GXC v Commissioner of Police, NSW Police Force [2025] NSWCATOD 37

1. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act).
2. The Respondent also relied on evidence under s 29(3) of the Act, produced during a confidential hearing. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as "[Not for publication]", and Orders are made accordingly: s 64 of CAT Act.
3. Both counsel also provided helpful written submissions.

1. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10.

On what basis was the Applicant's application for a security licence refused?

1. The original decision-maker and the delegate on internal review determined that:

(1) The Applicant was not a fit and proper person to hold a security licence; and

(2) It was not in the public interest for the Applicant to be granted a security licence.

1. Before me the Respondent again submitted that the Applicant is not a fit and proper person to hold a security licence nor is it in the public interest that he do so.

1. The Applicant conceded that he had a significant criminal history:

(1) He was sentenced on 28 February 2003 for one offence of perverting the course of justice. His five year term of imprisonment commenced on 5 June 1999 and expired on 4 June 2004, with his non-parole period expiring on 4 March 2003.

(2) On 12 March 2004, he was sentenced in relation to one count of threatening a witness and was sentenced to four years' imprisonment, commencing on 5 June 1999 and concluding on 4 June 2003.

(3) Also on 12 March 2004, he was sentenced in respect of two counts of attempted murder, both of which involve the use firearms. For the first offence, he was sentenced to 7 years 5 months imprisonment, commencing 5 June 1999 and concluding on 4 November 2006. For the second offence, he was sentenced to 10 years' imprisonment commencing on 4 November 2003 and concluding on 3 November 2014. His non-parole period was 5 years and 6 months, with his earliest release date being 3 May 2010.

1. The first attempted murder offence was committed on 30 July 1996. The threaten witness offence was committed on 24 March 1998. The second attempted murder offence was committed on 25 March 1998. The final offence of perverting the course of justice was committed in February 2000, that is, now some 25 years ago. The Applicant is now aged 49; the offending occurred when he was in his early 20s.
2. In March 2014 a Firearms Prohibition Order (FPO) under s 73 of the Firearms Act 1996 was imposed on the Applicant.

1. The Applicant's evidence was to the effect that he had not committed any offences since his release from gaol in November 2011 and that his last offence was in February 2000.
2. He said he was "not the same person he once was". He is "dedicated, ambitious and [an] eager member of our community." He wrote that he took every opportunity while in prison to rehabilitate himself, in particular, he undertook the Violent Offender Therapeutic Program. He had to undertake the course one-on-one because there were (unspecified) concerns for his safety in a group-based environment. He learnt about negative associations and about communications skills. Since his release he has been associating with positive role models, family-oriented individuals and people who are like-minded and with business acumen. He said he is "not in touch" with those with whom he formerly associated. He said in his evidence that he "feels disgusted" about his past. He is now "a completely different person", and that prison was "the best thing that happened to him", otherwise he would be facing a life of imprisonment or he would be dead.
3. He said he was still paying the price for his previous offences. He is now married with 2 young children. He described himself as a "hands on" father, and he tries to instil values of honesty and integrity in his children.
4. He works for CVEM, and has an offer from that company to work as a security guard should his licence be granted. He is also employed on a casual basis as a Responsible Service of Alcohol (RSA) manager. Because of his criminal history, he said, he is unable to obtain full employment. He manages up to 50 RSA "marshalls", depending on the venue. He deals with unruly patrons and is accompanied by a security guard if a patron is violent or needs to be forcibly removed. He said he has the training and confidence to deal with situations as they arise. In his role he interacts with Police, including, he said, those from Raptor Squad (which, according to open sources, targets serious and organised crime among OMCGs).
5. The Applicant holds a commercial agents licence to engage in face-to-face debt collection, process serving and repossession of goods. It was observed that to hold such a licence a person must be a "fit and proper person" to do so. He has worked on his own account for about 2 years.
6. The Applicant also relied on Corrective Services reports prepared during his incarceration, to the effect there was a radical change in his outlook and behaviour and his development of insight. In November 2009, the risk of future violent offending was assessed as "moderate to high". A discharge summary dated 28 March 2011, prior to his release on parole, however, considered his "criminogenic risk factors" to be "low to medium".

1. The Applicant's evidence was that all referees were aware of his criminal background before providing their references. Nearly all the referees wrote of their awareness of the crimes of which he had been convicted. None was required for cross examination.
2. The referees wrote of the Applicant's integrity, work ethic, professionalism, remorse for his prior offending, commitment to personal growth and development, intelligence, community-minded nature and leadership. It was submitted that, on the basis of this material, the Applicant is a person of good standing in the community and that he is now a person of good character and integrity.

1. [Not for publication]
2. [Not for publication]
3. [Not for publication]

Is the Applicant a fit and proper person to hold a security licence?

1. Section 15 of the Act requires that the Tribunal be satisfied that the Applicant is a fit and proper person and can be trusted to hold the type of licence sought.
2. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380. Further,

...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."

1. A person's character and disposition is relevant because "it provides indication of likely future conduct", and may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question: Bond at 380; Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 (Austin) at [58]; Smith v Commissioner of Police & NSW Fair Trading [2014] NSWCATAD 184 at [39]; Melbourne v The Queen (1999) 198 CLR 1 at [33], [62]; [1999] HCA 32.
2. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "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."
3. While in gaol the Applicant was noted to be a compliant prisoner without gang affiliations. In 2005 his conduct was described as "exemplary". There were said to be no gaol offences, although 2006 there was an unlawful use of a phone, but no details were available. It was also clear that there had been some disciplinary breaches, at least in the early years. It was submitted that, while in prison, the Applicant did not commit any offences, however, the matters relating to intimidate witnesses and attempt to pervert the course of justice occurred in 2000 while the Applicant was in gaol.
4. On release, the Applicant was considered to be of "low to medium risk" (presumably of re-offending). It was submitted that there has been "no offending" for 25 years. I accept that there have been no charges laid against the Applicant since his release from prison in 2011, now some 14 years ago. The submissions on behalf of the Applicant relied heavily on his reform since serving his prison term. The Applicant's counsel relied upon the Applicant's evidence of his reform since that time and pointed to the positivity of his referees.
5. It was also observed that the Applicant had been granted a commercial agents licence, by another government department, including that he had been found to be a fit and proper person to conduct that role. It is unknown what information was available to that department when considering his licence application.
6. In Monjed v Commissioner of Police, NSW Police Force [2019] NSWCATOD 197, Montgomery SM discussed at [38] that the Tribunal cannot assume that a change has occurred in an applicant's conditions merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred and that contentions of change needed to be supported by evidence: see also Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264.
7. [Not for publication]
8. [Not for publication]
9. [Not for publication]
10. I accept that it is difficult for the Applicant to address the information which was kept confidential from him pursuant to the legislative requirement to do so. In these circumstances, as I told him prior to the confidential hearing, I would do, I carefully scrutinised the confidential material. I have been cautious in the weight to be given to each aspect of that material; some of the material casts serious doubt upon the accuracy of some of the evidence the Applicant gave before me.
11. I accept the submission on the Applicant's behalf that even where a person has a criminal record this of itself may not be sufficient for the Tribunal to be satisfied that a person is not a fit and proper person to work in the security industry. As pointed out by the Tribunal in Toleafoa (No 2) v Commissioner of Police, New South Wales Police Service [2000] NSWADT 48 at [34] in the decision of the High Court of Ziems -v- The Prothonotary of The Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 302, Taylor J said that the vital question in determining a persons fitness and propriety for a particular licensed activity was not whether the licence holder (in that case a registered legal practitioner) had been convicted of an offence against the criminal law, but whether the conduct of the licence holder was such to show that he was unfit to remain a member of his profession.
12. I observe that Mr Ziems' conviction was for manslaughter and that the offence occurred while, he was under the influence of alcohol to such a degree that he drove his car erratically, causing a collision, in which someone was killed. Similarly, I observe that Mr Toleafoa's offences were: assault, assault police, assault, two counts of resisting arrest and one count of offensive conduct. None of his offences resulted in a custodial sentence. Neither of these cases can be considered as being on all fours with the present matter. Here there was no suggestion that the Applicant's conduct was merely ill-advised, unlike Ziems, nor at the lower end of the scale, unlike Toleafoa.
13. The Applicant's counsel also referred to the recent matter of Howland v Secretary, Department of Customer Service [2025] NSWCATOD 21, in relation to a carpentry licence under the Home Building Act 1989. There the Applicant had been convicted and incarcerated on several occasions between 1989 and 2014 in relation to drug offences, including manufacture and supply a commercial quantity of drugs, and that the most recent conviction was in 2017, which related to a 2012 offence. At the time of the Application for Review he was on parole. Nonetheless the Tribunal set aside the decision under review and granted him a carpentry licence. The Tribunal acknowledged that the Applicant's offences were "at the upper end of seriousness". Against this, the Applicant was drug-free, had not re-offended, was compliant with medication, was remorseful, and genuinely wished to turn his life around and put his criminal past behind him. The Tribunal acknowledged that, given the seriousness of the Applicant's offences the issue was "finely balanced". To some extent the positive features are similar in the present matter: the Applicant has not been charged with any offences since his release from gaol; he says he is remorseful; and that he has turned his life around and put his criminal past behind him. On the other hand, the Applicant's offences are, it could be said, even more serious than those of Mr Howland: 2 counts of attempted murder, one offence of perverting the course of justice and one count of threatening a witness. The latter offences, in particular, go to the very heart of our justice system.
14. Quite apart from the confidential material, the Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person to hold a security licence. The Respondent submitted, in particular, that, notwithstanding the intervening years, the inherent seriousness of the Applicant's offences should preclude him from holding a security licence; there was not one, but 2 attempted murders. The charge of intimidate witness is also of particular concern and demonstrates a disregard for the justice system.
15. In Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151, several factors were identified to determine a person's fitness to hold a security licence, including:

(a) The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

(b) The nature, seriousness and frequency of any complaints made against the applicant;

(c) The applicant's reputation in the community; and

(d) The likelihood that the applicant will re-offend.

1. I observe the very serious nature and of the Applicant's criminal offences, but accept that he now has a positive reputation amongst those who were prepared to provide references. As to the likelihood that the Applicant will re-offend, I note my observations with respect to the confidential material.
2. For the above reasons, and in particular, having regard to the confidential material, I am not satisfied that the Applicant is a fit and proper person to be issued with security licences of the kind sought. That view, in the absence of public interest in favour of the Applicant holding the security licence he seeks, would lead me to affirm the decision under review.

1. The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 15(3) of the Act.
2. The expression "public interest" is not defined in s 15(3), nor elsewhere in the Act. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. In Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 (at [33] the Appeal Panel said that:

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.

1. The interest to be considered is that of the public, as distinct from the interest of an individual. The Applicant's personal interest in obtaining a security licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry: Stiles v Commissioner for Fair Trading & Commissioner of Police, NSW Police Force [2016] NSWCATOD 170 at [20].
2. In Comalco Aluminium (Bell Bay) Ltd v O'Connor [1995] IRCA 540; (1995) 131 ALR 657, it was held at 681:

The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

1. In Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63 at 75 the Court observed:

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.

1. The discretion must be exercised in light of the activities that the person will be engaging in. The objects of the Act are not expressly stated but it can be inferred that they include the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in it are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, New South Wales Police [2005] NSWADT 130. The Act was designed with the intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard: Feuerstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114 at [11]. See also: Ibrahim v Commission of Police, NSW Police Force [2009] NSWADT 245 at [47].
2. As was pointed out in Haining v Commissioner of Police [1999] NSWADT 6 at [22], the security industry has a special role in ensuring that public order is maintained, and that the public and public venues are safe. Notwithstanding the positive view of those prepared to provide the Applicant with very positive references, in my view a member of the public, knowing the Applicant's criminal history would more than likely object to the Applicant performing the duties of a security guard: Farquharson v Director-General, Department of Transport [1999] NSWADT 53 at [37].
3. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant to hold a security licence.

1. Having concluded that the Applicant is not a fit and proper person to hold a firearms licence within the meaning of s 15(1)(a) of the Act, and that it is not in the public interest for him to hold a security licence the correct and preferable decision is to affirm the Respondent's decision to refuse the Applicant's licence application, for the reasons given above.

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.