Furlong v Commissioner of Police, New South Wales Police Force

[2009] NSWADT 293

CITATION:	Furlong v Commissioner of Police, New South Wales Police Force [2009] NSWADT 293
DIVISION:	General Division
PARTIES:	APPLICANT William Furlong RESPONDENT Commissioner of Police, New South Wales Police Force
FILE NUMBER:	093086
HEARING DATES:	2 October 2009
EXTEMPORE DECISION DATE:	2 October 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Commercial Agents and Private Inquiry Agents Act - Process Server - grant of licence
LEGISLATION CITED:	Commercial Agents and Private Inquiry Agents Act 2004
CASES CITED:	A Solicitor v Council of the Law Society of NSW [2004] HCA 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bydon v General Manager, Motor Vehicle Repair Industry Authority [2003] NSWADT Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 137 ALR Commissioner of Police v Toleafoa [I999] NSWADTAP 9 Director of Public Prosecutions v Smith (1991) 1 VR 63 Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 Exparte Meagher (1919) 336 WN (NSW) 175 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 Hoban v Davey (1972) 1 NSWLR 59 Khaffer v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 161 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Oliver v Commissioner of Police, NSW Police [2007] NSW ADT 153 at [34] Ratay v Director General, Department of Transport [2003] NSWADTAP 32 Re Lenehan [1948] HCA 45 The Prothonotary v Del Castillo [2001] NSWCA 75 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Ziems v Prothonotary of the Supreme Court of NSW [I957] HCA 46
REPRESENTATION:	APPLICANT C Moschoudis, barrister RESPONDENT J Davidson, solicitor
ORDERS:	The decision under review should be set aside. In its place the decision is made that the licence is granted.

REASONS FOR DECISION

1 This is an application for review of a determination by a delegate of the Commissioner of Police, New South Wales Police Force (“the Commissioner”) to refuse the applicant’s application for a Probationary Operator, Process Server, Commercial Agents and Private Inquiry Agents Licence. The refusal was based on the grounds that the applicant was considered not a fit and proper person and that it would not be in the public interest for him to be issued with a licence.

2 It is common ground that in 1989 the applicant pleaded guilty to and was convicted of the offence Manslaughter. He was sentenced to 10 years in prison with a non-parole period of 5 years. A parole period of 5 years commenced from 28 November 1988. This offence formed the basis of the Commissioner’s determination.

3 That determination was affirmed on internal review and the applicant then lodged the current application in the Tribunal. The determination is challenged on the grounds that (i) the offence in question was a result of extreme circumstances and could not be taken to indicate the applicant's general character, and (ii) the applicant is currently a fit and proper person to be a holder of the relevant licence.

4 The matter came before me for hearing on 2 October 2009. At the conclusion of the hearing I determined that the decision under review should be set aside and that the licence should be granted and I gave brief reasons for my decision. The Commissioner has requested written reasons for my decision and these reasons are provided in response to that request.

5 The Commercial Agents and Private Inquiry Agents Act 2004 (“the CAPI Act”) established a scheme for licensing persons to carry on Commercial Agents and Private Inquiry Agents activities. The objects of the Act are set out in section 3 which provides:

3 Objects
The objects of this Act are:
(a) to protect the public in relation to commercial agent and private inquiry agent activities (that is, process serving, debt collection, repossession of goods, surveillance of persons and investigation of persons), and
(b) to provide for the licensing of persons carrying out, and persons carrying on business in relation to, commercial agent and private inquiry agent activities, and
(c) to establish standards to be observed by licensees in relation to commercial agent and private inquiry agent activities, and
(d) to ensure that licensees are accountable for their acts and omissions in relation to commercial agent and private inquiry agent activities.

6 Section 13(1) of the Act provides that an application for an operator licence must be refused if the applicant is a disqualified individual.

7 Section 4 of the Act, defines a disqualified individual as:

(c) an individual who, in the opinion of the Commissioner, is not a fit and proper person (whether because of subsection (2A) or otherwise) to hold a licence.

