Callanan v NSW Police Force

NCAT Occupational|2017-04-03

REASON FOR DECISION

I have determined, for the reasons set out below, that the decision of the delegate of the Commissioner in this case should be affirmed.

Background

The applicant, Mark Anthony Callanan, was a member of the NSW Police Force from 9 May 1988 until 21 June 2016 when he resigned. According to his certificate of service he attained the rank of Detective Sergeant.
Following his resignation Mr Callanan was a director of M.A.C and Partners. He was issued with an Owner Operator Commercial and Private Agents' (CAPI) master licence and an Operator CAPI licence on 29 July 2016 by the Commissioner of Police under the provisions of the Commercial Agents and Private Inquiry Agents Act 2004 ("the CAPI Act"). The licences authorised Mr Callanan to conduct surveillance and investigation activities.
On 14 November 2016 the Commissioner decided to cancel both licences on the basis that in the opinion of the Commissioner, the holder was not a fit and proper person to hold the licences.
The applicant sought an internal review of that decision. On 24 November 2016 the Commissioner's delegate determined that the decision cancelling the licences should stand. The applicant sought an administrative review of that decision by this Tribunal.
Pursuant to an order made in these proceedings under s 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the names, positions and other information that might tend to identify two individuals are not to be disclosed or published. Those persons are referred to in this judgment as Ms A and Ms B.

The legislation

The CAPI Act has the following objects: " (a) to protect the public in relation to commercial agent and private inquiry agent activities (that is, process serving, debt collection, repossession of goods, surveillance of persons and investigation of persons), and (b) to provide for the licensing of persons carrying out, and persons carrying on business in relation to, commercial agent and private inquiry agent activities, and (c) to establish standards to be observed by licensees in relation to commercial agent and private inquiry agent activities, and (d) to ensure that licensees are accountable for their acts and omissions in relation to commercial agent and private inquiry agent activities."
It is an offence to carry on business in relation to any commercial agent activity or private inquiry agent activity except in accordance with a master licence for that activity. It is also an offence to carry out any commercial agent activity or private inquiry agent activity unless in accordance with an operator licence for that activity, and in the course of employment with the holder of a master licence for that activity (ss 5(1) and 11(1) CAPI Act).
The Commissioner must cancel a master licence if the licensee is a disqualified individual or disqualified corporation (s 10(1)). Similarly, the Commissioner must cancel an operator licence if the licensee is a disqualified individual (s 17(1)).
A "disqualified corporation" means: (a) a corporation that has been convicted or found guilty of a major offence, or (b) a corporation that has, as one of its directors or as one of the persons concerned in its management, an individual who is a disqualified individual by virtue of paragraph (c) or (d) of the definition of disqualified individual.
A "disqualified individual" means: "(a) (Repealed) (b) an individual who, not being an Australian citizen, is prohibited from engaging in employment to carry out commercial agent activities or private inquiry agent activities, or (c) an individual who, in the opinion of the Commissioner, is not a fit and proper person (whether because of subsection (2A) or otherwise) to hold a licence, or (d) an individual who has been convicted or found guilty of a major offence, or (e) in relation to a master licence or an application for a master licence: (i) an individual who does not comply with the requirements of the regulations with respect to membership of an approved industry association with respect to the activities to which such a licence relates, or (ii) an individual who is an undischarged bankrupt, or the subject of a deed of arrangement, under the Bankruptcy Act 1966 of the Commonwealth, or (f) an individual who is a director of a disqualified corporation or is concerned in the management of a disqualified corporation, or (g) an individual who is a controlled member of a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012." (s 4 CAPI Act)

