Ali -v- Commissioner of Police, NSW Police Service [2002] NSWADT 240

Set aside by Appeal : Set aside by appeal on 19 August 2003

CITATION: Ali -v- Commissioner of Police, NSW Police Service [2002] NSWADT 240 DIVISION: General Division APPLICANT Mohammed Imran Ali PARTIES: RESPONDENT Commissioner of Police, NSW Police Service FILE NUMBER: 023148 HEARING DATES: 23/10/02 SUBMISSIONS CLOSED: 11/13/2002 DATE OF DECISION: 11/20/2002

BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Security industry licence - revocation or suspension of licence - Security Industry Act - security industry licence - revocation or suspension of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Security Industry Act 1997 Security Industry Regulation 1998 CASES CITED: Tran (No 2) -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT Tran v Commissioner of Police [2000] NSW ADT 18 REPRESENTATION: G Heathcote, barrister D Paterson, solicitor ORDERS: 1. The Commissioner's decision to revoke Mr Ali's Class 1ABC licence is set aside; 2. The Commissioner's decision to revoke Mr Ali's master licence is affirmed; 3. The Commissioner's decision to revoke Mr Ali's Class 2D licence is affirmed.

Introduction 1 Mr Ali was given a Class 1ABC licence under the Security Industry Act 1997 (the Act) on 19 April 1999. That licence entitled him to patrol, guard, watch or protect property, act as a bodyguard, and act as a crowd controller or bouncer. On 29 April 2000, Mr Ali was issued with a Master licence. That licence authorised him to employ or provide persons to carry on security activities. On 6 November 2000 Mr Ali was issued with a Class 2D licence. That licence authorised him to provide training or instruction in relation to any security activity. 2 On 27 February 2002 the Commissioner of Police (the Commissioner) revoked all three security licences held by Mr Ali. Mr Ali applied to the Commissioner for an internal review of this decision. The original decision was affirmed. On 10 July Mr Ali applied to the Tribunal for a review of the Commissioner's decision. The Tribunal has jurisdiction to hear this matter pursuant to s 29(1)(c)of the Act. Grounds of revocation 3 The grounds on which the Commissioner relied were as follows: - in relation to the Class 1 ABC licence, that Mr Ali had not provided particulars of a change of address and it was not in the public interest for him to continue to hold the licence; - in relation to the Masters licence and the Class 2D licence, that Mr Ali had not provided particulars of a change of address, that he had employed a person who did not have a licence and that it was not in the public interest for him to continue to hold the licences. 4 Section 26 of the Act sets out the grounds on which a licence may be revoked. Under s 26(1)(d), the Security Industry Regulation 1998 (the Regulation) may prescribe grounds for revocation. Failure to advise change of address 5 The first ground relied on by the Commissioner was that Mr Ali had not provided particulars of a change of address. Clause 26(1)(b)(iii) of the Act gives the Commissioner discretion to revoke a licence if a licensee "contravenes any condition of the licence." The relevant condition is found in Clause 14 of the Regulation which states that: (1) In the event of a change in any of the particulars in respect of a licence (including any change of address by the licensee), it is a condition of the licence that the holder of the licence must notify the Commissioner of the change, and of the appropriate new particulars, within 14 days of the change and surrender the licence on doing so. (2) On the surrender of the licence, and on payment of the fee of $30, the Commissioner may issue a duplicate licence for the unexpired portion of the surrendered licence. 6 Mr Ali gave evidence that he thought he had notified the Commissioner of his change of address, but accepts that, since no such notification was received, he may not have done so. Contravention of a provision of the Act 7 Section 26(1)(a)(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." On 22 October 2002, Mr Ali was found guilty, with no conviction recorded, of breaching s 39 of the Act. That section states that "the holder of a master licensee must not knowingly employ any person to carry on any security activity if that person is not the holder of a licence." 8 On 22 October 2002, the day before the hearing in this matter, Mr Ali was found guilty, with no conviction recorded, of employing Mr Arthur Papadimatos to carry on a security activity knowing that he was not the holder of a licence. The circumstances of the matter were that Mr Regis Gendron of Gendron Security Pty Ltd, requested Mr Ali to provide three security guards to perform security services at venues including the Miranda Hotel on 23 February 2002. Mr Papadimatos had applied for a security licence on 20 February 2002, but did not have a licence on 23 February 2002. Mr Ali had provided Mr Papadimatos with security industry training and, when interviewed by police officers, Mr Ali said that Mr Papadimatos had telephoned him and told him that he had received some correspondence from the Security Industry Registry. Mr Ali said Mr Papadimatos gave him a number which he took to be a security licence number, but which he has since realised was a receipt number for the application. 9 Mr Ali told the police that Mr Papadimatos attended Miranda Hotel "accompanied by a senior security officer Rahul Ganguly to monitor the workplace environment and he was informed not to take part in a decision making process." He went on to tell the police that: I received a call from Gendron Security that they required three licensed security officers to patrol the streets and organise taxis for the patrons of Miranda Hotel. I sent 3 security officers including Arthur as a trainee to observe the workplace and have some work experience. One of the guards I later found couldn't make it on that day and Arthur signed himself as a licensed security officer in the books. Now I have a complete understanding that I did not comply with the Security Industry Act as a Master Licensee. 10 At the hearing, Mr Ali said that the only reason he allowed Mr Papadimatos to work that night was because he thought he had a licence. He said that he wanted to give Mr Papadimatos the opportunity to gain experience on the job. Mr Ali later said that he knew that the officers had to sign the roster before commencing work and that they would have to write down their licence numbers. Mr Ali said that he thought Mr Papadimatos would just observe, not that he would sign on. He said that in future he will look at the original of all licences before allowing a person to work as a security officer. He said he would then photocopy the licence and keep a copy in his records. 11 Mr Gendron gave evidence that he told Mr Ali when requesting him to provide security guards, that he did not want "trainees". Mr Gendron said that Mr Ali knew that he did not want trainees as he has used a trainee with him before and Mr Gendron had to remove her from the venue because she was not competent. Mr Gendron reported the following conversation taking place on the day after the incident in question: I said to Ali: "One of the guards that you gave me was unlicensed. He said: The guard is a trainee, and all his paperwork had gone through. I said: I told you before that I did not want Trainees, and all guards had to be fully licensed. He said: I have spoken to the Security Registry, and that the (sic) guard could work until his licence came through." I said You can expect a call from Chris Pickard from Licensing. 12 Mr Ali says that he now understands the importance of the administrative tasks he needs to perform. Public interest 13 The final ground for revocation was that it is not in the public interest for Mr Ali to continue to hold a licence. Clause 18 of the Regulation states that: In accordance with section 26(1)(d) of the Act, 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. 14 Mr Ali produced some references. One was from Andrew Doslea, General Manager of the National Investigation & Research Training Centre. Mr Doslea wrote that Mr Ali has been associated with his organisation as a trainer/contractor for two years. Mr Doslea found Mr Ali to be "a very competent trainer and has shown a high standard of work ethics." 15 Mr Gendron gave evidence in support of Mr Ali saying that "he made mistakes because he went too fast" and "he needs a bit of guidance." Applicant's submission 16 Mr Heathcote, on behalf of Mr Ali, submitted that Mr Ali had overlooked several administrative matters because his focus had been on the operational side of the business. He says that his client now realises that the administrative aspects of his business are equally important. Mr Ali is willing to seek assistance from Mr Gendron in relation to the administrative arrangements he should have in place. Respondent's submissions 17 In relation to the failure to notify a change of address, Ms Paterson, on behalf of the Commissioner, submitted that this was not a trivial matter. She said it was significant because police were unable to serve the notice of revocation on Mr Ali and he continued to carry on his business. Even though a failure to advise of a change of address may be considered to be a minor matter, it has a significant impact on the ability of the police to monitor and regulate the security industry. 18 In relation to the incident involving Mr Papadimatos, Ms Paterson said that this was a serious breach of the Act and Mr Ali should not be permitted to employ people in a situation where he allows unlicensed guards to work. 19 In relation to the public interest ground for revocation, Ms Paterson submitted that the community would have concerns about Mr Ali holding any licence under the Act. In support of the proposition that these concerns are even more significant in relation to the granting of a masters licence, Ms Paterson quoted the Tribunal's decision of Tran (No 2) -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT at [17]: It should be noted, however that the finding of the Tribunal in Tran v Commissioner of Police [2000] NSW ADT 18 that Mr Tran was a fit and proper person to hold a personal security licence, does not necessarily mean that he is a fit and proper person to hold a master licence. The master licence allows a person to employ people to carry on security activities. The obligations and responsibilities on such a person are clearly more onerous than those on a person who is merely employed in the industry. Class 1ABC licence 20 The Commissioner relied on the ground that Mr Ali had failed to notify the Commissioner of a change of address. While this a not a trivial matter, it is not a matter which, in all the circumstances of this case, justifies revocation of his 1ABC licence. Similarly there are no convincing public interest considerations which should prevent Mr Ali from patrolling, guarding, watching or protecting property, acting as a bodyguard, or acting as a crowd controller or bouncer. The offence for which he was found guilty does not relate to those activities. Consequently, the Commissioner's decision to revoke Mr Ali's Class 1ABC licence is set aside. Master licence 21 Mr Ali's evidence in relation to allowing Mr Papadimatos to work without a licence was inconsistent and unconvincing. Mr Ali said that the only reason he allowed Mr Papadimatos to work that night was because he thought Mr Papadimatos had a licence. On the other hand, Mr Ali said that he told Mr Papadimatos just to observe and to familiarise himself with the venue and not to sign the roster. He also told police when he was interviewed, that Mr Papadimatos was accompanied by a senior security officer and his role was to monitor the workplace environment and not to take part in any decision making. 22 If Mr Ali genuinely believed that Mr Papadimatos had a licence, he would not have told him not to sign the roster. It is not credible that Mr Ali would have sent Mr Papadimatos to the venue for unpaid work experience if he genuinely believed that he had a licence. Even if Mr Ali did instruct Mr Papadimatos to observe, and not to sign on, it is highly unlikely that he would have done so without letting Mr Gendron know of this arrangement. 23 Mr Gendron gave evidence that Mr Ali had told him on the phone that he had spoken to the Security Registry who told him that a guard could work until his licence came through. At the hearing, Mr Ali did not mention that he had received that advice from the Security Registry. It was not put to Mr Ali in cross- examination that he told Mr Gendron he had called the security registry, when he had not done so. Nevertheless, I find that Mr Ali was aware of this matter because Mr Gendron's statement had been provided to him, and Mr Ali was legally represented. 24 If Mr Ali had rung the Security Registry they would not have told him that Mr Papadimatos could work until his licence came through. It appears that Mr Ali realised that this defence would not hold up, so he changed his mind and said that he thought Mr Papadimatos was fully licensed. Furthermore, it is not credible that Mr Ali would mistake a receipt number for a licence number, even if the receipt number contained a similar number of digits to the licence number. 25 I find that Mr Ali knew that Mr Papadimatos did not have a licence but that he allowed him to work in any event. This finding is consistent with the outcome in the Local Court where Mr Ali was found guilty of knowingly employing a person to carry on any security activity when that person was not the holder of a licence. 26 Mr Ali has breached the Act in a serious and significant respect. Allowing unlicensed officers to work in the industry undermines one purpose of the legislation, that is to effectively regulate the industry. In these circumstances, I am satisfied that the Commissioner made the correct and preferable decision in revoking Mr Ali's master security licence. In those circumstances, there is no need to address the other grounds relied on by the Commissioner. 27 I should make it clear that I do not wish to suggest that Mr Ali should never be granted a master licence. It is possible that he will be able to satisfy the Commissioner that he understands and can comply with all the obligations under the Act at some time in the future. 2D licence 28 This licence allows Mr Ali to provide training or instruction in relation to any security activity. The evidence from Mr Doslea suggests that Mr Ali is a diligent and competent trainer. The fact that he did not provide particulars of a change of address is not a trivial matter, but it is not a matter which justifies revocation of his 2D licence. 29 The fact that Mr Ali employed a person who did not have a licence is relevant to the question of whether he should be permitted to train other people in relation to any security activity. Although Mr Ali is otherwise a competent trainer, I find that the fact that he has been found guilty of breaching s 39 of the Act means that it is not in the public interest for him to train others. Trainers need to set the highest example possible to those undertaking security activities. Consequently, the Commissioner's decision to revoke Mr Ali's 2D licence is affirmed. 30 Again, I should make it clear that I do not wish to suggest that Mr Ali should never be granted a 2D licence. It is possible, given time, that he will be able to satisfy the Commissioner that he understands and can comply with all the obligations under the Act at some time in the future.