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Burch v Department of Justice and Attorney-General, Office of Fair Trading (Industry Licencing Unit)[2017] QCAT 145

Burch v Department of Justice and Attorney-General, Office of Fair Trading (Industry Licencing Unit)[2017] QCAT 145

CITATION:

Burch v Department of Justice and Attorney-General, Office of Fair Trading (Industry Licencing Unit) [2017] QCAT 145

PARTIES:

Travis Charles Burch

(Applicant)

v

Department of Justice and Attorney-General, Office of Fair Trading (Industry Licencing Unit) (Respondent)

APPLICATION NUMBERS:

GAR171-15

GAR154-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Guthrie

DELIVERED ON:

10 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

In relation to GAR171-15:

  1. The reviewable decision to suspend Mr Burch’s private investigator licence is confirmed.

In relation to GAR154-16:

  1. The reviewable decision to suspend Mr Burch’s private investigator licence is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Office of Fair Trading (Licensing Unit) suspended private investigator licence – where private investigator licence holder applied for review of decision to suspend licence – where Tribunal conducts review by way of fresh hearing on the merits – what is the correct and preferable decision

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES, AND CALLINGS – COMMERCIAL, SECURITY, AND INVESTIGATION AGENTS – where private investigator licence holder charged with fraud offences – where decision made by regulatory body to suspend private investigator licence – where licence holder seeks review by the Tribunal of decision to suspend his private investigator licence – where criminal charges not finalised at date of hearing by Tribunal whether discretion to suspend licence should be exercised.

Criminal Code Act 1899 (Qld) s 408(1)(c), s 408C

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 24, s 32

Security Providers Act 1993 (Qld) s 4, s 6, s 11, s 21, s 22, Schedule 1, Schedule 2

Burch v Office of Fair Trading [2015] QCAT 363, related

Burch v Office of Fair Trading (No.2) [2016] QCAT 435, related

Black v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27, cited

Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit [2015] QCAT 223

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

Harley v Department of Justice and Attorney-General [2012] QCAT 390, cited

APPEARANCES:

APPLICANT:

Travis Charles Burch

RESPONDENT:

Department of Justice and Attorney-General, Office of Fair Trading (Industry Licencing Unit)

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Background to GAR171-15

  1. [1]
    Travis Burch holds a private investigator licence pursuant to the Security Providers Act 1993 (the SP Act). The respondent is the department charged with the responsibility for administering the SP Act.
  2. [2]
    Mr Burch was first granted a licence in November 2006 and had held it without complaint until 1 April 2015 when he was charged with fraud under s 408(1)(d) of the Criminal Code (Charge 1).
  3. [3]
    Mr Burch was charged with a second fraud offence, dishonestly gain/benefit advantage, on 7 May 2015 (Charge 2).
  4. [4]
    On 1 July 2015, the respondent decided to suspend Mr Burch’s licence until the proceedings involving charges 1 and 2 were finalised.
  5. [5]
    Mr Burch has applied to this Tribunal for a review of that decision. 
  6. [6]
    On 27 August 2015, this Tribunal (differently constituted) granted a stay of the decision to suspend Mr Burch’s licence pending conclusion of the review.[1] At the time of the decision to stay the decision, the Queensland Police Service (QPS) court brief in relation to charge 2 was not available to the Tribunal.
  7. [7]
    Charges 1 and 2 arose from the same police investigation but relate to different circumstances.

Background to GAR154-16

  1. [8]
    On 24 February 2016, Mr Burch was charged with two offences under s 408C(1)(d) of the Criminal Code: fraud-dishonesty gain benefit/advantage (charge 3).
  2. [9]
    On 26 April 2016, the respondent decided to suspend Mr Burch’s licence until the end of the proceedings involving charge 3.
  3. [10]
    Mr Burch applied to this Tribunal for a review of that decision.
  4. [11]
    On 10 November 2016, this Tribunal granted a stay of the decision to suspend Mr Burch’s licence pending conclusion of the review.[2]
  5. [12]
    None of the charges have yet been finalised. Mr Burch has remained free without restriction since he was first charged.
  6. [13]
    There is a link between the facts and circumstances which led to charges 1 and 3. However, the court brief in relation to charge 3 contains more detail and draws on broader circumstances involving multiple companies.

