Shammon v Commissioner of Police, NSW Police Force

The Applicant's case

1. The summary of the Applicant's case is drawn from the written submissions and the documentary evidence.
2. The Applicant initially sought a stay, then dismissal of the revocation of his security licence. His submissions described the events on New Year's Eve as follows: 5. On 31st December 2023, the Applicant was working as a security guard at the Universal Hotel …[the Premises] 6. At about 2:10am, police attended the premises after being notified about an alleged brawl. 7. On the day of the offence (the offence of which enlivens the revocation), the Applicant was assisting his team outside the nightclub, managing the queue and assessing intoxication levels. The Applicant noticed three men at the back of the line who were behaving poorly and appeared intoxicated. He asked them to leave the queue. A little while later he saw the same men had moved to the middle of the line. The Applicant once again requested that they leave, but the men refused and continued to argue. At that point, the Applicant, along with two other security guards, physically removed them from the queue. 8. While escorting them down the footpath, a physical altercation ensued and one of the males struck the Applicant with a closed fist, hitting him in the area of his left cheekbone. The security team ultimately called the police, and officers from Surry Hills PAC arrived at the scene. One of the men was arrested, while the other fled. The Applicant provided his information to the police and gave his version of the events as a witness. Upon reviewing the CCTV footage, the police concluded that the Applicant's actions of striking the individual was not justified under the circumstances. 9. On 6 March 2024, the Applicant was served with a Court attendance notice [and] was charged with Affray … … 14. On 30 May 2024, the Matter was heard on the first occasion at Downing Centre Local Court. The Applicant entered a plea of 'Not Guilty' to the alleged offence and the matter is currently being defended in Court. On the next occasion, 19 July 2024 the matter was listed for reply and a hearing date was fixed for 24 March 2025.
3. According to the written outline of submissions, the Applicant had been unemployed from the date of the revocation notice and unable to earn any income other than a Centrelink payment he received for his studies at university. The Applicant stayed with his parents and two brothers. He was unable to continue helping to support them financial stability of the household and had requested financial assistance from his brothers. The Applicant had also been unable to operate his motor vehicle as he was unable to afford to service it. He was studying a Bachelor of Commerce at Macquarie University and his means had been considerably straightened by his inability to work in the security industry. He had worked in banking and as a financial crime analyst from May 2022 to August 2023. The revocation of his licence had impacted on his mental well-being. He had no prior criminal record. The combination of factors would cause irreparable loss harm and damage to the Applicant and favoured the granting of an injunction.
4. The Applicant provided a character reference dated 18 September 2024 from Evan Wall, General Manager of Nova Security Group. The reference noted: [The Applicant] has served as a security supervisor, managing a team of 8 to 15 security personnel. His role primarily involved overseeing the external area of the Universal Hotel, where his responsibilities included assessing levels of intoxication, facilitating "Ask To Leave" (ATL) orders, and employing de-escalation techniques to ensure the safety and well-being of both customers and staff.
5. The reference did not refer to the incident which occurred on New Year's Eve, the revocation of the Applicant's security licence or the charges which had been laid against him.

The Respondent's case

1. The Respondent noted that the Applicant had been charged with affray under s 93C(1) of the Crimes Act 1900 (NSW) which provides: (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.
2. The Respondent submitted that this was a serious offence particularly where the charge arose in circumstances where the Applicant was carrying out his duties as a licensed security guard.
3. At the hearing, Constable Claxton was sworn and his statement was admitted into evidence. Attached to that statement was the USB stick which contained CCTV footage of the events in which the Applicant is alleged to have been involved on New Year's Eve.
4. The Respondent's version of the events on New Year's Eve was as follows: 1. In the evening of 31 December 2023 and early hours of 1 January 2024, the Applicant was working as a security guard at the Universal Hotel, Darlinghurst; 2. a man was lined up to enter the Universal Hotel with other friends (the victim); 3. the Applicant approached the victim and requested he leave the line; 4. the victim refused; 5. the Applicant took hold of the victim and forced him out of the line; 6. the victim argued with the Applicant and tried to rejoin the line; 7. the Applicant and another security guard took hold of the victim and again forced him out of the line, pushing him further down the street; 8. the victims friends followed as the victim was pushed down the street by the Applicant and other security guards; 9. the Applicant and security guards, and the victim and his friends, wrestled with one another; 10. the victim was dragged by security guards and held up, restrained, against the wall of the Riley Hotel, a venue next to the universal hotel; 11. whilst the victim was being held up by the other security guards and restrained, the Applicant, unprovoked, approached the victim and: 1. punched him four times to the head; and 2. kicked him once; 1. having seen the Applicant strike the victim, the victim's friends punched the Applicant, who punched back at the friend.
5. The Respondent showed some of the CCTV footage at the hearing and submitted that it demonstrated that the Applicant had struck the victim four times and kicked him when the victim was being restrained and so had engaged in conduct which was violent and unnecessary.
6. The Respondent submitted that given the objective seriousness of the charge and the underlying conduct, the public interest supported the Respondent's decision to revoke the applicants security licence.
7. Regarding the Applicant's evidence, the Respondent noted that the Applicant had only filed a bundle of documents and had not provided a sworn statement of his own.

