QA v Commissioner of Police, New South Wales Police

[2005] NSWADT 81

CITATION:	QA v Commissioner of Police, New South Wales Police [2005] NSWADT 81
DIVISION:	General Division
PARTIES:	APPLICANT QA RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	043341
HEARING DATES:	14/02/2005
SUBMISSIONS CLOSED:	03/07/2005
DATE OF DECISION:	04/08/2005
BEFORE:	Leal 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 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Abdel-Ghani v Commissioner of Police, NSW Police Service [2002] NSWADT 20; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 McDonald v Director General of Social Security (1984) 1 FCR 354 at 357 Saadieh v Director General, Department of Transport [1999] NSW ADT 68
REPRESENTATION:	APPLICANT D Khoury, solicitor RESPONDENT P Mclaughlin, solicitor
ORDERS:	Pursuant to s63 of the Administrative Decisions Tribunal Act 1997, the Commissioner’s decision to refuse the applicant’s Class 1ABC security licence is set aside.

Introduction

1 QA is a 32 year old man who applied for a Class 1ABC security licence under s11 of the Security Industry Act 1997. When the Commissioner of Police refused to grant the application, QA applied to the Administrative Decisions Tribunal (“the Tribunal”) to review the decision (Security Industry Act 1997, s29).

Confidential material

2 Generally, Tribunal hearings are held in public. However, under section 75 of the Administrative Decisions Tribunal Act 1997, 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 to some or all parties of evidence given before the Tribunal.

3 Mr McLaughlin, who appeared on behalf of the Commissioner for Police, sought to address the Tribunal in the absence of QA in relation to additional material which, Mr McLaughlin submitted, was relevant to the proceedings. QA’s legal representative, Mr Khoury, objected to this application submitting that the applicant should be aware of all material put forward in the case or that, at the least, Mr Khoury should be present during the presentation of the confidential material.

4 In this case, I agreed to hear from Mr McLaughlin and to consider the relevant material in closed court. Neither Mr McLaughlin’s submissions nor the material provided to me in closed court alters my view that QA is a fit and proper person and that it would not be contrary to the public interest to grant a security licence to him.

Review decision

5 In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then confirms the original decision, varies it, or sets it aside and substitutes another decision. (Administrative Decisions Tribunal Act 1997, s63) The Tribunal makes its own decision in place of that of the Commissioner of Police and there is no presumption that the decision of the Commissioner is correct. (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.)

6 The Commissioner refused to grant a class 1ABC Security Licence to QA under s15(1)(a) of the Security Industry Act 1997 because he was satisfied that QA was not a fit and proper person to hold the class of licence sought and because he considered that the grant of the licence would be contrary to the public interest. It would appear that this decision was made on the basis of QA’s criminal history.

7 The evidence before me in relation to this application can be divided into two categories: QA’s criminal history and subsequent steps taken by him to address his earlier behaviour.

Criminal history

8 QA has a criminal history spanning from 1994 to1999 which includes breaches of apprehended violence orders, breach of recognizance orders and malicious damage. Over the past 6 years, his criminal record has been clear.

9 During the Tribunal hearing, QA was extensively cross-examined in relation to his criminal history. As a result of his evidence, it emerged that the apprehended violence orders and their subsequent breach related to QA’s former girlfriend. No evidence was put forward to the Tribunal that the orders were made following any physical or threatened violence to QA’s former girlfriend. It was not disputed that the breaches of the orders involved QA approaching his former girlfriend and thereby not maintaining the 500m distance stipulated by the apprehended violence order. There is some suggestion that QA verbally threatened his former girlfriend on one occasion.

10 QA’s convictions for malicious damage in 1994, 1995 and 1998 involved the infliction of physical damage to property belonging to his father and to his former girlfriend. A charge of assault against QA’s father in 1995 was found to be proven but was dismissed without a conviction being recorded.

11 It is the view of the Police Commissioner that because of his criminal history, QA is not a fit and proper person to hold a class 1ABC security licence and that it would be contrary to the public interest for him to hold such a licence. QA concedes that he has a substantial criminal history but states that he has had no further convictions for over five years, has undergone an extensive counselling and rehabilitation process and is not at risk of future offending. For these reasons, QA says that he is a fit and proper person to hold a class 1ABC security licence and that it would not be contrary to the public interest for him to hold such a licence.

Rehabilitation

12 QA gave evidence before the Tribunal that he has undergone counselling to ensure that he deals with difficult issues and conflict more appropriately than he has done in the past. QA impressed the Tribunal with his candour and his willingness to accept responsibility for his past behaviour. He gave evidence that he has limited contact with his father, with whom he has had a difficult relationship, and has no contact with his former girlfriend, in whose favour earlier apprehended violence orders had been made against QA.

