The applicant in his witness statement stated that he was aged 46 years. He was on a disability pension from 2001 to 14 March 2014 - about two weeks before the hearing. The applicant said that he wished to re-enter the workforce as a breeder and seller of pedigree working dogs capable of a number of specialised functions including guard and protection. He had been performing this role as a hobby since about 1998 and gained much expertise and an excellent reputation as a breeder and trainer of working dogs. He wished to expand his hobby into a viable business with a view to getting off the disability pension. He had met all the training requirements needed to hold a private security licence for an armoured security guard and crowd controller. He had not sought to deceive or mislead anyone in his application.
The applicant said that he was a dog breeder and trainer operating in a hobby capacity from suitable premises in Victoria. He was licensed with his local council. He wished to specialise in breeding and training working dogs and selling them as puppies. He wished to expand his role and ability to service the working dog industry relying on his expertise as a dog breeder and trainer, including dogs which could perform protection and guard functions for private industry and government.
The applicant stated that he was hampered in his ability to progress his dog breeding and sales operation because he was not the holder of a private security operators licence. He was unable to have puppies that he had bred and wished to sell trained at a dog training establishment, because of the requirement contained in paragraph 4.4 of the Code. He believed that in order to own protection dogs, that is, dogs that he would wish to train in protection or guard functions, he needed to be licensed under the Act. As such, he would be subject to more oversight by Victoria Police. He would comply with all conditions set out in such a licence. He lacked credibility in offering advice or consulting services in dog handling to persons licensed under the Act, because he did not possess a licence himself despite having completed all necessary training.
The applicant said in his witness statement that it was not his intention as part of his business to ever perform a guard or security function with or without a dog and the only times that he would attend in the field would be to advise on dog behaviour or dog handling.
The applicant described himself as essentially a non-drinker consuming alcohol maybe 2 to 3 times per year and only as single drinks at social occasions to be polite. He did not drink alcohol at home. He did not take drugs prescription or otherwise. He had been active in a community organisation since 2008 that raises money for community or charitable purposes. He said that he had not reoffended in the last 10 years.
In cross-examination, the applicant said that although he sought an unarmed security guard licence, he had no intention to act in that capacity at the moment. Likewise, while he sought a crowd controller licence, he had no intention of acting as a crowd controller as that term is defined in the Act. He had undertaken a security course, and qualified in the lowest possible qualification to give him a private security operators licence for his dog business.
The applicant in cross-examination described his dog business as extending to the breeding and training of protection dogs, and the sale of a particular breed of dogs. He sold dogs as puppies, and had trained protection dogs in the past. He was not currently selling protection dogs, but proposed to do so in the future. He had previously undertaken the protection training of dogs when the Code was not policed. Now it was policed and he wanted to obtain a private security operators licence.
The applicant was cross-examined as to the disability pension he had held from 2001 until 14 March 2014. He had originally been diagnosed with an adjustment disorder. He had suffered from depression and post-traumatic stress disorder. He had suffered from anxiety, panic attacks, and paranoia. He said that he had not experienced panic attacks in the last five years, and had no concentration or sleep problems. He said that he received the disability pension without any medical evidence or assessment for the last 5-6 years.
The applicant relied on written references provided with the application. Thirteen written references were tendered at the hearing under objection from counsel for the Chief Commissioner. Despite that objection, I held that all of the references should be received by the Tribunal as a matter of fairness under ss 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the VCAT Act'). Section 102(1) and (3) of the VCAT Act provided that the Tribunal must allow a party a reasonable opportunity to call or give evidence which may be oral or in writing.
The references came from persons who had met, or dealt with the applicant in his dog and kennel business. They spoke very positively of him, his skills and competence, business practices, character, honesty, reliability and generosity. It is appropriate to give some weight to the references in favour of the applicant albeit that none of the persons giving the references were aware of his criminal history. The references were given in response to a standard letter from the applicant's solicitor which was produced to the Tribunal.
Counsel for the Chief Commissioner tendered two affidavits and the exhibits to those affidavits. She relied on the protected information.
[2]
Towards the close of the hearing, special counsel sought leave of the Tribunal under s 150D(3)(b) of the Act to seek further instructions from the applicant. Two written questions were submitted to the Tribunal for approval. I approved the two questions which were:
[3]
Q1 Do you wish to amend your application to guard with a dog category?
