ULIJN and COMMISSIONER OF POLICE - [2009] WASAT 149

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)

CITATION: ULIJN and COMMISSIONER OF POLICE [2009] WASAT 149

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 29 JULY 2009

DELIVERED : 5 AUGUST 2009

FILE NO/S: VR 69 of 2009

BETWEEN: PARIS ROSE ULIJN
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Security officer Crowd controller Character Fit and proper Previous offences Offences committed while juvenile Traffic offences Spent conviction Combined weight of previous convictions

Legislation:

Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 72(1)

Result:

The application is dismissed
The decision of the Commissioner of Police to refuse to issue the licences is affirmed

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 Henneker [2003] WASCA 187

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Ms Ulijn applied for a review of the decision by the Commissioner of Police to refuse her application to be licensed as a security officer and crowd controller.
The Commissioner of Police contended that due to Ms Ulijn's criminal convictions as a juvenile and as an adult, she was not fit and proper and of sound character to be licensed. Ms Ulijn had several criminal convictions as a juvenile and as an adult related to theft, fraud and giving a false name to police.
Ms Ulijn contended that the incidents she was convicted of as a juvenile should be disregarded, and that the incidents as an adult were not of great seriousness. She alleged that she was being discriminated against due to her family's involvement in criminal activities. She made a strong plea that she has changed her life and requires another chance.
The Tribunal found that, on balance, it was not satisfied that Ms Ulijn met the statutory requirements to be licensed as a security officer or crowd controller. The incidents committed while she was a juvenile demonstrate a trend and consistency with the incidents she has been convicted of as an adult. It is therefore proper for the Tribunal to take all the incidents into account for the purpose of these proceedings. 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. Such a person must, in particular, be trustworthy when dealing with the private property of others. The way in which Ms Ulijn has defrauded other people, used their identity for her private benefit and provided false information to the Police in traffic matters, combine to reflect negatively on her character and the public interests demand that she not be licensed at this stage.
The Tribunal noted that Ms Ulijn may again, in the future, apply to be licensed.
The application was therefore dismissed and the decision of the Commissioner of Police not to issue the licences was affirmed.

Issue

The issue in dispute is whether the decision by the Commissioner of Police (Commissioner) to refuse to issue a crowd control and a security officer licence to Ms Ulijn should be set aside.

Background

This is an application under s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (Act) whereby Ms Ulijn seeks review of the decision by the Commissioner to refuse her 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 Ms Ulijn is of good character and that she is a fit and proper person to hold such licences pursuant to s 52(c) of the Act, which provides as follows:
A licensing officer is not to issue a licence unless the officer is satisfied ‑
…
(c)that the applicant is of good character and is a fit and proper person to hold a licence; (emphasis added)

Submissions by the parties

The Commissioner refused the application on the following grounds:
•Ms Ulijn has a lengthy criminal record that spans three years, including two years as a juvenile. The nature of the convictions relate to honesty and integrity. As a juvenile and an adult, she committed crimes related to fraud, falsification of identity and providing false information to the police.
•Although some of the convictions were committed as a juvenile and one conviction was 'spent', the decision‑maker must take into account all the information before a licence is granted.
•Little weight should be given to the character references since the persons were clearly not aware or did not refer to the full extent of her criminal record.
•The public interest demands that a person who has been convicted of such serious offences ought not to be licensed until a substantial period of time has lapsed.
Ms Ulijn contends as follows:
•The incidents committed while she was a juvenile should be disregarded.
•The spent conviction regarding gaining a benefit by fraud should be disregarded.
•The traffic convictions, including those pertaining to providing false information to the Police, should be disregarded, since the convictions do not bear relevance to the duties of crowd controllers and security officers.
•She was given assurance in previous proceedings that her criminal record would not constitute a hurdle to be licensed as crowd controller or security officer.
•She has changed her life around and started a new page. The offences were committed when she had experienced a very unstable family situation and that has now changed.
•The Commissioner is discriminating against her for reasons of her family name.
•She is a fit and proper person and of sound character and should be licensed.

Consideration

The Tribunal is faced on the one hand with Ms Ulijn's request to be licensed on grounds that she contends that she has changed her life and the offences she has been convicted of are not serious enough to refuse her licences, while, and on the other hand, the Commissioner contends that public interest requires she should not be licensed due to her ongoing clashes with the law in matters that reflect negatively on her honesty and integrity.
The Commissioner stressed that a refusal to issue the licences does not mean that Ms Ulijn is permanently barred from being licensed. If she can show that she has been rehabilitated and does not have ongoing breaches of the law, she could in future be licensed. The Commissioner is, however, not satisfied that sufficient time has lapsed between the offences and the application.
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 to be licensed under the Act, 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 [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 Henneker [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 Ms Ulijn would be required to discharge, the circumstances in which the duties may be discharged, the criminal record of Ms Ulijn, the circumstances in which the offences were committed, the duration over which they were committed, the nature of the offences, the personal circumstance of Ms Ulijn and information regarding her character, the time that has lapsed since the convictions, and her ability to fulfil the duties required from her.
The test applied by the Tribunal is therefore not an exercise in theory but a decision based on the practical situation of Ms Ulijn.
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. People who entrust their property to the protection of security officers and crowd controllers are very vulnerable and can easily be exploited.
The fact that Ms Ulijn has, on so many occasions, acted fraudulently and dishonestly must weigh heavily against her being licensed.
The Tribunal understands that she has had a very difficult upbringing and that both her parents were in prison during the same period. The pressure she faced was probably more than any young person could bear. Although she has shown remorse in the Tribunal proceedings, her actions after each offence speak louder by her re-offending with regular intervals. Her most recent conviction was less than a year ago. The public would be outraged if a person with such a record and lack of remorse were to be licensed.
Both the professions of security officer and crowd controller 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 the licences unless the officer is satisfied that Ms Ulijn is of good character and a fit and proper person to hold the licences. 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 Ms Ulijn's evidence that some of these offences were committed when she was a juvenile and should not be taken into consideration. The Tribunal does not accept the contention. The Tribunal must take into account all information that may be of relevance to Ms Ulijn's ability to discharge her functions under the Act. The fact that she acted dishonestly and fraudulently as a 16‑year‑old is definitely relevant to the proceedings, especially in light of the fact that as an 18‑year‑old, she was again convicted of giving a false name to police and gaining a benefit by fraud. A serious trend of dishonesty has been established through Ms Ulijn's behaviour and she needs to turn it around as time progresses. She is nearly 20 years of age, but between the ages of 16 and 19, she was convicted of offences related to dishonesty, stealing, using a false name, giving a false name to the police, and breaching driving conditions.
The Tribunal notes the four character references, and those are indeed very complimentary to Ms Ulijn. At the same time, it appears, however, that the authors were not aware of her convictions or the full extent of her convictions. Mr Bradshaw acknowledged that her 'only mistake' was that she trusted someone that misled her. It is clear that he was also not aware of the full extent of her criminal record or, if he were, he failed to comment on it in his reference. The Tribunal accepts therefore that, for general purposes of employment applications, the character references may be positive, but for purposes of licensing under the SRAC Act, the Tribunal places emphasis on the convictions and the reflection these cast on Ms Ulijn's character.
On balance, the Tribunal is not satisfied that sufficient time has lapsed since the last offence was committed and this application to be licensed as a security officer or crowd controller. Ms Ulijn must show through her positive actions that she has placed her past behind her. Only the passage of time can demonstrate that she has, indeed, changed her ways.
The Tribunal accepts that she is in the process of sorting her life out, and we also accept Mrs Ulijn's evidence that her daughter faced incredibly difficult times as a young person. The Tribunal must, however, also take into account the seriousness of the offences, the number of offences, the nature of the offences and that, as a security officer and crowd controller, a high degree of trust and integrity is required, as well as respect for the personal property of members of the public.

Finding

Following from the evidence presented, the Tribunal is not satisfied that Ms Ulijn meets the requirements of s 52(c) of the SRAC 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.
Ms Ulijn is encouraged to continue with her road to rehabilitation and to show that she can change her life around in the way she intends doing.

Orders

1.The application for review fails.
2.The decision by the Commissioner of Police not to issue a crowd controller licence or a security officer licence to Ms Ulijn is affirmed.

I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER