Russo v Commissioner of Police, NSW Police Force [2025] NSWCATOD 132;

1. The Respondent relied on written submissions and made oral submissions at the hearing.
2. The Respondent relied on the following documents:

(1) Documents filed in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act) on 28 February 2025 (s 58 bundle of documents) [Exhibit R1]

(2) Submissions filed on 9 April 2025 (Respondent's submissions) [Exhibit R2]

(3) Attachment A to Respondent's submissions "NSW Police Force Code of Conduct and Ethics" [Exhibit R3]

(4) Attachment B to Respondent's submissions "Police CAD Useage Procedures" [Exhibit R4]

(5) Attachment C to Respondent's submissions "Use of Resources Guidelines" [Exhibit R5]

(6) NSW Police Handbook [Exhibit R6].

1. The Applicant relied on written submissions and was cross examined at the hearing.
2. The Applicant relied on the following documents:

(1) Administrative Review Application filed 23 January 2025 [Exhibit A1]

(2) Submissions and materials filed 7 February 2025 [Exhibit A2] attaching:

(a) Incident Reporting Form dated 23 February 2022

(b) Certificates of capacity/certificate of fitness dated 24 February 2022, 31 March 2022 and 2 June 2022

(c) Reports of General and Forensic Psychiatrist dated 17 June 2022 and 8 July 2022

(d) Confidential Statement of Events Report dated 15 June 2022

(3) Applicant's reply to s 58 bundle filed 20 March 2025 [Exhibit A3].

1. At the hearing on 28 April 2025 the Tribunal became aware that the Applicant did not receive the Respondent's s 58 bundle prior to the hearing. Orders were made to provide the Applicant with an opportunity to receive the s 58 bundle and to provide any further evidence in reply including statements, documents and submissions. The Applicant did not file anything further and the hearing continued on 25 June 2025. Transcript of the Applicant's evidence given on 25 June 2025 was provided to the Tribunal on 1 September 2025.

1. On 28 April 2025 the Respondent sought, and the Tribunal made, an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) prohibiting the publication or broadcast of the name of any person other than the Applicant referred to in Exhibits A2, A3 and R1.
2. The Tribunal made the order sought being satisfied that it was desirable to do so in order to preserve the anonymity of NSW Police Officers in these proceedings.

1. Under s 29(1)(a) of the Security Industry Act 1997 (Security Act) a person may apply to the Tribunal for review under the Administrative Decisions Review Act 1997 (ADR Act) of a decision by the Respondent to refuse to grant a licence to the person. The Tribunal must then decide what the correct and preferable decision is having regard to the material before it: s 63 of the ADR Act.
2. If the Tribunal is not satisfied that the Applicant is a fit and proper person to hold the security licence, the Tribunal must refuse to grant the licence: s 15(1)(f) of the Security Act. However, if the Tribunal considers that the grant of the licence would be contrary to the public interest, the Tribunal has a discretion to refuse the application: s 15(3) of the Security Act.
3. Section 7 of the Security Act provides that a person must not carry out a "security activity" unless the person is the holder of a licence that authorises the person to carry on the security activity.
4. Section 4(1)(c1) of the Security Act defines carrying on a "security activity" to include "acting as a private investigator or acting in a similar capacity." Section 4(2) defines a "private investigator" as a person who is carrying out activities on behalf of another person that involves finding a person or investigating a person's business or personal affairs and conducting surveillance of another person.

1. The Security Act does not provide any objects. It establishes a scheme for licencing people to carry on security activities, and there are provisions which require or allow the Respondent to refuse or revoke a licence.
2. Previous cases of the Tribunal have found that the Security 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: Feuerstein v Commissioner of Police, NSW Police3 [2007] NSWADT 114 at [11].
3. Honesty and integrity are implicit requirements for the holder of each of the relevant security licences: Brandusoiu v Commissioner of Police, NSW Police [2011] NSWADT 57 at [48].

1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Chief Justice Mason at 380:

"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."

"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."

1. The nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the Tribunal made the following comments in the context of the security industry:

"Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry."

1. A person who has been found to be of bad character, and not a fit and proper person to operate in an industry, may redeem him or herself: see Trilin v Commissioner of Fair Trading [2003] NSWADT 222 at paragraph [46] and the cases referred to there, cited in Brandusoiu at [45].

1. The Security Act does not provide any guidance on how the discretion in s 15(3) should be exercised. In Minister for Immigration and Citizenship v Li [2013] HCA 18; [2013] 297 ALR 225, the majority of the High Court stated at [67]:

"[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object."

