Sawires v Commissioner of Police [2010] NSWADT 4 (4 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Sawires v Commissioner of Police [2010] NSWADT 4


DIVISION:
GENERAL DIVISION

PARTIES:
Applicant:
Emad Sawires

Respondent:
Commissioner of Police, NSW Police




FILE NUMBERS:
083090

HEARING DATES:
10 July 2009

SUBMISSIONS CLOSED:
21 August 2009



DATE OF DECISION:
4 January 2010

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Security Industry Act 1997
Security Industry Regulation 2007
Security Industry Regulation 1998

CASES CITED:
Abdel-Ghani -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 20
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657
Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60
FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88
Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114
Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151
Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127
IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230
Infarinato v Commissioner of Police, New South Wales Police [2004] NSWADT 43
Police v Toleafoa [1999] NSWADTAP 9
Saadieh v Director-General Department of Transport [1999] NSWADT 68

TEXTS CITED:


APPLICATION:
Security Industry Act - security industry licence -revocation of licence

MATTER FOR DECISION:



REPRESENTATION:
Applicant Representative:
J Conomos, Barrister
Respondent Representative:
C Zoppo, Solicitor


ORDERS:
The decision under review is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 This is an application for review of a decision by the Security Industry Registry of the NSW Police Force to revoke the applicant’s Class 1ABC security licence. The licence was issued on 7 January 2004 under the Security Industry Act 1997 ("SIA"). The decision to revoke the licence was made on 5 May 2006.

2 In making the revocation, two grounds were relied upon. The first was that there was a pending charge arising out of an incident with the police on 7 April 2006. The Local Court has since dismissed that charge. The second ground described in the notification was the "section 10 bond" ordered by Sutherland Local Court on 26 November 2004. The Local Court found the applicant guilty in relation to a stalking/intimidation incident.

The internal review

3 On 31 January 2008, the applicant made an application to the respondent, the Commissioner of Police ("the Commissioner") for an internal review of the Security Industry Registry’s decision. On 19 February 2008 the Commissioner rejected the application for internal review because it was not made with in 28 days, as required by the SIA.

The external review

4 On 13 March 2008 the applicant filed an application in the Tribunal for an external review of the Security Industry Registry’s decision to revoke his licence.

Legislation
5 The relevant provisions of the SIA are section 26(1)(b) provides that a licence may be revoked if the licensee:

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, ...

6 In addition, section 26(1)(d) provides that the Commissioner may revoke a licence for any other reason prescribed by the regulations. Clause 18 of the Security Industry Regulation 2007 ("the Regulations"), provides that in accordance with section 26(1)(d) of the SIA, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it. Clause 18 of the Security Industry Regulation 1998 was in the same terms.

7 Section 26(1A) provides that the Commissioner must revoke a licence if satisfied that, if the licensee were applying for a new licence, the application would be required to be refused under the SIA. Section 16 of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant has been convicted or found guilty of an offence prescribed by the Regulations, within 10 or 5 years respectively.

Preliminary issue
8 A preliminary issue was raised by the Commissioner, who contended that by virtue of the finding of guilt of the applicant for a prescribed offence, the Commissioner was required to revoke the applicant’s security licence pursuant to section 26(1A). Section 26(1A) provides a mandatory ground for revocation, when the Commissioner is satisfied that if the licensee were applying for a new licence, the application would be required by the SIA to be refused. Section 16(1)(b) of the SIA provides that the Commissioner must refuse to grant an application if satisfied that an applicant:

has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law

9 Clause 18(1)(i) of the Regulations prescribes the following offence for the purposes of section 16(1)(b) of the SIA:

(i) Offences involving stalking or intimidation

An offence under the law of any Australian or overseas jurisdiction involving stalking or intimidation.

10 The Regulations repealed the Security Industry Regulation 1998 and commenced operation on 1 September 2007. The Regulations included the stalking offence for the first time.

11 The Commissioner submits that the section 10 bond ordered by Sutherland Local Court for the offence of stalking on 24 November 2004 creates a mandatory ground for revocation.

