Dumelow v Chief Executive, Department of Justice and Attorney-General [2024] QCAT 89

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dumelow v Chief Executive, Department of Justice and Attorney-General [2024] QCAT 89 PARTIES: PHILIP FRANK DUMELOW (applicant) v CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: OCR105-22 MATTER TYPE: Occupational regulation matters DELIVERED ON: 16 February 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: The name of the respondent on record is corrected to ‘Chief Executive, Department of Justice and Attorney-General’. The decision to cancel the applicant’s Crowd Control, Security Officer (Unarmed), Security Officer (Monitoring) licence effective from 13 April 2022 is confirmed. CATCHWORDS: PROFESSIONS AND TRADES – OTHER PROFESSIONS, TRADES OR CALLINGS – COMMERCIAL, SECURITY AND INVESTIGATION AGENTS – security providers – where the applicant seeks review of the respondent’s decision to cancel his crowd control and security officer licence – where the applicant was involved in a physical incident with a patron outside a venue – where the applicant engaged in work as a security provider after his licence was cancelled – whether the applicant is no longer an appropriate person to hold the licence – whether the Tribunal can consider an incident that occurred after the licence was cancelled Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2) Security Providers Act 1993 (Qld), s 11(4), s 21, s 22, s 26 Security Providers (Crowd Controller Code of Practice) Regulation 2008 (Qld), Schedule -- 1 of 10 -- 2 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Background and legislation [1] On 11 May 2022, the applicant filed an application to review a decision of the respondent made on 13 April 2022 cancelling the applicant’s Crowd Control, Security Officer (unarmed), Security Officer (Monitoring) licence effective from that date. Review by the Tribunal is made available by s 26(2)(c) of the Security Providers Act 1993 (Qld) (‘the Act’). By s 26(3) of the Act, the application must be made as provided under the QCAT Act. By s 20(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the review of the decision is ‘by way of a fresh hearing on the merits’. [2] The decision was made pursuant to s 22 of the Act, on the ground that the applicant was not an appropriate person to hold the licence. Section 21(1)(g) provides: Each of the following is a ground for the suspension or cancellation of a licence or the refusal to renew a licence— … (g) the licensee, or another person required to be an appropriate person for the grant of the licence, is not, or is no longer, an appropriate person. [3] Section 21(4) of the Act provides: The question whether a person is, or continues to be, an appropriate person is decided in the same way as the question whether the person would be an appropriate person for the grant of the licence. [4] Section 11 of the Act is headed ‘Entitlement to licences – individuals’ and provides in part: (3) In deciding whether a person is an appropriate person to hold a licence, the chief executive— (a) may only consider the matters mentioned in subsections (4) and (5); and (b) may not have regard to criminal intelligence given to the chief executive by the Commissioner under section 48. (4) In deciding whether a person is an appropriate person to hold a licence, the chief executive must consider the following matters as indicating that the person may not be an appropriate person— (a) in dealings in which the person has been involved, the person has— (i) shown dishonesty or lack of integrity; or -- 2 of 10 -- 3 (ii) used harassing tactics; (b) the person has taken advantage, as a debtor, of the laws of bankruptcy; (c) the person has been convicted of an offence in Queensland or elsewhere for which a conviction has been recorded, including an offence to which the Criminal Law (Rehabilitation of Offenders) Act 1986, section 6 applies; (d) an unrecorded finding of guilt has been made against the person in relation to a relevant offence and has not been quashed or set aside by a court; (e) any other information indicating— (i) the person is a risk to public safety; or (ii) the holding of the licence by the person would be contrary to the public interest. (5) A person is not an appropriate person to hold a licence if the person— (a) has, within 10 years of applying for the licence, been convicted of a disqualifying offence for which a conviction was recorded; or (b) is subject to a relevant control order. [5] Clauses 4 and 5 of the Crowd Controllers Code of Practice 2008, which is set out in a Schedule to the Security Providers (Crowd Controller Code of Practice) Regulation 2008 (Qld), provide: 4 Duties of licensed crowd controller—general When carrying out the functions of a crowd controller, a licensed crowd controller must— (a) take reasonable steps to keep order at or about the public place at which the crowd controller is acting as a crowd controller; and (b) if the crowd controller is engaged to do so, carefully monitor or control, or monitor and control, the behaviour of patrons at the public place so that problem behaviour can be detected early; and (c) if there is problem behaviour at the public place, act swiftly to protect the health and safety of all patrons at the public