SS v Office of Fair Trading[2023] QCAT 215

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 24 April 2023 a non-publication order was made in relation to the Applicant and all materials contained in the file GAR124-23 against all persons save for the parties.
2. [2]
   SS the Applicant in these proceedings was registered under the Security Provider Act 1993 (Qld) (the S P Act) as a Security Officer (unarmed) and Crowd Controller.
3. [3]
   On 3 January 2023, SS was served with a Show Cause Notice issued under s. 22 (1) of the S P Act by the Office of Fair Trading (OFT) inviting him to show cause why his licence should not be suspended. The reason for the Notice was that SS had been charged with offences under the Criminal Code 1989 (Qld) being rape and sexual assaults. Section 21 (5) of the S P Act states that 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.
4. [4]
   SS’s licence was suspended on 13 February 2023 until the end of the criminal proceedings.
5. [5]
   On 21 February 2023 SS filed an application to stay proceedings. The application is opposed by the OFT.

Legislation and principles in considering a stay

6. [6]
   Section 22 of the QCAT Act provides the legislative basis for granting or not granting a stay. The Tribunal does not have an unfettered discretion to order a stay. The Tribunal must form a positive view that the making of a stay order is desirable.^[1] Section 22(4) requires a consideration of the interests of any person whose interests may be affected; any submission of the decision-maker for the reviewable decision; and the public interest. The Tribunal is not limited to the factors set out in s. 22 (4) but may refer to other considerations such as the standard curial principles that apply to the discretion applicable to granting a stay.^[2]

Background of the offences

7. [7]
   The complainant had attended a bar/restaurant during the evening of 19 December 2022. She consumed a quantity of alcohol and concedes she was highly intoxicated. She had consensual sexual intercourse with a male acquaintance she was unable to later identify. At the end of that encounter, she was left alone without her underwear or pants or her mobile phone.
8. [8]
   SS was performing security patrols in the area. He stopped in the course of his duties. The complainant mistaking his vehicle for an Uber entered the back seat. SS instructed her to get in the front seat. She was not wearing any clothes on the bottom half of her body and was only wearing a cropped top on the upper half of her body.
9. [9]
   SS is alleged to have stated several times to her that “you are very beautiful’. The complainant asked him to drive her to Palm Beach. During that time SS allegedly asked whether he could touch her. The complainant said no to this request. He allegedly later asked her whether he could perform oral sex on her. The complainant said no to this request. SS then allegedly inserted his fingers into her vagina. Later he allegedly told her to part her legs and then placed his tongue in her vagina. The complainant says she only did this because she was frightened of SS. The complainant, allegedly, asked SS to return her to the place where she had entered his car.
10. [10]
    SS admitted that he inserted his fingers into her vagina two or three times. He denied he asked her to perform oral sex on him and denied he performed oral sex on her but admitted to kissing the complainant on the lower part of her stomach.
11. [11]
    SS admitted that when she got into his vehicle he noticed that she was naked on the bottom part of her body and that she was intoxicated. According to SS, the complainant was confused as to where she wanted to go so he returned to the place where she had entered his car.
12. [12]
    It is apparent that at the trial the principal issue will be one of consent.

Submissions by SS

13. [13]
    On SS’s behalf it is submitted that a stay is appropriate for the following reasons:

1. (a)
   The effect of the stay is very punitive;
2. (b)
   He should be accorded the presumption of innocence;
3. (c)
   He co-operated with the police;
4. (d)
   He has a cogent defence.

13. [14]
    SS’s legal advisors criticise the decision maker for failing to give any or sufficient weight to the following:

1. (a)
   At the time of making his decision no brief of evidence had been obtained by the decision maker upon which he could in any way test the prima facie validity of the charge;
2. (b)
   The fact that the decision maker advised he would be defending the charges;
3. (c)
   That despite the serious nature of the charges SS was granted watch house bail;
4. (d)
   The otherwise good character of SS;
5. (e)
   The imposition of a suspension serves as a punitive rather than a protective imposition, contrary to the objects of the S P Act;
6. (f)
   SS’s human rights;
7. (g)
   The absence of significant or justifiable public interest factors.

16. [15]
    A brief of evidence has since been delivered and in view of the SS’s admissions a prima facie case exists.

Public Interest

16. [16]
    The Tribunal is to have regard to the interests of persons who may be affected by the making of an order.^[3] Under the provisions of the S P Act the OFT must consider the integrity of the applicant and whether that person would be a risk to public safety and whether the holding of a licence by the person would be contrary to the public interest.
17. [17]
    The OFT submits that a Security Officer (unarmed) and Crowd Controller’s duties involve interactions with the public providing security at hotels and clubs, sporting events, restaurants and/or shopping centres etc. The public nature of the occupation, the fact that they wear uniforms with identification and drive marked security vehicles gives the public confidence that they can rely upon the integrity and honesty of such persons to keep order and protect them from harm.
18. [18]
    It is not in dispute that SS was aware that the complainant was intoxicated and partially naked.  Based on those facts, it was clear that she was a vulnerable young woman (17 years of age) in some sort of distress.  Instead of calling the police as he should have done he took advantage of the situation, irrespective of whether there was consent. Such conduct is contrary to the expectations of a security officer/crowd controller.
19. [19]
    In my opinion, standards of ethical behaviour, analogous to, but not identical to a police officer, apply to security officers but, perhaps to a lesser standard. SS has been charged with very serious criminal offences which must be tried. To allow him to continue in his occupation under the S P Act before then would, in my opinion, be a breach of the public’s confidence in other licence holders during that process.
20. [20]
    It is submitted on SS’s behalf that he has worked in the industry since 2009 without any complaint, he has worked for the same employer for a decade, he was the sole breadwinner for his family, he cooperated with the police and has a clear defence to the charges. In my opinion, the seriousness of the charges and the admissions made by SS during the police interview counter a number of these submissions. Further, I note that SS’s wife is now in employment. 

Punitive effect

21. [21]
    As a result of his suspension SS has lost his job and source of income. It has placed his family in financial difficulties to the extent that they have had to sell their home, use their life savings and borrow from friends. This is an unfortunate but not uncommon consequence of a suspension of a licence. SS does not in his affidavit depose to any attempts to find alternative employment outside the security industry. I am not convinced that this is a basis for granting a stay.

Human rights

22. [22]
    SS relies upon the suspension as being a breach of his human rights under the Human Rights Act 2019 (Qld) (HRA) and the presumption of innocence.
23. [23]
    The main objective of the HRA is to protect and promote fundamental human rights. However, those rights are not absolute but limited, as far as is reasonable and justifiable.^[4] In considering whether a limit on a human right is reasonable and justifiable a factor is whether the limitation is consistent with a free and democratic society based on human dignity, equality and freedom. Another factor is whether there are any less restrictive and reasonably available ways to achieve the purpose.
24. [24]
    The S P Act expressly provides for the situation where a person is charged with, though not necessarily convicted of, a disqualifying offence as a basis for deciding whether to suspend a licence. Obviously, if convicted the licensee’s licence would be cancelled. However, the legislature obviously considered that just being charged with a criminal offence was a matter of such public importance that a suspension, in such circumstances, should be considered. In the circumstance that is a justifiable limitation of a human right arising from a suspension in such circumstances.
25. [25]
    It is submitted by OFT that the decision to suspend SS was for the protection of the public and the preservation of faith of the community that a person who holds a Security Officer/Crowd Controller licence is a person who is an appropriate person to hold such a licence where their role at a public place is principally for keeping order in or about the public place. I agree with this submission.
26. [26]
    I am not satisfied that the suspension or, indeed a refusal to grant a stay would be a breach of SS’s human rights. I am not satisfied, in all the circumstances, that the granting of a stay is desirable. I dismiss the application.