Kahan v Strauss

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 05452

BRETT KAHAN as a delegate of the Chief Commissioner of Victoria Police exercising powers pursuant to the Private Security Act 2004 (Vic)	Plaintiff
v
STEPHEN STRAUSS	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June and 7 November 2016
DATE OF JUDGMENT:	6 February 2017
CASE MAY BE CITED AS:	Kahan v Strauss
MEDIUM NEUTRAL CITATION:	[2017] VSC 8

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JUDICIAL REVIEW AND APPEALS – Application for leave to appeal from Victorian Civil and Administrative Tribunal (‘VCAT’) under s 150 of the Private Security Act 2004 (Vic) – Decision of delegate of the Chief Commissioner of Police to cancel a Private Security Individual Operator licence under s 56 of the Private Security Act 2004 (Vic) – VCAT stands in the shoes of original decision-maker – Nature of applications for leave to appeal under s 148 of VCAT Act.

STATUTORY CONSTRUCTION – Private Security Act 2004 (Vic) s 25 – Public interest – The extent to which public confidence is relevant to the question of whether it is in the public interest that the defendant hold a licence – Breadth of test – Distinction between what is ‘of public interest’ and what is ‘in the public interest’ – Public confidence an outcome of a proper system of regulation, rather than a matter to be taken into account in determining what is in the public interest – The Tribunal has broad discretion to consider circumstances of individual cases within the purpose of the relevant Act – Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143; Director of Public Transport v XFJ [2011] VSCA 302 referred to and applied.

STATUTORY CONSTRUCTION – Whether Tribunal erred in finding that defendant a fit and proper person to hold a security licence – Director of Public Transport v XFJ [2011] VSCA 302 followed – Whether defendant convicted of an offence which renders him unsuitable to hold a licence.

APPEALS FROM VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL – Whether decision of Tribunal unreasonable – Whether to interfere with exercise of discretion – Reluctance of Court to conclude that a decision of Tribunal was so unreasonable as to be untenable – Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280, Pong Property Development Pty Ltd v Strangio (2005) VSC 217 referred to and applied.

PRACTICE AND PROCEDURE – Defendant’s decision not to participate in the proceeding – Practical utility of proceeding – Improper to seek determination as a precedent for future applications – Determination of issues in this proceeding affects the defendant’s personal record.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T B Goodwin	Victorian Government Solicitor’s Office
For the Defendant	No appearance
Amicus Curiae (on 7 November 2016)	Mr L Wirth	Victorian Bar Duty Barrister Scheme

TABLE OF CONTENTS

Introduction and preliminary matters............................................................................................ 1

The application before VCAT......................................................................................................... 3

The Senior Member’s decision and reasons............................................................................... 13

The proposed Notice of Appeal and the nature and availability of the relief sought........ 16

Applications for leave to appeal and appeals under s 148 of the VCAT Act – relevant principles 19

Summary of plaintiff’s submissions............................................................................................. 20

Questions 1 and 2 of the Draft Notice of Appeal....................................................................... 24

Questions 3 and 4 of the Draft Notice of Appeal....................................................................... 33

Questions 5 and 6 of the Draft Notice of Appeal....................................................................... 37

HER HONOUR:

Introduction and preliminary matters

This is an application for leave to appeal from the orders of Senior Member Robert Davis (‘Senior Member’) of the Victorian Civil and Administrative Tribunal (‘VCAT’) made on 2 September 2015 to set aside the decision of the plaintiff, Mr Kahan, a delegate of the Chief Commissioner of Victoria Police (‘Chief Commissioner’), to cancel the private security licence issued to the defendant, Mr Strauss, under the Private Security Act 2004 (Vic) (‘Act’). On 17 November 2015, Lansdowne AsJ made orders to the effect that the application for leave to appeal be heard and determined by the same judge who, if leave is granted, is to hear and determine the appeal.

As indicated during the course of the hearing, this is an appropriate case for the grant of leave. While the fourth and fifth questions of law identified in the plaintiff’s draft notice of appeal do have a flavour of an attempt to review the merits of the Senior Member’s decision, questions 1, 2 and 3, which assert whether the Senior Member erred in law in his construction of s 25 of the Act, and asserted that the Senior Member took into account irrelevant considerations, are clearly questions of law which go to the heart of the Senior Member’s decision. As for the question of whether any arguable error may amount to ‘substantial injustice’, such to justify the grant of leave,[1] it has been held that a party aggrieved by a decision of VCAT may appeal from that order ‘at least where the error of law may have impeded the performance of [that party’s] statutory responsibilities.’[2]
[1]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
[2]Secretary to the Department of Justice v NJI [2014] VSC 331, [25].

While the defendant appeared at the first return of the application on 17 November 2015, on 28 May 2016 the defendant sent an email to the Court advising that he had decided not to file any submissions or appear at the hearing. Thus, the application proceeded undefended. However, counsel for the plaintiff expressly acknowledged his obligations to bring to the attention of the Court authorities and evidence which would tell against allowing the appeal, and in my view, discharged those obligations in an exemplary manner. Notwithstanding the above, during the course of preparing my reasons for decision, I became concerned that given, among other things, the potential competing public interests involved, the Court would benefit from the presence of a contradictor. This was provided with the generous assistance of the Victorian Bar Duty Barrister Scheme, and a further hearing was convened in order for counsel to make submissions upon the following issues identified by me:

(a) whether there is any utility in the Court determining the application for leave to appeal, and the appeal, given that the defendant’s licence has expired, and no application has been made for its renewal, or whether the Court is being requested to provide an advisory opinion;

(b) if the answer to (a) is yes, whether:

(i) there are other public interest considerations apart from those identified by the plaintiff in this matter, such as the public interest in not impeding the rehabilitation of offenders; and

(ii) the decision of the Court of Appeal in Secretary, Department of Justice v LMB and PMBY[3] (‘LMB’) is distinguishable from the current proceeding, as submitted by the plaintiff.

[3]

One preliminary matter requires consideration before turning to the issues on the application and the appeal. At the hearing on 17 November 2015, Lansdowne AsJ refused the defendant’s application for a proceeding suppression order, on the basis that the defendant had not established any of the grounds in s 18(1)(a), (c) or (d) of the Open Courts Act 2013 (Vic). However, she did order that, subject to any direction of the trial judge to the contrary, any transcript of the proceeding be retained on the confidential file.

I will make an order to the contrary. Given the nature of the proceeding, being an appeal on a question of law, there was only a fleeting reference to the nature of the offences committed by the defendant in the oral submissions made by counsel for the plaintiff. It is necessary to make some reference to the nature of the offences, being possession of child pornography, for the purpose of explaining my reasons for the outcome of the appeal, but it is not necessary to descend into any great detail about the offences. Further, I note the Open Courts Act 2013 (Vic) states its objective as being:

To strengthen and promote the principles to open justice and free communication of information, there is a presumption in favour of disclosure of information to which a court or tribunal must have regard in determining whether to make a suppression order.[4]

[4]Open Courts Act 2013 (Vic) s 4.

Given that one of the main issues in this appeal is what is meant by and what needs to be taken into account when determining what is in the public interest, in my view, there should be no restrictions on public access to the transcript of the hearing, and I will make orders to that effect.

The application before VCAT

The background to the defendant’s application to VCAT (‘VCAT proceeding’) is detailed in the Senior Member’s reasons and the affidavit filed on behalf of the plaintiff in support of the application for leave to appeal, and is summarised further below:

(a) as at July 2014, the defendant held a Private Security Individual Operator licence under the Act (‘licence’), which authorised him to undertake the roles of crowd controller and (unarmed) security guard;

(b) on 29 July 2014, the defendant was convicted by the Frankston Magistrates’ Court of knowingly possessing child pornography. He was placed on the Sex Offender Register with a reporting period of eight years, and sentenced to a community correction order for eighteen months, with conditions to undertake two hundred hours of community work, undertake a mental health assessment, and to complete sex offender’s program. The defendant’s evidence before the Senior Member was to the effect that he has complied with all of the obligations imposed upon him as a consequence of his conviction;

(c) on 27 August 2014, the plaintiff wrote to the defendant advising that his licence had been suspended, and that a disciplinary inquiry would be held pursuant to s 50 of the Act, and invited the defendant to make a written submission;

(d) on 24 September 2014, the defendant made a written submission for the purposes of the disciplinary inquiry. The defendant’s submission enclosed references from two employers, a report from his treating psychologist, and a report prepared by a forensic psychologist which was provided to the Frankston Magistrates’ Court for sentencing purposes. The defendant relied upon these references and reports in support of his submission that his holding of a licence was not contrary to the public interest, and that he was a fit and proper person to hold a licence. In his submission, the defendant observed that the offence of which he had been convicted was not listed on the Victoria Police website as an offence which would disqualify him from holding a private security licence;

(e) on 12 December 2014, the plaintiff wrote to the defendant advising him of his decision to cancel the licence. The letter made reference to the relevant sections of the Act, stated that the plaintiff considered that it was not in the interests of the public for the defendant to hold a private security licence, advised that the plaintiff did not consider that the defendant met the probity requirements of the Act, advised that the plaintiff considered that the offence of which the defendant had been convicted rendered him unsuitable to hold a licence, and said that ‘police records indicate concern in relation to your mental health and alleged psychiatric condition’;

(f) on or about 26 May 2015, the defendant issued the VCAT proceeding pursuant to s 150 of the Act to review the plaintiff’s decision to cancel the licence; and

(g) on 26 June 2015, Senior Sergeant David Pinner, who had been requested to review the plaintiff’s decision in accordance with the internal processes of Victoria Police, concluded that the decision to cancel the licence was appropriate and reasonable.