Issues before the Tribunal

The respondent's position is that the applicant is a disqualified individual on the basis that he is not a fit and proper person to hold a licence. The respondent also contends that as a consequence, the corporation of which the applicant is a director, is a disqualified corporation. Therefore the issue before this Tribunal is whether the applicant is a fit and proper person to hold an Owner Operator (CAPI) master licence or an Operator CAPI licence. If he is not a fit and proper person, the licences must be cancelled.
If he is not a fit and proper person in those terms, the respondent submits that to cancel the applicant's master and operator licences under the CAPI Act was the correct and preferable decision.
The respondent relies on a number of matters which, it claims, demonstrate that the applicant is not a fit and proper person to hold such licences, based on incidents contained in his disciplinary record as a NSW police officer.
The fact that certain complaints were made about his conduct and gave rise to disciplinary action was not disputed by the applicant; however, he contradicted the accuracy of some of the facts which the Commissioner found to have occurred, and he challenged the interpretation placed on some of the incidents. He also challenged the relevance of some of the incidents to the issue of whether he was fit and proper to hold the licences under consideration. The incidents relied on by the respondent are listed below. 1. Inappropriate use of the email system on 14 July 2005 by sending a "prank" email to staff attached to St George Local Area Command, for which he was counselled. The facts relied on by the respondent relating to this matter, which were contained in documents tendered by the respondent, were not challenged by the applicant. 1. A physical altercation with a male associate of the applicant's former girlfriend who was also a senior Police Officer. According to the respondent, the male associate suffered a swollen lip and minor bruising to the temple. The applicant was arrested and charged with assault on 11 September 2015. The charge was later withdrawn. The applicant acknowledged his actions were unacceptable and expressed deep regret. He was counselled and served with a Commander's warning notice informing him that should any further such instances take place, he may be subject to action under s 173 or 181D of the Police Act 1990. 2. The applicant was found to have forwarded an email containing images of naked women to another police officer 10 September 2009 using the police email system. He was counselled and subjected to regular COPS audits for 12 months and quarterly internet user activity audits. The facts relied on by the respondent relating to this matter, which were contained in documents tendered by the respondent, were not challenged by the applicant. 1. On 21 December 2009 the applicant was found to have been aggressive and insensitive on the telephone speaking to a member of the public who had alleged she was indecently assaulted. The applicant was provided with advice and guidance. The facts relied on by the respondent relating to this matter, which were contained in documents tendered by the respondent, were not challenged by the applicant. 1. On 16 March 2010 the applicant made inappropriate sexual comments and demonstrated unprofessional behaviour, making comments about the mental health of an officer, while attending a training day on child sexual offences. He was transferred to the State Crime Command for a period of 3 to 6 months and counselled. The facts relied on by the respondent relating to this matter, which were contained in documents tendered by the respondent, were not challenged by the applicant. 1. The applicant consented to an apprehended violence order being granted against him on 23 August 2010 without admission. This arose from allegations he had harassed a female police officer with whom he had a relationship and had attended her home address in a police vehicle. No criminal charges were filed. 2. In June 2012 allegations of misconduct were made against the applicant arising out of complaints by a woman acquaintance. The allegations were found to be sustained and the applicant was served with a show cause letter on 26 April 2013 pursuant to s 173(5) of the Police Act. He was served with an order under s173(2) and subject to a disciplinary transfer. 3. An incident concerning handling of a firearm in 2015 was investigated by the NSW Police Force and led to disciplinary action.
Those matters where certain facts remain in issue are dealt with in turn below.

The physical altercation

The applicant said that in 2005 he had a physical altercation with another male person, concerning his relationship with a woman. Under cross-examination he said he did not recall the exact injuries suffered by the other person, which were recorded as being a swollen lip and minor bruising. He said the other person also hit him. He admitted his conduct was not becoming, but he would not normally hit anyone, only to defend himself or another person. He did not actually state that he acted in self defence.
The evidence concerning this incident is very limited and second hand. The applicant has admitted that there was a fight, therefore I find that the fight took place.

Allegations of intimidation and harassment

In 2010 Ms A complained to the Police Force about the applicant's conduct. It was not in dispute that Ms A and the applicant had been in a relationship which had lasted about three years and which broke up in September 2009. After the breakup of the relationship, the applicant contacted her over about a six month period by phone and email, and went to her home 2 or 3 times in a police vehicle. This was found to be a breach of the Police Code of Conduct and Ethics.
I have read some emails from the applicant to Ms A, which were tendered by the respondent. One email could be read to suggest that he had been watching her as it referred to her movements. However under cross-examination, he denied doing this. One email dated 16 March 2010 was sent from the applicant's police email account and stated: "You have lied to me for f##cken years, bullshitted about how you felt towards me. FUC##EN EVERYTHING WAS A FUCKEN LIE (shouting) Fuck you."
An AVO was sought against the applicant. The applicant said he consented to the AVO against him without admission on a reduced duration of 6 months, and this was not challenged by the respondent.
The tone of the emails switches between anger and possible threats - "if I see you again… I suggest you walk the other way" and "challenge for you is to calm me down before I see you again" - to entreaties to Ms A to give their relationship another chance.
On 5 May 2010 the applicant sent her an email stating "You had better think pretty hard… and wake up". He said that he meant she had to wake up if there was any chance of them getting back together. He said his intention was to get her back as they had got back together before.
The applicant agreed that his emails were inappropriate and said that he had apologised to her since. He admitted that after Ms A told him clearly to stop harassing her and leave her alone, he continued to send her emails which contained profanities. He did not admit that this constituted harassment or intimidation. He said that the emails were "inappropriate and wrong" and sent "in the heat of the moment".
In my view the emails sent to Ms A had the capacity to intimidate the recipient, were offensive and hostile and constituted harassment. They lasted over a six month period, and after Ms A had asked him to stop. They led to an application for an AVO. Ms A was a fellow police officer and such conduct towards a colleague was not consistent with his own status as a Detective Sergeant. His use of a police vehicle to visit her home also breached Police policies. However, I do not find that the applicant followed or watched the applicant on the basis of the email referred to, as there is insufficient evidence.

