Sosaiete & Asovale v Commissioner of Police, NSW Police Force [2015] NSWCATOD 91 | Case summary

NCAT Occupational|2015-08-14

Reasons for decision

The Applicants are both security guards, holding Class 1AC Security licences under the Security Industry Act 1997 ('the SI Act').
On a Friday night in February 2015, the Applicants were conducting security duties at a Kings Cross nightspot. There was an altercation with a member of the public at the entrance to the nightspot which involved a number of people, including the Applicants. The altercation moved across the road and continued on the opposite footpath. The altercation, which the Respondent characterised as 'a brawl', continued for approximately 3 minutes, and was witnessed by a large number of bystanders. When police attended the scene the Applicants, and a number of others, were charged with the offence of affray, pursuant to s.93(c) of the Crimes Act 1900. The Applicants deny the charges and the matters are before the Downing Centre Local Court for hearing in November 2015.
Mr Sosiaete claims he was in fact a victim of an assault from which he suffered bleeding injuries and lost a tooth. The Applicants submitted that as security guards they were jointly or otherwise restraining the assailant until such time the police arrived. They claimed not to have acted outside the ambit of what a reasonable security officer would have done.
The incident was recorded on CCTV which had been provided to the Tribunal as part of the s.58 documents. The solicitor for the Applicants invited me, 'to contextualise the charges', to view the CCTV footage. The Respondent did not think that to be necessary but did not object to my viewing the footage. It had only been provided to the Tribunal because the decision-maker had taken it into account in suspending the Applicants' licences. The Respondent claimed that the Applicants could be seen throwing punches, pushing and wrestling, but the Applicants deny that punches were thrown. I found the CCTV footage unhelpful in the absence of explanations as to who could be seen on the footage. I note that only Mr Sosaiete attended the hearing, so I could not identify who, in the melee, was Mr Asovale. In any event I found it difficult to make out what was actually occurring. I have disregarded the CCTV footage.

Suspension of the Applicants' security licences and the application for review

Each Applicant's licence was suspended on 21 April 2015 on the basis that he had been charged with affray. Notices of suspension invited each Applicant to make written submissions to the Respondent giving reasons why his licence should not be revoked.
On 27 April 2015, Mr Asovale, through his legal representative, provided the Respondent with a letter in the nature of submissions in response to the Notice of Suspension. On 11 May 2015, an authorised delegate of the Respondent confirmed the suspension of the licence pending the outcome of the criminal proceedings. Mr Sosaiete did not make any submissions.

Relevant legislation

Section 25 of the SI Act provides: (1) The Commissioner may, if the Commissioner is satisfied there may be grounds for revoking a licence, suspend the licence by serving on the licensee, personally or by post, a notice (a) stating that the licence is suspended and the reasons for suspending it, and (b) requesting that the licensee provide the Commissioner with reasons why the licence should not be revoked
The Respondent relied on s.26(1)(d) of the SI Act, which refers to the power to revoke a security licence under s.26(1)(d) arises in relation to any reason prescribed by the Security Industry Regulation 2007 ('the Regulations'). Clause 29 of the Regulations provides that the Respondent may revoke a licence if he considers that it is not in the public interest for the licensee to continue to hold the licence.

CONSIDERATION

The Respondent submitted that the 'public interest' is best served by the suspension of the Applicants' licences as the Applicants have been charged with the offence of affray which arose from an incident which occurred whilst they were conducting security duties.
The offence of affray is set out in s.93C of the Crimes Act 1900: 93C Affray (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) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
If found guilty of the charge the Applicants are liable to up to 10 years imprisonment.
Further, the Respondent submitted, it is not in the 'public interest' for the Applicants to hold security licences until after the conclusion of the criminal proceedings, at which time, taking into account the outcome of those proceedings, the Respondent can determine whether each is suitable to hold a security licence.
The Applicants submitted that during the incident they were conducting a lawful arrest. Further, at least as far as Mr Sosaiete was concerned, he claimed to be a victim of an assault himself; they did not invite the affray. It was submitted that the public interest is that security guards have a level of expertise and that the Applicants were merely doing their job.
The Respondent noted that the Applicants had not assisted police who were investigating the incident in that they declined to provide a statement or participate in an interview. The Respondent submitted that if the Applicants were conducting themselves as they claimed, they should have assisted the police conducting the investigation. The Applicants' solicitor said they were merely exercising their right to silence.
The Applicants seek to explain their actions on the basis that they were provoked. In Nakad at [60] I looked unfavorably on a security licence holder who retaliated when provoked.
In his submissions, the solicitor for the Applicants raised issues which may be broadly characterized as relating to procedural fairness. The Respondent submitted, and I accept, that procedural fairness was afforded to the Applicants by inviting each to make submissions in accordance with s.25(1)(a) & (b) of the SI Act, although only Mr Asovale availed himself of this opportunity. After considering the submissions on behalf of Mr Asovale an authorised delegate for the Respondent, determined that the licence should remain suspended until after conclusion of the criminal proceedings.
However, my understanding of the Applicants' concerns about procedural fairness were broader than this. It was contended that the public expectations are that security guards pursue and arrest wrongdoer (pending police intervention), and that security guards should not be stood down before any wrongdoing is found by a court. Importantly, it was submitted that it was unfair that the Applicants were being 'punished' when they had not yet had their charges dealt with.
It was pointed out by their solicitor that neither Applicant has a criminal record and that they have both been in the security industry, without blemish, for some time. It is also observed that, notwithstanding the seriousness of the offence, bail was granted although I had no information about any bail conditions or what transpired in the course of the bail application.
It was also observed by the solicitor for the Applicants that cl.29 of the Regulations provides only that the Respondent may revoke a licence, that is, there is a discretion not to revoke the licence notwithstanding that it is not in the public interest for the licensee to continue to hold the licence.

