Civil and Administrative Tribunal New South Wales Medium Neutral Citation: El-Ahmad v Commissioner of Police [2020] NSWCATOD 118 Hearing dates: 15 October 2020 Date of orders: 19 October 2020 Decision date: 19 October 2020 Jurisdiction: Occupational Division Before: Dr J Lucy, Senior Member Decision: The respondent's decision is affirmed. Catchwords: ADMINISTRATIVE LAW – Security industry licences – Where applicant convicted in the last ten years of a prescribed offence – Where respondent revoked applicant's security licence - Where legislation provides for mandatory revocation in those circumstances Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Security Industry Act 1997 (NSW) Security Industry Regulation 2016 (NSW) Cases Cited: Bourke v The New South Wales Commissioner of Police [1998] ADT Vlahos v Commissioner of Police, NSW Police Force [2019] NSWCATOD 113 Texts Cited: None cited Category: Principal judgment Parties: Ahmad El-Ahmad (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Halla El-Ahmad (Agent) (Applicant) Office of the General Counsel, NSW Police Force (Respondent) File Number(s): 2020/00117609 Publication restriction: Nil REASONS FOR DECISION 1. The applicant, Mr El-Ahmad, has applied for a review of the decision of the Commissioner of Police ("the Commissioner") to cancel his security licence. 2. The Commissioner cancelled the applicant's security licence following his convictions for possession of prohibited drugs and possession of a prescribed restricted substance in February this year. 3. The Security Industry Act 1997 (NSW) makes it mandatory for the Commissioner to revoke a person's security licence if satisfied that the person was convicted of certain offences, including those of which the applicant was convicted, within the last ten years. The Tribunal, standing in the Commissioner's shoes, has no discretion to make a different decision. 4. For these reasons, I have decided to affirm the Commissioner's decision. Background 1. On 13 November 2019, the applicant's Class 1AC security licence was renewed. 2. On 24 November 2019, the police found substances in a car being driven by the applicant, being sustanon/testosterone enanthate (an androgenic steroidal agent), Valium/diazepam and kalma/alprazolam. 3. On 19 February 2020, the applicant was convicted of two counts of "possess prohibited drug" under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and fined $400 and $300, and one count of "possess prescribed restricted substance" under s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW). 4. On 21 February 2020, the Commissioner revoked the applicant's security licence. Relevant law 1. Section 26(1A) of the Security Industry Act provides: "The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused." 2. Section 16(1)(a) of that Act provides: "16 Restrictions on granting licence—criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or…" 1. Clause 15(1)(b) of the Security Industry Regulation 2016 relevantly provides: "15 Offences and civil penalties that disqualify applicants (1) Prescribed offences: section 16 (1) (a) and (b) For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: … (b) Offences relating to prohibited drugs etc An offence in respect of a psychoactive substance, prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008, committed under: (i) the law of any Australian jurisdiction, or…" 1. As indicated above, the applicant was convicted of an offence under s 10(1) of the Drug Misuse and Trafficking Act. That subsection provides: "A person who has a prohibited drug in his or her possession is guilty of an offence." 2. A "prohibited drug" is defined to mean "any substance, other than a prohibited plant, specified in Schedule 1" (Drug Misuse and Trafficking Act, s 3). Schedule 1 to the Drug Misuse and Trafficking Act specifies that alprazolam and anabolic and androgenic steroidal agents are prohibited drugs. 3. The applicant was also convicted of an offence under s 16(1) of the Poisons and Therapeutic Goods Act. That subsection provides: "A person shall not have in his or her possession or attempt to obtain possession of a prescribed restricted substance unless" and a list of exceptions follows. Diazepam is a "prescribed restricted substance" within the Poisons and Therapeutic Goods Regulation 2008 (NSW) (see cl 61 and Appendix D). 4. Section 29(1)(c) of the Security Industry Act provides that a person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of a decision to revoke a licence granted to the person. 5. Section 63(1) of the Administrative Decisions Review Act provides that, in determining an application for an administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. Consideration 1. There is no dispute that the applicant was convicted, in February 2020, of an offence in respect of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act and an offence in respect of a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation. The Commissioner has provided the Tribunal with a copy of the Facts Sheet, the Court Attendance Notice and the applicant's criminal history and I am satisfied that he was convicted of those offences. 2. In these circumstances, ss 16(1)(a) and 26(1A) of the Security Industry Act, read with cl 15(1)(b) of the Security Industry Regulation, require the Commissioner to revoke the applicant's licence. The Tribunal, standing in the Commissioner's shoes, if satisfied of the fact of the conviction, does not have any discretion to come to a different decision (Vlahos v Commissioner of Police, NSW Police Force [2019] NSWCATOD 113 at [19]-[22]; Bourke v The New South Wales Commissioner of Police [1998] ADT). 3. The applicant relied upon a number of factors in support of his application. He said he was a hard-working father of six children under the age of twelve, that he had been involved in various accidents which affected his health, that he had been driving his sister's car when pulled over, that the substances were prescribed medications and that the police officer had told him to plead guilty to the charges. Even if the Tribunal were to accept the applicant's evidence as to these matters, it would not have any discretion to set aside the respondent's decision. 4. Accordingly, I have decided to affirm the decision to revoke the applicant's security licence. Order 1. The respondent's decision is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2020