Russell v The Commissioner for Consumer Affairs - [2014] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
RUSSELL v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2014] SADC 1
Judgment of His Honour Judge Millsteed
14 January 2014
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appeal against a decision of the Commissioner for Consumer Affairs refusing Appellant's application for a security agents licence under Security and Investigation Agents Act 1995 - whether cogent reasons to depart from the delegate's decision - whether delegate erred in finding Appellant was not a 'fit and proper person'.
Held: Delegate had not demonstrably erred in refusing application for licence - cogent reasons to depart from the decision-maker's decision not established - appeal dismissed.
Security & Investigation Agents Act 1995 (SA) s 8, s 8A, s 9A, s 11, s 31; District Court Act 1991 (SA) s 42E, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, 147; Sobey v Commissioner for Consumer Affairs (1979) 22 SASR 70, 76; Petracaro v Commissioner for Consumer Affairs (1994) 62 SASR 387, 390, considered.

RUSSELL v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2014] SADC 1
Introduction

This is an appeal by Peter Russell (‘the Appellant’) under s 11(1) of the Security and Investigation Agents Act 1995 (SA) (‘the Act’) against a decision by a delegate of the Commissioner of Consumer Affairs (‘the Respondent’) to refuse the Appellant’s application for a restricted security agent’s licence under s 8 of the Act.[1]
[1] The Act has since been amended by the Security and Investigation Agents (Miscellaneous) Amendment Act 2013, assented to on 18 April 2013, which will come into operation on a day fixed by proclamation. The references to the Act refer to the legislation as it applied at the time of the decision.
The Act
The Act imposes an obligation on a person to be licensed in order to carry on business or otherwise act as a security agent or investigation agent. The power to grant such licences is vested in the Respondent[2] but may be delegated by the Respondent to any person by instrument in writing.[3] Licences may be subject to conditions specified in s 7A.
[2] Section 9.
[3] Section 31.
An application for a licence must be made to the Respondent in the manner and form approved by the Respondent and accompanied by a fee fixed by regulation.[4] An applicant must provide the Respondent with such evidence as the Respondent thinks appropriate as to the identity, age and address of the applicant and other information required by the Respondent for the purposes of determining the application.[5] The Respondent is required to inform the Commissioner of Police of the application.[6] The Commissioner of Police may object to the application.[7]
[4] Section 8(1).
[5] Section 8(2).
[6] Section 8A(1).
[7] Section 8A(3).
Section 9(1) entitles a natural person to be licensed if specified requirements are met. Relevantly, at the time of the application s 9(1) read:
(1) Subject to section 9A, a natural person is entitled to be granted a licence if—
…
(d) the person is a fit and proper person to be the holder of the licence; and …
Section 9A provided:
9A - Factors to be taken into account in deciding whether to grant application for security agents licence
(1)In deciding whether a person is a fit and proper person to hold a security agents licence, or to be the director of a body corporate that is the holder of a security agents licence, the Commissioner must take into consideration—
(a) the reputation, honesty and integrity of the person; and
(b) the reputation, honesty and integrity of people with whom the person associates.
(2)If the Commissioner of Police has objected to an application for a security agents licence under section 8A(3), the Commissioner must take into consideration the grounds for the objection when assessing the application.
(3)An application for a security agents licence can only be granted if the Commissioner is satisfied that to grant the application would not be contrary to the public interest.
The key objective of the Act is to protect the public by requiring applicants to meet criteria directed to their qualifications, experience and fitness for the occupation.[8] The onus rests on an applicant to establish that he is a fit and proper person to hold the licence sought.[9]
[8] Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, 147 (Doyle CJ); [2001] SASC 110, [14]-[19].
[9] See Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 76.
Pursuant to s 11(1) of the Act an applicant for a licence may appeal to this Court against a decision refusing the application. Such an appeal must be conducted in compliance with s 42E of the District Court Act 1991 (SA) which provides:
(1)    The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)    The Court, on an appeal –
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)    The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Appellant’s personal circumstances
The Appellant is 33 years of age and has predominantly lived in South Australia and the Northern Territory. He lived in Alice Springs until August 2003 when he moved to Wallaroo, South Australia, where he resided for the next seven years. Between early 2010 and late 2012 he lived in Alice Springs except for a few months which he spent in Victoria. In late 2012 he returned to South Australia and currently resides with his fianceé at Northfield. He is employed as a truck driver by Adelaide Kerbing.
There is little information before me concerning the Appellant’s earlier employment history other than that he was employed by the Northern Territory Department of Justice as a prison officer at the Alice Springs Correctional Centre for a period of 22 months before he went on leave without pay on 10 January 2012. The evidence establishes that as a prison officer he was a competent and trusted employee. A letter from Mr W. Yan, the Deputy Superintendent of the Alice Springs Correctional Centre, dated 1 March 2012 states that the appellant ‘at all times carried out the duties required of him with professionalism, integrity and to the best of his ability’.
In an affidavit tendered on the hearing of this appeal the Appellant deposed that he took voluntary leave without pay and returned to South Australia due to medical issues concerning his fianceé and his desire to be closer to his family. Following his return he successfully completed a Certificate II in Security Operations through Tactical Training Australia Pty Ltd. The certificate is recognised throughout this country within the Australian Qualifications Framework and focuses on various aspects of security procedures including monitoring and controlling individual and crowd behaviour and protecting the safety of persons.
Appellant’s prior offending
The Appellant has committed several offences. Because they constitute the key ground upon which his application for a licence was refused, it is appropriate to outline the circumstances of the offences and the penalties they attracted. The details of his offending are derived from documents provided to the Respondent by the Commissioner of South Australia Police prior to the decision the subject of appeal. The documents include a South Australia Police Department Offender History Report, a Northern Territory Offence History Report and South Australian Police Apprehension Reports.
On 23 October 1997 the Appellant appeared in the Alice Springs Court of Summary Jurisdiction (‘CSJ’) on a charge of assault. The charge was proved but no conviction was recorded and the Appellant was released on a bond to be of good behaviour for 12 months.
On 10 December 1998 the Appellant appeared in the Alice Springs CSJ for driving an unregistered and uninsured motor vehicle. The charge was proved but no conviction was recorded. He was released on a bond to be of good behaviour for 12 months.
On 8 August 2002 the Appellant appeared in the Alice Springs CSJ for an offence of stealing a bicycle. The offence was proved but the magistrate declined to record a conviction. The Appellant was fined $500. The offence was committed on 2 March 2002.
On 13 August 2003 the Appellant was convicted in the Alice Springs CSJ of the offence of ‘Drive CAB 80mg/100mg-under 150mg’ committed on 20 June 2006 and fined $200.
On 11 February 2008 the Appellant was convicted and fined $100 in the Kadina Magistrates Court for entering licensed premises from which he had been barred. The offence was committed at the Cornucopia Hotel, Kadina. The manager of the hotel had issued a barring order against the Appellant which had been posted to him on 5 November 2007. At about 12.45am on Saturday 17 November 2007 the manager saw the Appellant appear at the gate to the hotel’s beer garden. He was standing on the driveway to the car park within the boundary of the hotel. At the time the manager was with a police officer who then spoke to the Appellant. He admitted that he had been barred from the hotel for spitting but stated that he was unaware the driveway adjoining the beer garden was subject to the barring order. He said that he had attended only to talk to a friend over the gate.
On 3 April 2008 the Appellant was convicted in the Port Pirie Magistrates Court of hindering a police officer. He was discharged without penalty. He was further convicted of failing to comply with a direction from a police officer, for which he was fined $700 and disqualified from holding a driver’s licence for six months. The offences were committed on 30 September 2007. Police stopped the Appellant while he was driving his motor vehicle after he had left a hotel. He submitted to an ‘alco-test’ which produced a positive result. He was directed to accompany police to the Port Pirie Police Station to undergo a breath analysis test. He became aggressive and refused to get into the police vehicle. He was then arrested for hindering police and conveyed to the police station where he refused to submit to a breath analysis test.
