Martin v Commissioner of Police, New South Wales Police

[2004] NSWADT 294

CITATION:	Martin v Commissioner of Police, New South Wales Police [2004] NSWADT 294
DIVISION:	General Division
PARTIES:	APPLICANT Leslie Allan Martin RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	043301
HEARING DATES:	07/12/2004
SUBMISSIONS CLOSED:	12/07/2004
DATE OF DECISION:	12/17/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Security Industry Regulation 1998
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Henry v Commissioner of Police [2003] NSWADT 45 Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127 Jacobs v Commissioner of Police, New South Wales Police Service [2003] NSWADT 180 Jacobs v Commissioner of Police [2003] NSWADTAP 55 R v Knight (1988) 35 A Crim R 314 Wilson v Kuhl [1979] VR 327
REPRESENTATION:	G Elliott, barrister D Shepherd, advocate
ORDERS:	The decision of the Commissioner of Police, New South Wales Police to revoke Mr Martin's licences is set aside.

1 This is an application for a review of a decision made on 29 June 2004 by the Commissioner of Police to revoke a Master Licence and Class 1ABC and 2B Licences held by Mr Leslie Martin under the Security Industry Act 1997 ("the Act"). Mr Martin is the proprietor of a security business, MI Security (“MIS”) that operates in the New England region of New South Wales. He was issued with a Class 1ABC security licence on 8 July 2003, a Class 2B security licence on 3 May 2003 and a Master licence on 20 November 1999. Each of these licences has now expired. The fact that these licences have expired does not go to the question of the Tribunal's jurisdiction.

2 It is common ground that Mr Martin was charged with and subsequently pleaded guilty to three charges at the Tamworth Local Court on 25 June 2004. Each of the charges related to Mr Martin’s conduct towards his estranged spouse (“Melissa”). The conduct was in the context of the breakdown of their marriage, Melissa’s relocation to the ACT taking the children of the marriage with her, and Mr Martin’s inability to have regular access to the children. Mr Martin was charged with Common Assault, Contravene Apprehended Domestic Violence Order and Stalk and Intimidate. The presiding Magistrate placed Mr Martin on a bond for common assault, and imposed two suspended sentences for the remaining matters.

3 On 29 June 2004, the decision was made to revoke Mr Martin’s licences on the basis that the Commissioner considered that it is not in the public interest for Mr Martin to continue to hold the licences.

4 Mr Martin submitted a request for an internal review of the decision made. The internal review was finalised on 3 August 2004 and the decision was taken that the original decision to revoke the licences was to stand.

Applicable legislation

5 Section 26(1)(c) of the Act provides that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. Section 26(1)(d) of the Act provides that a licence may be revoked for any reason prescribed by the Security Industry Regulation 1998 (“the Regulations”). For the purpose of section 26(1)(d) of the Act, clause 18 of the Regulations 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.

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

7 Section 16(1)(a) of the Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the Regulations. Clause 11 of the Regulations prescribes various offences for the purposes of section 16(1)(a) and (b) of the Act. Clause 11(c) prescribes: An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being (i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both, or (ii) in such cases where the applicant concerned has been found guilty but not been convicted - an offence that, in the opinion of the Commissioner, is a serious assault offence.

8 The Tribunal has jurisdiction to determine this matter pursuant to section 29(1)(c) of the Act and section 38 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). The Tribunal’s powers on review are found in section 63 of the ADT Act. The role of the Tribunal is to determine whether the Commissioner’s decision is the correct and preferred decision having regard to all the relevant facts and the applicable law. In determining an application for the review of a decision, the Tribunal may decide to affirm the decision, vary the decision, set aside the decision and make a decision in substitution for it, or set aside the decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The Commissioner's case

9 Senior Sergeant Shepherd appeared for the Commissioner and relies on the brief of evidence filed in the matter. The essence of the Commissioner’s case is that the Applicant is not a fit and proper person and that it would be contrary to the public interest for Mr Martin to continue to hold the security licences. He points to the record of convictions and the Police facts sheets contained within the file relating to Mr Martin’s charges and convictions.

10 On 6 February 2004 Mr Martin was charged with Common Assault. An Apprehended Domestic Violence Order was put in place and he was released subject to a number of conditions. These included the conditions that he not approach, assault, molest or harass Melissa or her mother.

