Hutt v Commissioner of Police, NSW Police Force (No 3)

[2010] NSWADT 33

CITATION:	Hutt v Commissioner of Police, NSW Police Force (No 3) [2010] NSWADT 33
DIVISION:	General Division
PARTIES:	APPLICANT Annamaire Hutt RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	083148
HEARING DATES:	12 November 2009
SUBMISSIONS CLOSED:	12 November 2009
DATE OF DECISION:	3 February 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Security Industry Act - security industry licence -grant of licence
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997
CASES CITED:	Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Commissioner of Police NSW v Gray [2009] NSWCA 49 Gypsy Jokers Motorcycle Club Ltd v Commissioner of Police [20071 WASCA 49 Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Hutt v Commissioner of Police, NSW Police (No 2) [2009] NSWADT 135 Hutt v Commissioner of Police, NSW Police [2009] NSWADT 19 K-Generation Pty Ltd & Anor Liquor Licensing Court & Anor [2007] 1 SASC 319 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.
REPRESENTATION:	APPLICANT M Bateman, barrister RESPONDENT G De Courcey, solicitor T Hammond, solicitor
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

1 The Applicant has held security licence under the Security Industry Act 1997 (“the Act”). She was issued a Class 1ABC security licence in May 2006 and a Class 2B security licence in January 2008. In February 2008 a delegate of the Commissioner of Police (“the Commissioner”) determined that the Applicant’s licence should be revoked, as she was considered not a fit and proper person to hold a security licence.

2 The Commissioner’s decision was affirmed on internal review and the Applicant has applied to the Tribunal for external review of that determination.

3 The matter has been the subject of two preliminary decisions: Hutt v Commissioner of Police, NSW Police [2009] NSWADT 19; Hutt v Commissioner of Police, NSW Police (No 2) [2009] NSWADT 135. The background is set out in the first of those decisions.

Relevant legislation

4 Section 26(1A) of the Act provides that the Commissioner must revoke a licence where he is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.

5 Section 15(1)(a) of the Act requires that the Commissioner must refuse to grant the application for a licence if he is satisfied that the Applicant is not a fit and proper person to hold the class of licence sought by the Applicant.

6 The Act does not define the phrase 'fit and proper person'. However, the phrase has been the subject of much judicial comment and many decisions of this Tribunal. See for example Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127.

7 Section 15(6) and section 15(7) of the Act provide:

(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:
(a) is relevant to the activities carried out under the class of licence sought by the applicant, or
(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or
(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.

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

8 Section 29 of the Act provides:

29 Right to seek review from Administrative Decisions Tribunal
(1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions:
…
(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:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and
(b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant’s representative and any other interested party, unless the Commissioner approves otherwise.

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

75 Proceedings on hearing to be conducted in public
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make anyone or more of the following orders:
(a) an order that the hearing be conducted wholly or partly in private,
…
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

10 The Commissioner relies on material (“the confidential material”) concerning what is alleged to be the Applicant's past conduct and which the Commissioner says supports the contention that the Applicant is not a fit and proper person within the meaning of section 15(1)(a) of the Act. Consistent with the Court of Appeal decision in Commissioner of Police NSW v Gray [2009] NSWCA 49 (“Gray”) that the Tribunal was not entitled to order the Commissioner to provide the Applicant with particulars of the criminal intelligence information relied on, the confidential material has not been provided to the Applicant.

11 The matter was finally heard on 12 November 2009. Part of the hearing was held in the presence of the Applicant. The later part of the hearing was held in the Applicant’s absence. Each party made submissions admissibility of the Commissioner’s evidence.

12 Ms Bateman argued that although the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, the Tribunal is subject to the rules of natural justice. The rules of natural justice require that the Tribunal act only on the basis of logically probative evidence. She submitted that the rules of evidence, as provided for in the Evidence Act 1995, provide the basis of the admission of logically probative evidence. Ms Bateman submits that, although the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, as the rules of natural justice are severely compromised in these proceedings in that as the Applicant does not have access to the Commissioner’s evidence, the Tribunal should determine that the Evidence Act apply for the purpose of these proceedings.

13 The Commissioner relied upon sections 15(6), 15(7) and 29(3) of the Act, which dispenses with the requirement for the Commissioner to disclose confidential information used in the determination of his decision. The Commissioner also relies on the provisions in the ADT Act that prohibit the disclosure of the confidential material. The Commissioner argued that the ADT Act and the Act are specific in their terms. The ADT Act states that the Tribunal is subject to the rules of natural justice but this general rule is itself subject to any other provisions in the ADT Act or any other Act. Both the ADT Act and the Act specifically remove the requirement for disclosure of confidential information in these circumstances. The provisions referred to above have been examined by the courts and have been upheld as constitutionally valid: Gray. Similar legislation has been considered in Gypsy Jokers Motorcycle Club Ltd v Commissioner of Police [20071 WASCA 49 and K-Generation Pty Ltd & Anor Liquor Licensing Court & Anor [20071 SASC 319.

14 The Commissioner submitted that Gray makes it clear that the Tribunal must observe the rules of natural justice unless these rules are unequivocally changed by legislation. However, the provisions relied upon by the Commissioner remove the Applicant’s right to access the Commissioner’s confidential evidence.

15 With respect to the Applicant’s submission that natural justice involves the Tribunal acting only on the basis of logically probative evidence, The Commissioner submitted that all the evidence before the Tribunal in this matter, whether confidential or not, has strong and logical probative value and it should be admitted into evidence. The Commissioner opposed the Applicant’s submission that the Tribunal should determine that the Evidence Act apply for the purpose of these proceedings.