The Tribunal’s review jurisdiction

  1. [14]
    The Tribunal must decide the reviews in accordance with the SP Act (the enabling Act) and the QCAT Act. The Tribunal has all the functions of the decision-maker for the reviewable decisions being reviewed.[3]
  2. [15]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision. The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[4]
  3. [16]
    The Tribunal made directions to the effect that in the absence of either party applying for an oral hearing, the reviews would be determined on the papers without the need for an oral hearing.[5] Neither party applied for an oral hearing. The facts upon which the decisions to suspend Mr Burch’s licence were made are agreed between the parties. The Tribunal considers it appropriate to determine both reviews on the papers pursuant to s 32 of the QCAT Act.
  4. [17]
    In a proceeding for a review of a reviewable decision, the Tribunal may:
    1. Confirm or amend the decision; or
    2. Set aside the decision and substitute its own decision; or
    3. Set aside the decision and return the matter for reconsideration to the decision-maker for the decision with the directions the Tribunal considers appropriate.[6]

Agreed facts

  1. [18]
    In relation to both reviews, the parties have filed an agreed statement of facts. None of the agreed facts relates to the particulars or elements of the particular offences with which Mr Burch has been charged.
  2. [19]
    It is agreed that Mr Burch has been so charged, that the two charges in GAR 171-15 arise out of the same police investigation but relate to two separate matters, that the offences with which he has been charged are “disqualifying offences” under the SP Act, and that he intends to defend the charges.[7]
  3. [20]
    It is agreed that at the time the stay was granted in relation to GAR 171-15, the Tribunal did not have a copy of the court brief for charge 2.
  4. [21]
    Otherwise, the agreed facts relate to particular steps taken and decisions made by the respondent and the Tribunal during the original decision-making processes and in the review processes.
  5. [22]
    In terms of evidence, the Tribunal has before it the documents filed in the Tribunal pursuant to s 21(2) of the QCAT Act, i.e., documents in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the reviewable decisions. In this case, those documents include redacted copies of the QPS court briefs in relation to the charges and Mr Burch’s responses to the show cause notices issued by the Department. In addition, Mr Burch and the Department have made submissions to the Tribunal.

The relevant legislative provisions and issues for determination

  1. [23]
    The SP Act provides for the licensing of persons who wish to engage in the profession of a security provider. A ‘security provider’ includes a private investigator.[8] Section 6 describes who a “private investigator” is and relevantly provides:

Who is a private investigator

(1) A private investigator is a person who, for reward —

(a) obtains and gives private information about another person, without the other person's express consent; or

(b) carries out surveillance for obtaining private information about another person, without the other person's express consent; or

(c) investigates the disappearance of a missing person.

…

private information, about a person, means information, including information recorded in a document, about—

(a) for an individual—the individual's personal character, actions, business or occupation; or

(b) for a person other than an individual—the person's business or occupation.

  1. [24]
    When a person applies for a licence, consideration must be given to whether the person is an appropriate person to hold a licence. In deciding this aspect, the chief executive must consider particular matters as indicating that the person may not be an appropriate person. Those matters include, in dealings in which the person has been involved, the person has shown dishonesty or a lack of integrity.[9]
  2. [25]
    Section 21 of the SP Act sets out the grounds for suspending a licence. The charging of a licensee with a ‘disqualifying offence’ is a ground for suspending a licence until the end of the proceeding for the charge.[10] Mr Burch has been charged with having committed offences under Chapter 37 of the Criminal Code. “Disqualifying offence” is defined in Schedule 2 of the SP Act to include an offence against a provision of the Criminal Code mentioned in Schedule 1. The offences with which Mr Burch has been charged are listed in Part 1, Schedule 1 so that they are “disqualifying offences”.
  3. [26]
    Mr Burch remains charged with those offences. The charges have not been finalised in the courts. Therefore, a ground exists for suspending Mr Burch’s licence until the end of the proceeding for the charge.
  4. [27]
    Section 22 of the SP Act sets out the procedure for suspending a licence. If the chief executive considers that reasonable grounds exist to suspend a licence, the chief executive must give the licensee a show cause notice that:
    1. states the action proposed; and
    2. states the grounds for proposing to take the action; and
    3. outlines the facts and circumstances that form the basis for the chief executive’s belief; and
    4. if the chief executive proposes to suspend the licence – states the proposed suspension period; and
    5. invites the licensee to show cause within a specified time, of not less than 28 days, why the action proposed should not be taken.
  5. [28]
    In the two reviews, show cause notices were sent to Mr Burch. The chief executive relied on the information received from the QPS regarding the charges as the facts and circumstances forming the basis for the belief that reasonable grounds existed to suspend Mr Burch’s licence. Mr Burch was duly notified that it was proposed to suspend his licence until the end of the proceeding in relation to the charges.
  6. [29]
    Pursuant to s 22(2) of the SP Act, if after considering all representations made within the specified time, the chief executive still believes that grounds to take the action exist, the chief executive may-
    1. If the show cause notice was a notice of intention to suspend the licence for a specified period – suspend the licence for a period not longer than the specified period;…[11]
  7. [30]
    After consideration of Mr Burch’s representations in response to the show cause notices, the chief executive made the decisions to suspend his licence. It is clear from s 22(2) of the SP Act that the decision to suspend a person’s licence involves an exercise of discretion. It does not automatically follow that, because a ground exists for suspending the licence, the licence must be suspended.
  8. [31]
    Therefore, the issue for determination by the Tribunal in respect of each review is whether the discretion in s 22(2) of the SP Act to suspend Mr Burch’s licence should be exercised.