Jurisdiction

1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 29 of the SI Act provides that applications may be made to the Tribunal for administrative review of a decision to revoke a security licence. The Tribunal has jurisdiction to hear and determine this application for review.
2. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
3. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17].

Relevant Legislation

1. The SI Act regulates people carrying out security activities and requires a person to be licenced to perform those activities so as not to commit an offence.
2. Section 26 of the SI Act relevantly 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. …
3. Clause 25 of the SI Regulation relevantly provides: 25 Revocation of licence - additional reasons: section 26 (1) (d) (1) For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it would be contrary to the public interest for the person to whom it is granted to continue to hold it. …

ISSUES

1. The following issues arise on the facts and submissions: 1. Should the Tribunal issue a stay or dismiss the proceedings as sought by the Applicant? 2. Is it contrary to the public interest for the Applicant to continue to hold a security licence? 3. If so, should the licence be revoked?

Should the Tribunal issue a stay or dismiss the proceedings as sought by the Applicant?

1. The Applicant variously sought a stay or dismissal of the proceedings.

Stay

1. Whilst the stay application appears to have been discontinued in the new submissions lodged on the day before the hearing, for completeness a stay is not appropriate in the current proceedings.
2. The proceedings had already been dismissed and reinstated once and were listed for final determination on 22 October 2024. A stay would serve no purpose for the Applicant but to prolong the revocation pending the outcome of the criminal charges. The administrative review would still then need to be determined by the Tribunal, unless it was withdrawn by the Applicant, putting the parties and the Tribunal to further time and expense. This approach, as noted by the Respondent, would be contrary to the guiding principle in s 36 Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which stipulates: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
3. A stay is not warranted in the circumstances.

Dismissal

1. In written submissions lodged on the day before the hearing, the Applicant then sought dismissal of the revocation decision under s 60(2) ADR Act which states: (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.
2. However in the present circumstances, even if it is open for the Tribunal to do so, it is inappropriate to determine the matter by dismissing the revocation decision. This is firstly because s 63(3) of the ADR Act clearly sets out the Tribunal's powers on administrative review to be: (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
3. The application by the Applicant to dismiss the revocation under s 60(2) is an attempt to circumvent the clear powers to be applied by the Tribunal under s 63.
4. Secondly, only orders which the Tribunal "considers appropriate to secure the effectiveness of the determination of the application" can be made under s 60(2). Here, the matter has been finally heard and it is not appropriate to make any orders under s 60(2) to secure the effectiveness of the determination of the application. It is appropriate to make final orders under s 63. Dismissal under s 60(2) is not appropriate.

Is it contrary to the public interest for the Applicant to continue to hold a security licence?

1. Although the Applicant sought a stay or dismissal of the proceedings, the submissions made on his behalf apply equally to the matters for determination in an application for a decision to be set aside under s 63. The Respondent has made submissions on the understanding that the Applicant is seeking orders for the internal review decision to be set aside and I have considered the parties' submissions in that context.

Private interests

1. Under s 26(1)(d) of the SI Act and cl 25(1) of the SI Regulation, a licence may be revoked if the Commissioner (or the Tribunal on review) considers that it would be contrary to the public interest for the person to whom it is granted to continue to hold it.
2. The Applicant contends he needs to maintain his security licence for financial reasons and for his own well-being. He acknowledges that his need to hold his security licence is subordinate to the maintenance of public safety, but submits that "public interest" embraces consideration of the well-being of the Applicant as a member of society and any dependent, citing Director of Public Prosecutions v Smith (1991) 1 VR 63 (DPP v Smith). The Respondent contends that DPP v Smith in fact says the opposite and considers a different statutory context. I agree. DPP v Smith is concerned with the public interest under the Freedom of Information Act 1982 (Cth) . It is not relevant in the present context and does not support the Applicant's contention.
3. In any event, I am not satisfied that the Applicant made out his claim that the revocation had caused him particular personal harm. He provided written submissions in which it was stated that he had been unable to find employment since his security licence was revoked, whilst also stating that he is studying a Bachelor of Commerce and had previous experience working in banks.
4. The Applicant provided no evidence on his own behalf to the Tribunal. In Baker v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 54 the Tribunal stated (at [15]): In our experience, it is most unusual for a licensee not to give oral evidence at a hearing relating to the loss of their licence on discretionary grounds. Revocation decisions frequently involve character assessments or other assessments of a personal nature. Plainly, direct evidence from the licensee is helpful in forming a view as to the merits of the administrator's opinion.
5. The written reference from Mr Wall is silent in relation to the revocation of the Applicant's security licence or the revocation of his licence and so is of little assistance to the Applicant as it does not reveal that he is aware of the Applicant's actual circumstances.
6. Further the payslips from his work in the security industry do not support his claim that he cannot find work outside that industry. The screenshots purporting to show that he has borrowed from his brothers appear at best self-serving, being dated 13, 4 and 3 September 2024 prior to the documents being submitted on 18 September 2024 and described as "Fast Transfer from Mr Ron Shammon Sibling". The invoices for telephone services and car insurance are a common expense and do not show particular hardship to the Applicant. There is also no evidence regarding actual attempts that the Applicant has made to find work outside the security industry.
7. The Applicant has not availed himself of the opportunity to provide evidence to explain why it would be difficult for a Commerce student with experience in banking to find any employment other than in the security industry. Consequently, even if it were relevant to the consideration of the public interest, he has not established any particular personal hardship.
8. The Applicant made submissions regarding the "fit and proper" person test. Those submissions are not relevant to the question of whether it is contrary to the public interest for the Applicant to continue to hold a security licence.

The public interest

1. The Applicant contended that under a Class 1A Security Officer licence, the Applicant was required to " patrol, protect or guard any property while unarmed whether static or mobile and to act as a crowd controller or in a similar capacity." The Applicant acknowledged the seriousness of the charge of affray however contended that the subjective circumstances ought to be taken into account, especially in circumstances where the offence had not been made out and was being defended in court.
2. The Applicant acknowledged that the intention of the SI Act was to maintain public confidence in the integrity, competence and accountability of the security industry; Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 [11] and that security guards have an obligation to ensure violent interactions and drunken disputes were diffused. The Applicant further conceded that he was required to conduct his duties in an objective manner, assessing the suitability of any force used during any rostered work. However the Applicant contended that the subjective features of this matter were pivotal in assessing whether his conduct was directly related to the activity for which he was licenced. The Applicant contended that this was an isolated incident, the Applicant was the security supervisor and in his mind his actions were called for and directly relevant to the activity for which he was licenced, being security work.
3. The Respondent noted that it was imperative that the security industry was licenced by professional and responsible individuals who could achieve high standards of conduct required by the special nature of the industry. The Applicant had been charged with a serious offence. Of particular concern here was that the charge arose from circumstances where the Applicant was carrying out his duties as a licenced security guard. It was of equal concern that the conduct itself was serious and violent. The Respondent noted that the predecessor to the Tribunal had found in Farquharson v Director General, Department of Transport [1999] NSWADT 53 (Farquharson, at [20]-[21]): … While it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty, it does not follow that consequences that lie outside the criminal law may be avoided. Civil consequences typically attach to the laying of criminal … An administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence...
4. The Respondent submitted that the objective seriousness of the charge and the underlying conduct, as seen in the CCTV footage supported the respondent's decision to revoke the applicant's security licence on public interest grounds.
5. The Respondent contended that the Tribunal was not making a finding of guilt or criminal conduct and noted the comments of the High Court in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 at [33], [48] and [49]: 33. …it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. … 48. The Full Court was right to hold that the express terms of cl 8(1)(g) do not confine the condition to the commission of offences by the licensee. However, this recognition does not support the Full Court's construction of the statutory scheme. It is the Authority's function to monitor and regulate broadcasting services throughout Australia. There is no incongruity in empowering the Authority to take administrative enforcement action against a licensee who uses the broadcasting service in the commission of an offence, whether the offence is against Commonwealth, State or Territory law. Nor is it incongruous that the Authority may suspend or cancel a licence based upon its determination that the broadcasting service has been used in the commission of an offence notwithstanding the licensee's (or a third person's) subsequent acquittal of the offence. The court trying the criminal offence is required to determine guilt upon admissible evidence beyond reasonable doubt. 49. In determining that a licensee has breached the cl 8(1)(g) licence condition, as a preliminary to taking enforcement action, the Authority is not adjudging and punishing criminal guilt. It is not constrained by the criminal standard of proof and it may take into account material that would not be admitted in the trial of a person charged with the relevant offence. It may find that the broadcasting service has been used in the commission of an offence notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. Where a person is prosecuted for the relevant offence, the Authority is not bound by the outcome of the criminal proceeding and may come to a contrary view based upon the material and submissions before it.
6. The Tribunal was provided with CCTV footage and the Applicant was identified as the person throwing punches in an altercation. Regardless of the circumstances, it is clear that there was violence involved in a situation where it was the Applicant's role (as emphasised in the character reference provided) as a licenced security guard to employ "de-escalation techniques to ensure the safety and well-being of both customers and staff." The CCTV footage shows that the altercation resulted in significant injuries.
7. The Respondent submits that the SI Act is concerned with a licensing scheme for security related activities and its objects are to ensure the security industry is licensed by professional and responsible individuals, in whom the public can have the utmost confidence.
8. In Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16, the Appeal Panel noted 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. …
9. As was the case in Blissett v Commissioner of Police, NSW Police; Web Protection Australia Pty Limited v Commissioner of Police, NSW Police [2006] NSWADT 114 at [32], the Applicant's interest in retaining his licence cannot outweigh the public interest in having confidence in people involved in the security industry.
10. In the present circumstances, weighing the submissions and evidence provided, I am satisfied that it would be contrary to the public interest for Applicant to continue to hold a security licence.

Should the licence be revoked?

1. I have already found that the Applicant's private interests do not outweigh the public interest in revoking the Applicant's security licence. It follows that the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's security licence.

orders

1. As a result of the reasons set out above, the Tribunal makes the following order: 1. The decision under review 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: 11 November 2024