Often a person’s involvement in the criminal law jurisdiction will have consequences for their continued employment and consequently their livelihood.
In this context, we have previously discussed how to respond to a working with children check and see also our article on responding to a notice of suspension and proposal to cancel a firearms license.
As with firearm licenses, Victoria Police (Licensing and Regulation Division) also issue and cancel personal security licenses.
There are various factors that the police will consider in deciding whether to cancel a personal security license, and in this article, we discuss how best to respond.
Table of Contents
How to Respond to a Proposed Suspension/Cancellation
The Private Security Act 2004 governs the licensing of private security individual operators and businesses that provide private security services.
A private security individual operator license, allows a person to work in the following as an investigator, bodyguard, crowd controller, security guard or private security trainer.
To maintain a private security individual operator license, and consequently work in any of the roles outlined above, a person must comply with the probity requirements under the Act.
Probity Requirements
The probity requirements that govern the granting of a license, the suspension of a license, and cancellation of a private security individual operator license are:
Public interest
Fit and proper person
Prohibited person
Where a person is a “prohibited person” an application must be refused, and where the person becomes a prohibited person a license must be cancelled. A ‘prohibited person’ is defined under the Act as:
(a) a person in relation to whom not more than 10 years have expired since that person was convicted of a disqualifying offence; or
(b) a person in relation to whom not more than 5 years have expired since that person has been found guilty of a disqualifying offence without a conviction being recorded.
Disqualifying Offences
The definition of ‘disqualifying offence’ under section 13 is lengthy, and without reciting it here, the relevant offences include:
drug trafficking
drug cultivation
involving assault or violence against the person
offence involving a firearm
offence or dishonesty
robbery and armed robbery
offence against part 5.3 of the Criminal Code (Cth)
Even though a without conviction outcome would still result in a prohibited person status for a disqualifying offence, certain low-level court outcomes for a ‘disqualifying offence’ would not trigger a ‘prohibited person’ status:
Section 13(4) of the Act provides:
(3) A person is not a prohibited person merely because that person was, in respect of an offence referred to in paragraph (c), (d), (e), (f) or (g) of the definition of "disqualifying offence", convicted of a disqualifying offence or found guilty of a disqualifying offence without a conviction being recorded, and one of the following applies—
(a) no penalty was imposed; or
(b) the penalty imposed was a fine of less than the equivalent of 5 penalty units: or
(c) a penalty other than a fine or a custodial penalty was imposed.
The Act also imposes obligations upon a private security license operator to notify Victoria Police of being charged with not just a disqualifying offence but any offence. It is an offence not to disclose this information.
Upon the Licensing and Regulation Division of Victoria Police being notified that a private license security operator has been charged with any offence may cause a disciplinary inquiry to be undertaken to establish the individual’s fitness to maintain their license.
Under section 50 of the Act, the grounds upon which VicPol LRD may commence a disciplinary inquiry include:
(a) the holder of a private security licence, if that holder applied for a new licence, would be refused such a licence, (other than in circumstances in which section 47 applies); or
(b) the holder of a private security licence has contravened any condition to which the licence is subject; or
(c) the holder of a private security licence has engaged in conduct in carrying on any activity authorised by the licence that is unfair, dishonest, or discreditable — It is a requirement under the Act for Vic Pol LRD to issue a notice to the relevant private security license operator, setting out the relevant grounds upon which the disciplinary inquiry relates, and a notification that the license holder may make written submissions.
Such submissions to be sent to Vic Pol LRD within 28 days of the letter advising of the disciplinary inquiry. Vic Pol LRD may suspend or vary the license whilst the disciplinary inquiry is conducted, and the suspension remains in force until the disciplinary inquiry has concluded and a decision made.
Preparing Written Submissions
Depending upon the nature of the criminal offences that caused a notice to be sent, a common basis is a preliminary assessment (based on the subject criminal offences) that the license holder is not a “fit and proper person”.
Some assistance can be derived through information published on the Victorian Licensing and Regulation Division of Victoria Police through their website (www.police.vic.gov.au).
The concept of 'fit and proper' is a broad one that takes account of a number of things including the qualities and characteristics of the applicant, the activities they are seeking to perform and the ends to be served by those activities.
Private security licence holders hold a high level of responsibility as they perform activities with the aim of ensuring public safety and peace. It is important to ensure that only suitable persons are licensed to perform such activities.
When assessing whether an applicant is fit and proper to hold a private security licence, factors assessed include:
physical and mental health.
criminal history.
other contacts with police, and
any other matters that may be relevant to the applicant's character
and their suitability to be licensed.
The term ‘fit and proper person’ has also been interpreted by our Courts. In ABT v Bond [1990] HCA at (paragraph 36), the Court observed that the ‘fit and proper person’ test:
“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 occur.
The Court further remarked (at paragraph 63) that:
“The question of whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and proprietary are under consideration”.
It has also been held that the term ‘fit and proper person” must be interpreted so as to promote the purpose or object of the relevant legislation I question (Siguenza v Secretary, Department of Infrastructure [2002] VSC 46 & see section 35 of the Interpretation of Legislation Act 1984 (Vic)).
An assessment of this ground will also include an assessment of whether there is any evidence of:
physical or mental health condition that would adversely affect the license holder’s ability to retain their license.
whether any substance abuse (alcohol and or drugs) would adversely impact upon their ability to retain their license.
An absence of prior criminal history
A person is entitled to enclose character references in their written submissions, the purpose of which is to highlight their good character.
Public Interest
Because private security license holders are subject to strict probity requirements. Where an offence concerns high level criminality, the public interest in not allowing the person to retain their license is higher.
The more serious the offence, the more likely a license will be refused, or cancelled on the basis that it fails the public interest requirement.
Conduct That is Unfair, Dishonest, or Discreditable
The Notice must set out the particulars of the conduct that is unfair, dishonest, or discreditable. These matters will usually be connected to an allegation of criminal offending and go hand in glove with the public interest and fit and proper person considerations.
It will frequently be the case that a criminal offence that alleges dishonesty (theft) will enliven the discreditable and dishonest conduct ground and would amount to a “prohibited person” status upon a finding of guilt.
The submission in response to a Notice of disciplinary inquiry and suspension, must be made within the time frame stipulated in the letter from Vic Pol LRD. If more time is needed an extension should be sought but sought as early as possible.
Obviously, it is entirely at the discretion of Vic Pol LRD as to whether to grant the extension. Failure to respond within the 28-day period (or any extension granted) will lead to a cancellation of the license.
A written submission should include the following:
Statutory declaration provided relevant background information, and where each ground is responded to at length and arguments made as to why the ground is not established.
Character references and any other certificate which demonstrates good character (unpaid community involvement, etc.)
Rehabilitative reports that provide some context to the criminal offences and establish successful rehabilitation.
Interplay with Firearms Act 1996 (Vic)
In addition to the above matters, it will also be the case that a person’s ability to continue their employment will be affected by becoming a prohibited person under the Firearms Act.
The definition of prohibited person under both Acts is different. There will be an overlay between both Acts. The circumstances underpinning a Notice of Intention to Suspend and Proposal to Cancel under the Firearms Act, will also be the basis of a disciplinary inquiry under the Private Security Act 2004 (Vic), and a private security license holder would get two (2) notices under each Act.
Refer to the article on Firearms legislation for more information.
Conclusion
As the notices issued under the Private Security Act 2004 (Vic) can adversely affect the ability to maintain employment in the private security industry, it is very important to get legal advice and prepare early.
Make an appointment to talk with us if you require help keeping your license. Call our office for an obligation free case assessment.