place, including patrons who may need to be removed because of their problem behaviour; and (d) take reasonable steps to prevent violence happening; and (e) if practicable, use tact and diplomacy, for example, mediation, conciliatory negotiation or other conciliatory communication, as the first tool to control any conflict; and (f) greet visitors to the public place in a friendly and courteous way; and (g) use moderate language when dealing with staff associated with the public place or with members of the public; and (h) not encourage another person to commit an assault; and (i) not solicit, or accept, a bribe; and -- 3 of 10 -- 4 (j) not act in a way that is discreditable to— (i) if the crowd controller is an employee—the crowd controller’s employer; or (ii) the security provider industry; and (k) act fairly; and (l) not abuse the crowd controller’s position or authority; and (m) not consume alcohol or use illegal drugs while on duty, or be under the influence of alcohol or illegal drugs when reporting for duty; and (n) not carry an offensive weapon; and (o) not make a false oral or written statement in relation to acting as a crowd controller; and (p) not search a person of the opposite sex to the crowd controller; and (q) if the crowd controller has a supervisor or is not the person in charge of the activity or event being carried on at the public place—report to, and comply with the lawful directions of, the supervisor or person; and (r) keep confidential any security arrangements for the public place and take all reasonable steps to keep informed of any changes to the arrangements; and (s) deal with each item seized by the crowd controller under any lawful policy for dealing with items seized at the public place; and (t) be aware of— (i) fire or other emergency management equipment at the public place; and (ii) fire or other emergency management procedures for the public place; and (iii) if the public place is licensed premises—the procedure for informing the manager of the licensed premises during an emergency of matters relevant to the emergency; and (iv) the procedure for alerting the Queensland Police Service, Queensland Fire and Emergency Service or Queensland Ambulance Service in an emergency; and (u) if the duties involve the use of communications equipment, ensure that— (i) the equipment works; and (ii) the crowd controller understands how to use it. 5 Duty to report details of particular incident (1) This section applies if— (a) a person (the engager) engages, directly or indirectly, another person (the engaged crowd controller) to carry out, for reward, the functions of a crowd controller at or about a public place; and -- 4 of 10 -- 5 (b) an incident happens when the engaged crowd controller is a licensed crowd controller and is carrying out the functions of a crowd controller— (i) involving the engaged crowd controller and in which a person is injured; or (ii) requiring a person to be removed from the public place by the engaged crowd controller. (2) The engaged crowd controller must, as soon as practicable after the incident happens, give details of the incident to the engager. The allegations [6] The allegations underlying the original decision of the respondent involved an incident outside the Bedroom Lounge Bar in Surfers Paradise (‘the first venue’) in the early hours of the morning of 31 December 2021. [7] The allegations concern the applicant’s physical involvement with a male (‘the male’) outside the Lounge Bar after a patron had been removed from the licensed premises. A CCTV record of the incident has been provided to the Tribunal. [8] In summary, it is submitted by the respondent that the CCTV footage shows: the applicant involved in the removal of a patron (‘the patron’) with other ‘crowd controllers’ (here referred to as ‘security providers’); the male can be seen yelling at the security providers and filming the incident with his mobile phone; he appears angry and highly animated; while the security providers continue to control the patron and seemingly attempt to de-escalate the situation, the applicant positions himself behind the male; the applicant subsequently walks up behind the male, picks him up under his armpits and throws him over a garden bed onto the road; the male hits his head on the road and can be seen lying on the road motionless for several minutes; the applicant moves inside the venue and does not check on the male’s welfare. [9] The respondent submits that a search of the Crowd Controller register shows that the applicant did not enter this incident on the register, as required by clause 5 of the Crowd Controllers Code of Practice 2008: see [5], above. [10] In its submissions on the review application, the respondent also refers to a second incident that occurred at the Grand Hotel on 1 May 2022, after the applicant’s licence had been cancelled. The respondent submits that the applicant worked as a security provider at the Grand Hotel while unlicensed and that while there he was involved in another incident, where, by separate CCTV footage, he can be seen pushing and kicking a patron down some stairs. The applicant was issued with an infringement notice of $2,067 for working unlicensed at that hotel. [11] The applicant acknowledges that he was working unlicensed on 1 May 2022 