Conduct towards Ms B

In May 2012 the applicant met Ms B through an internet dating service.
Ms B made a number of statements to police, and one statement in these proceedings, relating to her relationship with Mr Callanan. Ms B was not required for cross examination by the applicant. Based on the aspects of her evidence which were unchallenged by the applicant, I find that Ms B first met the applicant on 14 May 2012 at her office in Mosman. He went to this meeting in an unmarked police car and he was on duty at the time.
After this meeting the applicant sent her emails from his work email address and also numerous texts and phone calls to her mobile phone.
At the time Ms B was finishing an assignment and studying for a professional qualification. She agreed to see the applicant on 26 May. Soon after, however, Ms B felt unwell and at about 6 pm he left.
Her account of events is that as she opened the door he put his foot against the door and said "What's going on here" and "You should be all over me when I'm here for two hours." She said that one of them, she was not sure who, said "This is not going to work." She opened the door and said goodbye.
It was not in dispute that later that night and subsequently, Ms B received a number of text messages from the applicant. The first read: "Sorry about my rant I shouldn't be so selfish. I hope I havnt blown it….i hope study goes well tonight. Xx (sic)". This was followed by two more texts. The next day she received 11 text messages from the applicant. She replied at one point "This isn't going to work. I'm sorry. I can't turn my ph off in case of an emergency with the kids. But I will not be taking calls or sms's for the rest of the day."
The applicant continued to send her more than 20 text messages between 27 May and 4 June.
Ms B made a statement to police about the applicant's conduct. In that statement she said: "I have not felt threatened in a physical sense" and that his messages had caused her extreme annoyance. She agreed with Mr Mark Walton of the NSW Police to send Mr Callanan an email asking him to stop contacting her.
She did this on 30 May 2012 saying: "As I have said previously I do not wish to continue seeing you. Please stop calling, sms' ing and emailing me. The number of messages is disturbing me. I want to be left alone. I wish you well for the future but please do not contact me again." Mr Callanan replied: "Fair enough, I'm confused why the massive change but im sure you have your reasons!!! Anyway all the best to you and the kids and I hope it all works out for you… ".
The following day, however, she received a further text message from him stating "I know you have your reasons [name suppressed], but to be honest I think you have been a bit unfair towards me and brutal in your decision." Over the next few days he sent several further texts asking her to tell him why she had "dumped" him. He then sent an email on 4 June 2012 stating "An answer to my text yesterday would be nice [name suppressed]…" She said in a statement that this email made her feel "threatened and scared".
She also gave evidence that on 22 June 2012 she received a phone call from someone who said nothing and then hung up. There is no evidence that this was the applicant.
According to the Order under s 173(2) of the Police Act provided to Mr Callanan on 12 August 2013, he admitted to Superintendent Mark Walton that he used a police vehicle on 15 May 2012 to meet Ms B in Mosman. He admitted that he did not record the use of this vehicle in any vehicle diary or duty book. He also admitted that the time recorded of taking his lunch break (when he visited Ms B) was inaccurate.
After considering the applicant's response to the investigation and the notice, Superintendent Walton was satisfied that the applicant acted in such a manner that Ms B felt intimidated, frightened and harassed and that his conduct fell below that which was expected of a sworn officer. He also found that he left his Command without notifying a senior officer or obtaining approval, misused police vehicles and failed to record accurately. He noted that the applicant had previously been issued with a Region Commander's Warning Notice in 2011 concerning the misuse of a police vehicle and the misuse of police email. His misuse of the police email system had the potential to bring the Police Force into disrepute. He therefore determined that the applicant be subject to a disciplinary transfer from Criminal Investigations at City Central Local Area Command to General Duties at City Central Local Area Command.
In a statement made 14 March 2017 and tendered in these proceedings, Ms B stated that she became aware on 8 July 2016 that the applicant had viewed her Linkedin profile that day. Attachment DA1 to her statement was a screenshot of the linked in page showing that "Mark Callanan" had viewed her profile. The applicant did not deny looking at the profile but submitted that this was not sinister, as it was publicly available information.
Mr Callanan's evidence was that he thought he sent two or three texts to Ms B following their meeting on 26 May. He said he was not angry, but concerned, because she was ill. He thought the relationship was starting to develop and would progress. He admitted that he sent her "a couple of texts" after she told him to stop texting her because he was concerned. He admitted to Superintendent Walton that his behaviour would have been annoying to Ms B and he apologised for any annoyance caused. He also accepted that he had sent emails which should not have been sent using the police email system to a friend about Ms B. He concealed profanities in the emails so that they would not get picked up. He admitted breaching the Police policy concerning email usage.
He did not admit that his conduct towards Ms B constituted harassment and was contrary to the Police Code of Conduct and Ethics. He denied making the anonymous phone call.
I find that the applicant sent Ms B in close succession a number of text messages and emails after she had asked him to stop contacting her on 30 May. There were many more than "two or three" or "a couple". The tone of these communications was not intimidating, offensive or threatening but they were insistent and repetitive. In her message to him on 30 May she said the number of messages was "disturbing" to her. I find that these messages were capable of disturbing or alarming anyone in Ms B's situation, particularly as she had only met the applicant just over two weeks previously. The fact that she sought police advice is further evidence that she was alarmed.
The applicant denied that this conduct was similar to his earlier conduct towards Ms A or that he had learned nothing from being disciplined on that occasion. However I find that there is some connection between the two incidents. As a consequence of his behaviour towards Ms A, he was disciplined and he was the subject of an AVO application. His messages to Ms A showed an extreme reluctance to accept rejection from a woman he was attracted to, and a lack of understanding of how his insistent, frequent messages constituted harassment. His conduct towards Ms B shows the same reluctance and lack of understanding. It also shows a lack of awareness of what such conduct might lead to, particularly as he was a police officer and might be called upon to investigate similar conduct as part of his duties.

Incident relating to use of a firearm

The facts which were not in dispute concerning this incident, were that on Saturday 17 January 2015 Sergeant Julie Shepherd was rostered as the internal supervisor between 6 am and 6.30 pm at the Sydney City Local Area Command. The applicant was rostered as the external supervisor for the Day Street Police Station on that day.
In her statement made 14 February 2015. Sergeant Shepherd (who was not required for cross-examination) said that between 1.00 pm and 4.00 pm on that day, she was sitting at a desk in the office shared by the external and internal supervisors. Detective Sergeant Callanan was sitting at a desk opposite her. She said that they had been having a "general and amicable" conversation. She stated: "Sergeant Callanan stood up, so he was still behind his desk with his chair behind him. He was facing me. He was saying something about the charge room. I looked up towards him and he unholstered his Glock Service Pistol - I can't remember which side of his hip it was holstered on or which hand he drew it with. All I saw was the muzzle end and that's where my focus was. I do recall that his arm had a slight bend at the elbow and it wasn't full extended. It was like he was passing the firearm towards my face. The muzzle of the gun was pointed towards my face and was approximately two metres away. I was shocked by Sergeant Callanan's actions and said, "What the fuck are you doing?" Sergeant Callanan replied, "Oh that's alright." I said, "Put that fucking thing away." Sgt Callanan remained standing, he was looking in my direction, but his face looked blank, as though my comments didn't register. A second or so later he slowly lowered his arm and reholstered his Glock. He turned around and then walked out of the office - I didn't watch where he went. …He appeared to be nonchalant in regard to his actions, it was as though he didn't register that his actions were dangerous. I didn't detect any malice in his demeanour when he pointed his firearm at me. "
Sergeant Shepherd said that she recorded the incident in her notebook. She later recalled the incident repeatedly, and said that it had affected her sleep and made her anxious. She spoke to Inspector Sean Heaney about the incident on 9 February 2015.
On 14 April 2015 the applicant was interviewed about the alleged incident by Inspector Stewart Leggat. At the interview the applicant was asked if he drew his pistol in the supervisor's office on the afternoon of 17 January 2015. He said he had no idea, and he had no recollection of the incident. He said: "I have never, nor will I ever point a firearm whether Police Issue firearm or otherwise at anyone for any reason. I am critically aware of safety of firearms during my service. I did not point my firearm at Sgt Shepherd."
He said that he did not recall Sergeant Shepherd asking him "What the fuck are you doing" or "Put that fucking thing away" or saying the words attributed to him.
He said that he had previously removed his pistol from its holster in the supervisors' office "for auditing purposes and it is always in a safe direction and never in a position to endanger any person."
At the hearing, under cross examination Mr Callanan gave a different version to that which he gave to Inspector Leggat. He said that when he was interviewed he was unsure and 'perplexed" but on reflection, he later remembered getting out his firearm to make sure that it was in a fit and proper condition to take out on duty. He said that he believed he had done this about 10.30 or 11 in the morning, before heading out to The Rocks police station. He recalled buying lunch for Sergeant Shepherd and other staff, as pre-arranged with them, on the way back. They then ate lunch together. This contradicts Sergeant Shepherd's version that the incident occurred sometime between 1.00 and 4.00 pm. However Sergeant Shepherd did say that she conversed with Mr Callanan after the alleged incident.
Mr Callanan said his behaviour was not a risk because he was trained in firearms safety. There was a gun room in the building where he could have checked it in safety, but he said he did not know of any policy which required him to do that.
When interviewed, he said: "I regularly whilst on duty have reason to remove my firearm during the shift, this may not be on every shift, but it does and can occur regularly. This may be for cleaning purpose, storage purposes, audit purposes."
However, at the hearing he said that he always checked it before he went out, that he did it every time he left the station. That places a different emphasis on the action as something he would do every time he went out of the police station. He emphasised during his evidence at the hearing that it was a habit.
Mr Callanan was charged with one count of common assault as a result of the investigation, but this was later withdrawn by the Office of the Director of Public Prosecutions.
Sergeant Shayne Irwin, who is Principal Tutor for the NSW PF Operational Safety Instructors course, and holds a Chief Instructor accreditation in the area of Firearms, Defensive Tactics and Tactical Teams and Public Order Training provided an affidavit and gave evidence for the respondent.
He said: "There is always an element of risk when a firearm is drawn from a holster, however, the degree of risk will be dependent on a number of factors. These include, but are not limited to, the experience of the person in handling the firearm, what is forward of the muzzle of the firearm, the type of environment the firearm is being drawn into, the reason the firearm is being drawn and whether or not a finger is placed on the trigger."
In relation to the specific incident, he stated that his opinion was that Mr Callanan's action of drawing his pistol within an office area did create an unnecessary risk to other police officers in that area. At the time the NSW police Handbook stated: " Do not draw your firearm, point or aim it unless you consider you are likely to be justified in using it."
The General Safety Principles of firearms handling according to the Glock Self Loading Pistol (SLP) Manual, as stated by Sergeant Irwin, include: 1. Treat all firearms as if they are loaded. 2. Be conscious of where the muzzle of your firearm is pointed at all times.(Never allow the muzzle of your firearm to cover another human being unless it is required by your duties as a police officer).
Sergeant Irwin said that a field check was only required at the start of the officer's shift and when an officer believed that their firearm had been taken out of what was termed "battery", which in relation to the Glock SLP, meant that a round had been chambered into the chamber of the barrel and the barrel lugs had locked the barrel in place and the pistol was ready to fire. His evidence was that once holstered, the pistol, providing it was not interfered with, cannot be knocked out of battery and there would not usually be any need for a field check. This evidence about the lack of a practical need to check his firearm was not challenged by the applicant.
In Sergeant Irwin's view, if Mr Callanan had concerns about his firearm's condition he should have checked it within the loading/unloading area of the police station. However, he said that the pistol could not be fired unless the officer's finger was on the trigger.
A/Sergeant Smith, who was also present during the alleged incident, said that Mr Callanan's finger was not on the trigger. In a statement dated 26 February 2015 A/Sergeant Smith said: "I remember him telling a story and pulling his gun out with his right hand. The gun wasn't in the direction of me, his arm was bent it was more in the direction of the equipment room or cabinet just outside that room - to the right of where Sergeant Shepherd was sitting. The gun itself was above the desk. I remember Sergeant Shepherd was facing Sergeant Callanan. Sergeant Callanan then reholstered the gun - it was no more than five seconds... I didn't think anything of it. It was a very quick action, he is very animated when he talks and I didn't feel threatened by it."
A/Sergeant Smith did not recall Sergeant Shepherd reacting or saying anything to Sergeant Callanan about his actions.
The respondent submitted that while there is conflicting evidence as to whether the applicant pointed his firearm at another officer, he withdrew his firearm in contravention of police policy and procedure and created an unnecessary risk. This conduct was sufficiently serious to give rise to a recommendation that he be dismissed under s 181D of the Police Act. The applicant avoided this by resigning.
The applicant disputes that his dismissal was under consideration at the time that he resigned from the Police Force. He gave evidence that he was served with an Investigator's report in November 2015 which found that he had unholstered his service pistol contrary to policy. He disputed the findings of the investigator's report. He was also charged with common assault but the charge was later withdrawn and dismissed. He was advised by his Commander that while there had been consideration of action under s 181D, he would be subject to action under s 173 of the Police Act, which involves demotion, transfer and a warning notice. The applicant's evidence was that after he was advised that action under s 173 was proposed, he resigned.
Mr Callanan was issued with a certificate of service when he resigned. It was submitted for the applicant that an officer is not entitled to receive such a certificate if he or she resigns or retires from the NSW Police Force after having been notified that he or she is the subject of consideration for the making of a section 181D order (cl 11(1)(c) Police Regulation 2015). On a reading of the regulation, this appears to be correct.
Based on the available evidence, I am satisfied that Mr Callanan removed his pistol from his holster at some point during the shift on 17 January 2015. I am satisfied that he moved it in the direction of Sergeant Shepherd and that she saw it and was alarmed by this. I am satisfied that she remonstrated with him and that he then lowered it.
I find that he had developed a habit of unholstering his pistol during a shift particularly before leaving the police station, although there was no practical need for this and it was not consistent with firearms policy. His evidence and that of Sergeant Shepherd and A/Sergeant Smith indicates he was not paying attention to who was around him at the time. This created a risk to the other persons in the vicinity. There is insufficient evidence to support a finding that his dismissal under s 181D was actively under consideration, but I find that it was more probable than not that he would have been the subject of serious disciplinary action.

"Fit and proper person"

The expression "fit and proper person" is not defined in the CAPI Act nor in the Commercial Agents and Private Inquiry Agents Regulation 2006 (the CAPI Regulation).
However there are a number of authorities concerning the meaning of this term. In Australian Broadcasting Tribunal v Bond [1990] HCA 33 at 36 Toohey and Gaudron JJ stated: 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.
A person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. These principles were summarised by the Appeal Panel in Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [58] as follows: 1. The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. 2. "Fit" with respect to an office is said to involve honesty, knowledge and ability. 3. 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. 4. 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 it will not occur, or whether the general community will have confidence that it will not occur. 5. In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question. 6. The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence."

The context

The context, in this case, includes the fact that the licences in question entitle the applicant to undertake surveillance and investigation activities. "Investigation of persons" is defined in s 4 to mean: "any activity carried out by a person on behalf of a second person (not being his or her employer), being an activity that involves finding a third person or investigating a third person's business or personal affairs." "Surveillance of persons" means: "any activity carried out by a person on behalf of a second person (not being his or her employer) being an activity that involves the surveillance of persons."
The objects of the Act include protecting the public in relation to activities including surveillance and investigation of persons and to establish standards to be observed by licensees. The respondent submits that it is significant that the CAPI Act expressly prohibits harassment (s 25). This includes visiting any premises or communicating with the occupant of any premises with unreasonable frequency or at unreasonable times, and disclosing information or threatening to disclose information to a person's employer.
The exercise of determining whether a person is fit and proper to carry out the specified activities under a licence is a question of "value judgment" where the relevant factors are to be evaluated by the decision maker (Bond at [63]).

The applicant's past career and character

Mr Callanan joined the NSW Police Force in May 1988. He initially worked general duties and then after training became a Detective Constable first class in 1994. His career within the NSW Police Force included working within the Guns Trafficking (Firearms and Regulated Industries Command), working within the Dignitary Protection Unit during the Sydney Olympics and APEC, and secondment to a task force targeting an outlaw motorcycle gang.
This last secondment lasted for three years and Mr Callanan says he was away from home for extended periods, which was stressful at a time when his marriage was breaking down. The taskforce was awarded the International Outlaw Motor Cycle Gang Investigator's Award for most outstanding investigation, and he personally received the Commissioner's commendation and a citation for his involvement.
Subsequently between 2002 and 2004 he was attached to the Gangs Squad conducting large scale covert investigations into illegal motor cycle gang activity in NSW and South Eastern Queensland.
In 2005 he transferred to the Property Crime Squad in State Crime Command and conducted large scale investigations into drug, tobacco, and property theft. He was promoted to Detective Sergeant in 2006 and ran several large scale investigations from City Central Command. He was a team leader at this command, managing an investigative caseload and training officers.
His training includes a Certificate 4 in Security Risk Management, a Certificate 4 in Workplace Health and Safety, and the Graduate Diploma of Investigation through Charles Sturt University. He commenced training relevant to operating as a private investigator in 2013. On being advised in May 2016 that action under s 173 of the Police Act was being considered, he decided to resign and set up his own business as an investigator.
Mr Callanan's business was established in July 2016 and he gave evidence that it has carried out a number of investigations for government agencies. He operates the business with his daughter. The work generated by the business is his only source of income.
Mr Callanan was married but the marriage ended in divorce after 11 years. He has three adult children. He is currently in a relationship which has lasted for over three years.
A statement of Mr Paul Komander was tendered in the nature of a character reference. Mr Komander is an accountant and a Justice of the Peace. He stated he had known the applicant for over 40 years and spoke to him on the phone every two to three weeks. He described the applicant as very loyal and supportive to his family and friends and friendly and relaxed socially. He said he had never witnessed him in any form of aggression and believed that he had the appropriate character attributes for the work of a Commercial Agent and Private inquiry agent.

