Ajami v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 95
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11
Baker v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 54
Blisset v Commissioner of Police, New South Wales Police Force [2006] NSWADT 114
Source
Original judgment source is linked above.
Catchwords
Ajami v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 95Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11Baker v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 54Blisset v Commissioner of Police, New South Wales Police Force [2006] NSWADT 114Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Director of Public Prosecutions v Smith (1991) 1 VR 63Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Feuerstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114
Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT 6, [22]Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127Ibrahim v Commissioner of Police, New South Wales Police Force [2009] NSWADT 245IJ v Commissioner of Police, New South Wales Police Force [2003] NSWADT 230
Infarinato v Commissioner of Police, New South Wales Police Force [2004] NSWADT 43
Jones v Dunkel (1959) 101 CLR 298
Moujalli v Roads and Maritime Services [2014] NSWCATOD 63
McDonald v Director-General of Social Services [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Naylor v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 43
O'Neill v Commissioner of Police, New South Wales Police Service [2005] NSWADT 130
O'Sullivan v Farrer (1989) 168 CLR 210
Ping Kee v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 110
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Judgment (2 paragraphs)
[1]
The applicant's conduct
A preliminary matter in relation to the evidence concerning the status of the respondent's revocation decision dated 15 May 2017 and the internal review decision of 14 June 2017 affirming the revocation and incorporating more detailed reasons for it (exhibit R1, pp 73 -88). The respondent pointed out that s 55(2) of the Administrative Decisions Review Act 1997 and rule 24(3) and (4) of the Civil and Administrative Tribunal Rules 2014 created a system of time limits for challenging reviewable decisions. As the applicant's application to review the revocation decision, which was instituted within time, was withdrawn and dismissed and the applicant had not again sought to challenge the revocation or applied for an extension of time to do so, the respondent contended that the tribunal was entitled to treat the revocation decision as establishing, as an historical and foundational fact, that the applicant was not a fit and proper person to hold a security licence and it was not in the public interest that he do so.
Such an approach would be consistent with the review scheme established by the ADR Act and the CAT Act, and associated regulations and rules, whereas allowing the applicant a second opportunity to challenge the revocation years later would undermine that system. It would also have practical consequences for the disposition of review applications, as was illustrated by the fact that the respondent was now unable to locate Goran, an important witness in the matter. The parties were in agreement that there appears to be no authority on the point.
While the proposition has merit, it should be borne in mind that the revocation decision was a decision of the administrative body, affirmed following an internal review. As Molony SM pointed out in his decision on the costs application in this matter (at [22]), there had been no hearing on the merits, nor had the tribunal or any court reached any conclusions of fact. There was no opportunity to cross-examine the applicant, nor had any conclusions been reached by the tribunal about his honesty or candour. The evidence and conclusions in the revocation decision, in my view, can therefore be treated as no more than prima facie propositions that could be modified or rebutted, if procedural fairness permitted, by other evidence. But, as will be seen below, the applicant has not adduced any evidence in relation to the matters canvassed in the 2017 decision.
Some aspects of the revocation decision are not challenged, however, notably the respondent's summary of the nature and operating methods of SFAE. The revocation decision states that SFAE was facilitating the provision of security qualifications to New South Wales residents for the purposes of those residents obtaining a Queensland security licence under the Security Providers Act 1993 (Qld) by way of registration under the Mutual Recognition Act 1992 (Cth) and then subsequently obtaining a licence under the SI Act through registration under that scheme. Records obtained by SLED showed that between 23 November 2015 and 15 January 2017, SFAE issued 558 qualifications to New South Wales residents for Queensland licensing purposes.
SLED investigators interviewed or obtained statements from a number of enrolees and found that:
All of the applicants for a Queensland security licence resided in south-west Sydney
Almost all were foreign nationals temporarily residing in Australia by virtue of a student visa (and therefore not eligible for a licence under New South Wales legislation)
The applicants openly admitted that they were applying for a Queensland licence solely to obtain a New South Wales licence via a mutual recognition
Few, if any, stated that they intended to seek employment in the Queensland security industry
The majority displayed poor English comprehension and language skills
The applicants stated that they had undergone their "training" in Bankstown
In some cases, applicants stated that the training consisted entirely of being provided with answers which they transported into assessment books
The Queensland licence application was filled out for them, as part of the service, when they received their certificate.
On 27 March 2017, ASQA cancelled SFAE's registration for problems including "poor training and assessment practices, insufficient trainers, assessors and equipment, lack of information provided to students about courses, and non-compliance with New South Wales Security licensing requirements".
The revocation internal review decision then proceeds to relate information obtained from Goran, part of which is now disputed by the applicant:
Goran met the applicant in Bankstown and the applicant told him that he could do a "shortcut" course to obtain a Queensland certificate in security operations
Goran paid the applicant $2000 in cash and provided copies of his identification documents
the applicant informed Goran that he would receive a Queensland security licence in approximately two months
Goran later received a letter from the Queensland Office of Fair Trading advising him to get his fingerprints taken
Goran did not attend any training courses and was never issued a certificate
Goran did not lodge an application for a licence with the Queensland Office of Fair Trading even though the application process required a signed declaration from an applicant
the applicant provided Goran with the forms to apply for a licence in New South Wales under mutual recognition
after being contacted by the SLED investigators, Goran contacted the applicant, who provided him with coaching as to how to respond to the investigators' questions
the information that the applicant instructed Goran to provide was false (exhibit R1, pp 76 - 77).
The officer conducting the internal review of the refusal decision (the subject of the present application) made it clear that the review was taking into account the results of the investigation undertaken by SLED (exhibit R1, p 1423). Those results can therefore be taken to be incorporated in the internal review decision rejecting the licence application and to form the basis of the respondent's case.
The applicant's challenge to the decision under review rests essentially on the following propositions:
1. the available evidence establishes at best that the applicant referred a single person (Goran) to Mohammed Khalef of SFAE for training. It is true that he facilitated the process but he personally received no payment for it;
2. he denied any suggestion that he had told Goran or anyone else to provide false information to SLED investigators;
3. there was no other evidence establishing that the applicant was further involved in SFAE's alleged regulatory circumvention activities;
4. Goran's evidence cannot be accepted, including the suggestion that the applicant coached Goran to provide false information to investigators. "Those are matters that will require resolution by way of evidence".
In relation to his claim of having referred only a single candidate to SFAE, and of not being involved to any extent in SFAE's business, it is significant that on 23 July 2015 he paid $3300 to SFAE and on 19 September 2016 he paid $20,000 to SFAE, both amounts being specifically recorded as being for "training" (exhibit R1, p 1108). Those payments are not disputed. He also told SLED in his interview that he had referred "people" (meaning more than one) to Khalaf for security training certificates. His claim that he received no payment for referring students seems improbable, given that he made a significant payment to SFAE on 19 September 2016 for training, and Goran said that he had paid $2000 for the Queensland licence, but the applicant had never spoken about needing to do a security course.
Goran had said he "didn't want to ask too much questions because I thought that he's doing me a favour" (exhibit R1, p 1303). But he appears to have meant the "favour" was the prospect of obtaining a certificate without undertaking any training, and in return for paying more money. He said, "I thought that's the way, but he said the money you are going to get a licence. So I do not want to ask too much questions. I said okay, how is this working, he said 2 months, he just tell me" (exhibit R1, p 1313). Thus the applicant's characterizing the process as being in the nature of a favour was capable of being misunderstood.
The respondent states that the applicant coached Goran in advance of his first SLED interview, telling him that the investigators would ask him questions about where he had done the course and giving him a summary of the course content: "Then I went and he gave me like a small booklet, like some five, ten pages, it was nothing basically" (exhibit R1, p 1304).
More damaging is the exchange of WhatsApp messages about the giving of false information to SLED in order to conceal the fact that Goran had not completed a security course. On 11 September 2016, the applicant said, "I will get him to send me this info but they might also ask you about the course - To make sure you did it". Three days later he messaged Goran "18/04/16 to 30/04/16 Trainer Michael [Barouda] In Bankstown I assume within that period I sent you above you were in Australia not overseas?" (id., 289). The evidence shows that the trainer Michael Baroudi was overseas at the time and the information was thus obviously false (id., 1315, 1129).
[2]
Order
1. Decision under review affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
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: 07 March 2023
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10.
Category: Principal judgment
Parties: Pierre Georges Ajami (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Murphy's Lawyers (Applicant)
Bartier Perry (Respondent)
File Number(s): 2020/00098510
Publication restriction: Nil
Reasons for decision
The applicant Mr Pierre Georges Ajami applied to this tribunal on 31 March 2020 for review of the respondent's decision on 4 February 2020 to refuse him a class 1ACE 2BC security licence under the provisions of the Security Industry Act 1997 (SI Act) on the grounds that he was not considered to be a fit and proper person to hold a licence and that it was not in the public interest for him to hold a licence. On 4 March 2020, the applicant had applied to the respondent's Security Licensing and Enforcement Directorate (SLED), which administers the licensing scheme, for an internal review of the refusal decision.
The applicant had been issued with a class 1AC 2ABD security licence under the provisions of the SI Act on 16 September 2015. That licence was due to expire on 21 October 2020 but was revoked on 30 May 2017, and the applicant applied to this tribunal for review of that decision on 10 July 2017. The appeal was listed for hearing on 27 February 2018, after several delays. On 26 February 2018, however, the applicant withdrew that application and it was dismissed by the tribunal under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (CAT Act).
The respondent then lodged an application for costs, and on 1 May 2018 Moloney SM made a costs order fixed at $4000 against the applicant (Ajami v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 95). The applicant duly paid the costs awarded.
Subsequently, on 29 November 2019, the applicant applied for a class 1ACE 2BC licence. That licence would cover the following activities:
Class 1A - unarmed guard,
Class 1C - crowd controller,
Class 1E - monitoring centre operator,
Class 2B - authority to sell, and provide advice in relation to, security equipment and the services of persons to carry on any security activity, as well as to act as agent for the supply of persons to carry on any security activity.
Records also indicate the broad extent of the applicant's involvement with SFAE. During the period from June to November 2016, the applicant made 105 telephone calls to Khalaf, who in turn made 38 calls to the applicant (exhibit R1, pp 1131 - 1135). In his 29 November 2016 interview with SLED, however, he repeatedly said that he did not know the name of Khalaf's organization. When given its name, he said only that "It rings a bell" (exhibit R1, pp 622, 626). Yet at that time he already knew that SLED had interviewed Goran and was aware of its concerns about the Queensland transactions. He had also already transferred at least $3300 and $20,000 to SFAE, as was noted above. A little later he said he had sent "people" to another person in order to obtain a certificate; and as the context shows, the use of the plural was not a mere incidental slip of the tongue (exhibit R1, p 628).
Pointing to a picture of Khalaf, he had told SLED interviewers that he had "assisted him" by sending him "people" "So I'll be like, you know, the middle man. Just try to help out 'cause they know later they'll probably come and work for me" (id., 629). Despite his obviously significant involvement with Khalaf, he said when asked how often he would speak to him, "Ah, not very often" (id., 624). Yet the record shows 105 telephone calls in a 5-month period. And the use of the term "middleman" suggests more than a peripheral or casual involvement.
There is a large volume of other evidence that also shows that the applicant was associated with, and involved in, a scheme that promoted and facilitated New South Wales residents obtaining Queensland security clearances (with or without training, or adequate training) and then facilitating them obtaining a New South Wales licence under mutual recognition laws. The applicant has not been frank and candid with SLED and previously with this tribunal as to his involvement in the scheme, the extent of his dealings with Khalaf, his dealings with Goran and his interactions with Goran and Khalaf during the SLED investigation.
Again, his contention that he has no prior history of any non-compliance with regulatory requirements ignores the fact that non-compliance issues had been raised with him in May 2015 by Mr Louis Saperas of SLED in connexion with the provision of an unlicensed person to carry out security activities (exhibit R1, pp 1227 - 1229).
In his written submissions, the applicant refers to his grounds for challenging the conclusions of the SLED investigation and states, "These are matters that will require resolution by way of evidence". Yet he has not provided any evidence in relation to the events leading to the revocation decision and has not acceded to the respondent's request to be available for cross-examination in relation to those events.
As the Appeal Panel of the Administrative Decisions Tribunal (this tribunal's predecessor) stated in Baker v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 54, [15], "In our experience, it is most unusual for a licensee not to give oral evidence at a hearing relating to the loss of their licence on discretionary grounds. Revocation decisions frequently involve character assessments or other assessments of a personal nature. Plainly, direct evidence from the licensee is helpful in forming a view as to the merits of the administrator's opinion."
The only evidence he has adduced is his unsworn written statement, exhibit A1, in which he explains that he has sought to refresh his knowledge of security industry requirements by undertaking a training course, the same one as he undertook in 2011, an action which, the respondent submitted, was of little significance as taking the same course in 2011 had not prevented him from engaging in the conduct described above.
It might be possible, however, in such circumstances, for an applicant who has learned from his experiences to approach the course with a new understanding and draw more from it. But there is no evidence of that. Strikingly, there are no character references or references from persons in the industry, despite the stress that the applicant places on his supposedly excellent links and contacts in the industry.
He also refers to his financial and career needs as factors favouring re-admitting him to the security industry. But as was pointed out above, an applicant's personal interest in recovering a licence cannot outweigh the public interest in maintaining full confidence in the professionalism of those involved in the industry. Nor should the decision-maker shy away from exercising the discretion merely on the ground that the licensee or his dependants may suffer hardship or inconvenience or both. All the circumstances of the conduct must be taken into account: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [22]; Blisset v Commissioner of Police, New South Wales Police Force [2006] NSWADT 114, [32].
As the discretion must be exercised in light of the activities that the person will be engaging in, the Act's objects and purposes are relevant. They include the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in it are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, New South Wales Police [2005] NSWADT 130. As was explained in Haining at [22], the security industry has a special role in ensuring that public order is maintained, and that the public and public venues are safe.
While a licence holder, the applicant promoted, and was knowingly involved in, a scheme that tended to undermine the rigours of the New South Wales system. His attempts to downplay or obscure the extent of his involvement reflect poorly on him. Licence holders are expected to be frank and candid if the regulatory scheme is to achieve the statutory objectives. The applicant had compromised the New South Wales system and was assisting Goran to provide an inaccurate account to SLED.
People can and do change and, as is noted above, those who have contravened social norms can learn from their experiences. The applicant's record is not such that he could not be regarded as having rehabilitated himself in the years since 2016-2017. But there is insufficient evidence to support that view. In the absence of such evidence, including possibly testimony from the applicant himself, the preferable conclusion is that too little time has elapsed since 2017 to enable one to say that breaches of regulatory requirements are unlikely to happen in the future.
Even though the applicant is not seeking a master licence or a training licence, which might require a higher standard of fitness and propriety than the categories of licence he has applied for, on the basis of all the evidence, the applicant is not at present a fit and proper person to have a security licence and it is not in the public interest for him to recover any security licence, and I so find. Consistently with the principles underlying Naylor and Ahmed, the decision under review must be affirmed.
Class 2C - authority to sell, install, maintain, repair and service security equipment (including electronic security equipment and barrier equipment) and to act as a locksmith.
The respondent's decision to refuse that licence application was affirmed following an internal review on 10 March 2020. The review found that the applicant was not a fit and proper person to hold a security licence and that it was not in the public interest for him to do so. The respondent had concluded that the applicant was involved in the scheme that promoted and facilitated New South Wales residents obtaining Queensland security licences by registration under the Mutual Recognition Act 1992 (Cth).
Specifically, on behalf of a company called Safety and First Aid Education Pty Ltd (SFAE) he was said to have assisted persons to obtain security licences under the Security Providers Act 1993 (Qld) in order to avoid the more stringent New South Wales licensing system. SFAE's registration to provide security training was cancelled by the Australian Skills Quality Authority (ASQA) on 27 March 2017 because of issues relating to poor training and assessment practices and non-compliance with New South Wales security licensing requirements.
Applicant's submissions
The applicant filed written submissions on 7 August 2020 in which he pointed out that as the circumstances of his licence revocation in 2017 remained relevant, some exploration of them was warranted.
The Commissioner's revocation of the applicant's license on 15 May 2017 had been said to be justified on three bases. First, what was alleged to be the applicant's involvement in the activities of SFAE, which was said to be in the business of obtaining Queensland security qualifications for New South Wales residents with a view to utilising mutual recognition legislation to permit New South Wales recognition. Those allegations were alleged to give rise to a situation where it was not in the public interest for the applicant to continue to hold a licence.
Secondly, that the applicant was not a fit and proper person to hold a licence, relying predominantly on an allegation made by a person said to be a student of SFAE (Goran Gajtanoki, for convenience referred to in these proceedings as Goran) during various accounts in the course of the SLED investigation.
Thirdly, on the basis that the applicant's alleged involvement in the activities of SFAE meant that he had contravened condition 2D of his licence, which limited his authority to conduct security training.
The internal review affirmed the original finding that the applicant had contravened condition 2D of his licence, was not a fit and proper person and that it was not in the public interest that he continue to hold a licence, for essentially the same reasons.
The applicant had now reapplied for a 1ACE 2BC security licence and had been unable to work as a security guard since May 2017. He does not seek either a class 2D licence (training) or a master security licence. There is no suggestion of any other misconduct or impropriety other than the matters alleged in and about 2017.
The available evidence established at best that the applicant had referred a single person (Goran Gajtanoki) to Mohammed Khalef of SFAE for training. It is true that he facilitated the process, but he personally received no payment for it. He denied any suggestion that he had told Goran or anyone else to provide false information to SLED investigators. There was no other evidence establishing that the applicant was further involved in SFAE's alleged regulatory circumvention activities.
To the extent that the various accounts given by Goran conflicted with that of the applicant, it was the applicant's case that the allegations by Goran could not be accepted on balance. That included any suggestion that the applicant had coached Goran to provide false information to investigators: "These are matters that will require resolution by way of evidence", he wrote.
It was significant that even Goran's impression was that the assistance provided by the applicant was in the nature of a "favour" rather than something the applicant was in the business of facilitating or providing. The applicant submitted that his limited involvement in assisting a single applicant, without payment, to obtain a security licence (rather than providing any such training himself) who had been referred to him by the common acquaintance "Ognan" was not such as to render him not a fit and proper person to hold a security licence.
Although the more recent internal review did not identify contravention of condition 2D in his licence as a ground for revocation, for the sake of completeness, none of the conduct accepted by the applicant in his interview with investigators, nor that alleged by Goran, involved the provision of "training, instruction or assessment" by the applicant in contravention of the condition imposed on his 2D security licence. Indeed, Goran appeared to have accepted that no such activities were undertaken by the applicant.
Nor did it lead to the kind of situation dealt with in cases such as Naylor v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 43 whereby a licence might be refused or revoked in the public interest. In Ahmed v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 73, the applicant was clearly providing training to students for the purpose of obtaining Queensland security licence, indeed he was in the business of doing so. He was also doing so without a class IID licence. In both Ahmed and Naylor the applicants were clearly managing and operating entities that were in the business of regulatory circumvention.
The evidence here did not establish any analogous substantial or ongoing involvement by the applicant in the business of regulatory circumvention. He was not involved in the activities of SFAE other than to the limited peripheral extent established by the evidence.
It was not the applicant's desire to do anything other than hold basic security qualifications so that he could work in the industry. He had no other prior history of any regulatory non-compliance, although he had held a security licence in one form or another since 2008. It had now been some years since the particular allegations relied on by the Commissioner.
In oral submissions at the hearing Mr McMahon on behalf of the applicant adopted those submissions and added that the Commissioner's internal review decision on the revocation matter could not be treated as a source of historical fact and there was no basis for saying that they were insurmountable facts that were the foundation for the licence refusal in the present application. The Commissioner had been unable to locate Goran.
The reviewable decision was based on the 2017 findings. While there was no onus of proof, as a practical matter the respondent was relying on the factual assertions in it. Mr Ajami did not deny all the allegations in the 2017 decision. He admits that he did contact Mr Khalaf, but he was rendering him an informal favour, not acting as part of the business. Goran had said as much in his 6 October interview (exhibit R1, p 293).
The respondent was also relying on telephone records in relation to his contact with Mr Khalaf and also on bank records showing transactions with SFAE, but the fact of payment was not enough in itself to show any greater involvement. The claim about payment to the applicant was made by Goran, who could not now be found and who was in any case involved in the scheme himself, so he had a motive to blacken the applicant. Apart from this matter, the applicant had a clean record and could not be permanently locked out of the industry. He is now a fit and proper person to hold a licence.
In his reply, Mr McMahon submitted that the applicant bore no Jones v Dunkel ((1959) 101 CLR 298) onus of proof and the other evidence did not mention any payment to the applicant. Goran was compelled to be interviewed was thus not a voluntary witness. There was a power imbalance in the investigative process. Goran was not available to give evidence, although he was a critical witness. His record of interview (exhibit R1, at p 1303) showed that he had not been honest when police first approached him. In his later interview he had said that he did not undertake a training course, but his first interview said that he undertook two days of training. He claimed to have been "confused", but he gave inconsistent accounts There was no evidence that the applicant had told Goran to mislead SLED.
The applicant was not seeking a training licence and the tribunal had held that a higher grade of licence required a higher standard of fitness and propriety: Ping Kee v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 110. He only wished to be able to work in the industry. He understood that the passage of time was not in itself enough and that arguments based on rehabilitation depended on their own facts. There was no evidence from anyone else dealing with the receipt of money, and no evidence from Goran. Exhibit A1 showed what he had done since 2017. And apart from undertaking his training course again, what else could he have done? As to the expression of remorse, the applicant accepted that he had referred Goran to Mr Khalaf and he had no history of breaches.
Moujalli v Roads and Maritime Services [2014] NSWCATOD 63, [25], [68 - 70] showed that an applicant's failure to give evidence need not necessarily be a fatal flaw.
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act (s 30) and the SI Act, including the Commissioner's refusal to issue a licence: s 29(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
These are not adversarial proceedings. There is accordingly no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and in s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. Nevertheless, the civil standard of proof, the balance (preponderance) of probabilities, is accepted as a useful guide for tribunal deliberations.
The Act establishes a scheme for licensing persons to carry on security activities. The objects of the Act and the public policy served by it were analysed in Ibrahim v Commissioner of Police, New South Wales Police Force [2009] NSWADT 245, [47]:
The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant, that is, the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, New South Wales Police Force [2005] NSWADT 130. The security industry has a special role in ensuring that public order is maintained, safeguarding community assets and private property and ensuring that public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6.
The tribunal has also held that the Commissioner's discretions should be exercised in such a way as to promote the objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23].
As was noted above, the issue in the present application is whether the applicant is a fit and proper person to hold a security licence and whether it would be contrary to the public interest for him to do so. Originally, the Commissioner had also relied upon a third ground of refusal, that the applicant's involvement in the activities of SFAE meant that he had contravened condition 2D of his licence, which limited his authority to conduct security training. The respondent no longer advances that ground, however.
The evidence on the issues of fitness and propriety and public interest in this case it appears to be coextensive, in the sense that it is relevant to both issues, except for the subject matter of exhibit A1, which deals with the applicant's activities since the revocation in 2017. It is therefore convenient to set out the law relating to the two issues first, and then to consider the evidence relating to both of them.
Whether the applicant is a fit and proper person to hold a licence
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157 the High Court stated that:
The expression "fit and proper person" is of course familiar enough as traditional words when used with references to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, 65 the Court explained that:
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, or 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.
It is thus a question of whether the applicant possesses a requisite knowledge of the duties and responsibilities devolving upon him or her as the holder of a particular licence and that he or she is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public as a person to be entrusted with the kind of work that the licence entails: Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 76. Importantly, as Montgomery JM pointed out in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230, [27],
A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.
The same point was made in Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT 6, [22]. As one of the objects of the Act is to regulate security activities, licences are conditioned on the overriding need to ensure public safety and the protection of property. The Act was designed with the 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: Feuerstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114, [11].
The public interest
The alternative ground for revoking the applicant's licence is that it is not in the public interest for the applicant to hold it.
In O'Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence under the SI Act, the appeal panel described the public interest ground in the SI Act in the following terms:
[A]n inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an act objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be "for the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said:
The purpose of the reference to public interest is to ensure that private interests are not the 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.
In the context of this regulatory scheme, the purpose and scope of the legislation to be amplified is the attainment of a professional and safe security industry, free from persons who engage in unprofessional and irresponsible conduct. Paramount consideration is to be given to public safety: Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43, [18].
That being so, the applicant's personal interest in being issued with a new licence cannot outweigh the public interest in maintaining full confidence in the professionalism of those involved in the industry. Nor should the decision-maker shy away from exercising the discretion merely on the ground that the licensee or his dependants may suffer hardship or inconvenience or both. All the circumstances of the conduct must be taken into account: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [22]; Blisset v Commissioner of Police, New South Wales Police Force [2006] NSWADT 114, [32].
As the discretion must be exercised in light of the activities that the person will be engaging in, the Act's objects and purposes are relevant. They include the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in it are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, New South Wales Police [2005] NSWADT 130. As was pointed out in Haining at [22], the security industry has a special role in ensuring that public order is maintained, and that the public and public venues are safe.