Ahmed v Commissioner of Police, New South Wales Police [2004] NSWADT 56

CITATION: Ahmed v Commissioner of Police, New South Wales Police [2004] NSWADT 56 DIVISION: General Division APPLICANT PARTIES: Farid Ahmed RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 033336 HEARING DATES: On the papers SUBMISSIONS CLOSED: 02/10/2004 DATE OF DECISION: 03/18/2004

BEFORE: Rice S - Judicial Member APPLICATION: Human rights principles - 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 Security Industry Amendment Act 2002 CASES CITED: Bourke v Commissioner of Police [1998] NSWADT 1 APPLICANT REPRESENTATION: In person RESPONDENT M Buchanan, solicitor ORDERS: 1 The Commissioner's decision is affirmed

Decision 1 The Commissioner's decision be affirmed. That means that Mr Ahmed's application is unsuccessful. The Commissioner's decision 2 Mr Ahmed has been refused a security licence. He was refused because under section 15 of the Security Industry Act 1997 (NSW): (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: . . . (e) is not an Australian citizen or a permanent Australian resident. 3 It is the case that Mr Ahmed is not an Australian citizen or a permanent Australian resident; he is in Australia under a student visa. 4 The Commissioner of Police has no discretion or power to issue the licence in this case. The law requires him to refuse to issue a licence to Mr Ahmed because Mr Ahmed is not an Australian citizen or a permanent Australian resident. 5 The Commissioner has confirmed in his Reasons that there is no question as to Mr Ahmed's integrity. Mr Ahmed has impressive work references, and achievements in security-industry training. The Commissioner has invited Mr Ahmed to apply for a security industry licence if he becomes an Australian citizen or a permanent Australian resident. 6 The decision to refuse the application is one that the Commissioner had to make – it is a mandatory decision. The Administrative Decisions Tribunal has a very limited role in such matters. That role was described in Bourke v Commissioner of Police [1998] NSWADT 1 at paragraph 2: the Tribunal's function in relation to mandatory refusals [is] limited to re-examining whether the objective facts upon which the administrator relied in exercising its discretion [have] been established. 7 The fact on which the Commissioner relied was that Mr Ahmed is not an Australian citizen or a permanent Australian resident. That is the case. The Commissioner therefore made the correct decision and the decision must be affirmed. Reason for requiring Australian citizenship or residency 8 Mr Ahmed is dependent on his work in the security industry to support himself and his family while he studies. He says that the effect of the decision is that he is deprived of this livelihood. 9 Although that is the effect of the decision, the decision only reflects what the NSW Parliament has already decided. It is the NSW Parliament that has decided that only Australian citizens or a permanent Australian residents can be licensed under the Security Industry Act. That decision was implemented by the Security Industry Amendment Act 2002. The Parliament's decision is explained in a speech that a member of the Government gave (Mr Gaudry, 12 November 2003, Hansard 6544). 10 The explanation is that the Commissioner does not have the resources to check the criminal records of people from overseas. It is possible that people in Australia on visas have criminal records that the Commissioner would not know about. The Government wants to reduce the risk of the Commissioner granting a licence to a person with an unknown overseas criminal record. One way of doing this, the Government says, is to limit eligible licence applicants to Australian citizens or permanent Australian residents. Whether or not the Government is correct in this view, that is its explanation for limiting security licences to Australian citizens or a permanent Australian residents. Application of the requirement to Mr Ahmed 11 Mr Ahmed argues that section 15(1)(e) is not relevant to his circumstances because he is not applying for a licence, but wants to renew his existing licence. 12 Mr Ahmed was first granted a licence in March 2001. That ran until May 2002 and he was granted a further licence until May 2003. It is true that, in ordinary language, Mr Ahmed's application for a licence in May 2003 would be described as a 'renewal'. In its published decisions this Tribunal consistently refers to an application for a licence, when the person previously held a licence, as a 'renewal' application. But in fact that is not how the Security Industry Act works. 13 Even though the effect of an application for a licence, when the person previously held a licence, is that the licence has been 'renewed', each application is for a new licence. The licence is issued for a defined period, and expires at the end of that period. A new licence is applied for and issued. This can happen many times – each issue of the licence is the issue of a new licence according to the conditions in place at the time. This is clear from the terms of section 24(2): A licence cannot be renewed, but an application for a new licence may be made in accordance with this Act and also section 28: In making an application for a new licence, the applicant must demonstrate, to the satisfaction of the Commissioner, that the applicant has been actively involved in the security industry during the term of the previous licence. Obligation to give notice to Mr Ahmed 14 Mr Ahmed say that the usual advice given to a security licence holder by the Commissioner is that licence holders will be given adequate opportunity to comply with any variations in the required qualifications [for a licence]. 15 He says that on this basis he should have been told of the effect of the Security Industry Amendment Act 2002 before he re-applied for his licence. 16 While it would be fair if this were to happen, in this case Mr Ahmed was not in a position to comply even if he had known. He is not able at the moment to become an Australian citizen or a permanent Australian resident. Mr Ahmed's right to work 17 Mr Ahmed says that a law that deprives him of his livelihood is contrary to international human rights standards in treaties ratified by Australia. Australia has ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), and in Article 6 Australia recognises the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 18 ICESCR has not been made into a law of Australia, and does not control the way this Tribunal makes its decisions. I would consider it if there was any ambiguity or discretion or need for interpretation in the law that applies to Mr Ahmed's circumstances. But the law that I have to apply in this case is very clear, and leads to the result I have already described. 19 However, addressing Mr Ahmed's argument, I agree that it is arguable that a law that prevents him from 'gaining his living by work which he freely chooses' is in violation of Article 6 of ICESCR. But at the same time, Article 4 of ICESCR allows Australia to subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. 20 Articles 4 recognises that Australia has some entitlement to limit the extent to which Mr Ahmed can freely choose the type of work he wants to do. If there was any jurisdiction in which a claim under ICESCR could be argued, then I think there would be a question as to whether the limitation imposed by the Security Industry Amendment Act 2002 is within a the limited entitlement of a government (in this case the NSW Government) to limit Mr Ahmed's right to work. 21 But Mr Ahmed makes the point that he is, effectively, 'renewing' his licence, in that he has held a licence twice previously, for more than two years. He is not a person unknown to the Commissioner. He has excellent references and relevant training. It may well be that the concerns that the Government expressed when introducing the Security Industry Amendment Act 2002 do not arise in Mr Ahmed's circumstances. It could be argued that the Government's approach, which is to prevent anyone who is not an Australian citizen or a permanent Australian resident from holding a security licence even though they have previously held one and there are no other grounds for refusing it, is excessively cautious. As Mr Ahmed points out, people who are not Australian citizens or a permanent Australian residents continue to hold security licences until they expire. To limit Mr Ahmed's choice of work, as the Security Industry Amendment Act 2002 does, with his history in the industry, may not be within a government's limited entitlement under ICESCR to limit his right to work. 22 But the only way that that issue can be addressed and, if appropriate, acted on, is through the Parliament. Until the Parliament reconsiders the steps it has taken to limit access to security licences, the Commissioner must apply section 15(1)(e). The Tribunal, satisfied of the existence of the objective facts, must affirm the Commissioner's decision. 23 Accordingly, I order that the Commissioner's decision be affirmed.