Vlahos v Commissioner of Police, NSW Police Force

[2013] NSWADT 199

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Vlahos v Commissioner of Police, NSW Police Force [2013] NSWADT 199
Hearing dates:	28 June 2013
Decision date:	28 June 2013
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decision under review is affirmed.
Catchwords:	Security Industry Act - security industry licence - refusal to grant licence
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997
Cases Cited:	Abdel-Ghani v Commissioner of Police, NSW Police Service [2002] NSWADT 20 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389. Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151 Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 lnfarinato v Commissioner of Police, NSW Police Force [2004] NSWADT 43 Saadieh v Director General Department of Transport [1999] NSWADT 68 Sobey v Commercial Agents Board [1979] 22 SASR 70
Category:	Principal judgment
Parties:	Omelio Vlahos (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	P Couch, Sparke Helmore (Respondent)
File Number(s):	133123

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of the determination by a delegate of the Commissioner of Police ("the Commissioner") to refuse an application by Mr Vlahos ("the Applicant") for a Class 1AC security licence under the Security Industry Act 1997 ("the Act").

1. The application was refused on the grounds that the Applicant was not a fit and proper person and that the grant of the licence was contrary to the public interest. In reaching that decision, the delegate relied upon the Applicant's convictions for a number of traffic offences in the period from February 2001 to February 2012.

1. The Applicant has applied to the Tribunal for external for review of the Commissioner's decision.

1. The matter came before me for hearing on 28 June 2013. I determined that the Commissioner's determination should be affirmed and I gave brief reasons for my decision. The Commissioner has requested written reasons for the decision and these reasons are provided in response to that request.

Applicable law

1. The Act established a scheme for licensing people to carry on security activities. Section 11 of the Act provides:

11 Class 1 licences

(1) Class 1 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows:

(a) class 1A - authorises the licensee to patrol, protect, watch or guard any property while unarmed (and whether while static or mobile),

...

(c) class 1C - authorises the licensee to act as a crowd controller or to act in a similar capacity,

1. Within the Act, there are clearly defined circumstances where the Commissioner may refuse to grant an application for a licence. Section 15 of the Act relevantly provides:

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant:

(a) is a fit and proper person to hold the class of licence sought by the applicant, or

...

(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.

1. Section 63 of the Administrative Decision Tribunal Act 1997 ("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. A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.

1. Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

1. 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: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."

1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, that:

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 fitness and propriety are under consideration.

1. Toohey and Gaudron JJ said at 380:

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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in 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. In Sobey v Commercial Agents Board [1979] 22 SASR 70 Walters J said at 75:

I cannot imagine anything that is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded of crucial importance.

1. The Court also said at page 76:

in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails

1. A person's fitness is to be considered in the light of the activities that the person will undertake. Fitness with respect to an office is said to involve honesty, knowledge and ability: see Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156 - 7.

1. The Courts and the Tribunal have held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 the Wilox CJ and Keely J said:

The purpose of the reference to public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.

1. In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held:

"The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals"

1. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Tribunal's Appeal Panel said:

The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual"

1. The Tribunal has also found that an Applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry (Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at [32]).

1. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] the Appeal Panel held:

The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.

The Commissioner's case

1. The Commissioner submits that, having regard to the Applicant's lengthy criminal record and list of traffic offences, the Tribunal cannot be satisfied that the Applicant is a fit and proper person to hold a licence under the Act.

1. Further, the Commissioner submits that the Tribunal cannot be satisfied that granting the Applicant a security licence is in the public interest having regard to the fact that the Applicant has regularly failed to comply with the conditions of his driving licence. On the basis of the Applicant's failure to comply with the conditions of his driver's licence the Tribunal cannot be satisfied that the Applicant is likely to comply with the requirements of the security licensing scheme.

1. In support of these submissions the Commissioner relies on a bundle of material filed pursuant to section 58 of the ADT Act. Contained within that material is documentation showing the following history of offences:

OFFENCE	COURT / DATE	RESULT
Drive On Road Etc While Licence Suspended (2 Counts)	North Sydney Local Court on 13/02/2001	Community Service Order Without Cond: 150 Hours Cone Disqualification: 24 Months
Drive On Road Etc While Licence Suspended	North Sydney Local Court on 13/02/2001	Community Service Order Without Cond: 150 Hours Disqualification: 24 Months
Drive On Road Etc While Licence Suspended	Burwood Local Court on 23/01/2001 Burwood Local Court on 19/02/2001	Convicted S25(2) Warrant To Issue: (Case Re-opened Under S100D Justice Act) Fine: $250 Disqualification: 12 Months Concluding 18/02/2002
Drive While Disqualified From Holding A Licence Use Unregistered Vehicle On Road Area (Not A Trailer) Use Uninsured Motor Vehicle	Hornsby Local Court on 31/10/2001	Imprisonment: 6 Months Commencing 31/01/2002 Concluding 30/07/2002 suspended On Enter Bond S12: 6 Months Disqualification: 2 Years Commencing 13/02/2003 Fine: $250 Costs - Court: $58 Fine: $250 Costs - Court: $58
Drive On Road Etc While Licence Suspended	Sutherland Local Court on 21/05/2009	Bond S10: 3 Months
Use Unregistered Registrable Class A Motor Vehicle Drive When Licence Suspended Under S66 Fines Act - 1st Off	Hornsby Local Court on 14/03/2011	Fine: $258 Costs - Court: $79 S10A Conviction With No Other Penalty: Disqualification: 3 Months Concluding 13/06/2011
Drive While Disqualified From Holding A Licence	Downing Centre Local Court on 10/05/2011 Downing Centre Local Court on 17/02/2012	Imprisonment: 6 Months Suspended On Enter Bond S12: 6 Months Supv NSW Prob Service Disqualification: 2 Years Intensive Correction Order: 6 Months Commencing 02/03/2012
Drive While Disqualified From Holding A Licence	Downing Centre Local Court on 17/02/2012	Intensive Correction Order: 9 Months Commencing 02/03/2012 Costs - Court: $81 Disqualification: 2 Years Commencing 14/06/2013 Concluding 13/06/2015

1. The Commissioner also relies on the Applicant's October 2000 conviction for the offence "possess unauthorised firearm" under section 7(1) of the Firearms Act 1996. The Applicant was placed on a section 9 bond for 18 months and he was ordered to pay a fine of $300 and court costs.

1. The Commissioner submits that in light of these offences the Tribunal cannot be satisfied that the Applicant is a fit and proper person to hold a security licence or that it is in the public interest for the Applicant to be granted a security licence.

1. The Commissioner submits that the Applicant has not taken the traffic legislation seriously and that there is nothing before the Tribunal that would suggest the Applicant is likely to take the requirements of the Act seriously if he was granted a security licence.

1. The Commissioner notes that some of the instances occurred when the Applicant had been charged by the Police for a similar offence and was awaiting sentence or had recently had his drivers licence disqualified by a Court. The Commissioner submits that the Applicant was well aware that he was doing the wrong thing by driving without a valid licence, yet the Applicant chose to drive anyway on multiple occasions.

1. In addition the material before the Tribunal reveals that when caught by Police in relation to a traffic offence the Applicant is prepared to make excuses in an attempt to justify his behaviour. The Commissioner submits that the Applicant's attempts to make excuses for his breaches demonstrate a failure to appreciate the importance of the requirements of the licensing regime and the need to comply with them.

1. The Commissioner submits that this behaviour calls into question the Applicant's character and whether he is a fit and proper person to hold a security licence.

1. In regard to whether the Applicant is a fit and proper person to hold a security licence the Commissioner relies on the various authorities referred to above. In addition, reference is made to the decision of Judicial Member Leal in Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151 where at paragraph [16] she found that the factors identified in Saadieh v Director General Department of Transport [1999] NSWADT 68 at 17, were readily adaptable to determining a person's fitness and suitability to hold a security licence. These included:

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

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

c. the applicant's reputation in the community; and

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

1. The Commissioner also relies on the views that I expressed in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 where at paragraph [27] I said:

...fit and proper 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 regard to whether it is in the public interest for the Applicant to hold a security licence the Commissioner relies on the various authorities referred to above. In addition, reference is made to my decision in lnfarinato v Commissioner of Police, NSW Police Force [2004] NSWADT 43 where I said at paragraph [18]:

Public interest in the context of section 15(3) of the Security Industry Act 1997 requires paramount consideration be given to public safety.

1. The Commissioner notes that the Applicant has provided a number of character references in support of his application. The Commissioner submits that these references should be given little weight as they make little or no reference to the Applicant's criminal history or traffic record. Similarly, it is submitted that the fact that the Applicant has been unemployed for an extended period of time should be given little weight in circumstances where the Applicant has an extensive traffic record that indicates a disregard for public safety and the integrity of the licensing system that applies to our roads.

1. The Commissioner submits that the Applicant's private desire to obtain a security licence that may enable him to obtain work should not outweigh the public interest in protecting the community by maintaining high standards in the security industry.

The Applicant's case

1. The Applicant relied on his own evidence. He attended the hearing and was cross-examined. He also relies on a number of character references in support of his application.

1. The Applicant does not dispute the history outlined by the Commissioner. Nor does he attempt to excuse his behaviour. However, he contends that the firearms offence occurred a long time ago and has no bearing on his suitability to hold a security licence. He also asserted that he has had no driving offences for two years.

1. He explained that his driving offences occurred in blocks and coincided with troubled relationships. He said that he is now in a different frame of mind, in a stable relationship and has a young child. He said that his daughter has been a positive influence and he wants her to grow up knowing of him as a good provider. He wants the chance to prove himself. He has been assured of work if he obtains a security licence. He has been without work for a significant period of time and he sees the grant of the licence he is seeking as a chance to rejoin the workforce.

1. The Applicant's Employment Consultant at ORS Group, a government contract Employment Service Provider, stated:

In the time that Omelio has been linked with our organization, he has shown motivation, persistence and a positive attitude ...

1. The Applicant's evidence is that he attended counselling and driver awareness training while he was the subject of an Intensive Correction Order. He said that it gave him a 'wake up call'. He has subsequently undertaken voluntary work for a local business and at Cabramatta High School. The role he has played at the school is explained in a letter from the school's Teaching and Learning Position and Year Advisor, Ms Carol Paras. Ms Paras wrote:

I have known Omelio Vlahos for a period of 2 years. I have worked with him as a supervising teacher, in a special volunteer program, that ran once a week for duration of a year. Omelio is very generous hardworking and compassionate person. This can be seen in his willingness and motivation in offering his automotive skills, in teaching a group of high risk students. Omelio willingly gave his time, knowledge and advice to these students.

Omelio has not only shared his automotive skills he also achieved a meaningful rapore with these male students. From all the students evaluations all indicated how successful Omelio's advice and mentoring was extremely valued. Omelio was highly respected; he made a difference to these students' lives. This shows how Omelio demonstrated his generosity and compassion to others.

Omelio has expressed how important gaining his Security Licence is in achieving his professional and personal goals.

1. In regard to the Applicant's voluntary work for a local business, Joe Fillipelo wrote:

I have known Omelio Vlahos for a period of 10 years. I am a local business owner within the Lane Cove community.

Within this time Omelio has proven to be a dependable, respectful and helpful person and more importantly a loyal friend.

Omelio has watched my business for me on a number of occasions whilst I was short staffed and needed to be called away on personal emergencies.

On all occasions Omelio has conducted himself in a professional and honest manner, leaving me at ease knowing that my shop has been looked after.

Omelio keeps to his word and values honesty, integrity and hard work. Although Omelio has made some poor choices in regards to his previous driving offences, which has caused him a great deal of distress and many lost opportunities in regards to gaining employment, I see him as a fit and proper person to hold a security licence.

1. Similarly, Neale Pride wrote:

It is my pleasure to write this reference on behalf of Mr Omelio Vlahos.

I have known Omelio for the past 12 years. He has assisted me with the operations of my business on a regular basis. We deal with a large Cash turnover with very High Security measures in place.

Omelio has always been honest and very reliable, he has a daily contact with our large customer base, where he excels with ease. All our staff and clientele enjoy working with Omelio.

1. The Applicant expressed remorse for his past conduct. He says that he has paid for his mistakes and that they should not inhibit his future. He contends that he is now a fit and proper person to perform the role of a security guard. He does not agree that it is not in the best interests of the public for him to hold a licence.

Consideration

1. The Commissioner refused to grant a security licence to the Applicant for two reasons: because he was not satisfied that the Applicant was 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.

1. One of the objects of the Act is to regulate security activities, so that licences are conditional on the overriding need to ensure public safety and the protection of property. The Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard.

1. The Applicant has a long history of traffic related offences and has been the subject of other charges. There is a significant amount of evidence before me that relates to those offences. I also have the Applicant's evidence and references, which suggest that the Applicant has changed his ways in recent times. His references indicate that he has undertaken voluntary work within the community and he is well regarded by those with whom he has worked. I accept that evidence.

1. I accept that the Applicant has an unblemished record for the last two years. However, this relatively short period must be balanced against the long period in which he regularly offended.

1. As indicated above, Judicial Member Leal in Forbes v Commissioner of Police, New South Wales Police Service referred to a number of factors that she considered relevant to the determination of a person's fitness and suitability to hold a security licence. I expressed a similar view in the matter of Abdel-Ghani v Commissioner of Police, NSW Police Service [2002] NSWADT 20. These factors included:

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

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

c. the applicant's reputation in the community; and

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

1. The Applicant's offences were frequent and serious.

1. In assessing the last factor, the length of time since the offences were committed and the circumstances in which they were committed is relevant. Also relevant is the Applicant's admission of responsibility and remorse, as well as efforts of the Applicant to rehabilitate and any change in the Applicant's circumstances such as increased support from others.

1. In the present matter, these considerations tend in favour of the Applicant. Most of the offences are traffic related. I agree with the Commissioner that the offences demonstrate a failure to appreciate the importance of the requirements of the licensing regime and the need to comply with them. In that regard the conduct calls into question the Applicant's character and whether he is a fit and proper person to hold a security licence.

1. The Applicant has acknowledged his offences and does not attempt to excuse them. He has expressed remorse and has made significant efforts towards rehabilitation. His family circumstances are now stable. These are all considerations in his favour. Weighed against them is the relatively short time since the offences were committed. In my view, a longer period without offending is warranted before the licence should be granted.

1. At this time I am unable to be confident that the Applicant will not re-offend, or commit further offences. In my view, a further period of six months of continued effort would be sufficient to satisfy me that he is unlikely to revert to his previous conduct and that he is a fit and proper person to hold a security licence.

1. I do not propose to discuss the other issues raised by the Commissioner in detail; however, I note that I agree with the Commissioner that at this time it is not in the public interest that the Applicant hold a security licence under the Act. I agree that the Applicant's private desire to obtain a security licence that may enable him to obtain work should not outweigh the public interest in protecting the community by maintaining high standards in the security industry.

1. I recommend to the Commissioner that if the Applicant does not come to the attention of the police for any other reason in the next six months, if he continues the reformation process that he has already started and has followed in recent times, and if he reapplies for a security licence, then the licence should be granted.

1. On the evidence before me, it is my view that the correct and preferable decision is that the Applicant should not be permitted to hold a security licence at this time. It follows that the decision of the Commissioner should be affirmed.

Order

The decision under review is affirmed.

Decision last updated: 06 September 2013