Esterman v Commissioner of Police, NSW Police Force

NCAT Occupational|2014-02-26

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3As a result of being charged for these offences while performing security activities, Mr Esterman's security licence was revoked on 28 June 2012. 4On 3 July 2013, Mr Esterman appeared in the Local Court in relation to the charges against him.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

Review decision 8On 11 December 2014, Mr Esterman lodged an application for review of this decision to the Administrative Decisions Tribunal. On 1 January 2014 the jurisdiction of that tribunal was taken over by the NSW Civil and Administrative Tribunal (NCAT). As the proceedings are 'pending proceedings', the provisions of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) continue to apply: Civil and Administrative Tribunal Act 2013 (NSW), Sch 1, cl 6 and 7. 9The Tribunal's task is to determine whether the decision to refuse Mr Esterman's licence is the 'correct and preferable' decision based on the all the material then before it and any applicable written or unwritten law: ADT Act, s 63. That means that the Tribunal is to take into account all the evidence, not just the evidence on which the Commissioner based his decision. The Tribunal may affirm, vary or set aside the Commissioner's decision to refuse to grant a security licence to Mr Esterman. 10The Security Industry Act 1997 provides for the granting of security licences. 11Within the Act, there are clearly defined circumstances where the Commissioner may refuse to grant an application for a licence. Section 15 of the Act relevantly provides: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant, or ... (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. 12The issue before the Tribunal is (1)whether Mr Esterman is a fit and proper person to hold a security licence; and (2)whether the grant of the licence would be contrary to the public interest.

Fit and proper 13In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Toohey and Gaudron JJ said at 380: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 14In 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. 15A person's fitness is to be considered in the light of the activities that the person will undertake. Fitness with respect to an office is said to involve honesty, knowledge and ability: see Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156 - 7.

Public interest 16The Courts and the Tribunal have held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, Wilox CJ and Keely J said at 681: The purpose of the reference to public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation. 17In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held: The public interest is a term embracing matters, among 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. 18In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Tribunal's Appeal Panel said: The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. 19The Tribunal has also found that an applicant's personal interest in retaining his or her licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry (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]). 20In 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.

CONSIDERATION OF EVIDENCE 21The Tribunal held a hearing in this matter on 26 February 2014. At the conclusion of the hearing, the parties were granted time to provide further written material to the Tribunal. 22The following material is before the Tribunal in relation to Mr Esterman's achievement in the security industry:

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

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

Recommendation 36The Tribunal recommends to the Commissioner that if Mr Esterman should re-apply for a security licence then the licence should be granted provided that:

he can provide to the Commissioner a letter from a prospective employer confirming an offer of work; and
he can show to the Commissioner that for a period of 12 months from this decision he has been able to remain of good behaviour without any adverse matters; or that for a period of 6 months from this decision he is able to show that he has been able to remain of good behaviour without any further adverse matters and has undertaken a further course of learning, demonstrating competence to the Commissioner in the subject: Manage conflict through negotiation.

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 June 2014

Administrative Decisions Tribunal Act 1997(NSW)

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