ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WADE & COMMISSIONER FOR FAIR TRADING 
(Occupational Discipline) [2011] ACAT 71

Security 5 of 2010

Catchwords:	OCCUPATIONAL DISCIPLINE – security employee licence to work as a crowd controller – eligibility criteria for a licence – what is public interest? – purpose of the Security Industry Act 2003- examination of the criminal history of the applicant – impact of head injury suffered by the applicant – the applicant’s training and employment history – is it in the public interest to issue licence?

List of legislation:	ACT Civil and Administrative Tribunal Act 2008, s 68
Security Industry Act 2003, ss17, 13,21, 23 and 24

List of cases: 		Commissioner for Fair Trading and Quinton [2011] ACAT 10
O’Sullivan v Farrer (1989) 168 CLR 210
McKinnon v Secretary of Department of Treasury (2005) 145 FCR 70 affirmed by High Court at  (2006) 228 CLR 423
Prosser v Medical Board of the ACT [2010] ACAT 42
Soby v Commercial and Private Agents’ Board 
(1979) 22 SASR 70

Tribunal:		Ms L. Crebbin, General President

			
Date of Orders:			26 September 2011	
Date of Reasons for Decision:	26 September 2011
AUSTRALIAN CAPITAL TERRITORY	)
CIVIL & ADMINISTRATIVE TRIBUNAL	)   Security 5 of 2010

BETWEEN:

DAMIEN WADE
Applicant

AND:

                                                      COMMISSIONER FOR FAIR TRADING 
Respondent

TRIBUNAL:		Ms Linda Crebbin, General President

DATE:		26 September 2011

ORDER

The decision to refuse to issue a security employee licence to the applicant is confirmed. 

………………………………..
Ms Linda Crebbin
General President

REASONS FOR DECISION

1.	On 6 July 2010, the applicant applied to the Commissioner for Fair Trading (the respondent) for a security employee licence so that he can work as a crowd controller. The respondent refused his application on 12 July 2010.  On 13 July 2010, the applicant applied to this Tribunal for a review of that decision. His application was accompanied by a written statement, a copy of his record of criminal convictions and a number of other documents. 

2.	When reviewing a decision, the Tribunal stands in the shoes of the original decision maker and makes the decision that is the correct or preferable decision in the circumstances.  Section 68 of the ACT Civil and Administrative Tribunal Act 2008 provides that the Tribunal may exercise any function of the original decision maker. The decision of the Tribunal is taken to be the decision of the original decision-maker.  

3.	The Tribunal heard the application on 15 September 2010.  The applicant represented himself.  Ms Caroline Spruce, counsel, instructed by the ACT Government Solicitor, appeared for the respondent. At the end of the hearing, the parties filed written submissions. At the time of the hearing, an appeal was pending in another matter relating to the licensing of security agents. The outcome of the appeal was directly relevant to this matter. The Appeal Tribunal made interim findings in November 2010 and delivered its final decision with reasons on 31 January 2011. The matter is reported as Commissioner for Fair Trading and Quinton [2011] ACAT 10 (Quinton’s case). It was appropriate for this tribunal to wait for the finalization of that case before proceeding with this.

Legislative Principles
4.	The respondent is authorised to issue security licences under section 17 of the Security Industry Act 2003 (the Act). Section 13 of the Act sets out various classes of licence that can be issued to an employee. The applicant applied to be licensed to work as a crowd controller under section 13(1)(d) of the Act. This is referred to in these reasons as a class D security employee licence. 

5.	Sections 21 and 24 of the Act detail criteria that must be met before an applicant can be issued with a licence.  Section 21, in so far as it is relevant,  provides that a licence  must not be issued or varied unless the respondent is satisfied that the applicant is:

•	Eligible to hold a licence;
•	Has satisfactorily completed a training course; and
•	Has satisfied any condition prescribed under the regulations. 

6.	The respondent must also be satisfied that it is otherwise in the public interest to licence the applicant.  This requires a positive finding by the Commissioner that licensing an individual is in the public interest. 

7.	The applicant established that he meets the eligibility criteria and that he has satisfactorily completed a training course. The respondent was not satisfied however, that it is in the public interest to license him. 

