Set aside by Appeal : CITATION: Jacobs v Commissioner of Police, New South Wales Police Service [2003] NSWADT 180 revised - 5/08/2003 DIVISION: General Division APPLICANT PARTIES: Kevin George Jacobs RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023285 HEARING DATES: 10/04/2003 and 24/07/2003 SUBMISSIONS CLOSED: 07/24/2003 DATE OF DECISION: 07/31/2003 BEFORE: Higgins S - Judicial Member APPLICATION: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 LEGISLATION CITED : Crimes Act 1900 Criminal Code Act 1899 (QLD) Security Industry Act 1997 Security Industry Regulation 1998 R v L (1991) 174 CLR 379 at 401 Collins v Wilcock [1984] 1 WLR 1172 CASES CITED: Collins supra and R v Phillips [1971] ALR 740 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 APPLICANT A Healey, barrister - 10 April 2003 REPRESENTATION: K Thompson, barrister - Submissions V Bost, solicitor - 24 July 2003 RESPONDENT C Capper, agent ORDERS: 1. The decision by the Commissioner to refuse Mr Jacobs his application for a class 1B and C security industry licence is affirmed.; 2. The decision by the Commissioner to refuse Mr Jacobs his application for a class 1A licence is set aside and in substitution thereof a decision that Mr Jacobs be issued with a class 1A licence subject to the condition that he is authorised to work as a control room operator in the offices of All Points Security Background 1 The applicant, Mr Jacobs, has made an application seeking review of a decision of a delegate of the Commissioner of Police ("the Commissioner") to refuse his application for a Class 1ABC security industry licence. Mr Jacobs has previously been the holder of a security industry licence. That licence expired on 17 June 2000. However, Mr Jacobs ceased working in the industry on 7 June 1999 when he was charged with offences of sexual intercourse with a male person under the age of 16 years and above the age of 10 years. 2 While he was working in the industry, Mr Jacobs was employed by All Point Security and Protective Services Pty Limited ("All Point Security"). 3 On 11 April 2000, Mr Jacobs pleaded guilty to two offences of sexual intercourse with a male person under the age of 16 years and above the age of 10 years; namely 14 years. He was convicted of these offences and sentenced to imprisonment for two years and six months, with a non parole period of twelve months. 4 On 15 August 2002, Mr Jacobs lodged an application for a Class 1ABC security industry licence. Mr Jacobs' disclosed his criminal convictions in his application. He had made his application as he had been offered employment by All Point Security as their control room operator as well as providing administrative services. This position required Mr Jacobs to work in the offices of the company and monitor the main control system and respond to and co-ordinate any problems raised by security officers during their shift. Mr Jacobs supported his application with a cover letter, which explained the circumstances in which he made his application. He also supported his application with a letter from Mr Tom Jordan and G H Harrison of All Point Security, a reference from Greg Butler and his parole officer and a copy of a letter from his treating doctor. 5 On 2 September 2002, the Commissioner issued a notice of refusal in respect of Mr Jacobs' application for a licence. The ground on which his application was refused was stated to be that the Commissioner considered that it would be contrary to the public interest to issue him with a licence. 6 On 26 September 2002, Mr Jacobs sought an internal review of the Commissioner's decision. In making his application for internal review Mr Jacobs stated that he would be prepared to accept a condition attached to his licence that restricted his activities to alarm monitoring and general administrative services. 7 On 16 November 2002, another delegate of the Commissioner, completed the internal review and confirmed the earlier decision. In the internal review the delegate of the Commissioner stated as follows: "…I am of the opinion that the offences committed by you, fall clearly within the provisions of Section 15(1)(a) and 15(3) of the Security Industry Act , 1997. In this regard, it should be clearly understood that your application must be refused upon the mandatory ground that you are not a fit and proper person to be granted a licence. I also consider it appropriate that your application should be refused on the basis that it is not in the public interest". 8 The Tribunal's jurisdiction to hear this application arises by virtue of s.29(1)(a) of the Security Industry Act, 1997 and s.38 of the Administrative Decisions Tribunal Act 1997. In exercising its jurisdiction the Tribunal's task is to determine whether the Commissioner's decision is the correct and preferred decision having regard to all the relevant factual material and any applicable written and unwritten law (s. 63(1) Administrative Decisions Tribunal Act 1997). Hearing 9 At the commencement of the hearing of the matter, Mr Capper, on behalf of the Commissioner, informed the Tribunal that the Commissioner was relying on an additional mandatory ground as a basis for Mr Jacobs' application to be refused. The essence of his submission was that the offences for which Mr Jacobs had been convicted came within the terms of cl. 11(c) of the Security Industry Regulation, 1998. That is, they were offences that involved an assault. As this new ground did not involve any additional evidence being adduced, the Tribunal heard all the evidence on 10 April 2003 and gave the parties a timetable within which to provide written submissions in respect of this additional ground. 10 At the hearing, Ms Healey, on behalf of Mr Jacobs, relied on the material that had previously been provided to the Commissioner in respect of his application for a licence and his application for an internal review of the Commissioner's initial decision. She also tendered into evidence an affidavit of Mr Ralph Scott James sworn on 9 April 2003. Mr James, a solicitor, who was acting on behalf of Mr Jacobs, had also acted on his behalf in the proceedings before the Lismore District Court on 11 April 2000. Attached to his affidavit was a Statement of Facts that had been tendered to the Court for the purpose of Mr Jacobs' guilty plea on the two sexual offence charges. 11 In addition to this material, Ms Healey, called Mr Tom Jordan, the manager of All Point Security, and Mr Jacobs to give oral evidence. She also tendered into evidence a resume of Mr Jacobs. The Tribunal was informed that Ms Harrison, the sole director and owner of the All Point Security business had intended to give oral evidence in support of Mr Jacob's application, but was unavailable due to illness. 12 During the course of the hearing, Ms Healey, on behalf of Mr Jacobs, amended his licence application to a Class 1A licence. It was agreed that such a licence was sufficient to undertake the activities that Mr Jacobs wanted to undertake. 13 Mr Capper, on behalf of the Commissioner, tendered into evidence a bundle of documents that had previously been filed and served by the Commissioner in respect of Mr Jacobs' application. This bundle included the material previously forwarded by Mr Jacobs in respect of his application. 14 The matter was again listed before the Tribunal on 24 July 2003 at the request of the Tribunal. The purpose of this re-listing was to seek clarification from the parties about their respective positions on a licence being issued to specific conditions. Relevant Legislation 15 The Security Industry Act, 1997 ("SI Act") prescribes a scheme for licensing persons to carry out "security activities". The term carrying on "security activities" is defined in s.4 of the Act as follows: "For the purpose of this Act, a person carries on a security activity if the person carries on any one or more of the following activities in the course of conducting a business or in the course of the person's employment: (a) acting as a bodyguard, crowd controller or bouncer; (b) patrolling, protecting, watching or guarding any property (including cash in transit), (c) installing, maintaining, repairing or servicing security equipment, (d) providing advice in relation to security equipment or security methods or principles, (e) an activity, or class of activities, that is connected with security or the protection of persons or property and that is prescribed by the regulations for the purposes of this section, (f) providing training or instruction in relation to any activity referred to in paragraphs (a)-(e), (g) providing persons to carry on any activity referred to in paragraphs (a)-(f)". 16 The term "security equipment" is defined in s.3 of the SI Act to include the following: "…. (b) any mechanical, electronic, acoustic or other equipment designed or adapted to provide or enhance security or for the protection of watching of any property, 17 Section 7 of the SI Act prohibits a person from carrying on a "security activity" unless the person is the holder of a licence authorising the person to carry on the activity. 18 Under the SI Act there are three classes of licence, a master licence, a Class 1 licence and a Class 2 licence (see s.9, SI Act). A master licence authorises the licensee to conduct a business of providing persons to carry out security activities (see s.10, SI Act). 19 A Class 1 licence is divided into three subclasses; Class 1A, Class 1B and Class 1C. Section 11(1) of the SI Act sets out the activities that each class of such a licence is authorised to undertake. A Class 1A licence holder is authorised to: "…patrol, guard, watch or protect property, including the guarding of cash in transit or to carry on such other activities as may be described by the Regulations." A Class 1B licence authorises the licensee to act as a bodyguard and a Class 1C licence authorises the licensee to act as a crowd controller or bouncer. 20 There are four categories of a Class 2 licence (see s.12, SI Act). A Class 2A licence authorises the licensee to act as a security consultant. A Class 2B licence authorises the licensee to sell security equipment, to carry out surveys and inspections of security equipment and to give advice about security equipment. A Class 2C license authorises the licensee, to install, repair, service or maintain security requirement and a Class 2D licence authorises the licensee to provide training or instruction in relation to any security activity. 21 Section 15 of the SI Act sets out circumstances in which the Commissioner must refuse to grant an application for a licence. These circumstances include those where the Commissioner is satisfied that the Applicant: "is not a fit and proper person to hold the class of licence sought by the Applicant, …" 22 Section 16 of the SI Act sets out criminal and other related history for which the Commissioner must refuse to grant an application for a licence. The first circumstance listed in that section is where the Commissioner is satisfied that the Applicant: "…has within the period of ten 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, …" ( see s.16(1)(a) )( emphasis added ). 23 Clause 11 of the Securities Industry Regulations 1998 (SI Regs) sets out the offences prescribed in respect of s.16 of the Act. These offences include an offence involving an assault. The relevant provision provides as follows: 11 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: … (c) Offences involving assault An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being: (i) an offence in respect of which the penalty imposed was imprisonment or a fine of $200 or more, or both, or (ii) in such cases where the applicant concerned has been found guilty but has not been convicted – an offence that, in the opinion of the Commissioner, is a serious assault offence. (emphasis added) 24 S. 21(3) of the SI Act gives the Commissioner a discretion to issue a licence subject to conditions which he thinks are fit to impose and which are specified on the licence. Evidence 25 Mr Capper, on behalf of the Commissioner, sought to rely on a police fact sheet that had been prepared by the arresting police officers on 7 June 2000. However, on the basis of the affidavit of Mr Jacobs' solicitor, Mr James, the Tribunal accepts that these were not the facts that were placed before the Court when Mr Jacobs pleaded guilty and was convicted of the charges on which he was indicted. Accordingly, the Tribunal has only had regard to the facts that were before the Court. On this basis, the evidence in respect of the two offences for which Mr Jacobs was convicted includes the following: (a) The offences were committed between 2 April 1999 and 20 May 1999. (b) As mentioned above, the victims of the sexual intercourse were two males aged 14 years of age. One of these males Mr Jacobs had known for almost three years. He had been visiting Mr Jacobs at his home for the previous six months. The other male had only attended Mr Jacobs' residence on a couple of occasions before the offence occurred. (c) Mr Jacobs formed a strong emotional attachment to the male he had known for some time. During a visit by this particular male, Mr Jacobs requested that he remove his clothes for a short period of time, for which Mr Jacobs paid him $20. (d) Mr Jacobs performed oral sex on both males and on one occasion requested one of the males to masturbate him. It was this conduct that was the subject of the two charges on which he was convicted. (e) After one of the males had been interviewed by police on 26 May 1999, Mr Jacobs attempted to commit suicide by means of overdosing on sleeping tablets. (f) On 1 June 1999 the police executed a search warrant on Mr Jacobs' premises and seized a number of items including books containing pictures of naked boys, similar photographs and videotapes with male sex. Mr Jacobs was arrested and interviewed by police on 7 June 1999. During the interview Mr Jacobs admitted to knowing both boys and that he knew their respective ages. He admitted to his sexual preferences and to having a "strong emotional tie" to one of the males. He also admitted to trying to kill himself because he was afraid he was "going to become physical" with the male he had formed a strong attachment to. (g) As mentioned above, on 11 April 2000, Mr Jacobs was convicted of the 2 charges. 26 In his covering letter to his application for the licences, Mr Jacobs explained his criminal conduct as arising from his very vulnerable state at that particular time. This vulnerable state commenced in August 1998, when his long term partner of six years had left him without any prior warning. Two nights after this, whilst performing security duties, Mr Jacobs witnessed a double motor vehicle fatality. He was the only uniform person at the scene of the accident for about 15 to 20 minutes and during that time he administered first aid, attended to the comfort of the survivors and attended to crowd and traffic control. He states that the incident traumatised him deeply. At that time he was also trying to deal with the terminal illness of his stepfather and his ultimate passing. He was very close to him and then he had to try and pull his elderly mother through her severe state of depression. In addition to all of this he struggled to meet the ongoing financial commitments that he and his partner had committed themselves to without the assistance of his partner's income. 27 In his covering letter, Mr Jacobs goes on to state that his life has settled down now and that he had adjusted and put all of the past behind him and he believes that he is now fully rehabilitated. In support of his contentions, Mr Jacobs enclosed a letter, dated 26 April 2002, from his probation and parole officer who stated Mr Jacobs has maintained cooperate contact with her and had reliably fulfilled all requirements. She also stated that the probation and parole service actively encouraged those on parole "to seek and undertake employment, as this is considered therapeutic to their integration back into the community". 28 Mr Jacobs also relied on a statement contained in the letter, dated 20 March 2000, from his treating doctor in which she states as follows: "Kevin has the clearly established medical condition of bipolar affect disorder, the predominant feature of which was depression. He freely admits his homosexuality. His behaviour towards the young boys was not typical of previous relationships. I feel he became infatuated with them and flattered by their attention. I do not see him as a predator on young boys". 29 In his reference, dated 23 August 1999, Mr Butler states that he has known Mr Jacobs since April 1995 and that he was aware of the charges that had been laid against him. He first met Mr Jacobs when he was employed for a period of six months under a Job Skills Program. Under this program Mr Jacobs had frequent contact with up to 45 youths aged between 15 and 21 years, three quarters of whom were male. Mr Butler states that at all times Mr Jacobs performed in a professional manner and that he proved himself to be extremely trustworthy. 30 In her letter, dated 10 August 2002, Ms Harrison the owner of the All Point Security and the holder of the master licence for the business stated that she was aware of Mr Jacobs' past history and notwithstanding this the company was prepared to employ him solely in the capacity of a control room operator for security purposes. She goes on to state that: "… he will be engaged to a limited degree to perform clerical accounting duties which are, in no way related to a security role but, as that work is limited in hours we would like to provide him with the opportunity to also take over a vacancy in the control room as a licensed operator. "Kevin is a quiet, unassuming man who, when working for this company in the past had worked exceptionally well with all other staff members. He is very much a team person who has the ability to analyse and take control of situations". 31 In his letter, dated 10 August 2002, Mr Jordan of All Point Security and the holder of a security industry licence also states that the company had a position available for Mr Jacobs as a control room operator in its monitoring room. He states: "….his duties would require that he do nothing more than attend to the monitoring of all incoming alarms, the coordination of all field staff duties and attention to the necessary documentation and filing of records. Obviously those duties would not require that Kevin ever have to attend to any form of security duties outside of the company premises and I am prepared to give an undertaking that that would remain the case should he be successful in his application. Kevin, is a person who is very honest, trustworthy and reliable. He was an excellent employee in the past and we would be most willing to employ him again in the capacity I have outlined in this letter". 32 At the hearing Mr Jordan gave the following evidence: (a) He is the manager of All Point Security and has been since 1 July 1997. Prior to this he was a police officer with the NSW Police Service for 25 years. He retired in 1995 when he commenced his association with All Point Security. Prior to his retirement, in 1993 he obtained a security industry Class 2ABD licence. With the consent of the Commissioner he provided private consultation services as a security trainer. This was done in addition to his policing duties. (b) He first met Mr Jacobs in 1997 when Mr Jacobs attended one of Mr Jordan's security industry training courses. Mr Jordan stated that he was impressed by his attitude and offered him employment with the company. Up until his arrest in June 1999, he was engaged as a patrolman and generally worked at night. During the whole time that he was employed with the company no complaints were ever received in respect of his work. (c) Mr Jacobs has at all times been open about his sexual preferences and this gave no rise to any concern in sending him out on security patrols. Even after having been convicted of the sexual offences, Mr Jordan personally has no problem with Mr Jacobs posing a threat to himself, his family or any other member of the community including children. However, Mr Jordan stated that in respect of any security activities he and the company were bound by the requirements of the security industry legislation and the relevant child protection legislation. (d) The security services provided by the company included security services for 300 NSW public schools in the region. He explained that this service primarily involved the provision of security services in response to an alarm that is raised in the central control room of the linked security system for NSW schools. This control room is located in Sydney and if an alarm is raised in a school within the region of the company, the central control room contacted the company who then sent out a security officer to inspect the site. The service also included providing security officers to protect the property of a school as requested. This service was provided mainly after school hours but also included school hours. (e) He explained that he and Ms Harrison had tailored a job for Mr Jacobs as they had agreed that he had been a valuable employee. He elaborated on the tasks that would be required of him, which included monitoring the various alarm systems that are connected to the company's central monitoring system and responding to calls from security officers out in the field. In this regard he would be required to coordinate additional security officers to provide assistance or call the police for assistance. (f) The company is regularly audited and it has a system by which all security incidents are recorded. He also undertook to advise the Commissioner if Mr Jacobs ceased working with the company or did anything that was contrary to his licence. 33 In his evidence, Mr Jacobs also gave evidence and stated that he now lives with his mother. He has lived with her for the last two years, since his release from prison. He also stated that he recognised he would not get another security industry job if he could not work for Mr Jordan. In any event he undertook not to seek another position and stated he would be happy to give his licence card to Mr Jordan when he was not working. He confirmed that he only wanted a licence to do the job that Ms Harrison and Mr Jordan had tailored for him. Submissions 34 Ms Healey, on behalf of Mr Jacobs, submitted that the evidence did not demonstrate that Mr Jacobs was not a fit and proper person to hold a Class 1A licence. In this regard she argued that the facts surrounding his convictions must be weighed against other factors such as his prior good character as referred to by his referees. She argued that these circumstances must be considered in the context of the activities Mr Jacobs would be licensed to undertake. She also submitted that the community is protected by Mr Jacobs being placed in stable employment. In the alternative, she argued that in the circumstances it was appropriate for the Commissioner to issue a Class 1A security licence that is subject to a condition that he is only authorised to work as a control room operator. 35 In written submissions, Ms Thompson, on behalf of Mr Jacobs, submitted that the offences for which Mr Jacobs was convicted did not come within the meaning of the term "involving assault" in cl. 11(c) of the SI Regs. In this regard, Ms Thompson argued that the particular term in question must be interpreted having regard to the overall purpose of the Act as set out in the Second Reading Speech by the then Minister for Police (see NSW Hansard articles: LA: 19/11/1997). 36 Mr Capper, on behalf of the Commissioner, submitted that the criminal conduct of Mr Jacobs was of sufficient seriousness to find that he was not a fit and proper person to be a holder of the licence he applied for. This was particularly so in light of the evidence of Mr Jordan regarding the type of services provided by his company to schools and the fact that he acknowledged that if Mr Jacobs was issued with a licence it would be possible for him to obtain a security position with another company without his knowledge. 37 In his written submissions, Mr Capper, on behalf of the Commissioner, argued that the phrase "involving assault of any description" in cl. 11(c) of the SI Regs included the offence of which Mr Jacobs was convicted as well as every other unlawful sexual intercourse offence contained in the Crimes Act, 1900 (Crimes Act). In support of this proposition he relies on the decision in R v L (1991) 174 CLR 379 at 401 where Brennan J stated the following: "… rape has always been essentially a crime of violence and indeed no more than an aggravated assault. Even in Hume's time there was no immunity for a husband who assaulted his wife even if the assault contained elements of the grossest indecency…" 38 At the hearing on 10 April 2003, Mr Capper also submitted that a condition on his licence, as proposed by Mr Jacobs, would place an unacceptable burden on the Commissioner as he would be unable to effectively enforce it. In this regard he again pointed to Mr Jordan's evidence. He argued that a security industry licence should only be issued in those circumstances where there is virtually no risk to the public. On 24 July 2003, when the matter was again before the Tribunal, Mr Capper indicated that, leaving aside the issue of a mandatory refusal applying in this case, the Commissioner could issue Mr Jacobs with a class 1A licence with specific conditions restricting the nature of the security activity he was authorised to do pursuant to that licence. Reasons and Decision 39 The parties appeared to agree that in order for Mr Jacobs to be employed as control room operator in the monitoring room of All Point Security, he only required a Class 1A licence. In this regard Mr Capper had argued that this was an activity coming within the meaning of ss.4(b) of the definition of "security activities" in the SI Act. It was his submission that "patrolling, protecting, watching or guarding any property" included the undertaking of those activities through electronic means. As there was no dispute between the parties in regard to this issue, the Tribunal has not considered this matter any further other than to note the requirements of s. 23 of the SI Act. This provision prohibits a master licence holder from employing anyone who has access to any operational information relating to the licensee's security business who would be refused a licence under s. 16 of the Act. This would suggest that every office worker in a security industry business, while not required to be licensed, must never the less comply with s. 16. Mandatory Refusal: s. 16 prescribed offence 40 It is convenient to first deal with the issue of whether a conviction for the offence for which Mr Jacobs was convicted is an offence coming within the terms of cl. 11(c) of the SI Regs. If it does, the Commissioner (and the Tribunal) has no discretion and must refuse to grant Mr Jacobs' application for a licence as cl. 11(c)(i) is satisfied in this case as Mr Jacobs was sentenced to a term of imprisonment. 41 The issue is one of legislative construction. The first thing to note is that s. 16(1)(a) of the SI Act makes reference to the applicant having been "convicted" of an "offence prescribed by the Regulations". The introductory words of cl. 11 of the SI Regs state that the "following offences are prescribed offences" for the purposes of s. 16(1)(a) of the SI Act. 42 Having regard to the wording of s. 16(1)(a) of the SI Act and the introductory words of cl. 11 of the SI Regs, in my opinion, the matter in issue is answered by considering the elements of the offence for which the applicant for a licence has been convicted of and not by considering the particular facts surrounding the conviction. Had Parliament intended the latter it would have made reference to the conduct the subject of the conviction, instead it has used the words " an offence prescribed by the regulations" (see s.16(1)(a)). 43 Accordingly, what must be determined is whether the elements of the offence for which the applicant has been convicted involves elements which would also give rise to an offence of assault. It is the latter which is given a broad meaning in cl. 11(c) of the SI Regs by the qualifying words of "… any description". The reason for this is obvious as s. 16(1)(a) of the SI Act and cl. 11(c) of the SI Regs applies to conduct that occurred outside of New South Wales and which amounted to an offence of assault under a law other than New South Wales law. In such cases the elements of the offence may differ to those which apply under New South Wales law, however a conviction of such an offence will never the less come within the terms of cl. 11(c) of the SI Act (e.g. s.245(1) Criminal Code 1899 (Qld) which codifies the offence of assault). 44 In this case Mr Jacobs was convicted of an offence under New South Wales law and it is that law and not the law of another jurisdiction that is relevant to this application. The offence for which Mr Jacobs was convicted was an offence under s. 66C(1) of the Crimes Act 1900 ("Crimes Act"). The elements of this offence are intentionally having "sexual intercourse" with another person (the victim) who is above the age of 10 and under the age of 16. The term "sexual intercourse" is defined in s. 61H of the Act. Included in this definition is "sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person" (see s. 61H(b) Crimes Act). This is the conduct, which formed the basis of the charges against Mr Jacobs. Unlike the offence of sexual assault, which is contained in s. 61I of the Crimes Act, a s. 66C(1) offence does not contain an element that the sexual intercourse occurred without the consent of the victim and that the offender knew that the victim did not consent to the sexual intercourse. This means that where a s. 66C(1) offence is charged, the prosecution does not have to establish a lack of consent by the victim in order to obtain a conviction against the accused. Nor can the accused rely on a defence that the victim consented to the sexual intercourse (s. 77 Crimes Act). The offence is proved where there is evidence of the fact that the victim is within the prescribed age bracket and the accused had sexual intercourse, as defined, with the victim. 45 The Tribunal notes that s 66D of the Crimes Act creates an offence of "assaulting" with intent to commit an offence against s. 66C. The elements of this offence are assaulting another person who is above the age of 10 and under the age of 16, with the intention of having sexual intercourse with that other person. The Crimes Act does not contain a definition for the term "assault" generally or for the purposes of this particular section. Accordingly, the common law definition of "assault" applies. However, s. 77 of the Crimes Act equally applies to this section, which means that an accused cannot rely on the defence of consent by the victim. 46 S. 61 of the Crimes Act provides a maximum penalty of 2 years imprisonment for the offence of assault. As mentioned above, the elements of this offence are those that apply under the common law. 47 It has long been accepted that at common law an "… assault is an act which causes another person to apprehend the infliction of immediate, unlawful force, on his person" (see Collins v Wilcock [1984] 1 WLR 1172; 3 All ER 374 per Goff J at 1177; 378). The elements of this offence are as follows: (a) an intentional or reckless hostile act (infliction of immediate, unlawful force) of the accused towards the victim; (b) without the consent of the victim 48 The offence does not contain an element of the accused having, touched or inflicted actual unlawful force (i.e. actual bodily harm) on the victim. However, in proving an offence of assault against an accused, evidence of the accused having actually inflicted unlawful force or touched the victim is the evidence relied on to prove the hostile act of the accused towards the victim. It is the hostile act, which is the element of the offence that needs to be proven, not the fact that the accused touched or inflicted unlawful force. 49 The touching or infliction of unlawful force constitutes the common law offence of battery (see Collins supra and R v Phillips [1971] ALR 740). In those States and Territories, which have codified the offence of assault, the definition of assault includes a battery (e.g. s. 245(1) Criminal Code 1899 (Qld) which includes striking and touching). However, in my opinion, contrary to Mr Capper's contentions, in New South Wales the offence of assault and battery remain separate offences. 50 Leaving aside the issue of consent of the victim, the elements of the two offences, assault and sexual intercourse with another person between the age of 10 and 16 do differ significantly. Their difference is best demonstrated by the fact that Parliament has created a separate offence of assault with the intention to commit an offence of sexual intercourse with another person between the age of 10 and 16. An element of this offence (s. 66D) being the offence of assault. 51 Accordingly, in my opinion, it is arguable that the offence under s. 66D of the Crimes Act comes within the terms of an offence prescribed under cl. 11(c) of the SI Regs as it is an offence that involves the elements of the offence of assault. The fact that lack of consent of the victim is not an element does not mean that it is not an offence involving the elements of an offence of assault. However, the same cannot be said of an offence under s. 66C of the Crimes Act as this offence does not contain any elements, which are relevant to the offence of assault. It is appreciated that this may give rise to an anomaly in that the mandatory refusal in s. 16(1)(a) of the SI Act applies to an applicant who has been convicted of an assault with an intent to commit an offence against s. 66C and it will not apply to the applicant who has been convicted of a s. 66C offence. However, this does not mean that the applicant with a s. 66C conviction will automatically be granted a licence. Indeed, the circumstances surrounding that conviction will be a matter that the Commissioner must have regard to and be satisfied that the conviction does not give rise to the other mandatory or discretionary grounds of refusal contained in the SI Act. 52 Having regard to the second reading speech for the Security Industry Bill 1997 by the then Minister for Police, Mr Whelan, it is arguable that the inclusion of the s. 66D offence as a prescribed offence under cl. 11(c) may be the anomaly. In that speech Mr Whelan stated that the legislation would: "… exclude from the industry persons with convictions for certain criminal offences within the past 10 years and exclude completely those who have at any time been convicted of robbery, armed or otherwise, or convicted of any offence involving the use of a firearm. It would also exclude those who were convicted of offences involving the infliction of actual bodily harm to a person for which they were given a term of imprisonment of one month or more. " (emphasis added)(Hansard 19 November 1997 at 2089) 53 He made these remarks in the context of the legislation ensuring that the industry is free from criminal activity and that those within the industry are protected from the criminal activity outside the industry. At the time the Security Industry Bill, that was subsequently enacted, did not prescribe the offences for which a licence must be refused under cl. 16 of the Bill. These were prescribed subsequently in the SI Regs and are wider than that proposed by Mr Whelan in his speech. However, his speech does suggest that Parliament did not intend to include sexual offences. In any event it is not a matter for the Tribunal to consider as in my opinion on a proper construction of s. 66C of the Crimes Act, it is not an offence prescribed by cl. 11(c) of the SI Regs. Fit and Proper 54 As mentioned above, if it is found that Mr Jacobs is not a fit and proper person to be issued with a licence, s. 15(1)(a) of the SI Act also provides for a mandatory refusal of his application. 55 The Tribunal has considered the meaning of a "fit and proper person" on numerous occasions and has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] where he stated: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose witness and propriety are under consideration". 56 It is well established that the discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321). 57 In Hughes and Vale Pty Ltd at 156-157 Dixon CJ, McTiernan and Webb JJ stated as follows in respect of the exercise of this administrative discretion: "The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability ... . It is evident that the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion." 58 In this case, the circumstances surrounding Mr Jacobs conviction did not relate to his activities as a security industry licence holder. Nor did they relate to a working environment. They were specifically relevant to his private life. 59 However, there is no question that the offences were serious in that Mr Jacobs breached his position of trust as a responsible adult. His depressed condition was no excuse. While there is no evidence of previous conduct of this nature it is conduct that occurred relatively recently. 60 His conduct, however, must be examined in light of the activities that Mr Jacobs would be authorised to undertake as a holder of a Class 1A licence. As mentioned, above such a licence only authorises Mr Jacobs to patrol, guard, watch or protect property. He would not be licensed to act as a bodyguard or act as a crowd controller or bouncer. Such activities are authorised under a Class 1B and Class 1C licence. It is not disputed that these activities would bring Mr Jacobs directly into contact with people over which he would be given a measure of control. Such people may include persons under the age of 16. 61 On the basis of the evidence given by Mr Jordan, whom I found to be a truthful and sincere witness, a holder of a Class 1A licence employed by his company would be responsible for providing security services for a wide range of property, including schools. That is guarding, patrolling and protecting school buildings and other school property. While most of this would be done outside school hours, his company also provided such services during school hours. In this regard the Tribunal accepts Mr Jordan's assurances that he would not employ Mr Jacobs in such a role, particularly in light of the provisions of the Child Protection (Prohibited Employment) Act 1998. However, this is not the issue. A licence is issued regardless of whom the licence holder may be employed with. 62 However, in this case Mr Jacobs seeks a Class 1A licence that is subject to conditions. The conditions that are sought are that Mr Jacobs only be authorised to work as a control room operator. As mentioned above, he has such a position available to him at All Points Security. 63 At the hearing on 10 April 2003, Mr Capper, on behalf of the Commissioner, did not contend that such a position posed any threat to members of the public. It was his contention that such a condition would be difficult to enforce. Particularly, as Mr Jacobs would never the less be required to be issued with a licence in the approved form. This Mr Capper submitted would be Mr Jacobs' ticket to move from one place of employment to another, or work for another agency performing general Class 1A duties, without the knowledge of the Commissioner and contrary to conditions that may be imposed on him. 64 I accept that the Commissioner, in administering his duties under the SI Act, should not be placed in a position whereby he is unable to effectively monitor the activities of a licence holder whose licence is restricted in some way due to conditions having been imposed on it. This would defeat the strict controls contained in the SI Act. 65 However, s. 21(3) of the SI Act expressly gives the Commissioner a discretion to issue a licence subject to conditions. In light of the wide range of activities that are included in the definition of "security activities" under s. 4 of the SI Act, as demonstrated by this application, it was appropriate to give consideration to a licence that was subject to strict conditions which enabled Mr Jacobs to work in the industry he knew and which kept him away from dealing directly with any members of the public. There is no evidence of any dishonesty on the part of Mr Jacobs or that he had previously failed to undertake his security activities responsibly. Indeed Ms Harrison and Mr Jordan gave evidence that the contrary was the case. 66 It was on this basis that the matter was again listed before me on 24 July 2003. On this occasion Mr Jacobs confirmed that he only wanted a class 1A licence and that he only wanted to work in the offices of All Point Security performing the duties of the control room operator. Mr Capper, on behalf of the Commissioner conceded that it was possible to issue Mr Jacobs with a licence that restricted his security activities in that way. He also stated that it was possible to include the restrictions or conditions on the licence that he was issued with. While Mr Capper preserved the Commissioner's position in respect of the abovementioned mandatory grounds of refusal under s. 16(1)(a) of the SI Act, he conceded that there would be no object to Mr Jacobs being issued with a class 1A licence with the imposition of a condition that he is authorised to work as a control room operator in the offices of All Points Security. 67 On this basis it cannot be said that Mr Jacobs is not a fit and proper person to be issued with such a licence. Public Interest 68 In light of the concession by Mr Capper in respect of the issue of a licence that was subject to strict conditions, it is unnecessary for the Tribunal to consider this particular ground. CONCLUSION 69 For the reasons stated above, in my opinion, the decision of the Commissioner is not the correct and preferred decision and the Tribunal orders: 1. The decision by the Commissioner to refuse Mr Jacobs his application for a class 1B and C security industry licence is affirmed. 2. The decision by the Commissioner to refuse Mr Jacobs his application for a class 1A licence is set aside and in substitution thereof a decision that Mr Jacobs be issued with a class 1A licence subject to the condition that he is authorised to work as a control room operator in the offices of All Points Security Decision revised to correct name of Respondent's representative DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.