Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329

CITATION: Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329 PARTIES: Michael Featherstone (Applicant) v Department of Justice and Attorney-General, Industry Licensing Unit (Respondent) APPLICATION NUMBER: GAR079-15 MATTER TYPE: General administrative review matters HEARING DATE: 3 September 2015 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 7 September 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Department of Justice and Attorney-General, Industry Licensing Unit to suspend the Private Investigator licence of Michael Featherstone dated 13 February 2015 is confirmed. CATCHWORDS: APPLICATION TO REVIEW DECISION TO SUSPEND SECURITY PROVIDER LICENCE - PRIVATE INVESTIGATOR – whether correct and preferable decision – whether reasonable grounds to suspend licence – where private investigator charged with disqualifying offences – where suspension likely to adversely affect family, reputation, livelihood and clients – where legislative intent to suspend despite presumption of innocence - where police version of events only material before Tribunal about circumstances of alleged offences – where alleged offences are serious relating to personal safety and administration of justice – where alleged offences integrally linked to functions of private investigator – where private -- 1 of 9 -- 2 investigator functions intrinsically sensitive – where protective purpose of licensing regime – where public confidence requires licensees undertaking intrinsically sensitive investigative functions are free of any suggestion of illicit conduct relevant to those functions – where impact of suspension on licensee, family and employees not disproportionate to Legislature’s intent to protect public interest by maintaining community safety and confidence in security provider industry – where financial impact of suspension partly alleviated by continuation of licensee’s business as profitable concern – where public interest in maintaining integrity of licensing scheme outweighs character, reputation and other affected interests because of nature and seriousness of charges Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 Security Providers Act 1993 (Qld) ss 6, 21, 24, Schedule 5 Barlow v. Chief Executive, Department of Justice and Attorney-General [2012] QCAT 121 Black v. Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 Briginshaw v. Briginshaw (1938) 60 CLR 336 Dental Board of Australia v. O’Brien [2014] QCAT 690 Deputy Commissioner Stewart v. Kennedy [2011] QCATA 254 Featherstone v. Department of Justice and Attorney-General, Industry Licensing Unit [2015] QCAT 223 Garth v. Queensland Police Service [2012] QCAT 261 Harley v. Department of Justice and Attorney- General [2012] QCAT 390 Harley v. Department of Justice and Attorney- General [2012] QCAT 620 Jattan v. Chief Executive (Queensland Health) [2010] QSC 92 Kehl v. Board of Professional Engineers of Queensland [2010] QCATA 58 Peacock v. Queensland Police Service Weapons Licensing Branch [2012] QCAT 102 -- 2 of 9 -- 3 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr A. McDougall of Counsel instructed by Hannay Lawyers appeared for Michael Featherstone RESPONDENT: Mr D. Robinson, Principal Legal Officer appeared for the Department of Justice and Attorney-General, Industry Licensing Unit REASONS FOR DECISION What is this Application about? [1] Mr Michael Featherstone is a former Detective Sergeant of the Queensland Police Service who for almost 20 years has worked as a successful private investigator, including operating his own business employing up to nine people. [2] Despite this, the Department of Justice and Attorney-General, Industry Licensing Unit has suspended Mr Featherstone’s Private Investigator licence because he has been charged with three disqualifying offences.1 [3] Mr Featherstone therefore wants the Tribunal to review and set aside, or at least defer, the Department’s decision to suspend his licence, until the criminal proceedings are resolved or at least until the Police brief is finalised, which he says would allow the Crown case to be properly assessed. What is the purpose of this review? [4] The purpose of this review is to produce the ‘correct and preferable’ decision.2 The Tribunal does this by a fresh hearing on the merits.3 This means that Mr Featherstone does not need to prove any error by the Department in its original decision - the original decision is not presumed correct.4 [5] The Tribunal must therefore decide whether after considering Mr Featherstone’s representations, reasonable grounds exist to suspend his licence.5 In deciding this, the Tribunal must consider why Mr Featherstone’s licence should or should not be suspended, giving due weight to the impact on Mr Featherstone, his family, reputation, 1 Security Providers Act 1993 (Qld) s 21(5), Schedule 1. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1). 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(2). 4 Harley v. Department of Justice and Attorney-General [2012] QCAT 620 at [8], citing with approval Kehl v. Board of Professional Engineers of Queensland [2010] QCATA 58 at [9]. 5 Security Providers Act 1993 (Qld) s 22(2). -- 3 of 9 -- 4 employees and clients, the Legislature’s intent, the circumstances of the alleged offences and the public interest. [6] Importantly, the gravity of suspending Mr Featherstone’s licence requires a commensurate standard of proof: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.6 Why should Mr Featherstone’s licence not be suspended? [7] Mr Featherstone is understandably most concerned about the suspension adversely affecting him, his family, reputation, livelihood, employees and clients. They are undoubtedly important to consider in deciding whether to suspend his licence. These impacts should not be understated and of themselves, support his licence not being suspended. What is the impact on Mr Featherstone’s family and reputation? [8] Mr Featherstone is a married father with no criminal history.7 He has been a private investigator for 18 years without any other complaint against him. Mr Featherstone has a sophisticated client base,8 consistent with him being held with due regard within the industry. [9] Suspending Mr Featherstone’s licence therefore restricts his ability to support his family and affects his professional and personal reputation, pending the outcome of any criminal proceedings. What is the impact on Mr Featherstone’s livelihood, employees and clients? [10] Mr Featherstone rightly directed the Tribunal’s attention to the pecuniary loss he has suffered and is likely to continue to suffer because of his licence being suspended. Although his business, Phoenix Global Pty Ltd continues to trade, its revenue has declined from $152,995.63 in March- April 20149 to $52,962.06 in March-April 2015.10 6 Briginshaw v. Briginshaw (1938) 60 CLR 336, per Dixon J (as His Honour then was) at 346. 7 Outline of Argument On Behalf Of The Applicant dated 8 May 2015 at paragraph 33. 8 Outline of Argument On Behalf Of The Applicant dated 8 May 2015 at paragraph 33. 9 Phoenix Global Pty Ltd Sales Register March 2014 through April 2014. 10 Phoenix Global Pty Ltd Sales Register March 2015 through April 2015. At the hearing, Mr Featherstone’s legal representative confirmed this declining trend when comparing revenue over the periods from March 2014 to August 2014 and from March 2015 to August 2015. -- 4 of 9 -- 5 [11] Given the close proximity in time between the suspension and substantial decline in revenue, I am satisfied it is reasonable to infer they are related. Mr Featherstone is therefore concerned not just for himself, but for the prospect of his four remaining employees losing their jobs, and his clients and potential clients losing the benefit of his services. [12] Notably, the public interest is not necessarily served by depriving security providers of their ability to earn an income, while awaiting criminal charges to determine whether their actions were appropriate in given circumstances.11 Suspending Mr Featherstone’s licence reduces his ability to generate previous levels of revenue for his business, maintain his employees and properly service his clients. Why should Mr Featherstone’s licence be suspended? What is the Legislature’s intent for the presumption of innocence in security licensing? [13] Mr Featherstone rightly states that he is entitled to the presumption of innocence. However, these are not criminal proceedings. For the purpose of prescribing sanctions within a licensing regime for security providers, the Legislature appears to have taken the presumption of innocence into account - by reducing the sanction for being charged with a disqualifying offence, compared with being convicted of a disqualifying offence.12 [14] Specifically, the Act expressly provides to automatically cancel the licence of a security provider who records a conviction for a disqualifying offence,13 but conversely, suspend the licence of a security person merely charged with a disqualifying offence until the end of the proceeding for the charge.14 [15] This means that I agree with Mr Featherstone that charging him with a disqualifying offence does not automatically suspend his licence, but merely enlivens the discretion to suspend his licence.15 The Legislature’s imposing of differing degrees of sanction according to whether a person has been charged or convicted supports this interpretation. [16] Cancelling a licence for a conviction would provide a narrow right of review, whereas suspending a licence on grounds that a person may not be ‘appropriate’ provides a broad discretion and therefore a broader set of circumstances for the Tribunal to set aside the decision.16 This means I may consider the circumstances of the alleged offences, their seriousness 11 Black v. Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 at [16]. 12 Security Providers Act 1993 (Qld) s 21(5). 13 Security Providers Act 1993 (Qld) s 24. 14 Security Providers Act 1993 (Qld) s 21(5). 15 Black v. Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 at [17]. 16 Barlow v. Chief Executive, Department of Justice and Attorney-General [2012] QCAT 121 at [49] to [53]. -- 5 of 9 -- 6 and when they are alleged to have been committed, their nature and relevance to a private investigator’s functions and anything else relevant. What are the circumstances of the alleged offences? [17] Mr Featherstone intends to defend the charges. His legal representative notes that in granting bail at first instance, the learned Magistrate considered the weakness of the Crown case. Mr Featherstone submits that his licence has been suspended based merely on the Queensland Police Service’s Preliminary Court Report (QP9) rather than the full Police Brief. Mr Featherstone contends that because the QP9 is merely the arresting police officer’s analysis rather than a brief of evidence, it is not possible to properly assess the prima facie validity of the charges or the strength of the case against him. [18] However, the Tribunal’s role is not that of a Magistrate assessing whether the Crown has a prima facie case sufficient to commit Mr Featherstone to trial, requiring a police brief of evidence. Although the police material provides only a version of events, the difficulty is that Mr Featherstone has not presented any alternative version of events or his account to the Tribunal. That is his right and Mr Featherstone may have good reason for this - it does not necessarily mean that he does not have an arguable case to the charges. [19] Certainly, Mr Featherstone is entitled to put the Crown to proof in any criminal proceedings. But the consequence for these review proceedings is that the Tribunal has no material about the circumstances of the charges other than the police material to date.17 Mr Featherstone may well have an arguable case, but the Tribunal does not know what it is. [20] Police investigations of this nature can, at times, experience delay for a variety of reasons18 and does not necessarily reflect the strength of the case. That police material suggests sufficient evidence to at least lay charges, despite the delay between the complaint and laying of charges. Are the alleged offences serious? [21] Mr Featherstone does contend that the charges do not involve violence and the delay of two years between the complaint founding the charges and his arrest undermines the seriousness of the allegations. [22] It is not necessary for me to repeat in detail the charges and alleged surrounding circumstances from the police material. Despite the delay between the complaint and the laying of charges, the police material does suggest that the charges and the alleged surrounding circumstances are serious, relating to personal safety and the administration of justice. 17 Unlike Black v. Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 and Harley v. Department of Justice and Attorney- General [2012] QCAT 620 where alternative versions of the circumstances of the alleged offences were presented to the Tribunal. 18 ABC News Article dated 5 January 2015 marked as Exhibit 3. -- 6 of 9 -- 7 Are the alleged offences relevant to a private investigator’s functions? [23] Although the offences are not alleged to have occurred while performing the functions of a private investigator, the nature of the alleged offences relates to the alleged illicit obtaining of information. The nature of the alleged offences is therefore integrally linked to the statutorily defined functions of a private investigator that expressly include obtaining and giving private information about persons without their consent.19 [24] Because a private investigator’s functions are intrinsically sensitive and carry with them a commensurate level of responsibility, this invokes the protective purpose of suspension in a licensing regime designed to maintain public confidence in the industry and thereby protect the public interest.20 The public must be confident that persons licensed to obtain information without another person’s consent do so within the law. Does suspending Mr Featherstone’s licence maintain public confidence in the industry? [25] Mr Featherstone contends that suspending his licence is punitive rather than protective21 because of its financial, professional and personal impact upon him.22 However, a sanction’s adverse impact upon its recipient does not abrogate from its protective function23 - disciplinary proceedings, for example, invariably adversely affect the registrant but are still imposed for a protective purpose. Although a protective sanction may have a punitive effect, the extent of the sanction imposed to achieve a protective purpose must still reflect the seriousness of the alleged conduct.24 [26] Mr Featherstone challenges characterising the suspension of his licence as protective when he has operated for 18 years in the industry without harm to any member of the public, including two years between the complaint and charges. However, a sanction’s protective purpose is designed not merely to protect the public from the individual licensee: the public must be confident in the industry as a whole. [27] Public confidence is therefore grounded not merely on whether it is in fact necessary to protect clients and the public from a private investigator’s alleged behaviour. The fact of the alleged conduct is yet, if at all, to be proven. Rather, to be confident in the industry as a whole, the public must have more than hope that individual licensees will perform their functions within the law. By specifically providing for licence suspension when a licensee is merely charged with a disqualifying offence, the Legislature therefore appears to be predominantly concerned with the perception 19 Security Providers Act 1993 (Qld) s 6(1)(a). 20 Harley v. Department of Justice and Attorney-General [2012] QCAT 390 at [21]; Harley v. Department of Justice and Attorney-General [2012] QCAT 620 at [19]. 21 Jattan v. Chief Executive (Queensland Health) [2010] QSC 92 at [30]. 22 Outline of Argument On Behalf Of The Applicant dated 8 May 2015 at paragraphs 38 and 39. 23 Dental Board of Australia v. O’Brien [2014] QCAT 690 at [7]. 24 Garth v. Queensland Police Service [2012] QCAT 261 at [13]. -- 7 of 9 -- 8 created by a licensee operating while concomitantly addressing serious allegations relevant to their functions as a licensee.25 [28] Public confidence in the industry as a whole is thus undermined by charges from alleged events that are integrally linked with the functions of a private investigator. This is because a private investigator’s functions are intrinsically sensitive and carry with them commensurate levels of responsibility: obtaining and giving private information about persons without their consent, undertaking surveillance and investigating missing persons.26 The public therefore expects that persons who undertake these functions are free of any suggestion of illicit conduct relevant to the performance of those functions.27 [29] Unfortunately for Mr Featherstone, it would seem that the suspension will adversely affect him pending the resolution of the charges. Mr Featherstone’s legal representatives point out that the Police Brief has still not been disclosed and is not expected in 2015.28 They anticipate no resolution of the charges for at least another 18 months. As distressing as any adverse impact might be for Mr Featherstone, his family and employees, it is not disproportionate to the Legislature’s intent to protect the public interest by maintaining community safety and confidence in the industry as a whole.29 [30] To achieve the Legislature’s protective purpose, the sanction must have some relation to the seriousness of the alleged offences.30 Moreover, the public interest must be paramount where the charges are not only serious but are integrally linked with the functions of a private investigator and their performance. This means that the impact upon Mr Featherstone and his family and others must be subordinate to the interest of public confidence in the industry as a whole and its integrity.31 [31] In saying this, I emphasise that the alleged offences are yet to be proven. However, their nature, seriousness and integral relationship to the role of a private investigator do directly contradict the integrity of a licensing scheme for private investigators and the industry as a whole. Do reasonable grounds exist to suspend Mr Featherstone’s licence? [32] This means that because of the nature and seriousness of the charges, the public interest in maintaining the integrity of the licensing scheme outweighs the impact on Mr Featherstone’s character, reputation and other affected interests. 25 Featherstone v. Department of Justice and Attorney-General, Industry Licensing Unit [2015] QCAT 223 at [20]. 26 Security Providers Act 1993 (Qld) s 6(1). 27 Featherstone v. Department of Justice and Attorney-General, Industry Licensing Unit [2015] QCAT 223 at [15]. 28 Outline of Argument On Behalf Of The Applicant dated 8 May 2015 at paragraph 25. 29 Featherstone v. Department of Justice and Attorney-General, Industry Licensing Unit [2015] QCAT 223 at [20]. 30 Garth v. Queensland Police Service [2012] QCAT 261 at [13]. 31 Deputy Commissioner Stewart v. Kennedy [2011] QCATA 254 at [32], per Thomas J. -- 8 of 9 -- 9 [33] I say this acutely mindful of the potentially precarious situation this places Mr Featherstone, his family and his employees in, but as is the case with the Weapons Act 1996, Parliament has identified that persons charged with certain offences can have their licences suspended despite the general presumption of innocence.32 [34] Despite the undoubtedly difficult circumstances confronting Mr Featherstone, I do note that the financial impact upon him and his family is alleviated to at least some degree by him receiving income from his company, whose licence has not been suspended, is still a profitable concern and services a sophisticated client base. [35] I also reiterate the learned Member’s admonition in the stay proceedings that Mr Featherstone’s clients - and others - should draw no conclusions as these matters are not finalised.33 [36] I would also make the observation that it is not in Mr Featherstone’s interests, the public interest or the interests of justice that his licence suspension is protracted by any unnecessary delay in finalising these matters. A point is eventually reached where the integrity of the licensing scheme is undermined by suspending a licensee for the duration of proceedings that become unduly prolonged. What is the ‘correct and preferable’ decision? [37] The ‘correct and preferable’ decision is therefore that the decision of the Department of Justice and Attorney-General, Industry Licensing Unit to suspend the Private Investigator licence of Michael Featherstone dated 13 February 2015 is confirmed. 32 Peacock v. Queensland Police Service Weapons Licensing Branch [2012] QCAT 102 at paragraph [10]. 33 Featherstone v. Department of Justice and Attorney-General, Industry Licensing Unit [2015] QCAT 223 at [23]. -- 9 of 9 --