Appeal Panel - Internal CITATION: Ali v Commissioner of Police, New South Wales Police Service (No 2) (GD) [2003] NSWADTAP 40 APPLICANT PARTIES: Mohammed Ali RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 029056 HEARING DATES: 27/02/2003 08/09/2003 SUBMISSIONS CLOSED: 09/08/2003 DATE OF DECISION: 09/18/2003 Ali v Commissioner of Police, New South Wales Police Service [2002] NSWADT 240 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Mapperson K - Member CATCHWORDS: leave to extend to the merits - procedural fairness - scope of findings MATTER FOR DECISION: Principal FILE NUMBER UNDER APPEAL: 023148 DATE OF DECISION UNDER APPEAL: 11/20/2002 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 CASES CITED: Ali v Commissioner of Police, New South Wales Police Service [2002] NSWADT 240 Ali v Commissioner of Police, New South Wales Police Service (GD) [2003] NSWADTAP 35 APPLICANT REPRESENTATION: G Heathcote, counsel RESPONDENT D Peterson, solicitor ORDERS: That the Commissioner's determination to revoke the Master Licence and the Class 2D Licence be set aside. REASONS FOR DECISION 1 In Ali v Commissioner of Police, New South Wales Police Service (GD) [2003] NSWADTAP 35 the Appeal Panel allowed an appeal against a decision of the General Division of the Tribunal affirming two of three decisions of the Commissioner made under the Security Industry Act 1998. The Tribunal decision was, in the opinion of the Appeal Panel, affected by errors of law. The result is that the two decisions of the Commissioner continue to stand (revoking the Master Licence, and the Class 2D Licence (a trainer licence)), but the Appeal Panel has given leave for the proceedings to extend to the merits. The Appeal Panel heard additional evidence on 8 September 2003; and also has before it the record of the proceedings before the original Tribunal. 2 The difficulty that arose in the earlier hearing related to procedural fairness and some misconstruction of the evidence. 3 The circumstances which had given rise to the Commissioner taking action against Mr Ali's licences related to the night of Friday 22 - Saturday 23 February 2002. Mr Ali had acceded to a request from a person to whom he had given security guard training (Arthur Papadimatos ('P')) to be provided with an opportunity to learn how the work was done in practice. Mr Ali had agreed to provide three guards that night for jobs held by a business run by Mr Gendron, the first job starting at 8 pm being at the Engadine Hotel and the second at Carmen's nightclub at the Miranda Hotel. According to Mr Ali he thought P was licensed and that in any event he had simply sent P out to see how security work was done in the field and not himself to purport to work for Mr Gendron (these matters are dealt with more fully later in these reasons). P had signed on that night with Gendron's firm. The licensing police when visiting the Miranda Hotel job inspected the register. They found that P had not put any licence details next to his entry. They questioned P and discovered that he did not have a licence. They later interviewed Gendron and Ali. Ali and P were charged with offences. In Ali's case he pleaded guilty of knowingly employing an unlicensed person, and a s 10 bond was imposed. 4 The earlier Appeal Panel decision deals at some length with Mr Ali's evidence to the Tribunal and aspects of it which on its face appeared unsatisfactory. It also dealt with the omissions that occurred on that occasion that resulted in a denial of procedural fairness. 5 The Appeal Panel resumed on 8 September 2003 to hear further evidence from Mr Ali. Mr Ganguly, a licensed guard who had been sent to the job that night by Mr Ali, also gave evidence. Mr Gendron, who gave evidence at the original hearing before the General Division, gave further evidence. The Appeal Panel has also taken into account the record of the original proceedings before the General Division. 6 Once an appeal is extended to the merits, the function of the Appeal Panel is to exercise the ordinary powers of determination of the Tribunal as they apply to the class of matter, in this case a reviewable administrative decision. Here the obligation is to ascertain the 'correct and preferable decision … having regard to the material then before it': s 63, Administrative Decisions Tribunal Act 1997. 7 Having heard the further testimony, the Appeal Panel's primary conclusions are these: (1) When Mr Ali sent P out to the Gendron job, he was doing so in the belief that Mr Ali intended P to be an observer of the way security guards conducted themselves. Mr Ali had given P that permission on the Friday afternoon. He had already arranged for three guards to attend the job, as requested by Mr Gendron. Mr Gendron needed to have 18 guards on duty that night, and he often approached Ali to supply labour when he was short. One of the three guards did not show. Mr Ali had not been informed that this might occur. (2) Mr Ali acceded to P's request to attend a security job that night, after being informed by P that he, P, had got his security licence. P had recently completed the required study units in a course run by Mr Ali. P had told Ali that he had just got a letter from the Security Industry Registry approving his application for a licence. In fact the letter was merely a letter of acknowledgement that he had lodged an application. The Appeal Panel was critical of Mr Ali's evidence before the General Division over having sent someone out into the environment of a job without first checking definitively their licence status. He did not do this; he relied on a number being read to him over the phone from the top of the letter. We do not regard Mr Ali's conduct as satisfactory, and that he carelessly let an unlicensed person into the environment of a job of some difficulty, night patrol at licensed premises on a busy night. (3) We accept that Mr Ali did not intend P to work that night, and that what he intended was that P obtain training by observing a job. (4) We do not think on the material before us that Mr Ali could be said to have 'employed' P that night. Mr Ali was engaged in labour supply. If there was any employer of Mr Ali that night it was Mr Gendron. (5) Accordingly the ground of refusal of Mr Ali's two licences based on contravention of the Act must fail, even though there is a Local Court finding to the contrary. (6) Mr Ali's conduct, and other answers given to the General Division and the Appeal Panel, is however relevant, and in that we agree with the Commissioner, to the question of whether it is in the public interest to allow Mr Ali to continue in the industry as master licence holder and as a trainer. 