Nastav v Commissioner of Police, NSW Police Force

What happened?

1. The starting point to determine is whether, as claimed by the respondent, the applicant misled the Tribunal on 10 January 2017 and 9 May 2017, and the SLED officers on 28 June 2017.

Events of 10 January 2017

1. I find that the applicant relevantly gave the following evidence to the Tribunal: 1. that CXA was an employee of Southern Cross Protection Pty Ltd (SCP). The transcript of the hearing is before me, and p 7 records the Presiding Member discussing with the applicant an undated reference signed by him which confirmed that CXA was employed by SCP. The applicant acknowledged that the information was correct and that CXA was still employed by SCP; 2. that the applicant was an employee of SCP. I have referred above to undated reference on an SCP letterhead signed by the applicant. The applicant is described in that document as the SCP "NSW Asset Protection Operations Manager". While the applicant did not state in terms to the Tribunal that he was employed by SCP, pp 7 to 9 of the transcript clearly demonstrate that the applicant was presenting himself as a Manager (ie employee) of SCP, that he was questioned on that basis, and that the Tribunal accepted that he could speak for SCP. I find therefore that the applicant represented to the Tribunal that he was an employee or officer of SCP, and entitled to speak on its behalf, concerning CXA.
2. As to the statement in the Decision that the applicant said that CXA would only undertake duties at one site, in accordance with his bail conditions, the transcript shows that the applicant indicated that could move CXA "over to an industrial estate" (p 7) which would involve "general security work" (pp 7, 8), where he would be "under pretty close security from the branch perspective" (p 8). The applicant was asked about the "security type of activity" that CXA would be performing, "is it mobile, or static in a room, monitoring a camera". His response is recorded as: Static. Our external static, foot patrol.
3. The "foot patrol" was explained as being limited to: The breezeway property 20 metres wide by 200 metres long and its just patrolling up and down that breezeway where all the excess stock is stored.
4. While it may be inferred from other portions of the transcript that CXA was to undertake work at one site only, being an industrial site, there is no reference in the transcript to this arrangement being made because of the requirements of CXA's bail conditions. I find therefore that while the applicant did tell the Tribunal that CXA would undertake duties only at one site, I do not find that he said or implied that this was because of CXA's bail conditions.
5. I find that the Tribunal did grant a stay of the suspension of CXA's licence on 10 January. The order on the Tribunal file states: The stay is granted until further order of the Tribunal subject to the conditions that the applicant only undertake static security work or work that is primarily static and is under supervision [and] is to advise the Respondent of the work that he will undertaking and the Respondent has leave to have the matter relisted if the conditions are not met.
6. The next issue was whether on 31 March 2017, CXA performed security duties at the Camden Show in breach of the Tribunal's orders and the undertaking given by the applicant that CXA would only undertake duties at one site in accordance with his bail conditions.
7. As to "the undertaking" described in the Decision, the evidence before me establishes that there was no undertaking as such given by the applicant to the Tribunal. While the applicant accepted in cross-examination there was an undertaking that CXA "would be under my strict supervision", this is not borne out by what is recorded in the transcript of those proceedings. However, the evidence before me establishes, and I find, that the reassurance given by the applicant to the Tribunal that CXA's position was essentially static and that he would be under what "the branch" considered to be "under pretty close security" to be factors which caused the Tribunal to grant the stay.
8. The evidence establishes that CXA did work at the Camden Show on this date. The COPS report records that he was employed as a security contractor for SCP and rostered to perform security duties that day. The evidence further establishes that he was arrested that day.
9. There was limited evidence about what work CXA was undertaking at the Camden Show. The applicant said in cross-examination before me that CXA was at the Camden Show to "look after the cars", and was working under his "strict supervision". While the evidence is scant, I am satisfied that the work undertaken by CXA was in breach of the condition that he only undertake static duties; CXA was outdoors, he was looking after parked cars. The way in which "static" work had been described earlier was to suggest that it consists solely, or primarily, of indoor "office" duties, and/or remote supervision via video or closed circuit television.
10. I find therefore that on 31 March 2017, CXA was performing security duties at the Camden Show in breach of the Tribunal's orders in that the work he was performing was not "primarily static". I also find that at the time, CXA was in breach of his parole condition, relevantly that he not be with or have any contact whatsoever with any person under the age of 16 years.
11. There was a lengthy debate during the cross-examination about whether or not the applicant knew that this was in fact one of CXA's parole conditions. He denied that he did. He was cross-examined about a "Notification of Suspension of Licence" notice (the Notice) dated 16 December 2016 received by CXA. The Notice relevantly states that: Pursuant to section 25 of the Security Industry Act 1997 (the Act), notice is hereby given that your licence has been suspended for the following reason: YOU HAVE BEEN CHARGED WITH: ASSAULT OCCASIONING ACTUAL BODILY HARM (DV) - T2 AGG[RAVATED] INDECENT ASSAULT - VICTIM YUNDER AUTHORITY 8(DV) - T1 COMMON ASSAULT (DV) - t2 One of your bail conditions are: "NOT TO BE WITH OR HAVE ANY CONTACT WHATSOEVER WITH ANY PERSON UNDER THE AGE OF SIXTEEN (16) YEARS" (Capitalisation as in original).
12. The applicant agreed that he had known CXA for some years, that CXA rang him from the police station when he was arrested in connection with those charges on 16 November 2016, and that one of the charges involved indecent assault against CXA's 10 year old foster child. The applicant agreed that the charges were serious. When asked if he knew about CXA's bail conditions, the applicant said that he was only told that CXA had to report to police, and that he was not told about the bail conditions.
13. However, the applicant agreed, at least at one point, that he was shown the notice of revocation by CXA. He had no explanation as to why he did not see or understand the capitalised words "NOT TO BE WITH OR HAVE ANY CONTACT WHATSOEVER WITH ANY PERSON UNDER THE AGE OF SIXTEEN (16) YEARS". The applicant said that he did not become aware of this bail condition until CXA was arrested on 31 March 2017. When pressed on the issue, the applicant said that he could not remember whether he had seen the notice of revocation or not.
14. I found this evidence to be unpersuasive, given that the applicant agreed that CXA told him about the other assault charges when he was charged, and again when CXA discussed the Notice with him, and rang him when he was arrested. The evidence before me included the SLED interview of CXA conducted on 28 June 2017. CXA told the SLED officers that he did tell the applicant about his arrest, the nature of the charges, including one charge involving his foster child, and about the bail condition that he was not to have contact with children under 16 years of age (see pp 105 to 106 of the transcript of the interview). He also told the officers that the applicant had told him he would be placed at the Mainfreight site because it was a safe place to be. This evidence was not challenged by the applicant.
15. I find that on the balance of probabilities the applicant, having been told by CXA on or about 16 November 2016 and having seen the Notice shortly after 16 December 2017, knew that CXA was subject to bail conditions including that he not have any contact with persons under 16 years of age.

