Gray v Commissioner of Police, NSW Police [2010] NSWADT 9 (11 January 2010)

Last Updated: 17 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Gray v Commissioner of Police, NSW Police [2010] NSWADT 9


DIVISION:
GENERAL DIVISION

PARTIES:
Applicant:
Byron Gray

Respondent:
Commissioner of Police, NSW Police




FILE NUMBERS:
073198

HEARING DATES:
12 June 2009

SUBMISSIONS CLOSED:
7 August 2009



DATE OF DECISION:
11 January 2010

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Security Industry Act 1997

CASES CITED:
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Commissioner of Police NSW v Gray [2009] NSWCA 49
Commissioner of Police v Gray [2008] NSWSC 414
Gray v Commissioner of Police, New South Wales Police [2008] NSWADT 29
Howell v Macquarie University [2008] NSWCA 26
Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127
Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Sawires v Commissioner of Police [2010] NSWADT 4

TEXTS CITED:


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

MATTER FOR DECISION:



REPRESENTATION:
Applicant Representative:
G Donnellan, barrister
Respondent Representative:
A Johnson, solicitor

PUBLICATION RESTRICTION:
Paragraphs referred to as [Subject to suppression order] are not to be released other than to the Respondent.

ORDERS:
The decision under review is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 Mr Gray applied for a Class 1 AC security licence under the Security Industry Act 1997 ("the Act"). The application was refused on the basis that the Commissioner’s delegate considered that Mr Gray is not a fit and proper person to hold a security licence and that it is not in the public interest for a licence to be granted. Mr Gray requested an internal review of the decision and the refusal was affirmed.

2 The matter was initially heard on 30 August 2007. Confidential material and further evidence was adduced during in camera hearings. I agreed with the Commissioner’s request that the Tribunal not disclose the confidential information to Mr Gray: section 29(3) of the Act.

3 A preliminary issue concerning provision of particulars was the subject of my decision in Gray v Commissioner of Police, New South Wales Police [2008] NSWADT 29 and subsequently in the Supreme Court decision in Commissioner of Police v Gray [2008] NSWSC 414 and the Court of Appeal decision in Commissioner of Police NSW v Gray [2009] NSWCA 49 ("the Court of Appeal decision").

4 The Commissioner relies on material ("the confidential material") concerning what is alleged to be Mr Gray's past conduct and which the Commissioner says supports the contention that Mr Gray is not a fit and proper person within the meaning of section 15(1)(a) of the Act. Consistent with the Court of Appeal decision that the Tribunal was not entitled to order the Commissioner to provide Mr Gray with particulars of the criminal intelligence information relied on, the confidential material has not been provided to Mr Gray.

5 The matter was finally heard on 12 June 2009. The earlier part of the hearing was held in the presence of Mr Gray. The later part of the hearing was held in Mr Gray’s absence. Each party made submissions.
Confidential hearing

6 Generally, Tribunal hearings are held in public. However, under section 75 of the Administrative Decisions Tribunal Act 1997, the Tribunal has the power to order that a hearing be conducted either wholly or partly in private and to make an order prohibiting or restricting the disclosure of evidence given before the Tribunal to some or all parties. The Commissioner sought to have a confidential hearing in this matter and I agreed to that request. In the absence of Mr Gray, I heard from Ms Johnson as to the nature of the material she wished to put before the Tribunal. Having heard submissions in relation to the material that the Commissioner wished to tender to the Tribunal on a confidential basis, I formed the view that the confidential information is ‘of such importance and cogency that justice is more likely to be done by receiving the information in confidence and denying the party access to it than by refusing an order to exclude the party.’ Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.

7 I determined to proceed on that basis and advised Mr Gray accordingly. Consequently Mr Gray was not made aware of the material that was tendered on a confidential basis.

8 I have given weight to this confidential material and any reference to that material is deleted from the published reasons.

9 Mr Gray has a number of convictions and matters that led to contact with police more than 10 years before his application. It is not in dispute that Mr Gray's record is unblemished for the period between 1994 and 2006. The Commissioner acknowledges that Mr Gray's criminal record would not justify refusing him a Class 1AC licence. However, Ms Johnson submits that the other information available to the Commissioner, and which is discussed in the confidential material, properly leads the Tribunal to the view that Mr Gray is not a fit and proper person to hold a licence.

10 Those parts of the decision where the confidential material is discussed are identified as "Subject to suppression order".

11 The confidential material tendered to the Tribunal included:

a confidential statement by Andrew Vezos

a confidential report

confidential submissions
Relevant Legislation

12 Section 15 of the Act 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 satisfied that the applicant:

(a) is not a fit and proper person to hold the class of licence sought by the applicant, or

(b) is not of or above the age of 18, or

(c) in the case of application for a licence other than a provisional licence--does not have the competencies and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or

(d) is not competent to carry on the security activity to which the proposed licence relates, or

(e) is not an Australian citizen or a permanent Australian resident.

(2) The Commissioner may refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) in the case of an application for a class 1 licence:

(i) has not, for at least 12 months, held a provisional licence authorising the applicant to carry on the security activity to which the proposed licence relates, or

(ii) has not previously been authorised by a licence (other than a provisional licence) to carry on the security activity to which the proposed licence relates, or

(b) in the case of an application for a provisional licence--has not completed, to the satisfaction of the Commissioner, an approved security industry training course that is relevant to the class of licence sought, or

(c) in the case of an application for a class 1 licence where the applicant has previously been authorised by a licence to carry on the security activity to which the proposed licence relates:

(i) has failed to demonstrate active participation or employment in the security industry for a significant period of the previous licence, after taking into account any actual experience or offered work or contracts, or

(ii) has not been engaged in the security activity authorised by the previous licence for a significant period, or

(iii) has failed to demonstrate continuing knowledge and competency in relation to the security activity authorised by the previous licence.

(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.

(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence.

(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.

(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:

(a) is relevant to the activities carried out under the class of licence sought by the applicant, or

(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or

(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.

(7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).

13 The Act does not define the phrase 'fit and proper person'. However, the phrase has been the subject of much judicial comment and many decisions of this Tribunal.

14 Section 29 of the Act provides:

29 Right to seek review from Administrative Decisions Tribunal

(1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions:

(a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)),

(b) a condition imposed by the Commissioner on a licence granted to the person,

(c) the revocation or suspension of a licence granted to the person.

(2) For the purposes of this section, an application for the grant of a licence is taken to have been refused if the licence is not granted within 60 days after the application is made in accordance with this Act.

Note. Under the Administrative Decisions Tribunal Act 1997, if the ADT has reviewed a "reviewable decision" (such as a decision referred to in the above section), a party to the proceedings may appeal to an Appeal Panel of the ADT. An appeal on a question of law may then lie to the Supreme Court.

(3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal:

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and

(b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant’s representative and any other interested party, unless the Commissioner approves otherwise.

Note. Section 15 (7) of this Act provides that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information.

The Commissioner’s Case

15 The Commissioner relies on open and confidential statements of Andrew Vezos. Mr Vezos provided criminal history reports in relation to Mr Gray's brothers.

16 The Commissioner urges a broad approach to the interpretation of material that can be taken into account as this would promote the objects of the act, by ensuring the protection of police information holdings and ensure that only persons of the utmost integrity are granted a licence. Ms Johnson submits that the phrase "criminal intelligence report or other criminal information" in section 15(6) of the Act should be given its ordinary meaning and should not be read down so as to equate the phrase to material that could be subject to a public interest immunity claim.

17 Ms Johnson argues that the criminal intelligence or other criminal information relied on by the Commissioner can be corroborated and should be given weight, even though the makers of the COPS entries were not called to give evidence.

18 She submits that the Tribunal is able to take COPS reports or other criminal intelligence report into account without the need for the Commissioner to call each police officer who made each entry. She says that neither the Court of Appeal's comments in Howell v Macquarie University [2008] NSWCA 26 nor the rule in Jones v Dunkel requires that the officers be called. The Commissioner says that it is appropriate for the Tribunal to consider and give weight to the criminal intelligence material before it. Ms Johnson argues that calling the police officers who made the COPS entries would not significantly assist the Tribunal.

19 [Subject to suppression order]

20 [Subject to suppression order]

21 [Subject to suppression order]

22 [Subject to suppression order]

23 [Subject to suppression order]

24 [Subject to suppression order]

25 [Subject to suppression order]

26 [Subject to suppression order]

27 The Commissioner contends that on balance, the Tribunal could not be satisfied that Mr Gray is a fit and proper person to hold a security industry licence.

Mr Gray's Case

28 Mr Gray relies on his own evidence. He outlined his family and social background and the efforts that he has made to divorce himself from those in his past that have criminal histories.

29 He states that he is unaware of anything in his past behaviour that would provide a basis for the conclusions reached by the Commissioner. He speculates that the police reports may contain incorrect information about him or that it may be the case that he has been wrongly associated with offences committed by others.

30 His evidence is that he lived in Wellington for about 35 years. Some of his friends have been convicted of offences such as burglary, assault, break and enter, and robbery. He says that he has no contact with those people now.

31 Mr Gray grew up in a big family with eight brothers and nine sisters. Three of his brothers have been in trouble with the police. Criminal history reports have been provided in relation to Mr Gray's brothers to support that assertion. One of those brothers passed away about 10 years ago. He says that he has no contact with the other two brothers now.

32 His evidence is that his brothers told him that when they had trouble with police, they used Mr Gray's name. He said that he asked them to stop using his name, however they continued to do so.

33 Mr Gray has worked in a number of positions involving a great deal of community trust, including work with children. He has worked as a teacher's aid and an Aboriginal Education Officer in a number of primary schools for a period of about eight years. He has also worked on a casual basis for a children's charity - Barnardos Redfern-Waterloo intensive family support service.

34 Vivian Freeman, his employer at Barnardos, wrote a letter in support of Mr Gray's application for a security licence. She stated that she has no hesitation in recommending that Mr Gray is a fit and proper character to work with the Security Industry.

35 Ms Helen Gabriel of the Integrated Group casual labour hire agency has also supported Mr. Gray's application to work in the security industry.

36 Mr Gray also relies on evidence of Paul West, an Indigenous Community Development Officer in Wellington. Mr West has known Mr Gray for more than 30 years and also knows Mr Gray's brothers. He considers Mr Gray to be an honest, friendly and responsible person. However, he concedes that he has had little to do with Mr Gray in recent years.

37 Mr Donnellan, Mr Gray's barrister, made submissions as to the appropriate weight to be given to the Commissioner’s confidential materials. He argues that Mr Gray has no idea as to why the Commissioner does not see him as being a fit and proper person to hold a licence. Mr Donnellan submits that the police records relied upon are inherently unreliable and that the allegations contained in the confidential materials ought to be treated with the utmost caution. They should be accorded little weight in the absence of Mr Gray being allowed to respond to or test the allegations contained in those materials.

38 He further submits that where the confidential materials arise from an allegation of misconduct against Mr Gray made by a person who might conceivably have some motive to put such an allegation to police, the evidence in the form of the confidential record of that allegation should be treated with the utmost caution.

39 Mr Donnellan submits that if the confidential materials were to contain allegations made by persons who could have been called as confidential witnesses in the proceedings (and, at the very least, could have been subject to questioning by the Tribunal if not by Mr Gray's representatives), the Tribunal ought to draw the inference that the calling of witness in the proceedings would not have assisted the Commissioner's case.

40 He relies on Howell v Macquarie University per Campbell JA (with whom Spigelman CJ and Bell JA agreed) at [76] which confirmed that the rule in Jones v Dunkel ought to be applied in the Tribunal pursuant to "the loosened procedural and evidentiary regime that s73 [of the ADT Act] requires the Tribunal to adopt"

41 Accordingly, he argues, the Tribunal should be reluctant to accept that any allegations contained in the confidential materials are well founded and, in such circumstances those materials should not cause the Tribunal to have confidence that Mr Gray will engage in improper conduct in the future.

42 He says that if the Tribunal were to accept that the confidential material contains evidence which might properly cause of the Commissioner to suspect that Mr Gray has engaged in past misconduct, any such misconduct should be weighed against Mr Gray's positive attributes of character. Those attributes are self-evident having regard to his will and ability to extricate himself from an upbringing in which he was exposed to criminal influences and to maintain an almost unblemished record in his adult life.

43 Mr Gray should be afforded the opportunity to further better his life by obtaining stable employment in a role that he feels confident he could successfully maintain and for which he is suitably qualified.

Discussion

44 The issue to be decided is whether the Commissioner made the correct and preferable decision by refusing to grant the licence. This decision must be made taking into account whether Mr Gray is a fit and proper person to hold a security licence.

45 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.

46 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.

47 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 Australian Broadcasting Tribunal v Bond.)

48 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.

49 As I recently stated in Sawires v Commissioner of Police [2010] NSWADT 4 at paragraph [40]:

"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"

50 In the present matter I have been provided with a considerable amount of confidential material that, in my view, supports the Commissioner’s view. I note Mr Donnellan’s submission that allegations contained in the confidential materials ought to be treated with the utmost caution. Nevertheless, I have accepted that material and I have given weight to that material.

51 [Subject to suppression order]

52 On the material before me, weighed against Mr Gray's positive attributes of character, I cannot be satisfied that Mr Gray is a fit and proper person to hold a security industry licence.

53 It is my view that the correct and preferable decision is that Mr Gray should not be permitted to hold a security licence. It follows that the decision of the Commissioner should be affirmed.
Order
The decision under review is affirmed.