8 There was, we consider, a reasonable basis for the Commissioner acting as he did in April 2002 to revoke the three licences (including the employee licence, since restored, and not in issue). Apparently grave conduct had been reported. The Act and the Regulations are stringent in their requirements as to such matters as: licensed guards undertaking security work; the completion of registers of attendance at jobs; and the wearing at all times of the security identification card, showing photograph and number. On this night, it is uncontroverted that P filled in the register book, incompletely; he was not wearing a badge; and he was engaged in activity, walking up and down outside the nightclub, which the police interpreted as security guard work. 9 There has been no direct evidence provided by P. At the resumed hearing before the Appeal Panel extracts from his record of interview with the licensing police were tendered, and have been considered. The interview supports Mr Ali's case in these respects: one, P acknowledges that he was sent to the job that night as an observer, not to be paid; two, P thought that the letter he received from the Registry (a standard letter of acknowledgement of receipt of an application) somehow amounted to the conferral of a licence; and three, P had completed the course requirements for grant of a licence. 10 Mr Gendron gave evidence and as at the original hearing reiterated his preparedness to support Mr Ali in improving his practices. Mr Gendron gave evidence about the conversation he had with Mr Ali around about lunchtime on Saturday 23 February after he learnt that the police had found an unlicensed person working at Miranda. Mr Ali had said in evidence that the question of whether people could work without the card had been discussed with him at other times by Mr Gendron, who had said he understood it was acceptable where a renewal had been lodged, time had expired, and it had not yet been processed by the Registry. He said that there was no such conversation at lunchtime on 23 February. Mr Gendron said he had discussed such a matter, and agreed that it was not on 23 February. The conversation on that occasion had been about the circumstances of the night before. He accepted that Mr Ali had intended three licensed persons regardless of P. He indicated that he was not fussed if a 'trainee' came to the job provided they simply observed and he was not paying. This evidence was relatively favourable to Mr Ali. 11 Mr Ali gave evidence, and made numerous references to his desire to return to the industry, and to ensure that he strictly complied with the standards set by the law and the Security Industry Registry. 12 The Appeal Panel's view is that the point has now been reached, almost 18 months after the revocations occurred, where it would be reasonable to restore the two licences. 13 The only ground that can properly be relied upon at this stage by the Commissioner to withhold the licences is the public interest. We acknowledge that the Local Court entered a finding that an offence against s 39 (knowingly employing unlicensed person) had been proven, it did so without detailed proofs on the basis of a plea of guilty. In our view the facts as placed before the Tribunal do not show a contravention, in that Mr Ali merely supplied labour. Any employing was done by Mr Gendron. 14 As to the public interest, clearly there is a significant public interest in ensuring that strict standards are observed by those who send people out to security jobs, whether they are the employers or are people supplying labour to colleagues in the industry. Mr Ali was both a Master Licence holder and a trainer. Especially because he is a trainer, he must be seen to exemplify the best standards of practice. He was, in our view, very careless in not directly checking whether P had a licence. He should have known that the Registry has an acknowledgement procedure and satisfied himself, at least, that P had two letters, the second being grant of the licence. He should have known that a letter in itself does not constitute the licence. The ultimate letter simply directs the recipient to go to the Roads and Traffic Authority (RTA) for the actually identification card and licence to be issued. Given the other requirements, a prudent person in Mr Ali's position would have ensured that P had the 'piece of plastic', so that it could be shown if any doubt arose that night as to whether he was at the job in an operational role, or merely as an observer. 15 There remain some unexplained aspects to the events of that night. It is not entirely clear why Mr Ali saw the licence as being of any great significance. He could have deployed someone to observe a job whether they were licensed or not. There are, as we noted in our earlier decision, inconsistencies in the evidence given by Mr Ali at the original General Division hearing. 16 In our view there was at the time in April a reasonable basis for the Commissioner acting as he did (through the Registry) to revoke the licences held by Mr Ali. Similarly as at October 2002 when the matter was before the General Division there was material (not impeached by the subsequent appeal) which could reasonably have supported the decision to affirm the Commissioner's decision in respect of the Master Licence and the Trainer Licence. 17 But at this point in our view, having regard in particular to the clarifications that have been provided in relation to the events of that night, the protection of the public interest no longer requires the continued revocation of Mr Ali's two licences. 18 Ms Paterson, for the Commissioner, submitted that any decision to restore the licences should be left to the Security Industry Registry. It could check Mr Ali's recent experience and claims made at hearing as to educational courses he has recently done, and what he has learnt through his regular visits to Mr Gendron's firm to examine their administrative practices. 19 It is important, we consider, to uphold the authority of the Registry. It, on behalf of the Commissioner, is the regulator of a difficult industry. 20 In our view the Registry has handled this matter quite appropriately, but the time has now been reached (and a level of explanation of the events of that night is now available) which mean that continued revocation is no longer the correct and preferable decision. 21 Mr Ali has made a number of promises of good conduct in future. The experience of being stood down for nearly 18 months will, we consider, have been salutary. He continues to enjoy the confidence of Mr Gendron, who impressed as a competent and very experienced member of the industry. He has been trying, through attendance at courses and visits to Mr Gendron's office, to gain a better understanding of how to run a security business. 22 Mr Ali, we think, appreciates that if he transgresses standards in any serious way again he can expect no mercy from the Registry. He is on notice. Order That the Commissioner's determination to revoke the Master Licence and the Class 2D Licence be set aside. 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.