Pearce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 99

CITATION: Pearce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 99 DIVISION: General Division APPLICANT Paul Wayne Pearce PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 993246 HEARING DATES: 10/03/2000 SUBMISSIONS CLOSED: 03/17/2000 DATE OF DECISION: 07/28/2000

BEFORE: Robinson MA - Judicial Member APPLICATION: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Security Industry Act 1997 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Bourke v Commissioner of Police [1998] NSWADT 1 Goodwin v Phillips (1908) 7 CLR 1 CASES CITED: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 Ibrahin v Commissioner of Police [1999] NSWADT 119 at [8] Saraswati v R (1991) 172 CLR 1 Butler v Attorney-General (Vict.) (1961) 106 CLR 268 Department of Premier and Cabinet v Hulls (1999) 15 VAR 360 APPLICANT REPRESENTATION: In person RESPONDENT J Tunks, solicitor ORDERS: The reviewable decision is affirmed

1 This case concerns the application of the Security Industry Act 1998 ("the Act") and the Security Industry Regulations 1998 ("the regulations") to a person who was licensed under the former statutory regime and whose application under the new Act was rejected by the respondent for the "mandatory" (as it has come to be known) ground of a prior conviction in a Children's Court. The principal issue is whether section 12 of the Criminal Records Act 1991 is to be regarded as repealed by implication or as being subject to section 16(1)(b) of the Act. 2 The applicant was a licensed security guard employed by Sentry Security Services Pty Ltd at Wodonga, New South Wales. He was licensed under the former legislation, now repealed expressly by the new Act. He made an application under the new Act for a Class 1A, 1B and 1C licence on about 8 June 1999 (Exhibit 2). In that application, he disclosed that he had been convicted of an offence he described in his application as a "prohibited drug" offence in 1995 by the Corowa Children's Court and that his penalty was a 12 months good behaviour order. 3 At the time the applicant made his application under the Act, it appears he held a licence under the former Act that was due to expire on 14 June 1999 (Exhibit 2). The applicant's application was refused by a delegate of the respondent and the applicant applied for internal review of the decision. On the internal review, the respondent's delegate decided on 10 August 1999 to refuse the application on the mandatory ground, being the objective fact of the conviction and the operation of section 16(1)(b) of the Act (when read with regulation 11(b) of the regulations) (Exhibit 1). The delegate regarded it as mandatory for the delegate to refuse the licence application. The application to the Tribunal is from this reviewable decision. 4 The Tribunal hearing occurred on 10 March 2000. The applicant was not represented and appeared by way of telephone hook up at his request. The respondent was represented by his legal advocate, Mr JJ Tunks. The respondent tendered a print-out of a NSW Police Service database dated 10 August 1999 setting out the criminal history of the applicant (Exhibit 3). The applicant did not object to this course. Normally, in the absence of a relevant concession by the applicant, better evidence of a conviction should be tendered, such as, for example, a certificate of conviction issued by the relevant Court pursuant to section 178 of the Evidence Act 1995. 5 The applicant did not seek at the Tribunal hearing to argue that the Tribunal should look behind the said conviction. I note that relevant references have been tendered (Exhibit 4) from the applicant's present employer, Australian Country Spinners Pty Ltd, and his former employer in the security industry that show the applicant to be both a reliable and trustworthy employee. That is not disputed by the respondent. However, the objective fact of the conviction is the only relevant fact in these proceedings – Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 at [9], and Bourke v Commissioner of Police [1998] NSWADT 1. 6 Section 16(1)(a) & (b) of the Act provides: " 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, whether or not the offence is an offence under New South Wales law, or (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, whether or not the offence is an offence under New South Wales law…" (my emphasis) 7 Regulation 11(d) of the regulations provides: Offences that disqualify applicants: section 16 For the purposes of section 16 (1) (a) and (b) 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 An offence in respect of a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act 1985) committed under: (i) the law of any Australian jurisdiction…" 8 It is accepted by the parties that the offence here is one to which regulation 11(b) relates. 9 Exhibit 3 shows that the applicant was charged on 16 June 1995 and dealt with by the Corowa Children's Court on 11 July 1995. As at the time of the security industry licence application, 8 June 1999, the Children's Court matter had occurred about 4 years prior to that application. The charge is stated to be "possession prohibited drug" (pursuant to, as I am informed by the respondent's representative, section 10(1) of the Drug Misuse and Trafficking Act 1985) and the sentence is recorded as being that the applicant was released without a conviction entered on the condition that he enter into a $300 self-recognizance to be of good behaviour for 12 months, which I take it, the applicant did. This order was made pursuant to section 33(1)(b) of the Children (Criminal Proceedings) Act 1987 which provides: " Penalties (1) If the Children's Court finds a person guilty of an offence to which this Division applies, it shall do one of the following things: … (b) it may make an order releasing the person on condition that the person enters into a good behaviour bond for such period of time, not exceeding 2 years, as it thinks fit," 10 The Children's Court is defined in that Act to mean the Children's Court of New South Wales as constituted by the Children's Court Act 1987. 11 The respondent filed helpful written submissions on the relevant issues on 10 March 2000 and 13 March 2000. 12 The critical issue is what is the effect of section 12 of the Criminal Records Act 1987 when read with section 16(1)(b) of the Security Industry Act 1997. The two provisions appear to clearly conflict and are said by the respondent to be considered "so repugnant that they cannot possibly stand together" in terms. The Spent Convictions Legislation 13 The Criminal Records Act 1991 is an important Act and is part of a national scheme of Acts known as the "spent convictions" legislation. 14 The long title of the Act plainly describes its purpose. It provides: "An Act to limit the effect of a person's conviction for a relatively minor offence if the person completes a period of crime-free behaviour, and to make provision with respect to quashed convictions and pardons." 15 The objects of the Act are contained in section 3 which provides: