FD v Commissioner of Police, New South Wales Police
[2008] NSWADT 88
•25 March 2008
CITATION: FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
FD
Commissioner of Police, New South Wales PoliceFILE NUMBER: 073219 HEARING DATES: 17 October 2007, 30 November 2007 SUBMISSIONS CLOSED: 30 November 2007
DATE OF DECISION:
25 March 2008BEFORE: Molony P - Judicial Member CATCHWORDS: Security Industry Act - security industry licence -grant of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decision Tribunal Act 1997
Interpretation Act 1987
Security Industry Act 1997
Security Industry Amendment Act 2002CASES CITED: ABC v Parish (1980) 29 ALR 228
Annetts v McCann (1990) 170 CLR 596
Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 (26 March 2004)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bennett & Co v DPP (WA) [2005] WASCA 141
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
Commissioner of Police v Toleafoa ([1999] NSWADTAP 9
De Verteuil v Knaggs [1918] AC 557
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Giannarelli v Wraith (No 2) (1991) 171 CLR 592
Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6
Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127
Kanda v Government of Malaya [1962] AC 322
K-Generation & Anor v. Liquor Licensing Court & Anor [2007] SASC 319
Kioa v West (1985) 159 CLR 550LJ v Commissioner of Police [2003] NSWADT 230
Mirror Newspapers Limited v Waller (1985) 1 NSW LR 1 Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59
Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47
Ridge v Baldwin [1964] AC 40
VEAL v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 222 ALR 411
Western Australia v Ward (1997) 76 FCR 492REPRESENTATION: APPLICANT
RESPONDENT
In person
C Weiss, agentORDERS: 1. The decision of the Commissioner to refuse FD a class 1AC licence is affirmed
2. The Tribunal prohibits the disclosure of the FD’s name or address or anything which my lead to his identification
3. The Tribunal prohibits the disclosure to FD or his representatives of paragraphs 19 to 42 inclusive of these reasons
4. The Tribunal prohibits the publication of paragraphs 19 to 42 inclusive of these reasons.
REASONS FOR DECISION
Introduction
1 On 17 July 2007 FD applied to the Tribunal to review a decision of the Commissioner of Police to refuse the application he made, on 8 May 2007, for a Class 1AC security licence under the Security Industry Act 1997 (the SIA). That application was refused on the grounds that FD is not a fit and proper person to hold the licence sought, and that to grant him such a licence would be contrary to the public interest. The refusal was affirmed, on the same grounds, on internal review on 27 June 2007. In both cases the refusal was based on Police reports in the possession of the Commissioner, which the decision makers declined to disclose in accordance with section 15(7) of the Security Industry Act 1997.
2 FD was previously issued with a licence under the SIA, issued on 22 August 2002. That licence, however, was revoked on a public interest basis on 19 May 2003. FD reviewed the revocation in this Tribunal, but was unsuccessful. On 22 August 2003 the Tribunal affirmed the decision to revoke FD’s security licence on a public interest basis.
3 The present review was initially listed for hearing before me on 17 October 2007, when FD appeared in person. He indicated that he had arranged to be represented by Counsel, but that his barrister was unexpectedly unavailable. Because I considered that the both the Tribunal and FD would be assisted if he were represented, I offered to adjourn the proceedings so that FD could be represented. At the heart of my concern regarding legal representation for FD was the fact that the Commissioner was relying on confidential information, and asking the Tribunal to hear evidence and argument, relating to that information, in the absence of FD. FD accepted my offer. I therefore adjourned the hearing to 30 November 2007, but told FD that I would not, without very good reason, grant an adjournment on the same basis again.
4 On 30 November 2007 FD was again unrepresented. His counsel was other wise engaged. FD did not press for an adjournment, noting my earlier warning to him.
The Legislation
5 FD has applied for a class 1AC licence. A class IA licence authorises the unarmed guarding and protection of persons and property, while a class 1C authorises a licensee to engage in crowd control activities: section 11. Applications for licence are made under section 14.
6 Section 15 of the SIA specifies restrictions on the granting of licences. Relevantly, it provides:
7 Section 29 is concerned with reviews by this Tribunal. It relevantly provides:
(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that 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.
(a) is not a fit and proper person to hold the class of licence sought by the applicant, or
(b) …
…
(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:
(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).
(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.
8 Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
(1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions:
(2) …
(a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)),
(b) a condition imposed by the Commissioner on a licence granted to the person,
(c) the revocation or suspension of a licence granted to the person.
(3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal:
Note. Section 15(7) of this Act provides that 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 referred to in section 15(6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information.”