12 The applicant submitted that section 26(1A) should not be applied retrospectively to result in a mandatory disqualification of the applicant’s licence and in the interests of justice and fairness the retrospective operation of section 26(1A) of the SIA should not be available.

13 The applicant submitted that The Commissioner sought to apply the provisions of the SIA and the Regulations retrospectively, by relying on conduct, that took place before the commencement of the Regulations.

14 I held that the law in place at the time of the finding of the applicant’s guilt in respect of the stalking/intimidation offence should be applied as to do otherwise would amount to a retrospective application of the laws of that impose the revocation period.

15 Even if I was wrong in that view, the five-year period prescribed by section 16(1)(b) has now expired. Nevertheless it is my view that the applicant’s conduct can be taken into account in determining the correct and preferable decision.

Issue
16 The issue to be decided is whether the Commissioner made the correct and preferable decision by revoking the applicant’s licence. This decision must be made taking into account whether the applicant is a fit and proper person to hold a security licence and/or whether it is in the public interest for him to do so.

The Evidence
17 The Commissioner contends that the following matters are relevant to both the ‘fit and proper’ ground and the public interest in relation to the applicant’s security licence.

18 The break, enter and steal offence: The Commissioner alleges that the applicant had some involvement in a break and entry at the home of Darrin Power on 22 June 2000. Constable Hawes, who was involved in the initial investigation of the break and enter, gave evidence that Mr Power identified two persons’ as suspects for the offence. The Commissioner contends that the applicant was one of the suspects. The Sergeant who examined the window through which entry was gained to the home gave evidence that the applicant’s fingerprints were identified on the window. The Sergeant noted a smudging effect on the fingerprints which indicated to him that the applicant’s fingers were pushing the window up as one would when opening the window.

19 The Commissioner submits that the evidence before the Tribunal clearly establishes that the applicant was involved in the break, enter and steal offence that took place on 22 June 2000.

20 The applicant denied involvement in the break-in. He advised the Tribunal that he could not recall knowing Mr Power, having been to the address where the break in occurred; having known other persons linked to the break in; nor could he explain why his fingerprints were found on the internal window. The applicant said that in 2000 he was 17 years old and undergoing the Higher School Certificate. The applicant also stated that Constable Goodhew had told him that he was no longer a suspect in that matter. On 8 January 2009 he was informed that he was no longer a suspect and that the investigation had been finalised in relation to the applicant. The applicant submits that no adverse inference can be drawn from the intelligence material on which the Commissioner sought to rely.

21 The Commissioner submits that the offence of break, enter and steal is an offence or dishonesty or stealing and an offence where on conviction a person is disqualified from holding a security licence for a period of ten years under section 16 of the SIA. In relation to the applicant’s suggestion that he had been told by Constable Goodhew that he was no longer a suspect in this matter, the Commissioner submitted that this suggestion was not put to Constable Goodhew and no evidence was led by the applicant to support the assertion.

22 The stalking charges: On 7 July 2004, the applicant was arrested in relation to a stalking/intimidation incident. Charges were laid under section 562AB in Part 15A (Apprehended Violence) of the Crimes Act 1900. On 26 November 2004, the Magistrate at Sutherland Local Court accepted the applicant’s guilty plea but did not proceed to a conviction.

23 A 12 month good behaviour bond was ordered under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 for the stalking/intimidation incident.

24 A copy of the sound recording of the sentencing hearing before the Magistrate was filed by the applicant. The Commissioner submits that the following matters from that recording are relevant:

The applicant admitted to a breach of bail conditions before the Court and no submission was made to the Court about a misunderstanding relating to the status quo of the bail;

The applicant was subject to a curfew and reporting to the Police three times a week whilst on bail and that had been reduced to two times a week;

The applicant spent a week in custody which was taken into account by the Court in determining sentence;

The Magistrate commented that this was a serious matter; and

The Magistrate did not agree to dismiss the charge under section 10 but found the offence proven and without recording a conviction discharged the applicant conditionally on the applicant entering into a good behaviour bond for 12 months.

25 The applicant contended that he was not aware that bail had been continued by the Magistrate in July 2004, in relation to the stalking offence. However, the Notice of Continuance of Bail form was apparently issued to the applicant on 1 July 2004. The question arises as to whether the applicant knowingly breached his bail conditions.

