Watson and Commissioner Of Police

[2008] WASAT 133

WATSON and COMMISSIONER OF POLICE [2008] WASAT 133

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 133
Act:	SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
Case No:	VR:52/2008	Heard:	14 MAY 2008
Coram:	MS J HAWKINS (MEMBER)	Delivered:	21/05/08
No of pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	TREVOR KEITH WATSON COMMISSIONER OF POLICE
Catchwords:	Review of decision to refuse renewal of security officer's and crowd controller's licences ­ Refusal based only on extensive traffic convictions ­ Discussion as to whether such information alone sufficient to revoke such licences
Legislation:	Security and Related Activities Control Act 1996 (WA), s 52(c), s 72(1) State Administrative Tribunal Act 2004 (WA), s 27, s 32
Case References:	Australian Broadcasting Tribunal v Bond (1990) 94 ALR Chan and Nurses Board of WA [2005] WASAT 115 Sobey v Commercial and Private Agents Board (1979) 22 SAR 70 Tavelli v Johnson (unreported; SCrt of WA (Full Court); Library No 975 970426A; 16 August 1997) The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (unreported, Full Court of the SCrt of WA)
Orders	The application is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : WATSON and COMMISSIONER OF POLICE [2008] WASAT 133 MEMBER : MS J HAWKINS (MEMBER) HEARD : 14 MAY 2008 DELIVERED : 21 MAY 2008 FILE NO/S : VR 52 of 2008 BETWEEN : TREVOR KEITH WATSON

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Review of decision to refuse renewal of security officer's and crowd controller's licences ­ Refusal based only on extensive traffic convictions ­ Discussion as to whether such information alone sufficient to revoke such licences

Legislation:

Security and Related Activities Control Act 1996 (WA), s 52(c), s 72(1)

State Administrative Tribunal Act 2004 (WA), s 27, s 32

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : Self-represented
Respondent : Sgt S Bagley (Acting as Agent)

Solicitors:

Applicant : Self-represented
Respondent : N/A

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 94 ALR
Chan and Nurses Board of WA [2005] WASAT 115
Sobey v Commercial and Private Agents Board (1979) 22 SAR 70
Tavelli v Johnson (unreported; SCrt of WA (Full Court); Library No 975 970426A; 16 August 1997)
The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (unreported, Full Court of the SCrt of WA)


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr Watson applied to the Tribunal to have the decision refusing renewal of his security officer's and crowd controller's licences reviewed. The decision to refuse renewal was based on Mr Watson's extensive criminal record, which largely consisted of traffic convictions.

2 The Tribunal considered that the type of offences incurred by Mr Watson, albeit for traffic offences, were of a serious nature. Many of those offences occurred in the last 12 months, and at the time of hearing the matter, Mr Watson was still serving a suspended imprisonment order.

3 On the basis of Mr Watson's criminal record, the Tribunal considered it reflected an ongoing disregard for the law, which adversely affected Mr Watson's character. In addition, the Tribunal did not consider there were any other factors that assisted in establishing at the time of hearing that Mr Watson was of good character and a fit and proper person pursuant to s 52(c) of the Security and Related Activities Control Act 1996 (WA). Accordingly, the application for review was dismissed.

Background

4 This is an application under s 72(1) of the Security and Related Activities Control Act 1996 (WA) (SRAC Act) by Mr Watson for a review of the decision of the Commissioner of Police (Police) to refuse to renew his security officer's licence and crowd controller's licence. The decision to refuse his licences was the subject of a letter from the Police dated 25 February 2008, in which the grounds were stated as being for incurring 11 traffic convictions in the last 12 months and Mr Watson's general disregard for the law.

5 The matter comes within the Tribunal's review jurisdiction under s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal therefore may not issue the licences unless it is satisfied that Mr Watson is of good character and that he is a fit and proper person to hold such licences pursuant to s 52(c) of the SRAC Act.

Evidence and submissions of the Police

6 In evidence, the Police have set out their objections as to the issue of the licence in the statement of Ms Coulthard dated 18 March 2008. That statement attaches Mr Watson's criminal record. The record is lengthy and includes up to 30 convictions since 1978. Those convictions include serious convictions, including dangerous driving causing bodily harm and several convictions for assault.

(Page 4)

7 Most of Mr Watson's convictions, however, are for traffic offences. Prior to 5 January 2007, Mr Watson had incurred 14 traffic convictions. Subsequent to January 2007, Mr Watson has incurred a further 11 traffic convictions. It is largely in relation to those recent convictions that the licensing officer relied to refuse the renewal of Mr Watson's licences.

8 The offences referred to have included driving in excess of .05, driving contrary to the conditions of an extraordinary motor driver's licence, exceeding the speed limit and many convictions for driving whilst under suspension.

9 The final such conviction resulted in Mr Watson receiving a suspended imprisonment order, which he is still presently serving. The statement of material facts for each of those recent offences has been provided, but I do not intend to refer to them.

10 The Police allege that Mr Watson's record also reveals that he has been the subject of several orders of the court cancelling his motor driver's licence for life, which, from time to time, have been varied. However, due to ongoing transgressions, he continues to be the subject of orders of cancellation of his motor driver's licence for life.

11 The Police maintain, therefore, that due to the string of traffic convictions incurred by Mr Watson in the past 12 months and also prior to that time, he demonstrates an ongoing disregard for the law. As such, the Police case maintains that this adversely reflects on the character of Mr Watson and that he is no longer able to demonstrate that is a fit and proper person and of good character to warrant retaining his security officer's and crowd controller's licence.

Evidence and submissions of Mr Watson

12 In Mr Watson's application, he seeks the reversal of the licensing officer's decision and maintains that his driving record was poor when he was first granted his licences. He appeared before the Tribunal, and, in summary, gave the following evidence.

13 Mr Watson referred to his traffic record and admitted the convictions provided by the Police. In respect to the recent offences in the past 12 months, he indicated that this was a time of personal distress, due to a relationship break up and his concern that he was under scrutiny by the Police. He also pointed to the fact that he had a clear record

(Page 5)

from 2001 to 2006. He explained that, when his motor driver's licence was cancelled for life in 2006 for an offence of driving whilst above .05, this occurred when he had a lapse of concentration and accepted one glass of wine from a friend.

14 As to his work as a licensee under the SRAC Act, Mr Watson maintains that he has always taken pride in his work and sought to ensure that he taught any of his prior employees not to use violence in their work. He did state that many of the convictions in the last year for driving without a licence or under a Court order suspension occurred because he felt he needed to attend jobs when his employees did not turn up for work. He also indicated that, in respect to most of the offences in the last 12 months, he failed to attend his court appearances in relation to those charges.

15 Mr Watson explained that, although his record revealed offences, many of these occurred when he was young. He says that he turned over a new leaf later in life and obtained his licences under the SRAC Act and, until recently, has been operating a security business for a significant period of time. He said that he did his best in that business to ensure that it did not fall into the hands of those he did not consider appropriate to operate under the SRAC Act.

16 Mr Watson also indicated to the Tribunal that he is very concerned as to his future if he were not able to continue in the security industry. He is in his late 40s and does not consider he will find it easy to find alternative work.

17 In addition, Mr Watson relied on evidence from a close friend, Mr Tapiata. Mr Tapiata provided a supportive character reference for Mr Watson. He was also asked to give oral evidence at the last minute by Mr Watson, and the Tribunal afforded Mr Watson this opportunity and allowed Mr Tapiata to give his evidence by phone.

18 Mr Tapiata runs his own security business and has known Mr Watson for a considerable period as a colleague in the same industry. He had been not been aware that Mr Watson had lengthy traffic convictions. He told the Tribunal that he thought Mr Watson's lack of his motor driver's licence related to drunk driving. On cross-examination, he was told that Mr Watson's motor driver's licence was cancelled for life and that he was currently serving a suspended imprisonment order, Mr Tapiata maintained it would not affect his willingness to employ Mr Watson, and made it clear

(Page 6)

that he thought there were not enough people in the security industry at present who had the depth of experience that Mr Watson could offer his firm.

Consideration

19 I must consider whether, in light of the written and oral evidence provided to the Tribunal, Mr Watson should retain his crowd controller's and security officer's licences. The Tribunal's consideration of the application is not confined to the matters that were before the licensing officer when the decision was made not to renew his licences: see s 27 of the SAT Act.

20 The review is conducted by way of a hearing de novo, and the Tribunal acts, therefore, as a licensing officer under the SRAC Act. The purpose of the review is therefore for the Tribunal, as the licensing officer, to produce the correct and preferable decision: see s 27(2) of the SAT Act.

21 The Tribunal is not limited in its review to the reasons for decision of the licensing officer. However, in the same way that the applicant had to satisfy the licensing officer that he fulfilled the requirements of the SRAC Act to have his application for crowd controller's and security officer's licences approved, he now has to satisfy the Tribunal in his application for renewal.

22 The Tribunal is not bound by the rules of evidence (see 32(2) of the SAT Act) and may inform itself on any matters it sees fit (see s 32(4) of the SAT Act).

23 The SRAC Act sets out limitations on the discretionary power of the licensing officer to issue the licences. It provides that the licence may not be issued unless the licensing officer is satisfied that the applicant is of good character and is a fit and proper person to hold a licence. The SRAC Act does not define what is meant by "fit and proper" or "of good character". When assessing whether a person is fit and proper and of good character, this Tribunal may take into account all relevant evidence, including a person's prior criminal convictions.

24 The relevance of prior criminal convictions was discussed in the matter of Tavelli v Johnson (unreported; SCrt of WA (Full Court); Library No 975 970426A; 16 August 1997) (Tavelli), a decision of the Supreme Court delivered on 25 November 1996. In that case, Wheeler J had to deal with the relevance of prior convictions in deciding whether or not a person was fit and proper to be licensed as a security agent under the SRAC Act.

(Page 7)

25 It was made clear in that case that there are no inflexible rules in these matters and that the discretion must be decided anew in the circumstances of each application and in light of the statutory framework.

26 Wheeler J, however, did suggest some factors that can be taken into account when dealing with applications of this kind and prior convictions. She indicated that convictions will generally be regarded as more serious in a statutory context if they occur in the course, or relate to the carrying out, of the proposed licensed occupation or if they are offences of dishonesty, if they occur whilst the person is the holder of the licence or if they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect adversely on the character of the person committing them.

27 Wheeler J went on to indicate that a person may still be of good character and a fit and proper person notwithstanding prior convictions, and this can be ascertained by regard to the following factors:

• where the person convicted shows genuine remorse and contrition, and true insight and understanding of their earlier conduct (this understanding generally carries more weight, however, if it can be demonstrated via a person's actions as well as their words);

• if the offences occurred a substantial time ago;

• if there are any changed circumstances that indicate that factors giving rise to the offences have been eliminated; and

• a person's character generally since the commission of the offences, including lack of offending, their age, family support, unpaid voluntary work and character references (it should be noted, however, that character references are of more value if made with the full knowledge of the commission of the offences).

28 Mr Watson indicates in his application that when he was first issued with his licences, he had many traffic convictions, and therefore he should be entitled to have his licence renewed. This, however, in the Tribunal's view, is an irrelevant consideration. It is not relevant to point to what the licensing officer did in the past. I must make this
(Page 8)

decision afresh on the basis of the information before me at present. Therefore, I must be satisfied on the information before me that Mr Watson is of good character and a fit and proper person to warrant his licences being renewed.

29 The case against Mr Watson is that his extensive criminal record for traffic convictions is such to adversely affect his character, and that he can no longer therefore satisfy the requirements of s 52(c) of the SRAC Act. It should be remembered, however, that the Police did not offer any direct evidence of misconduct by Mr Watson carried out directly in the course of his employment as a licensee. Rather, the Police asked me to find that, based largely on his traffic record alone, he is no longer a fit and proper person or of good character, as his traffic record reflects an ongoing disregard for the law which adversely affects his character.

30 This case is not straightforward, as it raises the issue of the relationship between the convictions relied upon and the assessment of whether Mr Watson is a fit and proper person and of good character. This was an issue discussed by Barker J in the decision of Chan and Nurses Board of WA [2005] WASAT 115, where he stated:

"As a result some relevant relationship between the conduct complained of on the one hand and the decision to deregister or refuse to register a person under a vocational act on the other hand needs be shown before a lack of fitness relevant to registration can be found. The Act does not define the meaning of the term 'fit and proper' or 'of good character'."

31 These terms have been the subject of decisions, however, in other jurisdictions. In the High Court decision of Australian Broadcasting Tribunal v Bond (1990) 94 ALR at page 11, Toohey and Gaudron JJ stated as follows:

"The expression 'fit and proper person' standing alone carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of fit and proper cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur or whether the general community will have confidence that it will not

(Page 9)

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."

32 Further, in the matter of Sobey v Commercial and Private Agents Board (1979) 22 SAR 70, Walter J said in respect to "fit and proper" as follows:

"In my opinion what is meant by the expression 'fit and proper' is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public as a person to be entrusted with the sort of work that the licence entails."

33 There are additional issues to consider with the assessment of "fit and proper", and whether a person is of good character involves prior convictions, as previously stated in the matter of Tavelli. I should say at this point that this has been a difficult decision to arrive at, due to the Police relying only on Mr Watson's convictions, which consist primarily of traffic convictions.

34 However, this is not a case where Mr Watson has but a mere few traffic convictions. Rather, there are over 20 such convictions, with 11 occurring in the last 12 months.

35 Mr Watson has attracted some of the highest penalties in respect to those offences. In the past, he has been convicted of offences for driving whilst under the influence, driving in excess of .08%, driving in excess of .05%, dangerous driving causing grievous bodily harm, and dangerous driving.

36 As a result of his convictions, in 1994, Mr Watson's motor driver's licence was cancelled for life. That disqualification was removed in 1994, but by 1996, Mr Watson's record reveals that he had his motor driver's licence cancelled for life again. Since that time, although he has been granted extraordinary motor driver's licences, these, too, have been cancelled for ongoing offending.

(Page 10)

37 In the last year, he has incurred 11 convictions, five of which were for driving whilst under suspension, driving an unlicensed vehicle and two convictions for driving contrary to the conditions of an extraordinary driver's licence. Despite receiving ongoing disqualifications and increasing penalties, Mr Watson continued to incur further traffic offences, which has led him to incurring one of the highest penalties available - a suspended imprisonment order - which he is currently serving.

38 These recent offences have all occurred whilst Mr Watson was licensed as a security officer and crowd controller under the SRAC Act. Further, some of the more recent offences occurred when his employees did not turn up for work and he felt he had to honour the commitment to his client. There is to some extent, therefore, an indirect relationship between the prior convictions and his duties as a licensee under the SRAC Act.

39 In addition, for many of the recent offences, Mr Watson has not appeared before the Court to explain his actions or to hear the penalties imposed upon him. The Tribunal considers, therefore, that Mr Watson's criminal record, although largely for traffic convictions, represents conduct of a serious nature which occurred whilst Mr Watson was licensed and in some instances whilst he was carrying out his duty.

40 As stated in the matter of Tavelli, this conduct is therefore of a serious nature, as it reflects an ongoing and consistent disregard for the law. The offences do not directly relate to the duties to be performed by a crowd controller or a security officer, such as violent behaviour, dishonesty or drug abuse. However, the Tribunal considers that there is an expectation that such licensees will carry out their duties with all due regard for the law. Such licensees are in close contact with the public, and in many instances are required to assist in ensuring the laws of this State are not disobeyed by the public and patrons that visit premises where crowd controllers and security officers are on duty.

41 The Tribunal accepts that there is no direct evidence of direct misconduct by Mr Watson per se in carrying out his duties as a security officer or crowd controller, such as the use of violence whilst on duty. However, his prior convictions, in the Tribunal's view, represent a consistent and ongoing disregard for the law, which adversely affect the assessment of his character for the purposes of the SRAC Act.

(Page 11)

42 Further, there is not sufficient information to show that Mr Watson has any remorse or true insight in respect of the offences, or that there are any changed circumstances which reveal that the factors that led to the offending have been eliminated. Although Mr Watson indicates that he does not want to go to gaol, which to some extent reveals insight, he has not backed up his words by providing to the Tribunal any steps that he has taken to show that he has changed his offending pattern. The fact that he has not offended since his last conviction carries little weight, as he is currently serving a suspended imprisonment order.

43 As to the evidence from Mr Tapiata, it became apparent during the hearing that the written reference given by Mr Tapiata had not been made with the full knowledge of the extent of Mr Watson's prior convictions. As such, therefore, his written character reference is of little weight, as expressed in the matter of Tavelli. Although Mr Tapiata maintained that he would still employ Mr Watson, despite the extent of his traffic record, the Tribunal is not convinced, on balance, that such evidence is sufficient in the Tribunal's view to outweigh the other evidence that falls against Mr Watson and referred to previously.

44 Mr Watson has made clear that he will suffer great difficulty in finding alternative work if his licences are not renewed. Although the Tribunal is sympathetic to the position in which Mr Watson finds himself, such a consideration, however, is irrelevant. In the matter of The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (unreported, Full Court of the SCrt of WA), Kennedy J stated as follows:

"The fact that the respondent will be prevented from earning an income in the calling which he knows is also irrelevant if he is unable to attain the personal standards which the Act requires."

Conclusion

45 As previously stated, this has been a difficult decision to arrive at. However, on the basis of the information available, I am not satisfied that Mr Watson can presently demonstrate that he is a person of good character and fit and proper to warrant having his security officer's and crowd controller's licences renewed.

46 However, in time and with a further period of non-offending and any information that assists the assessment of his character, Mr Watson may be in a better position to fulfil the requirements of the SRAC Act. At present, however, for the reasons that I have expressed, I must dismiss the application.

(Page 12)

Order

47 The Tribunal makes the following order:

1. The application is dismissed.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS J HAWKINS, MEMBER