1. Determining whether something is in the public interest then, is informed by the relevant provision that prescribes the public interest as a criterion**:** Health Care Complaints Commission v Coleman [2025] NSWCATOD 78 at [29] citing Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [31]; McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; [2005] FCAFC 142 at [9]- [15].
2. The public interest ensures that personal interests are not the only matters taken into account. The interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others [1995] IRCA 540; (1995) 131 ALR 657, at 681.
3. The public interest may extend beyond considerations of public safety and include concerns in relation to public protection and public confidence in the administration of the licensing system: See Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16 at [33] in the context of a firearms licence.
4. The "public interest" is an inherently broad concept giving the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual: See the Appeal Panel in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25].

1. Although not bound by the rules of evidence, the Tribunal must base its decision on 'probative evidence': Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 491-493.
2. The standard of proof applying in this review is the balance of probabilities: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]. There is no onus of proof, as that term is generally understood, in merits review cases: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40]. The Tribunal must decide what the correct and preferable decision is having regard to any relevant factual material.

1. The Respondent's position is that the Applicant is not a fit and proper person to undertake the activities of the security licence and it is not in the public interest for the Applicant to hold the security licence.
2. The Respondent submits that the activities of a "private investigator" must be carried out by persons who are capable of professional and responsible conduct, with whom the public can have the utmost confidence. Such persons must hold the necessary qualities of honesty and integrity. The Respondent further submits that an objective member of the public would not have confidence in the Applicant possessing a class 2E security licence.
3. The Respondent contends that the seriousness of the allegations concerning the conduct of the Applicant, and the conduct itself, whilst he was a serving Police Officer demonstrate that he does not possess the necessary qualities of a person entrusted to undertake investigation and surveillance of members of the community.
4. These allegations led to the suspension of the Applicant from the Police Force in July 2023 followed by a notice served under s 181D(3)(a) of the Police Act 1990 in September 2023, considering the removal of the Applicant from the NSW Police Force (Notice). Section 181D(3)(a) enables the Respondent to remove an officer where the Respondent has lost confidence in their suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. The Applicant resigned from the NSW Police Force in November 2023 and did not respond to the allegations.
5. The Respondent relies on the nine Allegations set out in the Notice as demonstrating that the Applicant repeatedly neglected his duties, repeatedly disregarded operational requirements and NSW Police Force policy and procedure, repeatedly and deliberately disabled police vehicle operating systems and/or instructed other officers to do so in an attempt to avoid his location being monitored, repeatedly attempted to mislead other officers and superiors, irresponsibly put himself, colleagues and members of the public at risk by driving in excess of the speed limit without justification in breach of the law, irresponsibly put pedestrians and motorists at risk when driving with a blood alcohol concentration of 0.132 in breach of the law. The allegations predominantly relate to the period December 2021 and January 2022 except for the driving with a blood alcohol driving offence which occurred while off duty in June 2022.
6. The Respondent contends that the conduct demonstrates the Applicant's propensity to act in breach of the applicable requirements and standards of professionalism applicable to his job as a police officer, and also to act dishonestly, with his own personal interests ahead of the responsibilities and privileges of the position which he occupied.
7. The Respondent submits that the Applicant has not disputed the conduct on which the Respondent relies and does not address the underlying conduct save as to claim that he was experiencing depression at the time of the allegations. The Respondent's submission is that the Applicant's claim of depression does not excuse his serious actions in breach of the law, policy and procedure which the Respondent says were repeated and deliberate.
8. The Respondent submits that even if it could be said that the Applicant was suffering from depression (which is not conceded), there is no evidence before the Tribunal to demonstrate that the Applicant would not again behave in a similar manner if faced with similar stressors in the future. The Respondent contends that is particularly so in circumstances where the Applicant has shown no remorse for his actions or contrition.
9. The Respondent also submits that there is no entitlement to a security licence, the Applicant's serious conduct was very recent (end of 2021 and 2022), there has been insufficient time for the Applicant to demonstrate any reformation of character and that the Applicant has not provided evidence of any reformation of character.

