Makisi -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 166

CITATION: Makisi -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 166 DIVISION: General Division APPLICANT Tika Makisi PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003113 HEARING DATES: 19/05/2000 SUBMISSIONS CLOSED: 05/19/2000 DATE OF DECISION: 11/17/2000

BEFORE: Lees M - Judicial Member APPLICATION: 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 CASES CITED: Bourke & Ors -v- Commissioner of Police [1998] ADT 1 APPLICANT REPRESENTATION: In person RESPONDENT J Tunks, solicitor ORDERS: The decision of the Commissioner of Police to refuse to issue a Master licence to the applicant is affirmed.

Introduction 1 Mr Makisi lodged an application with the Administrative Decisions Tribunal (the Tribunal) on 18 April 2000 for review of a decision made by the Commissioner of Police (the Commissioner) on 15 March 2000 refusing Mr Makisi a 'Master' licence under the Security Industry Act 1997 (NSW) (the Act). 2 The Commissioner's decision was made pursuant to a request by Mr Makisi for internal review of an earlier decision of 25 January 2000 which had also refused Mr Makisi a Master licence. 3 The Tribunal's jurisdiction derives from sections 29 of the Act and 38 of the Administrative Decisions Tribunal Act 1997. 4 Some weeks prior to the Tribunal hearing Mr Makisi was provided with a copy of the Tribunal decision Bourke & Ors -v- Commissioner of Police [1998] ADT 1 (the Bourke decision) for his information. The relevant law 5 Section 16 of the Act concerns restrictions on granting licences in circumstances involving certain criminal and other related history. Section 16(1)(a) provides (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 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. 6 Clause 11 of the Security Industry Regulation 1998 (NSW) prescribes the offences that disqualify applicants. It reads: 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 not been convicted an offence that, in the opinion of the Commissioner, is a serious assault offence. The issue 7 The issue for the Tribunal in this application is to ascertain whether or not the objective facts on which the Commissioner relied in making the decision to refuse the applicant a Master licence are established, ie was Mr Makisi convicted of an offence and penalized and if so do these facts fall within the parameters of section 16 of the Act read with clause 11 of the Regulation? The evidence 8 At a Tribunal directions hearing on 9 May 2000, the parties made clear that the facts were that on 20 May 1994 Mr Makisi was convicted of the offence of common assault in the Penrith Local Court, and was fined $400 (excluding court costs) were not in dispute. Accordingly the Tribunal directed that no formal record of the conviction was required. At the hearing neither Mr Makisi nor the Commissioner provided any further detail as to the circumstances of the offence. 9 Mr Makisi had provided the Tribunal with a letter dated 17 April 2000 attached to his application for review. Mr Makisi referred in the letter to his religious beliefs and his prayers for forgiveness for his crime of 1994, his trouble free record since 1994, his abstinence from alcohol, his responsibilities as a father and provider for five children, and the security service business he proposes to establish and the expenses he has already incurred in that regard.