and accepted the infringement notice and, in reply to the respondent, submits: The Respondent seeks to bolster the decision to cancel our client’s licence by relying on the Grand Hotel incident and the infringement. The Respondent relevantly points out that the Tribunal is to conduct a review of ‘the’ decision. Here ‘the’ decision under review was to cancel the Applicants [sic] Security Licence because of the incident at the Bedroom nightclub. -- 5 of 10 -- 6 The Applicant understands the Respondent will likely cancel his Security Licence again if he is successful on review, and the Grand Hotel incident is not considered. In the interests of expediency, and to prevent a further application for review, the Applicant agrees that the Grand Hotel incident should be considered as part of this reviewable decision. [12] The question remains whether the Tribunal, in making its determination, is able to consider the second incident. The review before the Tribunal is a merits review. Section 20 of the QCAT Act is headed ‘Review involves fresh hearing’ and provides: (1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision. (2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. [13] There is no express indication as to whether the fresh hearing is to proceed on the basis of the facts existing at the time of the original decision or at the time of the Tribunal hearing, though s 19(c) of the QCAT Act provides that the Tribunal ‘has all the functions of the decision-maker for the reviewable decision being reviewed’, which might include a consideration of any fresh evidence. [14] The jurisdiction of the AAT in conducting a review was considered in Shi v Migration Agents Registration Authority.1 Kirby J and Hayne and Heydon JJ refer to the observations of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs,2 where their Honours stated the function of the AAT as follows:3 The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. [15] In Shi, Kirby J also stated, at [41]: When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make "a decision in substitution for the decision so set aside", as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard. [16] While, as noted in Shi, the jurisdiction of a tribunal rests on the intention of the legislature and, in some instances, a decision might be confined by the state of the evidence as at a particular time,4 that is not generally the case where the consideration is one of whether a person is a ‘fit and proper person’ or, by extension to the issue in the present case, whether they are an ‘appropriate person’ for the grant of a licence. 1 (2008) 235 CLR 286. In relation to ‘merits review’, Kiefel J states at [140]: ‘The term "merits review" does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision’. 2 (1979) 24 ALR 577, 589 (emphasis added). 3 (2008) 235 CLR 286, per Kirby J, [35]; per Hayne and Heydon JJ, [98]. See also, generally, per Kiefel J, with whom Crennan J agreed, at [143]. 4 Ibid. See for example at [44], [46] per Kirby J; [101] per Hayne and Heydon JJ; [132], [143] per Kiefel J. -- 6 of 10 -- 7 With reference to a decision concerning the registration of a migration agent under the Migration Act 1958 (Cth), Kirby J stated at [48] (footnote omitted): Section 303 of the Migration Act directs the Authority's attention, amongst other things, to whether an agent "becomes bankrupt"; whether he or she "is not a person of integrity" or "otherwise not a fit and proper person"; and whether "an individual related by employment to the agent is not a person of integrity". Each of these grounds is expressed in the present tense. Necessarily, the circumstances to which each is addressed could be altered by supervening events. Thus, the language in s 303 of the Migration Act clearly contemplates the possibility that circumstances may change between an initial decision of the Authority and a subsequent decision of the Tribunal, performing the "review" which s 306 of the Migration Act contemplates and for which s 43 of the AAT Act provides. [17] The same view was expressed by Kiefel J (footnote omitted):5 Section 303(1)(f) provides that the Authority may take disciplinary action if it "becomes satisfied" that a registered migration agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance. The Migration Act provides the Authority with an ongoing role, to monitor the conduct of agents and to take disciplinary action where necessary. The reference to the Authority becoming satisfied was considered by Tracey J to identify a point in time, one at which the Authority was no longer satisfied about the agent. The topic with which s 303(1)(f) is concerned is not, however, one which identifies particular conduct, as is the case with respect to breaches of the Code of Conduct. The enquiry posed by the paragraph is a general one, and it may be considered by the Tribunal in that way. It does not limit an assessment of an agent's integrity and fitness to what has been conveyed by any breaches. There is no reason why the Tribunal's review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent. The list in s 290(2) is not exhaustive. There is good reason why the Tribunal should be in a position to consider the most recent material bearing upon the question of an agent's integrity and their fitness to continue to provide immigration assistance. By this means facts such as an agent's subsequent conviction for a serious offence could be taken into account. The relevance of such a factor, to the question of an agent's integrity and fitness, is confirmed by its specification in s 290(2), as a matter which must be taken into account by the Authority in connection with their registration. [18] In the present case, where the ground for cancellation of the licence was that the applicant is not an ‘appropriate person’ to hold a licence, the Tribunal should take account of conduct arising subsequent to the decision of the respondent, including the incident at the Grand Hotel. As noted at [11] above, the applicant agrees that this incident should be taken into account, though for different reasons. [19] While the respondent submits that the issuing and payment of the infringement notice gives rise to a separate ground for suspension or cancellation of the licence under s 21(1)(c) of the Act,6 it is also submitted that the applicant has shown dishonesty and a lack of integrity by working at the Grand Hotel while unlicensed. In that context, it is noted that one of the matters to be taken into account, at s 11(4)(a) of the Act, when considering whether the person is an ‘appropriate person’ is where in dealings in 5 (2008) 235 CLR 286, [149]. See also per Crennan J, [117]. 6 Section 21(1)(c) of the Act provides that the grounds for the suspension or cancellation of a licence include where ‘the licensee has committed an offence against this Act’. -- 7 of 10 -- 8 which the person has been involved, the person has ‘shown dishonesty or lack of integrity’. Discussion [20] In relation to the incident at the Bedroom Lounge Bar, in his submissions the applicant gives an account of the CCTV footage. In particular, it is submitted that the male ‘gets up in the face’ of a female security provider, pointing and shouting aggressively, including shouting ‘I’m going to fucken kill you bitch’. The applicant then submits: Mr Dumelow grabs the offender from behind and as he attempts to lift the offender away, the offender clips the male in the red shirt and Mr Dumelow releases him. The offender then lands on the side of the road and partially in the gutter. … There is nothing to suggest the offenders [sic] head strikes the ground and he keeps it elevated. [21] It is also submitted that there were other members of the public interfering and crowding the incident; there was minimal and very slow-moving vehicle traffic on the road at that time; the male was overtly aggressive and confrontational; he never calmed down and positioned himself where assault on the female security provider was imminent; and he was a high risk of assaulting security providers. It is further submitted that the applicant ‘has shown restraint by not reacting when he appears to be pushed by the offender and then moving away when the offender seems to target Mr Dumelow’. It is said that this demonstrates that the applicant was ‘attempting to avoid physical violence and deescalated by removing himself from the immediate vicinity of the offender’. [22] It is submitted that the respondent unfairly ‘seeks to take a snapshot in time without considering relevant factors leading up to the use of physical force’. With reference to the Code of Practice, the applicant submits that he did comply and makes particular reference to clauses 4(a) to (e): see [5], above. [23] From the CCTV footage, it is evident that the male was very agitated and there were members of the public crowding the incident, though, in the main, they appeared to be simply watching or standing around. Also, the traffic seemed to be infrequent and slow. Initially, the male was standing and appeared to be filming the incident with his phone. He then sat down, seemingly on the edge of the raised garden bed, immediately next to the security providers who were restraining the patron. At one point the applicant disengaged from the other security providers and moved to a position immediately behind the male. In the meantime, the male was engaged in animated conversation with the other security providers and at one point raised his arm. There was no sound to enable anything that was said to be heard. While it was crowded, there was little if anything to show from the demeanour of the other security providers and the onlookers that the male posed any immediate threat. [24] Less than 20 seconds after the male sat down and when he turned to engage with a female security provider, the applicant suddenly moved forward and lifted him from his sitting position. In relation to this action, the applicant submits: Mr Dumelow certainly acknowledges that his execution of removing the offender from the presence of the female security guard, other violent male, and members of the public, was extremely poor. Mr Dumelow acknowledges that lifting and attempting to remove the offender went wrong. However, we submit his reaction to a credible threat to kill was certainly justified. -- 8 of 10 -- 9 [25] It is not said why or how the threat to kill was credible. Also, it is not said how he was ‘a high risk of assaulting security guards’ or how he was in a position to carry out any threatened assault. At the relevant time the male was sitting down and there is nothing to show from those surrounding him, including other security providers, that there was a high risk of assault. [26] It is also submitted by the applicant that he ‘never intended to throw the offender onto the road or throw him at all’, but he simply intended to move him to the side, but lost control. [27] Those submissions are not borne out by the CCTV footage and are rejected. It is evident from the CCTV footage that any clipping of another person did not have a significant if any impact on the actions of the applicant. His actions had every appearance of a calculated throwing action, with the taking of a step towards the road and the forward projection of his arms, with his arms outstretched at the point of release. It is not evident from the footage that there was any significant interference by third parties or stumbling in his progress. Also, if the intention was not to throw the male over the garden bed but to ‘move him to the side’, there is no indication or submission as why he was moved in that direction, given the immediate obstruction of the raised garden bed adjoining the road. It is further noted that immediately after the male landed on the road, there was nothing in the applicant’s demeanour to indicate an accident. He simply looked at the male for two or three seconds before moving back towards the venue. He did not check to ascertain the male’s condition. [28] The male landed on his upper back and, it appears, his head. At the very least as he rolled, his head contacted the road surface. He remained lying on the road, on his back, for almost four minutes, with the police in attendance for approximately half of that time. After standing up, the male can be seen, at intervals, with his hand on the side and back of his head and, later, a police officer can be seen looking closely at the back of his head. [29] The throwing of a person over a garden bed onto the road carried a risk of significant injury. While that might depend, at least in part, on the physical attributes of the person being thrown, there is nothing to indicate that the applicant knew the male or was aware of whether or not any significant injury might arise. [30] The applicant also submits that the respondent failed to take account of relevant factors leading up to the use of physical force. It is not clear what those factors were, such that they would support the force used, other than as outlined above. [31] The CCTV footage commences prior to the removal of the patron from the venue. After that, one of the security providers and then, more forcibly, the applicant, can be seen pushing the male away. Another security provider also pushes him away. In the main, the applicant seems to be operating at the edge of the activity involved in restraining of the patron and has no further engagement with the male prior to moving behind him and the throwing incident. [32] In relation to the Grand Hotel incident, the applicant submits that ‘the force used by Mr Dumelow was justified and appropriate in the circumstances against a very violent male’. The respondent makes no submission as to whether the use of force was justified or excessive, but notes the infringement notice and submits that in terms of the criteria at s 11(4)(a) of the Act for deciding whether a person is an appropriate person to hold a licence, the applicant has shown his dishonesty or lack of integrity in working unlicensed at the Grand Hotel. Reference is also made to the separate ground -- 9 of 10 -- 10 for cancellation; namely, committing an offence against the Act: see s 21(1)(c) of the Act. [33] The CCTV shows a male being removed from the venue by security providers. A female leaves the venue at the same time. There was a subsequent altercation whereby force was used by the applicant against the male, while another security provider pushed the female down some steps and her body landed on the cement path below. Given the lack of sound and any submissions on the part of the respondent as to the appropriateness of the use of force in this instance, the conduct of the applicant in managing that incident does not impact the present decision and reasons for the decision. [34] However, taking into account the matters that are to be considered and on the material before me, the applicant is not an ‘appropriate person’ to hold a licence in terms of s 11(4) of the Act and, accordingly, is not an appropriate person to continue to hold the licence in question. For the reasons outlined, the steps taken by applicant at the Lounge Bar were not reasonable or proportionate. It is not evident that the male posed such a threat that other steps could not have been taken, such as negotiation or, if need be, appropriate restraint. In terms of s 11(4)(e) of the Act, the applicant is a risk to public safety and, further, the holding of the licence by the applicant would be contrary to the public interest. That he is not an appropriate person to hold a licence is further evidenced by the fact that he continued to engage in the work of a security provider after his licence had been cancelled: see s 11(4)(a) of the Act. [35] The decision to cancel the applicant’s Crowd Control, Security Officer (Unarmed), Security Officer (Monitoring) licence effective from 13 April 2022 is confirmed. -- 10 of 10 --