(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(1) of the ADTA provides that proceedings of the Tribunal are to be conducted in public, but sub-section (2) then makes provision in relation to closed hearings and the Tribunal’s powers to restrict the disclosure, and publication, of evidence and materials before it. It provides:
Closed Hearing
(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 any one or more of the following orders:
(a) an order that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(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 Ms Weiss who appeared for the Commissioner applied, under section 75(2) of the ADTA, for the Tribunal to have regard to confidential material filed, and to call evidence and make submission, in the absence of the Applicant. She also sought an order that the confidential material and evidence led before the Tribunal not be published or disclosed to FD.
11 I endeavoured to explain to FD the provisions of section 75(2) of the ADTA and its interaction with section 15 of the SIA. FD’s concerns were with the fairness of the process to him, and the difficulty he confronted in not knowing the nature of the evidence and material, which was said to show him not fit and proper.
12 I took the view that I should exclude FD and the public from the hearing so that I could assess the nature of the evidence and material sought to be relied on by the Commissioner and determine whether to accede to the Commissioner’s other applications.
13 In doing so I was cognizant of the view expressed by the Appeal Panel in QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59, at [16] to [21] that:
14 The Appeal Panel also referred in some detail to the judgment of Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, at 273 where His Honour said that in order for confidential information to be received in the absence of a party the confidential information must be, ‘of such importance and cogency that justice is more likely to be done by receiving the information in confidence and denying the party access to it than by refusing an order to exclude the party;” Having viewed the confidential information relied on by the Commissioner, and heard submissions on the need for confidentiality, I concluded that justice was more likely to be served by a receiving the information in confidence, to the exclusion of FD, than by refusing to exclude FD.
“16 Closed Hearings . We agree that the Tribunal should, in reviewing the Commissioner’s exercise of discretion, adopt an approach, which maintains the confidentiality of any information upon which the Commissioner has relied if that is the wish of the Commissioner. We see the maintenance of confidentiality of sensitive information as the principal objective of section 15(7). It is the case that the provision also dispenses the Commissioner from the requirement to give reasons. While, generally speaking, the Tribunal ‘stands in the shoes’ of the Commissioner when engaged in the task of merits review, it does not follow that the Tribunal is also dispensed from the obligation to give reasons.
…
19 A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West (1985) 159 CLR 550. See also Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1964] AC 40 at pp 113-114 per Lord Morris; De Verteuil v Knaggs [1918] AC 557 at 560-561. Natural justice is a fundamental aspect of the judicial process: Western Australia v Ward (1997) 76 FCR 492 at 496-7. In a recent decision, Bennett & Co v DPP (WA) [2005] WASCA 141, the Full Court of the Supreme Court of Western Australia confirmed at paragraph 43:
20 Unsurprisingly, statutory powers which permit a Tribunal to take the course adopted by the Tribunal, such as section 75(2) of the Tribunal Act, are strictly and narrowly construed, and operate only if and when there is a public interest supporting their use which outweighs the public interest in the implementation of the fundamental principles of open justice and procedural fairness: see, example, Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 at 55; ABC v Parish (1980) 29 ALR 228 at 233-234 and 236; Mirror Newspapers Limited v Waller (1985) 1 NSW LR 1 at 20; Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 (26 March 2004), citing Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. Further, confidentiality must be restricted to that part of the hearing or that part of the evidence for which it is necessary in the interests of justice.”
‘Natural justice requires that each party should have an equivalent right to be heard. This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material. One party must not make secret communications to the court (emphasis supplied): Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 at 691, see also Giannarelli v Wraith (No 2) (1991) 171 CLR 592 at 605 per McHugh J’.
15 Further, the plain and clear language of section 29(3) of the SIA provides that the Tribunal, on review, is not to disclose the content or existence of any criminal intelligence report or other criminal information without the Commissioner’s approval, and, in order to ensure this does not occur, is to receive and hear evidence and argument in the absence of the public, the Applicant and the Applicant’s representative. There is nothing equivocal or uncertain about the language of section 29(2): rather the words display a clear legislative intent that the principles of procedural fairness be restricted and modified in accordance with the sub-section: Annetts v McCann (1990) 170 CLR 596 at 598 (Mason CJ, Deane and McHugh JJ). This was not a situation in which the requirement of procedural fairness could be satisfied by disclosing to FD the substance of the allegations as was found necessary in VEAL v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 222 ALR 411 at 413 and 419-420. This was so because section 29(3) prohibits the disclosure of the existence as well as the content of the information. Providing FD with notice of the substance of the allegations would, in my view, breach both these prohibitions. As was the situation in K-Generation & Anor v. Liquor Licensing Court & Anor [2007] SASC 319 I consider that the provisions of section 29(3) of the SIA are a clear expression of a legislative intention to displace the Tribunal’s usual obligations to give procedural fairness, under the hearing rule, with respect to “any criminal intelligence report or other criminal information” to which section 15(6) and section 29(3) of the SIA apply. While this places a person such as FD at extreme disadvantage, and offends against ordinary notions of fairness, it is nonetheless binding on this Tribunal.
