TANG and COMMISSIONER OF POLICE
[2009] WASAT 14
•27 JANUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: TANG and COMMISSIONER OF POLICE [2009] WASAT 14
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 21 JANUARY 2009
DELIVERED : 27 JANUARY 2009
FILE NO/S: VR 204 of 2008
BETWEEN: TUYEN TRONG TANG
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Security officer - Crowd controller - Character - Fit and proper - Previous offences - Rehabilitation
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 52 (c), s 72(1)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Sergeant Bagley (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
A and Commissioner of Police [2005] WASAT 121
Coulthard v Henker [2003] WASCA 187
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Tang applied for a review of the decision by the Commissioner of Police to refuse his application to be licensed as a security officer and crowd controller.
The Commissioner contended that due to Mr Tang's criminal record and his failure to declare all his offences to the Commissioner in his application to be licensed, he ought not to be licensed. Mr Tang's criminal record comprised 12 convictions committed between March 2000 and March 2007. These included convictions for burglary, possessing a controlled weapon, fraud, assault occasioning bodily harm and driving while under suspension.
Mr Tang expressed remorse and told the Tribunal he is a changed person and that he deserves another chance. He is 28 years of age and is working as a laboratory supervisor. He has shown himself in recent years to be reliable and he has set goals to further improve his life in the next few years.
The Tribunal found that on balance it was not satisfied that sufficient time had lapsed since the offences were committed and the application to be licensed as a security officer or crowd controller. Although it accepted that Mr Tang had shown some remorse for what had happened, the Tribunal got the impression that Mr Tang was looking for excuses for the offences and even downplayed the seriousness of it. He failed to demonstrate sincerity and he appeared to regard some of the serious traffic offences in a dismissive manner. The Tribunal also noted that Mr Tang did not complete the licence application submitted to the licensing officer truthfully and failed to declare the totality of his criminal convictions to the licensing officer. His reply to questions in regard to the incomplete form was unconvincing and he again failed to show remorse for providing incomplete information to police.
The Tribunal had to take into account the seriousness of the offences, that they were committed over a period of time, and that the most recent conviction was in March 2007 for driving under suspension. For a person to be licensed as a security officer and crowd controller a high degree of trust, integrity and respect for the law is required.
The Tribunal is satisfied that although Mr Tang may have been young when some of the offences were committed, he continued offending into his adult life. When all of these are combined, it reflects negatively on his character.
The decision of the Commissioner of Police not to issue the licences was affirmed.
Background
This is an application under s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (Act) whereby Mr Tang seeks review of the decision by the Commissioner of Police (Commissioner) to refuse his application to be issued with a security officer licence and a crowd controller licence.
The Tribunal can affirm the decision, revoke it, set it aside and substitute it with another decision. The Tribunal can also refer the decision back to the Commissioner to reconsider.
The Tribunal may not issue the licence unless it is satisfied that Mr Tang is of good character and that he is a fit and proper person to hold such licences pursuant to s 52(c) of the Act. The Act provides as follows:
A licensing officer is not to issue a licence unless the officer is satisfied
(a)…
(b)…
(c)that the applicant is of good character and is a fit and proper person to hold a licence; (emphasis added)
The licensing officer refused the application on the following grounds: Mr Tang acted dishonestly when he failed to declare on his application form the entirety of his criminal record. He only mentioned that he had a 'fine suspension', while in fact he had been convicted of several other very serious offences. The totality of his criminal convictions amounts to 12 offences during the period March 2000 to March 2007. The offences include burglary, breach of a community based order, possession of a controlled weapon, fraud, unlawful wounding, assault occasioning bodily harm, traffic demerit suspension, and driving without a licence.
Mr Tang contends that he is now a changed person, that he has stable employment, has set certain goals for his personal development and he deserves a second chance. The offences were committed when he was younger and reckless. He now takes care of his mother and would like to settle with a family.
Sergeant Bagley, for the Commissioner, contends that although the convictions were recorded between March 2000 and March 2007, the seriousness of the offences and the repeated nature of some of the offences support a decision that Mr Tang should not be licensed. The failure of Mr Tang to pay courtimposed fines demonstrates a lack of respect for the law and a disregard for a court order. Sergeant Bagley also questions if Mr Tang is remorseful and contends that Mr Tang is showing a lack of responsibility by viewing traffic offences as less serious. Sergeant Bagley notes that the two letters of reference submitted to the Commissioner were almost identical and suggests that little, if any, weight should be attached to it.
Security officers and crowd controllers are placed in positions of trust where they take care of other persons' property, they are placed in positions of authority, they are required to be law abiding and they are often exposed to persons who are under the influence of drugs or alcohol. Mr Tang has, according to Sgt Bagley, shown himself to be prone to disregard for the law, he has or had some form of association with a gang, he has been involved in violence and that reflects negatively on his character.
The Tribunal took into account all of the evidence and submissions before it.
