MCKENNA and COMMERCIAL AGENTS
[2005] WASAT 58
•12 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996
CITATION: MCKENNA and COMMERCIAL AGENTS [2005] WASAT 58
MEMBER: DR B DE VILLIERS (MEMBER)
MR T J CAREY (MEMBER)
MR R SCAIFE (SESSIONAL MEMBER)
HEARD: PRIMARY HEARING: 5 APRIL 2005
DIRECTIONS HEARING: 24 FEBRUARY 2005
DELIVERED : 12 APRIL 2005
FILE NO/S: VR 128 of 2005
BETWEEN: GWY MCKENNA
Applicant
AND
COMMERCIAL AGENTS
Respondent
Catchwords:
Crowd controller - Fit and proper person - Refusal to grant application for licence - Criminal record
Legislation:
Security and Related Activities (Control) Act 1996, s 7, s 35, s 35, s 46, s 47, s 51, s 52(c), s 60, s 62, s 72, s 88
State Administrative Tribunal Act 2004, s11, s 17, s 27, 29(1), s 98, s 167, r 28
Result:
The appeal is upheld
A license to act as a crowd controller is issued to the applicant subject to the following conditions
a. The licence is issued for a period of 1 year from the date of issue
b. A monthly review takes place
c. Random breath, blood and or urine testing may be conducted; and
d. A maximum of 10 hours per week may be spent as crowd controller
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Sgt S Bagley
Solicitors:
Applicant:
Respondent:
Case(s) referred to in decision(s):
Re a Practitioner ((2004) WASCA 283 12 November 2004)
Case(s) also cited:
Nil
DR B DE VILLIERS (MEMBER), MR T J CAREY (MEMBER), MR R SCAIFE (SESSIONAL MEMBER):
REASONS FOR DECISION
Issue
The applicant is seeking a review under s 72(1) of the Security and Related Activities (Control) Act 1996 ("the Act") of the decision by the licensing officer not to issue him a crowd controller's license on the basis that he is not regarded as a "fit and proper person" to hold such a licence under s 52(c) of the Act. The licensing officer had the applicant's criminal record in regard when the decision was made. The applicant contends that the decision should be set aside on grounds that the offence was committed in 1999, he wants to start a new life and his professional and personal track record prior to and since the offence has been excellent.
Applicant and Respondent
The applicant is Gwy MCKENNA from 19 Nelson Street, Bridgetown, WA 6255.
The respondent is Commercial Agents represented by Sgt Simon Bagley from 297 Hay Street, East Perth, WA 6004.
Application lodged with State Administrative Tribunal
The application for appeal was originally lodged on 5 November 2004 with the Court of Petty Sessions in Manjimup. The matter was subsequently transferred to the State Administrative Tribunal pursuant to s 167 and r 28 of the State Administrative Tribunal Act 2004.
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). In exercising its review function SAT deals with a matter in accordance with the SAT Act (s 17) and the enabling Act, in this case being the Security and Related Activities (Control) Act 1996 (s 72(1)).
The Tribunal constituted three persons namely Mrrs B De Villiers, T Carey and R Scaife as is required when it deals with a decision of a vocational regulatory body (s 11(4) SAT Act).
Section 72(1) of the Act enables an aggrieved person to seek a review from SAT of a reviewable decision. A "reviewable decision" includes a decision to refuse to issue a licence (s 72(2)(a) of the Act).
The Tribunal has in accordance with s 29(1) SAT Act the same jurisdiction, functions and discretions as those of the decision‑maker – in this case the licensing officer. The Tribunal may also in terms of s 27(1) SAT Act take into account any additional or new information that was not at the disposal of the decision-maker at the time when the decision was made. The review hearing is therefore "de novo" and is not confined to the matters and information that were before the decision-maker at the time of the decision. The Tribunal is also not limited to the statement of reasons given by the decision-maker (s 27(3) SAT Act).
The powers of Tribunal according to s 29(3) SAT Act are to –
(a)Affirm the decision;
(b)Vary the decision; or
(c)Set aside the decision, and
(d)to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the decision-maker (s 29(5) SAT Act).
Orders sought
The applicant is seeking an order to set aside the decision of the licensing officer not to issue him a crowd controllers licence.
Security and Related Activities (Control) Act 1996
The relevant provisions of the Act are as follows:
The long title of the Act sets out the aims of the Act as providing for the licensing of persons engaged in work relating to property protection, investigation or surveillance and crowd control.
Section 35 defines the duties of a "crowd controller" as a person who at a private or public event is responsible for controlling or monitoring the behaviour of persons, screening persons seeking entry, removing persons for behavioural reasons, or any other prescribed function.