[4]
Q2 Do you agree to any conditions being imposed on your licence?
[5]
The responses given by the applicant to these questions as advised by special counsel were:
[6]
Q2 Yes, happy to earn credibility over time if I need to progress.
[7]
Special counsel subsequently sought to amend the application to an application for a private security individual operator licence to act as a security guard whilst exercising control over a dog.
The application to amend was opposed by counsel for the Chief Commissioner who contended in substance:
(a) the Tribunal was a review jurisdiction and should not be asked to be the original decision-maker;
(b) no application for a guard with a dog licence had previously been made;
(c) the Tribunal was not in a position to assess the competency of the applicant and whether he had completed the necessary training for a guard with a dog licence;
(d) it would be necessary to cross-examine the applicant for a third time if the amendment was permitted;
(e) there was no utility in the proposed amendment, as the applicant did not intend to conduct activity as a guard with a dog; and
(f) it was not an effective or efficient use of the Tribunal's time to grant the amendment application.
I reserved my decision on the application to amend to be dealt with in these reasons for decision.
[8]
Special counsel submitted in substance that the applicant was a 'fit and proper' person to be granted a private security operator licence. The applicant required a private security operator licence for his current and intended business activities. He would be better supervised if he were licensed rather than left on the fringes of the private security industry. There was nothing to suggest that licensing of the applicant would detract from public safety or peace. The applicant's expertise and experience in dog breeding and training would add to public safety rather than detract from it.
As to the applicant's prior convictions and character, special counsel submitted:
(a) the applicant's last appearance before a court charged with a criminal offence was in 2001;
(b) the charges did not involve dishonesty but related to trafficking of cannabis, and possession of a weapon and ammunition resulting in a fine;
(c) the most recent criminality alleged against the applicant was a gun incident in 2003;
(d) since his last offence, the applicant has lived an honest and useful life developing expertise in dog handling and breeding;
(e) only two of the applicant's prior court appearances involved dishonesty and they were in 1986 and 1993;
(f) the applicant could have chosen to remain outside the Act and conduct his activities unregulated and unsupervised by the police - rather he has chosen to seek to be lawfully licensed despite the expense and inconvenience involved;
(g) the references provided by a range of people as to the good character, professionalism and reliability of the applicant evidence his suitability to hold a licence; and
(h) while the past conduct and criminality of the applicant was relevant to the determination of the application, so too was the restoration of the character that comes from the passage of time, along with remorse and contrition for past wrongs. From a pattern of criminal offending from about 1986 to 2003, the applicant has successfully rehabilitated to be a productive, law abiding well regarded man of good character and standing.
[9]
Counsel for the Chief Commissioner submitted that the applicant had a very serious and extensive criminal history. The applicant had been convicted of numerous offences that were disqualifying offences under s 13(1) of the Act. These included firearms offences, drug offences and offences involving dishonesty. The applicant could not be regarded as a fit and proper person having regard to the number and nature of the offences. It was not in the public interest to grant the applicant a licence.
Counsel for the Chief Commissioner contended that the applicant suffered from significant psychiatric conditions which affected his suitability to participate in the private security industry. He had previously been diagnosed with post traumatic stress disorder and had been on a disability support pension. He had been diagnosed in the past with adjustment disorder, depression and extreme psychological distress. There was no evidence that the applicant ceased to suffer from these psychiatric disorders. There was no medical evidence in support of his suitability to hold a licence.
Another submission made on behalf of the Chief Commissioner was that the applicant did not have any intention to undertake activity as a security guard or as a crowd controller. Rather, he sought a licence to assist him in his business, without having any intention to protect, guard or watch any property as an unarmed security guard, or maintain order at a public place as a crowd controller.
Counsel for the Chief Commissioner submitted that the written references provided by the applicant were all provided by persons who were ignorant of his criminal history and past. She said that the references should receive little if any weight.
She also developed arguments based on the protected information. I have taken these arguments into account, and given them weight, but having regard to s 150D(5) of the Act I will say nothing in these reasons about these matters.
[10]
In Hughes & Vale Pty Ltd v State of New South Wales (No 2) three members of the High Court said:[1]
[11]
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. 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: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. 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.