1. The Applicant submits that throughout his career as a serving police officer he suffered from severe depression which he was medicated for and attended appointments with a psychologist. The Applicant contends that his depression was due to bullying and harassment from colleagues and supervisors while employed by the Respondent.
2. In February 2022 the Applicant received a document advising him that he was the subject of an internal conduct complaint. The Applicant states that due to his mental health at the time he was advised not to respond to the complaint and that he was advised the complaint would be finalised without his response. He was issued with the Notice and decided to resign in November 2023.
3. The Applicant contends that the complaint was dealt with as a "departmental complaint with no intention of any criminal proceedings." He says the allegations were in relation to leaving his police area command jurisdiction and turning off the car's computer systems a number of times.
4. The Applicant submits that he was refused the security licence one year after he resigned from the Police Force, and that the complaint is being used 12 months later as a reasonable justification by the Respondent to refuse his application.
5. The Applicant states that he is trying to move on with his life and a new career "after the trauma caused when I was an employee of the NSW Police Force from the Bullying which was reported but never officially dealt with by my senior management." The Applicant provided the Tribunal with a copy of his Incident Report made to the NSW Police Force which he says outlines a number of concerns which had impacted his mental health "when I then made a few decisions which had been dealt with and finalised by the NSW Police Force." The Applicant also refers to the loss of a colleague and friend in early 2022.
6. The Applicant states that he is seeking the opportunity to turn a page in his life and career, start fresh and be granted the security licence. He states that he has been working full time with no disciplinary concerns or legal concerns since leaving the NSW police force and there will be none in the future.
7. In oral submissions the Applicant emphasised that the allegations arose three years prior, that he hasn't experienced any sort of depression or stress "in what is a pretty intense job at times." He stated that he is trying to move on with his life and "it's still been held over my head for a few little mistakes." He contends that if the issues were as bad as what they are being made out to be now coming up three, four years later, he would have been charged with neglect of duty, but he wasn't.

1. While the Applicant does not agree with all of the allegations contained in the Notice, he agreed in cross examination to many of the allegations, including that he left his Police Area Command without authorisation or operational necessity and without informing a supervisor and disabled the car's tracking system on a number of occasions. The Applicant agreed he has engaged in conduct that constituted breaches of the statement of values of members of the NSW Police Force, breaches of the Code of Conduct and Ethics, breached the CAD system policy and a neglect of duty.
2. The Applicant agreed in cross examination that the work of a private investigator involves tasks such as surveilling third parties, doing background checks for employment and personal relationships, tracking down the whereabouts of witnesses or debtors or other persons, serving legal documents, undertaking undercover operations to detect matters such as fraud, corruption or theft, locating missing persons and conducting character reference checks. The Applicant agreed that all of those activities require him to operate within a strict legal and regulatory framework and that he may be entrusted with confidential and sensitive information.
3. In cross examination the Applicant agreed that the Notice informed him that he had the option to tender his resignation, and that the Notice drew to his attention matters regarding whether or not he decided to resign and one of those matters was whether or not he would be prohibited from owning certain licences such as under the Security Act. The Applicant agreed that he understood those matters.
4. The Applicant also agreed that he had been given an opportunity to respond to the Notice and did not do so, he says based on advice from his treating medical practitioner. The Applicant's evidence is that by September 2023 he was still being advised by his treating medical practitioner not to respond.
5. The Applicant's evidence is also that he had no intentions of returning to the NSW Police Force and so there was not much reason to put in submissions in response to the Notice as he was going to resign anyway.
6. The only medical evidence before the Tribunal was prepared in 2022. This is in the form of certificates from the Applicant's treating medical practitioner that relate to capacity to work during periods between 24 February 2022 to 1 July 2022. The certificates note that the Applicant's treatment was antidepressants up to 1 July 2022. The Applicant states that he was cleared to return to work 25 December 2023.
7. The other medical evidence is two reports from a General and Forensic Psychiatrist who provided an independent assessment of the Applicant on 17 June 2022 (June report) and a further report dated 8 July 2022. The June report concluded that the Applicant did not meet criteria for a diagnosis of a mental disorder at that time. The report stated that he may have met criteria in 2021 for Major Depressive Disorder with comorbid mild Alcohol Use Disorder and that both conditions appear to have resolved.
8. The Applicant's evidence on cross examination was that his treating doctor was still prescribing him with medication for depression at the time of the June 2022 Psychiatrist report. The Certificate from his treating medical practitioner dated 2 June 2022 supports this as it states that the Applicant's treatment was antidepressants with the further review date noted as 1 July 2022.
9. The Psychiatrist report dated 17 June 2022 refers to various workplace concerns that the Applicant recounted that he experienced at the end of 2021. The report states that the Applicant recounted that "around this time he was experiencing significant difficulties with his mental health" and outlines the impacts. The report then states that the Applicant recalled that he was able to focus on tasks to allow him to perform his duties adequately, however he was unable to concentrate on tasks in other contexts. In cross examination the Applicant agreed that the report is referring to his ability to focus on work tasks during the period his conduct, the subject of the Notice, is alleged to have occurred.
10. The Psychiatrist report dated 17 June 2022 identifies stress as a factor for the development of depression and provides that it is "very possible" that the Applicant may experience a relapse of depressive symptoms. The Applicant has not filed any evidence in relation to his current mental health or of the potential risk of stress arising from performance of duties as a private investigator.