8 Section 13 of the Act provides:

13 Grounds for refusing operator licence
(1) An application for an operator licence must be refused if the applicant is a disqualified individual.
(2) An application for an operator licence may be refused:
(a) if the applicant has been convicted or found guilty of a minor offence, or
(b) if the Commissioner is of the opinion that the grant of the licence would be contrary to the public interest, or

9 The background to the case and the applicable law is not in dispute.

The Commissioner’s Case

10 The Commissioner relies witness statements from Mr Cameron Smith, Registrar of the Security Industry Registry, and from Ms Karen Bairstow, an assessor with the Security Industry Registry. Ms Bairstow statement annexes documents relating to the applicant’s history and in particular his manslaughter conviction. Mr Smith attended the hearing and was cross-examined. His evidence concerns the processing of the applicant’s licence application and the administration of the CAPI Act and the Commissioner’s concerns relating to the applicant’s application. His evidence is consistent with the reasons provided for in the internal review determination. A reasonable summary is provided in those reasons which state in part:

13. The Commercial Agents and Private Inquiry Agents Act was designed with the clear intention of ‘establishing standards to be observed by licensees in relation to their activities, as well as ensure that licensees are accountable for their acts and omissions'. ... 'The objectives of the act are to protect the public in relation to private agent activities such as process servers, debt collectors and those engaged in repossession of goods, surveillance of persons and investigation of persons', thus, providing the community with confidence in a professional industry, where competence, integrity and accountability are provided and maintained to a high standard.
14. When considering an individual's right to be granted a licence under the Commercial Agents and Private Inquiry Agents Act 2004, I formed the view that any decision should be made with the specific consideration to whether the applicant is of fit and proper character to be granted a licence and if it is in the public interest for a licence to be issued.
15. It is my opinion that your actions, although historical and having occurred some 23 years ago, are of such a serious nature that it cannot but raise serious concerns as to whether you are a fit and proper person to hold a licence. The offence for which you were convicted is not considered 'spent' under the provisions of the Criminal Records Act 1991, and I have taken this into consideration in reviewing this matter;
Section 7(1)(a)
7) All convictions are capable of becoming spent in accordance with this Act, except the following:
(a) convictions for which a prison sentence of more than 6 months has been imposed'.
16. The concept of 'fit and proper’ includes a person's moral integrity and rectitude of character so that they can be trusted by the public to hold the relevant licence. [ Ex parte Meagher (1919) 356 WN (NSW) 175 at 179]. Regarding the issue of 'fit and proper' 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. This 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 [ Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380].
17. Having considered the above mentioned in the context of the Commercial Agents and Private Inquiry Agents Act 2004 I find that you are not of fit and proper character to be granted a commercial agents licence. In this regard, I have found that the provisions of Commercial Agents and Private Inquiry Agents Act 2004 apply.
18. Regarding the term 'public interest’, “The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals." [ Director of Public Prosecutions v Smith (1991) 1 VR 63]
19. I consider that the need for you to hold a process server licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 137 ALR 657 at 681 refers to O'Sullivan v Farrer and Re Queensland Electricity Commission . The Court then goes on to state:
"The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."
It is my understanding that the authority conferred upon the holder of a commercial agents licence is granted by the Commissioner with the clear expectation that the licensee utilises that authority for the good order of society and for the well being of its members or "in the public interest". It is also my understanding that where, on the balance of probabilities, the good order of society and the well being of its members may be compromised, that the authority conferred upon the holder of a licence should be restricted until the concern has been eliminated. Therefore, I do not think that the public interest would be served by allowing you an opportunity to be put in a position of authority and trust, such as a probationary processing service licence would allow.
21. The grounds for which your application for the grant of a probationary process serving licence has been refused, clearly fall within the provisions of Section 13(1), Section 13(2)(b) and Section 4 of the Commercial Agents and Private Inquiry Agents Act 2004 and therefore I affirm the decision of the delegate of the Commissioner to refuse the grant of your application for this licence.

11 Ms Davidson provided written submissions in support of the Commissioner’s case. In those submissions she referred to a number of Tribunal decisions which have dealt with these principles.

12 In regard to the application of the principles to the present case, she submitted:

Section 13(1) and (2)(b) - application of principles

29 The Respondent's decision that the applicant was not a fit and proper person to hold a process serving licence and that it was not in the public interest for the applicant to be granted such a licence was well founded.

Section 13(1)

30 The applicant was convicted of manslaughter, albeit that the offence took place 23 years ago, in circumstances where he pleaded guilty. The applicant was charged with murder and his plea to manslaughter was accepted by Justice Finlay on the basis of provocation and diminished responsibility. The offence occurred in public and involved considerable violence: Justice Finlay's judgment on sentencing states that the applicant "jabbed the deceased on a number of occasions in the body area with the knife and plunged the knife deep into the stomach area of the deceased”. A number of witnesses to the stabbing provided statements to the Police in relation to the offence. Assessor Bairstow's evidence is that, had the applicant applied for a process serving licence within 10 years of his conviction, it would have been mandatory for the Commissioner to refuse to grant his application for a licence.