Sections 46 and 47 set out the process of applying for a license and the material required in support of an application. Sections 51 and 88 determine that it is an offence to provide false or misleading information in the application or renewal of a license and an individual committing such an offence is liable to a fine not exceeding $10 000.
Section 52 deals with the issue of licences and determines that the licensing officer "is not to issue a license unless the officer is satisfied "… (c) that the applicant is of good character and is a fit and proper person to hold a license …"
Section 72 deals with an application by an aggrieved person to apply to SAT for a decision to be reviewed. The refusal to issue a license is included in the definition of "reviewable decision" (s 72(2)(a)).
Directions Hearings and Primary Hearing
A directions hearing took place on 24 February 2005 at which interim orders were made in regard to the preparation of the application for hearing. The parties had to file affidavits and/or any other submissions or documents by 4 March 2005 and 9 March 2005 respectively. A further directions hearing was held on 10 March 2005 at which the matter was listed for hearing on 30 March 2005.
At the primary hearing Member De Villiers explained to the parties the nature of review proceedings as set out above. He invited them to provide the Tribunal with any information that may be of assistance in the review. He confirmed that the Tribunal had received and read the written submissions and attachments. He drew the attention of parties to s 98 SAT Act which determines that it is an offence to give false or misleading information.
He subsequently invited both parties to give evidence, call witnesses, make further submissions and to put questions to each other and/or to witnesses.
The applicant called several witnesses to testify in regard to his professional and personal credentials. The respondent cross‑examined the witnesses. The respondent did not call any witnesses.
Applicant submissions
The applicant did not make a written submission but provided the Tribunal with several letters of reference.
The following are a summary of the written and oral submissions made by the applicant and persons giving evidence:
(a)The offence committed by the applicant in 1999 was out of character. He has shown deep remorse. His behaviour was excellent while in custody and he was released early to get on with his life. He wants to regain what he had lost.
(b)The applicant has had a security officer licence since July 2004. The licence is subject to three monthly reviews. It has been renewed each time due to the good behaviour of the applicant. The applicant has not committed any offence since his release and has had no other run-ins with the law. As security officer he also has dealing with the public and has acted in a professional way in the discharge of his duties. As far as "character" and "fit and proper" person is concerned he fulfils the requirements of the act for security officer and crowd controller.
(c)Several letters of reference were submitted by amongst others Mr Jackie Attwell, Employment Consultant (Community First Inc.), Mr Ian Harbutt (ex-parole officer Department of Justice), Mr Bob Farley (Blue Ribbon Security Services), Mr G Smith (Mission Australia), Mrs K Anders (Network Family Support (WA) Inc). 7 persons gave oral evidence in support of the applicant. The general tone of the evidence is that the applicant has shown remorse about his previous offence, he is trustworthy, he has credibility amongst family and friends, he is respected by colleagues, he is regarded by some as a role model, he has been open about his offence and he deserves a change to pursue his career.
(d)He is willing to accept very strict conditions if a licence were granted.
Respondent submissions
The respondent made written submissions in addition to the oral submissions during the hearing: affidavit by Peggy Sylvia Coulthard (licensing officer in terms of s 7(1) of the Act) dated 13 January 2005 with several attachments including a copy of the applicant's criminal record, the application form filled out by the applicant, letters of reference and an internal memo from Daf Williams (Bridgetown Police) recommending that the application for a crowd controller licence be refused. The respondent did not call witnesses.
The following is a summary of the submissions made on behalf of the respondent:
(a)The applicant was convicted for sexual penetration of a child under the age of 16 years on 11 May 2001. He was sentenced to 5 years imprisonment. An insufficient time has lapsed since his conviction for him to be put in a situation where he will be required to deal with members of the public and in particular might be required to deal with intoxicated females.
(b)Although he holds a licence as a security officer, the responsibilities of a crowd controller are more demanding. The applicant has not "displayed good ethics or responsibility in the past". A crowd controller licence will put him in direct contact with potentially vulnerable persons.
(c)The aim of the Act and the interests of the public demand that the applicant, who is a convicted sex offender, not be issued with a crowd controller license. The community expects the Tribunal to protect it against persons such as the applicant being placed in positions of authority.
(d)Discussions have occurred with the applicant about conditions to issue the licence subject to strict conditions. The applicant accepted the conditions but the matter was not concluded.
(e)The intention of Parliament regarding "fit and proper" persons is clear and the decision of the licensing officer must be upheld.
Consideration
The licensing officer notified the applicant on 27 October 2004 that his application for a crowd controller licence had been rejected due to him not fulfilling the requirements of s 52(c) namely being a fit and proper person for the purposes of such licence. The applicant is the holder of a security officer licence with a condition that it is reviewed every three months. Since the security officer licence was issued, there has been no reason to withdraw the licence. The Commercial Agency or Commissioner of Police did not call any evidence in regard to the behaviour of the applicant since his release.
The Tribunal's consideration of the application to review the licensing officer's decision to refuse to issue a license to the applicant, is not confined to the matters that were before the licensing officer when the decision was made (s 27(1) SAT). The purpose of the review is to produce a correct and preferable decision (s 27(2) SAT). In the same way that the applicant had to satisfy the licensing officer that he fulfils the requirements of the Act to have his application approved, he now has to satisfy the Tribunal. For all practical and legal purposes the Tribunal is therefore placed in the shoes of the licensing officer and we have to rely on the Act to determine if the application for review must succeed.
In considering the application, the Tribunal has taken into account the written and oral evidence and submissions made by the parties.
The Act makes it clear that the Tribunal "is not to issue licence unless the officer is satisfied – " … (c) that the applicant is of good character and is a fit and proper person to hold the licence;" (s 52(c)).
The Act does not define what the legislator intended with the words "fit and proper" person. The Tribunal has a discretion to take into account various factors that might impact on the ability of a person to be regarded as fit and proper to be issued a license. Among the factors that the Tribunal has to take into account are the objectives of the Act, the interests of the public, the nature of the duties that the applicant might be required to discharge and any other relevant information that may determine if a person is "fit and proper" to be issued a license.
The Application for a License which is completed by aspirant crowd controllers also provides an indication of some of the factors that must be taken into account by the Tribunal for example the applicant' previous experience in the field, possible employment offers that have been made, and the applicant's criminal record, if any.
In the matter Re a Practitioner ((2004) WASCA 283 12 November 2004) the court considered what is meant by a fit and proper person in the context of the legal profession. In our view the test applied by the court is also of relevance in determining what is meant by fit and proper under the Act. Malcolm CJ at [14] (supra) referred to the importance of "maintenance of proper standards and the protection of the public". McKechnie J at [17] referred to the person's criminal record as "the convictions are of so serious nature and were committed in circumstances so intimately related to the practitioner's practice that the protection of the public and the maintenance of proper standards" justified certain action.
The applicant raised two main reasons for the decision of the licensing officer to be reviewed. The first is that, according to the applicant, he has served his time for the deed he committed in 1999 and was sentenced in 2001. He regards himself as fully rehabilitated and wants to continue his new life. Several witnesses who are related as friends and family and also of external agencies made submissions and gave evidence about the character of the applicant and his performance in his profession. The second is that he has demonstrated how well he is integrated into society with several letters of recommendation by a wide range of persons. He has been working successfully as a security officer and has been retained by several persons and/or companies for security-related work. No evidence was tendered by the respondent to challenge the good behaviour submissions and evidence offered by the applicant.
The respondent justifies its decision to refuse the application on the basis that the applicant's criminal record and the short time that has elapsed since his conviction, disqualify him from being regarded as a "fit and proper" person to hold a crowd controller's license. While this is indeed a valid consideration, the Tribunal also notes that according to the evidence at its disposal the applicant shows deep remorse for what had happened and considered it was out of character and foolish.
No other offences have been committed by the applicant since the 2001 conviction. The letters of reference submitted by the applicant and the oral evidence support his request to be afforded the opportunity to return to a normal life. His work as a security officer has been of high standing according to the evidence heard. The concerns expressed by the respondent are understandable but at the same time the personal circumstances of the applicant and his desire to be integrated into society have to be taken into account. Society also demands that an individual who shows remorse must be afforded the opportunity to be re-integrated in society and rehabilitated to live a normal life.
The Tribunal is satisfied that the applicant meets the requirements of s 52(c) and that a crowd controller license can be issued. In order to assist him in meeting the challenges of the position the Tribunal believes the licence must be subject to certain conditions as provided for in sections 60 and 62.
Finding
The Tribunal finds that in terms of s 52 of the Act, a crowd controller licence can be issued to the applicant subject to conditions as provided for in sections 60 and 62.
The application for a review of the decision of the respondent therefore succeeds.
Orders
1.The appeal is upheld.
2.A license to act as a crowd controller is issued to the applicant subject to the following conditions:
a.The licence is issued for a period of 1 year from the date of issue;
b.A monthly review takes place;
c.Random breath, blood and or urine testing may be conducted; and
d.A maximum of 10 hours per week may be spent as crowd controller.
I certify that this and the preceding nine pages comprise the reasons for decision of the State Administrative Tribunal.
B De Villiers
Member
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