Section 150 of the Act provides that a person in the position of the defendant may apply to VCAT to review a decision of the Chief Commissioner to cancel a licence. Section 51(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) provides that:

In exercising its review jurisdiction in respect of a decision, the Tribunal –
(a) has all the functions of the decision-maker; and
(b)has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c)has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

As noted in the commentary under s 51 of the VCAT Act in Pizers Annotated VCAT Act (‘Pizer’),[5] the effect of s 51(1) is that VCAT is said to be ‘standing in the shoes’ of the original decision‑maker, and is subject to the ‘same legislative constraints’ as the decision‑maker.
[5]Jason Pizer QC & Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thompson Reuters, 5^th ed, 2015) [VCAT 51.40].

In the current case, the relevant statutory framework can be summarised as follows:

(a) section 50 of the Act provides that

If the Chief Commissioner is satisfied there are grounds for believing … that the holder of a private security licence, if that holder applied for a new licence, would be refused such a licence … the Chief Commissioner may hold an inquiry into the matter.

(b) section 56 of the Act empowers the Chief Commissioner, after considering all the material available to him or her during a disciplinary hearing, is of the opinion that a ground for holding an inquiry is made out, to do a number of things, including cancel a licence; and

(c) section 25(1) of the Act provides, relevantly, that

The Chief Commissioner must not grant a private security individual operator licence if –
(a)he or she is satisfied that the granting of the licence is not in the public interest; or
(b)he or she is not satisfied that the applicant meets the probity requirements set out in subsection (2) …

(2)For the purposes of subsection (1)(b) the probity requirements are that the person –
(a)is fit and proper; and
…

(e)is not a person in relation to whom –
(i)not more than 10 years have expired since that person was convicted of any offence that in the opinion of the Chief Commissioner would render the person unsuitable to hold a private security licence …

The defendant’s application came on before the Senior Member on 2 September 2015. All of the documents reviewed by the plaintiff and Senior Sergeant Pinner were before the Senior Member pursuant to s 49 of the VCAT Act, along with two further statements from the defendant’s neighbour and a medical practitioner, and a statement by Senior Sergeant Pinner, who attended the hearing, as the plaintiff, the original decision maker, was unable to attend to give evidence.

During the course of his evidence and his exchanges with the Senior Member, the defendant explained that as a cash-in-transit officer, his job involved collecting cash from retail outlets, and taking it to the bank. He also undertook some casual work at a function centre, checking that patrons were over eighteen years of age. The Senior Member queried whether there would be any difficulties with imposing a condition on the licence which prevented the defendant from working in any facilities involving children and people under eighteen. The defendant said he had no difficulties with this, but the plaintiff’s solicitor informed the Senior Member that it is not practical for the Licensing and Regulation Division of Victoria Police (‘LRD’) to monitor compliance with any conditions imposed upon the licence.

The Senior Member questioned the defendant regarding the circumstances of his offending. The defendant gave evidence that he had not viewed all of the material which he was convicted of possessing, and he had not viewed the material which was identified as extreme. He did not consider what he viewed to be child exploitation material at the time he viewed it. He gave evidence about his reporting obligations by reason of him being on the Sex Offender Register.

The defendant, in response to questions from the Senior Member, also gave evidence about how he came to be in possession of the child exploitation material. The defendant had a computer repair business. A number of his customers requested that he wipe their hard drives. His usual procedure was to back up a hard drive before he wiped it, because in the past, he had requests to do so from customers who subsequently had changed their minds. He had a perception that what he described as ‘adult material’ was valuable, in that people paid for it, and therefore he retained it. He would look at the material on customers’ hard drives when business was quiet.

Under questioning from the solicitor for the plaintiff, the defendant gave evidence that there have been no conditions imposed upon his computer or internet access as a result of his convictions. He said that he had previously visited adult websites, and qualified his negative response to a question regarding whether he had previously viewed child pornography by saying that when viewing some of the material on these websites, he would not necessarily have known whether the participants were over 18. He no longer views adult websites in order to ‘avoid complications’.

The defendant agreed that viewing customers’ hard drives did not demonstrate honesty, integrity and trustworthiness, saying it was a lack of judgment on his part, and that the viewing of pornography involving children did not demonstrate integrity, honesty and trustworthiness.

Interposed amongst the evidence and submissions of the defendant was the evidence of Senior Sergeant Pinner. He verified the contents of his statement, which had been tendered in evidence, which stated, in summary, as follows:

(a) he has been a police officer for twenty years, including ten years with specialised investigation units, including, relevantly, units investigating sexual offences and child abuse;

(b) he had been requested to review the plaintiff’s decision after the issue of the VCAT proceeding;

(c) he came to the conclusion that the decision to cancel the defendant’s licence was appropriate and reasonable, because:

(iii) the offence committed by the defendant was of a serious nature, involving unethical and illegal conduct over a period of time;

(iv)the offence involves the exploitation of children, the most vulnerable group in society; and

(v) the defendant’s conduct indicates a lack of sound decision making ability, an essential prerequisite for a private security licence holder;

(d) he had considered whether the LRD had the power to impose relevant enforceable conditions on a private security licence, and concluded that it would not be possible to monitor and limit the defendant’s workplaces and duties to minimise the risk of contact with children; and

(e) at paragraphs 7 to 10 of his statement, Senior Sergeant Pinner stated as follows:

The holders of private security licences hold positions of trust and responsibility and are expected by both LRD and the community at large to abide by high standards of behaviour both on and off duty.
Employers and members of the public have a right to believe that people entrusted with a private security licence have the necessary good character and morals to be trusted to act in accordance with the law in any situation, particularly where the protection of people is involved.

In my opinion, STRAUSS has demonstrated that he prevents [sic] an unnecessary risk to the public, especially children who are amongst the most vulnerable, should he be issued with a Private Security Individual Operators Licence.
Whilst such a risk may be low, LRD cannot realistically manage any such risk. Further, I do not believe that it would be the expectation of the public that LRD should grant a licence in these circumstances, given the nature of the offending and the attending risk to persons.

At the hearing before the Senior Member, Senior Sergeant Pinner gave further details of his experience, and confirmed that he had reviewed the plaintiff’s decision, but he was not the original decision maker. He had not reviewed the material which was the subject of the defendant’s conviction, but he reviewed the statement of the informant, which provided an overview of the circumstances of the offence. When asked to describe the review process and his conclusions, Senior Sergeant Pinner stated as follows:

So at first I looked at the conviction that the applicant was convicted of, and weighed up the seriousness of that offence. I compared that to the reports that he tendered from his doctors, and the recommendations they made and I weighed that against my 20 years as a police officer, my experience, especially in the field of sex crime investigation, and I weighed it up against the community expectation. I also took into the account the ability of Licensing and Regulation of Victoria Police to actually monitor the applicant once he was in a workplace. The whole time, I bore in mind that - - -

The Senior Member questioned whether it was possible for LRD to be informed of where the defendant was going to be employed, for example as a cash-in-transit officer or a nightclub guard, and whether that would make it easier for LRD to monitor the defendant. Senior Sergeant Pinner stated that it would not, because he would not have the ability or power to actually monitor him. In particular, cash-in-transit guards are not always told where they will be on a day to day basis, for security reasons. The defendant interjected that he has told his employers that he cannot be around children.

The Senior Member then asked Senior Sergeant Pinner about the likely risk to the public of the defendant holding a licence, as shown by the following extract from the transcript:

No, just wait. This is not – this is a case of possessing, and even if we assume that he viewed some of it. Now, it’s not a situation of an assault or anything of that nature, which you would also come across. Bearing that in mind, I’m just wondering, would the public be in less danger as a result?‑‑‑Sir, it’s my experience that people possess child pornography for one reason, and one reason only, and that’s to watch it for their own gratification.

Okay, well I understand that?---Yes.

If I accept that, but on the other hand, that is not necessarily, if that’s what he’s done, that’s not going to put a child in the street in danger from Mr Strauss?---I can’t agree with that, sir.

Why?---Because in my experience sir, people start at certain levels and go on to other levels, and as a security guard, it’s much the same as a policeman, we wear a uniform and we’re easily identifiable, and people have an expectation that if something’s going wrong somewhere, and they identify the person in uniform, that their children will approach that person, and that child should be safe. And that is certainly what I expect from my children, and if we were to allow people with serious sexual offences to work in the industry, I don’t think that I would tell my child or any child that they’re safe to approach a security guard. Regardless of where he’s working or what his duties are, he’s still easily identifiable and he needs to measure up to some sort of community expectation. I’ll just say, sir, it’s not a decision that we take lightly, to cancel someone’s livelihood.

The Senior Member put to Senior Sergeant Pinner the statements made in the expert reports relied upon by the defendant, to the effect that the defendant’s risk of re‑offending in a similar manner is estimated to be low to moderate, and the risk of contact offending is estimated to be very low. Senior Sergeant Pinner replied that he would feel more confident if it was non‑existent, and later, he said that the evidence of the defendant’s treating psychologist did not convince him that the defendant was a fit and proper person to hold a security licence.

After this exchange, the solicitor for the plaintiff continued her questioning of Senior Sergeant Pinner, who gave the following evidence:

I think it was, and I think it has left me with little more to ask the senior sergeant. I suppose I would go back to a comment you made about the community expectation in regards to the private security industry; how would you characterise that community expectation?---I think the community’s expectation that the people in the position of a security officer is trustworthy and is able to uphold the responsibilities of that position, and they certainly expect that person to safeguard or look after their safety, not impinge upon it in any way.

The defendant cross-examined Senior Sergeant Pinner regarding the following matters:

(a) the list of offences on the Victoria Police website which would disqualify someone from holding a licence;

(b) his experience in dealing with serious sex offenders, in particular, whether the majority of serious sex offenders would be contact offenders as well; and

(c) whether Senior Sergeant Pinner’s primary concern was that he has seen people to progress from possession (of child pornography) to contact offending.

Senior Sergeant Pinner gave evidence that the list referred to by the defendant was an old list, and not conclusive. He gave evidence that the Sexual Offences Squad had a unit set up to monitor child pornography, which deals with dozens of people each year, and possession of child pornography is seen as a serious offence by the Victoria Police. He agreed that his primary concern, based upon his experience, is the progression from possession to ‘contact offending’.

In her submissions to the Senior Member, the solicitor for the plaintiff relied upon the decision of Judge Misso (sitting as a Vice Presidential member at VCAT) in the matter of Azadzoi v Chief Commissioner of Police (Occupational and Business Regulation)[6] (‘Azadzoi’) where his Honour set out the characteristics necessary for the holder of a private security licence, stating that they ‘must include at least the basic level of honesty, integrity and trustworthiness’.[7] Upon questioning from the Senior Member, she explained that the criminal conviction that his Honour was concerned with in Azadzoi was an offence of dishonesty and lying to police. The Senior Member responded:

Well, that goes directly to the work that private security officers do, doesn’t it?

[6][2010] VCAT 1329.

[7]Azadzoi [29].

The solicitor for the plaintiff submitted that the offending by the defendant was sufficiently grave for a reasonably minded member of the public to find that it is not in the public interest for the applicant to hold a private security licence. Further, when considering the public interest, not only should the safety of the public be taken into account, but also the right of the public to be reassured of the integrity of the private security industry, and those who work within it. As for public safety, she submitted that given the defendant’s lack of integrity and poor decision making, albeit mitigated by subsequent treatment and counselling, there is a risk of re-offending in a similar manner. She submitted that the regulator must err on the side of caution, particularly given that private security guards are looked upon as figures of authority. Finally, the solicitor for the plaintiff submitted that it is the right of the public to be assured that the integrity of the private security industry is protected and promoted by the regulators, and that holders of private security licences are held to high standards of probity.

The defendant submitted, in summary, as follows:

(a) the offence he was convicted of was a non-contact offence, and that he had submitted evidence to show that he had a low risk of re-offending;

(b) the work he had done in the past, and that he would like to undertake in the future does not involve under 18s or require a working with children check;

(c) in his work as a cash-in-transit officer, he goes in and out of shopping centres, as he is permitted to do so anyway;

(d) he has obligations under the Sex Offender Register to report any non-incidental contact with children, and he is prohibited from engaging in any child related employment; and

(e) he did not wish to make light of his offence, but he does not believe that he is a risk of contact offending, or re-offending.

The Senior Member’s decision and reasons

At the conclusion of the hearing, the Senior Member ordered, among other things, that the decision of the plaintiff to cancel the defendant’s licence be set aside. He ordered that the licence be suspended for a period of twelve months, with the suspension backdated to a date a year prior to the hearing. He ordered that there be a condition imposed upon the licence that the defendant only work as a security guard in ‘cash-in-transit’, and as a security guard at hotels, clubs, functions, retail stores and like venues’. He also ordered that the defendant be reprimanded.

In his written reasons delivered on 16 September 2016 (‘reasons’) which were largely consistent with the oral reasons he delivered at the conclusion of the hearing, the Senior Member:

(a) summarised the factual background and the defendant’s offending, the suspension of the licence, and the application, noting:

The circumstances of these offences are very disturbing and serious.

(b) provided an overview of the legislative framework governing the decision to grant, refuse, and cancel a licence;

(c) noted that s 25(1)(a) of the Act mandates that he must refuse the licence if the granting of the licence is not in the public interest. He referred to the decision of Buchanan JA in Cichello v Estate Agents Licensing Authority (‘Cichello’),[8] where his Honour stated that, in determining whether it was not contrary to the public interest to allow a real estate agent who had committed a violent offence to retain his licence, the starting point must be the circumstances of the offence;
[8][1998] 4 VR 477.

(d) noted that there was no violent element in the defendant’s offending, and referred to the report of the psychologist who prepared a report for the Frankston Magistrates’ Court, where she stated:

The Applicant [sic] risk of future offending in a similar manner is estimated to be low to moderate risk of re‑offending. His risk of contact offending is estimated to be very low;

(e) he described the nature of the work carried out by the defendant when he was employed as a private security guard, and stated:

The Applicant acting as a security guard, in this particular function, would not be contrary to the public interest. I take into account that in order to obtain the illicit material, he did, while working as a computer repair person, read his client’s private hard disks, which he admitted in cross-examination. It was a breach of integrity and honesty. However, in my view, that is a different type of integrity and honesty to the type of work that the Applicant would be doing as a security guard.

(f) he noted the restrictions upon the defendant’s employment by reason of him being on the Sex Offender Register, and observed that he would be unlikely to receive a Working With Children Certificate;

(g) he referred to the probity requirements of s 25(b)(2) of the Act, the first being the question of whether the defendant was a fit and proper person to hold a licence. He referred to the following statement of Nathan J in Director of Consumer Affairs v Jay Jacq Pty Ltd (‘Jay Jacq’):[9]
[9](Unreported, Supreme Court of Victoria, Nathan J, 4 May 1988, 11a.)

[I]n considering the issue of fitness or propriety of an applicant for a licence, the nature, number and date of those convictions must be relevant considerations to be borne in mind;

(h) he noted that the defendant had only one conviction, albeit for a large amount of material. He noted that no matter what work the defendant does, it would be impossible for him not to come into contact in some way with a person under the age of eighteen, but bearing in mind the type of work the defendant has done in the past, and the opinion of Ms Matthews (the court appointed forensic psychologist) and his treating psychologists, ‘it is unlikely that there would be anything unfit or improper about the Applicant in performing that work’; and

(i) in regard to the question of whether the defendant’s conviction rendered the defendant unsuitable to hold a security licence, the Senior Member stated as follows:

The offence that I have stated is certainly very serious and, in obtaining the pornographic material, there was some breach of integrity and honesty by the Applicant. However, I note that the Applicant has a considerable amount of references from various people that he has had contact with. In particular, a reference was given by a Ms James, who was involved in a building, where the Applicant was employed as a caretaker. This was before the Applicant worked as a private security agent. She speaks in glowing terms of the Applicant’s trustworthiness and she mentions that she is aware of the Applicant’s problems; that is, the convictions which he has sustained. She states:
I have always found the Applicant to be a good character. He is well centred, a good communicator, trustworthy, reliable and not easily angered or frustrated. He has been a good father to his children, keeping in regular contact and engaging in suitable activities.
Later on, she states:
I know the Applicant has more than once de-escalated arguments and come to the aid of another under attack, and I have never seen, nor heard from others that the Applicant acting in a way that would be anyway be considered untoward.
A reference has also been given by Australia Wide Security Service, a Lisa Probost, and she also says that the Applicant was a valuable employee who is trustworthy and able to complete work in an effective manner. I take all that into account.
Thus in my view, I have come to the conclusion that so long as the work that the Applicant can do, as a private security agent, is limited to the work which I have already referred to, he is a suitable person to do that work.
I note that, at the present time, he is not charged with any offence.
The offence that he has been found guilty of is a very serious offence and that is something I take into account. The Applicant also made reference to the fact, which was supported by Senior Constable Pinner, that there were a number of matters on the police website where someone if they were convicted of an offence were not entitled to be licensed as a private investigator. The Applicant’s conviction did not come into that category. Further, I note the Applicant has not been convicted of a disqualifying offence in s 13 of the Act.

