Panapa v Commissioner of Police, NSW Police Force

NCAT Occupational|2017-11-22

Background

The Applicant previously held Class 1ABC, 1AC, 1G, or 1ACG security licences under the Security Industry Act 1997 ("the Act") between 2001 and 2013 without incident. In March 2013 the Applicant was issued a Class 1AC security licence, licence number 408235436, due to expire in February 2018.
The Applicant's licence was revoked on 28 July 2017 by the Respondent on the basis of sections 26(1A), 15(1)(a), 26(1)(d) of the Act and clause 25 of the Security Industry Regulation 2016 ("the Regulations"), as a result of an incident which occurred on 18 March 2017 involving the Applicant, for which he was charged and convicted of an offence.
The Applicant was served with a Notification of Revocation of that licence dated 28 July 2017. The Notification of Revocation of Licence gave as reasons for the revocation: I consider that it is not in the public interest for you to continue to hold a licence due to the following events and charges. I am satisfied that you are not a fit and proper person to hold a security licence. I believe your actions on the 18 March 2017, and the subsequent court outcome raises serious concerns as to whether you are a fit and proper person to hold a security licence. SLED takes very seriously the position of trust afforded to licence holders, by not only the NSW Police Force, but the public of NSW. It is expected that a security operative's behaviour is of a high standard at all times. Your actions are in total disagreement with what is expected of a security officer and the security services you are licensed to perform. Offence Court/Date Result Destroy or damage property <= $2000 - T2 Mt Druitt Local Court on 26 July 2017 Fine: $1000

The reasons referred to relevant legislation as Sections 26(1A), 15(1)(a), 26(1)(d), and clause 25 of the Regulations.
The Applicant sought internal review, and the Respondent affirmed its decision with reasons on 22 August 2017. The Applicant applied to this Tribunal for an extension of time of 1 day to file proceedings, a stay of the Commissioner's decision to revoke his licence, and for review of the Commissioner's decision, on 21 September 2017. The extension of time was granted and the stay application was refused on 6 October 2017. The matter proceeded to hearing on 11 November 2017.
The Applicant gave evidence and was cross examined at hearing. Both parties made oral submissions and the respondent provided short written submissions.

Issues to be determined

The relevant issues to be determined by the Tribunal in order to reach the correct and preferable decision are: 1. Whether, if the Applicant was to apply for a new licence, it would have to be refused; 2. Whether the Applicant is a fit and proper person to hold the licence; 3. Whether it is in the public interest for the Applicant to hold the licence.

The Applicable Law

Part 2 Division 3 of the Security Industry Act 1997 provides for licencing procedure and criteria. Section 15 provides for general suitability criteria in the areas of age, competency and residency rights relating to employment etc. amongst other general criteria. Relevantly section 15 provides: 15 Restrictions on granting licence - general suitability criteria (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 ................... (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. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. ………….. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.
Section 16 provides for restrictions on the granting of licences, based on an applicant's criminal and other related history: 16 Restrictions on granting licence - criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law …
The "offence[s] prescribed by the regulations" referred to at s 16(1) of the Act are listed at Clause 15 of the Regulations to be, in summary: 1. Firearm offences; 2. Drug offences; 3. Assault offences involving an imposed penalty of imprisonment (whether or not suspended), a good behaviour bond, a community service order or a penalty of $200 or more; 4. fraud, dishonesty or stealing offences involving a maximum penalty of imprisonment for 3 months or more; 5. robbery offences (whether armed or otherwise); 6. more than 5 industrial or workplace offences in the past 2 years, in the case of an application for a master licence or for the renewal of a master licence only; 7. riot offences; 8. affray offences; 9. offences involving stalking or intimidation; 10. work health safety offences involving recklessness as to conduct resulting in death or serious illness/injury; . 11. Terrorism offences; 12. Participation or recruitment in criminal groups.
Section 26 of the Act deals with matters relating to revoking security licences. The section provides: 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. …
Clause 25 of the Security Industry Regulation 2016 states 25 Revocation of licence-additional reasons: section 26 (1) (d) For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.

Fit and proper

In 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.
In 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.
A 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

The 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, Wilcox 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.
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 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]).
In 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.
The concept of the 'public interest' was discussed by the Tribunal in Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 at [25] as follows: The 'public interest' is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual As the possibility of refusing an application on the ground of character is dealt with in the same section [section 15], it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The Tribunal has determined that the 'public interest' embraces the high standards expected of security licence holders. In McMicking v Commissioner of Police, NSW Police Force [2014] NSACATOD 95 the Tribunal discussed the concept of the 'public interest' in the context of revocation of a security licence: 113. In Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 at 47, JM Montgomery analysed the objects of the SIA, and the public interest to be served in exercising the discretion to revoke a licence on public interest grounds: The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted Accordingly, the objects and purposes of the Act are relevant, that is, the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130 The security industry has a special role ensuring that public order is maintained, safeguarding community assets and private property and ensuring that public venues are safe Haining v Commissioner of Police [1999] NSWADT 6. 114. In the matter of Naylor v Commissioner of Police NSW Police Force [2014] NSWCATOD 43, SM Molony referred to the Second Reading Speech accompanying the introduction of the SI Act: On the introduction of the SI A, Mr Gaudry, Parliamentary Secretary, in the NSW Legislative Assembly on 12 November 2002 said at page 6544 of Hansard: The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security. 115. In the matter of Nakad v Commissioner of Police NSW Police Force [2013] NSWADT169, JM Isenberg said at 57: The Security Industry Act 1997 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 Feuerstem v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11].
The Tribunal has also held that the discretion should be exercised in such a way as to promote the objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23].

