IJ v Commissioner of Police, New South Wales Police Service

[2003] NSWADT 230

CITATION:	IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230
DIVISION:	General Division
PARTIES:	APPLICANT IJ RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	033080
HEARING DATES:	13/06/2003
SUBMISSIONS CLOSED:	06/13/2003
DATE OF DECISION:	10/14/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Security Industry Act 1997
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	The decision of the Commissioner of Police, New South Wales Police Service to refuse the application by IJ for the grant of a class 1ABC licence under the Security Industry Act 1997 is affirmed.

The Application

1 These proceedings relate to a decision by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to refuse an application by the Applicant for the grant of a class 1ABC licence under the Security Industry Act 1997 ("the Act"). I have decided, because of the sensitivity of the information in this case, not to publish the Applicant's name and to delete any other information which could lead to his identification. In these reasons I refer to the applicant as "IJ".

2 IJ lodged his application for the security licence on 22 August 2002. The decision was taken to refuse that application and Notice of that refusal was served on IJ by post on 28 October 2002. On 30 December 2002 IJ requested an internal review of the decision. A delegate of the Commissioner undertook the review and it was finalised on 26 February 2003. The decision ("the internal review decision") was made that the Commissioner's decision to refuse IJ’s licence application is to stand. The Commissioner's delegate gave detailed reasons for the decision and IJ was notified of the outcome of the review and those reasons.

Reviewable decision

3 The reviewable decision is that confirming the Commissioner’s decision to refuse IJ’s licence application. On 26 March 2003 IJ applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal’s President on 29 April 2003 at which time he made directions for the filing of documents and the matter was listed for hearing on 13 June 2003 and proceeded on that day.

4 At the commencement of the hearing Ms. Paterson made an application under section 75(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) for the matter to be heard in the absence of the public. I agreed to this application. Ms. Paterson made a further application that part of the proceedings be heard in IJ’s absence. IJ agreed to this request and the matter was partly heard in his absence.

Background

5 There is some dispute between the parties with respect to the circumstances that lead to the Commissioner's decision to refuse IJ’s licence application. IJ disputes some findings of fact reached by the Commissioner’s delegate and outlined in the reasons provided following the internal review decision. Those findings are stated as follows:

“After considering this material I find as a fact the following:

- Whilst visiting Lebanon in 1991, you were involved in a particularly serious crime that resulted in you being convicted of murder and imprisoned.

- In May 1998, NSW Police became aware of your conviction in the country of Lebanon.

- On 4 August 1998, an application for a Class 1ABC security licence was received.

- On 23 November 1998, you were served with the "Notification of Refusal for the Grant of Licence under the Security Industry Act 1997.

- On 23 August 2002, an application for a Class IABC security licence was received.

- On 2 December 2002, the "Notification of Refusal for the Grant of Licence under the Security Industry Act 1997" was served upon you by way of post.”

6 It is alleged that in 1991 IJ travelled to Lebanon and attempted to assassinate the Lebanese Prime Minister. The assassination attempt failed but a bodyguard was killed. It is further alleged that IJ was convicted of murder and imprisoned but that he was later pardoned and returned to Australia.

7 IJ stated that at the time of the assassination attempt there was civil war in Lebanon and there was no formal Lebanese authority. East Beirut and West Beirut each had separate Prime Ministers. IJ concedes that in 1991 he was detained by Syrian forces for five or six days. During the period of his detention he was tortured and he continues to suffer the consequences of that torture. IJ denies that he was ever convicted as was asserted by the Commissioner’s delegate. He stated that he was detained but he was neither tried nor convicted.

8 In support of this position he referred to a Police Record dated 14 March 2003 issued by the Republic of Lebanon General Dept. of Interior Security Forces Judicial Police. That Police Record simply states “NOT CONVICTED”. A certificate issued by the Australian Federal Police states that there are no Disclosable Court Outcomes recorded against IJ’s name in the records of the Australian Federal Police or the police in any Australian State or Territory.

9 Ms Paterson presented further evidence in support of the Commissioner’s case at the hearing. This evidence was presented in IJ’s absence and is considered pursuant to section 15(6) of the Act.

Nature of proceedings

10 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

11 These are not adversarial proceedings in which IJ carries an onus of proof. IJ, by making the application, triggers a process of merits review by the Tribunal. IJ does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. IJ and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the ADT Act.

12 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

13 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Applicable Legislation

14 As indicated above, an order was made under section 75(2) of the ADT Act. Section 75 of the ADT Act provides:

“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 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.

(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.

(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).

(3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private.”