Accordingly, the Senior Member considered that the defendant should be permitted to retain his licence, subject to certain conditions. He acknowledged the difficulties involved in policing and enforcing these conditions, but stated that, in his view, the defendant would know the consequences of breaching those conditions, and stated that he was satisfied that is not likely to happen. The Senior Member also stated that one of the matters that he was required to take into account was the question of general deterrence, but that in his view, the orders he would make, including a reprimand, would deter others in the industry in offending in a like manner. In the final paragraph of his reasons, the Senior Member stated as follows:

In coming to the conclusions which I have, I have concluded that the Applicant has developed an insight into the problems which have caused this matter, and as a consequence, I have taken that insight into account.

The proposed Notice of Appeal and the nature and availability of the relief sought

In his proposed notice of appeal, the plaintiff identifies the following proposed questions of law and grounds of appeal:

Questions of Law

Did the VCAT err in law in its construction of a statutory provision when considering whether it was in the ‘public interest’ to grant the Respondent a private security individual operator licence pursuant to s 25(1)(a) of the Private Security Act 2004 (Vic) (‘the PS Act’) (Question 1)
Did the VCAT take into account irrelevant considerations in considering whether it was not in the ‘public interest’ to grant the Respondent a licence? (Question 2)
Did the VCAT err in law in its construction of a statutory provision when considering whether the Respondent was a ‘fit and proper person’ pursuant to s 25(2)(a) of the PS Act? (Question 3)
Alternatively to paragraph 9, if the statute was properly construed, did the VCAT err in law in concluding that the Respondent was a ‘fit and proper person’ in light of its factual findings? (Question 4)
Did the VCAT err in law in concluding that the Respondent’s offence did not ‘render [him] unsuitable to hold a private security licence’ pursuant to s 25(2)(3)(i) of the PS Act, properly construed, in light of its factual findings? (Question 5)
Alternatively to paragraphs 7 to 11, did the Tribunal act unreasonably in exercising its discretion to impose a condition on the licence pursuant to s 56(c) of the PS Act that included that the Respondent could work as a ‘security guard at hotels, clubs, functions, retail stores and like venues’? (Question 6)
Grounds of Appeal

In relation to Question 1, the VCAT erred in its construction of ‘public interest’ under s 25(1)(a) of the PS Act in focusing on the risk and detriment posed by the Appellant to the public rather than on:
(a)the general public interest in a person such as the Appellant, found guilty of the particular offence he was charged with and of his character, not holding a private security individual operator licence;
(b)the position of trust and authority held by persons with private security individual operator licences and the high standards of behaviour expected by the public; and
(c)the need for public confidence in the character and reputation of private security individual operators.

In relation to Question 2, the VCAT took into account irrelevant considerations in considering the ‘public interest’, namely:
(a)that there had been no violence associated with the Respondent’s offence (at [12]); and
(b)that the Respondent’s breach of integrity and honesty was a ‘different type’ to that required in holding a private security individual operator licence (at [13]).

In relation to Question 3, the VCAT erred in its construction of ‘fit and proper person’ under s 25(2)(a) of the PS Act in failing to consider:
(a)the nature of the Respondent’s offence and its impact on public confidence in private security individual operators;
(b)the position of trust and authority the Respondent has as a private security individual operator;
(c)the requirements of good character, reputation and high standards of behaviour, and the public perception of those matters; and
(d)the ends to be served by holding a private security individual operator licence namely of ensuring public peace and safety.

In relation to Questions 4 and 5, in light of the VCAT’s factual findings that:
(a)the nature of the Respondent’s offence was very disturbing and serious and involved viewing images involving adult/child penetration;

(b)there was some breach of integrity and honesty in the Respondent’s offence; and
(c)it was impossible for the Respondent to not in some way come into contact with a person under the age of 18 in the course of performing employment as a private security individual operator;
Properly construed, the Respondent:
(d)was not a ‘fit and proper person’; and/or
(e)had committed an offence in the previous 10 years that rendered him ‘unsuitable to hold a private security licence’ pursuant to s 25(2)(e)(i) of the PS Act.

In relation to Question 6, it was unreasonable for the Tribunal to impose a condition on the licence pursuant to s 56(c) of the PS Act that included that the Respondent could work as a ‘security guard at hotels, clubs, functions, retail stores and the like venues’ in the circumstances that the Respondent cannot work in any establishment involving children. In those circumstances, the VCAT should have limited the order to working at over 18 year old only venues.

The plaintiff sought the following orders:

(a)Pursuant to s 148(7) of the VCAT Act, paragraphs 2 to 5 of the orders made on 2 September 2015 in VCAT proceeding number Z260/2015 be set aside.
(b)A declaration that the decision of the Appellant to cancel the private security individual operator licence of the Respondent pursuant to s 56(f) of the PS Act dated 12 December 2014 remains effective.
(c)In the alternative to paragraph (b), VCAT proceeding number Z260/2015 be remitted to a differently constituted Tribunal pursuant to s 148(7)(c) of the VCAT Act to be heard and decided again in accordance with law.
(d)In the further alternative to paragraphs (a) to (c), that paragraph 4 of the orders made on 2 September 2015 be varied to:
That the following conditions be placed on the licence:
(a)The Defendant must provide to his employer prior to commencing any employment a copy of the orders and reasons of this Court; and
(b)Without permission of the Plaintiff the Defendant shall only work as a private security agent at over 18 years old only venues.

Notwithstanding the orders sought in paragraph 32(c) above, it was agreed by all, including counsel in the role of the amicus curiae (‘independent counsel’), that in all of the circumstances, in particular, the defendant’s decision not to participate in the proceeding in this Court, any remitter to VCAT would be impractical. Rather, the task before the Court is to determine whether to allow the Senior Member’s decision to stand, or to reinstate the plaintiff’s original decision.

Another issue concerns the practical utility of this proceeding. At the hearing on 17 November 2015, Lansdowne AsJ granted a stay of the orders made by the Senior Member at the conclusion of the hearing at VCAT, which had the effect that the plaintiff’s cancellation of the defendant’s licence under the Act remained in force. The licence would, in ordinary circumstances, have expired in February 2016, and no application has been made by the defendant to renew the licence. When questioned by me as to whether the application for leave to appeal was not justiciable, on the basis that the question before the Court was arguably a hypothetical question, counsel for the plaintiff submitted that there was practical utility in bringing the proceeding. The plaintiff seeks validation of the original decision to cancel the licence, and guidance from the Court as to how to approach any future application by the defendant, or others in a similar position.

Independent counsel submitted that the plaintiff’s contention that there was utility in the proceeding because the decision could give ‘guidance’ with respect to any future application for a licence was not a proper basis to seek judicial determination. However, he submitted that the Court would not be providing an advisory opinion simply because the licence has lapsed, and the defendant has not sought a renewal of his licence. In the VCAT proceeding, the Senior Member has made a determination which affects the defendant’s record, and, if the defendant made a further application, the state of his record would be a relevant consideration given the terms of s 25 of the Act. I agree.

Applications for leave to appeal and appeals under s 148 of the VCAT Act – relevant principles

Prior to turning to the plaintiff’s (and independent counsel’s) submissions concerning the application, it is appropriate to make some brief observations concerning the role of this Court under s 148 of the VCAT Act. A useful survey of the authorities concerning the scope of s 148 of the VCAT Act can be found in Pizer.[10] In particular (omitting references to specific authorities):
[10]At [VCAT.148.40].

(a) an appeal under s 148 involves an exercise of original jurisdiction in the nature of judicial review;

(b) s 148 does not confer a general appellate function upon the Court, or provide an opportunity for a rehearing on the merits;

(c) it is not the Court’s function to determine whether the VCAT made the ‘correct or preferable’ decision; and

(d) as stated in Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd,[11] the right of appeal conferred by s 148 is of a limited nature only, as follows:

Parliament, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 148, has disclosed an intention to limit the role of the Court on an appeal from the Tribunal and to limit the capacity of the Court to re‑determine facts or re‑exercise discretions. The legislative purpose of s 148 is to discourage parties from challenging the correctness of a decision of VCAT, except where legal error is demonstrable. An appeal before the Court solely by way `of judicial review for the Court to correct errors of law by the Tribunal but not to examine the record of the Tribunal to determine whether some different decision could have been made:
[11][2010] VSC 608 at [9].