[12]
In Siguenza v Secretary, Department of Infrastructure, Balmford J said:[2]
[13]
The other authority on which Mr Klemens relied was the decision of Olsson J in Petracaro v Commissioner of Consumer Affairs in which His Honour found that aspects of general character, being convictions for offences of dishonesty related to drug dependency which had been overcome, were peripheral to the issue of fitness to hold a licence as a bricklayer, stonemason and building work supervisor. His Honour said, with emphasis,:
[14]
It cannot be stressed too strongly that the Act is not pre-occupied with general character aspects, except to the extent that these may directly be relevant to the clear purposes of the statute, which essentially focus on the fitness of a person to discharge the responsibilities applicable to a particular type of licence. The statute is primarily concerned with the protection of the public by ensuring that the building work is not carried out by persons who are not suitably skilled or who are, or are likely to be, dishonest with those with whom they enter into contracts. . . .
[15]
Moreover, the test to be applied to the required characteristics of a bricklayer are fundamentally different from those related to (say) a security guard under the Commercial and Private Agents Act 1986 - where general good character is a vital feature of inherent qualifications for much of the work involved, for quite obvious reasons.
[16]
As was pointed out by Hale J in Maxwell v Dixon[1965] WAR 167 at 169, weight must be given only to matters which can fairly be seen to be relevant to the vocation in issue. That inquiry must primarily be directed to the situation as it stands at the time of the application, given that past events may assist as being relevant indicative background. Although the expression "fit and proper" is capable of extending to the three characteristics of honesty, knowledge and ability, what is pertinent for consideration depends on the statutory context and the qualifications directly relevant to the particular vocation.
[17]
Balmford J then referred to other relevant authority:[3]
[18]
The Appeal Division of this Court (Ormiston, Nathan and Vincent JJ) in Secretary to the Department of Justice v Frugtniet was considering whether the respondent was, in terms of section 20(1) of the Travel Agents Act1986 "a fit and proper person to continued to hold" a travel agent's licence. Their Honours said:
[19]
What must be considered is the fitness of the individual concerned to operate as a licensed travel agent. Unfitness may be manifested in a variety of circumstances and in a multitude of ways. Some of those may be associated with employment as a travel agent but there is no requirement that this be the case and unfitness may be demonstrated by conduct totally unconnected with any such employment or employment at all.
[20]
Nathan J in Director of Consumer Affairs v Jay Jacq Pty Ltd was concerned with a provision in the Motor Car Traders Act1973 requiring in effect that a licensed motor car trader be "a fit and proper person to hold a licence". He said at 7a:
[21]
The Act is one designed to protect the interests of the community. It establishes a licensing system which regulates the business of motor car trading to those persons who, because they are fit and proper, are permitted by way of licence to trade. Accordingly, the community is entitled to have confidence in the fitness and propriety of motor car traders.
[22]
The convictions and behaviour go to the very substance of the honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser to rely upon the honesty and integrity of a vendor. If that is undermined, the very structure of the Act is eroded.
[23]
One particular concern of the Magistrate in the present case seems to me to be well expressed in the judgment of Walters J, who said in Sobey v Commercial Agents Board of an applicant for a licence under the Commercial and Private Agents Act 1972-78:
[24]
The issue whether an appellant has shown himself to be "a fit and proper person", within the meaning of s. 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
[25]
It is clear from the authorities that the test of a "fit and proper person" must depend, in each case, on the purpose of the legislation under which the test is being applied. I have already found that in the present case that purpose is, as expressed in the Second Reading Speech (see [22] above) "to ensure appropriate levels of personal safety and security for learner drivers and adequate training competency of driving instructors". The question is thus whether a given applicant, in the general terms adopted by Walters J, has the qualities which would "permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails".
[26]
I agree with Balmford J and with Walter J in Sobey v Commercial Agents Board,[4] that it is necessary for the applicant to demonstrate that he is of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
In Legal Services Board v McGrath,[5] Warren CJ followed and applied the dictum of Walters J in Sobey v Commercial Agents Board[6] which Her Honour described as "requiring technical and moral aptitude sufficient to meet the demands of the role in question".
[27]
The applicant's criminal history includes criminal convictions in Victoria over a fifteen year period from 1986 until 2001. He has been sentenced to imprisonment on a number of occasions. His criminal history is serious and extensive. Predominantly, his convictions relate to possessing firearms, pistols or ammunition without having a licence to do so, and to trafficking, cultivating, or possessing cannabis or amphetamines. There are two convictions relating to offences which involve dishonesty as an element. These circumstances are exacerbated by other matters that appear in the protected material to which reference has been made by counsel for the Chief Commissioner.
The vocation of a security guard brings with it significant responsibilities. Security guards are responsible for protecting, guarding and watching the property of others. They may be armed or unarmed. They may have to exercise control over a dog. They may be responsible for the collection, transfer or delivery of cash or other valuables whilst armed with a firearm. They may be required to protect, guard or watch property by operating a security system that utilises closed circuit television, a closed monitoring system, radio or other similar device.
Under paragraph 4.4 of the Code, only licensed security guards are eligible to have their dogs trained as protection dogs, or to be trained in protection training. Given that protection training may involve training a dog to attack people or animals, and may include the training of a dog to attack a human wearing padded protective clothing, the oversight of dogs undertaking protection training or protection duties is an important responsibility.
Section 1(b) of the Act makes the legislative intent for the regulation of the private security industry unequivocally clear. It is to 'ensure' public safety and peace. The ordinary meaning of the word 'ensure' is to "make sure or certain to come [or] occur".[7] Parliament intended that public safety and peace would be secured to a high level by the Act.
As Olsson J put it in Petracaro v Commissioner of Consumer Affairs,[8] the occupation of security guard is one "where general good character is a vital feature of inherent qualifications for much of the work involved, for quite obvious reasons".
Whilst acknowledging that the applicant has commendably lived a law abiding life for about the last ten years, and has significantly rehabilitated himself, his criminal history is of such gravity and duration that he cannot be regarded as a person of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public without further inquiry, as a person to be entrusted with the duties and responsibilities of a security guard. His position is even worse when regard is had to the protected information. I am of the view and allowing for everything in the applicant's favour that a member of the public would be very concerned that a person with as serious and long a criminal history as the applicant could be licensed as a security guard responsible for protecting, guarding and watching over the personal property of others.
The applicant's case is not assisted by the fact that in reality he does not wish to act in the future as a security guard or as a crowd controller. Rather, obtaining a licence is a means to an end. Obtaining a private security individual operators licence will enable him to expand his business activities. This in no way diminishes the need for the applicant to satisfy the probity requirements set out in the Act. Under the Code, only persons who can meet the probity and competency requirements of the Act are able to have their dogs trained as protection dogs or undertake protection training.
Nor is the applicant's case assisted by the way he completed the application form when applying for a private security operators licence. While acknowledging the difficulties there were a number of non-disclosures or misrepresentation contained in it - including a failure to disclose any criminal history when asked whether he had ever been convicted of any offence in Australia or elsewhere. Equally, the applicant would have been well advised when making the application to have disclosed the fact that he was in receipt of a disability pension since 2001 for an adjustment disorder having been diagnosed as suffering from post-traumatic stress, depression, anxiety conditions and paranoia rather than state, as he did that he had not in the past five years been treated for psychiatric or psychological problems.
I am of the view in all of the circumstances that the applicant does not meet the probity requirements set out in s 25(2) of the Act, and that it is not in the public interest that a private security individual operator licence be granted to the applicant under s 25(1) of the Act.
[28]
Almost at the end of the hearing, special counsel for the applicant sought to amend the application to an application for a private security individual operator licence so that he could act as a guard with a dog.
For the reasons that I have given the applicant would not in any event meet the probity requirements for a guard with a dog licence just as he does not meet the probity requirements to be an unarmed guard or crowd controller. The objections of the Chief Commissioner to the amendment are well founded. There is no proof of completion of training by the applicant to be a guard with a dog, and the Chief Commissioner has had no opportunity to prepare a case in response. The application to amend the application will therefore be refused.
[29]
The applicant does not meet the probity requirements under s 25(1) and (2)(a) of the Act. He is not in my view a fit and proper person to be issued with a private security individual operator licence. I am satisfied that the grant of a private security individual operator licence to the applicant is not in the public interest. I will make an order upholding the Chief Commissioner's decision, directing that a licence not be granted, and confirming that the applicant has failed to meet the probity requirements.