Special Protection Services (NSW) Pty Limited v Commissioner of Police, NSW Police Force; Constantin v Commissioner of Police, NSW Police Force

NCAT Occupational|2015-02-09

Judgment

Special Protection Services (NSW) Pty Ltd ("the Company") has applied for review of the decision of the respondent, the Commissioner of Police ("the Commissioner"), to refuse its application for a Class MB Corporation Master Security Licence under the Security Industry Act 1997 (NSW). The nominated person for the licence in the Company's licence application is Sonya Constantin ("Mrs Constantin"), a director of the Company.
Mrs Constantin's husband, Nicholas Constantin ("Mr Constantin"), has also applied for review of the Commissioner's decision to refuse his application for a Class 1AC security licence under the Security Industry Act.
One of the grounds on which the Company's application was refused was that the Commissioner was not satisfied that Mrs Constantin, as a close associate of the Company, was a fit and proper person. Similarly, one of the grounds on which Mr Constantin's application was refused was that the Commissioner was not satisfied that Mr Constantin was a fit and proper person.

Queensland firearms licence applications

In late May 2011, Mr and Mrs Constantin travelled to Southport in Queensland, each for the purpose of applying for a Queensland firearms licence and a Queensland security firearms licence.
On 25 May 2011, Mr and Mrs Constantin attended the Southport Police Station in order to apply for Queensland firearms licences under the Weapons Act 1990 (Qld). The evidence of Mrs Constantin is that Mr Barry had given her the incorrect application forms, which she had filled out in advance, and she was told by a lady sitting at the front desk of the Southport Police Station to fill out different forms. There is no dispute that Mr and Mrs Constantin completed the correct forms in the police station.
The firearms licence application form required an applicant to provide the applicant's current address. Before the space provided to write that address, the form stated: "You must be a permanent resident of Queensland and provide proof of QLD residency, e.g. rates notice, gas/electricity account not more than 12 months old."
In their applications, both Mr and Mrs Constantin provided as their residential address an address in far north Queensland. In answer to the question of the form as to how long the applicant had lived at that address, both wrote "0" years and "0" months. Both also provided a New South Wales address (where they have lived for the last 23 years) as their previous address. There is no dispute that they have never lived in Queensland or that they have lived continuously at their New South Wales address. Mr Constantin provided the New South Wales address as being his postal address, whereas Mrs Constantin left the postal address section of the form blank.
Mr Constantin also completed questions concerning his criminal history. Next to the question, "Have you in Queensland or elsewhere ever been charged with an offence?" he checked the "NO" box. He also checked the "NO" box next to the questions "Have you ever been charged and/or convicted of… An offence involving the use or threatened use of violence?" and ""Have you ever been charged and/or convicted of… An offence involving the use, carriage, discharge or possession of a weapon?"
Mr Constantin has a number of criminal convictions. In 1991, he was convicted of assault and sentenced to 6 months imprisonment. In the same year, he was convicted of malicious infliction of grievous bodily harm with intent with a minimum term of 3 years and 9 months imprisonment. In 1995, he was convicted of two counts of robbery being armed and sentenced to a minimum term of 1 year and 5 months imprisonment for each.
At the end of the application form, Mr and Mrs Constantin each certified that all information given in the application was "true and correct in every detail."
Ms Holley, a member of the Queensland Police Service, received and processed Mrs Constantin's application and signed the application form. The page of Mr Constantin's application form which was required to be signed by a member of the Queensland Police Service was not in evidence. However, the evidence indicates that both applications were submitted at the same time.

Queensland security provider licence applications

On 27 May 2011, Mr and Mrs Constantin applied to the Queensland government under the Security Providers Act 1993 (Qld) for an unrestricted security provider licence as a crowd controller, security officer (cash in transit) and security officer (unarmed). Both gave their residential address as being a Queensland address. In response to the question, "Do you have any convictions greater than ten years old where the sentence imposed was 30 months imprisonment or greater?," Mr Constantin checked the "NO" box. Both signed the form, and by doing so consented to an Australian and New Zealand criminal record check being conducted.
Following their applications, Mr and Mrs Constantin were both issued with a Queensland security provider licence under the Security Providers Act, which each has subsequently had renewed annually.

Mr Constantin's 2011 pistol licence application

On 21 July 2011, Mr Constantin applied to the Commissioner for a Category H pistol licence. Mr Constantin's application for a pistol licence was refused on 29 November 2011.
Mr Constantin applied to the Administrative Decisions Tribunal ("ADT") for a review of that decision. On 23 August 2012, the ADT affirmed the Commissioner's decision to refuse his application for a pistol licence (Constantin v Commissioner of Police NSW Police Force [2012] NSWADT 172). Mr Constantin then appealed to the ADT Appeal Panel, which dismissed the appeal on 18 April 2013 (Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16).

Mrs Constantin - 2012 Licence Application

On 6 August 2012, Mrs Constantin applied to the Commissioner for a Class 1 Licence as an unarmed guard and crowd controller, to be held under the Security Industry Act. The application was made under the Mutual Recognition Act 1992 (Cth), an Act having force in New South Wales by operation of the Mutual Recognition (New South Wales) Act 1992 (NSW). She annexed to her application a copy of the security provider licence issued to her by the Queensland Government under the Security Providers Act to perform the functions of crowd controller, security officer (cash in transit) and security officer (unarmed).
This application was granted. Copies of Mrs Constantin's 2014 and 2015 security industry licences, both of which have expiry dates of 30 September in the respective years, are in evidence.

Company's master security licence application

On 14 February 2014, the Company applied to the Commissioner for a Class MB Corporation Master Security Licence under the Security Industry Act.
On 3 April 2014, the Company's application was refused pursuant to s 15(1)(a) and 15(3) of the Security Industry Act on the grounds that a close associate of the Company, Mrs Constantin, was not a fit and proper person to hold a security licence and that to grant the licence would be contrary to the public interest. The reasons for refusal stated that the Commissioner's delegate was satisfied that Mrs Constantin deliberately provided misleading information to the Queensland government in her application for a firearms licence of May 2011.
The Company sought internal review of that decision and, on 3 June 2014, a different delegate of the Commissioner refused to grant the licence on the same grounds. The internal reviewer found that Ms Constantin did not reside at the address supplied as her residential address in the application for a firearms licence in May 2011. As a consequence of finding that Ms Constantin had made a false statement in her application, the internal reviewer determined that she was not of fit and proper character to be a close associate of a Corporation Master Security Licence.
On 16 July 2014, the Company applied to this Tribunal, pursuant to s 29(1) of the Security Industry Act, for a review, under the Administrative Decisions Review Act 1997 (NSW), of the Commissioner's decision.

Mr Constantin's 2014 application for a security licence

Mr Constantin's Class 1AC Security Licence under the Security Industry Act was revoked on 12 August 2012.
On 24 February 2014, Mr Constantin made a new application for a Class 1AC security licence under the Security Industry Act.
On 8 April 2014, Mr Constantin's application was refused pursuant to s 15(1)(a) and (3) and s 16(2) of the Security Industry Act. The grounds for the refusal were that he was not a fit and proper person to hold the class of licence sought, that it would be contrary to the public interest to grant the licence and that the Commissioner's delegate was satisfied that Mr Constantin had a conviction that was not capable of becoming spent.
Mr Constantin applied for internal review of this decision and, on 3 June 2014, a different delegate of the Commissioner decided that the original decision to refuse Mr Constantin's application for a Class 1AC security licence was to stand.
On 16 July 2014, Mr Constantin applied to this Tribunal, pursuant to s 29(1) of the Security Industry Act, for a review, under the Administrative Decisions Review Act, of the Commissioner's decision.

Hearing

The applications by Mr Constantin and the Company were heard over two days. By consent, the two applications were heard together.
I granted Mr Brownlee leave to appear for the applicant, pursuant to s 45(1)(b)(i) and (3)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Mr Brownlee is not a lawyer but has appeared previously in proceedings in this Tribunal, and the Commissioner had no objection to leave being granted. Mr Zoppo, a solicitor, appeared for the Commissioner.

RELEVANT LEGISLATION

The class 1AC licence for which Mr Constantin applied authorises the holder to undertake activities authorised by class 1A licence and a class 1C licence. Section 11(1) of the Security Industry Act relevantly provides: "11 Class 1 licences (1) Class 1 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows: (a) class 1A - authorises the licensee to patrol, protect or guard any property while unarmed (and whether while static or mobile), … (c) class 1C - authorises the licensee to act as a crowd controller or to act in a similar capacity,…"
As indicated above, the Company applied to the Commissioner for a Class MB Corporation Master Security Licence under the Security Industry Act. Section 10 of that Act relevantly provides: "10 Master licences (1) Master licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows: (b) class MB - authorises the holder to provide no more than 3 persons on any one day to carry on security activities, each of whom must be the holder of a class 1 or class 2 licence…"
Section 15 of the Security Industry Act relevantly 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, or… … (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. ... (5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant." …
Section 5 of the Security Industry Act defines what a "close associate" is. Section 5(1) provides: "5 Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a licence if the person: (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business, or (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or holder."
The Tribunal's function in reviewing a decision to refuse to grant a licence is provided for in s 63(1) of the Administrative Decisions Review Act. That subsection provides: "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law."

FITNESS AND PROPRIETY

The Commissioner refused to grant the Company's application for a licence, under s 15(1)(a) and (5) of the Security Industry Act, because he was not satisfied that Mrs Constantin is a fit and proper person to hold a security licence. There is no dispute that Mrs Constantin is a close associate of the Company.
The Commissioner also refused to grant Mr Constantin's application for a security licence, pursuant to s 15(1)(a) of the Security Industry Act, because he was not satisfied that Mr Constantin is a fit and proper person to hold a security licence.
The authorities concerning the meaning of the expression "fit and proper person" are extensive and well known.
In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-157, the High Court (Dixon CJ, McTiernan and Webb JJ) observed of the expression "fit and proper": "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the Australian Broadcasting Tribunal revoked the licence of a corporate licensee pursuant to a provision which allowed the Tribunal to revoke a licence if "satisfied that the licensee ... is no longer a fit and proper person to hold the licence". Toohey and Gaudron JJ made the following comments about the meaning of the expression "fit and proper person" (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."
Their Honours also observed (at 388): "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."
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76, in a passage frequently cited by this Tribunal and the ADT (see, for example, Parvez v Roads and Maritime Services [2014] NSWCATOD 13 at [26], Uddin v Roads and Maritime Services [2014] NSWCATOD 104 at [37]), Walters J said of the expression "fit and proper person": "In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... 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 ... as a person to be entrusted with the sort of work which the licence entails."
O'Connor DCJ has observed that "[w]hether 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 objectives leading the legislature to regulate the industry" (Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41]).
The "nature of the industry in issue" and the "public policy objectives leading the legislature to regulate the industry" are relevant in this case.
When determining whether someone is a "fit and proper person," a "higher standard is applicable to licensees in the security industry [than licensees in the taxi industry] because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe" (IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 at [27]).
In Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11], the ADT commented that the Security Industry 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."

EVIDENCE RELEVANT TO FITNESS AND PROPRIETY

The Commissioner submits that the Tribunal should take into account the following matters when forming a state of satisfaction as to whether Mr Constantin is a fit and proper person to hold a security licence: 1. Mr Constantin's conduct in travelling to Queensland for the sole reason of lodging the application for a firearms licence knowing that he was not entitled to lodge an application and providing false details and false certifications; 2. the fact that Mr Constantin continues to shift responsibility to other people (such as Mr Barry or Ms Holley); 3. Mr Constantin's conduct in continuing to undertake security activities since losing his security licence in 2011.
Mr Zoppo, for the Commissioner, said in his oral submissions that he adopted the reasoning of the original decision maker and the internal reviewer. In the internal review decision, the delegate took into account that Mr Constantin was sentenced in June 1995 to a minimum term of 3 years and 9 months imprisonment for "Maliciously Inflict Grievous Bodily Harm with Intent" and that, on 12 February 1996, Mr Constantin was convicted on two counts of "Robbery being Armed" and received a minimum term of 1 year and 5 months imprisonment on each count.
The Commissioner submits that the Tribunal should take into account the following matters when forming a state of satisfaction as to whether Mrs Constantin is a fit and proper person to hold a security licence: 1. Mrs Constantin's conduct in travelling to Queensland for the sole reason of lodging the application for a firearms licence knowing that she was not entitled to lodge an application and providing false details and false certifications; and 2. the fact that Mrs Constantin continues to shift responsibility to other people (such as Mr Barry or Ms Holley).
Mr and Mrs Constantin deny that they knew they were not entitled to make an application for a Queensland firearms licence application without living there, and deny that they deliberately provided false information or false certifications in those applications. Mr Constantin denies, in his submissions, that he has been employed as a security advisor since losing his licence or that he has provided security advice for reward since that time. Mr Constantin does not deny his criminal convictions, but points to the long period which has passed since the offences occurred.

Relevance and effect of previous tribunal decisions

Mr Zoppo, for the Commissioner, submitted that the ADT has considered "effectively the same evidence involving the same parties" when reviewing the Commissioner's decision to refuse Mr Constantin's 2011 application for a firearms licence. Mr Zoppo also submitted that the decisions of the ADT and the ADT Appeal Panel in Constantin v Commissioner of Police NSW Police Force [2012] NSWADT 172 and Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 should be "considered and carry weight in the Tribunal's consideration of the applications before it." The Commissioner did not contend that any findings in the decision of the ADT or the ADT Appeal Panel created an issue estoppel, insofar as that tribunal determined certain facts which Mr Constantin challenges in his present application. Some of the factual issues, however, are the same and, for Mr Constantin's application, the parties are the same.
The Federal Court has held that proceedings of the Administrative Appeals Tribunal and, in particular, its findings of fact do not constitute an issue estoppel (see, for example, Lilienthal v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 437; [2001] FCA 2 at [20]; Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87; 24 ALD 424 at FCR 97). This is because that tribunal is an administrative body and its function is "merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration, what the Tribunal considers that position to be" (Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87; 24 ALD 424 at FCR 97).
The ADT considered whether its decisions could create an issue estoppel in Mouwad v Commissioner of Police, New South Wales Police Service [2002] NSWADT 226 and found that they could. That case had some similarities to the present. Mr Mouwad had applied to the ADT unsuccessfully for a review of a decision to revoke his firearms licence. The ADT found that Mr Mouwad was not a fit and proper person to hold a firearms licence. Mr Mouwad then applied to the ADT for a review of a decision to revoke his security licences. The Commissioner contended that the ADT was estopped from hearing this matter as a consequence of decision in the firearms matter.
The ADT relied on a decision of the NSW Court of Appeal in Lambidis v Commissioner of Police (1995) 37 NSWLR 320 as authority for the principle that the decision of a State administrative tribunal may give rise to an issue estoppel if the same issue is raised in later litigation. Lambidis concerned the decision of a tribunal which was not engaging in merits review but making an original decision. The Commissioner's legal representative in Mouwad does not appear to have drawn the ADT's attention to the distinction which is sometimes made in the case law between the creation of an estoppel in merits review proceedings and the creation of an estoppel in other administrative proceedings. The ADT found that it was estopped by the earlier firearms decision from considering the issue of Mr Mouwad's fitness and propriety again. The ADT Appeal Panel made comments casting doubt on the correctness of Mouwad in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [22]-[23].
In Morris v Riverwild Management Pty Ltd (2011) 38 VR 103, Weinberg JA of the Victorian Court of Appeal reviewed the authorities concerning the application of issue estoppel in an administrative tribunal for the purposes of determining whether a decision of the Victorian Civil and Administrative Tribunal ("VCAT") could create such an estoppel. After referring to some comments made by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363 at 381 [45]-[48] and Maurice Blackburn Cashman v Brown (2011) 242 CLR 647 at 662 [40]-[41], his Honour concluded (at [84]) that "there seems no reason why a decision by VCAT, at least in the exercise of its original jurisdiction, should not be capable of giving rise to [a cause of action] estoppel" and "there is equally no reason why an issue estoppel cannot arise out of a finding by VCAT in the exercise of that jurisdiction."
The High Court decisions referred to by Weinberg JA did not directly consider the question of whether a decision of an administrative body could give rise to an issue estoppel, although they reflect an assumption that this is a possibility. Weinberg JA recognised that it may be that an issue estoppel can arise in VCAT's original jurisdiction but not its review jurisdiction, confining his conclusions to that tribunal's original jurisdiction. In Spuds Surf Chatswood Pty Ltd v PT Ltd (No 4) [2015] NSWCATAP 11 at [54] and [64], the Appeal Panel indicated some support for Weinberg JA's position, but only as it related to the Tribunal's civil jurisdiction, noting that the proceedings before it did "not involve the review of a reviewable decision by an administrator."
In my view, the authorities favour the view that administrative review proceedings of this Tribunal and of the ADT do not create an issue estoppel. I have assumed that this is the case for the purposes of these proceedings.
In deciding what the "correct and preferable decision" is (Administrative Decisions Review Act, s 63(1)), the Tribunal is entitled to have regard to factual findings made by it or other administrative bodies such as the ADT (see Re Thorpe and Commissioner of Taxation (2011) 123 ALD 355 at 366 [72]; Barbaro v Minister for Immigration and Ethnic Affairs (1982) 65 FLR 127; 44 ALR 690 at ALR 693-694). The Tribunal has a discretion as to how much weight it gives to factual findings made in those proceedings, and may "take into account the undesirability of requiring the parties to relitigate a matter that has already been the subject of extensive litigation in other forums" (Re Thorpe and Commissioner of Taxation (2011) 123 ALD 355 at 366 [72]).