Subsequent investigations

1. I shall deal with each of the matters which the Decision states were later established following investigation.

The applicant arranged for CXA to perform security activity at the Camden Show, with full knowledge of his licence stay conditions

1. I find that this is established. The evidence, including the applicant's own evidence, is that he arranged for CXA to work at the Camden Show, and that this was in breach of the conditions of the stay on CXA's suspension, namely that any employment be "static", and that CXA be supervised.

The applicant was not authorised to make submission on behalf of Southern Cross

1. While not clear, I have assumed that here the Decision is referring to the applicant's unsigned reference signed by the applicant for CXA. The statement may also extend to the applicant's appearance before the Tribunal on 10 January 2017. I accept the evidence of Mr David Medhurst, the Director of Operations of SCP, that neither the applicant, nor any employee of SCP, was authorised to provide character references on company letterhead without approval, and that, on this occasion, the applicant was not authorised to do so. It follows that, while the applicant could give evidence for CXA to the Tribunal in a personal capacity, he was not authorised to do so as a representative of SCP.
2. This is also consistent with the applicant's email to SCP of 13 April 2017 which states in part: Please accept my deepest apologies in relation to the [CXA] matter[. M]y intentions [were] to NEVER bring disrepute to [SPC] or anyone else within the business. I was trying to help an employee go though some tuff times before he lost everything. Never did I do anything that was not legal in relation to his licencing in [fact I] did not let him work until he was granted his [stay] by the tribunal and then orders put forward could be followed without issues.

