which they took the complaint and the thorough investigation that they launched into it. It is heartening to see that the Service treats the matters dealt with in its instruction booklet, Exhibit W, as of real substance.
64 In my opinion, this is a serious matter affecting the applicant’s character. However, in his favour, he did accept before me liability for the allegations made by the young woman, even if somewhat reluctantly.
65 His contention that he was only joking is supported to some extent by Sergeant Kewin’s report to Inspector May (Exhibit B) in which the Sergeant states that one of the two remarks he overheard did at least cause the male staff members who heard it to laugh. Nonetheless the young woman who was the butt of the ‘joke’ not surprisingly did not find it funny.
66 Ultimately I am not persuaded by this incident on its own that the applicant was or is not a fit and proper person under s 15(1)(a) of the Act. In reaching this conclusion I weigh in the balance the applicant’s contrition as expressed in his evidence before me, his lengthy record of otherwise good service as a police officer, this and the other relevant incidents aside, and his indication that he now avoids making such ‘jokes’.
67 Incident 5: This was an incident or incidents relating to unauthorised access by the applicant to the Police Service computer.
68 The relevant evidence relied upon by the respondent was an affidavit by the investigating police officer, Detective Inspector Champion, (Exhibit U), who also gave evidence before me.
69 I treat this incident also as one of seriousness affecting the applicant’s character. Warning notices against unauthorised access were clearly displayed in the computer system. The Police Service imposes great trust in its officers and expects them to abide by instructions and restrictions as to access to confidential material. The applicant admitted in his evidence that he knew that the police computer system was to be used only for official purposes, but his defence was as he expressed it in cross-examination:
70 The evidence essentially confirmed that the access by the applicant was for those purposes, except for the access to the details of the vehicle owned by Mr Khoury. The applicant however gave an explanation before me as to that access still being for his personal purposes, and on balance I accept that explanation.
‘Q. . . . what I'm putting to you is that at the time that you made these accesses, you knew that it was wrong to access the police computer other than for official purposes?
A. Yes and no. For official purposes yes. At that time I didn't believe that if I was to look at something with my name, my mother's name, my son's name or my daughter's name, my family name I was doing something wrong because I had the permission to do that, but now I see that I shouldn't have done it.’.
71 As I indicated during the course of submissions there is a curious aspect of the evidence in relation to this incident going to the very short periods of ownership of some of the vehicles by the applicant’s mother. However the evidence took it no further.
72 Again, I do not find that this incident on its own establishes that the applicant was or is not a fit and proper person under s 15(1)(a) of the Act.
73 Cumulative effect of all the incidents: These five incidents must be assessed in the context of 31 ½ years of service by the applicant in the NSW Police Service, during which he accumulated sufficient goodwill from his colleagues that he was able to tender the various impressive references from them as to his good character.
74 He also achieved a commendation for a rescue of a 15 year old boy in circumstances that he described in his evidence and which stand very favourably to his credit.
75 Further, he tendered evidence from witnesses and of a documentary nature as to his high standing in the community at large.
76 It is true that the applicant became a ‘candidate for Commissioner’s Confidence action’ (see Exhibit U, para 4) and that the first step in such action was taken by the Commissioner when he issued a show cause notice. However ultimately, and after quite sufficient time had elapsed for the confidence process to be progressed if there had been the intention to do so, the applicant was allowed to retire without the process continuing any further.
77 Inspector Champion conceded in cross-examination that any dismissal of the applicant pursuant to the s 181D powers ‘would have been a difficult case in the Industrial Relations Commission for the Commissioner’.
78 It seems to me that the Commissioner would have had difficulties in establishing that the applicant was not a fit and proper person to be a police officer, and indeed that that was recognized by the Police Service and essentially is the reason that the process didn’t continue past the initial stage. However, it must be accepted that, with no disrespect to those in the security industry, the standards of fitness required for a serving police officer in the modern NSW Police Service are higher than those for a security guard.
79 In the light of all of this, I am not persuaded either that the accumulated effect of the five incidents relied upon by the Commissioner is such as to establish that the applicant was or is not a fit and proper person under s 15(1)(a) of the Act.
80 Accordingly, I am not satisfied that the applicant is not a fit and proper person to hold a class 1A, class 1B or class 1C licence.
81 It seems to me that with his background, training and experience the applicant is eminently qualified to be a security guard, and I do not consider that the grant of the three licences to him for which he has applied would be contrary to the public interest.
82 I can see no basis for refusing the applicant any of the licences for which he has applied, nor for placing any restrictions upon same pursuant to s 21(3) of the Act.
Orders
83 Accordingly, the Tribunal's determination pursuant to s.63 of the Tribunal Act is to:
1. Set aside the decisions made by the delegate of the Commissioner of Police refusing the applicant's application for a Class 1A, a Class 1B and a Class 1C licence under the Security Industry Act 1997; and2. Substitute the Tribunal's decision that a Class 1A, Class 1B and Class 1 C licence and be granted to the applicant effective from the date of refusal;
and in relation to s. 88 of the Tribunal Act:
3. No order as to costs is made.
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