8.	 Section 23 of the Act gives limited guidance about the factors to be taken into account in determining whether it is in the public interest to license an applicant. There is a mandatory consideration – any relevant criminal history that the applicant has - and a broad discretion to consider any other relevant factor. Section 23 provides:

(1)	In deciding whether it is in the public interest to licence an applicant, the commissioner for fair trading must consider whether the applicant has committed a relevant offence.
(2)	The commissioner for fair trading may consider any other relevant matter to decide whether it is in the public interest to license an applicant.

9.	A relevant offence is defined in the dictionary as an offence against the Act, the Criminal Code, the Crimes Act 1900, the Firearms Act 1996, the Crimes Act 1914 (Cwlth) or a law of the Commonwealth or a State corresponding or substantially corresponding to these Acts.  This encompasses both minor and serious offences against people and in relation to property. 

10.	No specific guidance is given as to how any relevant offences are to be taken into account and what other matters may be relevant for the purposes of section 23 (2) although clearly, offences and other relevant matters are to be considered in the context of the public interest. 

11.	The expression “in the public interest” is found in many statutes. It is an amorphous concept that is given form by reference to the object and purpose of the legislation in which the expression is found. The purpose of the relevant legislation might both indicate the things that should be considered and those that are extraneous to the decision making process. Determining what is in the public interest in a particular case may require the balancing of competing factors and interests. Consideration of the purpose of the relevant legislation can assist the balancing exercise by indicating the comparative importance to be placed on competing interests. 

12.	The Act does not have a specific section setting out its objects. It is titled ‘An Act to provide for the licensing and regulation of people in the security industry.’ In Quinton’s case, the Appeal Tribunal approved observations of members of the court in the matter of Soby v Commercial and Private Agents’ Board (1979) 22 SASR 70 concerning the purpose of regulatory legislation. I accept that generally speaking, such legislation has the purpose of controlling, regulating and supervising the conduct of those engaged in the relevant licensed activity and ensuring that licensees are persons of probity who have the capacity to carry out the relevant work. Capacity to carry out work relates to both personal characteristics of the putative licensee that are relevant to the nature of the work to be performed, as well as their training, knowledge and technical skills. 

13.	I accept the respondent’s submission that  the purpose of the Act is to ensure that:

(i)	people who work in the security industry are licensed appropriately in accordance with the interests of the public;
(ii)	those who are licensed can be trusted to properly carry on security activities such as crowd control, and protecting, watching or guarding people or property;
(iii)	the likelihood of criminal activity within the security industry is diminished; and
(iv)	security, public order and safety are protected.

14.	These purposes set the framework to guide consideration of whether it is in the public interest to licence the applicant. The interests of the applicant or other individuals may be consistent with the public interest but where there is an inconsistency, the public interest must prevail. In Quinton’s case, the Appeal Tribunal rejected a view that the interest of the public should be interpreted to include consideration of a right of an individual to work.
Background
15.	The applicant was born in 1976. He has 58 convictions for offences spanning a period from 1995 to 2010.  The fact that many of the convictions are old and would, in other circumstances, be regarded as “spent” is not relevant for these purposes.  There are 28 ‘relevant offences’ for the purposes of section 23 of the Act as follows: 
•	Stealing (2 charges) (1995), 
•	Malicious Damage (1995), 
•	Possess Prohibited Drug (1995), 
•	Goods in Custody (1995), 
•	Stealing (5 charges) (1997), 
•	Receive Stolen Goods (1997), 
•	Supply Prohibited Drug (1997), 
•	Cultivate Prohibited Plants (1997), 
•	Break, Enter and Steal (1997), 
•	Receiving (3 charges) (1997), 
•	Supply Prohibited Drug (1997), 
•	Carry Cutting Weapon Upon Apprehension (1998), 
•	Remain on Prescribed Premises Without Lawful Excuse (1998), 
•	Enter Prescribed Premises Without Lawful Excuse (1998), 
•	Larceny (1998), 
•	Receive Stolen Property (1998), 
•	Possess Stolen Property (1998), 
•	Drive Whilst Cancelled (July 2000)
•	Drive whilst cancelled (25 May 2001), 
•	Breach a recognizance as a result of above charge (December 2001) and
•	 Possess Drug of Dependence (2007).
          