CXA had not been an employee of SCP since December 2016

1. Mr Medhurst gave evidence that CXA resigned as an employee of SCP in mid to late December 2016, his last shift being 6 December 2016.

SCP had no knowledge CXA was being used via a sub-contracting arrangement or that his licence had been suspended

1. Again, the evidence of Mr David Medhurst establishes that SCP did not know that CXA was being "used" via a sub-contracting arrangement or that his licence had been suspended. I understand Mr Medhurst to mean that he was not contracted or employed.

The applicant fabricated roster documents to conceal the fact that CXA was performing his duties at the site specified in the stay orders 1. This was the subject of considerable evidence, principally that of Ms Miriam Novak, the SCP Business Improvement Manager. She oversees the SCP rostering system. She had a very detailed knowledge of the operations of the business of SCP. She produced screen shots of relevant parts of the rostering system which showed which workers were recorded as working on particular days, as rostered by the applicant. However, a comparison with Exhibit R3 establishes that it was CXA who was in fact working on those days, or at least on some of them. This is established as R3 is a contemporaneous handwritten report book, described by the applicant as a "log book", which each security guard completes during the course of their shift. The comparison reveals that CXA was working when others were put in the rostering system, not as a "static guard", but rather, "on patrol", on many occasions after the stay of 10 January 2017. These occasions included 11, 15, 17, 18, 21, 23, 24, 25 and 28 February, 23 and 26 March, and 6, 7 and 8 April 2017.

1. Remarkably, R3 also establishes that CXA actually worked on patrol: 1. on the very day that the Tribunal made the stay order (namely 10 January 2017), commencing at 10:00pm, through to 4.00am on 11 January 2017; and 2. again during the week immediately after 10 January, that is on 13, 14, 15 and 17 January 2017.
2. The language in the Decision (that is that the applicant fabricated roster documents to conceal the fact that CXA was performing his duties at the site specified in the stay orders) is imprecise. However, given the evidence of Ms Novak, which I accept, I am satisfied and find that the applicant fabricated roster documents to conceal the fact that CXA was performing his duties at a site known as Mainfreight Prestons in breach in the stay orders of 10 January 2017. That is the case because the work was not "static".
3. I reject the applicant's evidence on these matters. He was extensively cross-examined about Ms Novak's evidence and had no credible explanation as to why CXA was not recorded in the relevant rosters, when the applicant had entered the names of the other employees. His rejection in cross examination of the proposition that he did not want others to know that he had placed CXA on the payroll was unconvincing. The applicant explained that there may have been "varying reasons" for this, but declined to nominate any. He relied on rosters to which he no longer had access, and to a roster to which he had not previously referred. In short, the applicant's evidence was confused, unconvincing and uncorroborated.

The applicant's employment with Southern Cross had been terminated based on the above conduct.

1. The evidence before the Tribunal and establishes that: 1. the applicant was terminated by SCP 19 April 2017, following being stood down on or about 12 April 2017; 2. the reasons for the termination were that the applicant: 1. falsified company records showing alias names in the central roster to deliberately conceal; CXA was working at a customer site via a sub-contractor; 2. took personal leave claiming he was sick but was in fact working at the Camden Show; 3. used company resources such as email, stationary, and facilities to organise activities of non-SCP business activities; 4. gave an unauthorised reference on SCP letterhead to SLED; 5. gave operational undertakings he was not permitted to give and which were unworkable and impractical.

