Little v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 237

CITATION:	Little -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 237
DIVISION:	General Division
PARTIES:	APPLICANT Geoffrey Bernard William Little RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	013323
HEARING DATES:	28/03/2002
SUBMISSIONS CLOSED:	10/11/2002
DATE OF DECISION:	11/19/2002
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Independent Commission Against Corruption Act 1988 Police Service Act 1990 Security Industry Act 1997
CASES CITED:	Waddell v The Commissioner of Police [2001] NSWADT 112 Clugston v Commissioner of Police [1999] NSWADT 112 Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes & Vale Pty Ltd v The State of New South Wales (No. 2) 93 CLR 127
REPRESENTATION:	APPLICANT E Wasilenia, barrister RESPONDENT S Godwin, barrister
ORDERS:	1. The Commissioner's decision to refuse Mr Little's application for a Class 1A, Class 1B and Class 1C secuirty licence is set aside; 2. In substitution thereof grant Mr Little a Class 1A, Class 1B and Class 1C security licence under the Security Industry Act.

INTRODUCTION

1 On 27 December 2001, Mr Little filed an application for a review of a decision by a Delegate of the Commissioner of Police (“Commissioner”) to refuse his application for a Class 1A, 1B and 1C security licence under the Security Industry Act, 1997 (”the Act).

2 The Tribunal’s jurisdiction to hear Mr Little’s application arises from s.29(1)(a) of the Act and s.38 of the Administrative Decisions Tribunal Act, 1997.

3 Mr Little had lodged an application for a Class 1A, 1B and 1C security licence on 12 April 2001. That application was refused on 21 September 2001. The grounds of refusal were that the Commissioner was satisfied:

(a) that Mr Little had been removed or dismissed from the Police Service of NSW within a period of ten years before the application for the licence was made (s.16(1)(c) of the Act); and

(b) Mr Little was not a fit and proper person to hold the class of licence that he had applied for (s.15(1)(a) of the Act).

4 Having been satisfied of the abovementioned matters the relevant provisions of the Act required the Commissioner to refuse to grant Mr Little’s application.

5 Mr Little was dismissed from the Police Service of NSW in late 1999 by the Commissioner pursuant to an order under s.181D(1) of the Police Service Act, 1990. He had been an officer in the Police Service for 37 years. The grounds of dismissal were that the Commissioner no longer had confidence in Mr Little’s suitability to continue as a police officer, having regard to his competence, integrity, performance and conduct. Mr Little made an application for review of the Commissioner’s decision in the Industrial Relations Commission of NSW pursuant to s.181E of the Police Service Act, 1990. The grounds of review were that the Commissioner’s order of removal was harsh, unreasonable or unjust. Mr Little’s application was heard before Peterson, J, who handed down his decision on 8 March 2001 and dismissed Mr Little’s application. Mr Little appealed this decision.

6 Having received the Commissioner’s refusal of his application for a grant of the security licences, on 10 October 2001, Mr Little sought an internal review of the Commissioner’s decision.

7 On 29 November 2001 the Commissioner’s delegate completed the internal review and confirmed the Commissioner’s original decision and provided reasons for such a decision. The grounds relied on by the Commissioner remained the same.

8 On 29 April 2002, the Full Bench of the Industrial Relations Commission handed down its decision on Mr Little’s appeal from the decision of Peterson, J. The Full Bench upheld Mr Little’s appeal and set aside the decision of Peterson, J and ordered reinstatement of Mr Little on the condition that he conform to certain undertakings. As a consequence Mr Little resigned from the Police Service and was not removed.

9 As a result of the decision of the Full Bench of the Industrial Relations Commission, on 5 June 2002, the Commissioner’s delegate issued revised reasons for the Commissioner’s decision. The revised grounds for refusal of Mr Little’s application for a security licence were that the Commissioner was satisfied that Mr Little:

(a) was not a fit and proper person to hold the class of licence that he had applied for (s.15(1)(a) of the Act); and

(b) the Commissioner was of the opinion that Mr Little was not suitable to hold a licence because he had been involved in corrupt conduct (s.16(3) of the Act).

10 The facts on which the Commissioner relied in making his decision were those that were before the Commissioner when he made and issued his order under s.181D(1) of the Police Service Act, 1990 and the facts underlying an additional finding by the Police Tribunal on 19 March 1991 on a charge of misconduct. The facts in relation to the s.181D(1) order were substantially upheld by Peterson J and the Full Court. The facts relating to the misconduct charge related to Mr Little’s behaviour following an apprehended violence order that had been made against him under Part 15A of the Crimes Act, 1900 (NSW) on 1 March 1991.

LEGISLATION

11 The Security Industry Act, 1997 (“the Act”) makes provision for the licensing and regulation of persons in the security industry. Section 7 of the Act prohibits a person from carrying on a security activity unless that person is the holder of a licence authorising the person to carry on the activity. Contravention of this section constitutes an offence which is punishable by a fine or imprisonment for six months or both.

12 Section 9 makes provision for three classes of licence, a Master licence, a Class 1 licence and a Class 2 licence.

13 Section 11 provides that a Class 1 licence is to be classified into sub-classes. Those sub-classes are set out in s.11(1) as follows:

“11(1)(a) Class 1A – authorises the licensee to patrol, guard, watch or protect property (including the guarding of cash and transit) or to carry on such other activities as may be prescribed by the regulations,
(b) Class 1B – authorises the licensee to act as a bodyguard,
(c) Class 1C – authorises the licensee to act as a crowd controller or bouncer”.

14 Section 8 of the Act expressly provides that a licence does not confer on the licensee any function apart from a function authorised by the licence.

15 Section 15 of the Act sets out specific circumstances in which the Commissioner is required to refuse to grant an application for a licence and other circumstances where the Commissioner may refuse to grant an application for a licence. In so far as is relevant, that section provides as follows:

“15(1) The Commissioner must refuse to grant an application for a licence if the Commission is satisfied that the applicant:
(a) is not a fit and proper person to hold the class of licence sought by the applicant, or
(b) is not of or above the age of 18, or
(c) does not hold the qualifications and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or
(d) is not competent to carry out the security activity to which the proposed licence relates”.

16 No issue has been taken in regard to Mr Little’s qualifications which were obtained by Mr Little in February and March of 2001.

17 Section 16 of the Act prescribes further specified circumstances in which the Commissioner is required to refuse to grant an application for a licence. In this case the relevant provision is s.16(3) which provides as follows:

“The Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct”.

18 The term “corrupt conduct” is not defined in the Act. However, s.7 of the Independent Commission Against Corruption Act, 1988 does contain a definition of the term “corrupt conduct” for the purposes of that Act. That section provides so far as is relevant as follows:

“8. General nature or corrupt conduct:
8(1) Corrupt conduct is:
(a) …
(b) …
(c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or
(d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.
9(1) Despite section 8 , conduct does not amount to corrupt conduct unless it could constitute or involve:
(a) a criminal offence, or
(b) a disciplinary offence, or
(c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official,
(d) …
(2) It does not matter that proceedings or action for such an offence can no longer be brought or continued, or that action for such dismissal, dispensing or other termination can no longer be taken.
(3) “criminal offence” means a criminal offence under the law of the State or under any other law relevant to the conduct in question (3) “disciplinary offence” includes any misconduct, irregularity, neglect of duty, breach of discipline or other matter that constitutes or may constitute grounds for disciplinary action under any law”.

19 Mr Godwin who appeared on behalf of the Commissioner, tendered into evidence, without objection, the decision of 8 March 2001 of Peterson J and the decision of and 29 April 2002 of the Full Bench of the Industrial Relations Commission of NSW and some additional documentation relating to the July 1992 finding of misconduct by the Police Tribunal.

20 Mr Wasilenia, who appeared on behalf of Mr Little, sought to tender into evidence a bundle of documents. In some instance documents included in this bundle were rejected following objection by Mr Godwin, in others, the documents were admitted but subject to qualification. One such document admitted into evidence was Mr Little’s response to the Commissioner’s s.181D notice.

21 In addition to the documents, which were tendered into evidence, Mr Wasilenia also called Mr Little to give oral evidence and three other witnesses. These witnesses were Mr Crawford, Mr Meadway and Mr O’Connell, each of whom gave evidence about Mr Little’s character.