26 The Commissioner submitted that while the Tribunal has made a finding in terms of the retrospective application of laws removing this offence as a mandatory disqualifying offence, the finding of guilt makes this offence highly relevant in the Tribunal’s consideration as to whether the applicant is a fit and proper person. A relevant aggravating circumstance is the fact that the offence was committed whilst the applicant was on bail for serious similar matters involving the same alleged victim. The Commissioner submitted that this demonstrates a person with little respect for the law and the legal process.

27 The applicant contends that the passage of time reduces the significance of this incident. In support of that submission he referred to views expressed Sobey v Commercial Agents Board (1979) 22 SASR at 75:

When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time and weight might then properly be given to his subsequent good behaviour.

28 Record of interview between Police and the applicant: the applicant stated that he had participated in a Record of Interview ("ROI") with Newtown Licensing Police. Mr Conomos of Counsel had accompanied him to the interview. When questioned about his criminal history, the applicant referred to kidnapping charges that had been no-billed, negligent driving, menacing driving and breach of bail. He did not disclose details about the finding of guilt for the stalking charge. In his evidence before the Tribunal the applicant admitted that he read the ROI and signed it as a correct record of the conversation, telling the Tribunal that he must have mixed up the names of the matters.

29 The FOI application: on 8 December 2005 the applicant applied to the Police under the Freedom of Information Act 1989 ("FOI Act") apparently in connection with the stalking/intimidation incident on 7 July 2004. In the Tribunal’s decision, Sawires v Commissioner of Police, NSW Police [2006] NSWADT 302, at [18], the applicant is reported to have said that:

...he has not been approached, questioned or arrested in relation to any breach of the law of a serious nature. He believes that unfounded and unjustified accusations have been made against him...

30 The Commissioner submits that the account that the applicant gave of the stalking/intimidation incident that had occurred on 7 July 2004 was inconsistent with the applicant’s history with the Police. The evidence summarised by the Judicial Member at [19] disclosed that the applicant did not acknowledge the serious nature of the charge.

31 Eluding service by police of the Notice of Revocation: The Commissioner submitted that the applicant eluded service of the Security Industry Registry’s notice of revocation dated 5 May 2006. The applicant gave evidence that he became aware that his licence was revoked in January 2008 when he was notified by his employer. He was given written notification on 17 January 2008.

32 Failing to produce a licence: section 35(1) of the SIA provides that a licensee must produce his or her licence for inspection on demand by a police officer or any other member of the NSW Police Force. On 28 March 2007 a police officer demanded that the applicant produce his licence. The applicant told the police officer that he had misplaced it.

33 The Commissioner submitted that on 28 March 2007 the applicant told the police that he was aware his licence "was not valid anymore". However, in his application for an internal review, he said:

The first time it came to my attention that my Security Licence was suspended/revoked was at the beginning of January 2008, when my employer notified me, following this I rang the Security Industry Registry and it was confirmed to me over the phone.

34 The Commissioner submitted that if the applicant truly believed that his licence under the SIA was current on 28 March 2007, then he was knowingly in breach of section 35(1) of the SIA. However, the Tribunal may find that the applicant was aware that his licence was revoked within three months of 5 May 2006 (the date of the determination to revoke the licence). In the Commissioner’s submission, this finding is open to the Tribunal from the following evidence:

Affidavit of Barry Hinton sworn 26 March 2008;

Affidavit of Jace Donnelly sworn 27 March 2008; and

Affidavit of Vanessa McCulloch sworn 30 March 2008 (especially at paragraph 7).

35 Failing to surrender licence: The applicant surrendered his licence on 21 May 2008. The Commissioner submits that it is clear that the applicant did not surrender the licence in accordance with section 31 of the SIA. Section 31 provides that if a licence is suspended or revoked, the person to whom it was granted must immediately surrender the licence in accordance with the regulations. A maximum penalty of $11,000 or 6 months imprisonment applies for such an offence.

36 The applicant submitted that he had surrendered his licence in accordance the SIA. However, his evidence is that he was aware that his licence was revoked in January 2008, and he received written notification on 17 January 2008. The notice provided that the applicant was required to immediately surrender the licence. This was approximately four and a half months before its surrender on 21 May 2008.

37 The Commissioner submitted that the applicant was aware of the revocation some time earlier than January 2008. Police officers gave evidence before the Tribunal about this matter. In any event, the Applicant maintained possession of the licence until some weeks after he was aware that his licence was revoked.

38 Incidents involving Robert Hauber in October and December 2008: Robert Hauber (a building supervisor with a company Champion Homes performing development work in the applicant’s street) gave evidence about a difficult relationship with the applicant and his family. Mr Hauber stated that there were ongoing issues between the neighbours at the applicant’s address.

39 Mr Hauber gave evidence about being threatened by the applicant with a cricket bat on 28 October 2008. Mr Hauber also gave evidence about an incident in December 2008 when the applicant jumped over the front fence yelling "I’ve had enough of youse. I’m going to kill all of youse. I’m going to blow you up and burn you." The applicant is also said to threatened Mr Hauber by saying loudly and aggressively "I know who you are. I have your rego. I know where you live. I know you have children and I’ll have them killed. I will burn and kill the lot of them."

40 Mr Hauber’s evidence was that the threats were of such a nature that he was scared, he became shaky and felt clammy and unwell. Mr Hauber said that he believed that the threats to his family might be carried out.

41 Brian Gorman gave evidence about hearing threats when he attended Mr Hauber’s site in relation to graffiti repair works. Mr Gorman was also affected by the nature of the threats that were made.

42 The applicant agreed that there is a dispute between neighbours with respect to a development application. He said that the issues that Mr Hauber referred to are Council issues and that this dispute did not involve Mr Hauber or his company.

43 The applicant conceded that police attended at his home on six occasions in the period of October to December 2008. However, he asserts that Mr Hauber has been untruthful in his statements to police. He submitted that the Tribunal should not accept any evidence provided by him Mr Hauber.

44 The evidence suggests that the applicant’s brother may have been present at the time the threats were said to have been made. The Commissioner contends that he could have been called to refute the allegations.

45 The Commissioner submits that a person holding a security licence must be able to diffuse difficult and potentially violent situations. In contrast, he submits that the applicant acted aggressively and violently by making serious threats of personal harm to Mr Hauber’s family and threatening him with a cricket bat.

46 Inability to work with Police: the Commissioner referred to the applicant’s evidence that he did not trust his Local Police and does not talk to them. The Commissioner submits that this is not the conduct of a person that would be able to work closely with Police if granted a security licence.

47 Misleading submissions: The Commissioner submitted that the applicant attempted to mislead the Tribunal by suggesting that the Police allowed the applicant to hold a Private Inquiry Licence without objection. He argued that the applicant’s statement that he was issued a Private Inquiry Licence without objection was intended to give the impression that the Commissioner had not taken objection to the grant of the licence. The applicant’s licence was in fact revoked on the basis that he was no longer a fit and proper person to hold it. The Commissioner submitted that the applicant knew this to be the case and attempted to mislead the Tribunal.

48 The applicant’s evidence: The Commissioner contends that the applicant’s evidence was largely uncorroborated in circumstances where some degree of corroboration would be expected. The Commissioner referred to the applicant’s submission that he was found guilty of one charge in 26 years, which was incorrect, as a number of other traffic matters dealt with in the District Court had resulted in convictions and fines.

49 The applicant’s character references: the applicant filed a number of character references in support of his submission that he is a person of good character and a fit and proper person to hold a security licence. The Commissioner submitted that the references should be given little or no weight.

50 The references mostly make no reference to any of the criminal allegations made against the applicant, the applicant’s prior criminal convictions or the proceedings before the Tribunal. Those references provided by Mr Brett Hickson, Mr John Mazioun, Mr Robert Fahim and Ms Grusovin MP only refer to general events involving the applicant’s then girlfriend in 2004. Mention of the charges laid by the NSW police are made only obliquely.

51 The Commissioner submitted that none of the references demonstrate that the author was aware of specific charges against the applicant, that the references were prepared with the knowledge that they would be used in proceedings seeking a reinstatement of the applicant’s security licence and the issues in those proceedings, or that the referees understood that the applicant was previously found guilty of serious criminal offences. In particular, the references make no specific mention of the serious stalking charges brought against the applicant in 2004 and the finding against him for that offence. Some of the references predate this and other offences committed by the applicant.

52 Mr Zoppo, solicitor for the Commissioner submitted that there is longstanding authority that a reference should be given little or no weight where the referee has not demonstrated that they are aware of the person’s offences and that, despite those offences they still believe the person to be of good fame and character: see for e.g., Tzoudas v Ministry of Transport [2008] NSWADT 350 at [42]; Council of the NSW Bar Association v Power [2008] NSWCA 135 at [39].

53 The Tribunal has repeatedly accorded limited weight to references supplied in licensing cases that do not indicate knowledge of an applicant's past offences or negative history. In Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, the Appeal Panel said:

[40] Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of negative history, they must be approached with caution.

Submissions
54 The applicant submits that his character and history evidences his respect for the law. He says that he held his security licence for 4 years without incident and that he has worked along side law enforcement officers within the security industry, safeguarding members of the public. No complaints were made against him from the public or his employers.

55 He says that he has been found guilty of one charge. He pleaded guilty to the stalk/intimidate offence in 2004, and was subsequently dismissed under section 10 of the Crimes (Sentencing Procedure) Act. He was placed on a good behaviour bond for 12 months.

56 The applicant submits that there is no factual evidence that demonstrates that he is not a fit and proper person to work in the security industry. Nor are there any public interest issues that would preclude the reinstatement of his licence.

57 He contended that even under the original scheme under which this matter was prosecuted, the 5-year period that would ordinarily apply expired in November 2009. Therefore he would have been entitled to make a fresh application for a security licence.

58 The applicant submits that none of the large volume of evidence tendered by the Commissioner and the evidence given by various witnesses in respect of various incidences that were purported to have occurred, elevates itself to a criminal charge and these matters do not go beyond mere suspicion. None of this evidence has resulted in any charges.

59 Section 26 of the SIA provides both mandatory and discretionary grounds for the Commissioner to revoke a licence. The mandatory ground is set out in section 26(1A):

The Commissioner must revoke a licence when the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.

60 Section 15(1) of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

...is not a fit and proper person to hold the class of licence sought by the applicant.

61 Therefore, if the Commissioner is satisfied that the Applicant is no longer a fit and proper person to hold a Class 1 ABC licence, the Commissioner must revoke the licence. In particular, the type of security activities authorised by a Class 1ABC licence requires the licence holder to be trustworthy.

62 Section 16(1)(b) of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

...has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law.

63 On 26 November 2004 the Sutherland Local Court found the applicant guilty of an offence that is now prescribed by the Regulations for the purposes of section 16(1)(b) of the SIA. The stalking/intimidation incident involved a breach of the law of a serious nature. The Commissioner submitted that the fact of such a finding of guilt should be given some weight in the determination of whether the applicant is a fit and proper person.

64 The Commissioner submits that the evidence that has emerged since the applicant was issued a licence on 7 January 2004 demonstrates that he is not a trustworthy person and does not have capability of fulfilling the object of the SIA to protect the public. The Commissioner submitted that the applicant:

- eluded service by the Police of the Security Industry Registry’s notice of revocation dated 5 May 2006;

- did not inform the Security Industry Registry of a change of his address in breach of a condition of his licence;

- carried out security activities at APEC while unlicensed in contravention of the SIA;

- refused to produce his licence when the police requested it, in breach of the SIA and generally behaved in an unreasonably antagonistic manner towards the police; and

- failed to abide by the SIA.

65 The Commissioner submitted that the applicant is not a fit and proper person within the meaning of section 15(1) of the SIA.

Discussion

Is the applicant a fit and proper person to hold a security licence
66 The assessment of whether a person is a "fit and proper" person was discussed by the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. Mason CJ stated at [63]:

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 witness and propriety are under consideration.

67 In the same case, per Toohey and Gaudron JJ said at [36]:

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. 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.

68 The discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal.)

69 In Hughes and Vale Pty Ltd at 156-157 Dixon CJ, McTiernan and Webb JJ stated as follows in respect of the exercise of this administrative discretion:

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 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 ... . It is evident that the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.

70 In Saadieh v Director-General Department of Transport [1999] NSWADT 68 at 17 Deputy President Hennessey identified a number of factors relevant to determining a person’s fitness and suitability to hold an authority to drive a taxi. In Abdel-Ghani -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 20 I found that the factors identified were readily adaptable to determining a person’s fitness and suitability to hold a security licence. Judicial Member Leal followed this approach in Forbes v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 151. These factors included:

the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;

the nature, seriousness and frequency of any complaints made against the Applicant;

the Applicant’s reputation in the community; and

the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.

39 In assessing the last factor, the length of time since the offences were committed and the circumstances in which they were committed is relevant. Also relevant is an applicant’s admission of responsibility and showing remorse, as well as any efforts of the applicant to rehabilitate and any change in the applicant’s circumstances such as increased support from others including professional service providers.

40 As I stated in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 at 27:

"... the expression "fit and proper person" takes its meaning from its context. A higher standard is applicable to licensees within the security industry because of the special role it plays in ensuring public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe"

71 In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said:

[45] Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. In Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:

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

In LJ v Commissioner of Police [2003] NSWADT 230 at [27] Judicial Member Montgomery found that:

A higher standard is applicable to licensees in the security 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.

46 The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." See also Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at [25].

72 One of the objects of the SIA is to regulate security activities, so that licences are conditional on the overriding need to ensure public safety and the protection of property. The 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: see Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at paragraph [11].

73 In the present matter, I do not consider that the applicant is able to meet that high standard.

74 I have formed this view on the totality of the evidence presented by the Commissioner however I am particularly concerned in regard to the conduct that the applicant demonstrated towards Mr Hauber.

75 I found Mr Hauber’s evidence to be plausible and I accept his version of the incident in preference to that given by the applicant. In my view, the applicant’s conduct demonstrated that he does not have the temperament to deal appropriately with difficult and potentially violent situations. Insufficient time has passed since the events of October and December 2008 to allow me to be confident that the applicant is able to act in accordance with the high standards of integrity and behaviour required by the SIA.

76 I accept the applicant’s submission that five years have past since the Local Court finding in regard to the stalking/intimidation incident. However, I also agree with the Commissioner that the incident involved a breach of the law of a serious nature. In my view, the applicant does not understand the seriousness of the incident and has not accepted responsibility for it fully. I am not confident that in similar circumstances he would not re-offend.

77 I conclude that this is a case where the discretion vested in the Commissioner under that section should be used to find that the applicant is not a fit and proper person to hold a licence under the SIA.

The public interest
78 I do not propose to discuss the other issues raised by the Commissioner in detail, however, I note that I agree with the Commissioner that it is not in the public interest that the applicant hold a licence under the SIA.

79 In Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657 at 681, it was said that:

The purpose of the reference to public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner’s consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

34 Further, in Infarinato v Commissioner of Police, New South Wales Police [2004] NSWADT 43, I stated that:

[18] ...public interest in the context of s 15(3) of the Security Industry Act 1997 requires paramount consideration be given to public safety.

80 In my view, the applicant does not have sufficient understanding or appreciation of the obligations imposed on the holder of a security licence.

81 The applicant has a record of antipathy towards Police, including a record of confrontation with Police. His own admission that he is unable to work with the local police is of concern. He does not trust his local police and does not talk to them. I agree with the Commissioner that this is not the conduct of a person that would be able to work closely with Police if granted a security licence.

82 In Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel stated that the public interest ground in the SIA is:

... an inherently broad concept giving the appellant the ability to have regard to a wide variety 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 elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate 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.

83 It is my view that the correct and preferable decision is that the applicant should not be permitted to hold a security licence. It follows that the decision of the Commissioner to revoke the applicant’s licence under the SIA should be affirmed.

Order

The decision under review is affirmed.