15 Section 15 of the Act provides
“15 Restrictions on granting licence--general suitability criteria

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) is not a fit and proper person to hold the class of licence sought by the applicant, or

(b) is not of or above the age of 18, or

(c) does not hold the qualifications and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or

(d) is not competent to carry on the security activity to which the proposed licence relates, or

(e) is not an Australian citizen or a permanent Australian resident.

(2) The Commissioner must refuse to grant an application for a licence to carry on a security activity that involves the possession of a firearm if the applicant is not authorised by a licence or permit under the Firearms Act 1996 to possess or use the firearm.

(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.

(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence.

(5) A reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant.

(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).”
16 The issue for this Tribunal is: what is the correct and preferable decision? The decision to be made is whether IJ is a fit and proper person to hold the class of licence sought or whether the grant of the licence would be contrary to the public interest.

The Commissioner’s Case

17 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. As indicated above, additional material was put in evidence in IJ’s absence and the Commissioner relies on that evidence.

18 The Commissioner argues that IJ is not a fit and proper person to hold the licence sought and further, that the grant of the licence would be contrary to the public interest.

19 The reasons provided following the internal review stated:

“D.REASONING PROCESS:

7. The Security Industry Act, 1997 established a scheme for licensing people to carry on security activities. Within the Act, there are clearly defined reasons where the Commissioner must refuse to grant an application for a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the submission made by you.

8. After fully and independently considering all relevant matter, I make the following fresh determination.

9. Your application has been received for a Class 1ABC security licence. The duties authorised by a Class 1A licence include the guarding and protection of persons and property including the transport of cash and other valuables (hotel, club revenue and gaming machine takings), static and mobile patrols and security monitoring station activities; The activities authorised by a class 1B licence include providing close personal protection. The duties authorised by a class 1C include engaging in crowd control activities at public and private venues which may include public exhibitions and concerts, monitoring access to licensed premises, hotels, clubs, nightclubs, etc and ejecting patrons from these venues.

10. When considering an individual's right to be granted a licence under the Security Industry Act, 1997, I formed the view that any decision should be made on the basis that the legislation has quite clearly been enacted to exclude from the industry individuals that are considered not to be of fit and proper character to be granted a security licence. The Second Reading speech for the Security Industry Bill by Mr. Whelan (then the Minister for Police) on 19 November 1997 demonstrated that this was the clear intention of parliament:

"... I regard it is essential that, consistent with the police commissioner's responsibility for overall control of all security functions at the Olympics, he should determine who is a fit and proper person to gain a security industry licence" (Hansard page 2089).
11. 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.' Generally, the security 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. In terms of a scheme licensing security guards, good character is a vital feature of the inherent qualifications for much of the work involved.

12. 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 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. This list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of public perception as to the likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

13.I have taken into account the details available to this office regarding the incident that occurred in Lebanon in 1991, which resulted in you being convicted of murder and spending time in prison, I am conscious that this occurred when you were of a very young age, however, I regard this as a particularly serious matter and in light of the information available concerning your previous history, I am not satisfied that you are of fit and proper character to be granted a security licence.

14. I have also taken into account that to the question 3.2 in Section 3 of your application for a security licence signed by you on 31 July 1998: Have you been convicted of an offence within the period of 10 years before the making of this application in New South Wales or elsewhere? You answered "No".

15. In respect of 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."'

16. In considering the issue of public interest, I have taken into account the details of the incident in question and in light of this, I would find it very difficult to convince the public that you hold the necessary attributes consistent with the standards of behaviour and integrity required to hold a licence. It is therefore my opinion that having regard to the aforementioned, you cannot be confidently held out to the public in a such a position where you are entrusted to patrol, guard, watch or protect property, control crowds or act as a bodyguard. I am of the view that public interest in the context of section 15(3) of the Security Industry Act 1997, requires paramount consideration be given to public safety.

17. It is my opinion that the need for you to be granted a security licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 provides:

"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."
18. I have read your letter and if this were a matter where I was at liberty to exercise my discretion I would take this material into consideration during my reasoning process. However, in your case the applicable law prevents me from doing so.

19. The reasons for which your were refused the grant of a security licence fall clearly within the provisions of Section 15(1)(a) and 15(3) of the Security Industry Act 1997. In this regard, I have no discretion whatsoever to vary the decision previously made and therefore affirm that the decision of the Commissioner to refuse your application for a Class IAC licence.”

IJ's case

20 IJ presented evidence on his own behalf. His case is essentially based on the argument that he does not have a conviction and that the events of 1991 were known to the Australian authorities at that time. When he returned to Australia in 1991 he was interviewed by ASIO officers and officers from the Police Special Branch so the Commissioner had knowledge of the matters at that time. The Commissioner used that knowledge to refuse an application in 1997.