On 13 May 2008 the Appellant was convicted in the Kadina Magistrates Court of driving under disqualification, driving with excess blood alcohol and hindering a police officer. He was fined $800 and disqualified from holding a driver’s licence for six months. The three offences were committed on 26 October 2007. Police stopped the Appellant while he was driving his motor vehicle along a street in Wallaroo and directed him to undertake a random breath test which produced a positive result. The appellant falsely stated that his name was Nathan John Russell and that his Northern Territory driver’s licence was at home. He was conveyed to the Kadina Police Station where he submitted to a breath analysis test which established a blood alcohol reading of .098. Police conducted enquiries which established the Appellant’s true name and the fact that he had been disqualified from holding a drivers licence for a period of six months (expiring on 29 September 2008). The Appellant eventually admitted that he had given police a false name, namely that of his brother, to avoid getting into trouble. He made the admission after he was shown a police photograph of himself.
On 14 April 2009 the Appellant was convicted in the Kadina Magistrates Court of entering licensed premises from which he had been barred and fined $200. This offence was also committed at the Cornucopia Hotel, Kadina. The relevant police apprehension report states that the manager of the hotel reported to police that she had previously personally served the Appellant with an order barring him from the hotel for 12 months. At about 12.45am on 29 December 2008 the Appellant entered the front bar of the hotel in contravention of the order. The manager alleged that the Appellant ‘seemed to wedge himself into the corner of a table near the wall’. Security personnel then ‘went and removed the Appellant from the hotel’. The manager then served the Appellant with a further order barring him from the hotel indefinitely. He yelled abuse at the manager but then left. The police attended the Appellant’s home later that morning and questioned him about the incident. He said that he had accompanied his cousin to the hotel and was unaware he had been barred.
On 7 December 2009 the Appellant was convicted in the Adelaide Magistrates Court of speeding and fined $310. The offence was committed on 9 March 2009 and involved the appellant exceeding a speed limit by between 15‑29 km/h. This is the last offence committed by the Appellant.
Application for licence
In November 2012 the Appellant signed an application applying for a restricted security agents licence subject to conditions which limited the functions he could perform under the authority of the licence (restricted functions conditions) and which prevented him from carrying on business as an agent (an employee condition). In particular, he applied for a licence restricting him to guard work, crowd control and canine handling, as an employee.
The application was accompanied by a Personal Information Declaration for Security Agent Licensing (‘the declaration’) completed and signed by the Appellant on 21 November 2012. The declaration is a standard document issued by the Respondent requiring applicants to provide in writing details of any offence for which they had been arrested or reported. The Appellant declared that he had committed two offences in the Northern Territory of assault (as a juvenile) and driving under the influence; two offences of driving under the influence and an offence of speeding in South Australia and offences in Victoria involving ‘bridge tariffs’. He indicated that he was not sure of the dates upon which he had committed the offences and stated that ‘there may be other offences ... which I cannot remember’.
By completing the declaration in this manner the Appellant failed to specifically mention that he stole a bicycle in the Northern Territory in 2002; that he had been convicted on two occasions for entering licensed premises (Cornucopia Hotel, Kadina) from which he had been barred; that he had been convicted of hindering police and failing to comply with a direction of a police officer on 30 September 2007 (though in respect of this incident he mistakenly declared that he had been convicted of driving a motor vehicle while under the influence); and, that he had been convicted of driving a motor vehicle whilst disqualified from holding a driver’s licence and of hindering police on 26 October 2007 (though he did disclose that he committed the offence of driving a motor vehicle with excess blood alcohol on the relevant occasion).
In relation to the offences which the Appellant had failed to specifically declare it should be observed, as mentioned above, that he expressly stated that he may have committed other offences which he could not remember.