Is the Applicant fit and proper to hold the licence?

1. The High Court in Australian Broadcasting Tribunal at 380 stated that the question of whether a person is fit and proper is one of value judgement. The Tribunal must consider the seriousness or otherwise of conduct, together with the weight to be given to matters favouring the person whose fitness and propriety are under consideration_._ In accordance with Chaining at [41], the Tribunal must also consider the activities in which the Applicant will be engaged and the nature of the industry together with the public policy objective leading the legislature to regulate the industry.
2. The Applicant seeks a security licence to act as a private investigator or in a similar capacity. In accordance with s 4 of the Security Act, the activities performed may include finding a third person, investigating a third person's business or personal affairs and carrying out surveillance of another person. These are activities that impact on the rights and interests of others and the Applicant agrees that they must be carried out within a legal and regulatory framework.
3. The Tribunal considers that the conduct engaged in by the Applicant which is not disputed by him, is serious in nature. In particular, the Applicant deliberately and repeatedly left his Police Area Command without authorisation or operational necessity and without informing a supervisor and disabled the car's tracking system. Being absent while on duty without cause is a serious matter which could impact the safety of the community. Turning off a Police car's tracking system also indicates a willingness to be dishonest and deceptive when holding a position of trust.
4. The factors that favour the Applicant are that the security licence would enable him to earn a living in a field which is aligned with his previous policing experience. As well as benefiting the Applicant, his prior experience may be of benefit to the community.
5. The Applicant contends that his conduct occurred during a time when he suffered from severe depression. The Applicant also points to the fact that these allegations occurred three years ago. He says he is working full time with no disciplinary or legal concerns since leaving the NSW Police Force and that there will be none in the future. Further, the Applicant states that he has not experienced stress or depression in what he considers to be "a pretty intense job at times".
6. Having regard to the public policy objective of the Security Act, to provide the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard, Feuerstein at [11], the Tribunal gives less weight to the personal circumstances in favour of the Applicant.
7. The Tribunal has had regard to the conclusion of the Psychiatrist's June 2022 report that the Applicant may have met criteria in 2021 for Major Depressive Disorder with comorbid mild Alcohol Use Disorder. The Tribunal has also had regard to the Certificates by his treating medical practitioner which indicate the Applicant's treatment was antidepressants from February 2022 to 1 July 2022. However, there is no evidence before the Tribunal which clearly indicates that the Applicant had depression at the time of the conduct in November 2021 and January 2022 and no evidence of a causal link between any depression and that conduct.
8. The Applicant has not provided a satisfactory explanation for why he engaged in the conduct. While a person who has engaged in improper conduct may redeem him or herself (Trilin at [46]), the Applicant has not shown any contrition for his conduct, describing it at the hearing as "a few little mistakes". In addition, the Applicant has not provided any evidence beyond his own assertion to satisfy the Tribunal that he would not engage in such conduct again.
9. The Tribunal is satisfied that improper conduct has occurred and has insufficient evidence before it to form a view that it will not occur again. In these circumstances the Tribunal considers that the general community would be concerned if the licence was granted. Accordingly, the Tribunal finds that pursuant to s 15(1)(f) of the Security Act the Tribunal must affirm the Respondent's decision to refuse to grant the security licence as the Tribunal is not satisfied that the Applicant is a fit and proper person to hold the class of licence sought.

Is it contrary to the public interest to grant the licence?

1. Section 15(3) provides a discretion to refuse to grant an application for a licence if the Tribunal considers that the grant of the licence would be contrary to the public interest.
2. As the Security Act does not provide any guidance on how the discretion should be exercised, in accordance with Minister for Immigration at [67] it is necessary to look to the scope and purpose of the statute. On this issue the Tribunal refers to the discussion at [61] above.
3. The public interest is a broad concept and the Tribunal is entitled to have regard to all of the factors discussed at [56]-[64] in exercising the discretion. Having regard to the agreed conduct engaged in by the Applicant and the matters in particular at [62]-[64], the Tribunal considers that granting the licence would be contrary to the public interest because it may undermine public confidence in the administration of the licensing system. Accordingly, the Tribunal exercises its discretion to affirm the Respondent's decision to refuse the security licence.

1. For the reasons set out above the Tribunal has found that the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant's application for a Class 2E Security Licence.

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.

26 September 2025 - The reference to Security Act 1997 has been amended to Security Industry Act 1997.