Discussion of evidence

  1. [32]
    In determining these reviews, the Tribunal has carefully considered the material filed in the Tribunal by the parties, including all documentary evidence and written submissions. I have also considered the s 21(2) documents. The salient parts of the evidence are summarised in these reasons.
  2. [33]
    The offences with which Mr Burch has been charged are dishonesty offences. Charges 2 and 3 include the element of obtaining benefit or advantage from the offending conduct. In relation to charge 3, the amount alleged to have been received by Mr Burch is $31,565.89. Mr Burch was charged following a broader police investigation.
  3. [34]
    The allegations the subject of charge 1 and 3 relates to events said to have occurred as early as 2011. The QPS court briefs provide the background and alleged facts said to support the charges against Mr Burch.[12] It is alleged that victims invested with a company purporting to trade in investment strategies with other well-established companies after receiving unsolicited telephone calls from persons using fictitious names.
  4. [35]
    It is alleged that victims deposited money into the nominated company bank accounts which, instead of being used for investments, were almost immediately withdrawn by the company director in cash.
  5. [36]
    It is alleged that Mr Burch’s role was, amongst other allegations, to recruit and install a “puppet director” to run the company in name only with no involvement in the day-to-day running of the company. It is alleged he made arrangements for the person to complete ASIC documents for the company and gave him instructions in relation to his duties as director.
  6. [37]
    It is alleged that Mr Burch also assisted with arranging web design, located and purchased shelf companies, arranged virtual offices, and dealt with customer complaints. It is alleged that, upon Mr Burch’s instructions, amounts were withdrawn from the accounts and the accounts were closed.
  7. [38]
    It is alleged he set up accounts for a bookmaker, secured a licence for a person from overseas, and sought to influence the bookmaker placing bets to control the return. It is alleged that Mr Burch travelled overseas to set up accounts.
  8. [39]
    The court brief in relation to the later charge refers to claimed evidence obtained from Mr Burch’s smartphone and computer.
  9. [40]
    The court brief in relation to charge 2 relates to the alleged operation of a website by Mr Burch and others whereby registered members on the site can hire social companions. The site also advertised that social companions could earn a particular fee and an annual fee was paid to become a member. The investigation identified victims who had paid money to be registered on the site but none of the companions had received any enquiries or bookings. Further investigation established that the business did not have any members who could hire the companions.[13] It is alleged that there are some 110 victims who paid annual fees but received no work. The alleged offending conduct is stated to have occurred between 24 November 2014 and 7 May 2015.
  10. [41]
    Mr Burch declined to be officially interviewed in respect of any of the charges as is his right. Mr Burch has not provided the Tribunal with any evidence to contradict the allegations nor presented an alternative version of events other than to state he has had “no interaction, contract or dealings with” any of the alleged victims.[14] That cannot be a complete answer to the extensive and complex allegations contained in the court briefs. He also denies receiving large sums of money. He has stated that the charges will be defended and the Tribunal accepts that is the case.
  11. [42]
    Mr Burch submits that the court briefs do not indicate that he was aware of or complicit in a criminal enterprise. The alleged acts in isolation, he says, do not establish an act that is inherently criminal in nature[15]. Mr Burch says that he is an ASIC registered agent and, as such, the establishment of business entities is a standard practice for those in that role[16].
  12. [43]
    The court briefs describe various complex schemes with Mr Burch having a degree of involvement in all of them. The QPS claims it has some evidence apparently taken from Mr Burch’s phone and computer that suggests knowledge of the fraudulent nature of the schemes. Given the elements of the offences with which Mr Burch has been charged, the Tribunal considers that it must be alleged by police that Mr Burch was aware of how the scheme/s in respect of which it is alleged he played a particular role was/were operating. The Tribunal accepts it is for the courts to determine whether Mr Burch is guilty of the charges and to do so the court must find all of the elements of the offences satisfied. However, the Tribunal also accepts that the court brief contain allegations obtained through a police investigation that support the charges brought against Mr Burch.
  13. [44]
    The Tribunal accepts that the allegations do not appear to be directly linked with Mr Burch’s employment as a security provider. The allegations are not based on facts and circumstances that arose out of his employment.
  14. [45]
    The respondent submits that charge 2 is not a continuation of the behaviour the subject of the allegations in respect of charge 1. The respondent submits that the criminal activity is not a once-off event or single transaction but repetitive behaviour.[17] The Tribunal accepts based on content of the court briefs that charge 2 relates to a different set of circumstances to charges 1 and 3.
  15. [46]
    Mr Burch has provided a reference from a managing director of an investigation agency. The referee states that, prior to utilising Mr Burch as a contractor on investigation and surveillance matters, he became aware that he was in the process of defending criminal charges. The referee states that he considers him a person that is fit and proper to hold a licence pending hearing of the charges. The Tribunal has no reason to doubt that the opinion of his referee is honestly held. The referee appears to be aware of the charges although it is unclear the extent to which he knows the details of specific allegations. The Tribunal accepts that Mr Burch’s referee is supportive of him retaining his licence.
  16. [47]
    The respondent relies on the affidavit of Mr Peter Rashford, Principal Probity Review Officer within the Industry Licensing Unit, who was delegated to exercise the powers of the chief executive under the SP Act[18]. The affidavit deposes to the close association both professionally and personally between Mr Burch and Mr Featherstone,[19] which Mr Burch does not deny. 
  17. [48]
    Mr Burch admits his association with others who are also the subject of police investigation including Mr Michael Featherstone. The Tribunal finds that Mr Burch has a personal and professional association with Mr Featherstone and others who are named in the police investigation.
  18. [49]
    Mr Burch has provided details of his taxable income for the financial years ended 30 June 2014, 30 June 2015, and 30 June 2016. His licence was first suspended in 2015 so Mr Burch submits that the 2014 income illustrates his income prior to suspension. He says that his taxable income for the financial year ended 30 June 2014 was $61,767, for the financial year ended 30 June 2015, was $27,450, and for the financial year ended 30 June 2016 was $10,693.
  19. [50]
    In an earlier submission, Mr Burch states that he holds other licences and authorisations but that the work he derives from those certifications would not represent greater than 10% of his total income.[20] That submission was made shortly after the stay was granted on 10 November 2016.
  20. [51]
    He has further stated that in relation to any future clients, he is only receiving investigation work from security firms and providers with knowledge of the matter at hand.[21] Again, that submission was made shortly after the stay was granted.
  21. [52]
    However, Mr Burch has not supplied his full income tax returns so it is unclear exactly what level of income is attributable to his licence. It is unclear what other work he performs. It is also impossible to determine whether the reduction in his taxable income might be due to other factors, such as the amount of any allowable deductions, or perhaps other factors, such as a lack of available work. Having said that, I accept that the loss of his licence likely played some part in the reduction of his income from the financial year ended 30 June 2014 and in subsequent financial years. Mr Burch’s suspension was stayed between 27 August 2015 and 24 February 2016 and then from 9 November 2016. Therefore, for about half of the 2015/2016 financial year, Mr Burch had the benefit of his licence. His taxable income in that year was very low.
  22. [53]
    Mr Burch says that it is difficult to specify the amount of his financial loss attributable solely to the loss of his licence. However, he submits that it is a large factor and, should he retain his licence, he will be able to secure further employment.[22] That suggests to me that he is not currently working as a private investigator despite the stay order.
  23. [54]
    The Tribunal accepts that any reduced level of income will financially impact Mr Burch’s ability to meet liabilities and support his household. It may also, as he submits, impact his ability to finance his defence of the criminal charges.
  24. [55]
    However, the Tribunal also finds that Mr Burch has other certificates that might assist him in obtaining other employment.
  25. [56]
    Mr Burch submits that, given the length of time without incident that he has held a licence and the anticipated lengthy duration before the charges are dealt with by the courts, he ought not be prevented from making a living. He submits that he should retain his licence until the conclusion of the charges. The Tribunal accept that there is no clear indication as to when the charges are likely to be finalised. The Tribunal also accepts that Mr Burch was first charged in July 2015.
  26. [57]
    Mr Burch has no previous criminal history. Mr Burch also relies on negative media attention from information provided to the media by police impacting his ability to secure employment. The Tribunal accepts that he may be so impacted but the extent of that impact is difficult to measure and it would depend on the type of work he sought.
  27. [58]
    Mr Burch argues that a suspension would amount to a penalty on him in circumstances where the charges are not proved.

