Habak v Commissioner of Police, NSW Police (No 2) [2006] NSWADT 314

CITATION: Habak v Commissioner of Police, NSW Police (No 2) [2006] NSWADT 314

DIVISION: General Division

APPLICANT PARTIES: Joseph Elias Habak RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 063035

HEARING DATES: 07/08/06

SUBMISSIONS CLOSED: 08/07/2006

DATE OF DECISION: 11/08/2006

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: 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 : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997

CASES CITED: Habak v Commissioner of Police [2006] NSWADT 213

APPLICANT T Shulze, counsel REPRESENTATION: RESPONDENT R Burdick, agent

ORDERS: The decision of the Commissioner of Police to revoke Mr Habak's Class 1 security licence is set aside.

REASONS FOR DECISION 1 This decision follows on from a preliminary decision in the same matter: Habak v Commissioner of Police [2006] NSWADT 213. In that decision I found that the Commissioner of Police was not entitled to rely on certain confidential material when deciding to revoke Mr Habak's security licence. In light of that decision, the Commissioner of Police has advised that he wishes to rely solely on the non-confidential material provided to Mr Habak and the Tribunal. Consequently, my task is to determine whether, on the basis of that material and all the other relevant factual material, the Commissioner's decision to revoke his security licence was the correct and preferable decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 63. 2 The Security Industry Act 1997 regulates security activities by requiring anyone undertaking such activities to be licensed: Security Industry Act, s 7. The Commissioner issued Mr Habak with a Class 1 licence on 18 November 2004. That licence authorised him to perform activities including guarding and protecting persons and property, acting as a body-guard and performing crowd control and bouncer activities. The licence was due to expire on 13 January 2010. 3 Mr Habak is employed by the Attorney General's Department as a Sheriff's Officer. His security licence was revoked because the Commissioner of Police considered that he was not a fit and proper person to hold a security licence and it was not in the public interest for him to do so. He does not need a security licence for his position as a Sheriff's Officer but he says he works part time on the weekends as a security guard. 4 The event that led to the revocation of Mr Habak's licence was that he entered the apartment of a woman he had recently met when she was not at home, and left a bunch of flowers. When the woman arrived home, she assumed that Mr Habak had broken into her apartment because she always locks the door. Mr Habak says that he put his hand on the door handle as he was bending down to leave the flowers outside the door, and found the door unlocked. He then says he went inside and, finding no-one at home, left the flowers in a vase on the floor. 5 Mr Habak was convicted in the Local Court on 22 November 2005 of the offence of "Enter Enclosed Land Not Prescribed Premises without Lawful Excuse." He lodged an appeal to the District Court. The District Court found Mr Habak guilty but did not record a conviction, and placed him on a bond to be of good behaviour for 12 months. The bond expires in less than three weeks. After Mr Habak was convicted in the Local Court, the Attorney General's Department conducted a disciplinary investigation to determine whether Mr Habak had abused his position as a Sheriff's Officer by obtaining the woman's phone number from the building manager of the apartments where she lived and whether he had used Departmental equipment to enter the woman's apartment. Apart from finding that Mr Habak entered the woman's apartment without her consent, the Investigation Report absolved Mr Habak from any culpability in relation to either of the allegations. 6 I am satisfied that Mr Habak's account of the events when he entered the woman's apartment is an honest one. He has given the same account to the Court and to the Department's investigator. Mr Habak tendered four character references from friends and workmates who were aware of the fact that he had been convicted. These references attested to Mr Habak's honesty, good character and professional attitude to his work. 7 Section 26(1) of the Security Industry Act gives the Commissioner discretionary power to revoke a security licence in certain circumstances. The two circumstances on which the Commissioner relied in this case were that Mr Habak was no longer a fit and proper person to hold a licence and that the Commissioner considered that it was not in the public interest for Mr Habak to hold a licence: Security Industry Regulation 1998, Cl 18. 8 Although Mr Habak entered a woman's apartment without her permission while on duty as a Sherrif's Officer, he did so to leave her some flowers in circumstances where they had recently begun a relationship. Although the woman was understandably upset, and is convinced that she locked the door, there is no evidence that Mr Habak broke into her apartment. In addition, Mr Habak is extremely contrite and regrets his actions. In those circumstances, I am satisfied that Mr Habak is a fit and proper person to retain a security licence and that it is not contrary to the public interest to allow him to do so. 9 The decision of the Commissioner of Police to revoke Mr Habak's Class 1 security licence is set aside. That decision has the effect of reviving his licence which I understand is not due to expire until 13 January 2010.