Security Licence Application Refused Due to Conduct Concerns

The Tribunal affirmed the Commissioner's decision to refuse the claimant's security licence application due to concerns about his conduct and the public interest. The claimant's conduct was deemed unnecessary and unacceptable, potentially undermining public confidence in the security industry.

Civil and Administrative Tribunal [NAME]: [NAME] v Commissioner of Police, [NAME] [2014] NSWCATOD 70 Hearing dates: 26 February 2014 Decision date: 30 June 2014 Jurisdiction: Occupational Division Before: [NAME], Senior member Decision: The decision under review is affirmed Catchwords: Security Industry Act - security industry licence - refusal to grant licence - criminal charges dismissed Legislation Cited: Security Industry Act 1997 Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Cases Cited: Bazouni & [NAME] v Commissioner of Police, [NAME] [2002] NSWADT 100 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 [NAME] v Commercial Agents Board [1979] 22 SASR 70 [COMPANY] v [NAME] (No.2) [1955] HCA 28; (1955) 93 CLR 127 [COMPANY] v [NAME] (1995) 131 ALR 657 Director of Public Prosecutions v Smith [1991] VicRp 6 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [NAME] v Commissioner of Police, [NAME]; [COMPANY] v Commissioner of Police, [NAME] [2006] NSWADT 114 [NAME] v Commissioner of Police, [NAME] ([NAME]) [2013] NSWADTAP 16 Category: Principal judgment Parties: [NAME] (Applicant) Commissioner of Police, [NAME] (Respondent) Representation: [NAME]( Applicant in person) [NAME] (Respondent) File Number(s): 133364

reasons for decision 1The applicant, Mr [NAME], has previously been the holder of a Class 1AC security licence. 2Following an incident on 26 April 2012 when he was working as a security guard at [NAME] was charged with common assault, affray and behave in offensive manner in or near a public place or school. The incidents giving rise to the charges were captured on CCTV footage, which was tendered in court as evidence against [NAME] and is also before the Tribunal in the current proceedings. 3As a result of being charged for these offences while performing security activities, [NAME]'s security licence was revoked on 28 June 2012. 4On 3 July 2013, [NAME] appeared in the [ADDRESS] in relation to the charges against him. The alleged victim of the assault, [NAME], did not attend the proceedings despite attempts made to find him. It is common ground that the assault charges were based on two kicks to [NAME] by [NAME], following aggression by [NAME] towards a second security guard, [NAME]. The first kick was to [NAME]'s leg and the second, while [NAME] was on the ground on his hands and knees, to his torso. The question for the magistrate was whether, on each of these two occasions, [NAME] kicked [NAME] in defence of [NAME] and whether it could properly be said that [NAME] believed on reasonable grounds that his actions were necessary. 5In dismissing all charges against [NAME], the magistrate found the first kick by [NAME] to have been justified in the situation in order to enable [NAME] to defend [NAME]. In relation to the second kick, which [NAME] said he had made in the belief that [NAME] was attempting to get up again and may have been carrying a weapon, the magistrate stated: The question is whether or not the second kick was again disproportionate to the threat as he perceived it. He says that [NAME] was getting up and indeed the video does not contradict that or merely confirm it. He was just on his hands and knees and he could well have been getting up. If he were to do so, it is at least possible and reasonably possible that he would continue with the physical aggression which he had shown against [NAME]. Again the difficulty that I am having with this is indicative that I do have a reasonable doubt as to whether the second kick was proportionate in the circumstances and I dismiss the charge. 6On 10 July 2013, [NAME] applied for a Class 1AC security licence and on 22 October 2013, the Commissioner made a decision to refuse his application based on the incident which had taken place on 26 April 2012. This decision was affirmed following an internal review on 4 November 2013. 7In reaching this decision, the Commissioner found that the CCTV footage of the incident showed [NAME] acting in an overly aggressive manner towards [NAME], thereby raising serious concerns as to [NAME]'s suitability to be granted a security licence. On this basis, the Commissioner found that [NAME] was not a fit and proper person to hold a security licence. The Commissioner also found that, at that point in time, it was not in the public interest for [NAME] to be granted a security licence. The Commissioner relied on the decision of Bazouni & [NAME] v Commissioner of Police, [NAME] [2002] NSWADT 100 to find that in considering the public interest, it is the person's conduct, not the fact of a conviction, which is to be considered.

Review decision 8On 11 December 2014, [NAME] lodged an application for review of this decision to the Administrative Decisions Tribunal. On 1 January 2014 the jurisdiction of that tribunal was taken over by the [NAME] Tribunal (NCAT). As the proceedings are 'pending proceedings', the provisions of the Administrative Decisions Tribunal Act 1997 ([NAME]) (ADT Act) continue to apply: Civil and Administrative Tribunal Act 2013 ([NAME]), Sch 1, cl 6 and 7. 9The Tribunal's task is to determine whether the decision to refuse [NAME]'s licence is the 'correct and preferable' decision based on the all the material then before it and any applicable written or unwritten law: ADT Act, s 63. That means that the Tribunal is to take into account all the evidence, not just the evidence on which the Commissioner based his decision. The Tribunal may affirm, vary or set aside the Commissioner's decision to refuse to grant a security licence to [NAME]. 10The Security Industry Act 1997 provides for the granting of security licences. 11Within 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: [redacted] ... (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. 12The issue before the Tribunal is (1)whether [NAME] is a fit and proper person to hold a security licence; and (2)whether the grant of the licence would be contrary to the public interest.

Fit and proper 13In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 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. 14In [NAME] v Commercial Agents Board [1979] 22 SASR 70 Walters J said at 76: In my opinion, what is meant by [the expression fit and proper] 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. 15A 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 [COMPANY] v [NAME] (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156 - 7.

Public interest 16The 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 [COMPANY] v [NAME] (1995) 131 ALR 657, Wilox CJ and Keely J said at 681: 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. 17In 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 [NAME], 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. 18In 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. 19The Tribunal has also found that an applicant's personal interest in retaining his or her licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry ([NAME] v Commissioner of Police, [NAME]; [COMPANY] v Commissioner of Police, [NAME] [2006] NSWADT 114 at [32]). 20In [NAME] v Commissioner of Police, [NAME] ([NAME]) [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.

CONSIDERATION OF EVIDENCE 21The Tribunal held a hearing in this matter on 26 February 2014. At the conclusion of the hearing, the parties were granted time to provide further written material to the Tribunal. 22The following material is before the Tribunal in relation to [NAME]'s achievement in the security industry: * Certificate II in Security Operations dated 23 January 2009; * Statement of Attainment dated 14/10/10 in relation to the fulfilment of the requirements to apply first aid, provide basic emergency life support and perform CPR; * Statement of Attainment dated 19/2/04 following the completion of 11 units of competency in security guarding. 23In support of his application for review, [NAME] has provided a reference from [NAME], Director of Group Operations at [COMPANY]. Mr [NAME] states that [NAME] has been employed by the company since 2008 and offers to re-employ [NAME] were his security licence to be reinstated. 24Mr [NAME] describes [NAME] as follows: [NAME] has been a very reliable and courteous employee, carrying out all his duties with the upmost courtesy and professionalism. When working at various licensed premises, [NAME] always adhered to our company's work place policy (total hands off) and we have never had any issues or incidents with [NAME], regarding our work place policy at any licensed premises. 25In evidence before the Tribunal, [NAME] agreed that he had been on duty at The Old Manly Boat Shed on 26 April 2012 and that, as a result of an incident involving [NAME], had delivered two kicks to [NAME]'s body. His first kick had been to [NAME]'s calf, in order to get him to the ground, and his second kick had been to his torso. [NAME] told the Tribunal that he knew [NAME] was a former police officer and that he had information that [NAME] might have been carrying a concealed weapon. [NAME] told the Tribunal that, in the circumstances, he believed his use of force to have been appropriate, and that his second kick had been to enable him to arrest [NAME]. 26Mr [NAME], a security guard who had been on duty with [NAME] at the Manly Boat Shed on 26 April 2012, was also charged with assault that night. Following the dismissal of these charges in the [ADDRESS], [NAME] has since been granted a security licence. 27In explaining the Commissioner's decisions to refuse [NAME] a security licence despite having granted a licence to [NAME], for the respondent, advised that: The conduct of [NAME] involved [NAME] being thrown to the ground whereas [[NAME]'s] conduct involved a kick to the abdomen with a great degree of force applied to a person who was on his hands and knees and who was posing no threat to [[NAME]] or any other person at the time. The kick was, in the Commissioner's view directed at harming [NAME] for no justifiable reason and more serious in the circumstances. 28The Tribunal accepts [NAME]'s evidence that [NAME] had been aggressive in his behaviour and that it was only after [NAME] had lunged at [NAME], that [NAME] had delivered his first kick, to [NAME]'s leg. 29Having viewed the CCTV footage at hearing with the applicant and [NAME], however, the Tribunal agrees with the views of the Commissioner that when [NAME] had kicked [NAME] a second time, this time directing the kick to his torso, [NAME] had been on the ground and was posing no threat to any other person. There is no evidence before the Tribunal that [NAME] was in any way armed at the time and the Tribunal finds that, in the circumstances, the second kick by [NAME] was excessive. 30The Tribunal accepts that the charges made against [NAME] following the altercation were subsequently dismissed by the [ADDRESS]. However, the Tribunal's role is different to that of a court: it is not the Tribunal's role to consider whether [NAME]'s actions amounted to criminal behaviour, rather how they are to be seen when considering whether [NAME] is a fit and proper person to hold a security licence and whether it would be in the public interest for him to do so. It is, for these reasons, the conduct rather than the conviction that is of concern to the Tribunal. Bazouni & [NAME] v Commissioner of Police, [NAME] Service [2002] NSWADT 100 31With this in mind, the Tribunal finds that [NAME]'s conduct in delivering this second kick to [NAME] was, in the circumstances, both unnecessary and unacceptable. It is the type of behaviour that may lessen public confidence in the professionalism of the security industry, which has a special role in ensuring that public order is maintained and that the public and public venues are safe. 32For these reasons, the Tribunal finds that, at this stage, it would not be in the public interest for [NAME] to be granted a security licence. On this basis, the Tribunal is satisfied that the decision of the Commissioner to refuse to grant [NAME] a security licence should be affirmed. 33As the Tribunal has found that it would not be in the public interest for [NAME] to be granted a security licence at this stage and accordingly that the decision to refuse to grant him a security licence should be affirmed, the Tribunal has not proceeded to consider the additional ground as to whether or not he is a fit and proper person to hold such a licence. 34The Tribunal notes that the Commissioner would be prepared to favourably consider a further application for a security licence from [NAME] if he can: * provide to the Commissioner a letter from a [NAME] confirming an offer of work; and * show to the Commissioner that for a period of 12 months from this decision he has been able to remain of good behaviour without any adverse matters; or * show to the Commissioner that for a period of 6 months from this decision he has been able to remain of good behaviour without any further adverse matters and has undertaken a further course of learning, demonstrating competence in the subject: Manage conflict through negotiation.

Findings 35On the evidence before it, and for the reasons set out above, the Tribunal finds that, at this stage, it would not be in the public interest for [NAME] to hold a security licence. On this basis, it is the Tribunal's view that the correct and preferable decision is that [NAME] should not be permitted to hold a security licence at this time. It follows that the decision of the Commissioner should be affirmed.

Recommendation 36The Tribunal recommends to the Commissioner that if [NAME] should re-apply for a security licence then the licence should be granted provided that: * he can provide to the Commissioner a letter from a [NAME] confirming an offer of work; and * he can show to the Commissioner that for a period of 12 months from this decision he has been able to remain of good behaviour without any adverse matters; or that for a period of 6 months from this decision he is able to show that he has been able to remain of good behaviour without any further adverse matters and has undertaken a further course of learning, demonstrating competence to the Commissioner in the subject: Manage conflict through negotiation.

ORDER 37The decision under review is affirmed

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of [NAME]. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2014