Respondent’s submissions

  1. [59]
    The respondent relies on s 11 of the SP Act which identifies dishonesty, lack of integrity, and information that indicates the holding of a licence by a person would be contrary to the public interest as some relevant factors that may lead to a finding that a person is inappropriate to hold a licence. The respondent submits that the public should be able to have confidence that persons issued licences continue to demonstrate that they are appropriate persons.[23]
  2. [60]
    The respondent submits that the charges and circumstances are serious and involve potential terms of imprisonment. The charges are also relevant to the duties of a private investigator as the charges necessarily involve a lack of honesty and integrity. In those circumstances, it would be against the public interest for the applicant to continue to be accredited as a licensee under the legislation as a private investigator until the charges are finalised.
  3. [61]
    The respondent submits that disqualifying charges can include very minor assault/stealing but the circumstances of charges 1 and 2 could not be described as minor. The absence of bail conditions being posted, the respondent submits, is not unusual given that there is no evidence that Mr Burch is a flight risk. The charges are not of such a nature that the public needs to be physically protected from Mr Burch, and the police have interrupted the means used to commit the offences. The risk that Mr Burch will be able to continue to be involved with that type of offending is not such that bail should be refused. The respondent submits that Mr Burch’s good character would attract greater importance if the charges were of a minor nature. The acts alleged are not a heat of the moment or impulsive action that has taken place out of character by the applicant, but relates to conduct that demonstrates a planned series of activities.[24]
  4. [62]
    Relying on Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2)[25], the respondent submits that a protective sanction may have a punitive effect, but the extent of the sanction imposed to achieve a protective purpose must still reflect the seriousness of the alleged conduct. It is submitted that maintaining the suspension pending the outcome of the charges does protect the public in that a person who faces serious charges that relate to lack of honesty and integrity would not be able to act as a private investigator.
  5. [63]
    Again relying on Featherstone[26], the respondent submits that because the charges do relate to issues of integrity and honesty, they are integrally linked with the functions of a private investigator.[27]
  6. [64]
    The respondent submits that financial detriment must be balanced in the context of all the circumstances. It is submitted that the public interest in maintaining the integrity of the licensing scheme outweighs the impact on the applicant’s financial interests.[28]
  7. [65]
    In conclusion, the respondent submits that, adopting words of the member in Featherstone[29]:

... 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.

  1. [66]
    The chief executive acknowledges that the Featherstone offences were different to those being faced by Mr Burch, but are still related to the integrity of the licensing scheme. The chief executive reminds the Tribunal that this is a case where the reviewable decision is a decision to suspend until the outcome of the charges and not a licence cancellation.[30]
  2. [67]
    In the respondent’s submissions in respect of the stay application, it was submitted that private investigators are typically operators who investigate missing persons, conduct covert surveillance operations and factual investigations, obtain photographic evidence and conduct background checks on behalf of their clients. It is submitted that it follows such activities require persons at the very pinnacle of probity and personal integrity.[31]
  3. [68]
    Further, the respondent submits that licensing of private investigators under the SP Act helps to ensure that the privacy of individuals is protected from persons who collect and use confidential information or make enquiries that may lead to a breach of privacy laws. The community benefit as a whole by the SP Act ensuring private investigators are appropriate people who hold the relevant experience and knowledge of the industry, who are ethical, and who do not contribute toward criminal behaviour in the community.[32]

Consideration

  1. [69]
    While stay orders have been made pending these reviews, the Tribunal now has the opportunity to consider all the final submissions and material relied upon by the parties. The Tribunal must now reach the correct and preferable decision by way of fresh hearing on the merits to finalise these reviews.
  2. [70]
    In Featherstone[33] this Tribunal (differently constituted) confirmed the decision of the respondent to suspend Mr Featherstone’s licence. The respondent seeks to draw a number of parallels between this case and that of Mr Featherstone due to the professional and personal association between the two and the commonality of the police investigations leading to both Mr Burch and Mr Featherstone being charged by the QPS. Mr Burch seeks to distinguish Mr Featherstone’s case from his own. The Tribunal is guided by the reasoning in Featherstone but accepts that there are some distinguishing facts between those in Featherstone and the present case.
  3. [71]
    In the Tribunal’s view, the learned member in Featherstone considered the allegations relating to physical safety a significant factor in terms of the exercise of the discretion to suspend Mr Featherstone’s licence, a factor which is absent in this case.
  4. [72]
    In Featherstone, this Tribunal recognised that in disciplinary proceedings a sanction serves a protective purpose.[34] Further, it was stated that 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.[35] The Tribunal agrees that the protection of the public is the paramount consideration.
  5. [73]
    The Tribunal went on to say:

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 licencing suspension when a licensee is merely charged with a disqualifying offence, the Legislature therefore appears to be predominantly concerned with the perception created by a licensee operating while concomitantly addressing serious allegations relevant to their functions as a licensee.[36]

Public confidence in the industry as a whole is thus undermined by charges from alleged events that are integrally linked with the functions of an 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. 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.[37]

  1. [74]
    The Tribunal in Featherstone considered a number of matters, including the impact on Mr Featherstone’s family and reputation. Mr Featherstone had no criminal history. Mr Featherstone had been a private investigator for 18 years without complaint and had a sophisticated client base consistent with him being held with due regard within the industry. It was found that suspending his licence restricted his ability to support his family and affected his professional and personal reputation pending the outcome of any criminal proceedings.[38] It was accepted that the revenue of his business had declined as a result of the suspension of his licence and this would, in turn, have an impact on his business’s ability to maintain his employees and properly service his clients.[39] The Tribunal also noted that 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.[40]
  2. [75]
    The Tribunal also considered the legislature’s intent for the presumption of innocence in security licensing saying:

[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 charges with a disqualifying offence, compared with being convicted of a disqualifying offence. [s 21(5) of the SP Act].[41]

  1. [76]
    The Tribunal noted that from the QPS court brief, it was not possible to properly assess the prima facie validity or the strength of the case against Mr Featherstone.[42] Further, the Tribunal noted that Mr Featherstone had not provided any alternative version of events to the Tribunal. The Tribunal, while acknowledging that he had that right and that his failure to provide an alternative version did not necessarily mean he did not have an arguable case to the charges,[43] also stated that the Tribunal did not know what the alternative version of events might be.[44]
  2. [77]
    The Tribunal said that the surrounding circumstances of the charges relating to personal safety and the administration of justice were serious.[45] The learned member noted that while it was not claimed that the alleged offences occurred while performing the functions of a private investigator, the nature of the alleged offences related to alleged illicit obtaining of information. The learned member went on:

…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.

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.[46] The public must be confident that persons licensed to obtain information without another person’s consent to do so within the law.[47]

  1. [78]
    Similarly in Mr Burch’s case, the QPS court brief does not reveal any alleged connection between Mr Burch’s work as a private investigator and the alleged offending conduct. In contrast to Mr Featherstone’s case, the alleged offending behaviour does not relate to personal safety nor does it relate to alleged illicit obtaining of information by Mr Burch personally. Although, given the elements of the offences with which Mr Burch has been charged, it must be alleged that Mr Burch was aware of the fraudulent nature of the schemes in respect of which it is alleged he played a particular role. It is also alleged that he obtained a financial benefit in respect of charges 2 and 3.
  2. [79]
    Mr Burch has not presented an alternative version of the events set out in the QPS court brief. However, he has stated that he has had “no interaction, contract or dealings with” any of the alleged victims and denies receiving large sums of money.[48] As the Tribunal has found that is not a complete answer to the extensive and complex allegations.
  3. [80]
    Mr Burch is concerned that a decision to suspend his licence will amount to a public statement of guilt in the absence of a trial and conviction. It will lead to a loss of income and financially impact his ability to defend the charges.
  4. [81]
    The Tribunal does not know when the charges against Mr Burch might be concluded in the courts. These reviews have been on foot since as early as July 2015. It could well be, given the apparent complexity of the police investigation, that it will be quite some time before the charges are finalised.
  5. [82]
    The Tribunal accepts that a decision to confirm the reviewable decisions to suspend Mr Burch’s private investigator licence will have an impact on his financial position and his ability to fund his defence. The Tribunal also acknowledges that that financial impact may well be felt for quite some time into the future. 
  6. [83]
    In mitigation, the Tribunal is aware that, for those without sufficient means, legal services are available. Further, Mr Burch holds other certificates and authorisations that might assist him to secure other employment. While suspension of Mr Burch’s licence will impact others in his household, he is not responsible for any employees so far as the Tribunal is aware.
  7. [84]
    The Tribunal does not accept that the suspension of his licence is a public statement of guilt but rather an administrative decision based on a weighing of all relevant considerations. It is not uncommon across various professions for those charged with offences to be effectively stood down pending finalisation of the charges. 
  8. [85]
    Mr Burch says that the economic impact would amount to the imposition of a penalty. As the Tribunal has already stated the legislature clearly contemplated the suspension of a licence in circumstances where the licence holder is charged with certain offences. It is for the Tribunal to weigh relevant considerations to determine whether to suspend the licence.
  9. [86]
    The Tribunal understands Mr Burch’s reluctance to provide details of his defence given the criminal charges are still pending. The criminal charges are serious matters for Mr Burch. However, as the Tribunal said in Featherstone, it leaves the Tribunal without anything to weigh against the information contained in the QPS court briefs.
  10. [87]
    It is not for the Tribunal to determine Mr Burch’s guilt in relation to the charges. The QPS has charged Mr Burch with a number of offences having formed the view that it had sufficient evidence to do so. The Tribunal has noted that the court briefs refer to evidence the QPS says supports the charges obtained from sources personal to Mr Burch.
  11. [88]
    The Tribunal accepts that at least one member of the industry, Mr Burch’s referee, is confident in Mr Burch’s integrity.
  12. [89]
    Mr Burch has been free in the community despite the number and nature of the charges against him and no further charges have been laid nor is the Tribunal aware that the respondent has received any complaints about Mr Burch. The Tribunal accepts that in determining whether and on what conditions bail should be granted the Magistrate would have weighed a number of matters.
  13. [90]
    That Mr Burch was granted bail without condition and has not been the subject of any further complaints in that time, does not reduce the weight the Tribunal should give to the seriousness of the alleged conduct in determining whether Mr Burch’s licence is suspended. While there may be little actual risk to new clients and other members of the public at the current time, there are broader public interest considerations to consider and weigh.
  14. [91]
    The charges relate to serious dishonesty offences. The various charges relate to different sets of circumstances and allegedly show a course of conduct and pattern of behaviour of involvement in well organised and sophisticated schemes rather than a one-off event which could be argued to be out of character. The content of the court briefs and the claimed evidence referred to therein are suggestive of an involvement beyond being a person caught up in a scheme engineered by others and in respect of which Mr Burch had no knowledge.
  15. [92]
    The Tribunal accepts that the public interest is served by ensuring the protection of members of the public who might engage a private investigator as well as those members of the public who might deal with a private investigator generally. The public is entitled to have confidence that those who hold a private investigator licence are fit and proper to do so and honesty and integrity are key characteristics for such an assessment according to the legislation. The importance of honesty and integrity is linked to the type of work that private investigator’s are engaged to perform. Private investigators can obtain the private information of others without the need for consent.
  16. [93]
    Further, there is an important broader public interest in decisions made under the SP Act being consistent with promoting public confidence in the security provider industry as a whole.
  17. [94]
    The Tribunal has weighed Mr Burch’s private interests, taking into account matters going to mitigation of some aspects of his interests, against the public interest considerations and the seriousness, nature and number of charges against Mr Burch. The Tribunal considers that the public interest considerations and the seriousness, nature and number of charges against Mr Burch outweigh Mr Burch’s private interests as outlined above. The Tribunal is persuaded that the discretion in s 22(2) of the SP Act should be exercised to suspend Mr Burch’s licence in respect of all of the charges until the charges are finalised. The Tribunal does not consider that it would be appropriate to fix any other earlier period, at this time, in the circumstances given the ground on which the suspension decision was based would still exist while the charges remained on foot. Therefore, the Tribunal determines that the reviewable decisions are both confirmed.

Footnotes

[1]Burch v Office of Fair Trading [2015] QCAT 363.

[2]Burch v Office of Fair Trading (No.2) [2016] QCAT 435.

[3]QCAT Act, s 19.

[4]QCAT Act, s 20.

[5]Directions of SM O'Callaghan in GAR 171-15 dated 4 October 2016 and Directions of SM O'Callaghan in GAR 154-16 dated 4 October 2016.

[6]QCAT Act, s 24.

[7]Statement of Agreed Facts dated 2 November 2016, see in particular [5], [6], [11], [12], [22], [23].

[8]SP Act, s 4(1)(c).

[9]SP Act, s 11(4)(a)(i).

[10]SP Act, s 21(5).

[11]SP Act, s 22(2).

[12]Section 21(2) documents at pp. 41-45 in GAR154-16 and pp. 38-43 in GAR171-15.

[13]Respondent’s submission received 16 March 2016 at [11].

[14]Submission dated 15 November 2016 at [39].

[15]Final submission and response to Respondent’s submission [26].

[16]Final submission and response to Respondent’s submission [27].

[17]Respondent’s submission received 16 March 2016 at [12] and [13].

[18]Affidavit of Peter Rashford dated 15 March 2016.

[19]Ibid at [3], [4], [5] and [8] and the relevant attachments referred to therein.

[20]Submission dated 15 November 2016 at [35].

[21]Submission dated 15 November 2016 at [45].

[22]Final submission and response to Respondent’s submission [23].

[23]Respondent’s submissions received 16 March 2016 [6].

[24]Ibid at [21], [22], [23], [24].

[25][2015] QCAT 329.

[26]Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329 at [26]-[28].

[27]Respondent’s submission received 16 March 2016 at [26].

[28]Respondent’s submission received 16 March 2016 at [27] citing Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329 at [32].

[29]Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329 at [31].

[30]Respondent’s submission received 16 March 2016 at [28] to [30].

[31]Ibid at [37].

[32]Ibid at [38].

[33][2015] QCAT 329.

[34]Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329 at [25].

[35]Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329 at [26].

[36]Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329 at [27] referring to Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit [2015] QCAT 223 at [20].

[37]Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329 at [28] referring to Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit [2015] QCAT 223 at [15].

[38]Ibid at [8] and [9].

[39]Ibid at [11].

[40]Citing Black v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 at [16].

[41]Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329 at [13].

[42]Ibid at [17].

[43]Ibid at [18].

[44]Ibid at [19].

[45]Ibid at [22].

[46]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].

[47]Featherstone v Department of Justice and Attorney-General [2012] QCAT 390 at [23] and [24].

[48]Submission dated 15 November 2016 at [39].

Close

Editorial Notes

  • Published Case Name:

    Travis Charles Burch v Department of Justice and Attorney-General, Office of Fair Trading (Industry Licencing Unit)

  • Shortened Case Name:

    Burch v Department of Justice and Attorney-General, Office of Fair Trading (Industry Licencing Unit)

  • MNC:

    [2017] QCAT 145

  • Court:

    QCAT

  • Judge(s):

    A/Senior Member Guthrie

  • Date:

    10 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Black v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27
2 citations
Jump To
Cite 1 - [2011] QCAT 27
Cite 2 - [2011] QCAT 27
Burch v Office of Fair Trading [2015] QCAT 363
2 citations
Jump To
Cite 1 - [2015] QCAT 363
Cite 2 - [2015] QCAT 363
Burch v Office of Fair Trading (No.2) [2016] QCAT 435
2 citations
Jump To
Cite 1 - [2016] QCAT 435
Cite 2 - [2016] QCAT 435
Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit [2015] QCAT 223
5 citations
Jump To
Cite 1 - [2015] QCAT 223
Cite 2 - [2015] QCAT 223
Cite 3 - [2015] QCAT 223
Cite 4 - [2015] QCAT 223
Cite 5 - [2015] QCAT 223
Featherstone v Department of Justice and Attorney-General, Industry Licencing Unit (No 2) [2015] QCAT 329
15 citations
Jump To
Cite 1 - [2015] QCAT 329
Cite 2 - [2015] QCAT 329
Cite 3 - [2015] QCAT 329
Cite 4 - [2015] QCAT 329
Cite 5 - [2015] QCAT 329
Cite 6 - [2015] QCAT 329
Cite 7 - [2015] QCAT 329
Cite 8 - [2015] QCAT 329
Cite 9 - [2015] QCAT 329
Cite 10 - [2015] QCAT 329
Cite 11 - [2015] QCAT 329
Cite 12 - [2015] QCAT 329
Cite 13 - [2015] QCAT 329
Cite 14 - [2015] QCAT 329
Cite 15 - [2015] QCAT 329
Harley v Department of Justice and Attorney-General [2012] QCAT 390
3 citations
Jump To
Cite 1 - [2012] QCAT 390
Cite 2 - [2012] QCAT 390
Cite 3 - [2012] QCAT 390
Harley v Department of Justice and Attorney-General [2012] QCAT 620
1 citation
Jump To
Cite 1 - [2012] QCAT 620

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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