16 Having heard confidential evidence and arguments in FD’s absence, I reopened the hearing and advised FD that I was unable to disclose to him the nature of the confidential evidence and arguments made by the Commissioner. I indicated that I would be making order under section 75(2) of the ADTA prohibiting the disclosure and publication of the confidential material and evidence.
17 He indicated that he was extremely anxious to know what was being said against him, and had therefore sought to review the Commissioner’s decisions. He commented that he may “never work as a security guard in the future,” but considered it grossly unfair that the Commissioner was “relying on the words of others,” which he is unable to answer. He was anxious to clear his name.
18 I said to FD that I would reserve my decision. I explained to him that in my reasons I would set out my full reasons for decision, but because of section 29(3)(a) of the SIA, he would not have access to those parts of the reason, which discussed the confidential material. They would be the subject of a confidentiality order. The full reasons will be accessible by an Appeal Panel should FD decide to appeal.
Confidential Evidence
19 Subject to suppression order.
20 Subject to suppression order.
21 Subject to suppression order.
22 Subject to suppression order.
23 Subject to suppression order.
24 Subject to suppression order.
25 Subject to suppression order.
26 Subject to suppression order.
27 Subject to suppression order.
28 Subject to suppression order.
29 Subject to suppression order.
30 Subject to suppression order.
31 Subject to suppression order.
32 Subject to suppression order.
33 Subject to suppression order.
34 Subject to suppression order.
35 Subject to suppression order.
36 Subject to suppression order.
37 Subject to suppression order.
38 Subject to suppression order.
39 Subject to suppression order.
40 Subject to suppression order.
41 Subject to suppression order.
42 Subject to suppression order.
Assessment
43 Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:
Toohey and Gaudron JJ said at 380:
‘The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’
44 A person’s fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales(No. 2) (1955) 93 CLR 127 the High Court said (at 156-7):
“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. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”
45 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability is the context of the role they are seeking to undertake. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:
“The expression ‘fit and proper’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty, knowledge and ability … When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.”
46 The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to “give wide scope for judgement and allow broad bases for rejection.” See also Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at [25].
In LJ v Commissioner of Police [2003] NSWADT 230 at [27] Judicial Member Montgomery found that:
‘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 objective leading the legislature to regulate the industry.’
A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.
47 In the present context, additionally to these principles, section 15(6) of the SIA provides that “for the purpose of determining whether the Applicant is a fit and proper person” the Commissioner may have regard to criminal intelligence or information which, among other things, “causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.”
48 The Act contains no definition of “improper conduct”. Section 33 of the Interpretation Act 1987 (“the IA”) says that:
49 Section 34 of the IA then provides:
“In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”
50 In Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10 the Appeal Panel discussed the circumstances in which resort can be had to extrinsic material in ascertaining the meaning of a statutory provision. The Appeal Panel said at [35–36]:
“(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.”
51 Adopting that approach the ordinary meaning of the term “improper conduct” becomes relevant. The Macquarie Dictionary contains the following definition of “improper”:
“As we interpret sub-sections 33 and 34 , the method to be adopted has two steps with the second step, the section 34 step, subordinate to the first step, the section 33 step. First an attempt should be made to ascertain the meaning of the text. That step can be informed by having regard to the objects and purpose of the legislation and the content of the legislation as a whole. The second step, the section 34 step, is ancillary. Section 34 provides a variety of options. Under sub-section (1), the ancillary step may involve considering the extrinsic material `to confirm' that the meaning attributed as the ordinary meaning of the provision is consistent with the extrinsic materials; or to `determine' the meaning of the provision if it is ambiguous or obscure; or to resolve the meaning if the `ordinary meaning conveyed by the text ... leads to a result that is manifestly absurd or is unreasonable.'
By virtue of sub-section (2) the second reading speech, or other extrinsic material, may be `considered' in the interpretation of the provision of an Act. But in our view it is not appropriate to proceed to a consideration of the second reading speech, or other extrinsic document, without first seeking to interpret the provision in issue. It is necessary first to examine and analyse the provisions of the Act for the purpose of determining whether or not there are good reasons to resort to the second reading speech, or other extrinsic document: see esp. Saraswati v R (1991) 172 CLR 1 at 23 per McHugh J; Cooper Brookes (Wollongong) Pty Ltd v Fed Cmr Taxation (1981) 147 CLR 297 per Gibbs CJ at 304 and 305; and for a useful discussion see also Oxley & Anor v Imperial Charter Pty Ltd (1996) NSW Conv R paragraph 55-783 at pp 56,008-9 (NSW Commercial Tribunal).”