16.	The applicant has other convictions that are not relevant offences for the purposes of the Act. These mostly relating to driving offences including behaving in an offensive manner in a public place (2003), driving when his licence was cancelled and driving an uninsured and unregistered vehicle (2003), being a special driver with more than the prescribed concentration of alcohol in blood (2007), disobeying a park sign (2008), and driving contrary to the direction of an arrow (2010).  While they are not ‘relevant offences’, they are relevant factors that should be considered in determining public interest. The longest period without a conviction since the applicant became an adult is approximately 4 years. 

17.	The applicant applied for, but was refused, a security licence in 2003, 2004 and December 2009. The application the subject of the decision under review was made in July 2010. The applicant made full disclosure of his previous attempts to obtain a licence and his criminal history. His application was refused. The decision maker noted on the application as the reasons for refusal:
Numerous relevant offences – medical information indicates significant risk of re-offending or inability to meet expectations – cannot consider circumstances behind the offence, he was found guilty
 Evidence of the Applicant
18.	The tribunal was given various documents relating to the criminal offences including police certificates, statements of fact and some pre-sentence reports. There were also a number of medical reports, certificates about courses and training that the applicant has done, receipts to show that he has paid fines and references. The applicant gave oral evidence. He gave evidence in a way that impressed me as indicating that he is sincere and that he was expressing genuinely held beliefs. He was cross-examined assertively by Ms. Spruce, but did not lose his temper or become impatient or respond emotionally. He remained calm and even tempered. Having said that, there were some inconsistencies in his evidence and on one point, his evidence was difficult to accept as credible.
      Criminal Offences
19.	The applicant acknowledged that he “did a lot of bad things”. His evidence was that in 1996 he suffered a significant brain injury as a result of a skateboard accident. The accident affected his ability to know right from wrong. He attributed the offences that occurred after the accident between 1996 and 2001, to the mindset caused by the accident which he described as having knocked out “some of the things that a normal person lives with their life” – morals, respect for the law, dos and don’ts, rights and wrongs, punctuality. He felt that before the accident he did have those things, but that he was “just being a kid”. He described himself as a “19 year old born again as a two year old”, as a result of the accident. 

20.	He said that the accident significantly affected his memory. He does not remember a lot about his childhood. He acknowledged that he had been convicted of offences before the accident but believes that his offending was worse after the accident. He acknowledged that the offences were serious and that his offending behaviour could have hurt people and damaged the community. 

21.	As a result of his breach of a recognizance the applicant served a 4 month prison sentence commencing in December 2001, moving from Goulburn Gaol to Junee and then, Mannus Correctional Centres.  In the time that he was imprisoned, he said that he started to re-learn values and on his release, was determined to change his lifestyle, to work and learn and to take responsibility for his actions. 

22.	In May 2003 he was convicted of behaving in an offensive manner in a public place. His evidence was that he had urinated in an alley just off a main street. He was very inebriated. It was about 9.30pm and he thought that no one could see him. He did not purposely offend anyone. 

23.	A short time later he was again convicted of driving offences. He said that this was a mistake and that he had not been the person driving the car, he was interstate at the time. 

24.	In January 2007 he was charged with a drink driving offence. He was a special driver at the time – his blood alcohol reading was .088. He was taken to the City Watch House. He handed over his wallet. A small clip seal bag with .053 grams of what was later identified as a mix of methylamphetamine and pseudoephedrine was found in the wallet.  He was charged with possessing a drug of dependence. He was convicted in August 2007 after pleading guilty on both charges. The applicant said that he had no idea that drugs were in his wallet. He urged me to accept that this was so because it was unlikely that anyone would have voluntarily handed over a wallet to police if they knew there were drugs in it. 

25.	The applicant believed that the drugs were placed in his wallet in about 2004 by a person he was working with at that time. He said that the person was a work supervisor who offered him drugs to help keeping him going during a busy work period. He said that he declined the offer but that unbeknownst to him, the person had put the bag in his wallet anyway. He knew this is what had happened because the person admitted it to him. The respondent did not apparently volunteer this information to the police. He told the tribunal that the drugs were in his wallet without his knowledge since 2004. It is difficult to accept that even the smallest of clip seal bags containing the smallest amount of powder could go undetected in a person’s wallet for three years. 

