Denton and Commissioner Of Police - [2009] WASAT 115

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)

CITATION: DENTON and COMMISSIONER OF POLICE [2009] WASAT 115

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 13 MAY 2009

DELIVERED : 10 JUNE 2009

FILE NO/S: VR 23 of 2009

BETWEEN: LEONIE JAYNE DENTON
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Security officer - Crowd controller - Security officer - Character - Fit and proper - Previous offence - Previous behaviour - Service record while in service of the Western Australian Police - Disciplinary proceedings in course of duty - Failure to comply with internal Police protocols - Rehabilitation - Duty of original decisionmaker to put all information, positive and negative, before the Tribunal for its consideration in the review proceedings

Legislation:

Security and Related Activities (Control) Act 1996 (WA), s 12(1), s 35(1), s 52, s 52(c), s 52(k), s 72, s 72(1)
State Administrative Tribunal Act 2004 (WA), s 19(2), s 19(2)(b), s 19(3)(a), s 24(b), s 27(1), s 27(2), s 29, s 29(1), s 31, s 32(2)(a), s 32(4)

Result:

The application for review succeeds
The decision of the Commissioner of Police to refuse to issue the licences is set aside and the licences must be issued

Category: B

Representation:

Counsel:

Applicant: Ms M Fifield
Respondent: Sergeant S Bagley (Representative)

Solicitors:

Applicant: Avon Legal
Respondent: Commissioner of Police

Case(s) referred to in decision(s):

A and Commissioner of Police [2005] WASAT 121
Collins v Estate Agents Board (1994) 7 VAR 394
Coulthard v Henker [2003] WASCA 177
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
M and Chief Executive Officer of Department for Community Development [2009] WASAT 6
McKenna and Commercial Agents [2005] WASAT 58
Smith v Director-General of Transport [2004] WASCA 64
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)
Weininger v The Queen [2003] HCA 14

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Ms Denton applied for a review of the decision by the Commissioner of Police to refuse her application to be licensed as a security officer and crowd controller.
The Commissioner of Police contended that while Ms Denton was in the Western Australian Police, she at four occasions failed to adhere to established procedures and protocols. The failure was, according to the Commissioner, a reflection on her character and she should therefore not be licensed for purposes of the security industry under the Security and Related Activities (Control) Act 1996 (WA). The Commissioner accepted that Ms Denton otherwise had a clean record save for a single minor conviction about 20 years ago. The decision of the Commissioner was therefore entirely based on the weight attached to the alleged transgressions that Ms Denton committed while in duty of the Western Australian Police.
Ms Denton contended that each of the incidents relied on by the Commissioner of Police can be explained; that the incidents were minor, the incidents happened between three and 10 years ago, she had no criminal record save for the one incident, the incidents do not negatively reflect on her character, and that her entire service career must be weighted and not just these incidents.
The Tribunal found that on balance the incidents did not reflect on the character of Ms Denton in such a manner that she should not be licensed for purposes of a security officer or crowd controller. The incidents were relatively minor in nature and although collectively it may reflect on her suitability to serve in the Western Australian Police, the same standards do not apply to the security industry. The Commissioner of Police further had sufficient opportunity to take disciplinary proceedings against her. The Commissioner also had opportunity to commence criminal proceedings against her but chose not to.
The nature of the incidents may perhaps be sufficient to preclude Ms Denton from being employed by the Western Australian Police, but the test for purposes of licensing under the Security and Related Activities (Control) Act 1996 (WA) is not the same as for a Police candidate. Ms Denton's record of more than 17 years in the Western Australian Police is otherwise without blemish and the incidents do not reflect on her character to the extent that she should not be licensed.
The Tribunal, who considers hundreds of applications under the Security and Related Activities (Control) Act 1996 each year, is further satisfied that the profile presented by Ms Denton is of such standard that she ought to be allowed to work in the industry. The Commissioner of Police and the Tribunal have allowed persons with a far less impressive record as that of Ms Denton, to be licensed. If the standard proposed by the Commissioner of Police for Ms Denton were to be applied to the rest of the security industry, few would remain.
The decision of the Commissioner of Police not to issue the licences was therefore set aside and the Commissioner was ordered to issue the licenses within 21 days from the date of the orders.

Issue

The question in dispute is whether the decision by the Commissioner of Police (Commissioner) to refuse to issue a crowd control and a security officer licence to Ms Denton should be set aside.

Background

This is an application for review under s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (SRAC Act) whereby Ms Denton seeks a review of the decision by the Commissioner to refuse her application to be issued with a security officer licence and a crowd controller licence.
The application was lodged on 11 February 2009. The first directions hearing took place on 19 February 2009. The proceedings were adjourned to enable the Commissioner to investigate the personal file of Ms Denton (since she was employed previously as a police officer with the Western Australian Police (Police)) in order to substantiate its opposition to her being licensed. Ms Denton initially sought an interim licence but later withdrew the application. On 25 February 2009, a second directions hearing took place and detailed programming orders were made for the matter to be heard. The matter was initially set down for hearing on 15 April 2009 but was subsequently adjourned to 13 May 2009.
Prior to the hearing several character references were filed. Only one witness was called, Mr Maurice Denton, who is the father of Ms Denton. The Commissioner accepted that the other references be admitted into evidence but made submissions as to the weight that should be attached to statements. Ms Denton did not give evidence. The Commissioner did not call any witnesses.

Review proceedings

In review proceedings the Tribunal can affirm the decision, revoke it, set it aside and substitute it with another decision (s 29 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)). The Tribunal can also refer the decision back to the Commissioner to reconsider (s 31 of the SAT Act).
The Tribunal raised with the Commissioner at the first directions hearing the possibility of the matter being referred back to it for reconsideration, but Sergeant Bagley indicated that the licensing officer was unlikely to come to a different decision.
The Tribunal is placed in the position of the decision-maker and as such, it has the same functions and discretions as the licensing officer when it made the decision (s 29(1) of the SAT Act). The review hearing is de novo which means the Tribunal is required take into account all information before it, including information that was not available to the decisionmaker at the time of its decision.
The Tribunal may not issue the licence unless it is satisfied that Ms Denton is of good character and that she is a fit and proper person to hold such licences pursuant to s 52(c) of the SRAC Act. The SRAC Act provides as follows:
A 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; (Tribunal's emphasis added.)

Preliminary issues

Ms Maria Fifield, who appeared for Ms Denton, raised two preliminary issues which the Tribunal will deal with before it turns to the main application.
The preliminary issues were:
•If the licensing officer acted without proper authorisation when he made the decision to refuse the licences; and
•If the decision to refuse the licenses was solely based on 'fit and proper' grounds and not on 'character' grounds.
The first preliminary question arises from the contention of Ms Fifield that the licensing officer, Mr Darren Bryce, either acted outside his powers or that he did not apply his mind to all the facts before coming to a decision.
Mr M Clarkson, the licensing officer who in the normal course would deal with the application, received the original application and referred it to the Police's internal Risk Assessment Unit for comment before he went on leave. Mr Marc Craig of the Risk Assessment Unit completed a form on 27 January 2009 and recommended that Ms Denton not be licensed. Ms Ann Heiman of the Assessment Unit sent an email on 27 January 2009 to Mr Clarkson with the recommendation that Ms Denton should not be licensed. At that stage Mr Clarkson was already on leave. Mr Mark Ward of the Risk Assessment Unit sent an email on 27 January 2009 to the alterative licensing officer, Mr Bryce, asking him to 'deal with' the application in the absence of Mr Clarkson. Mr Bryce decided to refuse the application on grounds of the recommendation he received from Mr Ward. At that stage, Mr Bryce did not have access to Ms Denton's file and therefore based his decision solely on the recommendation of another officer.
According to Ms Fifield, a legal error was made since Mr Bryce acted on the recommendation of another officer without applying his mind to the information that gave rise to the decision. The only information available to Mr Bryce was an email that said 'on the basis of the information available there are doubts about the integrity and ethical behaviour of this ex-officer'. The email does not, according to Ms Fifield, constitute sufficient grounds for the decision to refuse the licences to be made.
Ms Fifield therefore seeks a finding that the licensing officer acted outside of his powers when it made the decision to refuse the licenses.
The SAT Act limits the review powers of the Tribunal to administrative review, also referred to as merits review.
Judicial review falls within the jurisdiction of the Supreme Court.
It appears that Ms Fifield is contending that an error in law had been made by Mr Bryce acting improperly and without power. This implies an application for judicial review.
The Tribunal is satisfied that for purposes of these proceedings an administrative decision was made by Mr Bryce when he refused the application, and that the decision is the subject of review pursuant to the SAT Act.
The Tribunal is placed in the position of the decisionmaker and must take into account all information that was before the decisionmaker and also the information that has become available since the decision was made. If the licensing officer had made an error by not taking account of some information or by relying on the opinion of another officer, it can be cured by the review process.
The Tribunal does not have jurisdiction to deal with judicial review where a person has allegedly exceeded its statutory authority.
The SAT Act provides that judicial review proceedings can be lodged in relation to a decision the subject of a review application (s 19(2) of the SAT Act) but such a proceeding will fall within the jurisdiction of the Supreme Court.
If judicial review proceedings have commenced, the Tribunal cannot simultaneously consider the matter (s 19(3)(a) of the SAT Act). If, however, the Tribunal proceeding has commenced, judicial review proceedings in regard to the decision under review cannot be commenced (s 19(2)(b) of the SAT Act).
The rationale for this arrangement is clear - if the administrative decision is not the subject of an application for administrative review in the Tribunal, the decision can be challenged in the Supreme Court by means of an application for judicial review. If, however, an application for administrative review has been lodged with the Tribunal, judicial review proceedings cannot be commended since the review of the decision must first run its course. The outcome of review by the Tribunal may then be the subject of an appeal in the Supreme Court.
In this matter, Ms Fifield chose to commence proceedings in the Tribunal to review the merits of the Mr Bryce's decision and as a result no application for judicial review can be made until the Tribunal has concluded its review process.
In reply to the first preliminary question, the Tribunal therefore finds that is not empowered to make a finding that the licensing officer exceeded his powers as is contended by Ms Denton. The decision to refuse the licences can be properly characterised as an 'administrative decision' which is subject to review in accordance with s 72 of the SRAC Act.
The second preliminary issue deals with the grounds upon which the application was refused.
Ms Fifield contends that Mr Denton was informed by letter dated 3 February 2009 that she was not a 'fit and proper person to hold this license'. Since the Commissioner made its decision on the basis of the 'fit and proper' test, it could not in these proceedings rely on issues arising from or information of relevance to Ms Denton's 'character'.
The review of the Tribunal should therefore, according to Ms Fifield, be limited to information of relevance to the fit and properness of Ms Denton to discharge the functions of a security officer and crowd controller and all information regarding her 'character' should be discounted.
The Tribunal does not accept this contention.
The hearing is de novo and the Tribunal has the same powers, functions and discretions of the licensing officer. In the same way that the licensing officer had to take into account any information to make a finding under s 52 of the SRAC Act, the Tribunal is now required to take all information into account as part of the review process.
There is nothing in the SAT Act or the enabling act to suggest that the Tribunal's review function is limited to the grounds specified by the licensing officer. If that were the case the proceedings would be more akin to an appeal of the correctness of the decision of the licensing officer than to a de novo review of the decision.
The Tribunal, as decision-maker, is required to take into account all information before it and to make a finding if s 52(c) of the SRAC Act applies in order to come to the 'best and preferable' decision.
In reply to the second preliminary issue, the Tribunal therefore does not accept the contention of Ms Fifield that it should limit itself to information of relevance to the 'fit and proper' state of Ms Denton to discharge the functions of a security officer and crowd controller. The Tribunal is required to take into account all the information presented to it and can consider the fit and properness of Ms Denton as well as issues related to character.