The public interest test generally

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]. The public interest test does not necessarily require a conviction or a s.10 discharge: Martin v Commissioner of Police, New South Wales Police Force [2010] NSWADT 276. The issue was whether the Tribunal is able to exclude the possibility of a risk to the public.

Suspension of security licences and the public interest test

As noted, the above cases refer to the revocation of a security licence on public interest grounds. By its very nature a 'suspension' is temporary and I think this requires a slightly different approach than that when there is the more final outcome of revocation.
Farquharson v Director General, Department of Transport [1999] NSWADT 53 was a suspension case in which the Applicant was a taxi driver who had been charged with soliciting to murder. The Respondent in Farquharson conceded that the single reason for taking action against the Applicant was the objective seriousness of the charge. In that matter the Applicant made similar contentions to those made on the Applicants' behalf in this matter. The Applicants here have submitted that they are entitled to be presumed innocent until determined otherwise; their clean record - never having been charged with any other criminal offence; the grant of bail, which may be indicative of the strength of their defence; that income is derived from their work as security guards; that they need to retain their licences to assist in meeting the costs of their defence; their unblemished record as security guards; and that the withdrawal of their licences is an unfair punishment.
Also, as in this matter, the suspension in Farquharson occurred because of the mere fact of the Applicant having been charged with a serious offence, although there the charge was the inherently more serious one of 'solicit to murder', an offence which carries a penalty of 25 years imprisonment: s.26 Crimes Act 1900.
In Farquharson, President O'Connor stated at [30]: The administrator is entitled to take account of the general circumstances giving rise to the charges without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences.
The Respondent submitted that, in applying Farquharson, I should not look at the circumstances that led to the charge but only to whether the charge is objectively serious. It was submitted that the pending charge of affray is serious; it involves violence that creates fear in those present. It is irrelevant for the purposes of the charge, it was submitted, that neither of the Applicants may have been the perpetrator. The Respondent submitted that the avoidance of such violence is what the objects of the SI Act set out achieve.
The Respondent in the present matters submitted that the gravity of the charge facing the Applicants is increased by the fact that they were conducting security duties at the time of the alleged offence. The Tribunal in Farquharson went on to state that a charge which is objectively grave, that arises in circumstances that have to do with the performance of the licence function, adds a further level of concern.
A Class 1AC security licence authorises a holder to patrol, protect or guard any property while unarmed and to act as a crowd controller: s.11 SI Act. "Crowd controller" means a person whose functions include "removing persons for behavioural or other reasons" from licenced premises: s.4(c) SI Act. These definitions suggest that holders of Class 1AC licences may be required to remove unruly patrons from or near licenced premises and that those patrons may be aggressive or, at least, confrontational. One of the aims of managing such persons is to protect other patrons of licensed premises and members of the public.
The Applicants submitted that the public interest was served in that they had conducted themselves in accordance with the public's expectation that a reasonable security officer would restrain an assailant so as to bring that person to the attention of the authorities. Generally this may be so, but to form a view about whether this is what in fact occurred, would be contrary to the Farquharson approach. In any event I have serious reservations whether the Applicants, in declining to provide police with statements about what occurred, can be said to be restraining assailants until police arrival, as was submitted on their behalf. I acknowledge their 'right to silence', but find the reliance on that right in circumstances where, for all intents and purposes, they claim to be making a 'citizen's arrest', to be quite inconsistent.
In Farquharson the Tribunal considered the likely perceptions of the taxi passengers, noting at [36] that: … One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence.
I was referred to Rowe v Commissioner of Police New South Wales Police Force [2010] NSWADT 307 where, on a stay application, President O'Connor formulated the public interest test in respect of a security guard at [23]: … whether a member of the public would feel comfortable having to pass by a security guard who is presently facing a charge of assault occasioning actual bodily harm arising in guarding circumstances. I think the answer must be that they would be concerned and regard that as not in the public interest.
The Respondent submitted, and I agree, that the community expects licensed security guards to exhibit high standards of integrity and conduct, and that the Applicants had failed to meet those expectations. The charge of affray, in the general circumstances of this matter, brings into question the ability of the Applicants to meet the standards expected of security licence holders.
It was submitted that the Applicants are family men and need their security licences to work at their vocation in order to support their families. I agree that suspension may cause some imposition on the Applicants and their families but it is well-established that the 'public interest' overrides any private interest an Applicant may have to hold a licence. The need for each of the Applicants to hold a security licence is subordinate to the need to ensure public safety: Agboma v Commissioner of Police New South Wales Police [2005] NSWADT at [12].
As I discussed in Nakad at [56] a security licence is a privilege not a right: … It is imperative that the security industry is licensed by professional and responsible individuals that can achieve high standards of conduct required by the special nature of the industry: IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 at [27]

Conclusion

The suspension of the Applicants' licences is justified on the basis that it is not in the public interest for the Applicants to continue to hold a licence pending the outcome of the charge of affray with which each is presently charged.

DECISION

The decisions to suspend the licence of each of the Applicants 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: 04 September 2015

Sosaiete & Asovale v Commissioner of Police, NSW Police Force

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