13 QA’s counsellor, who holds a doctorate and qualifications in psychotherapy, gave detailed evidence in support of QA. Under cross-examination, she made it clear to the Tribunal that she is aware of QA’s former convictions and has extensive experience in counselling clients with criminal records, having worked in the area of probation and parole in addition to providing general counselling to mainstream clients.

14 She told the Tribunal that she would not usually give evidence for her clients in court or Tribunal proceedings. She has made an exception in QA’s case as he is, in her view, an exceptional person who is honest and honourable. He would, in her view, be able to acquit the duties of a security guard and would not be a risk to the public. As a result of the counselling undertaken by QA, it is his counsellor’s view that he has become more mature and, if confronted with a difficult position, would no longer act on impulse. QA’s counsellor gave QA a good prognosis and said she expects that he will not offend in the future.

15 A series of references were provided to the Tribunal in support of QA’s application.

16 QA’s counsellor wrote that in her professional opinion, QA is an honourable, trustworthy and reliable person who regrets his past misdemeanours, respects police and the general community and is committed to positive change for the future. In a further reference for QA, she writes that his concern for public security is deeply felt, and that he would be reliable in upholding it at all times.

17 QA’s community based welfare worker describes him as a mature and responsible person who is on time to all his appointments and who has expressed remorse for all he has done in the past. QA is, in her opinion, “an honest, reliable and trustworthy person. He would never do anything to put him in the situation he has been in the past.”

18 QA’s doctor, who has treated him over the past four years, describes him as “a fit and proper person, well mannered, honest and reliable.”

Whether QA is a fit and proper person

19 According to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question of 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 fitness and propriety are under consideration.

20 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17], the Deputy President of this Tribunal set out several factors which should be considered when determining a person’s fitness and suitability to hold a taxi authority. These included:

the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

the nature, seriousness and frequency of any complaints made against the applicant;

the applicant's reputation in the community; and

the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

21 I agree with the view taken by the Tribunal in Abdel-Ghani v Commissioner of Police, NSW Police Service [2002] NSWADT 20, that these factors are readily adaptable to the requirements of the Act when determining a person’s fitness and suitability to hold a security licence.

22 I accept the submissions put by Mr McLaughlin that QA has an extensive criminal history, including breaches of orders which would appear to indicate a disregard for authority.

23 In QA’s favour, however, I note that his last conviction was in 1999 and that there have been no further offences for over five years. I accept the oral evidence provided by both QA and his counsellor in addition to written evidence by QA’s community welfare worker that QA regrets his past actions and has undertaken counselling to deal with past family issues that in part, at least, may explain his previous actions.

24 QA impressed me with his honesty and candour during his evidence in chief and lengthy cross-examination. During cross-examination, QA’s counsellor was unswayed in her support for QA and in her belief that he is a reliable and trustworthy person. I was impressed with her evidence and in particular by her assessment that, as QA has addressed his family related issues, she would not envisage that he would be at risk of re-offending.

25 I accept that QA is no longer in a relationship with his former girlfriend, against whom the apprehended violence orders were granted in 1994 and 1995. I also accept the evidence of QA and his counsellor that QA has no contact with his father. There is no evidence that QA has ever committed offences in circumstances unrelated to these personal relationships.

26 QA has accepted and expressed remorse for his previous behaviour. I accept the evidence of his counsellor that he is now able to better manage difficult situations. On this basis, I am of the view that the likelihood of any re-offending by QA is minimal.

27 For these reasons, I am satisfied that QA is a fit and proper person to hold a security licence.

Whether it would be in the public interest for QA to hold a security licence

28 In my opinion, QA is an honest and straightforward man who has sought to make amends for his earlier behaviour and has voluntarily undergone counselling to deal with his past issues.

29 He comes highly recommended by his counsellor, his family doctor and his welfare worker. I accept that he is no longer in contact with those people who triggered his earlier unsatisfactory behaviour and I am satisfied that QA is able to demonstrate the type of behaviour that the community could expect of an individual operating within the security industry. For these reasons, it is not contrary to the public interest within the meaning of s15(3) of the Security Industry Act 1997 for QA to continue to hold a security licence.

Conclusion

30 For the above reasons, I am satisfied that the Commissioner’s delegate has not made the correct and preferable decision in refusing to grant a class 1ABC security licence to QA.

Order

Pursuant to s63 of the Administrative Decisions Tribunal Act 1997 , the Commissioner’s decision to refuse the applicant’s Class 1ABC security licence is set aside.