Contentions of the parties: the Commissioner

The submissions and contentions of the Commissioner can be summarised as follows:
Ms Denton was a former member of the Police for about 17 years. When she applied to be licensed as a security officer and crowd controller, a review of her Police service record was undertaken. The internal branch of the Police make a recommendation that she should not be licensed on the basis of four incidents that occurred while she was in the service of the Police. These incidents collectively reflect negatively on the character of Ms Denton and she should therefore not be licensed.
The incidents are set out in full in the Commissioner's submission, but they can be summarised as follows:
•Incident 1: On 20 May 1999, Ms Denton was on duty with another police officer when they stopped a car and searched it. Some cannabis and stolen items were found. It is alleged that Ms Denton made some notes about the incident in her notebook but that she some time later supplemented those notes with more detailed information. She then requested the officer who was on duty with her to sign the notes and backdate it to 20 May 1999. No disciplinary or criminal proceedings were instituted against Ms Denton.
•Incident 2: On 25 January 2006, Ms Denton attended an incident at a residence and seized two fire extinguishers. She failed to record the property in the required manner when she returned to the Police station. When another police officer asked her if he could 'use' the extinguishers, she said words to the effect that he could take it since it would save her the trip to the fire brigade to hand it in for disposal. The other officer took the extinguishers for his private use and they were later located at his house upon execution of a search warrant. Although a charge of theft was brought against Ms Denton, it was later withdrawn by the Director of Public Prosecutions (Director). The decision of the Director not to prosecute is, according to the Commissioner, 'irrelevant' since the Tribunal's decision requires a different legal standard than criminal proceedings.
•Incident 3: On 22 May 2006, Ms Denton attended the Midlands Magistrates Court and made an application for a violence retraining order on behalf of her sister. She signed the application as a 'police officer' although she sought the order in her private capacity. On this day she was on sick leave and not on duty. She had no authorisation to sign the application in her official capacity. She also acted under a conflict of interest since her sister was involved. No criminal charges were brought against Ms Denton.
•Incident 4: On an unknown date Ms Denton had taken the details of an apparent theft of prescription drugs where a friend of hers was the victim. She did, however, cause a juvenile to be charged for the theft. Her supervisor later spoke to her about a conflict of interest by her becoming involved in a matter that concerned a friend. No criminal charges were instituted. The incident 'may seem trivial' according to the submissions of the Commissioner, but it highlights Ms Denton's 'disregard' for compliance with proper procedures.
According to the Commissioner, the incidents collectively reflect negatively on Ms Denton's character since her actions involved falsifying documents, providing false and misleading information, a lack of integrity, failing to comply with standard Police procedures and protocols, and conflicts of interest. The fact that criminal proceedings were not instituted does not erode the ability of the Tribunal to take the incidents into account for purposes of the application under consideration.
If Ms Denton cannot be entrusted to comply with the policies and procedures of the Police in which she was trained and had many years experience, the public interest demands that she should also not be entrusted to fulfil the duties of a security officer and crowd controller. The incidents indentify a 'flaw in character of such a nature as to render her unsuitable to be entrusted with the duties and functions' of a security officer and/or crowd controller (respondent's submissions para 37).
Ms Denton resigned from the Police on 29 April 2007. Before her resignation, a notice of intention to remove her from office was served on her. She was also stood down from service on 20 September 2006 pending an investigation into the incidents. It is contended that the notice of intention to remove her from office was the catalyst for her resignation. The fact that a notice was issued can be taken into account by the Tribunal as indicative that the Commissioner had lost trust in her as a member of the Police.

In essence, the incidents demonstrate a pattern of behaviour over a 'lengthy period'. The Commissioner concludes that '[t]he Applicant has demonstrated a propensity to take matters into her own hands in the ignorance, or otherwise blatant disregard for properly established procedures and protocols and thus, particular character flaws that are inconsistent with the occupation she now seeks' (respondent's submissions para 45). Ms Denton has a 'protracted history' of failing to adhere to basic policing procedures.
The duties of a security officer are to guard and protect property, and those of a crowd controller are to control and monitor the behaviour of persons. The public interest requires that a person such as Ms Denton, who has doubt over her character due to the incidents discussed above, be prevented from being licensed to discharge the duties of either of those licenses.
There is a 'nexus' between the duties of a police officer and those of crowd controllers and security officers. It is 'paramount' in both professions to deal with evidence and be a witness of truth. Interference with notes after an incident and backdating thereof directly affects the admissibility of it as evidence. The 'flaw' in her character was highlighted by the way in which she respondent to the four incidents.
In reply to the character references, the Commissioner contends in essence that little weight should be attached thereto for the following reasons:
•The persons did not disclose that they were aware of the exact duties she would be required to discharge and why she is fit and of good character to do it;
•The persons are well known to her in a personal capacity;
•The persons are not aware of the incidents that formed the basis for the refusal;
•The persons are biased and they are unlikely to make negative comments about her character;
•The comments were bland and based on generalisations; and
•Mr Denton in particular had, regardless of his position as a Justice of the Peace, a conflict of interest in that he spoke for his daughter. His view that the Commissioner was 'persecuting' Ms Denton confirms his defence of his daughter rather than an objective assessment of her fit and properness and of her character for the licenses the subject of the proceedings.

