Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Malik v Commissioner of Police, NSW Police Force [2024] NSWCATOD 22 Hearing dates: 19 February 2024 Date of orders: 4 March 2024 Decision date: 04 March 2024 Jurisdiction: Occupational Division Before: J D Little, Senior Member Decision: 1. Pursuant to s 55(4)(b) of the Administrative Disputes Review Act 1997 (NSW), the Tribunal will deal with the Applicant's application for the administrative review of the decision to revoke her Category 1AC Security Licence made on 7 August 2023. 2. The decision the subject of this review is affirmed. Catchwords: ADMINISTRATIVE LAW – Security Industry Act - administrative review of decision to revoke the Applicant's security licence – Mandatory revocation Legislation Cited: Administrative Disputes Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Security Industry Act 1997 (NSW) Security Industry Regulations 2016 (NSW) Cases Cited: Sawires v Commissioner of Police [2010] NSWADTAP 68 Category: Principal judgment Parties: Shaista Qadeer Malik (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Proctor Willaws Solicitors (PW Lawyers) (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2023/00289057 Publication restriction: NIL REASONS FOR DECISION 1. On 8 September 2023, Ms Malik (the Applicant) seeks review of a decision to revoke the Applicant's Class 1ACE security licence in accordance with sections 26(1A) and 16(1)(b) of the Security Industry Act 1997 (NSW) (Security Act) as well as classes 15(1A) and 15(1)(d) of the Security Industry Regulation 2016 (NSW) (Security Regulations) 2. The Applicant was issued a Category 1ACE security licence (the Licence) on 21 June 2019. 3. The Applicant applied for a renewal of the Licence on 7 August 2022. The Licence expired on 20 August 2023. Background 1. On 30 December 2022, police officers (NSWPF) attended a shopping centre in respect of a report of the Applicant shoplifting. The Applicant was charged with larceny under section 117 of the Crimes Act 1900 (NSW) (Crimes Act) and issued with a Court Attendance Notice (CAN). The offence is punishable with a maximum term of imprisonment of five years. 2. On 27 February 2023, the Applicant plead guilty to the offence of larceny in the Local Court. The Applicant was convicted, and a conditional release order imposed for a period of 12 months (the Local Court Decision). 3. On 28 February 2023, a delegate of the Respondent made a decision to revoke the Applicant's security license following her conviction. On 15 March 2023, the Applicant's then solicitors made a request for an internal review of that decision. On 17 March 2023, following receipt for the request for an internal review, a delegate of the Respondent re-instated the Applicant's security licence pending the outcome of her appeal of the Local Court Decision (the District Court Appeal). 4. On 3 August 2023, the District Court Appeal was heard and the Applicant was represented. The Applicant maintained her pleading of guilty. 5. The District Court found the Applicant guilty of the offence of larceny under s 117 of the Crimes Act, with no conviction recorded. A conditional release order was imposed for a period of 12 months. 6. On 7 August 2023, the Applicant's licence was revoked by the Respondent. Jurisdiction 1. Given the background to this application as described above, a question arises as to the decision the subject of this review and whether the Tribunal has jurisdiction to conduct that review. Those questions arise because, while the Tribunal has jurisdiction to review a revocation of a security licence (s 29(1)(c) of the Security Act; s 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act), ordinarily the Tribunal's jurisdiction is dependent upon an internal review being completed of the original decision by the agency by virtue of ss 53 and 55(3) of the ADR Act. 2. In addition, it was not dispute that neither the Security Act nor the ADR Act provides for a "variation" of an original decision. 3. Given the statutory regime, issues arise as to: 1. the significance and correct characterisation of the decision made on 17 March 2023 which re-instated the Applicant's security licence pending the outcome of her appeal of the Local Court Decision (Reinstatement Decision); 2. the effect that the decision of 17 March 2023 had on the original revocation decision of 28 February 2023 (Original Revocation Decision) and the subsequent revocation decision of 7 August 2023 (Subsequent Revocation Decision); and 3. whether for the purposes of the ADR Act, an internal review decision has been conducted or whether an order pursuant to s 55(4)(b) of the ADR Act is required. 1. It is appropriate and necessary to consider this as a preliminary issue (which was the way the hearing was conducted) so that the decision the subject of the review is clear. 2. The Respondent submitted there were two alternative interpretations: 1. First, the Reinstatement Decision was an invalid internal review decision because the Respondent did not have any discretion to grant a licence in such a case and, in those circumstances, the Subsequent Revocation is effectively the "internal review decision" of the Original Revocation Decision pursuant to s 29(1) of the ADR Act; or 2. Alternatively, the Subsequent Revocation Decision is a fresh decision made under s 21(1) of the Security Act and the Tribunal has the discretion to dispense with the need for an internal review and to deal with the application for review pursuant to s 55(4)(b) of the ADR Act. 1. The Respondent urged the Tribunal to find in favour of the first interpretation but also indicated that it would not oppose an order being made under s 55(4)(b) of the ADR Act if the alternate interpretation is adopted. The Applicant was invited to make submission with respect to these issues. The Applicant did not oppose either manner of interpretation. 2. I find that the internal review decision of the Original Revocation Decision was the Reinstatement Decision in that the agency considered the Original Revocation Decision and decided that it was appropriate for the licence to be reinstated. That finding is consistent with the function of an internal review. In this respect while I accept that neither the Security Act nor the ADR Act provides for a "variation" of an original decision, an internal review may affirm, vary, or set aside the original decision consistent with the effect of the Reinstatement Decision. 3. Additionally, the Applicant's application is inconsistent with characterising these proceedings as one which seeks the administrative review of the Reinstatement Decision as the Applicant seeks administrative review of the revocation of her licence. In those circumstances, an interpretation that results in a finding that the Applicant effectively seeks administrative review of a decision to reinstate her licence is nonsensical. 4. Rather, I accept the alternative interpretation as described above as correct. That is, I find that the Subsequent Revocation Decision was a fresh decision made under s 21(1) of the Security Act and the Tribunal has the discretion to dispense with the need for an internal review and to deal with the application for review pursuant to s 55(4)(b) of the ADR Act. 5. I find that it is appropriate to exercise the Tribunal's discretion pursuant to s 55(4)(b) of the ADR Act to exercise jurisdiction despite the absence of an internal review. It is appropriate to do so given that the ambiguity as to these matters arose because of the process adopted by the agency in reinstating the licence despite the Original Decision. In those circumstances, I find that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. 6. In exercising jurisdiction, the Tribunal may exercise all of the functions that are conferred, and is bound by the mandatory considerations imposed, by any relevant enactment on the Administrator who made the decision. It is well established that when considering application for review, the Tribunal may have regard to any relevant material before it at the time of the review. Pursuant to s 36 of the ADT Act, the Tribunal is to decide what the correct and preferable decision is. There is no burden or ownership proof in Tribunal proceedings in respect to decisions made under the Security Act. The standard of proof that applies is the civil standard. Consideration Legislation 1. Section 16 of the Security Act relevantly states: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant-- (a) … (b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court 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. Section 26(1A) states: (1A) 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. 1. Regulation 15 of the Security Industry Regulations provide, relevantly, as follows: 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— …. (d) Offences involving fraud, dishonesty or stealing An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more. … (1A) Prescribed offences: section 16 (1) (b) For the purposes of section 16 (1) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales— (a) an offence referred to in subclause (1) (a), (b) or (d)–(l), … 1. Section 117 of the Crimes Act provides: 117 Punishment for larceny Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years. Evidence and submissions of the parties 1. The Applicant's written submissions concentrated on alleged errors in the District Court Appeal proceedings. In this respect, the Applicant: 1. alleges her instructions regarding her plea were not correctly followed by her legal representatives; 2. alleges that she would have been better able to understand the proceedings and plea options if a translator had been available; and 3. raises other issues in the form of questions about whether the District Court Judge fell into error including whether the District Court Judge made a mistake of fact or failed to consider a material consideration; whether the Crown breached its duty; whether the Respondent reviewed and considered sufficient information in the context of those proceedings. 1. In oral submissions, the Applicant alleged that the Reinstatement Decision, which was improperly made, created difficulty and prejudice for the Applicant in the District Court Appeal because it created ambiguity as to the impact of making a conditional release order. 2. In support of the Applicant's submissions, the Applicant relied upon: 1. a statutory declaration given by her husband as to the Applicant's English speaking capacity; 2. text messages which were allegedly between the Applicant's husband and the Applicant's lawyer in the District Court Appeal; 3. a copy of a transcript of the District Court Appeal hearing; 4. a copy of the transcript of judgment of the District Court Appeal; and 5. character reference letters 1. In response, the Respondent allegations as against her former lawyers, the Court and the agency with respect to the District Court Appeal were irrelevant and the Tribunal was not the correct forum to advance these arguments. In this respect, the Tribunal was not exercising appellant jurisdiction and could not vary or set aside orders of the District Court. 2. Otherwise, the Respondent contended that: 1. While the Tribunal has jurisdiction to review the Subsequent Revocation Decision, the Tribunal has no power to reinstate the Applicant's licence where it had expired; and 2. Since the Applicant was found guilty (with no conviction recorded) and sentenced to a 12-month conditional release order for the offence of larceny, s 16(1)(b) of the Security Act is applicable with the offence being prescribed pursuant to s 15(1)(d) of the Security Industry Regulations. As such, the revocation of the Applicant's licence was a mandatory revocation in respect of which the agency nor this Tribunal, can exercise any discretion. 1. The Respondent relied upon the bundle of documents filed and served pursuant to s 58 of the ADR Act. Findings 1. While I accept that that a security licence cannot be granted as an outcome of these proceedings given its expiry, I do not find that the expiry of the licence is a basis to characterise these proceedings as otiose or serving no practical purpose. As acknowledged by the Respondent, the practical effect of any decision of the Tribunal to affirm or set aside a revocation would be relevant to any future applications for a security licence made by the Applicant: Sawires v Commissioner of Police [2010] NSWADTAP 68. 2. Otherwise, I accept the submissions of the Respondent. The outcome of the District Court Appeal correctly resulted in the mandatory revocation of the Applicant's security licence because: 1. In accordance with section 26(1) of the Security Act, a licence must be revoked where a new application by the licensee for the same license would be required to be refused under the Act; 2. Section 16(1)(b) of the Security Act requires that a licence must be refused if an applicant has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court 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; and 3. Clause 15(1) of the Security Industry Regulations set out the prescribed offences for the purposes of section 16(1)(b) of the Security Industry Act. Relevantly, one such prescribed offence is an offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more (see Security Industry Regulations clause 15(1)(d)). 1. The Applicant has been found guilty of a prescribed offence (being the offence of larceny). By 117 of the Crimes Act, this offence is punishable by a term of imprisonment of 5 years. The Applicant was found guilty, with no conviction recorded and a conditional release order was imposed for a period of 12 months. The decision to revoke the Applicant's licence is the correct and preferable decision as the revocation was mandatory. 2. As such, the Applicant's submissions with respect to alleged unfairness or breach of duty of her previous legal representatives, the agency and/or the Court are irrelevant and unhelpful. The Respondent does not have any discretion in these circumstances and nor does this Tribunal. Nor does this Tribunal have jurisdiction or power to set aside or vary the orders of the District Court. 3. For these reasons, the correct and preferable decision is for this Tribunal to affirm the Respondent's decision to revoke the Applicant's Category 1AC Security Licence. Order 1. Pursuant to s 55(4)(b) of the Administrative Disputes Review Act 1997 (NSW), the Tribunal will deal with the Applicant's application for the administrative review of the decision to revoke her Category 1AC Security Licence made on 7 August 2023. 2. The decision the subject of this 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. 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: 04 March 2024