Alleged conduct in misleading Queensland authorities

One of the principal issues in the proceedings was whether Mr Constantin and/or Mrs Constantin deliberately misled the Queensland authorities when applying for a firearms licence.
Mr and Mrs Constantin both filed signed statements which employed similar language. It was acknowledged during the course of the proceedings that the statements had been drafted by Mr Brownlee. In those statements, Mr and Mrs Constantin both acknowledged that their applications for a Queensland pistol licence contained two statements which "were in part, in error." Both said in their statements that they had provided a business partner's Queensland residential address when applying for the Queensland licence, on the advice of Mr Barry. They both gave evidence in their statements that Mr Barry had advised the entire course class during instruction that it was necessary to provide a Queensland address and that any student who could not supply a Queensland address was authorised to use the Queensland address of Mr Barry's sister. They also stated that their lack of intention to mislead the Queensland authorities was evidenced by indicating that their time of residence at the Queensland address was no years and no months.
In his statement, Mr Constantin gave evidence that when he ticked a box on his application form to the Queensland Police, denying that he had been convicted of a crime, he was following Mr Barry's advice. He states that Mr Barry told him that as had never been convicted of a crime in Queensland, he was to answer "no." He said that he was aware that the Queensland authorities would be alerted to his past convictions as he consented to them undertaking an Australia wide criminal history check on the form.
Mrs Constantin gave oral evidence about completing the application form for the Queensland firearms licence at a police station in Southport. She said that a female police officer assisted her with completing the form. Mrs Constantin told the Tribunal that she told the police officer "I live in New South Wales, but we have a Queensland address we can use." It is her evidence that the police officer told her to put the Queensland address on the form but to write that she had lived there for zero years and zero months. Mrs Constantin said her understanding was that she had to have a Queensland address for correspondence and that that is what Mr Barry told her. In response to a question from Mr Zoppo, Mrs Constantin explained that "the lawyer" must have left out of her statement the information that the Police had told her that she did not have to reside in Queensland to apply for a firearms licence in that State, but she believed that they made reference to it in an earlier version of the statement. Mr Brownlee indicated that he had not drafted that earlier version.
Mrs Constantin said that the person who resides at the far north Queensland address she provided is a good friend of her husband. She said she was planning to live there if they got "the contract" (being a contract to work as security guards in Queensland). When asked where she was planning to work, she said she was not sure and to ask her husband.
When asked by Mr Zoppo to identify the error in her application for a pistol licence, which she had referred to in her statement, Mrs Constantin said she did not believe she made an error and that any error was attributable to Mr Barry. She said she did what she believed is right.
Mr Zoppo put to Mrs Constantin that when she certified that her Queensland application form was true and correct, she knew that the information was not true. Mrs Constantin denied this, saying that was why she asked a person in authority what to put on the form.
Mr Constantin gave oral evidence that he put his "mate's address in Cairns" on the form. He also said that the police officer had told them "to put zero zero because we don't live up there". Mr Constantin told the Tribunal that he now accepted that it was incorrect that he had not been convicted of an offence but that he had followed Mr Barry's advice when checking the box to the contrary on the application form. When asked how he interpreted the sentence on the instructions provided by Mr Barry which referred to the need for proof of Queensland residency, Mr Constantin said he had interpreted this as requiring an address for correspondence.
Mr Barry provided a statement in proceedings concerning Mr Constantin in the Administrative Decisions Tribunal ("ADT") in June 2012. The Commissioner relied upon that statement in these proceedings. In the ADT statement, Mr Barry denied telling Mr Constantin that he would supply him with a Queensland address for the purposes of his licence application, or telling him to mislead the Queensland regulators. Mr Barry stated that he told Mr Constantin that he had to be a resident of Queensland before making an application for a Queensland firearms licence and that he appeared to understand this.
Mr Barry gave oral evidence in the proceedings for the Commissioner and was cross examined by Mr Brownlee. He said he did not provide the students in his courses with application forms for licences in Queensland and that he had never given a Queensland address for students to use as an address for a Queensland licence application. Mr Barry also said he did not recall having seen the instruction sheets Mr and Mrs Constantin claimed that Mr Barry gave them. Mr Barry said he did not know that Mr Constantin had a criminal history and had not discussed it with him.
Mr and Mrs Constantin submitted that the evidence of Mr Barry is conflicted and should not be accepted. They did not develop this submission any further.
Ms Sharon Holley was the employee of the Queensland Police Service who received and signed, as receiving member, Mrs Constantin's firearms application. As Mr Constantin gave evidence that he and his wife spoke to the same person, it is likely she also processed his firearms application. Ms Holley gave evidence that she did not remember receiving those applications. However, her evidence was that she has not told a licence applicant that he or she could apply for a Queensland licence whilst not a resident of Queensland, as this is not the case. Ms Holley also said that if she had been told by Mr and Mrs Constantin that they resided in New South Wales, she would have advised them to make their applications in New South Wales.
In Constantin v Commissioner of Police, NSW Police Force [2012] NSWADT 172, Mr Constantin's evidence, as Huntsman JM described it, was that the lady behind the counter at the Southport Police station "told him to put 0/0 on the application form for the months/years he had resided in Queensland." The judicial member also reported that Mr Constantin had "explained that there was no other place on the form where he could put his address for the purpose of receiving mail" which is why he put his New South Wales address as his previous address.
Huntsman JM made findings that: 1. when answering the questions on the Queensland firearms application form, Mr Constantin knew that his answers were not correct; 2. Mr Constantin did seek direction about the residential question from the Queensland police and for this reason answered, in relation to the length of time that he had lived in Queensland, "0 years and 0 months", thereby indicating that he had not resided in Queensland for a period of time prior to the application.

Consideration

There were a number of inconsistencies in Mrs Constantin's evidence and conflicts between her evidence and the evidence of others: 1. She acknowledged in the written statement that her application for a Queensland pistol licence contained two statements which "were in part, in error" then denied, in oral evidence, that she had made any errors in that application; 2. She claimed in her written evidence that she had provided a business partner's Queensland residential address when applying for the Queensland licence, but in her oral evidence said that the address was that of a "good friend" of Mr Constantin; 3. She admitted that the claim in her written statement that she had not sought to "mutually recognise" her Queensland security provider licence in New South Wales was wrong. Her explanation that she did not prepare the statement and she might have "skimmed over" that part indicates that she did not approach the giving of evidence in the Tribunal with the requisite degree of care. 4. Her evidence that Mr Barry had advised her to use his sister's address, that he had provided her with the Queensland licence application forms, that he had given her particular instruction sheets and that he had told her that she had to have a Queensland address for correspondence was inconsistent with Mr Barry's evidence; 5. Her oral evidence that the Police had told her she did not have to reside in Queensland to apply for a firearms licence in that State was not included in her written statement, and was not credible given Ms Holley's evidence that residence was a requirement, and in light of the statement on the application form; 6. Her evidence that she did not know the information she provided on the form was untrue was not credible, given that she supplied as a residential address a place in Northern Queensland where she did not live and had no immediate intention to live; 7. Her evidence that a woman at the Southport Police station told her to put the Queensland address on the form but to write that she had lived there for zero years and zero months, in circumstances where Mrs Constantin had told the woman she lived in New South Wales, is inconsistent with Ms Holley's evidence and is not plausible.
Mrs Constantin was frequently evasive in her answers, telling Mr Zoppo to ask her husband about certain matters, claiming not to remember the name of the business for which she planned to work in Queensland and claiming to have "no idea" about who would operate and work in the Company if it obtained a licence. Her testimony was neither credible nor reliable.
There were also a number of inconsistencies in Mr Constantin's evidence and conflicts between his evidence and the evidence of others: 1. he claimed in his written evidence that he had provided a business partner's Queensland residential address when applying for the Queensland licence, but in his oral evidence said that it was his "mate's address", later clarifying that the mate was not a business partner and saying of the statement, "it's my mistake, I did sign it"; 2. he said in his oral evidence that it was his wife who spoke to the woman at the Southport police station, but Huntsman JM's report of the evidence in the ADT makes no mention of the woman speaking to Mrs Constantin, and rather indicates that the evidence was that she told Mr Constantin directly what to put on the form; 3. Mr Constantin's explanation in the ADT proceedings that he put his current New South Wales address as a former address because there was no other place on the form to put a mailing address is inconsistent with the form itself, which provides a space to put a mailing address, which Mr Constantin completed; 4. Mr Constantin's evidence as to what Mr Barry told him about providing any Queensland address, such as Mr Barry's sister's address, and that Mr Barry told him to tick the box on the form indicating that he had not been convicted of a criminal offence when in fact he had, conflicted with Mr Barry's evidence; 5. Mr Constantin's evidence as to what was said to him and his wife at Southport Police Station about filling out the forms contradicts the evidence of Ms Holley.
Other statements made by Mr Constantin were implausible. For example, it was not credible that Mr Constantin interpreted the requirement to provide proof of Queensland residency as requiring only an address for correspondence, particularly when the form distinguished between a residential address and a postal address. Nor was it credible that Mr Constantin did not realize, when certifying that his answers were true and correct, that his statement that he had not been convicted of an offence was incorrect. I did not find Mr Constantin to be a reliable witness.
The Tribunal accepts the submission that Mr Barry would have had a motive, if he had given the advice Mr and Mrs Constantin claims he gave, for denying that he had given such advice. This is, the Tribunal considers, what Mr and Mrs Constantin probably intended to convey through the submission that Mr Barry's evidence was "conflicted." Such advice would reflect badly upon a person providing a registered training course. The Tribunal also notes that Huntsman JM had some concerns about the reliability of Mr Barry's evidence. However, the applicants' case that Mr Barry told them to provide a false residential address and told Mr Constantin to lie about his criminal history on their application form, whilst presenting this as something lawful and authorised, stretches credibility. I do not accept that Mr Barry gave the advice that Mr and Mrs Constantin attribute to him. His account was unshaken in cross examination.
I find that Mrs Constantin deliberately attempted to mislead the Queensland police when she provided a Queensland address as her residential address. I find that she was not advised by Ms Holley or anyone else in Southport Police Station to put two zeros on her application form to indicate that she was not living at the Queensland address; rather, she decided to do this herself, probably in consultation with her husband. There is no reason to doubt the testimony of Ms Holley that she would never tell an applicant to apply for a Queensland licence if he or she lived in another State. The zeros did not indicate, as Mrs Constantin submitted, that she did not live at the Queensland address; rather, they suggested that she had just commenced living at that address. The provision of her New South Wales address in the place for a previous address further indicated that she no longer lived in New South Wales. I am satisfied that Mrs Constantin was aware of this and that this is why she filled out the form in the way she did.
I find that Mr Constantin deliberately attempted to mislead the Queensland police by providing a Queensland address as his residential address on the firearms licence application form, for the same reasons I have given in relation to Mrs Constantin. He also deliberately attempted to mislead the Queensland police by stating that he had no criminal convictions when he did. The fact that he authorised the police to conduct a criminal record check does not detract from the circumstance that he provided false information on the application form. Further, he provided false information about his criminal convictions on his Queensland security licence application form a few days later. I do not accept his evidence that he was told by a woman at the Southport Police Station to put two zeros next to his current address on the form, in circumstances where it had been disclosed to that woman that the Constantins did not live in Queensland. I also find that it is more probable than not that Mr Constantin invented the advice he attributes to Mr Barry.