Summary of plaintiff’s submissions

While the questions of law and grounds of appeal set out in the draft notice of appeal are extensive, the gravamen of the plaintiff’s complaint is that the Senior Member erred in his construction of the public interest

by only focussing on the risk of harm posed by [the defendant] and failing to consider general public confidence in the good character of private security agents.

In his written submissions, the plaintiff observed, uncontroversially, that:

The ‘public interest’ is incapable of precise definition but, when used in legislation, requires the consideration of the subject matter, scope and purpose of the relevant Act.

The plaintiff submitted that, having regard to the purposes of the Act, being:

(a) to provide for the licensing and registration of participants in the private security industry; and

(b) to otherwise regulate the private security industry for the purposes of ensuring public safety and peace;

and given the factors that the Chief Commissioner must consider when taking in to account whether to grant a licence include requirements concerning a person’s criminal history and character,

…the VCAT conducted too narrow an inquiry into whether it was contrary to the public interest for the Respondent to hold a PSIO Licence. In other words, it only considered one dimension of the public interest, namely the circumstances of the Respondent’s offending. However, this was not the only factor that should have been considered. Rather, the ‘public interest’ must include consideration of the good character and reputation of those who apply for licences and the public perception of a person, who has committed the offence committed by the Respondent, acting as a private security agent.

The plaintiff relied upon the following statement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond:[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 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.[13]

[12](1990) 170 CLR 321.

[13]Ibid 380 [36].

The plaintiff’s written submissions went on to say as follows (omitting citations):

In light of the scope, subject-matter and purpose of the PS Act as outlined in paragraphs 21 to 26 above, the VCAT was bound to consider the character and reputation of the Respondent in considering whether he was a fit and proper person. The VCAT erred by focusing on the nature of the offence without considering its impact on public confidence in private security licencees and the character and reputation of the Respondent in light of his offending. The Respondent will be participating in activities designed to promote public safety and peace. His offending was of a serious nature and did not promote public safety. These factors were not considered by the VCAT.
Even if the VCAT properly construed the meaning of ‘fit and proper person’ and whether his offence did not ‘render [him] unsuitable to hold a private security licence’, the VCAT erred in concluding that the Respondent met that criteria in light of its factual findings.
The VCAT found that:
(a)the nature of the Respondent’s offence was very disturbing and serious and involved viewing images involving adult/child penetration;

(b) the offence involved a breach of integrity and honesty; and
(c)it was impossible for the Respondent to not, in some way, come into contact with persons under the age of 18 in his position as a private security agent.

In light of those factual findings, and considering the serious nature of his offending and the purpose of the PS Act to promote public safety and peace as set out above, the Respondent is not a fit and proper person and/or committed an offence that renders him unsuitable to hold the PSIO Licence.

Finally, the plaintiff submitted that the Senior Member’s decision to allow the defendant to work as a private security guard subject to certain conditions was unreasonable, because:

Such a condition increases the likelihood of the Respondent coming into contact with children rather than decreases that likelihood. For example, if the Respondent acted as a security guard at retail stores or shopping centres, there is a high likelihood of children being present and attending those venues. It is arguable that in exercising its discretion to place a condition on the PSIO Licence, the VCAT had no evident or intelligible justification for the particular condition imposed, which is contrary to the aim of minimising the risk of harm to the public, particularly persons under the age of 18 years. In fact, the reason the VCAT seemed to include ‘retail stores’ in the condition was because the Respondent mentioned the type of work he might perform included such work while the VCAT was delivering its oral reasons.

In the course of his oral submissions, counsel for the plaintiff noted that while the plaintiff relied upon each of his proposed grounds of appeal, his main focus was whether the Senior Member erred in law in finding it was in the public interest to reinstate the defendant’s licence, and in determining that the defendant was a fit and proper person to hold a licence. He noted that the Act conferred upon licence holders authority to perform acts and engage in conduct which would otherwise be unlawful for the purpose of ensuing public safety and peace.

Counsel for the plaintiff relied upon the decision of Judge Misso in Azadzoi as representing the proper approach to determining whether to affirm a decision of a delegate of the Chief Commissioner under the Act to cancel a licence on the grounds that it was not in the public interest that the applicant hold a licence, and was not a fit and proper person to hold a licence. It is apparent from the reasons in Azadzoi that his Honour found the applicant’s conduct arising out of a motor vehicle accident quite egregious, in that:

• he was driving a car when he knew he was not permitted to.
•He attempted to evade being identified by leaving the scene of the incident no doubt in the hope that by doing so he would avoid detection and prosecution for driving whilst his licence was under suspension.
•He lied to Sergeant Rich about his identity in order to put Sergeant Rich off the scent, and again avoid detection and prosecution for driving whilst his licence was under suspension.
•The lie persisted when he attended be police station later in the day, and he was only prepared to admit that he had been lying when Sergeant Rich was armed with information which proved his true identity.
•Despite finally being identified as the driver of the car involved in the incident he then wanted Sergeant Rich to conspire with him to tell another lie in order to avail himself of insurance cover.[14]

[14]Azadzoi [15].

It is apparent from his reasons that Judge Misso was unimpressed with the applicant’s attempted justification of his conduct, stating:

The applicant’s conduct is that of a person whose first resort when faced with an allegation of wrongdoing is to lie to avoid the repercussions of that wrongdoing.[15]
It seems to me that at no stage did the applicant stand up and simply accept responsibility for his conduct. The written submissions he made to the relevant officer, the substance of which were repeated before me, were an attempt to excuse his conduct and to deflect blame away from himself.[16]

[15]Ibid [21].

[16]Ibid [23].

Counsel for the plaintiff relied in particular upon the following statements of Judge Misso as being analogous with and applicable to the current case:

Whilst it is unnecessary to exhaustively define precisely what characteristics are called for it must include at least a basic level of honesty, integrity and trustworthiness.
If those characteristics are absent because the holder of a licence has a history consistent with not being of good character, or after obtaining such a licence evidences conduct consistent with not being of good character then that must inevitably impinge upon whether such a licence should be granted or retained.
The applicant behaved in a manner inconsistent with the responsibilities imposed upon a security guard and a crowd control [sic]. His behaviour throughout the incident points to him being prepared to be dishonest by not exchanging names and addresses, fraudulently representing himself to be another person, and then inviting a police officer to conspire with him to potentially defraud an insurance company.
When the conduct of the applicant is measured up against the characteristics expected in a person discharging that responsibilities of a security guard and crowd controller it seems to me that reasonably minded members of the public would not consider it in the public interest to permit him to hold such a licence.[17]
[17]Ibid [29]-[32].

Questions 1 and 2 of the Draft Notice of Appeal

During the course of the first day of the hearing of the application, counsel for the plaintiff, quite properly, drew my attention to the decision of the Court of Appeal in LMB. In LMB, the Court of Appeal considered whether the VCAT was bound, when considering whether it was in the public interest for applicants for Working with Children certificates who had been convicted of sexual offences against children ought to be granted such certificates, to have regard to public confidence in the working with children check system.

In LMB, the Court of Appeal noted that the appeals before it ‘raise sensitive and potentially significant questions concerning the nature of ‘public interest’. The Court summarised the statutory scheme imposed by the Working with Children Act 2005 (Vic) (‘WWC Act’), noting that no express public interest test applies to the decision as to whether to grant or refuse a Working with Children Certificate. However, s 26(3) of the WWC Act, which provides those persons who are aggrieved by a decision to refuse to grant a Working with Children Certificate, states that, subject to s 26(2) of the WWC Act, which directs that VCAT must not make an order for the granting of a certificate unless it is satisfied that granting the certificate would not pose an unjustifiable risk to the safety of children, VCAT may order that a certificate be granted ‘if it is satisfied that, in all the circumstances, it is in the public interest to do so’.

The Court of Appeal identified the question of general principle raised by the submissions of the appellant, the Secretary, Department of Justice, as:

Whether, upon reviews of the type in question, where the Tribunal is positively satisfied that giving the assessment notice would not pose an unjustifiable risk to the safety of children, the Tribunal must or may further consider, when it comes to s 26(3), whether nevertheless the giving of an assessment notice will be contrary to the public interest by reason of its effect upon public confidence in the assessment system.[18]

[18]Ibid [21].

The Court of Appeal noted the Secretary’s submissions to the effect that:

the Tribunal must or may take into account the effect upon public confidence in the assessment system of the giving of an assessment notice, as distinct from simply assessing the objective merits of the application.[19]

[19]Ibid [22].

The Court of Appeal went on to recite the well-known statement of the High Court in ICM Agriculture Pty Ltd v The Commonwealth (‘ICM’) (citations omitted):[20]

The term “in the public interest” is of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[21]

[20](2009) 240 CLR 140, [20].

[21]Ibid [25] citing ICM at 162 [20].

The Court of Appeal then identified the primary public interest to which the WWC Act is addressed, being to protect children from sexual or physical harm, and noted that s 26 of the WWC Act granted the VCAT a discretion. The Court of Appeal then stated as follows (omitting citations):

Whilst it might be possible to demonstrate that the Tribunal erred in law if it took into account an extraneous factor, it will necessarily be difficult to demonstrate in this context that it misdirected itself in respect of the public interest by failing to have regard to factors which are not imperatively relevant to the achievement of the purpose of the Act.
In particular, where the Tribunal, as in the present case, finds that it is positively satisfied that the giving of an assessment notice is in the public interest, it will be difficult to disturb that conclusion because:
(a)a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest;
(b)the public interest includes matters of such potential breadth that it requires a situational definition by the decision maker having regard to the circumstances of the case;
(c)the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification;

(d)Parliament vested in the Tribunal - not the Secretary nor the Minister nor this Court – the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case.

In our view, for reasons we shall come to, a fair reading of the Tribunal’s reasons shows that in neither case did the Tribunal improperly restrict in any way the range of matters potentially relevant to determining what was in the public interest.
Thus, it is not sufficient for the Secretary to hypothesise a factor which might be potentially relevant to the Tribunal’s decision and then show that the Tribunal did not consider it. The Secretary must demonstrate that the Tribunal was bound to have regard to the factor identified by her and that it failed to do so.
In the present cases, it cannot be said that the factor of ‘public confidence in the assessment of persons as suitable for child-related work’ necessarily required consideration once it was concluded that the applicants did not objectively pose an unjustifiable risk to the safety of children.[22]

[22]Ibid [27]-[31].

The Court of Appeal then went on to canvass, in some detail, the relevance of public confidence in the assessment system to the question of ‘public interest’, in particular, the following (omitting citations):

Fifthly, insofar as it was hypothesised that the Tribunal should have regard to likely public perceptions of the exercise of its discretion without any public knowledge of the facts of the case or the reasons of the Tribunal, we do not see how such a consideration could rationally be given weight. Such an approach would require the Tribunal to effectively disregard its own view of the merits of the case upon the evidence for fear of uninformed public sentiment.
Sixthly, in any event, why should the Tribunal be required to assume that the ultimate public reaction to a carefully reasoned, just and objectively sound decision to grant an assessment notice would or might be a negative or critical reaction? On the contrary, it might well be considered that, at least in the long term, public confidence in the system is better served by rational decision making based on objective evidence rather than by avoiding such decision-making out of fear that the public will think ill of it. This is the view which underpins the rule of law generally in our society and we can see no basis for concluding that such an approach would not be open to the Tribunal. Why should the Tribunal effectively ignore the point made by the Attorney in the second reading speech that, because a negative notice will place significant restrictions on a person’s employment and community involvement, a ‘full range of appeal rights’ is provided in order to ‘ensure’ that no-one is unfairly treated.[23]

[23]Ibid [36].

The Court of Appeal in LMB concluded its remarks by stating:

…we do not accept that the Tribunal was required as a matter of law to have regard to the effect of a decision to grant an assessment notice upon public confidence in the assessment system, once it was satisfied not only that the giving of an assessment notice would objectively involve no unjustifiable risk to the safety of children but also that the giving of the notice would otherwise be in the public interest.[24]

[24]Ibid [44].

The Court of Appeal also referred to with approval the statement of Harper JA in Director of Public Transport v XFJ (‘XFJ’)[25] that:

a decision maker’s apprehension of misleading headlines should never stand in the way of decisions otherwise properly reached.[26]

[25][2011] VSCA 302.

[26]Ibid [40] citing XFJ [83].

XFJ concerned an appeal against a decision to grant a taxi licence to a person who had been found not guilty for the killing of his wife by reason of insanity. The relevant question, given that all of the evidence pointed to the applicant not posing a risk to the public, was whether, having otherwise satisfied the criteria for holding a taxi licence, the applicant was ‘suitable in all other respects’ to hold a taxi licence. The Court of Appeal in XFJ emphatically rejected the submissions of the Director of Public Transport to the effect that, because the applicant had killed another person, the Tribunal was required to consider whether the granting of a taxi licence would impair public confidence in the taxi licence accreditation system. Maxwell P stated as follows:

As pointed out earlier, s 130 of the Act explicitly assumes that the provision of ‘safe, reliable and efficient taxi-cab services’ will meet reasonable community expectations. In this way, public confidence will be maintained and improved. The criteria of driver suitability specified in s 169(1) – in particular, the ability to meet the public care objective – are expressly directed at the provision of safe, reliable and efficient services and, hence, the promotion of public confidence. In short, once the decision-maker is satisfied that the applicant is suitable in all relevant respects to provide the service, there is no occasion for separate consideration of public confidence.[27]

[27]XFJ [62].

Counsel for the plaintiff, in his oral submissions, sought to distinguish the current case from the reasoning in LMB, on the basis that:

(a) the public interest in LMB was ‘more narrowly focused on the scheme of the WWC Act in considering the risk of harm that applicants for assessment notices may pose to children’; and

(b) section 25 of the Act ‘should be read in light of broader purposes, of regulating the industry to ensure public safety and peace, rather than specifically focusing on the potential of risk to certain persons in the community’.

Counsel for the plaintiff also distinguished the reasoning of the Court of Appeal in XFJ from the current case, on the basis that in the statutory regime governing the issue of taxi licences, the question of public confidence in the regulatory system was accommodated by the ‘public care’ requirement in the relevant legislation. As no such separate requirement was specified in the Act, the question of public confidence in the system must be relevant consideration in determining whether it was in the public interest for the defendant to hold a licence.

Independent counsel submitted that:

In LMB, the Court of Appeal explained in the clearest of terms how a decision-making power to be exercised “in the public interest” is to be treated. Its explanation is expressed as a high level of generality and is not confined to the statute considered in that case.

He submitted, in response to a query as to whether other public interest considerations might apply to the current case, that it is inappropriate to identify those considerations on appeal on a question of law, save if they are, in the words of the Court of Appeal in LMB:

… imperatively relevant to the achievement of the purpose of the [statute in question].[28]

[28]LMB [27]. See also Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280; [2003] VSC 255, [22].

Independent counsel submitted that the distinction between the statutory scheme in the WWC Act and the provisions of the Act, if there was indeed a material distinction, would be insufficient to render the Court of Appeal’s observations in LMB inapplicable to the current case, given that every statute regulating some activity will have a different focus. Rather, the Court of Appeal’s statements are applicable to ‘public interest’ tests in a variety of circumstances. He submitted that the plaintiff in the current case was contending what was said by the Court of Appeal in LMB to be impermissible: that is, to ‘hypothesise a factor which might be potentially relevant to the Tribunal’s decision and then show that the Tribunal did not consider it’.

Further, independent counsel submitted that the criticism in LMB of the contention that a decision maker must take into account public confidence in systems for accrediting or licensing particular occupations and the like apply with equal force in the current case. Further, the Court of Appeal’s findings are consistent with the authorities to the effect that a Court should not read a tribunal’s reasons with an ‘eye for error’. Further, a failure to articulate all matters that could be relevant to a decision does not, of itself, amount to an error of law.

Finally, in the closing paragraphs of his written outline of submissions, independent counsel submitted as follows:

If public confidence in the system is to be a relevant consideration, the following can be said about the considerations that relevantly affect public confidence:
(a)the Tribunal needs to exercise, and be seen to be exercising, independence from the police decision-makers;
(b)if Parliament had intended that all persons on the Sex Offender Register ought to be disqualified from holding a licence like Mr Strauss’s, Parliament could have legislated accordingly;
(c)offenders ought to be given the opportunity, where appropriate, to rehabilitate and to have that rehabilitation favourably taken into account;
(d)whilst it is inescapable that a disciplinary sanction will have a punitive effect, the paramount consideration for the Tribunal is the protection of the public;[29]
(e)other matters may also be relevant.

It is not apparent from the Tribunal’s reasons that any of these matters were impermissibly excluded from consideration. Indeed, the balancing of the factual matters before the Tribunal, fairly construed, demonstrates the Tribunal’s concern with providing an objectively just outcome that ought to instil confidence in the public that the system operates independently and fairly.

[29]Quinn v Law Institute of Victoria Ltd [2007] VSCA 122, [29]-[31] (Maxwell P).

In his submissions in reply, counsel for the plaintiff reiterated his submissions that the public interest ought to be defined according to the statutory context within which it is used. With regard to the statements of the Court of Appeal in LMB, counsel for the plaintiff submitted as follows:

It follows that the Court considered the meaning of the public interest in the context that:
(a)the purpose of the relevant legislation was to protect children from a risk of physical and sexual harm; and
(b)the meaning of public interest was linked to and limited in meaning by a criterion that a person not be an unjustifiable risk of harm to children.

In this matter, other than providing for licensing and registration of persons in the private security industry, the second major function of the PS Act to regulate the industry has the underlying purpose of ensuring public safety and peace. In other words, the regulation of the private security industry has, as its purpose, to ensure public safety and peace. Accordingly, this must inform the Chief Commissioner’s exercise of powers, particularly pursuant to s 56(f) (whether to cancel a licence following a disciplinary hearing) and s 25 (the circumstances in which the Chief Commissioner must refuse a licence). This is necessarily broader than the purpose of protecting children from the risk of physical and sexual harm.

Counsel for the plaintiff referred to the statements of Santamaria JA in Bare v IBAC[30] to the effect that when considering what is in the public interest, the decision maker is required to:

…step aside from the immediate circumstances that prompted or required the decision to be made and to consider a range of circumstances broader than those that are of immediate consequence to persons directly affected by the decision.[31]

[30][2015] VSCA 197.

[31]Ibid [549].

Counsel for the plaintiff submitted that the Senior Member failed to fulfil the obligation referred to above, stating:

In light of the purpose of ensuring public safety and peace, the VCAT erred in focusing only on the immediate circumstances of the Respondent and whether he posed a risk to persons if he continued to act as a private security guard. The conditions imposed on the licence by the VCAT only went to the issue of risk of harm. The VCAT failed to consider any broader range of circumstances, including those associated with the need to consider the good character and reputation of private security licence holders (as connected to their ability to ensure public safety and peace) and public expectations of those matters. Such consideration was undertaken by Judge Misso in Azadzoi v Chief Commissioner of Police (Occupational and Business Regulation).

I agree that the statements of the Court of Appeal in LMB to the effect that public confidence in the licensing and certification process is not a relevant factor in assessing the ‘public interest’ applies with equal force to the current case, and as such, the Senior Member did not approach the question of what was in the public interest too narrowly. The Court of Appeal was emphatic in LMB (and in XFJ) that public confidence in the system is an outcome of a proper system of regulation, rather than a matter to be taken into account when determining what is in the public interest. The Court of Appeal has made it quite clear that there is a clear distinction between what is ‘of public interest’ and ‘in the public interest’. Accordingly, the plaintiff has been unable to establish that the Senior Member had made an error of law by failing to consider, or refer to, the question of whether public confidence would be impaired if the defendant’s licence was to be reinstated.

Further, in the grounds of appeal concerning question 2 of his draft notice of appeal, the plaintiff contended that the Senior Member took into account irrelevant considerations in considering the public interest, namely:

(a) that there had been no violence associated with the defendant’s offence; and

(b) that the defendant’s breach of integrity and honesty was a ‘different type’ to that required in holding a private security individual operator licence.

It is correct that the Senior Member in his reasons referred to these matters as being relevant to whether reinstating the licence was in the public interest, even though such considerations might be more directly relevant to the question of whether the defendant was a fit and proper person to hold a licence. It is apparent from his reasons that the Senior Member considered the circumstances of the offending to be relevant to both the question of whether it was in the public interest to reinstate the defendant’s licence, and whether he was a fit and proper person to hold a licence. It was not put that it was impermissible to conflate these factors: rather, it was put that the Senior `Member’s observations regarding the nature and circumstances of the offending demonstrated that he had taken into account irrelevant considerations when determining what was in the public interest.

This submission is difficult to sustain in the light of the decision of Buchanan JA in Cichello, an extract of which was included in the Senior Member’s reasons, as follows:

In determining whether it was satisfied that it was not contrary to the public interest to give permission under s 31(3)(c) the tribunal, in my opinion, was required to take into account the circumstances of the offence. Those circumstances bore directly on the question of risk and detriment to which members of the public were exposed by the appellant conducting the business of a real estate agent. Other factors may also affect the nature and degree of risk of harm to members of the public posed by violent offenders acting as an estate agent: but the starting point must be the circumstances constituting the offence of violence upon which s 14(5)(e) of the Act operates.[32]

[32]Cichello, 483.

It was not contended by the plaintiff that this statement of principle is wrong, or that the current case could be relevantly distinguishable from Cichello. Having regard to Buchanan JA’s remarks in Cichello, it is difficult to see how the matters given consideration by the Senior Member were irrelevant considerations. Similarly, the authority relied upon by both the Senior Member and counsel for the plaintiff, Jay Jacq, makes it clear that when considering the question of whether an offender should retain or recover his licence, the paramount issue is the nature of the offence and the extent to which the conduct engaged in by the offender, if repeated, poses a risk of harm to the public. It is apparent from the reasons that such considerations were at the forefront of the Senior Member’s mind. The plaintiff may disagree with the conclusions reached by the Senior Member regarding the severity of the defendant’s offending, and its relationship to the duties of a security guard, but he has not established an error of law on the part of the Senior Member in this regard.

Accordingly, the plaintiff has failed to make out its grounds of appeal in relation to questions 1 and 2 of his draft notice of appeal.

Questions 3 and 4 of the Draft Notice of Appeal

The Act also imposes an obligation upon the Commissioner to determine whether an applicant is a ‘fit and proper person’ to hold a licence. The WWC Act does not include an equivalent probity requirement, such that the Court of Appeal in LMB was not required to deal with this question. Accordingly, it is necessary to consider whether the Senior Member was in error in construing s 25(2)(a) of the Act when considering whether the defendant was a fit and proper person to hold a licence, or, if he had properly construed the relevant provision of the Act, he had, given the factual findings he had made, erred in finding that the defendant was a fit and proper person to hold a licence. Similar contentions were made with respect to the question posed by s 25(2)(e)(i) of the Act, being whether the defendant had been convicted of an offence which in the opinion of the Chief Commissioner would render the person unsuitable to hold a licence.

Again, this question was not a matter for consideration by the Court of Appeal in LMB. However, to the extent that the submissions of the plaintiff refer to questions of public perceptions or public confidence as being relevant to the question of whether the defendant was a ‘fit and proper person’ to hold a licence, or whether the offence of which the defendant was convicted rendered him unsuitable to hold a licence, then I consider the observations of the Court of Appeal in LMB are applicable to the current case.

Independent counsel submitted that, by reason of the statements of the Court of Appeal in LMB, I should not follow the approach of Judge Misso in Azadzoi, in that while the result in that case was correct, the reasoning was wrong. I would not go that far. It is apparent from the tone and the contents of his Honour’s reasons that the reference in the reasons to ‘reasonably minded members of the public’ may well have been another way of expressing his Honour’s statement to the effect that ‘what is in the public interest is to be determined objectively’. No reference was made to ‘public confidence’ in the system: rather, it is patently clear that his Honour himself considered that the applicant’s conduct was of a nature which rendered him unfit to hold a licence.

In XFJ, the Court of Appeal was required to address a similar, but differently worded probity test, being the question of whether the applicant was ‘suitable in all other respects’ to hold a taxi licence. Once again, the Court of Appeal expressly rejected a contention that the need for there to be public confidence in the taxi drive accreditation system was a relevant factor in determining whether an applicant was ‘suitable in all other respects’ to hold a taxi licence. I see no material difference between the terms ‘fit and proper person’ and ‘suitable in all other respects’ to warrant a departure from the reasoning of the Court of Appeal in XFJ, insofar as it relates to the issue of public confidence and/or expectations.

Given that I have found that the reasoning of the Court of Appeal in LMB and XFJ applies to the current case, the only remaining argument to be considered is whether, given the factual findings made by the Senior Member, it was open to the Senior Member to find that the defendant was a fit and proper person to hold a licence, or has committed an offence which renders him unsuitable to hold a licence. In the absence of the identification of any matter that the Senior Member was ‘imperatively bound’ to take into account, but failed to take into account, such a challenge to the Senior Member’s decision sails uncomfortably close to impermissible merits review.[33]
[33]See Hoe v Manningham City Council [2011] VSC 37 [3].

Counsel for the plaintiff submitted that given the Senior Member’s factual findings in relation to the following:

(a) the serious and disturbing nature of the defendant’s offending;

(b) the offending involved a breach of integrity and honesty; and

(c) it was impossible for the defendant to not come into contact with persons under the age of eighteen in his role as a private security agent;

it was not open to the Senior Member to find anything other than that the defendant was not a fit and proper person to hold a licence, or that he had not committed an offence which rendered him unsuitable to hold a licence.

The plaintiff’s submissions were not cast in these terms, but, given the absence of any constraints upon VCAT in exercising its powers of review under s 150 of the Act, the plaintiff’s submissions must be taken to be contending that the Senior Member’s decision was unreasonable or irrational.

What the plaintiff, in essence, is asking this Court to do, is to make a determination that, given the factual findings made by the Senior Member (about which there is, or cannot be, any dispute), the only option legally open to the Senior Member was to find that the defendant was not a fit and proper person to hold a licence. However, in the absence of a submission or a finding that the Senior Member’s determination was unreasonable, illogical or irrational, the breadth of the language of s 25 of the Act leaves a broad discretion to VCAT (and, of course, the Chief Commissioner) to make a decision according to the circumstances in individual cases, within the framework of the purpose of the Act. While there may be room for debate as to whether the strict standard of unreasonableness in Associated Provincial Picture Houses Pty Ltd v Wednesbury Corporation[34] still applies in Australia,[35] it was not contended, and could not be contended (subject to the final ground of appeal, as discussed below) that the Senior Member’s decision was unreasonable, irrational or illogical. It is only then that the Court can step into the shoes of the original decision maker and form its own view as to the merits of the decision sought to be impugned.
[34][1948] 1KB 223.
[35]See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11.

Indeed, the nature and breadth of the discretion conferred upon VCAT in applications under s 150 of the Act is illustrated by the facts and circumstances, and reasons for decision in the current case, and the decision of Judge Misso in Azadzoi, where his Honour considered the offences with which the applicant was charged, a number of which might be considered in isolation to be relatively minor traffic offences, but, taken as a whole, exhibited a course of conduct which reflected most adversely upon the propriety and fitness of character of the applicant. In the current case, there can be no doubt that the defendant was convicted of a very serious offence. However, the Senior Member was in possession of a substantial volume of evidence regarding the defendant’s conduct and character, including references from employers, other positive character references, expert psychological evidence, and the evidence and concerns of Senior Sergeant Pinner, and had (unlike this Court) the opportunity to hear evidence from and make some assessment of the character of the defendant. That much is clear from the statements of the Senior Member in his reasons that:

…in my view, the Applicant would know the consequences of working in any other form of private security other than the two areas I have mentioned. I am satisfied that it is not likely to happen.

and
In coming to the conclusions which I have, I have concluded that the Applicant has developed an insight into the problems which have caused this matter, and as a consequence, I have taken that insight into account.

Accordingly, the plaintiff has not made out its grounds of appeal with respect to questions 3 and 4 of his draft notice of appeal.

Questions 5 and 6 of the Draft Notice of Appeal

Turning to the question of whether the defendant had been convicted of an offence which rendered him unfit to hold a licence, again, the question is whether, accepting that the offence is a serious offence which involves conduct which is abhorrent to all but a tiny sliver of the community, the fact that the defendant was convicted of possessing child pornography compelled, as a matter of law, the Senior Member to determine that the commission of that offence would render the defendant unfit to hold a licence. Once again, the Act confers upon the Chief Commissioner (and upon review, the VCAT) a broad discretion, within the confines of the purposes of the Act, to determine whether a person’s conviction of an offence which is not a disqualifying offence under the Act, renders a person unfit to hold a licence. Accordingly, the comments I have made in paragraphs 80 and 81 above in respect of the grounds of appeal under question 4 of the plaintiff’s draft Notice of Appeal apply with equal force to this question.

Some guidance as to what might be the type of offence which would render a person unsuitable to hold a licence can be obtained from s 13 of the Act, which specifies what is a disqualifying offence. They include, in summary:

(a) drug trafficking or cultivating narcotic plants in commercial quantities;

(b) offences involving assault or violence against the person;

(c) offences involving dishonesty or theft;

(d) firearms offences;

(e) robbery or armed robbery; and

(f) terrorism related offences.

The nature of these offences, combined with the purpose of the Act, being to ensure public safety and peace, while not confining the range of offences which might be considered to render someone unfit to hold a licence, does suggest that the intent of the legislation is to render ineligible persons who have shown a propensity to threaten persons or property, or national security, and those engaged in commercial activity involving illicit drugs. Again, this is not to downplay the seriousness of the defendant’s offending, but illustrates that the offence of which the defendant was convicted is not one that would, in the absence of consideration of other factors, prima facie render a person unfit to hold a licence. As submitted by independent counsel, it is always open to the legislature to designate an offence of this nature as a disqualifying offence. Further, while the circumstances of the offending, as described by the defendant in his evidence, involved a breach of integrity, insofar as he viewed and retained data on his customers’ hard drives, this conduct was incidental to the offence, and was not a necessary element of the offence, such that it could not be said to be an offence involving dishonesty or theft. Accordingly, the plaintiff has not made out his grounds of appeal with respect to question 5 of his draft notice of appeal.

Finally, and this was put as an alternative ground, the plaintiff contends that it was unreasonable for the Senior Member, in the exercise of his discretion, to reinstate the defendant’s licence, with conditions such as allowing the defendant to work as a cash‑in‑transit officer in retail centres as it means, as a consequence, that the defendant could not avoid coming into contact with persons under the age of eighteen.

I accept that a finding of a decision-maker involving the exercise of a discretion can give rise to an error of law. However, in Bell Corp Victoria Pty Ltd v Stephenson,[36] Ashley J (as he then was) stated that:

an exercise of discretion under s 78(2) would involve an error of law if the Tribunal failed to take into account a matter which it was bound to take into account: or if it took into account an irrelevant matter … or was manifestly unreasonable.[37]

[36](2003) 20 VAR 280; [2003] VSC 255 [36].

[37]See also Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd (1986) 228 CLR 423.

Further, in Pong Property Development Pty Ltd v Strangio,[38] his Honour stated as follows:

The Tribunal, as will now be evident, had conducted many hearings in this matter by 25 November 2004. It accumulated knowledge of the matter before it, quite apart from its own expertise and experience in domestic building disputes, must be plainly acknowledged. Further again, what is being attacked is first the formation of an opinion by the Tribunal, and second the exercise by it of a discretion under s 85(2) of the Act. In each of those connections one should be very reluctant indeed to conclude that a decision was so unreasonable as to be untenable. Still further, while the Tribunal was obliged to give reasons for its decision it is to be remembered that they are the reasons of an administrative tribunal, not a court. It would be wrong to subject them to examination word by word as if with an intention of discerning errors.

[38](2005) VSC 217, [57].

The reasons given by the Senior Member do not articulate in any great detail the reasoning behind imposing the condition upon the licence as he did. While in the ordinary course of applications for, or akin to, judicial review, such as the current case, it is impermissible to go behind the reasons of a tribunal to evaluate whether there has been an error of law, in circumstances where the plaintiff is challenging the validity of the Senior Member’s decision in that regard on the grounds of unreasonableness, I consider it is appropriate to do so.

It is apparent from the transcript of the hearing that the Senior Member, having read the materials, was considering at the outset, without finally determining the matter, imposing a condition upon the licence that he was not to work in any facilities involving children or persons under the age of eighteen. The defendant indicated that he would have no difficulties with the imposition of such a condition, save that some of the retail stores that he would be working with would employ people under eighteen. The Senior Member indicated that his main concerns were venues such as schools and kindergartens.

Later, towards the conclusion of the hearing, there was a further discussion between the Senior Member and the defendant concerning the nature of his work as a cash‑in‑transit officer. At one point the Senior Member expressed concern about using the word ‘children’, presumably meaning that he was concerned about using that word in the term of any condition he imposed upon the licensee. The defendant then explained to the Senior Member the restrictions imposed upon him as a consequence of his conviction, in particular, his obligation to report any non‑incidental contact with children, and the prohibition upon him working at child specific venues, such as schools. It is in this context that the Senior Member’s decision to impose the condition upon the licence in the terms that he did needs to be read.

Accordingly, I reject the submission that the Senior Member, in imposing a condition which permitted the defendant to come into incidental contact with persons under the age of eighteen was unreasonable and/or illogical. Regardless of any debate about the standard of what amounts to ‘unreasonableness’, in circumstances where there is no evidence of any limitation upon the defendant’s ability to attend public shopping centres as a consequence of his conviction, it could not be said that allowing the defendant to visit public shopping centres in order to fulfil his duties as a cash‑in‑transit officer could be unreasonable as to amount to an error of law.

Accordingly, I would allow the application for leave to appeal, and dismiss the appeal, with no order as to costs.

[2017] VSC 8

6 February 2017