Abdel-Ghani -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 20

CITATION: Abdel-Ghani -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 20 DIVISION: General Division APPLICANT PARTIES: Mohamed Abdel-Ghani RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 013307 HEARING DATES: 06/02/2002 SUBMISSIONS CLOSED: 02/06/2002 DATE OF DECISION: 02/20/2002

BEFORE: Montgomery S - Judicial Member APPLICATION: Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Security Industry Act 1997 Security Industry Regulation 1998 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 APPLICANT REPRESENTATION: A S Kassem, solicitor RESPONDENT D Paterson, solicitor ORDERS: Pursuant to s. 63 of the Administrative Decisions Tribunal Act 1997 the Commissioner's decision to revoke Mr Abdel-Ghani's Class 1 ABC security licence is set aside.

Background 1 These proceedings relate to a determination made by the Commissioner of Police, New South Wales Police Service ("the Commissioner") to revoke the Class 1ABC security licence held by Mr Mohamed Abdel-Ghani ("Mr Abdel-Ghani") under the Security Industry Act 1997 ("the Act"). In making the determination the Commissioner relied on advice received that Mr Abdel-Ghani had been convicted of a prescribed offence involving fraud, dishonesty or stealing. 2 Mr Abdel-Ghani is 23 years of age, and has worked in the security industry since 1999. He was issued with a Class 1ABC security licence on 1 October 1999. This licence was due to expire on 25 November 2004. The Class 1ABC licence authorised Mr Abdel-Ghani to perform the following security activities: Class 1A licence authorised the guarding and protection of persons and property including the transport of cash and other valuables (hotel, club revenue and gaming machine takings), static and mobile patrols and security monitoring station activities. Class 1B licence authorised the provision of close personal protection; Class 1C licence authorised engaging in crowd control activities at public and private venues which may include public exhibitions and concerts, monitoring access to licensed premises, hotels, clubs, nightclubs, etc and ejecting patrons from these venues. 3 On 31 August 2001 Mr Abdel-Ghani was convicted of Obtain Payment, which is Not Payable/ Only Part Payable and ordered to perform 150 Hours Community Service. The conviction related to a claim by Mr Abdel-Ghani for the Newstart social security payment, which was not payable at all or only payable in part because Mr Abdel-Ghani was employed and in receipt of income. 4 By letter dated on 26 September 2001 a delegate of the Commissioner, Ms Maggie Vergara, advised Mr Abdel-Ghani that she had determined to revoke his licence. 5 The Statement of Reasons provided by the Commissioner advised: "I am satisfied that you have been convicted of a prescribed offence involving fraud, dishonesty or stealing. I am of the opinion that you are no longer a fit and proper person to hold a security licence. I consider that it is not in the public interest for you to continue to hold a licence." 6 The revocation of the licence means that Mr Abdel-Ghani is no longer authorised to engage in any security activity in respect of the class of licence revoked. He is understandably concerned to ensure that the decision by the Commissioner to revoke his licence is the correct and preferable one having regard to all the relevant material and law. 7 Mr Abdel-Ghani applied for internal review of the Commissioner's decision. That review was undertaken by Ms Liz Halloran, a Delegate of the Commissioner, on 23 November 2001, and Mr Abdel-Ghani was subsequently advised that the initial decision to revoke his licence was confirmed on review. 8 Ms Halloran stated that upon considering an individual's right to be issued with a licence under the Act, she had formed the view that any decision should be made on the basis that the legislation has quite clearly been enacted to exclude from the industry persons with convictions for certain criminal offences. In this regard, criminal record checks are undertaken on a regular basis after licences are issued to maintain strict licensing requirements by identifying persons who fail to meet the criteria and thereby revoking such licences. 9 With respect to the issue of whether Mr Abdel-Ghani is a fit and proper person to hold a security licence, Ms Halloran stated that generally, the security industry has a special role 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. In terms of a scheme licensing security guards, good character is a vital feature of the inherent qualifications for much of the work involved. In certain contexts character or reputation may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. She noted that while this is Mr Abdel-Ghani's only offence, the offence itself involves a repeated calculated breach of the community's trust. Objectively, such an ongoing course of dishonesty could be viewed very seriously and pose a question mark over Mr Abdel-Ghani's integrity and rectitude of character. She therefore concluded that Mr Abdel-Ghani is not a fit and proper person to hold a security licence. 10 With respect to the issue of the public interest, Ms Halloran noted that the expression "public interest" is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the weft being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. A security licence is granted by the Commissioner with the clear expectation that the licensee utilizes that authority for the good order of society and for the well being of its members or 'in the public interest'. Further, she considered that public interest in the context of section 15 (1) (3) of the Act requires paramount consideration be given to public safety. 11 In respect of the issue of public interest, having considered the circumstances of this offence and other relevant issues, and with a focus upon public safety, Ms Halloran concluded that she was not satisfied that it would be in the interest of the public for Mr Abdel-Ghani to hold a security licence.