31 The applicant has not committed further offences since his release from gaol and has held employment following his release. He did not attempt to conceal his conviction when applying for a process serving licence and expressed regret for his offence in his application for an internal review of the Commissioner's decision. The applicant provided a letter to the Security Industry Registry indicating that an employer aware of his criminal record has offered him work as a process server, and he has provided a similar letter to the Tribunal from the same potential employer. A number of character references, dating from before and after his time in gaol and apparently reviewed by Philip Gorrell, who provided a report on behalf of the applicant, state that the applicant is a reliable and hardworking employee, albeit that these do not disclose any awareness on the part of the referees of the applicant's criminal record. The Appeal Panel has recognised the limited weight to be accorded to references that do not indicate their author's knowledge of the negative history of the subject:

"Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of negative history, they must be approached with caution." ( Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [40])
The Tribunal has repeatedly accorded limited weight to references supplied in licensing cases that do not indicate knowledge of an applicant's past offences or negative history: see eg. Tzoudas v Ministry of Transport [2008] NSWADT 350 at [42] (taxi licence); David v Commissioner of Police [2008] NSWADT 223 at [33] (security licence).

Following Bond, [Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6] and [Khaffer v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 161], the Respondent submits that in determining the question of whether a person is "fit and proper" for the purposes of ss. 4 and 13(1) of the CAPI Act, the Tribunal should consider the type of activity the person will be authorised to engage in under the licence applied for and the ends to be served by that activity, Here, the applicant seeks a process serving licence, which would require him to serve legal documents, described as "sensitive" by his prospective employer in a letter to the Tribunal … on members of the person is fit and proper to undertake licensed activities: cf Australian Broadcasting Tribunal v Bond (1990) 1 70 CLR 32 1 at 380.

38 The case law is clear that conviction for a single criminal offence will not necessarily deprive a person of their fitness and propriety to hold a licence in a regulated industry. Nevertheless, the Respondent submits that the Tribunal should apply the test adopted in [Farquharson v Director General, Department of Transport [1999] NSWADT 53] and endorsed by the Appeal Panel in [Ratay v Director General, Department of Transport [2003] NSWADTAP 32] as to whether a notional member of the public who might be served with process by the applicant, knowing of the applicant's criminal record and what he has done subsequently to rehabilitate himself, would object to the applicant as the server of process upon them. The Respondent submits that the objective seriousness of the offence of manslaughter would cause a notional member of the public to object to the applicant functioning as a process server, even knowing of the circumstances of the offence, its age, and the applicant's subsequent employment history and expression of remorse for his offence.

Section 13(2)(b)

39 The applicant seeks a licence for an activity - process serving - involving substantial contact with the public. The public obviously has a significant interest in ensuring the safety of its members on whom process is being served, and Parliament has explicitly laid out the protective purpose of the CAPI Act in s. 3(a). The Respondent submits that, as it has done in relation to similar provisions in security and firearms licensing legislation, the Tribunal should have regard to this legislative purpose when applying s. 13(2)(b).

40 The Respondent submits that in light of the applicant's conviction for such a serious offence, the applicant cannot be confidently held out to the public to utilise the authority conferred by a process serving licence for the public's wellbeing and protection. Although the applicant's maintenance of a clean criminal record in the years since his release from gaol is relevant to the assessment of the public interest (Commissioner of Police v Toleafoa [I999] NSWADTAP 9 at [26]), the applicant's conviction is not spent. Had the conviction been less than 10 years old, refusal of the applicant's application would have been mandatory under s. 13(1) of the CAPI Act. Paragraph (d) of the definition of "disqualified individual" in s. 4(1), together with the mandatory refusal provision in s. 13(1), demonstrates Parliament's concern to ensure that people who have been convicted of offences at a prescribed level of seriousness will not be granted operator licences under the CAPI Act: see Haining at [48]. Paragraph (d) of the definition of "disqualified individual" is not applicable to the applicant's application because of the age of his conviction. However, as with s. 15 of the Security industry Act 1997, considered by the Appeal Panel in Toleafoa at 1251, the structure of s. 13 suggests that Parliament intended the public interest discretion in s. 13(2)(b) to operate in circumstances where an applicant is not a "disqualified individual" pursuant to s. 4, but the Commissioner nonetheless has objections to granting a licence on grounds that would be insufficient in their own right to warrant refusal pursuant to ss. 4 and 13(1). This would include objections based on a very serious conviction that is more than 10 years old.

41 Even if the Tribunal finds that the applicant's conviction does not render him unfit for the purposes of s. 13(1) of the CAPI Act, the Respondent submits that his conviction may be used, when combined with other public interest considerations, to ground a finding that the grant of the licence applied for would be contrary to the public interest: DP v Commissioner of Police, NSW Police [2007] NSWADT 277 at [44]-1451. Contrary to the applicant's submission, the public has no interest in "eternally punish[ing] [the applicant] for a single conduct in the distant past." The purpose of the discretion to refuse to grant a licence if the Commissioner is of the opinion that the grant of the licence would be contrary to the public interest is not primarily to punish the applicant. Its purpose is to protect the public: Hoban v Davey (1972) 1 NSWLR 59 at 65, 72.

42 The Respondent submits that the applicant's personal interest in earning additional income from work as a process server conflicts with but does not outweigh the public interest in the protection of public safety and the strict and fair control of commercial agents and private inquiry agents licensing.

13 Ms Davidson also provided oral submissions that expanded on those that she provided in writing. In particular she expanded her arguments in regard to the Commissioner’s concerns that the grant of the licence would be contrary to the public interest.

The Applicant's Case

14 The applicant relies on his own evidence. He provided a witness statement, attended the hearing and was cross-examined. His evidence concerns the circumstances that lead to a charge of murder and his conviction for manslaughter and the steps towards rehabilitation that he has taken since that time. He set out his employment history. Most recently, he has held positions of significant responsibility. Between 2001 and 2007, he was employed in a full time position as a building supervisor for Dosan Pty Ltd. He is currently employed in a full time position as a Technical Officer in the NSW Department of Housing and has been working in this position since 2007. He has been employed by the Department of Housing for two and a half years. He is responsible for management of over 3000 houses and has a delegation to authorise up to $15,000 worth of repairs to any house that he manages. His employer is aware of his criminal record.

15 His evidence is that he is fifty-eight years old and nearing retirement and that he won’t be getting very much superannuation. He hopes to work as a Process Server to be able to earn additional income towards his retirement.

16 The applicant relies on a Psychologists report of Dr Phil Gorrell dated 22 July 2009 and a number of references. Dr Gorrell is of the opinion that the applicant is a person who will not pose a threat to the public. He stated:

I have been psychologically assessing people for almost thirty years and Mr Furlong is one of the most genuine, sincere and responsible individuals whom I have ever assessed.

17 The most recent references are those of Mr Eugenio Sanhueza, Director, Dosan Pty Limited, Kogarah, dated 20 August 2008; Mr Rodd Vernon, A/Asset Operation Manager, NSW Department of Housing, dated 20 August 2008 and Mr Brian Carter, Managing Director of Recoveries & Reconstruction (Aust) Pty Ltd dated 23rd July, 2009.

18 Mr Vernon stated that the applicant:

" is very dependable, conscientious, a non smoker and conducts himself with his peers very well. I have no hesitation in recommending him as a person of good character".

19 It is apparent from the applicant's references that prior to his offence he was considered to be honest, conscientious, diligent, capable, trustworthy, co-operative, likeable, and a good worker.

20 It is apparent from the applicant's references that after his incarceration, he was and is considered to be conscientious, business like, reliable, dependable, hardworking, and highly regarded by his peers and fellow workers.

21 Mr Moschoudis provided written and oral submissions in support of the applicant's case. He submitted:

Basis for application to review:

(a) Fit and proper person

5. In the statement of reasons dated 26th March 2009, the Delegate of the Commissioner of Police made a decision to refuse Mr William Furlong's application for grant of a probationary process serving licence on the basis that the applicant is "not of fit and proper character to be granted a commercial agents licence" (at 17).

6. The Delegate appeared to have come to his or her decision on the basis of the applicant's criminal conviction in 1989 for manslaughter, for which he was sentenced to a term of 10 years imprisonment with a parole period of 5 years from 28 November 1988 (see para 12).

7. With respect, the Delegate's decision is challenged on the grounds that (i) the offence in question was a result of extreme circumstances and could not be taken to indicate the applicant's general character, and (ii) the applicant is currently a fit and proper person to be a holder of the relevant licence.

(i) The offence does not accurately indicate the applicant's general character

8. The courts have held that one criminal offence does not necessarily deprive a person of fitness: Walters J in Sobey, cited in Bydon v General Manager, Motor Vehicle Repair Industry Authority [2003] NSWADT 248 at [7.4]. 'It cannot be that every proof which he may give of human frailty so disqualifies him': per Kitto J in Ziems v Prothonotary of the Supreme Court of NSW [I957] HCA 46, at p.298.

9. In the case of Ziems v Prothonotary of the Supreme Court of NSW [I957] HCA 46, where the court examined whether a barrister convicted of manslaughter as a result of driving under the influence of alcohol was fit and proper to remain at the bar, the court pointed out that

'the conviction relates to an isolated occasion, and, considered by itself as it must be on this appeal, it dues not warrant any conclusion as to the man’s general behaviours or inherent qualities" (at p.300).
10. Similarly, the case of The Prothonotary v Del Castillo [2001] NSWCA 75 also examined whether a legal practitioner is fit and proper person to remain on the roll. The facts of the case involved the practitioner having an argument with another male over the fidelity of his wife, during which he produced a knife and both men were injured during the struggle. The other man died the following morning. While the practitioner was acquitted on trial, the court considered whether his conduct subsequent to the event, namely, lying about events subsequent to the incident, justified a finding that he was not a fit and proper person. The court ultimately held:
'The opponent had led a blameless life in the fifty-four years before 5 September 1991 and has continued to do so in the nine years since his acquittal. His conduct was defective in varying degrees, but the conduct did not exhibit "serious deficiencies in the opponent's standards of conduct and his attitudes". That is, his conduct fell below appropriate standards, but it did not reveal that he lacked standards. His conduct stemmed from a sudden response to a wholly unforeseen calamity placing extraordinary pressures on him nearly ten years ago. It does not suggest that he is presently unfit to be a legal practitioner' at [99].
11. Applied to this case:

11.1 Undeniably, the applicant had, on one occasion some 23 years ago, engaged in improper conduct, for which he had immediate1y thereafter expressed deeply felt remorse and regret. He had not attempted to conceal or lie about his actions and took responsibility for his conduct. He had also been punished for his actions through a term of imprisonment.

11.2 In the report of Dr .F.W. Shand dated 22 November 1988, the circumstances of the incident was described as:

'a result of accumulated feelings about the affair his wife was allegedly having with the other man ... Assessment of previous personality function indicated that such behaviour on the part of the accused was totally foreign. He had always been a very emotionally controlled individual with no tendencies to aggression, let alone physical violence or homicide. There was no information from him to suggest previous marital incompatibility or infidelity and family life had been harmonious. His homicidal attack on Whittaker was the result of a loss of control of emotions which had built up over the previous 5 or 6 months from the time his wife had allegedly told him about her affair with Whittaker.' (at p.4)
11.3 The court conceded that the circumstances involved both provocation and the defence of diminished responsibility (see judgment of Finlay, J. dated 10th February 1989, pp.5-7).

11.4 The evidence of Dr Strum, psychologists, referred to in the sentencing judgment dated 10th February, 1989, further noted that

'Mr Furlong did not have the mental capacity to control the sequence of events which thereafter followed. If has been my impression of the man in seeing him over a period of time that he is not a violent man, that he is in fact a very caring and considerate person and it would require extraordinary circumstances to provoke him into acts of violence' (at p.6).
11.5 In the recent report of Ds Phil Gorrell (dated 22nd July 2009), the following compelling observations were made:
“I have been psychologically assessing people for almost thirty years and Mr Furlong is one of the most genuine, sincere and responsible individuals whom I have ever assessed.

For fifty-seven years of his fifty-eight years, he has led an exemplary life, and such is evidenced by the quality of his employment references prior to the committing of his offence, and the quality of his employment references after his incarceration for which, due to good behaviour he was released at the earliest possible time. …

In understanding the significance of Mr Furlong's offence, and the fact of being incarcerated for significant period of time; it would generally be appropriate to suggest, even twenty-three years after committing that offence, that the person involved is not a person of good character, however such is merely a generalisation.

There are exceptions to this generalisation and Mr Furlong is one of those people.' (at p .7)

12. It is submitted that the conduct in question was a lone event which was induced by a cocktail of extreme circumstances and was out of the applicant's normal character.