52 On that understanding, the improper conduct to which section 15(6) refers is conduct in the course of the regulated activity or as a consequence of the grant of a licence. In FD’s case, were he granted a licence, this would be as an unarmed guard of persons or property, or in crowd control. The purpose and object of the Act appear to be the maintenance of the highest standards of personal integrity and conduct in the carrying out of regulated security activities.
“not in accordance with propriety of behaviour, manners, etc .: improper conduct. ”
53 What amounts to prospective improper conduct (having regard to criminal intelligence) in the context of such a licence, which the Commissioner is not confident will not occur, is a difficult question. Some guidance can be found from the Second Respondent Speech on the Security Industry Amendment Act 2002 – which, among other things, introduced section 15(6) and (7) to the SIA . Mr Gaudry, Parliamentary Secretary, in the Legislative Assembly on 12 November 2002, said:
54 It is apparent that the legislative intention underlying section 15(6)(c) is that where criminal intelligence or other criminal information causes the Commissioner to not be confident that an applicant will not act in accordance with the high standards of integrity and behaviour required by the SIA, the Commissioner may find that person not to be fit and proper to hold a licence. This is so despite the fact that, without that criminal intelligence or other criminal information, the person may otherwise be fit and proper.
“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.
However, the determination of whether a person is "fit and proper" is contextual, as has been recognised in common law. For example, in Australian Broadcasting Tribunal v Bond, Justices Toohey and Gaudron found that:
"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 person" 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 those 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. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
The Deputy President of the Administrative Decisions Tribunal has also held that there should be some 'nexus' between the conduct complained of and the activities to which the licence relates. This would apply, for example, in the case of a security guard who is reported to be associated with criminals with convictions for the armed robbery of banks. It is therefore considered that there is insufficient direction within the Security Industry Act to ensure that the balance is maintained between the interests of public safety in ensuring a crime free security industry, and the interests of individual licence holders in retaining their licences to work within the industry.
To this end, it is proposed to clarify the definition of "fit and proper person" in section 15 of the Act such that it can be clearly seen to include, but is not limited to, circumstances where:
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.”
(a) criminal intelligence is held on a licence applicant-holder which has a relationship to the duties performed under the licence applied for/held;
(b) which cause the Commissioner of Police to conclude that improper conduct is likely to occur if the person were to be granted/continue holding a security licence; or
(c) which cause the Commissioner of Police to not have confidence that improper conduct will not occur if the person were granted/continued to hold a security licence.
55 Adopting that understanding of the applicable law, and in the light of my analysis of confidential information relied on by the Commissioner, I am not confident that, if granted the licence he seeks, FD would not engage in improper conduct. However, I am not, on that information, prepared to conclude that improper conduct is likely to occur.
56 As a result, I find that section 15(6)(c) applies in the context of FD’s application. Given the conclusions I have reached about some of that information, I conclude that this is a case where the discretion vested in the Commissioner under that section should be used to find that FD is not a fit and proper person to hold a licence under the SIA.
57 As a consequence the decision of the Commissioner to refuse FD a Class 1AC licence under the SIA is affirmed.
58 I note that the Commissioner also concluded that it would be contrary to the public interest to grant FD a SIA licence, and therefore refused his application on that ground under section 15(3) of the Act. In doing so the Commissioner took into account “all the Police reports involving” FD. A plain reading of the decision on internal review indicates that this included confidential information in the possession of the Commissioner. Given the conclusion I have already reached on FD’s fitness and propriety it is not necessary for me to determine the public interest question. Despite this, I note that it is by no means clear, as the internal review officer seemed to think, that section 15(3) authorises the Commissioner to have regard to criminal intelligence or other criminal information when making a determination under the sub-section and to then seek the protection of the non-disclosure requirements of the Act. That, however, is an issue that can be determined on another day.
59 Finally, in order to ensure the confidentiality of the confidential material and to comply with the procedure outlined by the Appeal Panel in QR I propose to exercise the Tribunal’s powers under section 75 of the ADTA in three ways. First to prohibit the disclosure of the FD’s name or address or anything which my lead to his identification. Secondly, to prohibit the disclosure to FD or his representatives of paragraphs 19 to 42 of these reasons. Finally, to prohibit the publication of paragraphs 19 to 42 of these reasons.
Orders
1. The decision of the Commissioner to refuse FD a class 1AC licence is affirmed
2. The Tribunal prohibits the disclosure of the FD’s name or address or anything which my lead to his identification
3. The Tribunal prohibits the disclosure to FD or his representatives of paragraphs 19 to 42 inclusive of these reasons
4. The Tribunal prohibits the publication of paragraphs 19 to 42 inclusive of these reasons.
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