Consideration
The Tribunal is faced on the one hand with Mr Tang's request to be licensed on grounds that he has changed his life and on the other hand the Commissioner who contends the public interest requires that Mr Tang should not be licensed at this stage.
The Commissioner accepts that as a general rule Mr Tang may again in future apply to be licensed and that, if he keeps his record clean, may be successful. The Commissioner, for now, is not satisfied that sufficient time has lapsed between the most recent offences and the application before the Tribunal to be satisfied that Mr Tang is a changed person.
The Tribunal must balance all the considerations before it to come to a correct and preferable decision. We note that the public interest is multifaceted on the one hand it requires that persons who do not meet the test of s 52(c) of the Act to be refused a licence, but the Act also allows a rehabilitated person to become integrated in society and therefore bestows the Tribunal with a discretion.
In the decision of A and Commissioner of Police [2005] WASAT 121 the Tribunal referred to several authorities dealing with the fit and proper test. In para 61 of the decision the Tribunal concluded as follows:
Members of the public, in particular those that visit facilities where licensees are on duty, expect licensees to comply with the high standards set by the Act and to demonstrate a level of moral integrity and rectitude of character commensurate with their duties. We have a duty to protect the interests of the public and maintain public confidence in the security industry.
The Act does not define what the legislator intended with the words 'good character' or 'fit and proper'.
We regard the finding by Barker J in Coulthard v Henker [2003] WASCA 187 at [60] particularly instructive, namely, that the issue before the licensing officer requires him to 'balance factors for or against the view that the respondent satisfied this (s 52(c)) requirement'.
The Tribunal has the discretion to take into account any relevant information that might assist it to come to a decision under s 52(c) of the Act. This includes taking into account considerations such as the objectives of the Act, the interests of the public, the nature of the duties that Mr Tang would be required to discharge, the circumstances in which the duties may be discharged, the criminal record of Mr Tang, the circumstances in which those offences were committed, the personal circumstance of Mr Tang and information regarding his character, the time that has lapsed since his convictions, and his ability to fulfil the duties required from him.
The test applied by the Tribunal is therefore not an exercise in theory but a decision based on the practical situation of Mr Tang.
The duties of security officers place them in situations of trust where they guard and protect the property of other persons and where they deal with persons who are potentially in vulnerable situations. Both these professions require a high degree of moral rectitude, trust, reliability, honesty and most importantly, a respect for the law.
The Act determines that the licensing officer 'is not' to issue a licence unless the officer is satisfied that Mr Tang is of good character and a fit and proper person to hold the licence. This provision is mandatory once the licensing officer is of the view that an applicant is not fit and proper and not of sound character to be issued a licence.
The Tribunal notes Mr Tang's evidence that he is making attempts to turn his life around for the good. He works in a senior position in a laboratory and has positive goals that motivate him. The Tribunal notes the character references but it attaches little weight to it for the following two reasons: firstly, two of the references are virtually identical and, according to Mr Tang's evidence, he typed it with his friends signing it. The letter, for purposes of a citizenship application, was also written by a friend and does not recognise the criminal convictions of Mr Tang or the nature of the licensing he is seeking.
The Tribunal must take cognisance of Mr Tang's criminal record and the demands placed upon the Tribunal by the public interest. Mr Tang has, over a period of time, shown a disregard for the law. These acts reflect on his character. In his appearance before the Tribunal, Mr Tang seemed to play down some of the offences as if they were less serious. He refused to pay fines imposed for traffic convictions without seeking any arrangement to pay it off over a period of time. Mr Tang left in the mind of the Tribunal the impression of a person who may be motivated to improve his life, but who continues to fail to show real remorse for what he had done in the past.
This impression of the Tribunal is confirmed by the way in which Mr Tang replied to questions as to why he failed to declare all his convictions to the licensing officer. On the one hand he said that he only thought he needed to declare the most recent offence, while on the other hand he said there were not enough lines to list all the offences. Both of these explanations are rejected by the Tribunal.
On balance, the Tribunal is not satisfied that sufficient time has lapsed since the offences were committed and the application to be licensed as a security officer or crowd controller. The Tribunal is not satisfied that Mr Tang is showing real remorse and a deep-rooted commitment to comply with the norms placed on crowd controllers and security officers. The Tribunal accepts that he is in a process of sorting his life out, but we must also take into account the seriousness of the offences, that they were committed over a period of time, and that as a security officer and crowd controller a high degree of trust and integrity is required.
Mr Tang may again apply in future to be licensed and such application would then again be considered on its merit.
Finding
Following from the evidence presented, the Tribunal is not satisfied that Mr Tang meets the requirements of s 52(c) of the Act. The Tribunal is therefore not empowered to set aside the decision of the licensing officer. The decision of the licensing officer to refuse to issue the licences should therefore be affirmed.
Orders
1.The application for review fails.
2.The decision by the licensing officer not to issue a crowd controller licence or a security officer licence to Mr Tang is affirmed.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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