21 IJ also stated that the Commissioner screens participants who are undertaking training courses to become security guards and this would have given the Commissioner a further opportunity to address the matter.

22 Several written testimonials were provided in support of IJ’s application. Those testimonials support the position put by IJ that he is honest and reliable and a man of great integrity.

23 IJ’s position is essentially that set out in his application for a review of the Commissioner’s decision. In that application he stated:

“I would like to outline the reasons for which I am seeking a review. As stated in the internal review, I was involved in an act of political violence in Lebanon. That is correct. However, there is no conviction/s held against me as I was pardoned by the government who soon assumed power at the end of the evil war. (Current police clearance is attached). In addition, approximately in 1993, I held a-security licence for about two years and worked for the entire period without any complaints recorded against me.

Since returning to Australia in 1990, I have never had any problems with the law or authorities apart from common traffic infringement. Moreover, I invested time and effort in studying and successfully completing the security course, hoping I would have a career-change as I- have- been- driving- taxi for the past 10 years.

In conclusion, I believe I am a fit and proper person and urge you to consider the above reasons in considering my appeal.”

Reasons and decision

24 On the evidence before me I am not satisfied that IJ has been convicted of murder as asserted by the Commissioner. This is apparent from the Police Record dated 14 March 2003 issued by the Republic of Lebanon. As noted above, that Police Record simply states “Not Convicted”. IJ gave evidence that he was pardoned by the government that assumed power at the end of the civil war in Lebanon. This may well explain the wording of the Police Record. It does not follow that IJ did not commit the crime as alleged. Indeed, IJ conceded that he “was involved in an act of political violence in Lebanon.”

25 I do not agree with the views expressed by the Commissioner’s delegate in the reasons for the internal review decision that there is “no discretion whatsoever to vary the decision previously made”. Pursuant to section 15(1) of the Act, mandatory refusal will only apply once the Commissioner has determined that an applicant is not a fit and proper person to hold the class of licence sought. The Commissioner has discretion in making that determination.

26 To be weighed against IJ’s conceded activity is the fact that it occurred when IJ was of a very young age and the fact that a significant amount of time has passed since it occurred. I note IJ’s assertion that since returning to Australia he has never had any problems with the law or authorities, apart from common traffic infringement, and that he has been- driving- taxis for the past 10 years.

27 With respect to the fact that IJ has been- driving- taxis for the past 10 years, I note that a person may well be a fit and proper person to hold a taxi licence while at the same time not be a fit and proper person to hold a security licence. I agree with the view expressed by the Commissioner’s delegate that the expression "fit and proper person" takes its meaning from its context. 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.

28 I note that the reasons provided to IJ in relation to the internal review decision were quite detailed. It was open to IJ to obtain a psychological report to address the concerns that were expressed by the Commissioner’s delegate but he has not done so. Such a report would have been useful in determining this matter.

29 Ms. Paterson, for the Commissioner, submits that IJ’s actions in Lebanon were of such a serious nature that they override all other relevant factors. She further submits that the material placed before the Tribunal in IJ’s absence makes it abundantly clear that IJ is not a fit and proper person to hold a security licence and that it is not in the public interest for him to do so.

30 In my view the reasons provided in relation to the internal review decision correctly state the law in regard to the approach to be taken in deciding whether an individual is a fit and proper person to hold a security licence or whether it is not in the public interest for them to do so. It serves no purpose to repeat it here.

31 In determining whether IJ is a fit and proper person to hold a security licence, I have taken into account evidence to which he is not privy. Further, I have concluded that it is not in the public interest that he be made aware of that evidence. On the basis of that material, I find that IJ is not a fit and proper person to hold the class of licence that he has sought. Accordingly, the Commissioner’s decision is affirmed.

32 Section 15(7) of the Act provides that the Commissioner is not required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence of particular types of information. As the Tribunal stands in the shoes of the Commissioner, it follows that the Tribunal similarly has no obligation to provide reasons in those circumstances. It is my view that in the circumstances of this matter no such reasons should be given.

33 I appreciate that this puts IJ at a significant disadvantage in that his licence application is refused and he is given an inadequate explanation for the decision. Nevertheless, that must be the case in these circumstances. I am unable to offer IJ any further explanation for this decision. IJ may find it helpful to consider the comments that I have made at paragraph 28 of these reasons in determining how he proceeds from this point.

Orders

1. The decision of the Commissioner of Police, NSW Police Service to refuse the application by IJ for the grant of a class 1ABC licence under the Security Industry Act 1997 is affirmed.