9 May 2017 hearing

1. In order to understand the following findings, I need to record one matter which was not referred to in the Decision. On 10 February 2017, the Commissioner wrote to the Tribunal in the CXA proceedings seeking, by consent, to vary the stay and the conditions attached to the stay. By consent, on 14 February 2017, the Tribunal varied its orders as follows: 1. The stay is granted until further order of the Tribunal subject to the conditions that [CXA]: (a) only undertake static security work, or work that is primarily static, and is under supervision and is to advise the Respondent of the work that he will be undertaking; (b) must comply with the terms of any bail conditions as applicable to him from time to time; (c) must inform the Director of [SLED] of any change to his current employment conditions, including but not limited to, changes to worksite, duties, hours of work or supervision arrangements prior to, or within 348 hours after, the change occurring; and
2. The Decision states that during this hearing: . . . again under oath, [the applicant] denied [he] had misled the Tribunal at the previous hearing and falsifying data on the [SCP] roster even when presented with evidence of this. (Grammar as in original)
3. I will deal with this issue in two parts. The first part is that the applicant misled the Tribunal on 10 January 2018. The Decision does not state or particularise the misleading conduct. This must be understood by reference to the matters set out earlier in the Decision. These are as follows.
4. First, that both the applicant and CXA were employees of SCP. For the reasons given above, I have found that the applicant did give that evidence on 10 January 2017 when in fact neither was an employee of SCP. It follows that I find that the applicant misled the Tribunal on 10 January 2017, and misled the Tribunal again on 9 May 2017 when he denied this.
5. Secondly, that the applicant was authorised to speak for SCP concerning CXA's employment. For the reasons given above, I have found that the applicant did give that evidence on 10 January 2017 when in fact he was not so authorised. It follows that I find that the applicant misled the Tribunal on 10 January 2017 and misled the Tribunal again on 9 May 2017 when he denied this.
6. Thirdly, that CXA would only undertake duties at one site, in accordance with his bail conditions. For the reasons given above, I did not find that the applicant gave this evidence at the hearing on 10 January 2017. It follows that he did not mislead the Tribunal in that respect on that occasion or on 9 May 2017.
7. The second aspect of this issue is that the applicant denied that he falsified data on the SCP roster even when presented with evidence to the contrary.
8. For the reasons given above, I find that the applicant fabricated roster documents to conceal the fact that CXA was performing his duties at a site known as Mainfreight Prestons in breach in the stay orders of 10 January 2017.
9. It follows that I find that in this respect, the applicant misled the Tribunal on 9 May 2017.

SLED interview, 28 June 2017

1. I turn now to the SLED interview on 28 June 2017. The Decision states: 9. On 28 June 2017 you were interviewed by SLED Officers in relation to the above matters. During this interview, when asked about providing evidence on behalf of [CXA], you answered that when you gave evidence on 10 January, you were unaware of the seriousness of the charges against [CXA]. SLED has since obtained evidence that you were fully aware of the allegations against [CXA] almost immediately after he was charged, and had knowledge of his bail conditions. 10. Based on the above matters and the evidence available, I am satisfied that you provided false or misleading evidence to SLED and the NCAT, you were untruthful in your evidence even though you were under oath and did not provide truthful responses to SLED Officers in relation to this matter.
2. The interview with SLED officers took place on 28 June 2017. It commenced at 10.55 am and concluded at 12.35pm. As the transcript of the interview is 84 pages in length, it is unhelpful for the Decision to simply state that the applicant did not provide truthful answers without being specific. The Decision should be understood, in relation to misleading evidence to SLED Officers, as telling the SLED Officers that when he gave evidence to the Tribunal on 10 January 2017, he was unaware of the seriousness of the charges against CXA.
3. As I have found above: 1. CXA told the applicant about the offences with which he had been charged when he was arrested on 16 November 2016; 2. shortly after 16 December 2016, the applicant was aware of the contents of the Notification of Suspension of Licence notice dated 16 December 2016 received by CXA.
4. I find therefore that when the applicant was interviewed by SLED officers on 28 June 2017, he misled them when he told them that he was unaware of the seriousness of the charges against CXA.

Conclusion

1. For the reasons given above, I am satisfied on the balance of probabilities that the applicant: 1. misled the Tribunal in the manner described on 10 January 2017; 2. knowingly allowed CXA to work "on patrol", and not in a static position, on no less than 19 occasions, including on 10 January 2017, with full knowledge of CXA's stay conditions and his parole conditions; 3. knowingly provided a reference for CXA to the Tribunal when he was not authorised to do so; 4. fabricated roster documents to conceal the fact that CXA was performing his duties at the site specified in the stay orders; 5. misled the Tribunal in the manner described on 9 May 2017; 6. did not provide truthful answers on 28 June 2017 when he was interviewed by SLED officers in relation to the above matters.

Powers of the Tribunal

1. Under s 63 of the Administrative Decisions Review Act 1997 (NSW) the Tribunal's role is to determine whether, having regard to its factual findings and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
2. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
3. The standard of proof applying in these proceedings is the civil standard, that is, the balance (or preponderance) of probabilities. These are not adversarial proceedings. There is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10.

The public interest

1. Section 15(3) of the Security Industry Act 1997 provides that 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. The respondent submits that it is not in the public interest for the applicant to hold a security licence.
2. In Ahmed v Commissioner of Police, NSW Police Force [2017] NSWCATAD 73, the Tribunal noted at [46] that the concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals. The meaning of public interest has been considered in many decisions of the Tribunal. The Tribunal has said that: 1. "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; 2. "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; 3. 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; and 4. 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,
3. see Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218; Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184.
4. In addition to his oral submissions made at the hearing denying these various matters, the applicant relied on written submissions provided at the time of the internal review. Those submissions cover a range of matters including the following. The applicant believes that he is a fit and proper person to hold a licence, and that he has held one for 26 years with an impeccable record. In his written submissions the applicant stated that he is a single parent who supports a daughter and elderly parents. He said that he has not been able to obtain work since his licence was revoked, and that he is surviving by relying on his savings. He provided a number of positive references to the Tribunal, and says that he is agreeable to conditions being placed on his licence.
5. The applicant has put forward his family and financial circumstances as a reason he should retain his licence. However, his misleading of both this Tribunal and the SLED officers represents a disregard for the law and principles pertaining to security licensing in NSW. The applicant's personal interest in retaining his licence is not relevant to the public interest in having full confidence in the professionalism of people involved in the security industry: Blissett v Commissioner of Police, NSW Police; Web Protection Australia Pty Limited v Commissioner of Police, NSW Police [2006] NSWADT 114 at [32].
6. In my view, the public could have no confidence that the applicant would, in the future, behave professionally and with integrity in the security industry. In reaching this conclusion, I am particularly concerned that, the very day that the applicant gave evidence to the Tribunal that CXA would be employed in a static role, where any patrol would be limited to a walkway, he was actually rostered "on patrol" commencing at 10 pm that very night, and then for four of the next six nights. As was noted in Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33]: 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.
7. In Feuerstein v Commissioner of Police, NSW Police Force [2007] NSWADT 114 at [11] the Tribunal stated in relation to the Security Industry Act 1997: 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.
8. In my view, it is not in the public interest that the applicant hold a security licence. As was stated in Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 states: 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.
9. Consistent with these principles, given the above findings, the correct and preferable decision is to revoke the applicant's Licence. It follows that the Decision should be affirmed.

Fit and proper person

1. The respondent also submits that s 15(1)(a) of the Security Industry Act is engaged, that is that the applicant is not a fit and proper person to hold the Licence. I accept this submission. In my view, the findings above amply demonstrate that the applicant is not a fit and proper person to hold a security licence. The content of "fit and proper" includes a person's moral integrity and rectitude of character: Ex parte Meagher (1919) 336 WN(NSW) 175 at 179. I consider that there is substance in the observation made in the internal review decision that, generally: . . . the security industry has a special role in ensuring that the public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe [Haining v Commissioner of Police [1999] NSWADT 6 at [47]], and that: [i]n terms of a scheme licensing security guards, good character is a vital feature of the inherent qualifications for much of the work involved [Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 at 390].
2. If a person is not a fit and proper person to hold a licence, the Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant is a fit and proper person to hold the class of licence sought.
3. Accordingly, for this additional reason, the decision to revoke the applicant's licence was the correct and preferable one. It follows that the Decision must be affirmed.

Order

1. For the above reasons, the decision of the respondent of 27 September 2017 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: 18 May 2018