Davis v Commissioner of Police, NSW Police Force

NCAT Occupational|2016-10-27

The Applicant's case

The Applicant relied on the section 58 documents, including the supporting documentation of references from his employers, letters of support from Aboriginal elders including the CEO of the Gandangara Local Aboriginal Council, and completed training certificates and qualification records from nationally recognised public and private training organisations. He provided further records from TAFE NSW of the award of a Diploma of Counselling in September 2016 achieved at Distinction level and a Statement of Attainment in Problem gambling skill set, and additional personal references including letters in support from a community organisation and his current employer.
The Applicant gave evidence that the person who had committed the relevant offences was "the old Troy" and he "wanted to forget it all". He acknowledged his criminal past and was emotional about the time he had served in gaol, stating that he had been rehabilitated, and that his desired wish was to move forward, to help kids in the community, and to help communities with issues of domestic violence. He stated that he will be a drug and alcohol counsellor if he is unable to obtain his security licence. He claimed to have a stable family and work life and was determined "not to be a part of the system" and that he "wasn't a reoffender".
In relation to the licence applications, he stated that he had literacy issues. He claimed not to have understood the questions about "previous disciplinary actions" as being applicable to his circumstances, and also stated that he did not recall the revocations of his licences in 2002 and 2004, and therefore had not applied for their renewal at the time.

The Applicable Law

Part 2 Division 3 of the Security Industry Act 1997 provides for licencing procedure and criteria. Section 15 provides for general suitability criteria in the areas of age, competency and residency rights relating to employment etc. amongst other general criteria. Relevantly section 15 provides: 15 Restrictions on granting licence - general suitability criteria(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant:(a) is a fit and proper person to hold the class of licence sought by the applicant ...................(2C) The Commissioner must also refuse to grant an application for a licence if the applicant has supplied information that is (to the applicant's knowledge) false or misleading in a material particular in, or in connection with, the application. (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. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. ………….. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:(a) is relevant to the activities carried out under the class of licence sought by the applicant, or(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.(7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).
Section 16 provides for restrictions based on an applicant's criminal and other related history, if any. 16 Restrictions on granting licence - criminal and other related history(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or(c) has, within the period of 5 years before the application for the licence was made, had a civil penalty imposed on the applicant by a court or tribunal in New South Wales or elsewhere, being a civil penalty prescribed by the regulations in relation to the class of licence sought, or(d) has, within the period of 10 years before the application for the licence was made, been removed or dismissed from the NSW Police Force or from the police force of any other jurisdiction (whether in Australia or overseas) on the ground of the applicant's integrity as a police officer.(2) Without limiting subsection (1), the Commissioner may refuse to grant an application for a licence if the Commissioner is satisfied that the applicant has a conviction that is not capable of becoming spent.Note. Under section 7 of the Criminal Records Act 1991, certain convictions are not capable of becoming spent. For example, convictions for which a prison sentence of more than 6 months has been imposed, convictions for certain sexual offences and convictions prescribed by the Criminal Records Regulation 2004.….. (emphasis added)
Section 7(1)(a) of the Criminal Records Act 1991 states: 7 Which convictions are capable of becoming spent? (1) All convictions are capable of becoming spent in accordance with this Act, except the following: (a) convictions for which a prison sentence of more than 6 months has been imposed
Section 26 of the Security Industry Act 1997 deals with matters relating to revoking security licences. The section provides: 26 Revocation of licence(1) A licence may be revoked:(a) (Repealed)(b) if the licensee:(i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or the renewal of the licence, or(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or(iii) contravenes any condition of the licence, or(c) (Repealed)(d) for any other reason prescribed by the regulations.(1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.(2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it.(3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.Note. Section 31 requires the licensee to immediately surrender the licence if the licence is revoked.(4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.(5) For the purpose of determining whether a licence should be revoked under subsection (1A), the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the licensee that:(a) is relevant to the activities carried on under the class of licence held by the licensee, or(b) causes the Commissioner to conclude that improper conduct is likely to occur if the licensee continues to hold the licence, or(c) causes the Commissioner not to have confidence that improper conduct will not occur if the licensee continues to hold the licence.(6) The Commissioner is not, under this or any other Act or law, required to give any reasons for revoking a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (5).(Emphasis added)
Clause 25 of the Security Industry Regulation 2016 (equivalent to the former Clause 29 of the Security Industry Regulation 2007) states 25 Revocation of licence-additional reasons: section 26 (1) (d) For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.

Fit and proper

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

Public interest

The Courts and the Tribunal have held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, Wilcox 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.
In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
The 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 (Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at [32]).
In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] the Appeal Panel held: The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
The concept of the 'public interest' was discussed by the Tribunal in Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 at [25] as follows: The 'public interest' is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range 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 in the same section [section 15], it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The Tribunal has determined that the 'public interest' embraces the high standards expected of security licence holders. In McMicking v Commissioner of Police, NSW Police Force [2014] NSACATOD 95 the Tribunal discussed the concept of the 'public interest' in the context of revocation of a security licence: 113 In Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 at 47, JM Montgomery analysed the objects of the SIA, and the public interest to be served in exercising the discretion to revoke a licence on public interest grounds: 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, NSW Police [2005] NSWADT 130 The security industry has a special role 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. 114 In the matter of Naylor v Commissioner of Police NSW Police Force [2014] NSWCATOD 43, SM Molony referred to the Second Reading Speech accompanying the introduction of the SI Act: On the introduction of the SI A, Mr Gaudry, Parliamentary Secretary, in the NSW Legislative Assembly on 12 November 2002 said at page 6544 of Hansard: The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security. 115 In the matter of Nakad v Commissioner of Police NSW Police Force [2013] NSWADT169, JM Isenberg said at 57: The Security Industry Act 1997 was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard Feuerstem v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11].
The Tribunal has also held that the discretion 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 at [23].

Consideration

It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
The applicant's application for a security licence under the Act poses two significant problems for the Applicant. The first is that the Applicant was convicted of three criminal offences on 15 December 2005 which resulted in prison sentences of more than six months, which means that according to s16(2) of the Act, the Applicant's convictions are incapable of being "spent". The result is that the ten year exclusion period during which any application for a licence must be revoked by the Commissioner pursuant to s16(1) of the Act, may be extended.
The second is that the information supplied to the Queensland authorities for the purpose of obtaining a security licence in that State was false and/or misleading in at least two particulars. As discussed above at [5], the Applicant claimed in his Queensland licence application to have not been known by any other names. The significance of this false statement by the Applicant is that the Applicant's criminal record in New South Wales was under one of his other names, being Troy Colin Fitzgibbon. Whilst the Applicant paid the required fee for a criminal records check as part of the Queensland application, I infer from the material before me that no such record was located in the name of Troy Colin Davis, which was the only name identified by the Applicant in his Queensland application. The Applicant's birth certificate identified the other two names by which he was known, and the Applicant himself identified in the NSW licence mutual recognition forms, one month after obtaining the Queensland licence, that he had been known by those other names. I therefore find that the Applicant's statement in his Queensland licence application, to the effect that he was not known by any other names, was deliberately false and misleading.
The Applicant made a further false and/or misleading statement in his Queensland application, as identified above at [7], when he stated "no" to the question "Do you have any convictions greater than ten years old where the sentence imposed was 30 months imprisonment or greater?", despite his conviction and sentence to 3 years and 6 months' imprisonment in 2005 for one of his criminal offences.
I consider that each of those statements was deliberately falsely made by the Applicant, for the purpose of obtaining the Queensland security licence. I infer that the licence would not have been granted had the Applicant truthfully answered each of those questions. The Queensland licence was relied on by the NSW licencing authority in issuing the Applicant's reciprocal licence under the mutual recognition principles. I find that these false statements thereby fall within the parameters of section 15(2C) of the Act, being "the supply of information that is (to the applicant's knowledge) false or misleading in a material particular in, or in connection with, the application".
The Respondent submitted that statements made by the Applicant in both the Queensland and New South Wales licence applications, with respect to not having previously had a licence cancelled, were false and/or misleading. The Applicant's evidence was to the effect that he had not understood what the applications were asking (because of literacy problems or otherwise), and that he had not remembered his licences had been cancelled previously, as he had thought he had simply let them expire. There was evidence of the Applicant having been served in relation to the revocation of at least one licence in June 2004, at the same time that he attended a local police station in relation to his bail requirements. Because of the passage of time, taking service of the revocation in the context of his other bail requirements into consideration, I accept the Applicant's evidence to the effect that he had not intended to make false or misleading statements in either application with respect to the cancellation of his previously held security licences.
The Commissioner's decision referred to the Applicant's fitness and propriety and that it was not in the public interest, as bases for revoking the applicant's licence. The concept of "fit and proper" in the context of the Act is discussed above at [28] to [30]. The Applicant provided several supportive statements and character references, records of training and qualifications relevant to the security industry obtained since his release from gaol, as well as recent training and qualifications relevant to counselling and mentoring. He gave oral evidence with respect to having been rehabilitated, being a different person from the Troy Davis who committed the serious offences over a decade ago, and being committed to working within and assisting the community, which I don't doubt. However on the basis of the evidence before me I find that while the Applicant may be a "fit and proper person" generally, and may have the requisite knowledge and ability to hold a security licence, the Applicant has not demonstrated the requisite honesty required of an applicant for a security licence under the Act.
With respect to any potential risk the Applicant may pose to public safety, I consider that there is insufficient evidence before me to suggest that there would be any such risk as a result of the Applicant having a security licence. However, considering the public interest broadly as expressed in the Act's Second Reading Speech, referred to in the matter of Naylor v Commissioner of Police NSW Police Force [2014] NSWCATOD 43, the Applicant's criminal history should preclude him from working in this particular industry.
The correct and preferable decision is for the Tribunal to affirm the Commissioner's decision for the reasons expressed above.

ORDER 1. The Respondent's decision 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 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: 30 January 2017

Jurisdictional issues

Two preliminary issues of jurisdiction were dealt with at the hearing, being an out-of-time objection and that the Applicant had failed to request an internal review of the Commissioner's decision before proceeding with his application to the Tribunal.
The Respondent identified that the Applicant had brought proceedings out of time. Pursuant to section 24 of the Act, any appeal of the Commissioner's decision, which was served on 28 July 2016, should have been made within 28 days by 25 August 2016. The applications for stay and for review were filed with this Tribunal on 21 September 2016.
I heard short submissions from both parties. The Applicant explained the reasons for his delay being the difficulties he experienced in obtaining legal advice in circumstances where he was unable to work, but had no income, and was ineligible for Legal Aid. He eventually managed to obtain some limited legal assistance and thereby lodged the applications. The Respondent relied on the principles expressed by Senior Member Molony in CFZ v Department of Education [2015] NSWCATAD 231 for the consideration of extension of time applications, noting the limited prospects of success of the Applicant's application.
I considered these circumstances to be distinguishable from those in CFZ on the basis of the prejudice to the Applicant, including that the Applicant in these proceedings did not have the benefit of an internal review prior to making application to the Tribunal, and the Applicant could not continue working as a security guard in the interim as a result of the Commissioner's decision to revoke his licence. I granted the extension of time pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) and dispensed with the requirements for an internal review of the Commissioner's decision in accordance with section 55(4)(b) of the Administrative Decisions Review Act 1997, keeping in mind the objects of this Tribunal's enabling legislation at section 3 of the Civil and Administrative Tribunal Act 2013.

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