Monjed v Commissioner of Police, NSW Police Force

NCAT Occupational|2018-08-08

Introduction

This is an application by Rashad Monjed ("the Applicant") for review of the determination by the Respondent to refuse his application for a Commercial Agent and Private Inquiry Agent Probationary Operator licence ("the CAPI licence") under the provisions of the Commercial Agents and Private Inquiry Agents Act 2004 ("the Act").
The refusal was based on the grounds that the Respondent considered that the Applicant is not a fit and proper person to hold the licence and that it would be contrary to the public interest to grant him a licence.
The refusal was confirmed on internal review and the Applicant has applied to the Tribunal for external review.

Background

The Applicant is a former police officer who served in the NSW Police Force from December 2010 to October 2017. He retired in October 2017 after being served with a Show Cause Notice under section 173(5) of the Police Act 1990 ("the Show Cause Notice"). The Show Cause Notice proposed that the Applicant's rank be reduced from Constable Level 5 to Constable Level 3.
The Show Cause Notice resulted from four Local Management Issue investigations into the Applicant's conduct as a police officer. Each concerned allegations of misconduct.
The issues investigated and found to be sustained included: 1. Disobey reasonable direction 2. Neglect of duty 3. Unprofessional conduct - Inappropriate behaviour 4. Fail to create/maintain records 5. Unauthorised / Inappropriate disposal / Handling of official records 6. Untruthfulness 7. Falsify official records 8. Fail or Delay in return 9. Fail to look for DNA

Applicable legislation

The Tribunal is empowered to determine the application for review under section 20 of the Act. In determining this review, I am to decide the correct and preferable decision of the basis of the material before me: section 63 of the Administrative Decisions Review Act 1997.
The Act established a scheme for licensing persons to carry on Commercial Agents and Private Inquiry Agents activities. The objects of the Act are set out in section 3 which provides as follows: 3 Objects The objects of this Act are: (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.
Section 11 of the Act provides that: (1) An individual must not carry out any commercial agent activity or private inquiry agent activity unless he or she does so: (a) in accordance with an operator licence for that activity, and (b) in the course of his or her employment with the holder of a master licence for that activity.
'Commercial agent activity' is defined as 'debt collection', 'process serving' or 'repossession of goods'. 'Debt collection' involves finding a person and requesting, demanding or collecting from that person money owed under a debt, 'process serving' involves serving legal processes on a person in relation to legal proceedings, and the 'repossession of goods' involves finding goods held by a person and requesting, demanding or seizing such goods.
'Private inquiry agent activity' is defined as the 'investigation of persons' or 'surveillance of persons'. 'Investigation of persons' involves finding a person and investigating the person's business or personal affairs and 'surveillance of persons' involves the surveillance of a person.
Section 12 of the Act provides that the Respondent may grant an operator licence for 'process serving', 'debt collection', 'repossession of goods', 'surveillance of persons', or 'investigation of persons'. The Applicant has applied for an operator licence to conduct all of these activities.
Section 13(1) of the Act provides that an application for an operator licence must be refused if the applicant is a disqualified individual and may be refused if the Commissioner (or on review, this Tribunal) is of the opinion that the grant of the licence would be contrary to the public interest.
Section 4 of the Act defines "disqualified individual" to include an individual who, in the opinion of the Commissioner, is not a fit and proper person to hold a licence.
Clause 19 of the Commercial Agents and Private Inquiry Agents Regulation 2017 ("the Regulation") provides: 19 INVESTIGATION OF LICENCE APPLICATION (1) On receiving an application for a licence, the Commissioner may carry out all such investigations and inquiries as the Commissioner considers necessary to enable the Commissioner to consider the application properly. ... (3) Any application for a licence made by any person who was at any time a police officer or a member of the police force of any other jurisdiction (whether in Australia or overseas) must be referred to the Professional Standards Command within the NSW Police Force, which may seek further advice from the Law Enforcement Conduct Commission as to the suitability of the applicant to hold a licence. ...
In accordance with Clause 19(3) of the Regulation the application was referred to the Professional Standards Command and concerns were raised in regard to the Applicant's fitness and propriety and the public interest.
The Respondent submits that the Applicant's behaviour and conduct as a police officer demonstrates that he is not a 'fit and proper' person to hold an operator licence issued under the Act. If he is not a fit and proper person to hold an operator licence, he is regarded as a 'disqualified individual' under the Act, and pursuant to section 13(1) of the Act, the Applicant's Application must be refused.

'Fit and proper'

The expression "fit and proper person" is not defined in the Act or the Regulation. However, the expression has been considered in numerous decisions of this Tribunal and other forums.
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 paragraph [58] as follows: The passages from the authorities set out by the Tribunal (at [26]-[30]) emphasised: (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 determination of the question of the Applicant's fitness and propriety is made based on whether the Applicant is currently a fit and proper person.

In the public interest

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 at 681 the Wilcox CJ and Keely J said: 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.
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 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 Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at paragraph [32].
In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [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 evidence

The Respondent relies on evidence relating to the Applicant's conduct during his time as a police officer with NSW Police Force. The Show Cause Notice is in evidence as is the records from the Police data base regarding the conduct in issue and evidence has been provided by a number of senior officers who were involved in dealing with the issues at the time.
The Respondent relies on this material to support its contention that the Applicant's conduct during his time as a police officer demonstrates: 1. a lack of care and diligence in the performance of important functions and duties such as failing to conduct adequate investigations; 2. an inability to conform to applicable legal standards, relevant policies and procedures and the Code of Conduct and Ethics governing the performance of his duties; 3. a lack of professionalism and a lackadaisical attitude to the performance of his work; 4. a persistent failure to perform tasks in a timely manner; and 5. a lack of integrity by being untruthful or less than frank in answering question and recording false information into official police records.
The Applicant relies on his own evidence and several medical reports. He contends that his depression and PTSD impacted on his work as a police officer in 2016 and 2017. He claims that the conduct and behaviour that the Respondent has identified was caused by his mental condition.
However, while there is evidence in regard to the Applicant's depression and PTSD, there is no expert medical evidence that establishes a causal link between the Applicant's conditions and the issues raised in regard to his work as a police officer.
Also, there is no evidence before the Tribunal to show that his conditions have improved to the extent that they would not continue to affect his conduct and decision making.

Discussion

The evidence indicates that at the time he resigned as a police officer the Applicant was the subject of a Show Cause Notice that dealt with numerous issues regarding his conduct. I am satisfied that the Respondent has correctly characterised the conclusions that can be drawn in regard to the Applicant's conduct during his time as a police officer:
In my view there is a reasonable basis for concluding that at that time he resigned as a police officer he could not have been regarded as a fit and proper person to hold the licence that he is seeking.
I accept that the evidence establishes that the Applicant suffered from depression and PTSD during his time as a police officer but that evidence does not establish that those conditions were the cause of the conduct and behaviour that the Respondent has identified.
In the circumstances, i.e. in light of evidence of his health issues in 2016-2017, the conduct that has been identified by the Respondent and the evidence that I have before me, I must consider whether the Applicant is now a person who can properly be held out to the public as a fit and proper person to hold this licence and to be permitted to carry out the activities that are authorised by the licence.
If it is accepted that the Applicant's conditions contributed to the conduct and behaviour that the Respondent has identified, it is necessary to form a view in regard to the present state of the Applicant's health. Only the Applicant is in a position to provide evidence of his health and to show that his mental health is no longer a cause for concern to the extent that it should prevent him from obtaining the licence.
The Tribunal cannot assume that the Applicant's conditions have improved. I cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. It has to be proven that a change has occurred: Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461; Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630.
The Applicant has not provided the necessary evidence to satisfy either the Respondent or the Tribunal his conditions have improved to the extent that they would not continue to affect his conduct and decision making. That being the case I cannot be satisfied that he is a fit and proper person to be granted the licence.
This does not mean that he can never be issued with a CAPI licence. It cannot be assumed that he will never be a fit and proper person to be issued with the licence or that it will always be contrary to the public interest for him to have a licence. If he is to obtain the licence in the short term he will need to present evidence to show a causal link between his psychological conditions and his work as a police officer in 2016 and 2017 and he will need to obtain the evidence to show that his conditions have improved to the extent that they would not continue to affect his conduct and decision making.
On the evidence that is before me I cannot be satisfied that the Applicant is a fit and proper person to be granted the licence. Accordingly, the decision under review should be affirmed. I do not need to consider the issue of whether it would be contrary to the public interest for the Applicant to be granted the licence.

Order 1. The decision to refuse to grant Rashad Monjed's application for a Commercial Agent and Private Inquiry Agent Probationary Operator licence 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: 08 March 2023

At a glance

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Judgment (8 paragraphs)

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Cases Cited (8)

Cited By (2)