22 As mentioned above, in making his decision to refuse Mr Little his application for a security licence, the Commissioner relied on the same facts he had relied on in ordering his removal from the Police Service. These the Commissioner argued were substantially upheld by Peterson J and not substantially objected to by Mr Little at the hearing before the Full Bench of the Industrial Relations Commission. These facts concern three different types of alleged misconduct by Mr Little as follows:

(a) Inadequate supervision of staff;
(b) Harassment of fellow female police officers; and
(c) Unauthorised access to the COPS computer system.

23 It is convenient to deal with the evidence in respect of the alleged misconduct, including the alleged breach of an AVO.

Supervision of staff

24 At paragraph 11 of the judgment of Peterson, J he states the following in respect of Mr Little’s supervisory abilities:

“The evidence on the matter of supervision satisfies me that the applicant had serious and repeated difficulties with the supervision of staff under him such that I would not order his reinstatement into a supervisory position, were there any other course available, without appropriate remediation…”

25 According to the s.181D(1) notice of the Commissioner he relied on the following incidents in respect of Mr Little’s supervisory capacity:

“(1) …
(4) On 1 June 1993, you were found to be negligent in your duty, in that you failed to maintain strict vigilance against escorting a prisoner.
(5) …
(6) On 24 June 1994, a meeting was held in relation to concerns raised at North Sydney Police Station regarding your competence as a supervisor. These concerns resulted in a complaint being initiated and as a result you were removed from your duties as a shift supervisor.
(7) …
(8) Between 20 October and 24 November 1995, whilst working at the Mosman Patrol on supervisory duties, five incidents were identified by your work colleagues as being of concern with regard to your approach to officer safety and your lack of knowledge or disregard for Police procedure”.

26 The Commissioner’s findings in respect of these incidents are to be found at pages 7 to 9 of the judgment of Peterson, J.

27 Mr Little in his oral evidence before the Tribunal gave his explanation of the allegations in which he did not deny that the incidents occurred but explained that they had occurred not entirely as a result of his misconduct.

28 In respect of Mr Little’s supervisory capacity, in his judgment Peterson, J states at paragraph 25:

“ …I consider the evidence illustrates that the Applicant’s supervisory difficulties were legion. In 1994 he took a position with respect to procedural matters at the North Sydney Police Station which, in effect, put him at odds with the other thirteen supervisors. While this was, of itself, not so much concerned with direct supervision of staff and his relationship with them, it illustrated how his approach to supervision was markedly different from others and helps to explain the fact that he had repeated difficulties over time in his supervision of staff”.

29 At paragraphs 28 and 29 of the judgment his Honour went on to state:

“ …here though, the impression I gained from the giving of the evidence was that the applicant regarded himself as in-step and his critics as out of step on every issue raised. There was only limited indication of any willingness to accept his errors and to move forward from the position; there was also a persistence in arguing the case, sometimes somewhat vociferously, from the witness box. That itself may not be so problematical, were it not for the fact that on so many matters I find the applicant at fault”.
“The poor relationship of the applicant with his staff seems to me to be the root of the difficulties he had at Mosman Station. Each of which was the subject of evidence…. The incidents do reveal a major problem of supervision which even in the context of a disciplined service, reflects an authoritarian rule so strict as to cause a form of rejection of the applicant by the staff, with a concomitant reduction, if not elimination, of the ability to supervise and control… I formed the impression that he did not appreciate the fundamentals of human relationships, that respect must be earned; he seemed to me to have proceeded on the basis that his rank alone was sufficient and yet it palpably was not”.

30 At paragraph 53 Peterson, J indicated that had the Commissioner sought Mr Little’s removal exclusively on his supervisory capacity he would have been inclined to grant Mr Little his review and order reinstatement with an opportunity for the Commissioner to consider retaining or demoting him.

