Howells -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 120

CITATION: Howells -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 120 DIVISION: General Division APPLICANT Martin Howells PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 993260 HEARING DATES: 17/03/2000 SUBMISSIONS CLOSED: 08/08/2000 DATE OF DECISION: 08/31/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Security Industry Act 1997 Sobey v Commercial Agents Board (1979) 22 SASR O'Sullivan v Farrer (1989) 168 CLR 210 CASES CITED: Queensland Electricity Commission and Ors; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Derisi v Vaughan [1983] 3 NSWLR REPRESENTATION: In person J Tunks, solicitor ORDERS: The decision of the Commissioner to revoke the applicant's licence is set aside

Introduction 1 On 25 November 1999 Mr Howells applied to the Tribunal for a review of a decision of the Commissioner of Police revoking his security industry licence. Mr Howells was issued with a security licence on 8 April 1999. The licences were for class 1A, 1B and 2B licences (issued on 8 April 1999) and Class 2B and 2C (issued on 24 May 1999). These licences were revoked on 10 November 1999. 2 The reason for the revocation was that it had come to the Commissioner's attention that on 6 August 1991, nearly 9 years previously, Mr Howells had been convicted of a series of offences including break and enter and malicious damage to property by fire. He was ordered by the Newcastle District Court to enter into a good behaviour bond for 5 years, to pay compensation, to perform community service work and to be subject to the supervision of the Probation and Parole Service. 3 Initially the basis for the Commissioner's decision revoking the licence was that these offences were prescribed offences which requires the Commissioner to refuse the application. (See s 16(1)(b) of the Security Industry Act 1997 (the Act) and Cl 11(d) of the Security Industry Regulation 1998 (the Regulations)) 4 Mr Howells requested an internal review of this decision. On 7 December 1999, the Commissioner affirmed his original decision but changed the basis of that decision conceding that the Commissioner must rely on discretionary, not mandatory, powers when revoking a licence. The decision on internal review was that Mr Howells is no longer a fit and proper person to hold a security licence or that it is not in the public interest for him to continue to hold a licence. The Commissioner provided an Amended Statement of Reasons. The Legislation 5 The relevant provisions of the Act are section 26(1)(c) and Clause 18 of the Regulation. Those provisions state that: 26 Revocation of licence (1) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of that class, or (b) if the licensee: (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations. 6 Clause 18 of the Regulation prescribes that: The Commissioner may, in accordance with s 26(1)(d) of the Act, revoke a licence, if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.