Consideration

Clearly the applicant has contributed to the investigation and prevention of crime in this state during his career in the NSW Police. Unfortunately that career has been marred by a number of incidents, some of which led to disciplinary action.
In my view the main issues to be determined are: 1. whether based on the applicant's past conduct, improper conduct is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur; and 2. in the words used in Sobey, whether the applicant can be said to be: "possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
The incident with the firearm demonstrated carelessness, and disregard for safety and policy, but there is no evidence that he will be using firearms in his new role.
The incidents which stand in the way of the applicant satisfying the test are those which relate to his behaviour in relation to personal relationships. These are the physical altercation, the repetitive and alarming emails and texts, and the inappropriate, unauthorised use of police email and police vehicles, all of which stemmed from trouble in his personal relationships.
Mr Willis submitted that the applicant's history of service and commendations should be given weight, and that he had accepted his behaviour was wrong. He submitted that I should not find that his emails and texts were designed to intimidate or had that effect. He pointed out that they occurred in his personal life, not at work, although there was some overlap. He also submitted that they were at the lower end of seriousness.
The record of the applicant's career as a police officer is evidence of good character in important respects. It could be argued that how he conducts his personal relationships is not relevant to his fitness to conduct an investigation and surveillance business.
However, his engaging in a fight, and his behaviour towards Ms A and Ms B affected his performance of his police duties and were of concern to his supervisors, moreover, Ms A was a police officer. They led to unauthorised use of police resources. They also led to disciplinary action of increasing seriousness. They had the capacity to bring the Police Force into disrepute.
The applicant has provided one character reference, but has not provided any evidence that he has recognised the consequences of his behaviour and that it constituted harassment.
A number of instances of improper conduct have been established. In my view, the applicant has not accepted the seriousness of his conduct. I accept there is no evidence of this kind of conduct more recently and this may be because the applicant has been in a relationship. However the Tribunal has to consider the likelihood of such conduct occurring again and whether his past conduct renders him fit and proper in this context. No evidence has been tendered which shows an awareness of the problem or any attempts to prevent it recurring, such as undertaking counselling. There is one character reference and it is not apparent that the person who made the reference was aware of the nature of the conduct which the applicant had admitted to.
As a licenced investigator, the applicant would be authorised to investigate the personal affairs of individuals and conduct surveillance of them. Some of those persons may be vulnerable, in poor health, or undergoing stressful situations. Government agencies and other clients would rely upon the credentials presented by the licence in providing him with confidential information and personal details of individuals. He has demonstrated in the past a willingness to use his police role and resources inappropriately to deal with his own personal issues. Should similar circumstances arise, the community could not, in my view, have confidence that he would not use his status as a licensed inquiry agent in a similar way. It may not be likely that the conduct will occur again, but on the evidence available, it cannot be assumed that it will not occur.
Accordingly, it follows that in my view that the applicant is not a fit and proper person to hold an Owner Operator Commercial and Private Agents' master licence or an Operator licence and that the decision of the Commissioner's delegate was the correct and preferable decision. 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

Amendments 16 May 2017 - Party name corrected in paragraph 29. 16 May 2017 - Party corrected in paragraph 35. 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: 16 May 2017

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Judgment (13 paragraphs)

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Cases Cited (4)