Soares v Commissioner of Police, New South Wales Police Service [2003] NSWADT 9

CITATION: Soares v Commissioner of Police, New South Wales Police Service [2003] NSWADT 9 DIVISION: General Division APPLICANT PARTIES: Ivan Soares RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 013311 HEARING DATES: 08/03/02 SUBMISSIONS CLOSED: 03/08/2002 DATE OF DECISION: 01/17/2003

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 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Security (Protection) Industry Act 1985 Security Industry Act 1997 Security Industry Regulation 1998 CASES CITED: Bourke & Ors v The New South Wales Commissioner fo Police [1998] NSWADT 1 Hargreaves v Commissioner of Police, NSW Police Service [1999] NSWADT 64 APPLICANT REPRESENTATION: In person RESPONDENT C Dawes, solicitor ORDERS: 1 The Commissioner's decision to refuse Mr Soares' application for a security industry licence based on s 16(1)(a) of the Security Industry Act is affirmed.

Background 1 This is an application by Mr Soares (the Applicant) for review by the Administrative Decisions Tribunal ('the Tribunal') of a decision made by the New South Wales Commissioner of Police ('the Commissioner') to refuse Mr Soares' application for a security industry licence under the Security Industry Act 1997 ('the Act'). 2 The Applicant was served with a 'Notification of Refusal for Grant of Licence' on 11.10.2001. The decision relied on section 16 of the Act read with clause 11 of the Security Industry Regulation 1998 (the Regulation). The Applicant sought internal review by the Commissioner of this decision. The internal review decision affirmed the original decision. 3 The Tribunal's jurisdiction to consider the application for external review is found under s. 29 of the Act together with s. 38 of the Administrative Decisions Tribunal Act 1998 (the Tribunal Act). Legislative provisions 4 Section 16 of the Act concerns restrictions on granting licences in circumstances involving certain criminal and other related history. Section 16(1)(a) of the Act 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, … 5 Clause 11 of the Regulation provides for offences that disqualify applicants. It reads as relevant: 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)- (c) ... (d) Offences involving fraud, dishonesty or stealing An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more. The Evidence 6 Apart from a completed Tribunal Application for Review form, the Applicant did not provide any additional material to the Tribunal in support of his application. 7 The Applicant made no appearance before the Tribunal at the hearing of this matter. 8 Prior to the hearing the Tribunal was provided with a number of documents filed on behalf of the Commissioner. These included copies of: - the Applicant's application for a security industry licence received on 20 September 2001 by the NSW Police Service, which includes: a Senior First Aid Certificate; a Certificate in Security Guarding; letter from potential employer 'Australian Venue Security'; and a personal reference from Mr Scott Taylor; - a NSW Police Service 'Criminal History – Bail Report' pertaining to the Applicant; - a NSW Police Service Computerised Operations Police System (COPS) report print out (dated 02.10.2001) re event numbered E 901219305558 of 27.11.1993; - the Notification of Refusal for Grant of Licence of 11.10.2001; - the Applicant's request for internal review (received on 25.10.2001) accompanied by two further personal references from Karina Dvorakoski (of 19.10.2001) and Lila Soares (undated); - the internal review statement of reasons (undated); and - the Applicant's application for review by this Tribunal. 9 The Applicant's application for review states that he sought review on two bases. The first was because the Commissioner's refusal decision considered that there was no discretion available in the decision making process due to the operation of s 16(1)(a) of the Act and clause 11(d) of the Regulation and in the Applicant's view 'on a proper construction' of these provisions and the 'appreciation of' the Applicant's circumstances, there is a discretion available notwithstanding the Applicant's 1993 conviction. The Tribunal was referred to sections 49 and 53 (2)(d)(ii) of the Act in this regard. The second basis was that the Applicant had been granted a security industry licence on 05.10.1997 (No. 405474394) which expired on 05.10.1998 and was not renewed. The Applicant asserted that the application for the licence granted in 1997 had been 'supported by a full disclosure' of his 1993 conviction. 10 On the Applicant's application form for a new licence in 2001, the Applicant ticked the box answering 'No' to the question 'Have you been convicted of an offence within the period of 10 years before the making of this application in New South Wales or elsewhere?'. 11 The Criminal History Bail Report and COPS report record that the Applicant was found guilty by the Fairfield Local Court, Cabramatta on 15.12.1993 of one offence of attempted stealing in a Canley Vale hotel car park on 27.11.1993. He was fined $100. 12 The specific provision under which the Applicant was charged was not provided. No further material or evidence was led by either party in relation to the circumstances of the offence. The fact of the offence was not denied by the Applicant. 13 In his letter seeking internal review, the Applicant made clear his contrition for his 1993 offence acknowledging his irresponsibility and recklessness of eight years earlier and apologising for and regretting his actions at that time. The Applicant referred to his youth and his ignorance at that time – he was 18 years old – and stated that he was now a changed man, responsible, reliable, married and soon to become a father. He now considers himself mature and trustworthy. 14 The references accompanying the Applicant's internal review request were from the Applicant's wife and his sister, both attesting to the positive changes in the Applicant since the time of his 1993 offence and his development into a hardworking responsible individual. 15 In her statement of reasons the Commissioner's delegate for the purposes of the internal review decision, stated that '[N]ot withstanding all of the aspects mentioned, [expressed contrition, character references] it should be clearly understood that having been satisfied that the relevant finding of guilt….has occurred, I have no choice under the Act other than to refuse your application for a security licence upon mandatory grounds'. Submissions 16 The Applicant made no formal written or oral submissions. The Tribunal has considered the reasons provided by the Applicant as to why he made the application for review, as noted at paragraph 9 above, as his submissions. 17 Written submissions were made on behalf of the Commissioner. It was submitted that s 16(1)(a) of the Act requires that the Commissioner must refuse to grant a licence if satisfied an applicant has been found guilty of a prescribed offence within a period of ten years before the application for the licence was made. It was submitted that the Applicant's offence of stealing 'quite clearly falls within the parameters of the categories prescribed in s16(1)(a) of the Act and Clause 11(d) of the Regulation as an offence that disqualifies the applicant'. 18 The Commissioner relied on the Tribunal decisions of Bourke & Ors v The New South Wales Commissioner of Police [1998] NSWADT 1 and Hargreaves v Commissioner of Police, NSW Police Service [1999] NSWADT 64 for their respective findings that the Tribunal's 'jurisdiction on review is limited to the question of whether the objective facts relied upon by the administrator are proven, and it is not open to the Tribunal to exercise any discretion in relation to the merits of the decision' and that 'the examination of the objective facts involves two questions: is the record of the offence relied upon accurate; and has it [the offence] been properly classified as a prescribed offence to which the administrator's duty to refuse attaches'. In the Commissioner's submission, the record of conviction relied upon is accurate and the offence has been properly classified as a prescribed offence. 19 In relation to the Applicant's submissions regarding his previously being granted a licence in 1997 despite the fact of his disclosed conviction, the Commissioner submitted that the previous licence may have been granted pursuant to the Security (Protection) Industry Act 1985 which was the operative Act at the time of the Applicant's 1997 application but that the law changed with the repeal of that Act and the entering into operation of the new Act (the Act) on 1 July 1998. It was submitted that the law in the area changed as a result of the new Act and the position 'in relation to the effect of old convictions on an application for a licence was altered and, it appears, made stricter' (see Bourke). 20 In relation to the Applicant's submission referring to sections 49 and 53(2)(d)(ii) of the Tribunal Act the Commissioner submits there has been compliance with these provisions insofar as they relate to the Applicant's application. Findings and Reasoning 21 There was no evidence led contradicting the accuracy of the records regarding the Applicant's 1993 offence. 22 The 1993 offence was of 'stealing'. The Tribunal is satisfied it is an offence 'involving fraud, dishonesty or stealing' which the Applicant was convicted of within the ten year period prior to the Applicant making his 2001 application for a security industry licence. The submissions made on behalf of the Commissioner as noted above are agreed with by the Tribunal. No discretion exists in the present circumstances. There is nothing in sections 49 and 53(2)(d)(ii) of the Tribunal Act that appear to the Tribunal to assist the Applicant in this regard. In relation to the second given basis for review concerning the fact the Applicant had been granted a security industry licence in 1997 with full disclosure of his 1993 conviction, that fact is accepted, but it does not assist the Applicant given the change in the law since that time. It is the 1998 change in the law that defeats the Applicant's present application. 23 The Tribunal is of the view that the correct and preferable decision is that the Applicant must be refused a licence. The 1998 change in the law has provided the only reason the Applicant must be refused his licence at this time. The Applicant's evidence as to his change in character cannot assist him in this circumstance. His period of exclusion appears to come to an end on 15 December 2003 after which time the provision requiring mandatory refusal would no longer operate to exclude him (as far as the 1993 offence is concerned). 24 The Tribunal notes it had indicated at the hearing that its decision, subject to closer examination of the documents, would be to affirm the decision of the Commissioner. Decision 25 In accordance with s. 63(3)(a) of the Tribunal Act the following order is made: The Commissioner's decision to refuse Mr Soares' application for a security industry licence based on s. 16(1)(a) of the Security Industry Act is affirmed.