Marjoribanks v Commissioner of Police, NSW Police Force
[2012] NSWADT 67
•17 April 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Marjoribanks v Commissioner of Police, NSW Police Force [2012] NSWADT 67 Hearing dates: 14 November 2011 Decision date: 17 April 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed.
Catchwords: Security Industry Act - Security industry licence - revocation of licence Legislation Cited: Administrative Decisions Tribunal Act 1997
Security Industry Act 1997
Security Industry Regulation 2007Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380
Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Concut Pty Ltd v Worell (2000) 176 ALR 693
Director of Public Prosecutions v Smith (1991) 1 VR 63
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Ex parte Meagher (1919) 356 WN (NSW) 175 at 179.
Haining v Commissioner of Police [1999] NSWADT 6.
Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43
Oliver v Commissioner of Police, NSW Police [2007] NSW ADT 153
O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130Category: Principal judgment Parties: Troy James Marjoribanks (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: Counsel
M Weightman (Applicant)
Harris Wheeler Lawyers (Applicant)
Bartier Perry (Respondent)
File Number(s): 113160
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Troy Marjoribanks ("the Applicant") was issued with a Class 1ABC security licence under the Security Industry Act 1997 ("the Act") in August 2002. In October 2008 he was issued with a Class 1AF security licence.
A Class 1A licence authorises the licensee to patrol, protect, watch or guard any property while unarmed (and whether while static or mobile, includes control room operations).
A Class IF licence authorises the licensee to patrol, protect, watch or guard approved classes of property while armed (but only under the authority of a licence or permit to use or possess firearms under the Firearms Act 1996).
Background
In September 2010, the Applicant appeared at the Newcastle Local Court in respect of the charge "Possess unauthorised firearm". He was found guilty, without a conviction being recorded, and the matter was dismissed under the provisions of section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. That matter arose out of an incident that took place in the early hours of 14 October 2009 ("the October 2009 incident").
In March 2011, a delegate of the Respondent took the decision to revoke the Applicant's security licence based on the finding of guilt as it was considered that he is not a fit and proper person in the context of the Act and it would not be in the public interest for him to continue to hold a security licence.
The decision to cancel the licence was affirmed on internal review in June 2011. The Applicant has applied to the Tribunal for external review of that decision but only insofar as it relates to the Class 1A licence. A separate determination was made in relation to the Applicant's firearms licence. The Applicant also sought review of that determination but that application has been abandoned.
The October 2009 incident
The parties are in general agreement in regard to the details of the October 2009 incident. It was alleged that the Applicant took a Smith & Wesson 9mm Semi Automatic pistol ("the Smith & Wesson") belonging to his employer, ACPS Securities ("ACPS"), when he was not authorised to do so. The details set out in the relevant Police Facts Sheet provide a reasonable outline of the incident and are as follow:
"The accused is a long time employee of the victim company ACPS Securities. The accused is a licensed security operative and licensed to possess firearms being revolvers which are used within his employment. The father (POTTS) of accused is former Founder/Owner/Director of this company. There is at present civil proceeding between the current Directors of the company and POTTS in relation to control of company. The accused is also named within the company as a beneficiary. On the 14 October 2009 the accused was rostered for work at the security firm ACPS, at the end of his shift the accused attended the secure firearms storage area and returned the revolver he had used during his shift. At this same time the accused removed a Smith & Wesson 9mm Semi Automatic pistol from the locker. The accused has then left work and proceeded to the address of his father (POTTS) and has given him possession of the weapon. The accused had previously been asked by POTTS to retrieve the firearm. POTTS had explained to the accused that this firearm was part of negotiated conditions of his removal from the company but as he had been refused any further entry to the building he was unable to retrieve this. The accused initially refused but on subsequent requests has agreed. The accused believed at the time of taking this firearm that his father (POTTS) had legal right to the firearm. POTTS at this time had a Certificate to Acquire this type of firearm. The accused after removing and delivering the firearm to POTTS has begun to feel that he may have done the wrong thing in the manner in which he has removed the firearm. The firearm was not noticed to be missing until an audit on the 29th October 2009. The accused initially denied removal of the firearm but when Police became involved in November 2009 the accused made full admissions to the taking and transporting of the firearm. The accused was arrested and returned to the Police Station where he was explained his Part 9 Rights in LEPRA. The accused then participated in an ERISP interview in which he made full and frank admissions in relation to his actions and displayed remorse over his actions. The accused was released pending further inquiries. The firearm was given to Police by POTTS on request, but only the main assembly minus the barrel of the firearm remained as the barrel had been sent away to a gun smith for modification. The accused was advised of pending action after further inquiries were to be made. The barrel of the firearm was presented to Police when it was returned to POTTS. The accused attended the Newcastle Police Station on appointment with POTTS as support person. The accused was served with a Field Court Attendance Notice No. 536740 to attend Court on 11th May 2010 in relation to the matter now before the Court. The firearm in question being a Smith & Wesson 9mm Semi Automatic pistol will be subject to an ownership dispute as POTTS now has registration papers for that firearm. This matter may be subject to some civil proceedings in the future."