(ii) Determination of fit and proper' of time of decision

13. The determination of the question of 'fit and proper' is made based on whether the applicant is currently a fit and proper person: Re Lenehan [1948] HCA 45; A Solicitor v Council of the Law Society of NSW [2004] HCA 1.

14. In the Second Reading Speech for the Criminal Records Act 1991 (NSW) (Hansard, 10th April 1991), parliament noted that:

''After an appropriate period, an old criminal record loses validity as a reliable indicator that a person may re-offend. Its maintenance should not therefore prejudice the person's rehabilitation. The discrimination which often follows revelation of an old criminal record impedes the successful rehabilitation of offenders at a time when they have proved they present no risk to society. The unfairness of this form of discrimination has been widely recognized. ...

The proposed rehabilitation period of 10 years for adults is based on the findings of recidivism studies carried our in the United Kingdom by the Home Office Research Unit, I972, and in New South Wales by the Bureau of Crime Statistic s and Research, 1977. These studies show that the risk of someone re-offending after 10 years of crime free behaviour is negligible.”

15. Applied to this case:

15.1 The applicant's good conduct had enabled him to obtain an early release on parole. Furthermore, he had satisfactorily completed the duration of the parole period without any further misconduct.

15.2 The applicant has not committed any other offences since 1986, which has been approximately 23 years. Based on the studies cited by the NSW parliament (see above), the risk of the applicant re-offending is less than negligible.

15.3 The applicant has frankly disclosed his prior conviction in the current application. This is arguably a strong indication of the applicant's integrity of character and shows that he has retrieved from his previous misconduct: Re Davis [1947] HCA 53. 15.4 The applicant receives numerous positive appraisals from those that know and work with him. …

15.5 In his recent psychologists assessment, Dr Gorrell concluded that

'Mr Furlong is no longer suffering either depression or anxiety, and to the best of my knowledge, he has not suffered such since being released from prison in 1991. Mr Furlong's depression/anxiety was situational at the time of the offence, and relieved when he was token out of that situation, a situation which was highly usual. ' (at p.6)
15.6 He has been working with the New South Wales Housing Department since 2007 as a technician and receives the full confidence and support of his employer. In the letter of reference from Rodd Vernon, A/Asset Operation Manages at NSW Department of Housing, Mr Vernon states that
"I have no hesitation in recommending him as a person of good character" ...
15.7 Furthermore, if he is successful in the current application, his prospective employer, Brian Kenneth Carter, managing director for Recoveries & Reconstruction (Aust.) Pty Ltd, is confident that he is suitable for the job as a process server. …

16. Referring to the authorities of Ex parte Meagher (1919) 336 WN (NSW) 175 and Australian Broadcasting Tribunal v Bond (1 990) 170 CLR 32 1, the Delegate noted that:

"the concept of ‘fit and proper' includes a person 's moral integrity and rectitude o f character so that they can be trusted by the public to hold the relevant licence. Regarding the issue of ‘fit and proper' the question may he 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. This list is not exhaustive but it does indicate that, in certain contexts character (because it provides indication of likely future conduct) or reputation because if 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 ' at [16]
17. It is submitted here that:

17.1 The applicant's general character is that of integrity, honesty and trustworthiness;

17.2 He is highly regarded by his peers and fellow workers and receives a great deal of respect and complement from others;

17.3. The applicant's reputation has not been marred by his conduct in 1986,

(b) Public Interest

18. In the statement of reasons, the Delegate of the Commissioner of Police also stated that

'I do not think that the 'public interest would be served by allowing you an opportunity to be put in a position of authority and trust, such as a probationary processing service licence would allow. ' (at 20).
19. 'Public interest' is 'an inherently broad concept' and allows the decision maker 'the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual': Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. This discretion is to be exercised 'having regard to the objectives of the relevant legislation': Oliver v Commissioner of Police, NSW Police [2007] NSW ADT 153 at [34].

20. In the Second Reading Speech read by Mr John Watkins, it was stated that the objectives of the Commercial Agents and Private Inquiry Act are

'to protect the public in relation to private agent activities such as process severs, debt collectors and those engaged in repossession of goods, surveillance of persons and investigation of persons. '
21. Applied to this case:

21.1 It is evident from past and present expert reports of Dr J. W. Shand, Dr William Barclay and Dr Phil Gorrell, that the applicant is a person of good character and who will not pose a threat to the public.

21.2 Furthermore, the applicant has been working as a public servant since 2007 and has been able to perform his duties diligently and properly without posing any threat to the public. On the contrary, his services working with disadvantaged people in NSW have been of great benefit to the public.

22. As the court stated in Director of Public Prosecutions v Smith (1991) 1 VR 63, which the Delegate of the Commissioner of Police also referred to in his statement of decisions,

'public interest’ is "a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals" (at 18)
23. In the Second Reading Speech for Criminal Records Act 1991 (NSW) (Hansard, 10th April 1991), it was stated that:
One o f the basic objectives of the criminal justice system is to encourage the rehabilitation of offenders in order that they may become responsible and productive members of society.
24. Although the applicant is unable to meet the current legislative requisites for his convictions to be spent, it is however submitted that there is a general public interest in providing encouragement and support for rehabilitation of offenders.

25 As argued above, the applicant does not pose a threat to the public. On the contrary, it is submitted that it would be in the public's interest to encourage the rehabilitation and recovery of individuals rather than to eternally punish them for a single conduct in the distant past.

26. Having regard to the above circumstances, it is thus submitted that the applicant be granted a probationary process server licence and that the decision to refuse dated the 26th March 2009 be set aside.

22 The role of the Tribunal is to determine whether the correct and preferable decision is to grant the licence that the applicant seeks.

23 Essentially, as has been stated, there is no dispute about the law that is applicable to the issue to be determined. The dispute is with respect to how the principles are to be applied in the circumstances of this matter.

24 There are two issues raised by the Commissioner. They are, whether the applicant is a fit and proper person to hold the licence and whether it would be contrary to the public interest for him to do so.

25 I agree that the standard is the one that has been referred to in Farquharson v Director General, Department of Transport. In Farquharson at paragraphs [36] – [37] the Tribunal’s President stated:

36 In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence.

37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. The applicant sought review of a refusal to grant a taxi driver’s licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant’s desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to “fit and proper character” in the case of taxi driver licensing in this way, at [12]:

“One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant’s criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi.”

26 In my view, it is necessary to consider whether a member of the public knowing the applicant’s history, and knowing what he has done since the offence, would object to him carrying out the role of a process server.

27 The Commissioner is concerned that a member of the public would object to the applicant being a process server. I do not agree with that view. In my opinion, a member of the public knowing the full history, that is, if they knew not only the details of the applicant’s offence but also what efforts he has made to rehabilitate himself since the offence, would not object to Mr Furlong being a process server.

28 On the evidence before me, it is clear that the applicant is well regarded by those who have provided references. It is clear that the offence for which he was convicted was out of character and that it occurred in extraordinary circumstances. It is equally clear that he has made great efforts to rehabilitate himself since the offence. On the basis of the totality of the material I am satisfied that Mr Furlong is a fit and proper person to carry out this function.

29 Whether or not the public interest should prevent Mr Furlong from holding the licence he seeks is a separate issue. In Commissioner of Police v Toleafoa at paragraph [25] the Appeal Panel stated:

“25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.”

30 'Public interest' embraces standards acknowledged to be 'for the good order of society and for the well being of its members': Director of Public Prosecutions v Smith. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith.

31 In my view, it is important to consider whether there may be any risk to the public if the licence is granted. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, in considering whether the applicant should be permitted to hold a firearms licence where the Tribunal stated at paragraph [28]:

"The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

32 In my view, the same standard should be applied in this matter. The Commissioner has argued the CAPI Act is protective not punitive and in applying protective legislation it is necessary to consider what, if any, risks there is to the public.

33 The Commissioner has argued that it is possible that some people with whom the applicant may have to deal might recognise him. The Commissioner is concerned in regard to the risk to the public that might arise in such a situation. It is necessary to consider not just the risk to the wider public but also what risk might arise to the applicant himself in such a situation. I could not say there would be no risk to the public. I do not doubt that in the circumstances where documents are being served, some recipients will be unhappy. If the applicant were recognised in that situation, it could give rise to strong emotions. However, even in such a situation I consider that there would be virtually no risk to the public.

34 In my view, it would not be contrary to the public interest for the applicant to hold the licence that he is seeking. That being the case, the correct and preferable decision is to grant the licence.

Order

The decision under review should be set aside. In its place the decision is made that the licence is granted.