Pamata -v- Commissioner of Police, NSW Police Service [1999] NSWADT 62

CITATION: Pamata -v- Commissioner of Police, NSW Police Service [1999] NSWADT 62

DIVISION: General

APPLICANT: Uaaifua Pamata

RESPONDENT: Commissioner of Police, NSW Police Service

FILE NUMBER: 993053

HEARING DATES: 05/13/1999; 06/24/1999

SUBMISSIONS CLOSED: 06/24/1999

DATE OF DECISION: 24 June 1999

R Bartley - Judicial Member BEFORE:

PRIMARY LEGISLATION: Security Industry Act 1997

APPLICATION: - Review of a decision to refuse to issue a licence

MATTER FOR DECISION: Principal matter

Applicant: R W Hood counsel, instructed by Fabiani solicitors REPRESENTATION: Respondent: G Doherty, solicitor

1. Set aside the decision made by the deliegate of the Commissioner, dated 22 April 1999, refusing the applicant's application for a Class 1 licence, under the Security Industry Act; ORDERS: 2. Substitute the Tribunal's decision that a Class 1 licence be granted to the applicant effective from the date of the refusal; 3. By consent the application for a 1B and 1C licence are dismissed ; 4. No order as to costs

Delivered ex-tempore 1 The applicant, Mr Pamata, has applied for three class 1 licences under the Security Industry Act. The applications were refused by the delegate to the Commissioner on the basis the applicant was not a fit and proper person, and they should not be granted in the public interest. 2 He is a person of good character with very good references and following an application for amendment which was consented to, has nominated Nikua Securities Services Pty Limited, of 6/7 Queensborough Road, Croydon Park, 2137, as his employer. 3 The application now conforms with section 13 and 14(2). To be a valid application, the application must conform with section 13. Notwithstanding all that, the applicant has now withdrawn his application for a class 1B and 1C licence, and the matter has proceeded on that premise, that is an application for a class 1A licence. 4 The Commissioner has refused the licence on the basis of an incident in George Street and Liverpool Street, Sydney on 8 March 1989, outside Hungry Jacks, where the applicant was employed to protect the inside of the premises of Hungry Jacks and its patrons. He was of the view his instructions did not authorise him to interfere with matters outside the premises. 5 The delegate of the Commissioner of Police has taken a wider view. Outside Hungry Jacks on this night the Commissioner alleges the applicant, knowing there was a large group of youths, at least one armed with a knife, who eventually stabbed another, did nothing to render assistance to a person who was stabbed. The allegation is he did nothing to assist the person before or after the stabbing. The delegate of the Commissioner is of the view that the applicant knew a person was armed with a knife and there was a likelihood of danger and did nothing. 6 The applicant says he was told someone had a knife outside but clearly was of the view it did not fall within his duties as outlined by his employer, so he did not assist as the Commissioner alleged. 7 Dealing first with the reasons of the delegate of the Commissioner, Jennifer Dobell, there was a statement of facts, which she accepted and was required to be submitted to the Tribunal under section 49 of the Administrative Decisions Act 1997. However, these statements and the evidence of Constable Ell give little weight to the evidence given by the applicant, and cannot be accepted as a definitive account of this particular incident. 8 The Commissioner's delegate, Jennifer Dobell, at the beginning of her reasons under section 49 of the Act, refers, in refusing the applicant's application for class licence under the Security Industry Act, to Haining v Commissioner of Police, 1999 NSW Administrative Decision Tribunal, paragraph 14, a decision of his Honour Judge O'Connor, where he said, referring to the security industry, "This industry has a special role ensuring that public order is maintained and safeguarding community assets and private property, and ensuring that public venues are safe" 9 This comment, in my view, should not be taken out of context, and I accept the submissions of Mr Hood in that respect. It applies to the industry as a whole, and not to individual licensees who have an individual role, which is circumscribed by the Act. Again accepting the submissions of Mr Hood, section 8 provides: "A licence does not confer on the licensee any function apart from a function authorised by the licence." "It is further provided the person must not carry on a security activity unless the person is the holder of a licence authorising the person to carry on that activity." 10 The applicant has applied for a Class 1A licence. It is important to note that the holder of such a licence is only eligible to hold such a licence as sought by the applicant, if the person is an individual, and is employed by the holder of a master licence, or is self employed and the holder of a master licence. 11 On the evidence, the applicant must be employed by someone, and be subject to the direction of his employer, (as he is certainly not applying for a master licence). 12 The delegate in her reasons for refusing the application of the licence said: "It is my understanding that the authority conferred upon the holder of a security licence granted by the Government, with the clear expectation that the licensee utilise that authority for the good order of society and the well being of its members, or in the public interest". 13 With due respect to the delegate of the Commissioner, the licences are not granted by the Governor, but under the authority of the Act. The licence is granted under the Act and is subject to the conditions of the Act. With respect, the understanding of the delegate is erroneous, and this is important, as one of the basis of her decision is this understanding. 14 The delegate further said: "In regard to paragraph 1 to 3, the finding of facts, I formed the view that Mr Pamata failed to provide assistance to members of the public who had a reasonable expectation that as a licensed and uniformed security guard, apparently on duty, such assistance would be provided". 15 That submission was endorsed today by Mr Doherty. There is nothing in the Act to support Mr Doherty's submission or what the delegate calls the "the reasonable expectations of the public". As pointed out by Mr Hood, a security officer is not a police officer, their duties and responsibilities are different. 16 In my view the reasons given for the refusal of the applicant's licence are fundamentally flawed. This does not mean however the appeal should be upheld. It must be looked at having regard to the facts as appear to the Tribunal in the terms of the Act. 17 Looking at the matter afresh, there are excellent references tendered on behalf of the applicant. 18 Mr Doherty's submissions are recorded as are those of Mr Hood appearing for the applicant. On the balance I generally accept Mr Hood's submissions. 19 In the circumstances of this case Mr Doherty said, there was a positive duty, such as of a police officer, to assist the public by the applicant, and that a member of the public has an expectation that a security officer in uniform working in a restaurant in the capacity of a security officer that he go to the security officer and require assistance of that officer for the purpose of protection, protecting the person from danger. 20 As far as I am aware, there is no moral or legal obligation on a security officer, other than as an ordinary citizen. 21 Class 1 licensees are different from police officers, in that they cannot go beyond the scope of their licence, and in addition they are constrained by their employer's instructions. 22 Mr Hood submits that the security officer role is not that of a policeman, he can only do what the Act permits, and that where he is an employee he has to have regard to the instructions of his employer. He said the applicant had no duty outside Hungry Jacks. 23 Looking at the evidence as a whole I sympathise with the police in what they had to do. The facts are not easy to ascertain and, in my view, it would be difficult to come to any definitive conclusion, but I think the view of the Commissioner that the applicant did not give any assistance to the person stabbed and the persons concerned with their safety, would be correct, but on the other hand, accepting Mr Hood's submissions that the duties of a security officer are those prescribed by the Act, then of course the applicant did not have a duty, nor is there any evidence the public have a reasonable expectation that they could be assisted by a security officer. 24 Under all the circumstances I am of the view the application for a 1A license should be granted. Accordingly, the Tribunal's determination pursuant to section 3 of the Act is: (1) to set aside the decision made by the delegate of the Commissioner, dated 22 April 1999, refusing the applicant's application for a Class 1 licence, under the Security Industry Act; (2) substitute the Tribunal's decision that a Class 1 licence be granted to the applicant effective from the date of the refusal; (3) by consent the applications for a 1B and 1C licence are dismissed; (4) and in relation to section 88 of the Administrative Decisions Tribunal Act there is no order as to costs.