Commissioner of Police, New South Wales Police Service -v- Valkai (No. 2) (GD) [2001] NSWADTAP 43

Appeal Panel

CITATION: Commissioner of Police, New South Wales Police Service -v- Valkai (No. 2) (GD) [2001] NSWADTAP 43 APPELLANT PARTIES: Commissioner of Police, New South Wales Police Service RESPONDENT Frank Valkai FILE NUMBER: 019023 HEARING DATES: 04/10/2001 SUBMISSIONS CLOSED: 10/04/2001 DATE OF DECISION: 12/24/2001

Valkai -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 63 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Goode P - Judicial Member; Mapperson K - Member CATCHWORDS: statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 003064 DATE OF DECISION UNDER APPEAL: 09/25/2001 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Commissioner of Police, New South Wales Police Service v Valkai (GD) [2001] NSWADTAP 34 CASES CITED: Commissioner of Police, New South Wales Police Service v Yaghi (GD) [2001] NSWADTAP 35 House v The King (1936) 55 CLR 499 APPELLANT REPRESENTATION: C Capper, advocate RESPONDENT J Noble, solicitor ORDERS: Appeal dismissed.

1 In a decision delivered on 25 September 2001 ( Commissioner of Police, New South Wales Police Service v Valkai (GD) [2001] NSWADTAP 34), the Appeal Panel upheld the Commissioner's submission, that the original decision of the Tribunal was affected by an error of law. In light of that ruling, the Appeal Panel directed that the matter be relisted before the President for further submissions as to the order of the Appeal Panel. 2 In this case we are not satisfied that the Tribunal might possibly have reached a different decision if it had properly construed s 26(1)(a) of the Security Industry Act 1997 (the Act). 3 As explained in our earlier decision in this case, the Commissioner relied on three heads of power alternatively to found his decision to revoke the security industry licence held by the respondent. The heads of power on which the Commissioner relied were: (1) Section 26(1)(a): "for any reason for which the licensee would be required to be refused a licence of that class" – in this instance a prescribed conviction for an offence of dishonesty (wrongful receipt of social security payments); (2) Section 26(1)(c): "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence"; (3) Section 26(a)(d): "for any other reason prescribed by the regulations" - the Commissioner "considers that it is not in the public interest" for the licensee to continue to hold a licence (Reg 18). 4 It has been typical of many of the cases that have come before the Tribunal where the Commissioner has been moved to revoke a licence that he has relied on each of these grounds in the alternative. Typically also, he has relied on the one circumstance in relation to each ground. That one circumstance has been a conviction subsequent to the renewal of the licence. 5 He has asserted that the conviction satisfies all three grounds - the licensee is not of fit and proper character, the public interest is violated, and as it is a conviction of a prescribed kind, the discretion to revoke should be exercised on that ground alone. 6 In the case under appeal, the Tribunal's error affected its reasoning in respect of the first of the 3 grounds listed, the error leading to it not considering whether the first ground applied to the circumstances. It did substantively consider the second and third grounds and found them not to have been established to its satisfaction. There was no appeal in respect of the decision as it relates of those grounds. 7 As in an earlier case, Commissioner of Police, New South Wales Police Service v Yaghi (GD) [2001] NSWADTAP 35, the question therefore for the Appeal Panel is whether to set aside the decision below, when there is no contest with the Tribunal's view that the licence should not be revoked on the grounds of the licensee's character or the public interest. 8 The issue, as the Appeal Panel sees it, is whether there are any considerations which arise that might warrant a different conclusion by applying the discretion given by 26(1)(a) to the circumstances. 9 There could be situations where the Commissioner might choose to rely exclusively on one or other of these heads of power. It may be that it would be preferable that the Commissioner in the future more clearly identify the head of power of which he is relying, at least principally, when deciding to revoke a licence. 10 In several cases there has been nothing in the licensee's personal history other than the events giving rise to the conviction to suggest that the person is not a fit and proper person. Similarly apart from the conviction there has been nothing substantially put forward to suggest that the public interest is at risk in allowing the person to retain the licence until its expiry date. 11 In cases of these kinds, it would be better if the provision relied on was stated to be s 26(1)(a), alone. That would then require the Commissioner and ultimately the Tribunal to assess whether, in the exercise of the discretion, the conviction is of such a kind that the licence should be refused. 12 The Commissioner has applied for the appeal to be extended to the merits. There is also a principle, which arguably involves similar considerations to that which arises when considering an application for extension to the merits, to the effect that a decision should only be set aside if the legal error identified is so significant to have been likely to have materially affected the outcome: House v The King (1936) 55 CLR 499. 13 As noted, the legislative scheme is such that the variety of options are given to the Commissioner when considering whether to revoke a licence. In accordance with usual principles of statutory interpretation, the legislature should have been presumed to have intended that each of the heads of power (or options) was intended to have a specific role and sphere of operation; though they could possibly overlap to some degree.