Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ahmed v Commissioner of Police, NSW Police Force [2017] NSWCATOD 188 Hearing dates: 11 January 2017 Date of orders: 16 March 2017 Decision date: 16 March 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed Catchwords: ADMINISTRATIVE REVIEW – decision to revoke security industry licence – whether applicant a fit and proper person to hold a licence – whether it is in the public interest for applicant to hold a licence – applicant provided security industry training without the appropriate licence – previously convicted of same offence Legislation Cited: Security Industry Act 1997 Security Industry Regulation 2016 Cases Cited: Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 AJO v Director-General of Transport [2012] NSWADT 101 Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 IJ v Commissioner of Police, NSW Police Force [2003] NSWADT 230 Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43 Feuerstein v Commissioner of Police, NSW Police Force [2007] NSWADT 114 Category: Principal judgment Parties: Naeem Ahmed (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: In Person (Applicant) Bartier Perry (Respondent) File Number(s): 2016/00378787 REASONS FOR DECISION 1. This is application by Mr Naeem Ahmed seeking review of a decision of the Commissioner of Police, NSW Police Force (the Commissioner) made on 15 August 2016 to revoke his Class 1AC security licence. The decision was made because the Commissioner was not satisfied that Mr Ahmed is a fit and proper person to hold a security licence. The Commissioner also considered that it is not in the public interest for Mr Ahmed to continue to hold the licence. Background 1. Mr Ahmed was issued with a Class 1AC security licence on 7 May 2012. That licence authorised him to perform the security activities of unarmed guard and crowd controller. The licence was due to expire on 8 June 2017. 2. In May 2012 Mr Ahmed obtained a TAE Certificate IV in Training and Assessment. 3. The allegations which led to the revocation of Mr Ahmed's licence in August 2016 are that: 1. Mr Ahmed is the director, secretary and sole shareholder of a company called Oz Ain Pty Ltd trading as OPL Training Institute whose registered office is in Lakemba, NSW; 2. there was a relationship between Mr Ahmed, Oz Ain Pty Ltd and a Queensland company Peacemakers Security Pty Ltd (also known as Peacekeepers) for the delivery of training in NSW to NSW residents to obtain a Queensland security licence; and 3. Mr Ahmed is not authorised to provide security training in NSW. 1. It is also alleged that the purpose of the training conducted by Mr Ahmed was to facilitate residents in NSW (some of whom would not be able to obtain a security licence in NSW) to obtain a security licence in Queensland which would then enable them to obtain a NSW licence under mutual recognition laws. It is also alleged that Mr Ahmed facilitated security training where students were given the answers to assessments in order to obtain a security training certificate. 2. Mr Ahmed denies a number of the allegations, including that he contravened NSW law, but does not deny that he delivered security training at premises in Lakemba, NSW. The relevant law 1. The Act establishes a scheme for licensing people to carry on security activities. The Act also contains several provisions which permit the Commissioner to revoke a licence on specific grounds. Under s 7(2) of the Act it is an offence for a person to carry on a security activity "unless the person is the holder of a class 1 licence or class 2 licence that authorises the person to carry on the security activity". Section 4(1) of the Act states that a person carries on a "security activity" if the person carries out one or more of a number of activities "in the course of conducting a business or in the course of the person's employment". Relevantly, the activities in s 4 include (at paragraphs (j), (k) and (m)): (j) providing training or instruction in relation to any security activity referred to in this section, (k) assessing another person's training, instruction or competencies in relation to any security activity referred to in this section… (m) providing persons to carry on any security activity referred to in this section. 1. Under s 6(2B) of the Act the Commissioner may, on application by a person who provides training or instruction in relation to a security activity of a kind authorised by a class 2 licence, exempt the person from the requirement under section 7 (2) to be licensed to provide that training or instruction. 2. Sections 11 and 12 of the Act define the various subclasses of class 1 and class 2 licences. A class 1A licence authorises the licensee to patrol, protect or guard any property while unarmed and a class 1C authorises the licensee to act as a crowd controller or similar. A class 2D licence authorises the licensee to provide training, assessment or instruction in relation to any security activity. 3. To obtain a security licence, s 15(1) of the Act requires the Commissioner to be satisfied an applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant, or (b) is of or above the age of 18, or (c) has the competencies and experience approved by the Commissioner, or (d) has undertaken and completed the requisite training, assessment and instruction for the class of licence sought by the applicant, or (e) is competent to carry on the security activity to which the proposed licence relates, or (f) is an Australian citizen or a permanent Australian resident, or holds a visa that entitles the applicant to work in Australia (other than a student visa or a working holiday visa). 1. Section 26(1)(b)(ii) provides that a licence may be revoked if the licensee: contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention. 1. Section 26(1)(d) provides that a licence may also be revoked for any other reason provided by the regulations. Since Mr Ahmed's licence was revoked, the Security Industry Regulation 1997 has been replaced by the Security Industry Regulation 2016. Under the savings provision in the 2016 Regulation any act, matter or thing that, immediately before the repeal of the 2007 Regulation, had effect under that Regulation is taken to have effect under 2016 Regulation. 2. Clause 25 of the 2016 Regulation is substantially the same as clause 29 in the 2007 Regulation and relevantly provides: a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it. Did Mr Ahmed provide security training in contravention of the Act? 1. The Tribunal heard evidence from Mr David Young, a Senior Compliance and Enforcement Officer in the Security Licensing & Enforcement Directorate (SLED) and from Mr David MacPherson, a Senior Compliance Officer with SLED. Mr Young informed the Tribunal that in May 2016 he had obtained information and records from the Australian Skills Quality Authority (ASQA) which had been conducting an investigation into Peacekeepers. On 7 July 2016 Mr Young and Mr Macpherson attended Mr Ahmed's premises in Lakemba where they seized or copied a number of records and spoke with Mr Ahmed. 2. One of the documents obtained was a copy of a contract of employment between Mr Ahmed and Peacekeepers dated 25 February 2016 under which Mr Ahmed was to deliver training for Peacekeepers. The contract stated Mr Ahmed would be based at Lakemba, NSW but may be required to work at locations in Queensland. Among other documents located at the premises were student assessment books, learner guides and answer guides issued by Peacekeepers for Certificate II security qualifications along with statements of attainment and certificates for Certificate II in Security Operations issued by Peacekeepers. 3. Mr Ahmed told the Tribunal that he was employed by Peacekeepers to deliver training to students in NSW on their behalf. The training was to enable successful students to become security guards in Queensland. He stated he is a qualified trainer and does not need any other qualification or licence to train students to become security guards in Queensland. He said that all clients were referred to him by Peacekeepers and all training was conducted in the Lakemba offices. He stated no training has been conducted by him since 19 July 2016. 4. Mr Ahmed states that, because he was providing training to students to obtain qualifications so they could be granted a security licence in Queensland, he was not conducting any training in contravention of the NSW Act. 5. As set above, s 4(1) of the Act states that a person "carries on a security activity" if the person carries out one or more of a number of activities. One of those activities is providing training or instruction in relation to any security activity referred to in that section. The evidence shows that Mr Ahmed was providing training in relation to security activities such as body guard and crowd control which are among the activities set out in s 4(1). 6. It is apparent from a reading of the Act that its purpose is to regulate and to provide standards for the carrying on of security activities in NSW. One of the activities so regulated is the carrying out of what might be termed security training. There is nothing in the Act which would limit the type of training to be provided to training in a particular course or to enable a person to obtain a security licence under the NSW Act. The Act simply refers to "providing training or instruction". So long as a person is providing training at a location in NSW, that person is required by the Act to be licensed. It is irrelevant that the training is intended to provide the students with qualifications to be granted security licences in another state or territory within Australia. 7. Mr Ahmed admits to providing security training from his premises in Lakemba, NSW. In my view, he was therefore required to be licenced to conduct security training unless he was exempted from the requirement. The evidence of the respondent is that Mr Ahmed has never held a class 2D licence permitting him to deliver security training in NSW. There is no evidence before the Tribunal that Mr Ahmed has been exempted from the requirement to hold such a licence in accordance with s 6(2B) of the Act. 8. I therefore find that Mr Ahmed has contravened the Act by providing security training in NSW without the appropriate licence. Is Mr Ahmed a fit and proper person to hold a security licence? 1. The expression "fit and proper" is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases. 2. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. 1. These sentiments have been echoed in cases before the Tribunal and it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]). 2. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. 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 list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. They went on to say at 388: The question 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 propriety are under consideration. 1. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails. 1. In IJ v Commissioner of Police, NSW Police Force [2003] NSWADT 230 at [27] the Tribunal said: …the expression "fit and proper person" takes its meaning from its context. A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe. 1. The respondent argues that Mr Ahmed is not a fit and proper person to hold a security licence because he has contravened the Act, he has been convicted in the past of the same contravention of the Act, he has provided training the purpose of which is to circumvent NSW laws and he has not provided genuine training in any event. Previous conviction 1. The evidence provided by the respondent is that in early 2012 Mr Ahmed became the owner and director of a company, Zys Supreme Services Pty Ltd. Zys Supreme Services Pty Ltd held a Master licence under the Security Industry Act 1997 (the Act). In April 2012 Zys Supreme Services Pty Ltd entered into a contract with Peacekeepers for the delivery of training leading to qualifications necessary to obtain a security licence in Queensland. The qualifications would be issued to students by Peacekeepers. The contract stated that the training would be delivered by Mr Ahmed at premises in Lakemba, NSW. 2. The respondent states that on 28 August 2013 Mr Ahmed was issued with an infringement notice for carrying out a security activity – training – without the appropriate licence. Mr Ahmed elected to have the matter dealt with in court and was convicted of the offence on 13 May 2014 and fined. 3. In April 2015 the Commissioner proposed to revoke the Master licence of Zys Supreme Services Pty Ltd for reasons associated with the delivery of security training courses in NSW under the arrangements the company had with Peacekeepers in Queensland. Following receipt of information from Mr Ahmed that Zys Supreme Services Pty Ltd was no longer involved in training, revocation did not proceed. The Master licence for Zys Supreme Services Pty Ltd was revoked in any event later that year as the company had gone into administration. 4. Before the Tribunal Mr Ahmed denied, despite being fined in the Local Court, that he was found guilty in 2014 of contravening the Act because he carried out security training without the appropriate licence. He insisted that the Magistrate did not say that he could not conduct security training in NSW without a licence. 5. It is apparent from the transcript of the hearing before the Magistrate that Mr Ahmed was convicted and fined. While the Magistrate did state that Mr Ahmed may have been acting under a mistake as to the law, he made it clear in his decision that Mr Ahmed had in fact broken the law by conducting security training without a licence. 6. In my view, based on the evidence provided, Mr Ahmed knew that he was required to be licenced in NSW to conduct training, even if the training was directed towards obtaining Queensland qualifications and licences. He had been convicted of the same offence in 2014 and knew or ought to have known his obligations under NSW law. Nature of the training 1. Among the material provided to SLED by ASQA were written statements by two men who had obtained a Certificate II in Security Operations issued by Peacekeepers after enrolling in training to be provided by Oz Ain Pty Ltd in Lakemba in January 2016. Both had paid fees to undertake the training. Neither man attended any training. One was given an assessment booklet and told to fill out the answers to the questions in it from an answer booklet he had also been given. The other man did not complete any assessments himself and was later shown a booklet by ASQA with his name on it that was completed by somebody else. Both were issued with certificates and applied for a Queensland security licence. 2. At the hearing Mr Ahmed insisted that he had conducted training that went for three to four days for all students who enrolled in the course. He conceded that he had provided students with answers to the questions in the assessment booklet but insisted that he did this only for the purposes of their own study. 3. Further evidence provided by the respondent is that Peacekeepers was de-registered and ASDQA cancelled security and related qualifications issued to many people on the basis that Peacekeepers had failed to assess the competence of its students. 4. I am satisfied that Mr Ahmed was aware that he was not providing training which imparted skills of any sort. He knew that the so-called training consisted of telling his students the answers to questions in the assessment booklet for them to write in or, in some cases, providing assessment booklets with the answers completed without the need for students to attend training. By any measure such activities could not be described as security training sufficient for a person to be awarded a Certificate II in Security Operations. 5. It is notable that Peacekeepers was de-registered by ASQA and the qualifications of its former students called into question precisely because Peacekeepers was operating a system which issued qualifications without training or assessment. Mr Ahmed was employed by Peacekeepers and must have been aware of and participated in these practices. Purpose of the training 1. Under Australia's mutual recognition laws, a person who is registered in one state in relation to a particular occupation is entitled to be registered in another state in relation to that occupation. The respondent argues that the purpose of providing the training was to circumvent what is required for registration in NSW. People enrolled in Mr Ahmed's training were issued with certificates which enabled them to obtain a Queensland licence. They could then obtain a NSW licence under mutual recognition laws without meeting NSW qualifications. 2. The two men mentioned above gave evidence to ASQA that, after being issued with a certificate, each was contacted by the Queensland Department of Justice and Attorney-General and asked to attend a police station to provide their fingerprints. Each flew to Queensland for the day and had their fingerprints taken at a police station and then returned to Sydney. One of the men held a student visa and was therefore prevented by the NSW Act from obtaining a security licence in NSW. 3. Mr Ahmed has denied that the purpose of the training he provided was so that a person could gain a security licence in Queensland and then be granted one in NSW under mutual recognition laws. He stated he was not undermining or abusing any of the principles underlying mutual recognition. He said it was not his responsibility to inquire into where a person was going to reside. 4. In my view, Mr Ahmed was aware that the reason NSW residents were being provided with training for Queensland security licences was so they could obtain qualifications which would then be recognised in NSW. As a result, the training could be delivered in a less rigorous way by an unlicensed trainer and to people, such as people on a student visa, who would not otherwise qualify in NSW. Conclusion 1. I am satisfied that Mr Ahmed knew or ought to have known that what he was doing was in contravention of NSW law given his previous conviction; he also knew the purpose of the program was to take advantage of mutual recognition laws and he also knew that the training he delivered was inadequate. After considering all the evidence, I am of the view that Mr Ahmed is not a fit and proper person to hold a security licence. Is it in the public interest that Mr Ahmed continues to hold a security licence? 1. The respondent also argues that it is not in the public interest for Mr Ahmed to continue to hold a security licence. In general, the concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals. In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Senior Member Montgomery set out a number of authorities in which the concept of the public interest has been considered (at [42-47]). In Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Senior Member Montgomery said that the authorities referred to in Smith indicated that: 1. The 'public interest' is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. 2. The 'public interest' is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. 3. An applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. 4. The "public interest" allows for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. 1. The respondent referred also to the case of Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43 which contained similar facts to the present case. In that case the Tribunal held at [84] that it was not in the public interest for the licensee to "provide training courses for interstate security licenses to NSW residents: not for use interstate, but for the purpose of gaining a NSW security licence by mutual recognition." The Tribunal went on to say at [86]: The training activities undertaken by the company achieve a situation whereby, through interstate licencing and mutual recognition, the rigours of the NSW security licensing regime can be avoided by NSW residents… This is not in the public interest. It is not in the public interest that a master licence be held by a company undertaking those activities which undermine the integrity of the licensing regime established by the SIA. 1. Mr Ahmed states that he was only an employee of Peacekeepers and that he has not done anything illegal which would affect his class 1AC licence. 2. In Feuerstein v Commissioner of Police, NSW Police Force [2007] NSWADT 114 at [11] the Tribunal stated in relation to the Act: The Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard. 1. Mr Ahmed has contravened the provisions of the Act by carrying on a security activity, namely security training, without holding the requisite licence. He has done so in circumstances where he has previously been convicted of the same offence. He has facilitated people to obtain security qualifications without proper training or assessment. He has also participated and engaged in a process which has allowed people to circumvent the requirements of the Act and undermined the principles of mutual recognition of occupational qualifications. 2. Mr Ahmed has put forward his family and financial circumstances as a reason he should retain his licence. However, his complete disregard for the law and principles pertaining to security licensing in NSW lead me to conclude that his personal interests do not outweigh those of the public. The public could have no confidence that Mr Ahmed would, in the future, behave professionally and with integrity in an industry concerned with personal and public safely. Orders 1. The decision under review 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. 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