Contentions of the parties: Ms Denton

The submissions and contentions of Ms Denton can be summarised as follows:
Ms Denton had been in the Police for about 17 years and resigned at her own volition. Other than the incidents mentioned in these proceedings, she had no other disciplinary proceedings or criminal charges made against her. In fact, her overall service record was exemplary and those incidents do not diminish it. The Tribunal must take the entirety of her service record into account and not just these incidents that took place between three to 10 years ago. The Commissioner failed in its duty to draw the attention of the Tribunal to the positive aspects or her service and only focused on the negative parts.
The incidents were considered and dealt with during Ms Denton's service and there is no justification to raise it again in these proceedings. None of the incidents led to convictions or to formal disciplinary findings. The incidents have no bearing on her ability to be licensed as a security officer or crowd controller.
Ms Denton has only one criminal conviction but that was minor in nature and committed before she joined the Police.
In reply to the four incidents mentioned in these proceedings Ms Denton says that:
•Incident 1: The notes that are referred to were completed on the same day shortly after the interview and she only requested her fellow-officer to read and sign it at a later date. There was no dishonesty involved. She only realised later that her fellow officer had not signed the notes and then she requested him to sign and backdate it. No charges or disciplinary proceedings were brought against her.
•Incident 2: Ms Denton at that stage had no training on how to capture information into the information capturing (IMS) system. Her understanding was that her fellow officer would enter the information into the system. There was no intention to assist another officer to unlawfully take the extinguishers. When he requested if he could take it, she assumed he would deliver it at the fire brigade. She cannot be blamed for another officer's alleged criminal behaviour. Charges against her had been withdrawn.
•Incident 3: There was no intention to make a false statement when she applied for the violence restraining order. She honestly believed that she could sign the violence restraining form since she was employed by the Police. She attended the Magistrates Court at request of her sister whose husband was abusing her. Her sister could not attend as she had started a new job on the day. Ms Denton only acted in the way any member of a family would for another and nothing untoward was intended. She did not at any stage intend to use her position for the gain of her sister. She had no training in Police proceedings involving violence retraining orders and acted in good faith. No charges were brought against her although she accepts in hindsight it was poor judgment to have signed the application form.
•Incident 4: There was nothing untoward in the way the theft of prescription mediation was dealt with. She admits to having assisted a friend but that was in the course of her duties and no conflict of interest was apparent. She handed the matter over to another officer to proceed with. The incident is indeed 'trivial' as indicated by the Commissioner in its submissions. No charges were brought against her.
Ms Denton strongly refutes that she had ever intended to falsify evidence or acted in blatant disregard to Police policies and procedures. In hindsight, she would do some of the things differently, but at the time there was no malice, conflict of interest or dishonesty involved. Even if some of her actions were open to criticism, some of the incidents were the subject of Police internal proceedings and she could have been charged. Each of the incidents can be explained and the incidents, individually or collectively, do not justify a refusal of the licenses.
The incidents took place between three to 10 years ago. The Commissioner is exaggerating the seriousness of it by creating the incorrect impression that she had committed offences over a lengthy period of time and with regularity. It seems as if the Commissioner was searching her records for anything that might be of use to refuse the applications rather than to provide a balanced assessment. As a result, trivial incidents which have little or no bearing on the sought licenses have been made part of the proceedings. The Commissioner completely ignores her positive record and only emphasised negative aspects.
The Commissioner should have taken into account that these incidents took place many years ago and that, as general principle, Ms Denton deserves another chance. Even if some of the incidents had merit at the time, so long period has lapsed that it should not prevent Ms Denton from being licensed. There are many examples where the Tribunal has caused persons to be licensed regardless of criminal records that were far more serious than the few incidents referred to in these proceedings. The public interest demands that a person with 17 years experience in the Police be licensed as a crowd controller and security officer regardless of the four incidents which occurred between three and 10 years ago.
It is not correct to equate the functions of a police officer to those of a security officer or crowd controller. While certain incidents may preclude a person from becoming a police officer, the same incidents may fall well short of disqualifying a person from being licensed as a security officer or crowd controller.
The reasons why she resigned from the Police were entirely personal. She realised that her standing in the Police may be impacted upon by the withdrawn prosecution and she therefore decided to seek employment elsewhere. If she indeed had a protracted history of failing to comply with Police policies and procedures, the question is why the Police did not take disciplinary action against her?
Ms Denton was awarded an Ethical and Diligence Medal by the Police in 2006. This medal is awarded to officers who have successfully passed an integrity check. In addition, she also received her first 'star' for 15 years of service to the Police. The Commissioner failed to bring this to the attention of the Tribunal or to explain why it should not be taken into account as a positive reflection on her character.
The Tribunal must have regard to the character evidence since these are people who have known Ms Denton for many years; they talk about her integrity and sincerity; they comment on her strong character and the voluntary service she has given to the community; and they confirm she is a person of good standing in the community.

Consideration

The Tribunal explained above that its consideration of the application is not limited to the matters that were before the licensing officer when the decision was made (s 27(1) of the SAT Act). The review is conducted by way of a hearing de novo whereby the Tribunal acts as the licensing officer to produce a correct and preferable decision (s 27(2) of the SAT Act). The Tribunal is not limited in its review to the reasons for decision by the licensing officer or to the information that was before the licensing officer.
The Tribunal is not bound by the rules of evidence and may 'inform itself on any matter it sees fit' (s 32(2)(a) and s 32(4) respectively of the SAT Act). The Tribunal can therefore take into account information about the four incidents even though the matters were fully dealt with by the Police during Ms Denton's service. This does not amount to what Ms Fifield calls a second trial, but it merely ensures that in the interest of the public all relevant information is considered. The Tribunal can then, within its discretion, determine what weight to attach for such information.
The SRAC Act sets out limitations on the discretionary power of the licensing officer to issue crowd controller and security officer licences (s 52). The licensing officer:
[I]s not to issue a licence unless the officer is satisfied:
…
that the applicant is of good character and is a fit and proper person to hold a licence;
…
that there is no other good reason why the licence should not be issued. [Tribunal emphasis added]
The Tribunal can take into account all the information before it, including the references to previous incidents while Ms Denton was in the Police. In determining what weight to attach to the information the Tribunal notes that the incidents did not lead to convictions and the content of the incidents and the allegations made against her can therefore not be taken as probative fact. The same qualification applies to the letters of reference presented by Ms Denton. This is consistent with the approach of the Tribunal set out in the matter of A and Commissioner of Police [2005] WASAT 121 (A and Commissioner of Police) at [45].
The Tribunal does not accept the contention of Ms Fifield that the four incidents cannot be taken into account at all. In a previous matter, for example, the Tribunal found that even in the event where a person had been acquitted of a criminal charge, the Tribunal may, in the interests of public safety, take the nature of the charges into account. In the matter of M and Chief Executive Officer of Department for Community Development [2009] WASAT 6 at [77], the Tribunal held that:
The nature of the allegations is such as to raise a real concern as to M's propensity to the sexual abuse of children. That is not to say that we make any finding that M did do that with which he was charged. The object of the WWC Act is the protection of children. The capacity to issue a negative notice where no criminal convictions exist leaves open the possibility that a person may be prevented from working with children even though they have not been convicted of any offence. In our view, in all the circumstances, that concern is at a level that we consider amounts to an unacceptable risk of harm of children in the future if M were to be granted an assessment notice.' (Tribunal emphasis added.)
The Tribunal is therefore satisfied that it can have regard to the four incidents.
The Act does not define what the legislator intended with the words 'good character'. The Macquarie Concise Dictionary (4th ed, 2004) defines 'character' as 'the aggregate of qualities that distinguishes one person or thing from another', 'moral constitution of a person', 'reputation' and 'good repute'.
As Dixon CJ and McTiernan and Webb JJ noted in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, this Tribunal holds the view that the type of expression employed in s 52(c) has the purpose of giving the licensing officer 'the widest scope for judgment'.
The Tribunal also regards the finding by Barker J in Coulthard v Henker [2003] WASCA 177 at [60] instructive namely that the issue before the licensing officer requires it to 'balance factors for or against the view that the respondent satisfied this (s 52(c)) requirement' (Tribunal emphasis added).
The Tribunal must also have regard for the nature of the duties to be exercised and the requirements of s 52(c) and (k) of the SRAC Act. As EM Heenan J noted in Smith v Director-General of Transport [2004] WASCA 64 at [24], the licensing officer must also have regard to the applicant's 'overall character and the requirements of the occupation for which the licence is necessary'.
Bearing in mind the importance to balance the interests of Ms Denton against those of the public and other persons involved in the security industry, the Tribunal notes that in Collins v Estate Agents Board (1994) 7 VAR 394 at 399 the Administrative Appeals Tribunal said:
The consideration of this Tribunal must be primarily directed towards the protection of the public and the maintenance of public confidence in, and the professional standards of, the industry that the Act is regulating. (This Tribunal's emphasis added.)
In Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996), the following was said in regard to the relevance and weight that ought to be attached to previous convictions and the extent to which it reflects negatively on the character of the applicant:
It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.
This brings the Tribunal to the aims of the SRAC Act which are to provide, among others, for the licensing of persons who work in property protection and crowd control. The Tribunal must have regard to the duties that Ms Denton would be required to discharge and the importance that the public as a whole, and the security industry in particular, would have confidence in the licensing system. The duties of security officers and crowd controllers are defined by the SRAC Act. A security officer 'watches, guards and protects' property (s 12(1)) while a 'crowd controller' controls, screens and monitors people (s 35(1)).
In the matter of A and the Commissioner of Police, the Tribunal at [61] summarised as follows all the interests it had to take into account:
It is therefore not only the interests of the applicant that have to be borne in mind by the Tribunal. We also have to consider the interests of the public and the interests of those licensees who are already engaged in the industry as accredited licensees. Those licensees are entitled to have the reputation and credibility of the industry protected. Members of the public, in particular those that visit facilities where licensees are on duty, expect licensees to comply with the high standards set by the Act and to demonstrate a level of moral integrity and rectitude of character commensurate with their duties. Following Collins above, we have a duty to protect the interests of the public and maintain public confidence in the security industry.
The Commissioner contends that the four incidents are of such grave and serious nature that Ms Denton should not be licensed even though the incidents occurred between three to 10 years ago. The Commissioner uses very strong words and phrases to describe the character of Ms Denton, such as 'dishonest', 'unethical', 'not competent', 'showing a pattern of unacceptable behaviour' and 'character flaws'. The Commissioner further describes these incidents as indicative of a 'protracted history' of failures on the part of Ms Denton to comply with standard Police procedures and protocols.
As a result, the Commissioner concludes that Ms Denton ought not be licensed as a security officer and crowd controller due to it not being satisfied that she is of good character.
In the matter of A and the Commissioner of Police, the Tribunal emphasised that its task is 'not to determine whether the applicant has a 'good' or a 'bad character'. The test to apply in accordance with s 52(c) and s 52(k) of the SRAC Act is worded in the negative, that is, the Tribunal 'is not to' issue a licence 'unless it is satisfied' of the good character of the applicant and that there is 'no other good reason' why the licence should not be issued' [66]. In this regard, the Tribunal relied on the decision of Gleeson, CJ, McHugh, Gummow and Hayne JJ in Weininger v The Queen[2003] HCA 14 at [27] to support the reasoning that the duty of the Tribunal in this matter is not to assign:
'[A] single label to the appellant's character or his antecedents as either "good" or "bad". Rather, the question for the primary judge was, what was known about the appellant's character and antecedents? Was what was known of those matters to be taken into account in a way that favoured the appellant, or in a way that did not? ...'
The Tribunal has considered all the information before it and does not come to the same conclusion as the Commissioner that the application should be dismissed. The Tribunal is of the view that these incidents do not individually or collectively cast such a doubt over the character of Ms Denton that she should not be licensed.
The Tribunal's reasons for this conclusion are as follows:
i)The incidents upon which the Commissioner relies to refuse the licences, took place between three and 10 years ago. Even if the incidents, individually or collectively, were at the time serious enough to cast doubt over the character of Ms Denton, sufficient time has passed for her to be licensed. The Tribunal deals with hundreds of applications each year where the Commissioner allows persons to be licensed who have criminal records that far outstrip anything that resembles these four incidents.
ii)The Tribunal is not required to make a finding as to the merit of the respective incidents. It was for the Commissioner to pursue the incidents at the time, be it by way of disciplinary proceedings or by prosecution. The Tribunal notes, however, that none of the incidents led to formal criminal proceedings against Ms Denton. This provides some insight into how serious the Commissioner treated the incidents at the time.
iii)The Tribunal does not agree with the Commissioner that the functions of a police officer can be equated to those of a security officer/crowd controller. The public would not confuse the roles of the respective professions. Although both deal with the public and property, the powers and functions of the Police are vast compared to those of security officers and crowd controllers under the SRAC Act. The differences in duties are further reflected in the different standards for recruiting police officers compared to security officers and the different training of the professions. It is therefore not accurate to place the same standard on being licensed as a security officer and crowd controller, than it is to become a police officer. The Tribunal is of the view that although certain of her actions or failures to comply with internal Police protocols may disqualify Ms Denton from serving in the Police, they do not disqualify her from being licensed under the SRAC Act. In fact, if the high standard proposed by the Commissioner in these proceedings for Ms Denton were to be applied to all crowd controllers and security officers, few would pass the test.
iv)The Tribunal notes that the Commissioner seemed to have gone to great length to highlight the negative aspects of Ms Denton's record, but it had no remarks or submissions to make about the positive aspects thereof. No mention was made by the Commissioner of the strenuous conditions under which a police officer works, the crowd controlling that occurs in the course of their duties and the fact that Ms Denton had no transgressions in 17 years save for these incidents. There is a duty on the Commissioner to assist the Tribunal to come to the correct and preferable decision when a matter is reviewed and that requires putting to the Tribunal the positives and negatives of an ex-officer's record. The Commissioner is further required to provide the Tribunal with 'other documents and other material in the decision-maker's possession or under the decision-maker's control and relevant to the Tribunal's review of the decision' (s 24(b) of the SAT Act). In these proceedings the Commissioner did not provide any information to the Tribunal about positive aspects of the service record of Ms Denton. She had been in the Police for 17 years and yet the only information provided to the Tribunal in support for the contention that she suffers 'character flaws', is related to the four incidents that were some years apart. No mention is made of other assessments she might have had during her term, for example staff appraisals, promotions, or performance reviews.
v)The Tribunal further notes that Ms Denton received in 2006 the Ethical and Diligence Medal in recognition of the way in which she discharged her duties. The Commissioner in its submissions made no reference to the medal.
vi)The Tribunal reviews hundreds of applications each year where decisions of the Commissioner's licensing officer are reviewed. The Tribunal must, when it considers the application of Ms Denton, take into account the general standards that apply to the security industry. The suitability of Ms Denton's character is assessed in terms of the profession for which she seeks to be licensed. It is not an exercise in theory or in a vacuum. The Tribunal is of the view that if Ms Denton were found to be disqualified on grounds of the four incidents, few security officers or crowd controllers in the security industry would remain and few would be successful to enter the industry. Ms Denton may have had some lapses of judgment in regard to internal protocols while she was in the Police, but the Tribunal is satisfied that those do not, for purposes of the SRAC Act, continue to reflect negatively on her character. She served for 17 years in the Police, she received an Ethical and Diligence Medal and she has only one minor incident on her criminal record and that was recorded nearly 20 years ago before she became a police officer. When her record and character are compared to many others in the security industry, she without doubt meets the highest standards for that industry.
vii)The Tribunal accepts that even if Ms Denton had no explanation for the four incidents, sufficient time has lapsed for her to have been rehabilitated and to be given an opportunity to enter the security industry. This is consistent with previous decisions of the Tribunal where regardless of a person's criminal record, licenses have been issued after a period of time had lapsed. In the matter of McKenna and Commercial Agents [2005] WASAT 58 the Tribunal commented at [34] as follows:
Society also demands that an individual who shows remorse must be afforded the opportunity to be re-integrated in society and rehabilitated to live a normal life.
viii)The letters of reference submitted by Ms Denton talk in very positive terms of her character. The Tribunal notes the submissions of the Commissioner that little weight should be attached since the referees were all very well known and some even acquainted to Ms Denton. The Tribunal agrees that the letters had limited value as far as this application is concerned. The Tribunal also notes that the Commissioner did not bring any character evidence to the detriment of Ms Denton. If indeed she had such 'flaws' in her character as contended by the Commissioner, one would have expected evidence from previous colleagues or supervisors to support such a contention. The absence of evidence about her character 'flaws' is therefore also noted by the Tribunal. The Tribunal in summary gained little benefit from the references submitted by Ms Denton and the absence of witnesses on the part of the Commissioner.

In conclusion, the Tribunal is satisfied that on the basis of all the information before it, Ms Denton ought to be licensed as a security officer and crowd controller. The Tribunal rejects the contention of the Commissioner that Ms Denton is not 'fit and proper' and of 'flawed' character for her not to be licensed.
The decision to refuse the application to be licensed as a security officer and crowd controller should therefore be set aside and the licensed should be issued.

Orders

1.The application for review succeeds.
2.The decision of the Commissioner of Police to refuse the application by Ms Denton to be licensed as a security officer and a crowd controller is set aside.
3.The Commissioner of Police must within 21 days from the date of these orders issue to Ms Denton a security officer and crowd controller license.

I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER