Barlow v Chief Executive, Department of Justice and Attorney-General [2012] QCAT 121

CITATION: Barlow v Chief Executive, Department of Justice and Attorney-General [2012] QCAT 121 PARTIES: Geoffrey James Barlow v Chief Executive, Department of Justice and Attorney-General APPLICATION NUMBER: GAR118-11 MATTER TYPE: General administrative review matters HEARING DATE: 27 January 2012 HEARD AT: Southport DECISION OF: R M Clifford, Member DELIVERED ON: 16 March 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive, Department of Justice and Attorney- General made on 4 April 2011 to refuse a Security Officer and Crowd Controller licence to Geoffrey James Barlow is amended to confirm that the decision not to grant a licence is made pursuant to section 11(5) of the Security Providers Act 1993. CATCHWORDS: REVIEW OF ADMINISTRATIVE DECISION – refusal of security officer and crowd controller licence – eligibility criteria – disqualifying offences – appropriate person Security Providers Act 1993 Queensland Civil and Administrative Act 2009 APPEARANCES and REPRESENTATION (if any): APPLICANT: Geoffrey James Barlow – self represented RESPONDENT: Chief Executive, Department of Justice and Attorney-General – represented by Peter -- 1 of 9 -- 2 Reinhold Director, Business Services, OFT REASONS FOR DECISION Background [1] Around late August 2010 Geoffrey Barlow applied to the Respondent’s Industry Licencing Branch for a security provider licence, specifically, as a bodyguard, crowd controller, security officer (monitoring) and security officer (unarmed). [2] After some inquiry and deferral of the decision pending the outcome of a court case the Chief Executive, by letter dated 4 April 2011, refused Mr Barlow a licence on the grounds he is not an appropriate person for the grant of a licence. [3] The decision was in essence based on Mr Barlow’s police record that involved two unrecorded convictions for separate charges of common assault on 21 and 28 January 2012 and an unrecorded conviction for trespass on 8 August 2008. All of the incidents leading to the convictions involved young women personally unknown to Mr Barlow. [4] Mr Barlow made an application for review of that decision with the Tribunal on 3 May 2011. Legislation [5] The Security Providers Act 1993 is the relevant law concerning the issuing of security licences and it sets out, amongst other things, the application process and requirements that need to be met before a licence is granted. [6] Specifically, a person is entitled to a licence if the chief executive is satisfied that the person, amongst other things, is an appropriate person to hold the licence.1 [7] In deciding whether a person is an appropriate person to hold a licence, the chief executive is limited to considering the matters mentioned in section 11, subsections (4) and (5)2. [8] Section 11(4) provides that 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 (my emphasis): (a) in dealings in which the person has been involved, the person has – (i) shown dishonesty or lack of integrity; or (ii) used harassing tactics; (b) the person associates with a criminal in a way that indicates involvement in unlawful activity; (c) the person has taken advantage, as a debtor, of the laws of bankruptcy; 1 Security Providers Act 1993, s 11(2)(d). 2 Ibid, s 11(3). -- 2 of 9 -- 3 (d) 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; (e) 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; (f) investigative information about the person in relation to a disqualifying offence that indicates either or both of the following – (i) the person is a risk to public safety; (ii) the holding of a licence by the person would be contrary to the public interest; (g) any other information indicating the granting of the licence to the person would be contrary to the public interest. [9] Section 11(5) however states a person is not an appropriate person (my emphasis) to hold a licence if the person, within 10 years of applying for a licence, has been convicted of a disqualifying offence. [10] The Act (Schedule 2 – dictionary) states conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded. [11] A disqualifying offence means, amongst others, an offence against a provision of the Criminal Code mentioned in Schedule 1. [12] Schedule 1 includes Criminal Code – Chapter 30 assaults. [13] A relevant offence means a disqualifying offence committed by a person when the person was an adult and within the previous five years. Mr Barlow’s evidence and submissions [14] Mr Barlow in essence relies on the information he provided in his application3 to the Tribunal and his reply4 to the Chief Executive’s response to his application along with his oral testimony. [15] The Tribunal notes Mr Barlow did not provide any submission in reply, due on 9 March 2012, to the question of the intersection of section 11(4) and 11(5). The Tribunal is advised however that Mr Barlow contacted the Registry on 6 March 2012 requesting a transcript of the hearing to be delivered the following day. Mr Barlow was advised of the process and the process for request for extension of time. The Tribunal to date has not received any formal application. 3 Exhibit 1, Application and attachments 1-3. 4 Exhibit 2, Letter and attachments 1-10. -- 3 of 9 -- 4 [16] Mr Barlow, in summary, submits that the Chief Executive did not give sufficient weight to the Magistrate’s comments in relation to the unrecorded convictions for common assault. [17] Mr Barlow submits he was advised to plead guilty in relation to the unrecorded conviction for trespass after the complainant in the charges against him (burglary and unlawful stalking) moved overseas to Sweden without notifying police. Mr Barlow submits the case officer in that matter indicated that the complainant had misrepresented some of the facts in her original statement5 and further submits that that he was only trying to help a girl who was intoxicated. [18] Mr Barlow submits he is an appropriate person because he has good relationships with women and as an example, testified his ex-girlfriend is a good friend. [19] Mr Barlow submits that he has no problems with people and groups with whom he associates with at church, the beach and bushwalking. Chief Executive’s evidence and submissions [20] The Chief Executive relies on the information in response6 to Mr Barlow’s application for review, Mr Barlow’s Application for security licence7 and written submissions received by the Tribunal on 31 January 2012 and supplementary submissions on 14 February 2012. [21] The Chief Executive, by letter dated 14 April 2011 with accompanying statement of reasons, states the grounds for refusing the licence was in consideration of section 11(4)(f) of the Act – unrecorded findings of guilt made against a person in relation to a relevant offence and any other information the indicating the granting of a licence would be contrary to the public interest. [22] In the statement of reasons the Chief Executive notes Mr Barlow’s criminal record for two (2) unrecorded common assault convictions on 21 and 28 January 2011 and the unrecorded, trespass – entering or remaining in dwelling or yard, conviction on 8 August 2008. [23] The Chief Executive also notes Mr Barlow was invited to make further submissions which he provided and which were considered in the decision. [24] The Chief Executive particularly noted the information provided in the Security Incident Report provided by the Queensland Police Service that detailed the three convictions related to young women and a copy of the Brisbane Magistrate Court’s transcript of proceedings on 21 January 2011. [25] The Chief Executive opined Mr Barlow has shown a total disregard for the law and safety of the community, particularly females, and would not be considered by the community to show ethical and professional conduct of a person who held a security licence. The Chief Executive formed the view Mr Barlow was not an appropriate person to hold a licence and that 5 Exhibit 1 attachment 2. 6 Exhibit 3, Affidavit of Peter Rashford 16 June 2011 and attachments PJR 1-10. 7 Exhibit 4, Application for Licence date stamped 27 August 2010. -- 4 of 9 -- 5 he has demonstrated serious lack of integrity and a risk to public safety through his actions. [26] At hearing the Chief Executive’s representative submitted Mr Barlow had demonstrated a course of conduct or pattern of behaviour, of unwanted physical contact that carried a sexual connotation towards young vulnerable women with whom he was not acquainted. [27] The Chief Executive submits Mr Barlow has a lack of awareness and insight into the effect his conduct has on women and refers to the transcript where Mr Barlow states ‘he will be suing the girl for embarrassment’ and probably her employer for the trouble.8 [28] The Chief Executive submits these offences are of particular consideration as Mr Barlow applied for a crowd controller licence. The Chief Executive submits a crowd controller regularly interacts with members of the public, often in licensed premises, which can involve high risk situations involving intoxicated male and female persons which requires judgement, courtesy and respect to both genders and a demonstrated overall obedience of the law. Intersection of sections 11(4)(e) and 11(5) [29] In light of the apparent inconsistency between the relevant legislative provisions of the Security Providers Act 1993 the Tribunal sought written submissions from the parties as to how section 11(4)(e) intersects, if at all, with section 11(5) of the Act. [30] The Chief Executive submits the Act deals with disqualifying offences under both section 11(4) and (5). [31] The Chief Executive notes that prior to amendments to the Act on 1 July 2007 the Chief Executive could only consider a disqualifying offence where a conviction was recorded and that the definition of criminal history in the Act adopted the definition used in the Criminal Law (Rehabilitation of Offenders) Act 1986. The definition of ‘conviction’ under the CLRO Act required the finding of guilt be recorded. [32] The Chief Executive submits that a development in sentencing law and practice in recent years has seen a growing trend for courts to elect not to record convictions on a range of offences, an approach espoused in the CLRO Act. Juxtaposed to this is an increasing demand for State bodies to conduct more intensive criminal history searches. [33] The Chief Executive submits Parliament became concerned that some prior adverse conduct of persons could be excluded from the Chief Executive’s consideration regarding suitability, and consequently, the Act was amended in 2007 to allow the Chief Executive to consider non- recorded convictions to five years from the date of conviction. [34] The Chief Executive submits that the Act remained effectively unchanged in relation to the provision regarding disqualifying offences however other amendments involved the definitions of ‘criminal history’, ‘relevant offence’ and ‘conviction’. 8 Exhibit 3, attachment 8, page 9 line 51. -- 5 of 9 -- 6 [35] The Chief Executive submits it is clear from the Minister’s Second Reading Speech in Hansard on 28 November 2006, when introducing the amendments into Parliament, an unrecorded finding of guilt within the previous five years can be assessed by the Chief Executive when considering an application for a licence. [36] The Chief Executive submits this unambiguous intention has not been clearly stated in the legislation and appears inconsistent with section 11(5) that automatically excludes a person from holding a licence if convicted of a disqualifying offence but makes no reference to whether in sentencing the court recorded a conviction or not. [37] The Chief Executive submits that to overcome any inconsistency the Tribunal should consider the intention of Parliament. [38] The Chief Executive advises that the administrative practices of the past have dealt with the assessment of a person’s criminal history in a three- fold process which includes, in summary, where an applicant has had been convicted of a recorded disqualifying offence within 10 years the application is considered unfavourably pursuant to 11(5); where an applicant has been convicted of a recorded disqualifying offence over 10 years the application is considered pursuant to s 11(4)(d); where an applicant has been convicted of an unrecorded relevant event within five years the application is considered pursuant to s 11(4)(e). [39] The Chief Executive submits that this approach is preferred and allows flexibility and gives the applicant with every opportunity to establish his suitability and accords natural justice and procedural fairness. [40] The Chief Executive submits the possible conflict between the respective provisions of section 11 and the definition of conviction in the dictionary may need amendment to resolve the issue but submits given amendments can take six to eight months to be tabled in Parliament it would be a highly restrictive approach to Mr Barlow’s application when a more preferable flexible approach can be justified. [41] Furthermore the Chief Executive submits a strict application of section 11(5) would have far reaching consequences as there are disproportionately greater numbers of applicants and current licensees who have recent convictions which have not been recorded. Theoretically many applications would be refused, licensees would face show cause notices and the security provider industry would be in turmoil and the follow-on impacts in the community would not be in the public interest. [42] The Chief Executive submits the assessment of Mr Barlow is a blue-print for fairness and integrity of the system and submits whilst the decision- maker came to the conclusion Mr Barlow was not an appropriate person the decision was reached by a properly exercised discretion of the decision-maker and one in which Mr Barlow had an opportunity to put his case and participate actively in the process. -- 6 of 9 -- 7 [43] The Chief Executive submits that the should Tribunal confirm the decision of the Chief Executive in Mr Barlow’s case and validate the course of administrative practice and law adopted by the Chief Executive in reaching the decision. Findings and conclusions [44] The purpose of a review is to produce the correct and preferable decision.9 [45] The Tribunal must hear and decide a review by way of a fresh hearing on the merits10 and then it may confirm or amend the decision, set the decision aside and substitute its own decision, or, set the decision aside and return it to decision maker for reconsideration.11 [46] In making the decision the Tribunal considered the oral testimony of the parties along with all of the written material and submissions provided by the parties. [47] Mr Barlow has two unrecorded convictions for common assault against young women with whom he was not personally acquainted that involved inappropriate touching. These convictions arose just over 12 months ago. [48] Mr Barlow also has an unrecorded conviction for trespass – entering or remaining in a dwelling that related to circumstances involving a young woman also unknown to him. That conviction was recorded in August 2008. [49] The Security Providers Act 1993 regulates the security industry and provides for the licencing of persons seeking to work in the industry. Critical criterion for the grant of a licence is that the person applying for a licence is an appropriate person to hold a licence. [50] The Act in particular provides that a person is not an appropriate person if within 10 years of applying for a licence the person has been convicted of a disqualifying offence. [51] Although a decision not to grant a person a licence under this section is a reviewable decision the section in essence operates as an automatic exclusion to the grant of a licence. A review concerning a refusal of licence made under this section provides the applicant only a narrow set of circumstances in which to convince the Tribunal to set aside the decision, for example, that they are not the person to whom the conviction relates, that there is a substantial error on the face of the notice or to advise that the matter is subject to appeal. [52] The Act also provides criteria that may indicate that the person may not be an appropriate person, including that a person has an unrecorded finding of guilt in relation to a relevant offence that has not been quashed or set aside by a court. [53] A decision not to grant a person a licence under this section is also a reviewable decision, however, a decision under this section allows the decision-maker a broader discretion before reaching the decision. A 9 QCAT Act, s 20(1). 10 Ibid, s 20(2). 11 Ibid, s 24(1)(a)-(c). -- 7 of 9 -- 8 review concerning refusal of a licence made under this section therefore also provides the applicant a broader set of circumstances in which to convince the Tribunal to set aside the decision. [54] Prior to the amendments in 2007, Mr Barlow’s criminal history may not have been captured by the disqualifying offences provision of the Act given the definition of conviction relied on was the definition provided in the Criminal Law (Rehabilitation of Offenders) Act 1986. However, it is clear to the Tribunal that following the amendments and the inclusion of new definitions Mr Barlow’s criminal history indicates that he has two convictions that fall squarely within that provision [s 11(5)] of the Security Providers Act 1993. [55] It is apparent that Mr Barlow’s unrecorded convictions also fall squarely within the provision of section 11(4)(e) and it is under this provision the Chief Executive considered Mr Barlow’s application. [56] The Chief Executive refused to grant Mr Barlow a licence based on these convictions and because he was not satisfied Mr Barlow was an appropriate person to be granted a licence. [57] The Tribunal agrees with that outcome. [58] Mr Barlow has been convicted on three separate occasions in circumstances involving inappropriate dealings with young women with whom he was not personally acquainted. The Tribunal accepts the Chief Executive’s view that dealing with young and possibly intoxicated young women forms part of a crowd controller’s role and that Mr Barlow has demonstrated a pattern of behaviour of unwanted physical contact with young women on three occasions within the past four years that would be inconsistent with the trust required in that role. [59] The Tribunal is not convinced by Mr Barlow’s submission that the Chief Executive paid insufficient weight to the Magistrate’s comments in relation to the convictions. Mr Barlow does not detail the specific comments he refers to but rather relies on his general denial of the charges and the outcome of an unrecorded conviction. [60] The Tribunal particularly notes Magistrate Roney’s comments in sentencing when discussing probation and possible courses that Mr Barlow might be required to undertake, that she opines ‘they are thinking about your behaviour, understanding the consequences of your behaviour, reading other people, reading their verbal language and their body language’. This comment is directly applicable to the role of crowd controller as explained by the Chief Executive at hearing. [61] Whilst agreeing with the outcome of the Chief Executive’s decision the Tribunal is not persuaded that Mr Barlow’s application was refused under the correct provisions of the Act. [62] The Tribunal acknowledges the Chief Executive’s submissions that there may be some difficulties in a practical sense in administering the licensing scheme should the Tribunal decide section 11(5) is the relevant provision under which to consider Mr Barlow’s application. However, given the overall legislative scheme, the aim of the scheme to grant licences to only -- 8 of 9 -- 9 appropriate persons and a single specific provision that details the circumstances when an applicant is not an appropriate person, the Tribunal is satisfied it is that provision that should be considered first when considering a application for licence notwithstanding the existence of other provisions that allow for a greater level of discretion in regards to whether an applicant is an appropriate person. [63] Whilst the Tribunal is satisfied the decision of the Chief Executive not to grant Mr Barlow a licence is correct the Tribunal amends the decision to confirm that the decision not to grant a licence is made pursuant to section 11(5) of the Security Providers Act 1993. [64] Accordingly, the Tribunal orders that the decision of the Chief Executive, Department of Justice and Attorney-General made on 4 April 2011 to refuse a Security Officer and Crowd Controller licence to Geoffrey James Barlow is amended to confirm that the decision not to grant a licence is made pursuant to section 11(5) of the Security Providers Act 1993. -- 9 of 9 --