Mouwad v Commissioner of Police, NSW Police Force

[2011] NSWADT 93

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Mouwad v Commissioner of Police, NSW Police Force [2011] NSWADT 93
Hearing dates:	4 November 2010, 6 December 2010
Decision date:	04 May 2011
Before:	S Montgomery, Judicial Member
Decision:	The decision under review is affirmed.
Catchwords:	Security Industry Act - security industry licence -grant of licence
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997
Cases Cited:	Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Hughes and Vale Pty Ltd v State of New South Wales ; [1955] HCA 28; (1955) 93 CLR 127
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Robert Mouwad (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	C Evatt and M Rollinson (for the Applicant) Teakle Ormsby George (for the Applicant) J Tillott (Agent for the Respondent)
File Number(s):	103146
Publication restriction:	Paragraphs referred to as [Subject to suppression order] are not to be released other than to the Respondent.

Judgment

1. Mr Mouwad has held licences under the Security Industry Act 1997 ("the Act") since May 1999. His licences were revoked in 2002 following convictions for assault.

1. In 2007 Mr Mouwad was convicted of the offence 'Owner of massage premises allow prostitution'. On appeal to the District Court he was found guilty of the offence and, pursuant section 10 of the Crimes (Sentencing Procedure) Act 1999, he was placed on a good behaviour bond for 12 months without the Court proceeding to conviction.

1. His most recent licence, a Provisional Class 1AC security licence, was issued in November 2008. He was the principal of RSM Protection Group Pty Ltd ("RSM") and was employed by RSM as general manager overseeing all operations of RSM. He was in charge of security covering venues in the Granville and Merrylands area, and venues in the Kings Cross area.

1. In 2009, Mr Mouwad submitted an application for a Class 1AC2D licence.

1. The application was refused on the basis that the Commissioner's delegate considered that Mr Mouwad is not a fit and proper person to hold a security licence and that it is not in the public interest for a licence to be granted. Mr Mouwad requested an internal review of the decision and the refusal was affirmed. The Commissioner relied on the grounds that Mr Mouwad was not a fit and proper person to hold a licence. The 'public interest' ground was abandoned.

1. In the reasons for the determination of the internal review the Commissioner's delegate stated:

"When considering an individual's right to be granted a security licence under the Security Industry Act 1997, I formed the view that any decision should be made with the specific consideration to whether the applicant is of fit and proper character to be granted a licence. In this regard, criminal record and other probity checks are undertaken as to identify persons who fail to meet the criteria and thereby refuse the grant of such licences.

As part of my assessment I have taken into consideration Police information involving Mr Mouwad and in accordance with Section 15(7) of the Security Industry Act 1997, I decline to provide you with further details about this information. ...

While, I have given due consideration to your submission, including [Mr Mouwad's] statement and other documentation you have provided I cannot ignore the Police information held against [Mr Mouwad]; consequently I am satisfied that in the context of the Act [Mr Mouwad] is not a fit and proper person to hold a security licence".

1. Mr Mouwad has applied to the Tribunal for external review of the Commissioner's determination.

1. The matter was initially heard on 4 November 2010. The earlier part of the hearing was held in the presence of Mr Mouwad. The later part of the hearing was held in Mr Mouwad's absence. Each party made submissions.

1. Confidential material and further evidence was adduced during in camera hearings. I agreed with the Commissioner's request that the Tribunal not disclose the confidential information to Mr Mouwad: section 29(3) and section 15(7) of the Act.

1. The Commissioner relies on material ("the confidential material") which the Commissioner says supports the contention that Mr Mouwad is not a fit and proper person to hold the class of licence sought within the meaning of section 15(1)(a) of the Act.

1. Consistent with the Court of Appeal decision the Court of Appeal decision in Commissioner of Police NSW v Gray [2009] NSWCA 49 ("the Court of Appeal decision"), the confidential material has not been provided to Mr Mouwad.

1. The Court of Appeal decision determined that the Tribunal is not entitled to order the Commissioner to provide an applicant with particulars of the criminal intelligence information on which he relies.

Confidential hearing

1. Generally, Tribunal hearings are held in public. However, the Tribunal has the power to order that a hearing be conducted either wholly or partly in private and to make an order prohibiting or restricting the disclosure of evidence given before the Tribunal to some or all parties: section 75 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). The Commissioner sought to have a confidential hearing in this matter and I agreed to that request.

1. In the absence of Mr Mouwad, I heard from Ms Tillott as to the nature of the material she wished to put before the Tribunal. Having heard submissions in relation to the material that the Commissioner wished to tender to the Tribunal on a confidential basis, I formed the view that the confidential information is 'of such importance and cogency that justice is more likely to be done by receiving the information in confidence and denying the party access to it than by refusing an order to exclude the party': Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.

1. I determined to proceed on that basis and advised Mr Mouwad accordingly. Consequently Mr Mouwad was not made aware of the material that was tendered on a confidential basis.

1. I have given weight to this confidential material and any reference to that material is deleted from the published reasons. Those parts of the decision where the confidential material is discussed are identified as "Subject to suppression order".

1. As noted above, Mr Mouwad has a number of convictions and findings of guilt. It is not in dispute that Mr Mouwad's record is unblemished for the period since 2008. However, Ms Tillott submits that the confidential material properly leads the Tribunal to the view that Mr Mouwad is not a fit and proper person to hold a licence.

1. [Subject to suppression order]

Relevant Legislation

1. Section 63 of 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 Commissioner, but may have regard to any relevant material before it at, the time of the review.

1. Section 15 of the Act provides:

15 Restrictions on granting licence-general suitability criteria

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) is not a fit and proper person to hold the class of licence sought by the applicant, or

(b) is not of or above the age of 18, or

(c) in the case of application for a licence other than a provisional licence-does not have the competencies and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or

(d) is not competent to carry on the security activity to which the proposed licence relates, or

(e) is not an Australian citizen or a permanent Australian resident.

(2) The Commissioner may refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) in the case of an application for a class 1 licence:

(i) has not, for at least 12 months, held a provisional licence authorising the applicant to carry on the security activity to which the proposed licence relates, or

(ii) has not previously been authorised by a licence (other than a provisional licence) to carry on the security activity to which the proposed licence relates, or

(b) in the case of an application for a provisional licence-has not completed, to the satisfaction of the Commissioner, an approved security industry training course that is relevant to the class of licence sought, or

(c) in the case of an application for a class 1 licence where the applicant has previously been authorised by a licence to carry on the security activity to which the proposed licence relates:

(i) has failed to demonstrate active participation or employment in the security industry for a significant period of the previous licence, after taking into account any actual experience or offered work or contracts, or

(ii) has not been engaged in the security activity authorised by the previous licence for a significant period, or

(iii) has failed to demonstrate continuing knowledge and competency in relation to the security activity authorised by the previous licence.

(3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.

(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence.

(5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant.

(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:

(a) is relevant to the activities carried out under the class of licence sought by the applicant, or

(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or

(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.

(7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).

1. The Act does not define the phrase 'fit and proper person'. However, the phrase has been the subject of much judicial comment and many decisions of this Tribunal.

1. Section 21(1) of the Act states:

21 Grant and conditions of licence

(1) The Commissioner may, after considering an application:

(a) grant a licence to the person making the application and nominate a place where the person is to collect the licence, or

(b) refuse to grant a licence.

1. Section 29 of the Act provides:

29 Right to seek review from Administrative Decisions Tribunal

(1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions:

(a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)),

(b) a condition imposed by the Commissioner on a licence granted to the person,

(c) the revocation or suspension of a licence granted to the person.

(2) For the purposes of this section, an application for the grant of a licence is taken to have been refused if the licence is not granted within 60 days after the application is made in accordance with this Act.

Note. Under the Administrative Decisions Tribunal Act 1997, if the ADT has reviewed a "reviewable decision" (such as a decision referred to in the above section), a party to the proceedings may appeal to an Appeal Panel of the ADT. An appeal on a question of law may then lie to the Supreme Court.

(3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal:

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and

(b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise.

Note. Section 15 (7) of this Act provides that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information.

1. Section 33(2)(b) of the Security Industry Act states:

33 Misrepresentation and related offences

...

(2) A person must not:

(a) in relation to any application for the purposes of this Act or the regulations, or

(b) in relation to any information or particulars that the person is required to furnish under this Act or the regulations,

make any representation or statement that the person knows is false or misleading in a material particular.

Maximum penalty: 50 penalty units.

The Commissioner's Case

1. In addition to the confidential material the Commissioner relies on a number of open and confidential statements. Open statements were provided by:

Sergeant Paul Roe who is attached to Strike Force Raptor and has been working exclusively on outlaw motorcycle gang (OMCG) related crime since July 2009;

Detective Inspector David Adney, the Investigations Co-ordinator for Strike Force Raptor;

Detective Senior Constable Douglas Allen, who is attached to the Gangs Squad. The Gangs Squad is part of the Organised Crime Directorate, State Crime Command;

Constable Graham Baxter who is attached to Strike Force Raptor and has been working exclusively on outlaw motorcycle gang activity for the last 15 months;

Detective Erin Stubberfield attached to the Gangs Squad, State Crime Command. Detective Stubberfield was the officer in charge of investigating the kidnapping of Stephen Toy and charged Paul Younan with the following offences against Stephen Toy:

- Take/detain person in company w/i to obtain advantage

- Recklessly cause grievous bodily harm in company

- Assault occasioning actual bodily harm and

- Common assault

1. Senior Sergeant Donna Murphy, Supervisor of the Kings Cross Licensing Unit, attended in response to a summons issued at Mr Mouwad's request. Sergeant Murphy gave evidence about her dealings with Mr Mouwad.

1. The Commissioner also relies on Ms Tillott's open and confidential submissions.

1. The Commissioner urges a broad approach to the interpretation of material that can be taken into account as this would promote the objects of the Act, by ensuring the protection of police information holdings and ensure that only persons of the utmost integrity are granted a licence. Ms Tillott submits that the phrase "criminal intelligence report or other criminal information" in section 15(6) of the Act should be given its ordinary meaning and should not be read down so as to equate the phrase to material that could be subject to a public interest immunity claim.

1. [Subject to suppression order]

1. [Subject to suppression order]

1. The Commissioner submits that Mr Mouwad is not a fit and proper person to hold a security licence and, accordingly, the decision under review should be affirmed.

Mr Mouwad's Case

1. Mr Mouwad relies on submissions filed on his behalf by his solicitor, Mr Peter George. In those submissions Mr George contends that the delegate of the Commissioner did not give proper or valid reasons for refusing the Application, that Police information concerning Mr Mouwad was wrong, unfair and biased and that the information should have been disclosed to Mr Mouwad and/or his legal advisers.

1. Mr George also asserted that Mr Mouwad is a fit and proper person to hold a security licence. He says that Mr Mouwad does not have and has never had extensive links to organised crime figures who are members of an outlaw motorcycle gang who organised crime or who are suspected of offences relating to drug trafficking, murder or other violent offences.

1. Mr Mouwad also relies on his own statement filed in the proceedings. He contends that he maintained an excellent working relationship with Holroyd Police regarding the security services he provided to venues in the area. He says that in early 2010 RSM expanded and took on new venues in the Kings Cross area. He says that in that capacity he maintained an excellent working relationship with Sergeant Donna Murphy and her colleagues at Kings Cross Police and that Kings Cross Police have always had his unreserved full cooperation regarding those venues.

1. Sergeant Donna Murphy appeared at the hearing in response to a summons issued at Mr Mouwad's request. She confirmed that she had dealt with Mr Mouwad in relation to a number of venues in the Kings Cross area. Sergeant Murphy indicated that she had concerns about the number of roles that Mr Mouwad was playing at the time and the potential conflict of interest that could result from that but she had not raised her concerns with Mr Mouwad. She said that she had discussions with Mr Mouwad in relations to issues raised about another security company that was operating in the Kings Cross area and that she had met with the Registrar of the Security Industry Registry as a result of those discussions.

1. Mr Mouwad provided information in regard to his dealings with Police attached to a unit known as Strike Force Raptor. In particular he discussed dealings with officers Paul Roe, David Adney and Graham Baxter. He recounted an incident involving himself, Jim Rizk, a director of RSM, and officers attached to Strike Force Raptor in the car park of McDonalds Rosehill in February 2010

1. Mr Mouwad also provided information in regard to his dealings with Paul Younan. He said that he and Paul Younan's family had grown up in the same neighbourhood in Guildford. Rosemary Younan, Paul Younan's mother, approached him and asked him to offer Paul a position with RSM. Upon Rosemary Younan's request Mr Mouwad provided a letter of offer of employment to the presiding Magistrate of Liverpool Local Court on the 14 of December 2009. He said that the offer was on the condition that employment would be on a three months probation period with strict conditions.

1. Rosemary Younan provided a statement and also attended and gave evidence before the Tribunal. Her oral evidence was that Mr Mouwad had given her son Paul a job. She said that Paul was in custody and that he needed a job if he was to be released on bail. Mr Mouwad's letter to the presiding Magistrate of Liverpool Local Court was in that context. She also gave evidence that Paul Younan had to reappear in Court whilst on bail and that he needed to have a job for bail to continue.

1. In his evidence before the Tribunal Mr Mouwad insisted that Paul Younan never took up the offer of employment with RSM. He disputes Ms Younan's evidence to the contrary and says that she must have been mistaken.

1. Mr Raymond Michael, former owner of the Triple Eight Hotel, appeared and gave evidence before the Tribunal. He said that he had employed RSM for a period of some 13 years. He said that he had dealt with Mr Mouwad on many occasions and found his conduct to be exemplary.

Discussion

1. The issue to be decided is whether the Commissioner's determination is the correct and preferable one. This decision must be made taking into account whether Mr Mouwad is a fit and proper person to hold a security licence.

1. The assessment of whether a person is a "fit and proper" person was discussed by the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 . Mason CJ stated 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.

1. In the same case, per Toohey and Gaudron JJ said at [36]:

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. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

1. 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 (see Hughes and Vale Pty Ltd v State of New South Wales ; [1955] HCA 28; (1955) 93 CLR 127 at 156 and Australian Broadcasting Tribunal v Bond .)

1. In Hughes and Vale Pty Ltd at 156-157 Dixon CJ, McTiernan and Webb JJ stated as follows in respect of the exercise of this administrative discretion:

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 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 ... . It is evident that the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.

1. As noted in Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6, the expression "fit and proper person" takes its meaning from its context. A higher standard is applicable to licensees within the security industry because of the special role it plays in ensuring public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.

1. In the present matter I have been provided with a considerable amount of confidential material that, in my view, supports the Commissioner's view. I have considered that material and I have given weight to it.

1. [Subject to suppression order]

1. [Subject to suppression order]

1. It is imperative that the security industry is licensed by professional and responsible individuals that can achieve the high standards of conduct required by the special nature of the industry. In my view, the Applicant is not a person who would be able to work closely with Police permitted to hold a security licence.

1. [Subject to suppression order]

1. On the material before me, I cannot be satisfied that the Applicant is a fit and proper person to hold a security industry licence.

1. It is my view that the correct and preferable decision is that the Applicant should not be permitted to hold a security licence. It follows that the decision of the Commissioner should be affirmed.

Order

The decision under review is affirmed.

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Decision last updated: 04 May 2011