16 I accepted the Commissioner’s arguments and determined that the Commissioner’s confidential evidence is admissible and are admitted, subject to weight, and that the Evidence Act 1995 should not apply to these proceedings.

Confidential hearing

17 Generally, Tribunal hearings are held in public. However, under section 75 of the ADT Act, the Tribunal has the power to order that a hearing be conducted either wholly or partly in private and to make an order prohibiting or restricting the disclosure of evidence given before the Tribunal to some or all parties. The Commissioner sought to have a confidential hearing in this matter and I agreed to that request. In the absence of the Applicant, I heard from Mr Hammond as to the nature of the material he wished to put before the Tribunal. Having heard submissions in relation to the material that the Commissioner wished to tender to the Tribunal on a confidential basis, I formed the view that the confidential information is ‘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.’ Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.

18 I determined to proceed on that basis and advised the Applicant accordingly. Consequently the Applicant was not made aware of the material that was tendered on a confidential basis.

19 I have given weight to this confidential material and any reference to that material is deleted from the published reasons.

20 It is not in dispute that the Applicant's record is unblemished. The Commissioner acknowledges that the Applicant's record would not justify the determination that her licence should be revoked. However, Mr Hammond submits that the other information available to the Commissioner, and which is discussed in the confidential material, properly leads the Tribunal to the view that the Applicant is not a fit and proper person to hold a licence.

21 Those parts of the decision where the confidential material is discussed are identified as "Subject to suppression order".

22 The confidential material tendered to the Tribunal included:

- a confidential affidavit by Detective Senior Constable Ryan Malcolm
- a confidential police report (“the report”)
- confidential submissions

23 The Applicant is aware of the existence of a confidential police report but not the contents of that report.

The Commissioner’s Case

24 The Commissioner relies on open and confidential affidavits provided by Detective Senior Constable Malcolm. The open affidavit has been served on the Applicant. The confidential affidavit has not been served on the Applicant. Mr Malcolm is a current serving member of the NSW Police Force and is attached to the Anti Terrorism and Security Group. He attended the hearing and was subjected to cross-examination on his open affidavit. He accepted that in his opinion the Applicant is not involved in terrorism or terrorism related activities. It his opinion that the report falls under the statutory provisions contained in sections 15(7) and 29(3) of the Act.

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 The Commissioner contends that on balance, the Tribunal could not be satisfied that the Applicant is a fit and proper person to hold a security industry licence. The Commissioner submits that this industry has a special role 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: Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at paragraph [47]. Mr Hammond submits that the Tribunal could not be satisfied that the Applicant possesses the personal attributes to be a security guard.

The Applicant’s Case

32 The Applicant submits that she is a fit and proper person to hold a security industry licence.

33 She relies on Criminal History Reports for herself, Moustafa Cheikho, Khaled Cheikho, Rabeith Cheikho and John James Taylor (Conway). The Applicant has a single conviction in relation to mid-range PCA in December 2007. She has no other convictions recorded.

34 She also relies on subpoenaed material from the District Court file 04/11/0715 in the matter of R v John James Taylor. In 2007 John James Taylor was convicted of an offence of attempt to maliciously damage property by means of explosives. The matter related to discovery of an explosive device in a vehicle owned by the Applicant in January 2004.

35 Material in the file suggests that Mr Taylor was attempting to destroy or damage the vehicle to make a gain for the Applicant. The Applicant submits that Mr Taylor’s guilty plea did not refer to her.

36 The Applicant submits that it is clear from her Criminal History Reports that she has not been charged or convicted in relation to that incident. Ms Bateman submits that Mr Taylor has taken responsibility for that incident. She submits that the Commissioner should have called Mr Taylor to give evidence in regard to that incident if there was cause for concern in regard to the Applicant’s involvement in the incident. The Tribunal should assume that Mr Taylor’s evidence would not have assisted the Tribunal.

37 The Applicant also relies on the admission by Detective Senior Constable Malcolm that he is not aware of any material that links the Applicant to any relationship with Khaled Cheikho or Moustafa Cheikho.

Consideration

38 The issue to be decided is whether the Commissioner made the correct and preferable decision by revoking the Applicant’s licence. This decision must be made taking into account whether the Applicant is a fit and proper person to hold a security licence.

39 The assessment of whether a person is a “fit and proper” person was discussed by the High Court in AustralianBroadcasting Tribunal v Bond Mason CJ stated at [63]:

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 witness and propriety are under consideration.

40 In the same case, per Toohey and Gaudron JJ said at [36]:

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. 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.

41 The discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales at 156 and AustralianBroadcasting Tribunal v Bond.)

42 In Hughes and Vale Pty Ltd at 156-157 Dixon CJ, McTiernan and Webb JJ stated as follows in respect of the exercise of this administrative discretion:

The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their 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 ... . It is evident that the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.

43 As noted in Haining v Commissioner of Police, NSW Police Service, the expression "fit and proper person" takes its meaning from its context. A higher standard is applicable to licensees within the security industry because of the special role it plays in ensuring public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.

44 In the present matter I have been provided with a considerable amount of confidential material that, in my view, supports the Commissioner’s view. I have considered that material and I have given weight to it.

45 [Subject to suppression order]

46 [Subject to suppression order]

47 On the material before me, I cannot be satisfied that the Applicant is a fit and proper person to hold a security industry licence.

48 It is my view that the correct and preferable decision is that the Applicant should not be permitted to hold a security licence. It follows that the decision of the Commissioner should be affirmed.

Order

The decision under review is affirmed.