Harassment

31 The following allegations were contained in the Commissioner’s notice in respect of Mr Little’s behaviour towards female work colleagues:

“…
(3) In June 1994, a meeting was held during which four female work colleagues complained that sexual and suggestive comments were made by you towards them. As a result you received counselling from the EEO branch.
(4) …
(5) In September 1995, you disobeyed a direction not to have any form of conduct with four female officers as a result of an internal investigation. You were departmentally charged with disobedience however this was withdrawn due to new management practices that have been adopted by the Service”.

32 In his oral evidence before the Tribunal Mr Little gave evidence along the lines of what was contained in his written response to the Commissioner’s notice. The essence of this evidence was that his conduct had been misinterpreted and that the complaints had arisen as a result of a culture of making complaints against the more prominent officers in the force. He said he was regarded as prominent because of his extensive community work.

33 In regard to these allegations Peterson, J made the following findings at paras 30 and 40 of his judgment:

“…consistently with his approach in the evidence generally, I found his evidence in respect of these
matters quite troubling.
...
Having heard the police officers involved give their evidence of the offence to them caused by the applicant and taking into account his contemporaneous response and his evidence in these proceedings, I can only conclude that the applicant has either no capacity or no willingness to understand the difficulty which his behaviour was causing with female staff”.

34 It is not disputed that Mr Little was interviewed by Detective Inspector Smith on 4 August 1994 in respect of his conduct towards his female colleagues and was directed not to have any form of contact whatsoever with any of the female police officers that had been involved in the investigation. The evidence is that detective inspector Smith asked Mr Little whether he understood this direction to which Mr Little responded “Yes, there is absolutely no likelihood or possibility”.

35 However, shortly after being given this direction Mr Little approached one of the women who complained and a disciplinary charge were laid against Mr Little was charged in respect of the incident. The charge was withdrawn on the day it was to be heard by the Police Tribunal as a view had been taken by the Police Service that the matter would be better managed under the “Employee Management Scheme”. However, no further action was taken until the matter was raised in the Commissioner’s s.181D notice, which was five years after the event.

36 In respect of this conduct, at para 47 of his judgment, Peterson, J states:

“In the normal course one would be inclined to think that this issue was spent and that the behaviour of the Police Service in that regard could be treated as causing the incident to be diminimous, if not condoned” .

37 His Honour, however, goes on to state that in his view, in this case, the fact that Mr Little had been charged in respect of disobeying an order not to approach his female colleagues was relevant conduct to the Commissioner’s decision. In this regard, Peterson J found that he preferred the evidence of the female officers involved to that given by Mr Little.

38 At the hearing before the Tribunal, Mr Little stated that while he continues to believe that his conduct was misinterpreted he had come to realise that his conduct offended others and that he had made a conscious effort to not behave in this manner in future.

Unauthorised Access to COPS

39 In the Commissioner’s s.181D notice to Mr Little, the Commissioner identified unauthorised conduct in respect of Mr Little’s access to the NSW Police Service computer system (“COPS system”) and also his untruthful responses when questioned about these. These allegations were as follows:

“12 Between 7 November 1996 and 27 September 1998, you made four unlawful computer accesses relating to Ms ….. T…. nee C……. in the NSW Police Service computer system.
13 On 27 November 1998, you were untruthful to Superintendent Jacobsen when you stated to him that you did not hand a “smiling policeman” card to a member of the public.
14 On 8 December 1998, you were untruthful to Inspector Woolcott when you stated during a record of interview that you did not recall whether you made any previous access to Ms ….. T…. nee C……. prior to 27/9/98”.

40 The COPS system is an integrated computer system which contains details about most incidents that the NSW police force have been or are involved in together with other relevant information. The system is used by police officers as an investigatory tool for the purpose of any investigation or inquiry they may be involved in.

41 In this case, the alleged unauthorised access related to information Mr Little sought from the NSW Police computer system (“COPS system”) concerning a female with whom Mr Little had had a personal relationship. He initially met her during his official duties and his subsequent personal relationship with her appears to have created considerable difficulties for him.

42 It is not disputed that Mr Little had signed, read and understood a statement of responsibilities in respect of the use of the COPS system, which included the following statement: “access.. is authorised for the performance of duties only. Information is not to be put to any personal use”.

43 There was evidence that the Commissioner had warned officers that departmental charges would be brought for any unauthorised use of the system and in those circumstances where access and release of information was for a corrupt purpose, dismissal action would be taken.