Mr Constantin's recent security-related activities

Mr Constantin relied, in his submissions, on the proposition that for many years he had worked in the Kings Cross local area providing security service to licensed premises. He submitted that he had, over a significant period, developed a solid reputation with Police and Industry in the conduct of his security work and that his knowledge and skills continue to be widely applauded and sought out.
Mr Zoppo accepted that the police had formed the view that, before losing his security licence, Mr Constantin had conducted himself and his security service in a professional manner and that he had in fact done so. Mr Brownlee referred to Huntsman JM's finding that Mr Constantin conducted himself in the industry in the King Cross region with professionalism and to his comment that Mr Constantin should receive some acknowledgment for his long period of non-offending and his recent responsible performance of his security work. Those findings of Huntsman JM and the evidence on which they were based were not disputed.
The Commissioner submits, however, that Mr Constantin has contravened s 7 of the Security Industry Act since his security licence was revoked in 2011 by providing security advice for reward. My Constantin objected to answering questions about providing security advice and I provided Mr Constantin with a certificate under s 128 of the Evidence Act 1995 (see Civil and Administrative Tribunal Act, s 38(3)(b)). Mr Constantin then answered Mr Zoppo's questions.
Section 7(2) of the Security Industry Act provides that "[a] person must not carry on a security activity (other than providing persons to carry on security activities) unless the person is the holder of a class 1 licence or class 2 licence that authorises the person to carry on the security activity." It is not in dispute that Mr Constantin has not been the holder of a class 1 licence or class 2 licence since his licence was revoked in 2011.
Section 4(1) of the Security Industry Act makes provision for what is meant by carrying on a security activity. It provides, relevantly, that "a person carries on a security activity if the person carries on any one or more of the following activities in the course of conducting a business or in the course of the person's employment:… … (h) providing advice in relation to security equipment (other than basic household or automotive security items at approved classes of retail outlets), including providing product advice in relation to security equipment, (h1) providing advice in relation to the identification and analysis of security risks and providing solutions or management strategies to minimise security risks, (i) providing advice in relation to any other mechanical, electronic, acoustic or other equipment (other than basic household or automotive security items at approved classes of retail outlets) that the person providing the advice purports to be equipment that is designed or adapted to provide or enhance security or for the protection of any property, …"
Mr and Mrs Constantin both gave evidence that Mr Constantin is the acting general manager at X Studio. Mrs Constantin said that part of Mr Constantin's job is to provide advice as to what security camera systems the owner should put in. She told the Tribunal that he was being paid for the security advice he provides and that he was not doing physical security work.
Mr Constantin's evidence was that he provides security advice to the venue management (that is, his employer) and to other companies. He said he provides advice to clients to whom he provided advice when he was a licensed security officer and that the advice he provides includes advice about security equipment such as security cameras. He said he received payment for the advice but that he sometimes provided advice without asking for payment. Mr Constantin expressed the view that he is not carrying on a security activity but merely advising.
In written submissions filed after the hearing, Mr Brownlee submitted, on Mr Constantin's behalf, that he was not providing security advice to third parties. His submission is that Mr Constantin is often approached by friends seeking his counsel and that he does not issue first hand security advice, instead directing parties to licensed operators. This submission was not supported by the evidence.
The evidence establishes that Mr Constantin has been providing advice in relation to security equipment since his security licence was revoked in 2011. Some of this advice was given in the course of conducting a business and some was given in the course of Mr Constantin's employment. I find that, in providing such advice, he was carrying on a security activity within s 4(1)(h) of the Security Industry Act. As he did not have a security licence at the time, I am satisfied to the civil standard that Mr Constantin has been contravening s 7(2) of the Security Industry Act.