Objection by Commissioner of Police
Pursuant to s 8A(1) of the Act the Respondent provided the Commissioner of Police with a copy of the Appellant’s application for a licence.
In February 2013 the Respondent received from the Commissioner of Police a Notice of Objection to the application under s 8A of the Act on the basis that the Appellant was not a fit and proper person to hold a security agents licence. The assessment was based on the criminal history of the Appellant and the liquor licensing offences which the Appellant had failed to disclose in his application. No criticism was directed by the Commissioner of Police to the Appellant’s failure to specifically mention the fact that he had stolen a bicycle in 2002 and that he had been convicted of certain offences in the Port Pirie and Kadina Magistrates Court on 3 April 2008 and 13 May 2008, respectively.
As earlier mentioned, the Commissioner for Police provided documents to the Respondent relating to the objection including a South Australian Police Department Offender History Report, a Northern Territory Offence History Report and South Australian Police Apprehension Reports relating to the offences committed in this State. The Respondent was also provided with a report concerning the Appellant’s arrest on 30 September 2007 wherein it was asserted that the Appellant’s mother had informed police that her son had been diagnosed with ‘Bi-polar schizophrenia’ six months earlier.
Appellant’s response
On 6 February 2013 the Respondent advised the Appellant that the police had lodged a Notice of Objection to his application for a licence and that he was entitled to respond to the objection by lodging a submission as to why he should be considered a fit and proper person to hold a licence. The Appellant was provided with a copy of the information the Respondent had received from the Commissioner of Police regarding his criminal history and alleged mental illness.
By letter dated 8 February 2013 the Appellant responded to the Notice of Objection. He provided the Respondent with a brief account of each of his offences. It is not necessary to set out in detail what he said. Generally speaking the Appellant did not dispute the allegations upon which the charges were founded except in relation to the barring order breach that occurred on 29 December 2008. In respect of that matter he asserted that he entered the hotel believing that the barring order had expired and ‘immediately left’ when he was ‘made aware’ of the true position. This claim is difficult to reconcile with the allegations said to have been made by the manager in relation to that incident (see [p.5] of these reasons).
In essence, the Appellant stated that he regretted his offences and emphasised that he had since matured as evidenced by his employment as a prison officer in Alice Springs. He supplied the Respondent with the character reference from the Deputy Superintendent of the Alice Springs Correctional Centre earlier referred to (see [p.3] of these reasons). The Appellant strongly denied that he suffered from bipolar disorder or schizophrenia. He explained that he suffered depression in 2007 and was prescribed Zoloft. He said that he had since recovered from his condition and was no longer taking medication.
Decision to refuse the application
On 14 March 2013, Ms Krystle Bobridge, a delegate of the Respondent made a decision to refuse the Appellant’s application for a security agent’s licence under section 8 of the Act on the basis that the Appellant was not a fit and proper person to be a holder of the licence and that to grant the application would be contrary to the public interest.
The Appellant was informed of the decision by letter dated 14 March 2013 and supplied with a copy of the written reasons which relevantly state:
Information supplied by South Australia Police indicates that Mr Russell was barred from the Cornucopia Hotel on 2 November 2007, and breached this order on 17 November 2007. On 13 November 2008 he was again barred from the Cornucopia Hotel for a period of 12 months, which he breached on 29 December 2008. He was given a final order barring him from the Cornucopia Hotel indefinitely.
On 26 October 2007 Mr Russell was stopped by a mobile random breath testing unit in Wallaroo and supplied police with a false name. When confronted with evidence of his true identity Mr Russell admitted to police that he had given a false name ‘to avoid getting in trouble’ as his driver’s licence was suspended at the time.
Mr Russell was supplied a copy of the information provided to the Commissioner by the South Australian police and was given the opportunity to provide a submission in response. Responses supplied by Mr Russell in his written submission vary significantly from the Police summary, particularity in reference to his actions while breaching the abovementioned barring order. Mr Russell’s version of events presents his actions in a far more positive manner than the police summary. Mr Russell does not refer to or explain these discrepancies and as such I find his account very suspect.
The offences committed by Mr Russell are of relevance to the duties of a security agent, particularly an agent seeking to perform the duties of a crown controller, where cooperation with the police and other security personnel is integral. Furthermore the offence history as a whole shows a pattern of dishonest behaviour and disrespect for the law. For these reasons I am not satisfied that Mr Russell is a fit and proper person to be licensed as a security agent and to grant the licence would be contrary to public interest.
In reaching this determination I have considered the information researched by the South Australia Police, the subsequent objection from the South Australia Police, the written submission supplied by the applicant, the purpose of the Security and Investigation Agents Act and the need to maintain public confidence in both the industry and the licensing scheme.
Pursuant to section 9(1)(d) of the Act in relation to the functions to be performed under authority of the licence, the application is refused.

The reasons assert that the Appellant had not been frank ‘in reference to his actions while breaching the abovementioned barring order’ but do not specifically identify which of the two barring order breaches offences the decision-maker was referring to. From my examination of the relevant documents the only significant variation between the allegations and the Appellant’s account relates to the offence committed on 29 December 2008. I have assumed that it was this discrepancy to which the decision-maker was referring.
The appeal
On 12 April 2013 the Appellant filed a Notice of Appeal against the Respondent’s decision pursuant to s 11(1) of the Act. In essence, the grounds of appeal complain that the decision-maker erred in concluding that he was not a fit and proper person to hold the licence he sought or that it would be contrary to the public interest for the licence to be granted.
The Appellant attached to his Notice of Appeal a written submission wherein he reiterated the points made in his response to the Notice of Objection emphasising that he had matured over the past 4-5 years and regretted his earlier misconduct. He denied that he had tried to conceal from the Respondent the offences which he had failed to specifically mention in the declaration and stated that he ‘knew they would look at the police reports’. The Appellant emphasised that he respected the police and had developed sound working relationships and friendships with police officers while working as a prison officer in Alice Springs. He submitted that he was now a person of good character and deserved a chance to work as a security agent.
On 22 July 2013 the Appellant filed an affidavit which amounted to a further written argument as to why he should be granted the licence sought. In effect he restated the points summarised above. In addition he denied that he suffered from a bipolar disorder or schizophrenia. He said he had suffered from depression in 2007 (for which he was prescribed Zoloft), but had since recovered from his condition and was no longer taking medication. The Appellant annexed to the affidavit a letter from Dr Jamie McCullough dated 26 June 2013, which states that the Appellant first attended the Mall Medical Clinic, Alice Springs on 9 August 2001 and that there was no record of him having been diagnosed with either bipolar affective disorder or schizophrenia.
The appeal was heard on 18 and 25 October 2013. The Appellant was not represented by counsel. The Appellant made oral submissions which involved emphasising the points he made in: (i) his written response to the Notice of Objection; (ii) his submission attached to the Notice of Appeal; and (iii) his affidavit, as summarised above.
Mr Trainor appeared as counsel for the Respondent. He presented a written outline of argument which he supplemented with oral submissions. He argued that there were no cogent reasons that would justify this Court departing from the decision appealed against. By way of summary, Mr Trainor submitted that the decision-maker was entitled to conclude that the Appellant was not a fit and proper person having regard to the following matters:
·the Appellant’s offending as a whole demonstrates poor judgment and a disregard for the law;
·the Appellant’s offences of hindering police (being argumentative and aggressive) and refusing to undertake an ‘alco-test’ on 26 October 2007 reflect a disrespect for authority;
·the Appellant’s barring from the Cornucopia Hotel on multiple occasions reflects a tendency to misbehave in that setting and a deficiency in the character and temperament required of a security agent, in particular a crowd controller;
·the Appellant’s offences of stealing a bicycle 11 years ago and providing police with a false name on 26 October 2007 involved dishonest behaviour; and
·the Appellant’s propensity for engaging in dishonest behaviour is further evidenced by his failure to declare his full criminal history and the discrepancy that exists between his account and the police allegations in relation to the circumstances of the second barring order offence committed on 29 December 2008.
It should be noted that Mr Trainor did not challenge the Appellant’s contention that he has never been diagnosed as suffering from bipolar affective disorder or schizophrenia or the accuracy of the letter from Dr McCullough. However, I agree with Mr Trainor that nothing turns on this point because it is evident that the Appellant’s mental health was not a ground upon which the decision was based. Nonetheless, it should be observed that I accept, and presumably the decision-maker accepted, that there is no sound evidence to suggest that the Appellant suffers from any form of mental illness that would render him unfit to work as a security agent.
Consideration
As earlier stated, the onus is on an applicant to establish that he is a fit and proper person to hold the licence sought and that it would not be contrary to the public interest to grant the licence. Accordingly, the issue for my determination is whether there are cogent reasons for departing from the decision-maker’s conclusion that the Appellant failed to discharge the onus cast upon him in that regard.
There is force in the Respondent’s submission that the nature of the Appellant’s offending reflect a disregard for the law and that several of his offences show a poor attitude to police. Furthermore, his drink driving offences and his conduct at the Cornucopia Hotel which resulted in the imposition of barring orders, two of which he breached, indicate that he had a problem with alcohol at the time of those events.
The Appellant asserts that he that he has matured since the commission of these offences and changed his ways. I accept that he has made substantial efforts to turn improve his life. His last offence was committed over four years ago and involved an offence of speeding. His last more relevant offence (entering licensed premises from which he had been barred) was committed just over five years ago. Since then he has become engaged and worked as a prison officer carrying out his duties in a manner highly commended by the Deputy Superintendent of the Alice Springs Correctional Centre. However, this information was before the decision-maker and considered prior to rejecting his application for a licence.
It seems to me that a substantial difficulty with the present appeal is the Appellant’s failure to declare his full criminal history. It is true that he qualified his declaration by stating that there may have committed other offences which he could not remember. It was open to the decision-maker to reject this explanation as implausible given the number of offences which were omitted. The Appellant contends that he would not have deliberately failed to mention all of his offences because he was aware that the police could make enquiries. However, I think it was open to the decision-maker to conclude, as she apparently did, that the Appellant may have omitted mentioning all of his offences, in particular the hinder police and barring order offences, because he hoped that his declaration might not be investigated.
A further difficulty lies in the discrepancy between the Appellant’s account and the police allegations in relation to the circumstances of the second barring order offence committed on 29 December 2008. On the available evidence it was open to the decision-maker to reason that he had attempted in these proceedings to present his account in a more positive manner than the police records. Standing alone, the discrepancy might not be characterised as a weighty factor. But when considered in conjunction with the Appellant’s failure to provide a full account of his offending history, it takes on added significance. General good character is a vital feature of much of the work involved of a security guard.[10] Honesty is expected from licence applicants. In the circumstances, the decision-maker was entitled to reason that the Appellant’s lack of frankness in relation to these matters indicated that, despite the positive steps he has undertaken to improve his life, his rehabilitation is not complete.
[10] See Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387, 390.
It must be remembered, as I have emphasised, that it was for the Appellant to satisfy the decision-maker that, despite his record, he was now a fit and proper person to carry out the duties of a security agent. I do not think it can be said that the decision-maker has demonstrably erred in rejecting his application. In other words, cogent reasons have not been established that would permit this Court to depart from the decision appealed against. Accordingly, the appeal must be dismissed.
Of course, this does not mean that the Appellant is forever barred from being a security agent. The Appellant’s lack of frankness in respect of the above mentioned matters may recede to a point of insignificance should he continue to improve his lifestyle and remain offence free. At that point a further application for a security agent’s licence may be favourably received.
Order
Appeal dismissed.