44 The initial incidents of unauthorised access to the COPS system related to Mr Little checking whether police at another police station had served summonses involving Ms T in the Federal or Family Court. The incidents appear to have been in the early part of his relationship with Ms T and Mr Little stated that at the time it was his opinion that his access was being made with the relevant authority as he was merely checking what another station had been requested to do.

45 The final incident occurred in September 1998 after his relationship with Ms T had broken up and related to a visit by Ms T and a friend of hers to the Ashfield police station to complain about Mr Little’s conduct. It would appear that Mr Little arrived before them. Ms T on seeing Mr Little at the station complained and the police officer in charge put them in separate areas and interviewed them separately. In his oral evidence before the Tribunal, Mr Little stated that when he was being interviewed he endeavoured to explain to the police officer that Ms T was a constant complainant and the extent of this could be seen on the COPS system. He stated that he then accessed the system with the consent of the police officer concerned.

46 It would appear that similar evidence was given before Petersen, J who had the benefit of hearing evidence from the police officer concerned and who preferred the evidence of the police officer and not that of Mr Little.

47 Mr Little was charged in respect of the alleged accesses. Details of the nature of those charges were not before the Tribunal. However, it would appear from a letter dated 1 November 1999, from the Director of Public Prosecutions to the Assistant Commissioner, and tendered into evidence by Mr Little, that the charges were withdrawn. In that letter the Director of Public Prosecutions advised that there was insufficient evidence to support a prima facie case in respect of the charges that had been laid.

48 In its decision, the Full Bench of the Industrial Relations Commission made the following finding in respect of Mr Little’s conduct at para 82 that: “… In our view, the most significant aspect of these failures was a misuse by the Appellant of the COPS system and his behaviour towards female employees. As was noted, correctly in our view, by Peterson, J, the supervisory failures would generally point to some outcome other than the removal of the police officer”.

Breach of AVO

49 The remaining misconduct relied on by the Commissioner was a finding of misconduct by the Police Tribunal of NSW against Mr Little on 3 June 1992. The misconduct involved a breach of an apprehended violence order (AVO) that a Ms R had sought against Mr Little. It appears from the material filed by the Commissioner that Mr Little had been in a relationship with Ms R, which ended on her initiative in early 1991. Ms R in ending the relationship wished to have no further contact with Mr Little. However, she was not able to convince him of this fact and he continued to contact her in various ways. As a result she sought an AVO against him. A magistrate made the order, which was signed by Mr Little. The order prohibited contact with Ms R, including written contact.

50 Despite the order and Mr Little’s knowledge of its terms, Mr Little wrote numerous letters to Ms R expressing his feelings for her and seeking to re-establish the relationship. In September 1991, Mrs R wrote to the Commissioner seeking assistance to stop Mr Little corresponding with her.

51 The matter was investigated by the Police Service and Mr Little was charge with misconduct. Mr Little initially denied the charged but ultimately pleaded guilty and the Tribunal remitted the matter to the Commissioner for penalty decision. No penalty was ever imposed.

52 In his evidence before the Tribunal, Mr Little stated that in relation to the allegations, it was he and not Ms R who was the victim. He stated he had initially sought an AVO against Ms R and her response was to seek the AVO against him. He then consented to her AVO and withdrew his application. In his response to the Commissioner’s s.181 Notice he stated that his contravention was not wilful.

Character Evidence

53 The following is a summary of the evidence given by those witnesses called on behalf of Mr Little to give evidence of his character.

(a) Mr L. Crawford – who has been a solicitor since 1996. Prior to this he was a police officer for 17 years in the prosecuting section. It was while he was in the prosecuting section that he met Mr Little and worked with him. Since leaving the Police Service he has retained contact with Mr Little. He stated that in his experience Mr Little was not a violent person and was always honest. He described him as a “person who rides the white charger and who sometimes comes a gutser because of this”.
(b) Mr Meadway – met Mr Little when he was a police cadet and he has retained contact with him since then. Mr Meadway left the Police Service in 1970 and following Mr Little’s departure from the Police Service he employed him as a manager with the South’s Bowling Club. He works 10-12 hours per day and he has never received any complaints from staff about Mr Little’s behaviour. Instead Mr Little is seen as an enthusiastic manager.
(c) Mr T . O’Connell – met Mr Little in 1995 when he was approached by the Police Association in relation to a directive given to Mr Little in respect of his promotion of the “smiling policeman”. This was a title given to Mr Little by a journalist and which he actively promoted thereafter. Mr O’Connell stated that in his dealings with Mr Little he has never doubted his honesty. Instead he has found him to be far too enthusiastic, which was not appreciated by his fellow officers.

54 Detailed written submissions were provided by the parties after the hearing.

55 Mr Godwin’s submissions, on behalf of the Commissioner, addressed the following issues:

(a) Corrupt conduct – it was submitted that Mr Little’s conduct in relation to his authorised access to the COPS system came within the terms of ss.8 and 9 of the Independent Commission Against Corruption Act, 1988 . It was further submitted that the conduct constituted a breach of s.309(3)(e) of the Crimes Act, 1900 even though Mr Little had never been charged in respect thereof. It was stated that computer data bases are now ubiquitous through the computer world and in performing duties as a security guard the applicant was likely to have access to such data bases.
In his submission, Mr Godwin acknowledged that Mr Little’s conduct differed to that of the applicant in the decision of Waddell v The Commissioner of Police [2001] NSWADT 112 . However, it was submitted that Mr Little’s conduct should nevertheless be regarded as being a serious breach because of his unwillingness to accept that he has acted inappropriately and his general lack of contrition. These factors it was submitted can lead to only one conclusion that in future where Mr Little has a personal need to access information on a database, this would cause him to transgress the legitimate methods for accessing such information.
(b) Fit and proper person – it was submitted that on the evidence before the Tribunal there were three areas in which Mr Little had acted improperly and from which it can be inferred that Mr Little was not a person of good character, honest or trustworthy. These areas were: the unauthorised accessing of the COPS system, breaching an AVO and sexual harassment. In respect of the AVO it was submitted that this demonstrated Mr Little’s willingness to ignore court orders and the fact that no criminal charges were laid did not diminish the significance of the ongoing and persistent breaches that occurred.
In respect of the allegations of harassment it was submitted that notwithstanding the findings against him (eg. findings by Peterson J), Mr Little continues to fail to understand why his behaviour was inappropriate. If granted a licence Mr Little would be authorised to perform duties of crowd control and as a bouncer or bodyguard. This would place him in a position of authority and it was submitted that on the evidence before the Tribunal, it can only conclude that it is probable that Mr Little is likely to again engage in such conduct.

56 Mr Wasilenia’s submissions, on behalf of Mr Little, addressed the following:

(a) Breach of AVO – it was submitted that this conduct should not be regarded as serious – it occurred 11 years ago – it did not involve any violence, threats or intimidation and no criminal charges were laid. It was further submitted that the breach was also not considered of sufficient importance for the Commissioner to raise it in regard to the s.181 Notice.

(b) Sexual harassment – submissions along similar lines were made in respect of the allegations of sexual harassment. It was also submitted that Mr Little now recognises that such conduct may cause females concern and he has modified his behaviour accordingly. Furthermore, there was evidence of Mr Little having been employed in a management role, since his departure from the police service, where no complaints had been made against him.

(c) Unauthorised access to COPS – it was submitted that there was no evidence of Mr Little having passed on the information he had obtained through his unauthorised access. It was also submitted that on the evidence of Mr O’Connell at the time Mr Little made his initial unauthorised access there was some confusion about the difference between access for private purposes as opposed to access for professional purposes. It was also noted that no disciplinary proceedings were taken in respect of the earlier incidents of access and that no criminal charges were pursued in respect of the latter one.

(d) Current circumstances – it was submitted that regard should be had to Mr Little’s current circumstances. He is no longer in a relationship with Ms R or Ms C, and on hindsight Mr Little now states that he would have acted differently today. He has been employed recently in the field of events management and the administration of a licensed sports club, where he has a supervisory role as mentioned above. There have been no complaints made against him in these roles.

