Ekila v Commissioner of Police, NSW Police Force

Applicable law

1. Section 26 of the SI Act provides the grounds on which a security licence can be revoked, relevantly: 26 Revocation of licence (1) A licence may be revoked: … (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. Section 15(1)(a) of the SI Act provides as a ground on which an application for a security licence must be refused, if the Commissioner is not satisfied that the applicant is "a fit and proper person to hold the class of licence sought by the applicant".
3. Clause 25(1) of the Security Industry Regulation 2016 provides as an additional reason for revocation of a security licence: 25 Revocation of licence - additional reasons: section 26 (1) (d) (1) For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it would be contrary to the public interest for the person to whom it is granted to continue to hold it. (2) For the purpose of determining whether it would be contrary to the public interest for a person to continue to hold a licence, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the person that: (a) is relevant to the activities carried on under the class of licence held by the person, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the person continues to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the person continues to hold the licence. …

Issues

1. The issues for the Tribunal to determine are: 1. Whether it can be satisfied that the applicant is a fit and proper person to hold a security licence; and 2. Whether it would be contrary to the public interest for the applicant to continue to hold a security licence.

Evidence

1. The applicant has provided character references; reports from Joseph D'Silva, a psychologist, and Dr Aladdin Matter; and a statement dated 13 May 2019 (ex A1). The applicant gave oral evidence at the hearing.
2. In his statement the applicant says he has been unable to work since his licence was revoked which has caused financial strain, and has caused him to suffer an anxiety disorder. He needs his licence so he can work and gain financial stability. He has been assessed by a psychologist and is currently being treated for anxiety and depression.
3. In oral evidence the applicant stated that he had bought the motorcycle new. He does not have a licence, and rides it on a race track; when asked, stated that he has forgotten the name of the racetrack. He met Omar at a wedding he attended with his friend about two weeks before 1 April 2018. Omar asked to borrow the bike, and said he would pay $400. He told Omar his address and said he would leave the keys in the letterbox. The applicant was asked whether he had made any inquiries to identify Omar, and replied that he had not because of financial reasons. At the wedding he saw Omar's licence, but cannot remember his surname. He would usually take a picture of the person and their ID but forgot to take a picture of Omar's licence. He did not receive payment of $400.
4. The applicant said he had seen the video recording of in-car footage on 2 April 2018 provided by the respondent about a month before the Tribunal hearing. Before then he did not have any information from police, just their words. Having seen the video, he thinks it may not be Omar who had the bike but someone else. The only evidence that it was his bike that was chased was what the police said. There is no hard evidence.
5. The respondent relies on a transcript of the Local Court proceedings on 22 August 2018 (ex R1); s 58 documents including documents related to the criminal proceedings (ex R2); and documents obtained on summons from Bankstown Local Court (ex R3). The respondent tendered a copy of Senior Constable Kirk's notebook entry for 7 April 2018 (ex R4), and showed the in-car video footage during the hearing.

Respondent's submissions

1. The respondent submits that the Local Court magistrate was correct in expressing concerns about the failure of the applicant to provide details as to who was riding the motorbike on two occasions when the safety of the public was put at risk. At the time of his appearance in court the applicant had had 4 months since being formally questioned, however no submission was made to the court as to his having made any inquiry about the identity and whereabouts of Omar. The applicant has still not made any attempt to provide information about the identity and whereabouts of Omar. The respondent submits that the explanation that Omar had rented the bike for $400 was raised only in court and not previously mentioned to police, and it is open to conclude that it was the applicant who was the rider during the two pursuits.
2. The respondent submits that the medical evidence provided by the applicant raises concerns as to his suitability to hold a security licence, which requires the holder to manage crowds of persons who are often intoxicated, and where the safety of patrons is paramount. The respondent submits that until the applicant is able to resolve his medical issues it is not in the public interest that he hold a security licence.
3. The respondent submits that the holder of a security licence is required to co-operate with and comply with directions given by police officers and enforcement officers, and accurate record keeping and honesty in transactions are also prominent. The matters concerning the motorcycle usage and the charges that followed do not provide the level of comfortable satisfaction required that the applicant is a fit and proper person to hold a security licence.

Applicant's submissions

1. The applicant submits he is a fit and proper person. His health issues started when his licence was revoked, because of the financial issues. He relies on his character references. He has made mistakes and deserves a second chance.

Discussion and findings

1. There is no dispute that the applicant was convicted on 22 August 2018 on two charges of failing to disclose the identity of the rider of his motorcycle on 1 and 2 April 2018. The notebook entry (ex R4) confirms the statement in the Facts Sheet as to what the applicant said to police when asked for the name and residential address of the rider of his motorcycle on 1 April 2018 and 2 April 2018. The applicant stated it was "Omar". While the applicant appears to have had doubts since having access to the in-car video footage of 2 April 2018 as to whether it was in fact his motorcycle that was pursued, or whether the rider could be identified as "Omar", there was no such argument put to the court on 22 August 2018. It was not in dispute that the applicant has not attempted to obtain further information about who had the motorcycle on 1 and 2 April 2018.
2. The reports of Dr Matter (dated 27 March 2019, May 2019) confirm that he has been treating the applicant for anxiety disorder which he has been suffering "for some time". Dr Matter states that the applicant's financial position has exacerbated his anxiety and depressive mood. Mr D'Silva in his reports (28 March 2019, 17 June 2019) confirms a diagnosis of anxiety and depression, stating that his reported symptoms "point to the diagnosis of Mixed Anxiety and Depression (DSM V Diagnosis)", and that the applicant "scored in the extremely severe range on the Depression Anxiety Stress Scale (DASS 21)". Mr D'Silva records the reported symptoms as including "low tolerance to stressors due to financial distress, increased irritability, low tolerance to anger and frustration". He states that the applicant has been participating in cognitive behavioural therapy. Mr D'Silva's report of 17 June 2019 states that the applicant intends to do his best to help the police in relation to the case "after getting back to work".
3. Based on these reports the Tribunal finds that the applicant has been diagnosed with and is receiving treatment for anxiety and depression. While the reports indicate that the applicant has told Dr Matter and Mr D'Silva that he attributes his anxiety and depression to the revocation of the licence and consequent financial difficulties, the reports do not provide an independent confirmation of the connection between the revocation of the licence and the applicant's mental health issues. The reference by Bassam Madi dated 14 April 2019 (ex A1) casts doubt on the posited connection, as he states that even before the incident the applicant did not get in contact with people other than those close to him, and that "the bike incident last year was by accident because of his family issues and his medical condition". More importantly, however, neither Dr Matter nor Mr D'Silva provide any assessment of how the applicant's mental health issues, and the symptoms recorded by Mr D'Silva, may affect his ability to fulfil the duties of the holder of a security licence.

Whether the applicant is a fit and proper person to hold a security licence

1. The principles to be considered in determining whether a person is a fit and proper person to hold a licence such as a security licence are well established. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very 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 ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
2. What is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].
3. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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.
4. Toohey and Gaudron JJ went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
5. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the 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 a particular licence ... 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 ... as a person to be entrusted with the sort of work which the licence entails.
6. In IJ v Commissioner of Police, NSW Police Force [2003] NSWADT 230 at [27] the Tribunal said: …the expression "fit and proper person" takes its meaning from its context. 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.
7. In applying these statements of principle, the Tribunal notes that the holder of a Class 1AC security licence has authority to patrol, protect or guard property, and to act as a crowd controller or in a similar capacity: s 11(1) SI Act. As held in IJ, that work requires that the holder of a security licence be a person who can safely be trusted to maintain public order, and safeguard community and private property and venues.
8. The Tribunal agrees with the respondent that an important part of that role is to co-operate fully with police and other regulatory authorities. The Tribunal is satisfied that the applicant has not done so, when required to assist police in locating the rider of his motorcycle by providing details of that person's name and residential address. His explanation that he lent his motorcycle to "Omar" without obtaining full details of name and address, and further, that having been introduced to "Omar" by the friend who invited him to attend the wedding, he was not able to obtain full details once he became aware that the motorcycle had been used in pursuits by police that had had to be terminated due to safety concerns, is not plausible. It is clear from the transcript that the Local Court magistrate was of the view that it was likely that the applicant was the rider. It is not necessary to make a finding as to whether that is so, as the relevant finding is that the applicant did not comply with his obligation to provide details of the person driving a vehicle alleged to have committed an offence. The change in the applicant's attitude to the identity of the rider once he saw the footage of the 2 April 2018 pursuit, and his suggestion that it may not have been Omar, is of concern, raising inconsistencies with his position in April and August 2018 that it was Omar riding the motorcycle. The Tribunal has reservations about the reliability of the applicant's evidence, given that late change in position. The Tribunal has other concerns with the reliability of his evidence, including the statement in sworn evidence that he only rides the motorcycle at a race track but could not remember the name of the racetrack. The Tribunal finds that the applicant has not attempted either before or since August 2018 to obtain the details required by police as to the rider of the motorcycle. The lack of candour, and the failure to co-operate with police, are not consistent with the requirements and community expectations imposed on the holder of a security licence.
9. The character references provided by the applicant do not assist in understanding whether the offence is out of character, and whether the applicant is likely to engage in similar conduct in future. The majority of the references speak to the applicant's position as a respected member of the community, however do not indicate that the person giving the reference knows of the nature of the criminal offences; the Tribunal gives those references limited weight. The reference by the President of the Social Justice Network dated 17 June 2019 (ex A1) states that the applicant has expressed sorrow and remorse for the offences of not disclosing details to police, and he will not commit any offence in the future. However, no such remorse was expressed to the Tribunal.
10. The Tribunal is not satisfied that the applicant is 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 protecting property, controlling crowds or ensuring public venues are safe. The Tribunal concludes that the applicant is not a fit and proper person to hold a security licence.

Whether it is contrary to the public interest for the applicant to hold a security licence

1. The concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals. In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Senior Member Montgomery set out at [42]-[47] a number of authorities in which the concept of the public interest has been considered. In Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Senior Member Montgomery summarised the authorities referred to in Smith in the following terms: (a) The 'public interest' is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. (b) The 'public interest' is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. (c) An applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. (d) The "public interest" allows 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.
2. In Feuerstein v Commissioner of Police, NSW Police Force [2007] NSWADT 114 at [11] the Tribunal stated in relation to the SI Act: The Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard.
3. The applicant submits that the revocation of the security licence has caused financial difficulties and has resulted in his anxiety and depression. Dr Matter states that in his opinion the applicant would "be able to progress forward better if he is able to secure employment". However, the applicant's desire to retain his licence and resume work as a security guard cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. Further, while Mr D'Silva states that the applicant has a commitment to addressing his medical and psychological issues, his reports do not address the question as to whether the symptoms displayed by the applicant may impact on his ability to fulfil the various roles authorised by s 11 of the SI Act.
4. The Tribunal's primary concern is, however, the applicant's failure to demonstrate either in the events leading to his convictions in 2018 or in his conduct since then, that he has sufficient regard for his legal obligations or the interests of protection of public safety. As a consequence, the Tribunal is satisfied that it is not in the public interest for the applicant to hold a security licence.

Orders

1. The Tribunal is not satisfied that the applicant is a fit and proper person to hold a security licence. Pursuant to s 15(1)(a) of the SI Act, an application to grant a security licence would be required to be refused, and as a consequence, pursuant to s 26(1A) of the SI Act, the licence must be revoked. The Tribunal is satisfied that it is not in the public interest that the applicant continue to hold a security licence, and accordingly pursuant to s 26(1)(d) of the SI Act and cl 25(1) of the Regulation, the licence may be revoked.
2. The Tribunal concludes that the decision to revoke the security licence held by the applicant is the correct and preferable decision.
3. The Tribunal orders: 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of 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 September 2019