The issue of the ownership of the Smith & Wesson remains unresolved.
The Applicant remained as a licensed security operative from the time of his arrest until the revocation of his licence in March 2011. There is no suggestion of any inappropriate conduct on his part during that period.
The Applicable Law
The parties are also in general agreement in regard to the approach to be taken by the Tribunal and the applicable legislation.
Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The security industry in NSW is regulated by the Act. A person must not carry on a security activity unless the person is the holder of a licence that authorises the person to carry on the security activity.
Section 15(1)(a) of the Act requires that the Commissioner must refuse to grant the application for a licence if he is satisfied that the applicant is not a fit and proper person to hold the class of licence sought by the applicant.
Section 26(1A) of the Act provides that the Commissioner must revoke a licence where he is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.
Clause 29 of the Security Industry Regulation 2007 ("the Regulation") provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.
Section 7(1) of the Firearms Act provides:
7 Offence of unauthorised possession or use of prohibited firearms or pistols
(1) A person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit.
...
Section 7A(1) of the Firearms Act provides:
7A Offence of unauthorised possession or use of firearms generally
(1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.
...
Section 19(2)(b) of the Firearms Act provides:
19 Conditions of licence
...
(2) Without limiting subsection (1), each licence is subject to the following conditions:
..
(b) the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm,
...
Section 60(1) of the Firearms Act provides:
60 Disposal of firearms by unauthorised persons
(1) A person who comes into possession of a firearm, but is not authorised by or under this Act to possess the firearm, must (except as provided by section 82A) immediately surrender the firearm to a police officer.
...
Clause 72 of the Firearms Regulation 2006 provides:
72 Restrictions on authority conferred by licence issued to security guard
A licence issued to a security guard:
(a) does not authorise the possession of more than one firearm at any one time, and
(b) does not authorise the possession or use of a prohibited pistol or a shotgun (other than a shotgun to which a category A licence applies), unless otherwise authorised by the Commissioner in writing.
Clause 76(1)(a) of the Firearms Regulation provides:
76 Requirements relating to carriage of pistols and shotguns
(1) An armed security guard must comply with the following requirements while carrying a pistol:
(a) the pistol must be carried in a holster worn by the security guard,
...
Clause 78(1) of the Firearms Regulation provides:
78 Employees to return firearms after being on duty
(1) A person who is employed as an armed security guard must, at the end of any period of duty, return any firearm in the person's possession to his or her employer's store of firearms unless the person is authorised to retain possession of the firearm in accordance with clause 79 or 80.
...
Clause 81 of the Firearms Regulation provides:
81 Registers to be kept by security guard employers
(1) A person who employs security guards, or who is self-employed as a security guard, must keep in the approved form:
(a) a register in which are kept particulars of the acquisition of firearms by, the servicing and inspection of firearms on behalf of, and of the disposal of firearms and ammunition by, the person, and
(b) if appropriate, a register in which are kept particulars of the names of each employee who is authorised by a licence to possess a firearm, and of the periods for which each such employee has possession of the firearm.