(e) Corrupt conduct – it was submitted that Peterson J made no findings of corrupt conduct nor was it a basis for the Commissioner’s s.181D Notice. Even if the Tribunal were to find that the conduct was corrupt conduct, it was submitted that in the exercise of its discretion the Tribunal would find it to have been of minor significance.

REASONS AND DECISION

57 The issues in this case are as follows:

(a) Whether Mr Little’s conduct in respect of his unauthorised access to the COPS computer system amount to corrupt conduct, and is not suitable to hold the licence because of that conduct, in which case the Commissioner is required to refuse his application for a licence (see s.16(3) of the Act); and

(b) Whether Mr Little’s misconduct as a whole is sufficient to determine that he is not a fit and proper person to hold the class of licence he is applying for, in which case the Commissioner is also required to refuse his application for a licence (see s.15(1)(1) of the Act).

(a) Corrupt Conduct

58 In previous cases the Tribunal has held that corrupt conduct under s.16(3) of the Act would at least include any conduct that was defined in the ICAC Act as corrupt conduct (see Waddell v Commissioner of Police, NSW Police Service [2001] NSWADT 112 at para 17). The Tribunal has also held that s. 16(3) of the Act requires the Tribunal to find, first of all, that the person has been involved in corrupt conduct and if such a finding is made, to make a finding whether that person is not suitable to hold a licence because of their corrupt conduct (Waddell at para 64 and Clugston v Commissioner of Police [1999] NSWADT 112).

59 In this case, I find that Mr Little’s conduct in respect of his access to the COPS system to be an unauthorised access in that he clearly sought access for his own personal use and not as part of his duties. However, unlike the applicant in Waddell (supra) there is no evidence that Mr Little passed on the information to a third party or that he intended to do so. Notwithstanding this, the terms of s.8 of the Independent Commission Against Corruption Act (“ICAC Act”) are very wide and in my opinion Mr Little’s conduct involves a breach of public trust and misuse of information (s.8(1)(c) and (d)).

60 The fact that Mr Little’s conduct falls within the terms of s.8 of the ICAC Act does not make it corrupt conduct as s.9 of that Act provides that conduct is not corrupt conduct unless it also constitutes or involves a criminal offence, a disciplinary offence etc.

61 In this case, there was no evidence before the Tribunal of a disciplinary offence in this regard or that Mr Little had been charged in relation thereto.

62 Mr Godwin, in his submissions, argued that the conduct amounted to a breach of s. 309(3)(e) of the Crime Act, 1900, which applied at the time Mr Little engaged in the conduct. That section provided:

“s. 309(3)(e) A person who, without authority, or lawful excuse, intentionally obtains access to a program or data stored in a computer, being a program or data that the person knows or ought reasonably to know relates to:
(a) the personal affairs of a person (whether living or deceased)
is liable to imprisonment for 2 years or a fine of 500 penalty units, or both”.

63 The ICAC, an administrative body is vested with the power to make findings in respect of corrupt conduct of public officials. As explained by the Court of Appeal in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 129-130, a finding that a person has engaged in corrupt conduct is a finding which will have an everlasting effect on the person concerned. In that decision, at 186, Priestly JA, examined the way in which s. 9(1) of the ICAC Act worked. The essence of his Honour’s reasoning is that the ICAC Act enabled the ICAC Commissioner to make findings of fact in respect of conduct that would come within s. 8 of the Act and also a finding that if the facts were accepted by an appropriate tribunal, as proved beyond reasonable doubt, they would constitute a particular criminal offence; and for these reasons the conduct would be corrupt conduct for the purpose of the ICAC Act.

64 In this case there has been no finding of corrupt conduct against Mr Little in regard to his unauthorised COPS system access by the ICAC, nor is there any evidence of him having been the subject of an inquiry by the ICAC. There is also no evidence before the Tribunal that Mr Little was charged in respect of that conduct under s. 309(3)(e) of the Crimes Act 1900. This does not mean that the Tribunal cannot make a finding in this regard based on the material before it. However, in my opinion, for the reasons given by the Court of Appeal in Greiner’s case, the Tribunal should only make such a finding where it has before it evidence on which it could objectively find corrupt conduct as explained by Priestly JA. In my opinion, the evidence in this case is not sufficient to be accepted by an appropriate tribunal to prove beyond reasonable doubt that Mr Little had knowingly committed an offence under s.309(3)(e) of the Crimes Act.

65 Even if I am wrong in this regard, I am of the opinion that Mr Little’s conduct is not such that it makes him unsuitable to hold the security licences for which he has applied. The evidence is that these accesses occurred between 6 and 4 years ago and for which the Commissioner and Director of Public Prosecutions took no action. Furthermore, there is no evidence before the Tribunal that the duties which a class 1A, 1B and 1C security licence holder is authorised to do includes accessing information that relates to the personal affairs of another. As a licensed security officer, Mr Little may be given access to confidential information in so far as it relates to his performance of his duties – for example, information about how to access a secure building or parts of a building etc and the disclosure of such information to unauthorised parties would be a serious breach of his duties. However, on the material before the Tribunal there is no evidence that Mr Little has or is likely to pass on such confidential information.

66 For the reasons stated above I do not find that Mr Little has been involved in corrupt conduct and that he is therefore not suitable to hold the security licence he has applied for.

(b) Fit and proper person

67 It has long been accepted that the expression “fit and proper” person takes its meaning from its legislative context – see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. In Bond’s case Toohey and Gaudron JJ stated at page 380:

“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 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.” (emphasis added).

68 In Hughes & Vale Pty Ltd v The State of New South Wales(No. 2) 93 CLR 127 at 156 Dixon CJ, McTiernan and Webb JJ said, in relation to the “fit and proper person” test that its purpose:

“…is to give the widest scope for judgment and indeed for rejection. “Fit” (or idoeneus) with respect to an office is said to involve three things, honesty, knowledge and ability: “honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and ability as well as estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.” (emphasis added).

69 On the basis of these decisions what must be determined is whether, having regard to the alleged misconduct of Mr Little, the Commissioner or the Tribunal can be satisfied as to Mr Little’s honesty and integrity in performing the tasks that a security industry licence would authorise him to do.

70 In my opinion, the allegations or poor supervision are not relevant. These allegations were specific to his duties as a police officer, which differ significantly to those of a security officer. Furthermore, they give rise to management issues, which was the manner in which they were regarded by the Industrial Relations Commission and do not directly relate to the activities, which are authorised under a security licence.

71 In respect of the alleged breaches of the AVO, this conduct occurred eleven years ago and while disciplinary action was taken, no penalty was imposed. Mr Godwin’s submission that Mr Little’s conduct should be viewed as an indicator of Mr Little’s willingness to breach the law is negated by the fact that it happened such a long time ago and there have been no further incidents of this kind.

72 In respect of the alleged harassment, the Tribunal did not have the benefit of receiving evidence from the relevant female police officers. Again the conduct happened more than six years ago and Mr Little has stated that he has modified his behaviour in this regard. This behaviour was not physically threatening and he has held positions since that time and no complaints have been made.

73 In my opinion, each of the alleged classes of misconduct, including the unauthorised access to the COPS system, are not sufficient on their own to find that Mr Little is not a fit and proper person to be issued with a security industry licence. Nor am I of the opinion that this conduct, when considered together is sufficient to find that Mr Little is not a fit and proper person to hold a security licence. As I have already mentioned, the conduct occurred some years ago, it relates to different types of conduct, which has not been repeated since, and Mr Little has modified his behaviour towards female work colleagues.

74 Finally, while the Tribunal understands the concerns of the Commissioner in regard to Mr Little, the Tribunal notes that the activities, which Mr Little will be authorised to undertake pursuant to a security licence are substantially different to those which he was authorised to do as a police officer. Both require the person to be a person of integrity and to be trusted, however, the activities to which such trust and integrity are attached are not exactly the same.

75 For the reasons set out above, in my opinion the Commissioner’s decision is not the correct and prefers decision and I order:

(1) The Commissioner’s decision to refuse Mr Little’s application for a Class 1A, Class 1B and Class 1C security licence be set aside.

(2) In substitution thereof grant Mr Little a Class 1A, Class 1B and Class 1C security licence under the Security Industry Act.