11 Following an incident on 23 June 2004, Mr Martin was charged with the offences of "Contravene Apprehended Domestic Violence Order" and" Stalk / Intimidate with intent to cause fear physical/mental harm" and he appeared at Tamworth Local Court for the offences the following day.

12 In relation to a charge of Common Assault Mr Martin was convicted and released under the provision of section 9 of the Crimes (Sentencing Procedure) Act 1999 on the conditions that he enter a good behaviour bond for a period of 2 years and that he not breach the Domestic Violence order terms.

13 In relation to each of the charges of "Contravene Apprehended Domestic Violence order" and "Stalk/Intimidate with intent to cause fear physical/mental harm" Mr Martin was convicted and sentenced to a term of imprisonment of 6 months and he was released from custody under the provision of section 12 of the Crimes (Sentencing Procedure) Act 1999 on entering into a good behaviour bond for 6 months.

14 In relation to a charge of "Stalk/Intimidate with intent to cause fear physical/mental harm" and Mr Martin was convicted and sentenced to a term of imprisonment of 6 months and he was released from custody under the provision of section 12 of the Crimes (Sentencing Procedure) Act 1999 on entering into a good behaviour bond for 6 months.

15 The Notification of Revocation of Licence was served shortly after these convictions. The Commissioner relies on the power in sections 16 and 26 of the Act.

16 The Commissioner also initially argued Mr Martin’s convictions were of a kind that there would be a mandatory refusal of an application for a licence and therefore, pursuant to section 26(1A) of the Act the Commissioner must revoke Mr Martin’s licences. However, the Commissioner subsequently conceded that this was not the case.

17 The Commissioner argues that a security licence is granted 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'. The Commissioner points to the security activities that Mr Martin is authorised to perform under the licences. These include guarding and protection of persons and property, close personal protection and crowd control. A Master licence authorises the licensee to conduct a business of providing properly licensed persons to carry on security activities.

18 The Commissioner contends that the Act was designed to provide the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard. It is intended to exclude persons from the industry where it is not considered within the public interest for a licence to be held. The Commissioner further contends that Mr Martin’s behaviour as recorded in the Police Facts sheets, and his subsequent convictions, places him in the category of persons who should be excluded from the industry.

19 When Mr Martin was first charged with "Common Assault", he was informed that there was an intention to revoke his security licences due to his behaviour. The Commissioner argues that he was aware of that risk if he did not deal with his domestic situation in a different manner. He later contravened the conditions of his bail and the Apprehended Domestic Violence Order, without perhaps giving any consideration to the consequence that his actions may have on his business within the security industry. These were all very serious offences and the Magistrate imposed heavy penalties on 25 June 2004. In light of this, the Commissioner is of the opinion that it would be contrary to the public interest for Mr Martin to continue to hold the security licences.

20 The Commissioner contends that in the context of clause 18 of the Regulation consideration of the public interest requires paramount consideration be given to public safety. The Commissioner is of the opinion that the need for Mr Martin to continue to hold a security licence is subordinate to the need to ensure public safety.

21 The Commissioner also argues that Mr Martin is not a fit and proper person to hold the licences. Senior Sergeant Shepherd points to the decisions in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127 as authorities for the approach to be taken in determining this issue. He submits that whether a person is fit and proper is a value judgment to be made based on consideration of the seriousness of Mr Martin’s conduct, keeping in mind the activities that Mr Martin will be engaged in if the licences are returned. In Hughes and Vale the High Court discussed the meaning of the term ‘fit and proper’ and observed that fitness 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 to carry out the necessary activities. In this context, the Commissioner contends that in light of Mr Martin’s conduct he cannot be considered to have these qualities and therefore he is not a fit and proper person to hold the licences.

The Applicant’s case

22 Mr Elliot appeared on behalf of Mr Martin. He submitted that Mr Martin’s behaviour that lead to his convictions was an aberration and totally out of character and there will be no repetition of the behaviour. He submits that the decision to revoke Mr Martin’s licenses is excessive and unwarranted, notwithstanding the negatives that are found against him.