(2) The person must ensure that each register is maintained in a book of not less than 100 pages in the following manner:
(a) the heading of each page is to be machine printed,
(b) the pages are to be bound in a manner that will prevent any page being readily removed,
(c) each page is to be machine numbered consecutively,
(d) entries are to be made in black or blue ink and any alteration to an entry must be made by interlineation or striking out and not by erasure,
(e) no page is to be extracted.
...
The internal review decision reasoning
In the Statement of Reasons provided in relation to the refusal of the internal review application, the Commissioner's delegate stated, in part:
"11.The Security Industry Act 1997 was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard.
12.When considering an individual's suitability to hold a licence under the Act, I formed the view that any decision should be made on the basis that the legislation has quite clearly been enacted to exclude from the industry those persons not considered to be of fit and proper character to hold a licence. In addition, the Act also provides for exclusion of those persons where it is considered that it would be contrary to the public interest for a licence to be held. In this respect, incidents involving holders of a security licence are continuously monitored to maintain strict licensing requirements and identify persons who fail to meet the criteria and subsequently revoking such licences.
13. In reviewing this matter I have taken into account the details of the offence committed by Mr. Marjoribanks which led to his finding of guilt of "Possess unauthorised firearm". These details are described verbatim from the relevant Police Facts Sheet as follow:
... (see reference to the Police Facts Sheet above)
14.It is my submission that Mr. Marjoribanks did not have the authority to remove [the Smith & Wesson] from the safe of his employer. By his own admission Mr. Marjoribanks knew that what he was doing was wrong and in my opinion this shows intention and a clear breach of the trust placed on him by his employer and his actions are in total disagreement of what is required of a security officer and that is amongst other things to 'protect property'. Mr. Marjoribanks may argue that all he was doing was returning [the Smith & Wesson] to Mr. Potts, its alleged owner; to this I would then ask why did he do this at 2.00 am and in a way that clearly shows Mr. Marjoribanks was trying to avoid being seen by concealing his actions from the CCTV, placing [the Smith & Wesson] under his jacket and then delivering it to Mr. Potts on the side of the road in the early hours of the morning? These actions raise serious concerns as to whether he is a fit and proper person to hold a security licence.
15.The concept of 'fit and proper' includes a person's moral integrity and rectitude of character so that they can be trusted by the public to hold the relevant licence'. Generally, the security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe ... In terms of a scheme licensing security guards, good character is a vital feature of the inherent qualifications for much of the work involved ...
It is my view that Mr. Marjoribanks actions demonstrate a course of conduct which sheds a negative light on his character, in that they imply a lack of respect for the law. His actions disagree with the security activities he is licensed for and the Directorate takes very seriously the position of trust afforded licence holders, by not only the Police Force, but the public of NSW in general.
16.Regarding the issue of 'fit and proper', the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of likely future conduct) or reputation (because it provides an 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. [see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380]
17.Having considered the above mentioned offence and in the context of the Security Industry Act 1997, I find that Mr. Marjoribanks is not of fit and proper character to hold a security licence. In this regard, I have found that the provisions of Section 26(1A) and Section 15(1)(a) of the Act apply.
18.In respect of the term, 'public interest', "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals." [see Director of Public Prosecutions v Smith (1991) 1 VR 63]
19.It is my understanding that the authority conferred upon the holder of a security licence is granted by the Commissioner of Police with the clear expectation that the licensee utilises that authority for the good order of society and for the well being of its members or 'in the public interest'.
20.Therefore, I consider that the need for Mr. Marjoribanks to hold a security licence at this time is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 provides:
"The purpose of the reference to 'public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation".
21.Further, public interest in the context of Clause 29 of the Regulation requires paramount consideration be given to public safety. I have weighed these factors against Mr. Marjoribanks' need to hold a security licence and having considered the aforementioned, and with a focus upon public safety, I am not satisfied that it would be in the interest of the public for Mr. Marjoribanks to hold a security licence at this time.
22.In conclusion, after giving due consideration to your submission I am satisfied that the grounds under which Mr. Marjoribanks' security licence was revoked clearly fall within the provisions of Section 26(1A), Section 15(1)(a) of the Act and Clause 29 of the Regulation; therefore I affirm the decision of the delegate of the Commissioner to revoke his security licence."
Material before Tribunal
The Applicant has filed a number of statements in support of his application. Much of his material also relates to an application by Mr. Kevin Potts, which was initially to be heard at the same time as this matter. Mr. Potts is no longer pursuing his application and accordingly material that was filed in both matters that was specifically relevant to Mr. Potts' application is not relied on in these proceedings. The Applicant relies on his own statement dated 29 May 2011 and a letter dated 30 May 2011 from Mr. Stephen Smith, Great Lakes Area Manager of the NSW National Parks and Wildlife Service ("NPWS"). The other material filed on behalf of the Applicant includes a statement of Ms Lynne Philp dated 30 May 2011; statement of Mr. Potts dated 29 May 2011; statement of Mr. Adam Horsley dated 29 May 2011; statement of Mr. Mark Lyons dated 29 May 2011; statement of Mr. Greg Ford dated 29 May 2011; statement of Mr. Raymond Brown dated 29 May 2011; statement of Mr. Barry Sutton dated 29 May 2011; statement of Mr. George Papanicolaou dated 29 may 2011; statement of Mr. Vernon Wakeman dated 29 May 2011; statement of Mr. Anthony Lantry dated 29 May 2011; and a statement of Mr. Warren Howard dated 29 May 2011.
The Applicant gave evidence at the hearing and was cross-examined. Mr. Smith also gave evidence and was cross-examined.
As required by section 58 of the ADT Act, the Respondent has lodged a copy of all relevant material in its possession. In addition to the Departmental file, the Respondent also relies on an affidavit of Mr. Stuart Mackaway dated 20 June 2011 and a statement of Mr. Lawrence Campbell dated 28 June 2011. The affidavit and statement primarily address issues that are not in dispute.
Each of the parties filed written submissions in support of their case.
The Respondent's case
In addition to the reasoning set out in the internal review determination referred to above, Mr. Mattson has also provided detailed submissions on both the relevant legal principles and the relevance of the events that lead to the Court findings against the Applicant.
Mr. Mattson submits that the undisputed facts support findings that the Applicant has failed to comply with a litany of provisions in the firearms legislation. He contends that the Applicant did not comply with sections 7(1), 7A(1), 19(2)(b) and 60(1) of the Firearms Act as well as clauses 72(a), 72(b), 76(1)(a), 78(1) and 81(2) of the Firearms Regulation.
He submits that the Applicant was not accredited to have in his possession a semi-automatic pistol. At about 2am on 14 October 2009, the Applicant was in possession of more than one firearm one of which was a "prohibited pistol" as defined by section 4C(1)(b) of the Firearms Act. The Applicant has also admitted to carrying the Smith & Wesson in his jacket, instead of in a holster as prescribed by the Firearms Regulation.
Mr. Mattson also submits that the Applicant placed the Smith & Wesson in his jacket to avoid the directors of the business knowing what he was doing and that this concealment of his actions was a breach of the duty of good faith and fidelity owed by the Applicant to his employer. He relies on the decision in Concut Pty Ltd v Worell (2000) 176 ALR 693 to support the submission that all employees owe a duty of good faith and fidelity to their employer to act honestly and in the best interests of their employer. Kirby J said:
"The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust."
Mr. Mattson contends that the Applicant was in possession of a prohibited pistol in breach of licensing restrictions; was in possession of a prohibited pistol that he was not authorised to possess under his category H licence; and he was in possession of a firearm that he was not authorised to possess.
He further submits that when the Applicant gave the Smith & Wesson to Mr. Potts, in breach of section 19(2)(b) of the Firearms Act, he did not take reasonable precautions to ensure the Smith & Wesson did not come into the possession of Mr. Potts; a person not authorised to possess it. This is in non-compliance with section 39(c) of the Firearms Act. Further, he says that the Applicant also had an obligation to surrender the Smith & Wesson to police. His failure to do so is in non-compliance with section 60(1) of the Firearms Act.
At about 1pm on 14 October 2009, the Applicant returned to ACPS' premises and signed in the revolver he was using. He did not return the Smith & Wesson. Mr. Mattson contends that this was in non-compliance with clause 78(1) of the Firearms Regulation.
On 30 October 2009, when asked by his employer whether he knew the whereabouts of the Smith & Wesson, the Applicant denied any knowledge. Mr. Mattson submits that this is most serious because the employer's actions at the time were to secure the location and safety of a missing firearm.
He submits that it is clear that the Applicant is not a fit and proper person who can be trusted to uphold licensing laws in the future. It is submitted that the Applicant is a man who can be easily persuaded to disregard his legal obligations without any regard for the serious consequences of his actions.
Mr. Mattson contends that the Applicant does not, and is not capable of, appreciating the gravity of his actions and the strict and onerous nature of the obligations imposed on him as a licence holder.
Mr. Mattson points to the Applicant's criminal record and argues that the lengthy criminal history and prior conduct particularly with offences involving dishonesty is evidence of his lack of moral integrity and rectitude of character. The Applicant has convictions for varied offences such as driving under the influence, stealing, assault, driving whilst disqualified, offensive language, drug-related offences, and most importantly, larceny. The Applicant has committed four separate larceny offences and has been sentenced to nine months periodic detention for one of those offences.
The Respondent submits that the Applicant's recidivism also evidences his lack of appreciation for the consequences of his actions. Mr. Mattson also points to the Applicant's admission that he lied to his employer about the whereabouts of the Smith & Wesson despite admitting to police that he immediately regretted taking the Smith & Wesson. The Respondent submits that such conduct shows a disregard for ethical behaviour and morality. This is further evidence of a man who struggles with concepts of honesty and integrity. It submits that the Applicant does not possess the necessary fitness and propriety to be a security officer.
The Respondent also relies on the public interest as a ground for this revocation.
The purpose and scope of the legislation is the attainment of a professional and safe security industry. Mr. Mattson also points to the views that I expressed in Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43 at paragraph [18] as supporting his submission that public interest in the context of section 15(3) of the Act requires paramount consideration be given to public safety. He argues that it is critical to public safety that licences are only held by responsible persons who can be trusted to adhere to all of their obligations under the legislation. He says that the Applicant' list of non-compliance with his legislative obligations alone means it is not in the public interest for him to hold a licence.
He further submits that it is not in the public interest to have a person hold a licence if they are capable of persuasion to commit an act in breach of the legislation. It would be expected that a licence holder would enquire and assure themselves of their legislative obligations prior to doing an act that they at least felt was morally wrong. The Applicant made no such enquiries, and demonstrated a lack of care and regard for his obligations under the legislation. Further, Mr. Mattson says that it is not in the public interest to give a licence to a person who dishonestly took a firearm from his employer.
The Applicant was given access to a firearm solely for the purposes of his employment. The Applicant abused the trust placed in him by his employer and took two firearms, in contravention of his legislative obligations and his employer's policies and practices to ensure the safety of the firearms. The Respondent submits that through his actions, the Applicant directly compromised the safety of the community. The dishonesty is magnified when he failed to disclose the whereabouts of the Smith & Wesson when his employer made enquiries of him. His employer was attempting to secure the safety of the missing firearm and the Applicant deliberately prevented this securing of its safety.
The Respondent submits that the public expects that a person in the Applicant's position will take his responsibilities seriously and make every effort to comply with the legislation and act in a manner that will protect public safety. However, the Applicant failed to meet the high standards and professionalism required of a security officer.
It is critical to public safety that only responsible persons, who can be trusted to uphold the law and display honesty in all actions, hold security licences. Mr. Mattson contends that in this case, the public interest demands that the community is not exposed to licence holders who have committed blatant dishonest acts simply to serve their own interests. The Applicant has clearly not learnt from his mistakes and cannot be trusted to have the community's interests at the forefront of his mind. He was granted a security licence despite his previous convictions, yet he failed to take his responsibilities seriously. It is submitted that the public would be rightly concerned if a security licence were issued to a person who had exhibited conduct of the kind in which the Applicant had engaged. Thus, the public interest demands that the Applicant should not be licensed as a security officer.
The Applicant's case
The Applicant relies on his own evidence. He provided a written statement as well as evidence before the Tribunal. His evidence is that he first became employed by ACPS as a security guard in about 2002. At the time he understood Mr. Potts to be an owner and the operations manager of ACPS. He understood that subsequently there was a shareholders dispute and that, as a result of that dispute, Mr. Potts was shut out of the business. He understood that Mr. Potts nevertheless remained employed at ACPS and remained a Director and Owner.
The Applicant gave evidence in relation to the October 2009 incident. He stated that he has always been of the belief that the Smith & Wesson belonged to Mr. Potts. He formed this belief on the basis of what Mr. Potts told him. He has never witnessed any other person to use the Smith & Wesson. He also understands that there is a laser sight that belongs to Mr. Potts that is attached to the Smith & Wesson.
The Applicant stated that it has been his understanding that as at 14 October 2009 Mr. Potts had not been terminated from his employment from ACPS. He was of the belief at all relevant times that not only did the Smith & Wesson belong to Mr. Potts, but that he had the right to have it returned to him. He is not aware of any payments that were made by ACPS in relation to the Smith & Wesson.
The Applicant also stated that he had not been aware that possession of two pistols was unauthorised. In the past he has seen a number of people transport multiple firearms without realising they were doing so in an unauthorised manner. He stated that he had held the honest but incorrect understanding that he was able to transport a firearm and have one on his hip.
In his statement the Applicant conceded that what he did on the night of 14 October 2009 was morally wrong - in that it was wrong to intervene in the shareholders dispute. However, he maintained that the Smith & Wesson is the property of Mr. Potts and that Mr. Potts had the right to have the property returned to him. He did not however shy away from the fact that he has always been of the opinion that the Smith & Wesson belonged to Mr. Potts and he was returning the property to its rightful owner.
In his evidence before the Tribunal the Applicant conceded that his conduct was both legally and morally wrong. He expressed remorse for what he had done.
Mr. Stephen Smith provided a letter in support of the Applicant's case. In his letter Mr. Smith wrote:
"I am the Great Lakes Area Manager of the NSW National Parks and Wildlife Service (NPWS). I have known Mr. Troy Marjoribanks ... for the past 7 years, initially as an employee of ACPS Security and subsequently of Maitland Security. These companies have provided an after hours security patrol service under a contract with the NPWS during school holiday periods, since 1999.
The contract work undertaken by Mr. Marjoribanks as a security guard whilst working for NPWS included provision of a night time patrol service to a number of remotely located camping areas and other public facilities within two coastal national parks on the lower mid-north coast. He was a member of two teams of two officers provided by the security company. Mr. Marjoribanks was usually the senior guard in the north patrol team.
The security guards were required to have a thorough working knowledge of NPWS policy and procedure for managing public behaviour in the parks. Generally the guards were required to patrol all visitor areas and interact with the public who were staying in the parks. The guards also provided a source of information for public enquiries on park policy and facilities available. Some of the NPWS camping areas had more than 500 occupants staying overnight. The guards were authorised under the National Parks and Wildlife Act 1974 and the National Parks and Wildlife Regulation 2009 to perform certain law enforcement activities on NPWS estate.
The guards were required to respond to a range of law enforcement issues at night, often dealing with individuals who were under the influence of alcohol. The guards were required to produce a shift report detailing their movements and produce individual incident reports where law enforcement action was required. At times, the guards liaised with NSW police and NPWS officers to manage some incidents.
In carrying out the role of a security guard as described above, Mr. Marjoribanks was found to be diligent, thorough and reliable in his service to NPWS. I found him to be cooperative and helpful to work with. There were many instances where Mr. Marjoribanks worked beyond the usual scope of his contract and provided additional information or assistance to NPWS, demonstrating initiative and commitment beyond that required of him under contract.
Based upon my interaction with Mr. Marjoribanks and my understanding of his character, I would regard him to be a fit and proper person to obtain and hold a security licence."
Mr. Smith attended the hearing, gave evidence and was cross-examined. Mr. Smith gave a very positive appraisal of the Applicant's work with NPWS. However he stated that at the time he provided the letter he was not aware of the details of the October 2009 incident and the subsequent events flowing from it. The Applicant had told Mr. Smith that the purpose of the reference was to support his application for the renewal of his licence. Mr. Smith said that he only became aware of the further details about 10 days prior to the hearing and even then did not know the full extent of the allegations against the Applicant. Mr. Smith was not aware of the Applicant's obligations under the Act or under the Firearms legislation.
Mr. Smith stands by the comments he made insofar as they relate to the period in which he dealt with the Applicant when the Applicant provided an after hours security patrol service under a contract with the NPWS.
On behalf of the Applicant Mr. Weightman conceded that the Respondent has a strong case for cancellation of the Applicant's firearms licence. However, he submitted that as the Applicant is not seeking access to firearms the cause for concern no longer exists. Mr. Weightman conceded the fact that improper conduct has occurred but submitted that the community can have confidence that improper conduct will not occur in the future.
Mr. Weightman further submitted that the Applicant has acknowledged the wrong that he committed but the conduct occurred at a time when the Applicant was caught in a dispute between the company directors and his father. He knew his father to be still employed by ACPS but also that he had been shut out of the premises. Mr. Weightman argued that the Applicant has not been convicted of any offence, and has been a generally good behaviour, for the 19 years since his previous criminal conduct. He has no prior firearms history and has never been convicted of a firearms offence.
Mr. Weightman further submitted that the Respondent saw fit to issue the Applicant with a security licence and firearms licence despite his previous criminal conduct and as such that conduct should not be taken into account.
He further submitted that the Tribunal should note that, despite the fact that it was aware of the October 2009 incident, the Respondent did not take action against the Applicant's security licence until April 2011. It is not in dispute that the Applicant did not come to the Respondent's attention in the intervening period.
Mr. Weightman referred to views expressed in the High Court decision in Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, at [9], where Dixon CJ, McTiernan and Webb JJ said:
The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.
He submitted that the Applicant possesses the requisite honesty knowledge and ability. In regard to the Applicant's honesty he submits that the Applicant was placed in an impossible position and made the wrong decision. He submitted that the Applicant takes his obligations seriously and while it is conceded that the Applicant lied to his employer, it is common ground that the Applicant was frank with the police.
Mr. Weightman referred to the views expressed by Mr. Smith in support of his submission that the Applicant has the requisite knowledge and ability.
Mr. Weightman concedes that an issue arises in regard to what the Applicant told Mr. Smith about the purpose of the reference. However, he submits that the Tribunal should not conclude that the Applicant was attempting to mislead the Respondent.
Mr. Weightman submitted that the Tribunal should be satisfied that the Applicant is a fit and proper person to hold a security licence. He further submitted that there have been no complaints by the public in relation to the Applicant's work in the security industry and that it is in the public interest to have the Applicant as a security guard. The October 2009 incident should be seen as an isolated aberration.
He submitted that the correct and preferable decision, having regard to the material before the Tribunal, is that the decision revoking the Applicant's security licence should be set aside and replaced by a decision to return the class 1A licence to the Applicant.
Discussion
As noted above, the Applicant is only seeking review of the decision in relation to his class 1A security licence. This Tribunal has often commented on the role that the security industry plays in society. Several decision of this Tribunal have emphasized the view that the security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6.
The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The interests of the whole community must be considered.
The concept of 'fit and proper' includes a person's moral integrity and rectitude of character so that they can be trusted by the public to hold the relevant licence: Ex parte Meagher (1919) 356 WN (NSW) 175 at 179.
In Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129 Molony JM considered a number of authorities that have dealt with the question of whether a person is fit and proper. He discussed the matter at paragraph [119] as follows:
"119 In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 at [46-54] I wrote:
"The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." See also Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at [25].
In the present context, additionally to these principles, s.15(6) of [the Act] provides that "for the purpose of determining whether the Applicant is a fit and proper person" the Commissioner may have regard to criminal intelligence or information which, among other things, "causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence."
The Act contains no definition of "improper conduct". Section 33 of the Interpretation Act 1987 ("the IA") says that:
"In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
S.34 of the IA then provides:
"(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable."
... The Macquarie Dictionary contains the following definition of "improper"
- "not in accordance with propriety of behaviour, manners, etc .: improper conduct."
...
What amounts to prospective improper conduct (having regard to criminal intelligence) in the context of such a licence, which the Commissioner is not confident will not occur, is a difficult question. Some guidance can be found from the Second Respondent Speech on the Security Industry Amendment Act 2002 - which, among other things, introduced s.15(6) and (7) to [the Act]. Mr. Gaudry, Parliamentary Secretary, in the Legislative Assembly on 12 November 2002, said:
"The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security.
...
However, the determination of whether a person is "fit and proper" is contextual, as has been recognised in common law. For example, in Australian Broadcasting Tribunal v Bond, Justices Toohey and Gaudron found that:
"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 person" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of those activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. 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."
The Deputy President of the Administrative Decisions Tribunal has also held that there should be some 'nexus' between the conduct complained of and the activities to which the licence relates. This would apply, for example, in the case of a security guard who is reported to be associated with criminals with convictions for the armed robbery of banks. It is therefore considered that there is insufficient direction within the Security Industry Act to ensure that the balance is maintained between the interests of public safety in ensuring a crime free security industry, and the interests of individual licence holders in retaining their licences to work within the industry.
...
I agree with that summation. There is no suggestion that the Applicant has links to organised criminal activity of the kind considered in Avilion however the need to ensure that the balance is maintained between the interests of public safety and the interests of individual licence holder remains.
'Public interest' is 'an inherently broad concept' and allows the decision maker 'the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual': Commissioner of Police v Toleafoa. This discretion is to be exercised 'having regard to the objectives of the relevant legislation': Oliver v Commissioner of Police, NSW Police [2007] NSW ADT 153 at [34].
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The relevant interest is therefore that of the public as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith.
The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors.
In this matter, it is my view that the evidence supports the Respondent's contention that the Applicant has not accepted the significance of his conduct during the October 2009 incident. This is illustrated by his failure to inform Mr. Smith of the relevant details that would allow Mr. Smith to give an informed opinion. I accept that the Applicant was embarrassed and stressed by the situation but his failure to face up to the reality of the situation has not only placed Mr. Smith in a difficult situation but it also has implications for his licence application.
In my view this lack of acceptance is a significant factor to be weighed in the process of assessing whether I can have confidence that improper conduct will not occur again if the Applicant were granted the licence. It is difficult to find that confidence in the case of an individual who has previously engaged in improper conduct and who continues to deny aspects of the conduct.
At the hearing, the Applicant expressed remorse for his conduct. However, prior to that time his attitude was ambiguous. There is no doubt that he was placed in a difficult position between his father and his employer. He made the wrong decision and acted contrary to his obligations as a security guard and as a firearms licensee. He may well have privately accepted that he had engaged in improper conduct but publicly he only agreed that his conduct was morally wrong.
The determination of whether a person is "fit and proper" is contextual. As noted above, 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.
I agree with the Respondent's view that the Applicant failed to meet the high standards and professionalism required of a security officer. At this time I do not think that he has fully accepted responsibility for his actions. Until he does so, he cannot be held out to the public as a person who is fit and proper to undertake the activities authorised by the security licence.
I note that if he adopts a different attitude, with the passage of time the Respondent may well reach a different conclusion if the Applicant should decide to reapply for the licence. If the Applicant were to seek professional assistance in that regard, the necessary time might be significantly reduced. A psychologist's report, for example, might allow the Respondent to take comfort that the October 2009 incident was indeed an isolated aberration and that there is no significant risk that improper conduct will occur again if the Applicant were granted the licence.
However, taking into account the whole of the circumstances, I am not satisfied at this time that the Applicant has the ability to execute diligently the relevant security guard activities. It follows, in my view, that the Respondent has correctly determined the application and the decision should therefore be affirmed.
Order
The decision under review is affirmed.
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Decision last updated: 17 April 2012
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