Consideration

The Applicant worked as a security guard at Cedars Tavern Emerton. His Class 1AC security licence allowed him to patrol, protect or guard the property whilst unarmed, and to act as a crowd controller. The incident which resulted in the applicant's charge and conviction occurred at his workplace, shortly after he had finished work, and was in the context of a private dispute and altercation. The Applicant had purchased a mobile phone from a customer which did not work. The Applicant approached the customer in his car, in the carpark of his workplace, and interacted with him. The result of that interaction was that the customer's car was damaged. What occurred during that interaction and the specific damage to the car is the subject of factual dispute which the Tribunal does not need to determine, because the Applicant has already pleaded guilty to the charge of "damage and destroy property" and the Statement of Facts supporting the charge.
The Tribunal does need to determine, however, whether the charge for which the Applicant was convicted would require the Respondent to refuse his application for a licence. In my view it does not, because it involves damage to property, which is not one of the prescribed offences subject to s 16(1) of the Act. Accordingly I find that there is and was no necessity to revoke the Applicant's licence pursuant to the requirements of s 26(1A) of the Act.
In determining whether the Applicant is a "fit and proper person" to hold the licence pursuant to s 15 of the Act, I consider the Applicant's evidence at hearing to be significant. The Applicant's undisputed evidence was that he had worked as a security guard in various capacities for over 27 years without incident. This is a weighty consideration in the context of the security industry, in which physical and verbal altercations resulting in discipline and criminal charges are relatively common.
The Applicant volunteered information about the incident to the police the morning after the incident, and attended a voluntary recorded interview when requested, because he "felt guilty" and "thought it was the right thing to do". His legal representation was limited and did not include advice about the effect of the convictions on his security licence, or sufficient explanation of the Statement of Facts he was pleading to. He agreed with the respondent's representative in cross examination that the offence was serious, but I accept his evidence that he had no intention to intimidate the customer by approaching him to discuss the dispute and that his conduct during the interaction, as displayed in the CCTV footage, were reactive to the customer's during that interaction.
Part of the Applicant's conduct during that interaction was to pick up a small rock and throw it at the customer's window. This occurred in the context of the customer winding up his window after throwing an object at the Applicant. I accept the Applicant's evidence that the rock was thrown as a reaction to the customer throwing a soft drink cup at him, so much is evidence from the CCTV footage. In the context of the Applicant's limited legal representation at the time of his conviction, I afford minimal weight to the Respondent's evidence that the window shattered as a result of the rock being thrown, and that any glass from the window caused a laceration to the customer's arm. Although those facts are included in the Statement of Facts, they are not relevant to the offence charged and did not support any additional charges for damage to property or assault, which would be expected if they were available on evidence to the Police.
Whilst it was clearly unacceptable for the Applicant to react in the manner he did subject to the convicted offence, I accept the Applicant's evidence of his contrition and remorse, and his submissions that his conduct was not planned, was reactive, and was an isolated incident in the context of a private dispute. I accept the Respondent's submission that the Applicant's conduct during the incident on 18 March 2017 demonstrated a lack of insight, but reject the respondent's submission that the evidence demonstrated the Applicant's conduct was disproportionate, or that he was an aggressive, threatening, or intimidatory person. The isolated incident on 18 March 2017 in the context of an unblemished record as a security guard for decades cannot and does not support that conclusion.
The Applicant provided a number of character references. They were deficient in a number of respects from the standard of character reference generally accepted by the Tribunal, but I take into consideration the Applicant's lack of legal representation and legal assistance in preparing for the proceedings before this Tribunal as an explanation for those deficiencies. Of particular relevance are the references from his colleagues which demonstrate at least a basic understanding of the underlying charge and conviction and the purpose of the reference. Because of the deficiencies in the form of the references I have not considered them as significantly persuasive in favour of the Applicant's character and reputation, but find they provide corroborative support for the Applicant's submissions on his character, professionalism and suitability to hold a security licence.
The evidence demonstrates that the Applicant is a fit and proper person. He has demonstrated knowledge, ability and honesty in his conduct, both personally and professionally in the context of his maintenance of a security licence and work as a security guard until the incident on 18 March 2017. Whilst his conduct on that occasion was not appropriate, in my view it is not indicative of his character or reputation. On the Applicant's evidence and in the context of the Applicant's conviction, licence revocation and consequent inability to work as a security guard since July 2017, I consider it highly unlikely that the conduct subject to the Applicant's convicted offence would reoccur, and I find that the community can have confidence in him that it will not.
In considering the special role that the security industry has in ensuring that public order is maintained, safeguarding community assets and private property and ensuring that public venues are safe, I take into account the intention of the subject legislation in protecting the public interest by diminishing the likelihood of criminal activity within the industry. The Applicant's involvement in the incident of 18 March 2017, which I consider to be isolated, bears little impact on the maintenance of public order and safety of assets or property. On the evidence available to me, the Applicant's involvement in the industry for decades could only be viewed as supporting the protection of the public interest. The isolated incident on 18 March 2017 doesn't change that. The community can have confidence in the industry because of the Applicant and people like him, who demonstrate competence, integrity and accountability, even in adverse circumstances.
The correct and preferable decision is for the respondent's decision to be set aside.

Orders 1. The Respondent's decision to revoke the Applicant's licence is set aside.

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: 01 March 2018

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