Tran v Commissioner of Police, New South Wales Police [2005] NSWADT 44

CITATION: Tran v Commissioner of Police, New South Wales Police [2005] NSWADT 44 DIVISION: General Division APPLICANT PARTIES: Hoang Tran RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 043288 HEARING DATES: 27/10/2004 SUBMISSIONS CLOSED: 10/27/2004 DATE OF DECISION: 10/27/2004

BEFORE: O'Connor K - DCJ (President) APPLICATION: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 LEGISLATION CITED : Firearms Act 1996 Security (Protection) Industry Act 1985 Security Industry Act 1997 Security Industry Regulation 1998 CASES CITED: Bourke & Ors v The New South Wales Commissioner of Police [1998] ADT APPLICANT REPRESENTATION: In person RESPONDENT D Shepherd, solicitor ORDERS: ORDERS MADE 27/10/2004; 1. Appeal dismissed; 2. Decision under review affirmed

DELIVERED EX TEMPORE REASONS FOR DECISION 1 On 27 October 2004, the Tribunal affirmed the decision of the Commissioner of Police (the Commissioner) to refuse Mr Tran's application made on 5 May 2004 for renewal of his Class 1A licence under the Security Industry Act 1997 (the SI Act). The Tribunal gave oral reasons at the conclusion of the hearing. The following is a slightly revised version of those reasons. 2 The circumstances that are presented today highlight the unfairness of laws that limit the discretion of the Commissioner and Tribunals of this kind as regards exceptional cases. 3 Mr Tran has worked in the security industry for fifteen years. He was convicted of an offence of "Not store firearm safely" on 12 September 1996, over eight years ago, at the Burwood Local Court. He was fined the amount of $800 and ordered to pay $50 court costs. As a consequence of that conviction, the Commissioner cancelled Mr Tran's security industry licence. On 6 February 1997 Mr Tran applied for a security industry licence under the Security (Protection) Industry Act 1985. The Commissioner refused the application. An appeal against the refusal was upheld and Mr Tran was issued with a security industry licence for the period of a year. After that licence had expired, he applied in July 1998 for a Class 1A licence under the SI Act, which came into force on 1 July 1998, the same day the Security (Protection) Industry Act 1985 was repealed. This application was also refused. Mr Tran successfully appealed against this decision to the Fairfield Local Court. The Local Court had jurisdiction to hear his matter under cl 6 of Schedule 2 to the SI Act, since the Administrative Decisions Tribunal Act 1997 had not commenced when he lodged his appeal. The result was that Mr Tran was issued with a five-year security licence on or about 13 May 1999, which expired on 13 May 2004. 4 Mr Tran applied for a Class 1A security licence on 5 May 2004. The Commissioner again refused the application applying s 16 of the SI Act on the basis that Mr Tran had been convicted of a prescribed offence within the past 10 years. 5 Section 16 provides, relevantly: ' 16 Restrictions on granting licence - criminal and other related history (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 Mr Tran has applied for review of that decision in the Tribunal. 7 As can be seen, s 16 of the SI Act introduced a strict regime of mandatory exclusion from the security industry of persons who have been convicted within the past 10 years of a 'prescribed' offence. Under cl 11 of the Security Industry Regulation 1998 (the Regulation), prescribed offences include, relevantly: ' 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: (a) Offences relating to firearms or weapons An offence relating to the possession or use of a firearm, or any other weapon, committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction), and being an offence that would disqualify the applicant concerned from holding a licence under the Firearms Act 1996.' 8 When this Tribunal was created in early October 1998, at around the same time that Mr Tran's appeal was dealt with by the Fairfield Local Court, a number of applications for the review of decisions to refuse to issue a security licence under s 16 of the SI Act came before the Tribunal. These cases involved licence-holders who had committed minor offences. The Tribunal held a special hearing dealing with this group of cases: Bourke & Ors v The New South Wales Commissioner of Police [1998] ADT. The main argument on behalf of the applicants was that, as the applicants' former security industry licences were granted at an earlier time than these legislative changes, these changes operated as a retrospective variation of the rights of individuals to hold a security licence. One can understand how that view might be formed. But in the decision in Bourke, I explained that a change in the law so as to punish more harshly old conduct when it is being taken into account for future purposes is not an instance of the general principle that outlaws retrospectivity. Retrospectivity is really addressed to circumstances where conduct that was lawful when it took place is rendered unlawful retrospectively by the law, and that is generally not permitted. 9 In Bourke I indicated that it was my view that the law operated oppressively in certain types of cases, and certainly on the face of the material Mr Tran's case is one of those cases. Mr Tran has worked for a long time in the security industry and apart from this one event in 1996, which appears to have been unrelated to Mr Tran's security industry work, he has not come to the notice of the law. Mr Tran has very positive references from his employer and people in the Vietnamese community, and I accept what he says about the implications for his family and for his ability to earn a living of not being able to retain a licence. 10 But regrettably Mr Tran belongs to a long line of security industry personnel who have found themselves affected in the same way. The case of Bourke itself involved a young man who had worked for some time on the factory gate at Port Kembla. He was established in employment in a place where and at a time when unemployment was significant, yet he was not able to continue doing security work simply because he had been found in possession of some marijuana plants on the balcony when he was seventeen. That conduct brought him within s 16 of the SI Act and cl 11 of the Regulation. As this example illustrates, the sweep of the prohibition that is contained in the SI Act is very wide and can catch quite minor circumstances. 11 But the Parliament chose to make a law as strict as this as part of an endeavour, as it saw it, to clean up the security industry. The views that I have expressed today about the harshness of the law were expressed by me in 1998 and they were considered by the Parliament by way of a question asked in Question Time and by way of some comments, I think, made in a grievance debate by a local member. But these objections have not been acted upon. So it remains the case that this is an area of mandatory exclusion from the industry. 12 It is unfortunate that there is no scope to issue a licence where the applicant has committed an offence but where there are exceptional circumstances. Mr Shepherd has indicated on behalf of the Commissioner that had there been a discretion available to the police in this matter it would have been exercised in favour of Mr Tran. But the police are bound to apply the law strictly. 13 The Tribunal can only, in these cases, check whether the conviction has occurred. In this case it did occur. The Tribunal then has to look at the question of whether the offence is prescribed by cl 11 of the Regulation for the purposes of s 16 of the SI Act. If so, it is then necessary to consider whether the offence would disqualify the applicant from holding a licence under s 11(5)(b) or 29(3)(b) of the Firearms Act 1996 and cl 5 of the Firearms (General) Regulation 1997. So it is a bit of an odyssey: there are four bits of the law that you have to go to, to get to the conclusion. But Mr Tran's matter is, in my opinion, covered by those provisions. So the situation is one where Mr Tran is prevented from obtaining a licence until at least 12 September 2006. 14 I can indicate today that as matters stand, I do not see any reason on the material before me for Mr Tran not to be issued with a licence if he makes a valid application at that time. But that is as far as I can take the matter today. The law on this matter is not one where the Tribunal is given any real flexibility. In my view the Commissioner was obliged to refuse; and therefore I cannot intervene.