23 The evidence before the Tribunal establishes that Mr Martin has developed a responsible and respected security business in the New England region of New South Wales. Mr Martin has acted in a responsible and reliable way in the security industry across a significant period of time. It is not in dispute that the conduct that has resulted in this application was confined to a period of time coinciding with the breakdown in his marriage and the departure of his wife with their two children. Mr Martin concedes that he acted in an inappropriate and uncharacteristic way towards his wife. This resulted in his convictions and the revocation of his licences.

24 Mr Martin has provided the Tribunal with evidence that he contends goes to a wide range of matters concerning the public interest. Evidence as to Mr Martin's training and work history is not disputed. On completion of his training and receiving licence Mr Martin commenced work with Chubb Security Australia Limited for whom he continued to work as an employee up to 1999. In that year he obtained his Master Licence and set up his own business, and then operated for Chubb as franchisee.

25 He subsequently became dissatisfied with the services provided by Chubb, and in the end he resigned and set about setting up his own security firm. The setting up of that business involved the employment of staff, the leasing of commercial premises, the leasing of vehicles, the leasing of office equipment and software, and taking out public liability, workers compensation and cash in transit insurance policies. The lease of the premises has another year to run plus a two-year option period after that, and the vehicle leases do not expire for another four years.

26 A number of Mr Martin's customers have provided the Tribunal with statements and references vouching for Mr Martin and the services he has provided. They also indicate the consequences for their business if Mr Martin is not able to continue to provide security services for them.

27 Mr Martin does not suggest that his actions in the first half of 2004 were acceptable. It appears that the relationship between Mr Martin and Melissa had deteriorated from 2002. They separated after a serious argument on 26 January 2004, and Melissa took their two children from the home. Melissa subsequently moved to Canberra with the children. This had a profoundly negative effect on Mr Martin. He has accepted that the way he responded was foolish and irresponsible. Melissa obtained an Apprehended Domestic Violence Order against Mr Martin and on 6 February 2004. Mr Martin was charged with common assault under section 61 of the Crimes Act 1900 and was released on bail.

28 Mr Martin’s evidence is that his relationship with Melissa did not improve after that date and Melissa refused to let him have any access to their children. Mr Martin telephoned Melissa on various occasions in an attempt to organise a meeting with the children, and was taunted by her. These taunts affected Mr Martin's emotional wellbeing and on 23 June 2004 he had a telephone conversation with Melissa in which he made violent and threatening remarks. On the following day he was charged with contravening the terms of the Apprehended Domestic Violence Order and with stalking or intimidating with the intent of causing fear of physical or mental harm. Mr Martin pleaded guilty to the charges.

29 Mr Elliot concedes that Mr Martin's actions in 2004 gave the Commissioner cause to investigate and consider whether those actions were such that it was contrary to the public interest for Mr Martin to continue to hold the licence. He submits however, that the Commissioner undertook no such investigation or consideration. Instead, the Commissioner simply concluded, by virtue of Mr Martin having been convicted of the three offences, that it was contrary to the public interest for Mr Martin to be a licence holder. He asserts that it is apparent from the terms of the decision and internal review documents that the Commissioner gave no consideration to, and made no assessment of: (a) the likelihood that Mr Martin would be a threat to the safety of any section of the public; (b) the effect on sections of the public of the loss of Mr Martin's licence; or (c) the extent to which conditions and restrictions could have been imposed on Mr Martin in order to address any residual concerns the Commissioner may have in relation to Mr Martin.

30 Mr Elliot submits that the sections of the public that would be affected by the loss of Mr Martin's licence would include (i) the public generally; (ii) customers of Mr Martin; (iii) business associates of Mr Martin; (iv) Mr Martin's employees; (v) the lessors of MIS's premises and equipment; and (vi) Mr Martin and Melissa and their children. He argues that these are all matters that ought to have been considered before the Commissioner could take a view on whether the maintenance of Mr Martin's licences was contrary to the public interest. Mr Martin provided evidence in relation to each of these matters.

31 With respect to the issue of the likelihood of Mr Martin being a threat it is conceded that his behaviour towards Melissa in 2004 was unacceptable, and he has been punished accordingly. However, it is submitted that it was conduct completely outside the bounds of Mr Martin's ordinary character. There is no evidence to suggest Mr Martin misbehaved at any other time. The aberrant behaviour is explained, though not justified, in that it came in the midst of the breakdown in his marriage and the sudden departure of Melissa and children to another State, the loss of regular contact with his children, and in the face of hurtful taunts from Melissa.

32 None of Mr Martin's conduct took place in the context of his work or in the course of providing security services. It all took place in a domestic setting and was directed to Melissa. He was lashing out at her in that context. At no time did he hit Melissa or anyone else, and at no relevant time did Mr Martin have a firearm in his possession.

33 Mr Martin has submitted himself to an independent assessment by Dr Lee, a Sydney based psychiatrist. A report dated 29 October 2004, by Dr Lee, is in evidence. There is evidence that Mr Martin has suffered from depression and that his medication had been ineffective. However, he has changed his medication with positive results. In his report Dr Lee observes that Mr Martin did not present to him as being clinically depressed, anxious or agitated, that he showed insight into his behaviour being inappropriate. Having undertaken a detailed assessment of the relevant history and Mr Martin's present condition, Dr Lee concluded that:

“It is more likely than not that this was an abnormal situation that [Mr Martin] was reacting to and given his previous good reputation, it is unlikely that he will behave inappropriately in the future”.

34 Mr Martin’s evidence was that he has developed an increased capacity to deal with hurtful and difficult personal situations. He has been able to maintain positive contact with his children and is dealing with Melissa only through his lawyer. He has undertaken counselling to assist him in managing his matrimonial situation and his emotional reactions and feels confident that he will not behave badly again.

35 Mr Elliot submits that the loss of Mr Martin's licences will have a negative effect on various sections of the public, and public safety generally. He points to evidence of how each of the sections of the public referred to above would be affected and submits that these must be taken into consideration.

36 Mr Martin has made it clear that he is prepared to abide by any restrictions and conditions that may reasonably be required so that he may continue to hold the licences and operate the business of MIS. He has not sought a renewal of his firearms licence and has said expressly that he is not seeking to have access to firearms or munitions. He has also stated that if he is successful in this application he is only seeking to be able to sell, lease, install and monitor security systems as well as represent MIS in negotiations. Mr Elliot submits that consideration should have been given to whether the imposition of conditions or restrictions on Mr Martin might be adequate to address any residual concern about Mr Martin holding the licences.

37 In relation to the Commissioner’s view that Mr Martin is not a "fit and proper person" to hold the licences Mr Elliot submits that the term "fit and proper person" has been considered on innumerable occasions by this Tribunal. Regard is usually had to the following statement from Mason CJ in Australian Broadcasting Tribunal v Bond at [63]:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose witness and propriety are under consideration.”

38 Mr Elliot also refers to Hughes and Vale Pty Ltd v State of NSW as authority for the principle that the discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted. He points to application of these principles by Higgins JM in Jacobs v Commissioner of Police, New South Wales Police Service [2003] NSWADT 180 and in Henry v Commissioner of Police [2003] NSWADT 45. Mr Elliot submits that as with Jacobs and Henry, the facts of this case are that the aberrant behaviour of Mr Martin took place well outside the workplace and in an entirely private setting, and in response to an isolated and highly personal series of incidents in his life.

39 Mr Elliot submits that there are numerous factors that indicate that Mr Martin is a "fit and proper person" to hold the licences. He argues that it is significant that although he used inappropriate language in his conversations with Melissa, Mr Martin has not laid a finger on or physically harmed any person. His training and grooming in the industry and his application to his work in the years leading up to 2004 was impressive. The financial success of his business and the level of trust and confidence his clients have in him demonstrate that he is good at what he does, both in terms of providing security services and looking after a business, a workplace and a team of employees. Dr Lee is of the view that Mr Martin is not suffering from depression and is unlikely to repeat his offensive behaviour. Mr Martin's recent capacity to ignore Melissa's criticisms of him, in front of his children, supports Dr Lee's opinion. Mr Elliot further submits that any residual concerns could be addressed by the framing of appropriate conditions to the licences.

40 Mr Elliot also submits that Mr Martin has not committed an offence involving assault, being an offence that required the Commissioner to revoke his licence. Clause 11(c)(i) of the Regulations provides that for the purposes of section 16 of the Act, a prescribed offence is an offence involving assault of any description, being an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both. In respect of Mr Martin's conviction for common assault the Court did not impose a sentence or fine of any kind. Mr Martin was released upon entering into a good behaviour bond. As such, that conviction does attract any action pursuant to clause 11(c)(i) of the Regulations.

41 In late June 2004 the Court imposed a sentence of imprisonment but made an order suspending execution of the sentence. A question arises in relation to whether either of the two June 2004 offences involved assault. If not the requirements of clause 11(c)(i) have not been satisfied.

42 In Jacobs v Commissioner of Police Higgins JM observed at paragraph 43 that what must be determined is whether the elements of the offence for which the applicant has been convicted involve elements that would also give rise to an offence of assault. That statement of principle was not challenged on appeal: Jacobs v Commissioner of Police [2003] NSWADTAP 55. For obvious reasons the Tribunal must not look at the facts of the particular case and decide for itself whether a person is guilty of assault.

43 Mr Elliot submits that is well settled that "assault" means an act which causes another person to reasonably apprehend the infliction of immediate unlawful force on his or her person: R v Knight (1988) 35 A Crim R 314 at 316-7 per Lee J. However, the critical elements of an assault offence have not been proven in relation to either of Mr Martin’s offences. It is not open to the Commissioner or the Tribunal to find that Mr Martin has been convicted of an offence involving assault of any description.

44 Mr Elliot further submits that clause 11(c)(i) of the Regulations is only enlivened in a case where the penalty for the offence is imprisonment. In this case although the Court did impose a sentence of imprisonment of 6 months an order was made suspending execution of the sentence for 6 months subject to compliance with a good behaviour bond for the same period. In the circumstances the penalty imposed on Mr Martin was not an unconditional term of imprisonment, and indeed the order of imprisonment was effectively stayed, and as such clause 11(c)(i) of the Regulations does not apply.

45 Clause 11(c)(ii) of the Regulations cannot apply because it only comes into play if no conviction is recorded.

46 Accordingly, Mr Elliot submits that the Tribunal should find that the Commissioner's decision was not the correct and preferred decision and set it aside.

Findings

47 The issue for determination can be described in the following terms: Having regard to any relevant factual material and any written or unwritten law, was the Commissioner's decision to revoke the licences, on the basis that it was contrary to the public interest for Mr Martin to continue to hold the licences or that he is no longer a fit and proper person to hold a licence, the correct and preferable decision?

48 It is convenient to first deal with the issue of whether a conviction for the offence for which Mr Martin was convicted is an offence coming within the terms of clause 11(c) of the Regulations. If it does, the Commissioner (and the Tribunal) has no discretion and must revoke Mr Martin’ licences.

49 Section 16(1)(a) of the Act makes reference to the applicant having been “convicted” of an “offence prescribed by the Regulations”. The introductory words of clause 11 of the Regulations state that the “following offences are prescribed offences” for the purposes of section 16(1)(a) of the Act. As Higgins JM observed in Jacobs the matter in issue is answered by considering the elements of the offence for which the applicant for a licence has been convicted and not by considering the particular facts surrounding the conviction. Had Parliament intended the latter it would have made reference to the conduct the subject of the conviction, instead it has used the words “an offence prescribed by the regulations”.

50 The critical elements for an offence of assault are that the person the subject of the assault must (a) actually (and reasonably) apprehend the infliction of force; and (b) apprehend the infliction of immediate force. There must be some threatening act sufficient to raise in the mind of the person threatened a fear or apprehension of immediate violence.

51 The first of these elements was considered by McGarvie J in Wilson v Kuhl [1979] VR 319. At page 327 his Honour stated that it was a necessary element of the offence that the defendant's conduct created in the complainant a fear of violence. There it was held there was no case to answer, as the complainant did not actually have a fear of violence.

52 The second of these elements i.e. the fear of application of immediate force, was considered by the Court of Criminal Appeal in R v Knight. There the accused threatened a person by telephone using extremely strong threatening language. Lee J (with whom Carruthers and Loveday JJ agreed) concluded that an assault had not been committed. His Honour stated at 317:

''as to there being any evidence that those threats were threats of immediate violence it is clear that they were not. They were mere threats which may have been executed at any time, if at all".