26.	The applicant said that he pleaded guilty because he was required to do so for the purposes of his grant of legal aid. He had initially entered a plea of not guilty. He understood that it was a possession charge and he accepted that the drugs were in his possession, even though he did not know it. He denied that he was using drugs and said that he had not used drugs for a long time. In support of that, he said that he took part in natural body building competitions from 2004 to 2008 (although a written statement gave the dates as 2001 to 2007). Competitors were required to take drug tests at about the same time each year to confirm that they had not been using drugs. He was tested two or three times in that period without incident. 

27.	In relation to each of the 2007 charges, he was sentenced to a term of imprisonment but immediately released on entering into a 2 year good behavior bond. He was ordered to perform 200 hours of community service within 12 months and he was disqualified from holding a driver’s licence for 12 months. 
28.	Since 2007 the applicant has been charged twice – there was a parking offence arising from an unpaid parking infringement notice in July 2008 and a driving offence that incurred a fine in June 2010.

29.	The applicant gave evidence that was unchallenged to the effect that he had paid all fines and had performed community service as required. 
The medical reports
30.	 The tribunal had copies of MRI head scan and CT brain scan reports, and letters between doctors evidencing the extent of the applicant’s head injury. There is no doubt that it was serious. 

31.	After the hearing commenced, the applicant provided a copy of a neuropsychology report prepared by Ms. T. Lioulios in January 1998, just over 12 months after his accident (the Lioulios report). The report indicated that the applicant had been referred for assessment “to ascertain the extent to which organic impairment is affecting his behavior and in particular, to look at the possibility of his recent behavioural disturbance being due to organic impairment”. The assessment is described in the report as including testing as well as a consideration of information provided by Mr. Wade and his mother. His mother was reported as having said that his anti-social behavioural tendencies had only emerged after his head injury. The reporter appeared to be unaware of the pre-accident offences. The report concluded with an opinion that the applicant’s cognitive functioning had generally returned to the pre-accident estimated levels of functioning. As to psychological functioning, the reporter concluded:
… the psychological profile obtained from a detailed psychological inventory indicated mildly elevated levels of depression and anxiety, mild to moderate levels of hostility and antisocial responses, and moderate increases in restlessness and social irresponsibility. These behavioural tendencies appear to be related to the effects of the head injury in 1996. 

32.	When he lodged his application for review of the decision, the applicant included a number of documents including a Pre-Sentence Report prepared in September 1998 by a probation and parole office from Batemans Bay. The Pre-sentence report makes no reference to the Lioulios report. It does however contain an excerpt from a neuropsychological report prepared by a Mr. D. West (the West report). From the context of the reference, the West report appears to have been prepared before mid -1997. After describing the nature of the injury to the brain, the excerpt from the West report says:
There are no assurances that Mr. Wade will regain full function of that area of his brain. It would appear that the damage is permanent and he has lost certain functions, in particular his short term memory, comprehension and general rules of behavior.

33.	The author of the pre-sentence report, unaware of the existence of the Lioulios report, says:
It seems that Mr. Wade has not had any further testing or cat scans since that time, and it is assumed that his medical condition is unchanged.
 In summary, the author concludes:
Mr. Wade is a young man who appears to have diminished ability to take full responsibility for his actions. It is difficult to ascertain whether Mr. Wade is dishonest and has become adept as weaving accounts of himself to portray himself as disadvantaged or whether his brain injury is such that he genuinely has no perception as to the consequences of his behavior. 

34.	The applicant relied on a letter from Dr. S. Saflekas dated 5 August 2010. Dr. Saflekas is a Senior Clinical Neuropsychologist and at the time of his report was the Executive Officer of the National Brain Injury Foundation. The letter said:
Thorough examination of past neurological and clinical neuropsychological reports, together with my own clinical assessment reveal that Mr. Wade…has made substantial improvement in his cognitive functioning. This is observed in the above average scores obtained during my…assessment [and] reflected with his extensive post-secondary education and relatively important work history. Mr. Wade comments that he is remorseful of his past criminal history and attributes this to his head injury and the cognitive and personality issues that resulted from this injury. 
Present clinical and personality assessment, combined with a comprehensive discussion indicate that Mr. Wade’s brain injury… is no longer a factor prohibiting him from undertaking both personal and professional employment.
It is my own professional opinion that Mr. Wade has made substantial gains …and this will not prohibit him from undertaking the roles and duties of a licensed security guard. 