Is Mr Constantin and/or Mrs Constantin a fit and proper person?

The question I have to consider is whether I am "not satisfied" that Mr Constantin and/or Mrs Constantin is a "fit and proper person to hold the class of licence sought by the applicant" (Security Industry Act, s 15(1)(a) and (5)). Mrs Constantin is a close associate of the Company, and the Company is the applicant for a master licence. Mr Constantin is an applicant for a Class 1AC licence.
The legislative 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 Police [2007] NSWADT 114 at [11]), as manifested in the Security Industry Act, indicates that fitness and propriety to hold a security licence are to be assessed by applying a high standard.
Mrs Constantin has, in my view, fallen well short of that standard. Her deliberate deception of the Queensland authorities and her continued stance that she has done nothing wrong indicate that she is not "possessed of sufficient moral integrity and rectitude of character as to permit [her] to be safely accredited to the public" (Sobey v Commercial and Private Agents Board (1979) 22 SASR 70). Further, I have found that she deliberately gave false evidence to the Tribunal. She also sought, as the Commissioner submitted, to attribute responsibility for her actions to others, particularly to Mr Barry and to Ms Holley. For these reasons, I find that she is not a fit and proper person to undertake the activities authorised by any class of security licence.
Mr Constantin has also fallen short of the standard required for fitness and propriety to hold a licence under the Security Industry Act. The evidence that he conducted himself and his security service in a professional manner before his security licence was revoked is some indication of fitness. However, this is outweighed by his deceptive behaviour. He deliberately included false answers in two Queensland licence application forms and he has also given false evidence to this Tribunal. He has been providing security advice in contravention of s 7 of the Security Industry Act for some years without a security licence, although apparently unaware that providing security advice is a security activity. This in itself indicates a lack of relevant knowledge which also goes to his fitness to hold a security licence. The crimes of violence and dishonesty of which he was convicted, although the convictions were twenty years ago or more, are nevertheless serious. He also sought to attribute responsibility for his actions to others. In all of the circumstances, I am far from satisfied that Mr Constantin is a fit and proper person to hold a security licence of any class.

GROUNDS ON WHICH LICENCES REFUSED

It is mandatory for the Commissioner to refuse to grant a licence application if the Commissioner is not satisfied that the applicant or a close associate of a corporate applicant is a fit and proper person to hold the class of licence sought (Security Industry Act, s 15(1)(a), (5)). The other grounds for refusal relied upon by the Commissioner are discretionary (see Security Industry Act, s 15(3) and 16(2)). As I am not satisfied that Mr Constantin or Mrs Constantin is a fit and proper person to hold the class of licence sought by Mr Constantin and the Company respectively, it is not necessary to consider the other grounds relied upon by the Commissioner.
The Commissioner's decisions are 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: 14 October 2015

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