53 Section 562AB of the Crimes Act 1900 is the provision in respect of the stalk/intimidate charge for which Mr Martin was convicted. It is apparent from a review of the elements of an offence under section 562AB that the two critical elements of an assault offence referred to above need not be proved. Indeed section 562AB(4) goes so far as to provide that the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

54 The second relevant offence for which Mr Martin was convicted, contravention of an Apprehended Domestic Violence Order, does not require proof of any of the elements of the offence of assault. The relevant provision, section 562I of the Crimes Act, simply provides that a person who knowingly contravenes a prohibition or restriction specified in an order made against the person is guilty of an offence.

55 Given that neither of the convictions for these offences required proof of any of the elements of the offence of assault it is my view that it cannot be said that Mr Martin has been convicted of an offence involving assault of any description for the purposes of clause 11 of the Regulations. In any event, it is also my view that in the circumstances of this matter it cannot be said that the penalty imposed was one of imprisonment. Similarly, as a conviction has been recorded against Mr Martin clause 11(c)(ii) of the Regulations has no application in this matter. It follows, therefore, that this is not a matter where the Commissioner must revoke Mr Martin’ licences, but rather one where there was discretion as to whether to do so.

56 It falls to be determined whether the discretion to revoke Mr Martin’s licences should be exercised on either the public interest ground or on the basis that he is no longer a fit and proper person to hold a licence. On each of these issues I am persuaded by the evidence that Mr Martin has presented before me.

57 As has been observed, the approach to the issue of whether a person is fit and proper to hold a licence has been considered in numerous cases before this Tribunal. The cases of Hughes and Vale Pty Ltd v New South Wales and Australian Broadcasting Tribunal v Bond are commonly considered in these matters. In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J provided a reasonable summary:

“In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence … but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work which the licence entails.”

58 Clearly these are serious issues and should not be glossed over. The primary issue whether Mr Martin is able to demonstrate qualities that would allow the Tribunal and the public to have confidence in his honesty, knowledge and capacity to operate in the security industry. It is significant that the conduct that has lead to the Commissioner’s concern was not in the course of Mr Martin’s work. That aspect of his life appears to be exemplary. There is no allegation that he has engaged in dishonest, sharp or deceptive practices in the course of his security work. On the contrary, the testimonials speak highly of his work and he is obviously held in high regard.

59 Without the close analysis that has been undertaken by Mr Martin and his legal advisors, it is understandable how the Commissioner’s delegates formed the view that Mr Martin is not a fit and proper person to hold a licence. The Commissioner’s role in ensuring that persons who fail to meet the licensing criteria are excluded from the industry is a vital one. A person’s criminal record is useful in determining whether an individual meets these criteria. However, it is also important that these records are not used as the sole basis to exclude people who might otherwise be valuable practitioners in an industry. If that were not the case the Commissioner would be given no discretion as to whether to revoke a licence.

60 On the basis of the material before me I am satisfied that Mr Martin is a fit and proper person to hold these licences.

61 The issue of the public interest is more troublesome. Mr Martin has clearly acted in a way that has had serious impact on both him and Melissa. In my view, the Commissioner was rightly concerned about this conduct and the risk to the public. It is my view that at the time the decision was taken it was the correct decision. Nevertheless, the Tribunal deals with matters at the time they come before it and has the opportunity to consider evidence that was not available to the Commissioner. Significantly, I have the benefit of Dr Lee’s report. This was not available to the Commissioner and in my opinion is a vital piece of evidence.

62 Dr Lee’s report records what I consider to be three important observations. Firstly, that Mr Martin has undertaken counselling to assist him in managing situation. Secondly, Mr Martin has changed medication to assist him with his depression and this is apparently successful in treating that problem so that he no longer exhibits symptoms of depression. Thirdly, Dr Lee has stated that it is unlikely that Mr Martin will repeat his inappropriate conduct in the future.

63 I am nevertheless concerned about the possible consequences should Mr Martin cease to take his medication and were he again confronted with issues that gave rise to his aberrant behaviour. My concern is somewhat addressed by Mr Martin’s evidence that he has not sought a renewal of his firearms licence and that he is not seeking to have access to firearms.

64 On the totality of the evidence I am satisfied that there is minimal risk to the public should Mr Martin have his licences reinstated. In my view the public can have confidence in the high standard of his work in the security industry continuing. Accordingly, it is my view that the correct and preferable decision is that the decision under review be set aside.

Order

The decision of the Commissioner of Police, New South Wales Police to revoke Mr Martin's licences is set aside.