35.	Dr. Saflekas gave oral evidence. He said that the applicant had provided him with a range of documents including the Lioulios report and the Pre-sentence report containing the excerpt from the West report. He met with the applicant three times and undertook an assessment over the course of 4 hours. He said that the document described above, was a letter of support rather than a neuropsychological report because he had not undertaken a complete assessment. However, he said that as a result of a discussion he had had, he was no longer confident of his conclusions and wished to withdraw the letter of support. He indicated that at the time he prepared the letter, he was only aware of offences referred to in the 1998 pre-sentence report. Mr. Wade had not told him about other offences, particularly those since 1998. 

36.	Dr. Saflekas agreed that Mr. Wade had showed remorsefulness about his history, and had expressed sadness about the loss of his employment. He felt that Mr. Wade had been sincere, but said that he should have had a more thorough history before expressing his professional opinion. 

37.	Mr. Wade explained that he had not given Dr. Saflekas the full details of his criminal history because he understood as a result of discussions in a directions hearing, that he should obtain a current opinion about the impact of his head injury – he did not realise, he said, that his full criminal history would be relevant. 

38.	In light of Dr. Saflekas’ oral evidence, the opinion expressed in his letter of support is of little value. 
Training and Employment History 
39.	The applicant relied on his efforts to seek out training, his employment history and references, to establish his maturity and responsibility. In a statement submitted with his application, the applicant said that his “wake up call to reality” came in late 2003 when he met his fiancé. They have two children. They have worked hard with the result that they now own two houses and several vehicles. 
40.	In addition to the training required for a security licence, since 2003 he has undertaken training to be a personal trainer, training in management, counselling, responsible service of alcohol and a course in anger management and conflict resolution. 

41.	The applicant said that he was employed at the University of Canberra bar from 2000 to 2004 although a reference dated in 2004 that was attached to his application referred to him having been employed only since October 2003. 

42.	From 2004 to 2008 he worked full time with Mission Australia as a Youth Worker/Counsellor in a personal support program. His previous experiences particularly suited him to this work. His employment ended because the funding for the program was withdrawn. 

43.	He worked for a brief period of about two months with the YWCA in 2009 (although his statement refers to the period of employment being from 2008-2009).  That employment stopped during the probation period when the organization obtained his criminal record report from the police. He had not disclosed his record. He worked with the Salvation Army Employment Plus program, assisting people to obtain employment, for what seems to have been about 12 months. He applied for and obtained a job in mid 2010 with Vision Australia but was unable to take up the position because of his criminal record. He was “knocked back” from another work opportunity for the same reason. 

44.	He provided a reference from the managing director of a bar in the city area. The reference was dated 3 June 2010 and indicated that at that time, the applicant was working as a bartender at the business. The referee indicated that he was happy to employ the applicant as a security guard once he completed his training course. The letter did not indicate that the referee was aware of the applicant’s criminal history. At the hearing the applicant indicated that that work was no longer available to him. The writer of the letter was not available to give evidence for him. 

45.	He said that the only employment that he was able to obtain currently was with his prospective employer, Up2 Security Pty Ltd. He described his work as predominantly involving assisting with cleaning and handyman work at a site as which that company provides services. 

46.	The applicant also provided a personal reference from a person who spoke well of his character as a family man and as a gregarious and warm person. 
Prospective Employment
47.	Ms. Peta- Lee Henare, a director of Up2 Security Pty Ltd and the applicant’s current and prospective employer, gave evidence by telephone. She impressed as a truthful witness who was genuine in her support for the applicant. The applicant submitted a letter written by Ms. Henare confirming that her company would employ him as a guard/crowd controller if he was issued with a licence. In her oral evidence, she said that she had written the letter only a week or so after employing the applicant on a casual basis. Before she wrote the letter, the applicant had given her a copy of his criminal record. They had gone through it together.  She had come to know about the applicant through a friend who runs a security training course. She said that she was willing to employ the applicant because of his character and his truthfulness. She believed from her discussions with him that he had taken full responsibility for his previous actions. She saw him as having the potential to be a supervisor of others, because of his character. At the time she gave evidence, the applicant had been working for Ms. Henare only for about two months. 
The Respondent’s Submissions
48.	In summary, the respondent submitted that: 
(i)	on the face of it, it would always be contrary to the public interest to licence a person with an extensive criminal history to work in the security industry; and
(ii)	the applicant had not put any evidence before the tribunal to show why it is in the public interest for him to be so licensed in those circumstances.
49.	The respondent submitted that despite his expressions of remorse, the applicant repeatedly attempted to avoid responsibility for his criminal offences. He had both in his written statement and in his oral evidence said that he was not, in fact, guilty of some of the earlier offences of which he had been convicted. 

50.	In relation to the first 2003 conviction, he denied that he had offended anyone; in relation to the second 2003 conviction, he denied that he was the driver to whom the charge related. In relation to the 2007 drug charge, he denied that he was aware that the drug was in his possession and said that someone else had placed the drug in his wallet without his knowledge. He said that he pleaded guilty to the charge because he was required to do so by the Legal Aid office. 

51.	He attributed the bulk of the criminal charges from the period of 1996 to 2001 to the impact of his accident. The respondent submitted that this was inconsistent with the objective evidence which showed a number of charges of a similar nature relating to incidents that occurred before the accident. It is also inconsistent with the Lioulios report. The only evidence of a causal connection between the head injury and the offending behavior identified by the reporter were the statements of the applicant’s mother. The author of the 1998 pre-sentence report, who was not apparently provided with a copy of the Lioulios report, queried the extent to which the applicant had become adept at portraying himself as being disadvantaged by circumstances. 

52.	It was submitted that the applicant had given his evidence in an evasive way and that he had demonstrated a lack of candour and that the tribunal should find that he had deliberately and significantly exaggerated the consequences of the 1996 accident so as to avoid responsibility for his criminal conduct. 

53.	Further, the respondent submitted that the applicant had tried to avoid responsibility by saying in his statement that he had been manipulated by other people. 

54.	The length of the applicant’s criminal record was said to demonstrate a consistent pattern of behavior of failing to respect and obey the law. The nature of the convictions was said to demonstrate negative character traits such as dishonesty, lack of control and a disregard for the law and authority figures. These are all contrary to the qualities and attributes that a security guard requires. 

55.	The respondent’s submission concluded:
Although the applicant has taken some steps to try and change his behavior, the last conviction recorded against the applicant was only in 2007. A good behavior order expired in August 2009. Not enough time has elapsed to be satisfied that the applicant’s criminal conduct will not be repeated and that he has learnt from previous mistakes. The Tribunal could not, on the evidence before it, be satisfied that at this time it is in the public interest for the applicant to be licensed. 
The Applicant’s submissions
56.	In his written submissions, the applicant re-iterated his remorse for his past actions. He said that his past criminal history had caused pain and distress to others and impacted on his immediate family because he was unable to find higher paid employment.

57.	Since 2003, he had worked hard and consistently to be a positive member of the community. He described his work with Mission Australia and other work assisting people to address barriers to social participation as part of his commitment to repay the community for his earlier mistakes and to assist others to change their lives, as well as working to change his own, in a positive way. His education and employment goals had been to help others. 

58.	He said that he is not an aggressive person, and pointed out that his various convictions did not involve assault or aggression towards police or others. 

59.	If he received a licence, he could better support his family. The work would assist him to pay off the second house. He said “I believe that if I was to be granted a security licence that I would carry out my responsibilities in this industry with utmost diligence, professionalism and care to the public”. 
Conclusion
60.	 The applicant’s submissions did not directly address the matters raised by the respondent or indicate the evidence he relied on to demonstrate that it is in the public interest for him to be licensed as a security guard.  He stressed his remorse for past behavior, his efforts to lead a changed life serving the community and his desire to support his family. The Tribunal has no material before it to doubt the applicant’s intentions and desire.  

61.	The positive steps he has taken in his life such as setting up a family and home, his studies and his determination to be employed in a way that will support his family as well as benefit the broader community are acknowledged and should be applauded.  Ms. Henare’s support of his application and for him, given the short period she had known him, was impressive. 

62.	I am not prepared to find that the applicant was evasive or that his evidence was untruthful. As I said, he gave his evidence in what I thought was a sincere and genuine manner. 

63.	While it is in the public interest generally for people to be employed and to be productive members of society, I need to be satisfied that it is in the public interest that this applicant be licensed to be employed as a security agent. The applicant’s submissions predominantly address his private interests in employment, rather than the public interest in his employment as a security guard. 

64.	People can of course, change. A prior history of offending behavior should not inevitably lead to the conclusion that a person cannot ever be trusted to uphold the law. However, the fact that there has been positive change in a person’s life is not by itself, sufficient to establish a public interest in licensing someone to work in the security industry when they have an extensive prior criminal history. 

65.	While I do not find that the applicant was lacking in candour, his presentation of his case was such that he appeared to lack insight into the significance of his history and in particular, the convictions that have occurred since 2001. I accept that he is remorseful, but I am not satisfied that he accepts full responsibility for the offences, as he says he does. He had an explanation for the public order offence in 2003 and for the charge of driving an unregistered and uninsured vehicle. He had an explanation for the drug charge in 2007 which was difficult to accept. 

66.	He was dismissive of the charges prior to the 1996 accident and relied heavily on the accident to explain the considerable number of offences from 1996 to 2001. The evidence did not, as the respondent submitted, completely justify his reliance on the accident as an explanation for the extent and frequency of the charges. 

67.	I was left with the impression that the applicant lacked insight into the significance of the objective evidence and the significance that the existence of so many convictions would have for others who would need to rely on him to discharge the duties of a security agent appropriately. Police, prosecutors and courts, as well as people with whom security agents work and members of the public who rely on security agents to secure their safety, must be able to trust them to discharge the role of a security guard appropriately and to be able to be effective in that role.

68.	Crowd controllers have to be trusted to avoid provocation and deal with disturbances in a calm and temperate manner. I am satisfied that it is likely that the applicant would do so. As he said, he does not have a history of violence or aggressive. 

69.	Crowd controllers must also be able to deal appropriately with the offending behaviour of others and avoid such behaviour themselves. They must be able to be called on to give evidence against others when necessary and be accepted by those involved in the administration of justice, as credible witnesses. They must be able to deal with the offending behavior of others with authority. An apprehension that there is a lack of credibility, or an on-going connection with criminal activity, or a lack of appreciation of the seriousness of offending behavior, can undermine the effectiveness of their work and hence, their ability to discharge their duties.  

70.	In this case, I am satisfied that if the applicant were licensed, the fact of his extensive criminal history would undermine his credibility, undermine his authority, undermine confidence in his reliability and undermine confidence in his ability to appreciate the seriousness of the offending behaviour of others. It is not in the public interest to issue him with a licence in those circumstances. 

71.	 The frequency and extent of the offending behaviour is such that several years would need to pass without a conviction, before an application to issue a licence could meet the criteria set in the legislative framework. While I do not wish to be seen as binding any subsequent decision maker, a period of 10 years would in my view, be a reasonable period for the applicant to be able to demonstrate a public interest in his licensing as an employee security agent. 

72.	The decision of the respondent is confirmed. 

………………………………..
Ms Linda Crebbin
General President

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Tribunal Staff

PART A							FILE NO:	

APPLICANT:		
RESPONDENT:		

COUNSEL APPEARING:	APPLICANT:	
RESPONDENT:	

SOLICITORS:			APPLICANT:	 
RESPONDENT:	

OTHER:				APPLICANT:	
RESPONDENT:	

TRIBUNAL MEMBER/S:	

DATE/S OF HEARING:				PLACE: CANBERRA

DATE/S OF DECISION:				PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )	CASE NOTE ( )	UNREPORTED DECISION ( )

COMMENTS: