Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Vaporis v Commissioner of Police, NSW Police Force [2012] NSWADT 61 Hearing dates: 26 October 2011 Decision date: 05 April 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision to refuse the Applicant's application for a Class 1F security licence is affirmed. Catchwords: Refusal of Class 1F security licence, significant period, provisional licensing system Legislation Cited: Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Sekers v Commissioner of Police, NSW Police Force [2012] NSWADT 54 Category: Principal judgment Parties: Steven Vaporis (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: S Vaporis (Applicant in person) C Tipene (Respondent) File Number(s): 113182 REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant applied to the Respondent for a class 1F security licence to be added to his current class 1ABC licence under the Security Industry Act 1997 ("the Act"). A Class 1F security licence authorises the licensee to patrol, protect, watch or guard approved classes of property while armed but only under the authority of a licence or permit to use or possess firearms under the Firearms Act 1996. 2A delegate of the Commissioner of Police refused the application. The basis for the refusal was that it was considered that the Applicant has not been engaged in the relevant security activities for a significant period and it was also considered that to grant this licence would be contrary to the public interest. 3The Applicant applied for an internal review of that decision. The internal review application was refused under section 15(2)(c)(ii) of the Act on the same basis as the original refusal. 4The Applicant lodged an application with the Tribunal for external review of the decision. Relevant background 5The Applicant was issued with a Class 1ABC security licence in April 1999. He was subsequently issued with further Class 1ABC licences the last of which was issued in June 2009. That licence is due to expire in July 2014. The Applicant also held a class 1EG licence for the period from 18 March 2008 to 9 June 2009. 6In March 2011, the Applicant applied to add subclass 1F to his current Class 1ABC licence. In May 2011 the decision was taken to refuse that application. An internal review affirmed the refusal in July 2011. 7Prior to September 2007, the Applicant was authorised to undertake the following security activities: (a)Class 1A - patrolling, protecting, guarding, watching or protecting property (including cash in transit) or to carry on such other activities as may be prescribed by the regulations; (b)Class 1B - acting as a bodyguard; and Class 1C - acting as a crowd controller or bouncer. 8These licence classes were amended with the commencement of the Security Industry Amendment Act 2005 which replaced the licence classes set out in sections 11 and 12 of the Act. These changes came into effect on 1 September 2007. 9Prior to those changes there was no separate class of licence for armed guard activities and, depending on the type of class 1A activities being undertaken by the licence holder, the class 1A activities may have included armed guarding. In this case, the Applicant's class 1A licence did authorise him to undertake armed security activities as part of his class 1A licence. 10The Applicant indicated that he has had the following experience in respect to armed guard licence activities: * Armaguard from 1999 to 2001 as a casual employee rostered approximately 3 to 5 days per week. During this role he worked as a cash escort both uniformed and plain clothed. He was involved in the transfer of money to and from banks and worked as an armoured security officer. During this period the Applicant held a Category H Firearms Licence. * Brinks on a full time basis for a period of 15 months in 2005 to 2006. During this period the Applicant was granted a Category H Firearms Licence and worked in the security role. Relevant legislation 11Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 12A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 13Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 14The security industry in NSW is regulated by the Act. A person must not carry on a security activity unless the person is the holder of a licence that authorises the person to carry on the security activity. 15Section 11 of the Act provides that: 11 Class 1 licences (1) Class 1 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows: (a) class 1A-authorises the licensee to patrol, protect, watch or guard any property while unarmed (and whether while static or mobile), (b) class 1B-authorises the licensee to act as a bodyguard or to act in a similar capacity, (c) class 1C-authorises the licensee to act as a crowd controller or to act in a similar capacity, ... (f) class 1F-authorises the licensee to patrol, protect, watch or guard approved classes of property while armed (but only under the authority of a licence or permit to use or possess firearms under the Firearms Act 1996), ... 16Section 12A of the Act provides that: 12A Provisional licences (1) Provisional licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows: (a) class P1A-authorises the licensee to patrol, protect, watch or guard any property while unarmed (and whether while static or mobile), but only while being supervised as required by section 29A, (b) class P1B-authorises the licensee to act as a bodyguard, or to act in a similar capacity, but only while being supervised as required by section 29A, (c) class P1C-authorises the licensee to act as a crowd controller, or to act in a similar capacity, but only while being supervised as required by section 29A, (d) class P1D-authorises the licensee to patrol, protect, watch or guard any property with a dog, but only while being supervised as required by section 29A, (e) class P1E-authorises the licensee to patrol, protect, watch or guard any property while carrying on monitoring centre operations, but only while being supervised as required by section 29A, (f) class P1F-authorises the licensee to patrol, protect, watch or guard approved classes of property while armed, but only under the authority of a licence or permit to use or possess firearms under the Firearms Act 1996 and only while being supervised as required by section 29A, (g) class P1G-authorises the licensee to patrol, protect, watch or guard any property while carrying on retail loss prevention, but only while being supervised as required by section 29A, (h) any other class prescribed by the regulations (being a class that corresponds to any additional class prescribed by the regulations under section 11 (1) (h))-authorises the licensee to carry on the security activity prescribed by the regulations in relation to the prescribed class of licence concerned, but only while being supervised as required by section 29A. (2) The relevant subclass is to be endorsed on each provisional licence. More than one such subclass may be endorsed on a provisional licence. 17Section 14 of the Act provides that a person may apply to the Commissioner for the grant of a licence. 18Section 15 of the Act states as follows: 15 Restrictions on granting licence-general suitability criteria ... (2) The Commissioner may refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) in the case of an application for a class 1 licence: (i) has not, for at least 12 months, held a provisional licence authorising the applicant to carry on the security activity to which the proposed licence relates, or (ii) has not previously been authorised by a licence (other than a provisional licence) to carry on the security activity to which the proposed licence relates, or (b) in the case of an application for a provisional licence-has not completed, to the satisfaction of the Commissioner, an approved security industry training course that is relevant to the class of licence sought, or (c) in the case of an application for a class 1 licence where the applicant has previously been authorised by a licence to carry on the security activity to which the proposed licence relates: (i) has failed to demonstrate active participation or employment in the security industry for a significant period of the previous licence, after taking into account any actual experience or offered work or contracts, or (ii) has not been engaged in the security activity authorised by the previous licence for a significant period, or (iii) has failed to demonstrate continuing knowledge and competency in relation to the security activity authorised by the previous licence. (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. 19The Respondent's decision was pursuant to section 15(2)(c)(ii) of the Act i.e. on the basis that the Commissioner may refuse a class 1 licence when an applicant for a new licence who has previously been authorised by a licence to carry on security activity to which the proposed licence relates has not engaged in the security activities authorised by that previous licence for a "significant period". 20The term "significant period" is not defined in the Act. For the purposes of section 15(2)(c)(ii) of the Act, the Commissioner has established that a period of 3 years is to be considered a significant period. The internal review decision reasoning 21In the Statement of Reasons provided in relation to the refusal of the internal review application, the Commissioner's delegate stated, in part: "Section 15(2)(c)(ii) of the Security Industry Act 1997 ("the Act") prescribes that the Commissioner may refuse to grant an application for a licence if the Commissioner is satisfied that the applicant, in the case of an application for a class 1 licence where the applicant has previously been authorised by a licence to carry on the security activity to which the proposed licence relates has not been engaged in the security activity authorised by the previous licence for a significant period. For the purposes of Section 15 (2) (c) (ii) of the Act, the Commissioner has established that a period of three years is to be considered a significant period. Regarding Section 15(3) of the Act the Commissioner no longer relies upon this legislative provision for the refusal of your client's application. D. REASONING PROCESS: The Security Industry Act 1997, established a scheme for licensing people to carry on security activities. Within the Act, there are clearly defined circumstances where the Commissioner may refuse to grant an application for a licence. I have formed the view that the legislative provisions listed above are relevant to [the Applicant's] particular case. Further, I have noted the submission made [by the Applicant's solicitor]. After fully and independently considering all relevant matters, I make the following fresh determination. [The Applicant's] application has been received for a Class 1F security licence ... When considering an individual's application to be issued with a licence under the Security Industry Act 1997, I formed the view that, in the case of an application for a Class 1 security licence, due consideration must be given to the period of time that has lapsed since the security activities authorised by the previous licence were carried out by the applicant. Further, I believe that if this period of time is a significant period i.e. more than three years, consideration should be given to refuse the grant of the application. Upon reviewing this matter I have taken into account that [the Applicant] has not been engaged in the activities authorised by a Class 1F - Armed Guard since 2006. I am satisfied that [the Applicant] has not been engaged in the security activities, in respect of the subclass of licence he is seeking to obtain, for a significant period i.e. since 2006. Therefore, I am satisfied that he has not carried out the security activities authorised by Class IF security licence within a period of three years before he submitted his application for this licence subclass. It is my understanding that the intent of Section 15(2)(c) of the Act is to ensure the continued competence of the applicant. The Commissioner has defined the term 'significant period' in s.15(2)(c)(ii) as three years to align with the commonly accepted benchmark for the currency of evidence of competence in relation to Recognition of Prior Learning. To this effect, when referring to historical evidence, the NSW Vocational Education & Training Accreditation Board's document "RPL Framework for Registered Training Organisations in NSW 2005" states: "A general rule of thumb is that evidence that is older than three years must be supported by more up to date evidence of the candidate's continued application of the relevant competence." If [the Applicant's] intentions are to return to the security industry as an Armed Guard he will be required to undertake the Provisional Licensing Course for this subclass of licence. Concluding, I am satisfied that the grounds for which [the Applicant's] application for the grant of a security licence has been refused, clearly fall within the provisions of Section 15(2)(c)(ii) of the Security Industry Act 1997; therefore I affirm the decision of the delegate of the Commissioner to refuse his application for a Class 1F security licence at this time." Material before Tribunal 22The Applicant relies on documentary evidence submitted to the Respondent along with his licence application in which he sets out his background and training and the circumstances that he asserts warrant the granting of his licence application. This includes copies of certificates, work history and letters of reference. He relies on a letter from Mr. Paul Steele, Operations Manager NSW with Australian Armoured Express indication that a position is available to the Applicant if he is successful in obtaining a Class 1F licence. The Applicant also relies on a 3 August 2009 Post Operative Review report provided by Dr Wayne Viglione, an Orthopaedic Surgeon. Dr Viglione's report addresses treatment that the Applicant had received following a gunshot wound that resulted in a fracture of his left femur. The shooting occurred in July 2009. 23The Applicant also gave evidence at the hearing and was cross-examined. 24As required by section 58 of the ADT Act, the Respondent has lodged a copy of all relevant material in its possession. In addition to the Departmental file, the Respondent also relies on an affidavit, dated 13 September 2011, provided by Mr Cameron Smith, Director of the Security Licensing & Enforcement Directorate (SLED). SLED is the business unit of the NSW Police Force responsible for the issuing and revocation of security licences under the Act. Mr Smith also attended the hearing and gave evidence in support of the Respondent's case. 25Each of the parties filed written submissions in support of their case. The Respondent's case 26The Respondent submits that the Commissioner's delegate has appropriately exercised the discretion to refuse to issue the class 1F licence to the Applicant. 27In respect to the Applicant's experience the Respondent contends that while the Applicant's previous class 1A licence authorised him to undertake armed security activities he has not performed those activities since 2006. 28The Respondent submits that the discretion in section 15(2)(c)(ii) allows the Commissioner to issue a Class 1F licence where an applicant has demonstrated that he or she has appropriate relevant and current experience for the particular security activity that meets or exceeds the standard provided for by the provisional licensing system. However, where an applicant does not demonstrate such experience, the Commissioner may refuse the application and the applicant must obtain a provisional licence for a minimum of 12 months and complete the training requirements before being eligible for a full licence. 29There must be no more than one provisional 1F licensee per supervisor on the relevant premises. A provisional licence holder will not be able to supervise other provisional licence holders. 30The Respondent relies on Mr Smith's evidence in respect of the rationale behind the provisional licensing scheme in the Act. 31The issue of a provisional 1F licence is specifically limited to persons employed in the uniformed Cash in Transit ("CIT") sector of the industry by approved CIT providers. Mr Smith's evidence is that the reason for this was that: a.CIT providers require at least 2 persons to man all armoured vehicles, which would satisfy the supervision requirements of the provisional licence; and b.Armed guarding or covert CIT work is usually done on a solo basis. 32The provisional 1F licence is subject to the condition that: a.The licensee must, before carrying on armed guarding activities, successfully complete approved training provided by the licensee's employer; b.The licensee must remain employed by the employer (being an approved CIT provider) who provided the licensee with the required letter of endorsement of proposed employment for the provisional 1F licence application; and c.The licensee must successfully complete such further training as may be required by the Commissioner during the term of the licence. 33If the provisional 1F licensee fails to comply with any of these licence conditions, the provisional 1F licence is automatically revoked. As the genuine reason of business/employment, as required under the Firearms Act will no longer be satisfied, the firearms licence will also be cancelled by the Firearms Registry. 34Mr Smith conceded that there are very few approved CIT providers and therefore opportunities to obtain a provisional 1F licence are limited. 35The Respondent contends that because of the significant risk involved in armed guarding, Parliament has made specific provision in the Act for armed guards to be required to undertake a period of provisional licensing. It further contends that the provisional licensing scheme provides invaluable on the job training, supervision and support for inexperienced persons performing security activities involving those significant risks. 36The Respondent submits that it was Parliament's intention that applicants undertake a period of close supervision and provisional licensing in circumstances where they are new entrants, or entrants returning to a particular class of licensing have not engaged in security activities in that licence class for a "significant period". Parliament's intention is to ensure that holders of security licences are well trained and competent and that their skills are current. 37The Respondent considers competency to be more than the obtaining of theoretical skills and knowledge (no matter how rigorously they are assessed in a training environment), but it is the application of those skills and knowledge in the workplace that evinces competency. 38The term "significant period" is not defined in the Act, however the Respondent submits that a three-year period is indicative of the current relevancy of an applicant's experience. 39The Respondent argues that the stipulation of a three year period as a "significant period" is consistent with the period of time commonly accepted by a number of Australian training organisations - and by the Vocational Training and Education Accreditation Board, which was the regulator of vocational training in NSW until 1 July 2011 - as representing the limits of the currency of a person's competence for recognition purposes. 40However, while the Respondent considers that a three year period is appropriate, it concedes that this period is not fixed and the consideration of whether an applicant had not been engaged in the relevant security activities for a "significant period" would require the consideration of the specific circumstances of each application. It would be necessary to take account of an applicant's licence history, experience, qualifications and the length of time since they last undertook the licence activities for which they were previously authorised. 41With respect to the Applicant's experience the Respondent argues that the Tribunal should take account of the date on which the Applicant last performed comparable licensed security activities. The Respondent says that the Applicant has not undertaken those activities since 2006 i.e. for a period of over 5 years. 42The Respondent concedes that the Applicant's experience as an employee with Armaguard from 1999 to 2001 and with Brinks from 2005 to 2006 is relevant to the application. However, it submits that the legislation requires that an applicant has been "engaged in" the security activity authorised by the previous licence and argues that that the Applicant's experience since 2006 does not satisfy that requirement. 43The Respondent submits that having regard to all the relevant factors, the Applicant has not engaged in armed guard licence activities for a significant period. Therefore, in the circumstances the Commissioner's delegate has appropriately exercised their discretion to refuse to issue the class 1F licence to the Applicant. The Applicant's case 44The Applicant has worked in the security industry for over 15 years. In that period he gained a lot of body guarding experience and developed decision-making skills in regard to crowd control. 45He stated that his goal is to become a security specialist and to that end he has completed all the necessary training as requested in order to obtain the class 1F and he holds the relevant certificates. 46The Applicant contends that he has met all the legal requirements and obtained certificates for the training. He disputes the Commissioner's contention that 3 years is a 'significant period' of time for the purposes of section 15(2) of the Act. His evidence is that in the period when he was not engaged in security activities he was unable to work due to the injury he suffered by being shot in the leg, shattering his left femur. He has had two operations and has had metal plates and pins inserted in his leg. I was unable to work for over a year and the rest of the time was spent recuperating and adjusting to walking again. He asserts that if it were not for his injuries he would have obtained a licence within the three-year period. He is still working in the security industry and has done so continuously with the exception of the 12-month period after the shooting injury. 47The Applicant's evidence is that he has now recovered and that he is desperate to return to the workforce. He has a young family to support and also wishes to pursue a career as a security specialist. 48The Applicant contends that he has the necessary skills to undertake the work to which the licence relates. He does not agree that the skills have diminished over time and that it is akin to riding a bike. He submits that decision should be reversed. 49The Applicant's evidence is that a probationary licence would not suit his circumstances because only three security companies recognise a licence of that nature and the company that he wishes to work for is not part of that group. 50The Applicant also stated that he had asked the Respondent's staff about how he should go about returning to the CIT sector and that he was advised to undergo particular training. He said the he followed the advice that he was given and successfully completed the training. He said that the Respondent then took three months to make a decision and rejected his application. He is not only aggrieved by the refusal of his application but also by the fact that he has incurred expense in undertaking the training that he was advised to do. He has spent approximately $1,000 in undertaking the training and said that he would not have done so but for the advice the Respondent's staff gave him. Discussion 51It is not in dispute that the Applicant is currently licensed to undertake security activities or that he was previously authorised to undertake armed security activities as part of his class 1A licence. He also held a separate category H firearms licence under the Firearms Act 1997. 52The Respondent submits that the Applicant has not been engaged in security guard activities for a "significant period" and he has not demonstrated current competency in security guard activities. 53The Applicant disputes the Respondent's contention. 54As noted above, section 15(2) of the Act provides that an application for a licence may be refused if the Commissioner, and therefore the Tribunal, is satisfied that the Applicant has not been engaged in the security activity authorised by the previous licence for a significant period, or has failed to demonstrate continuing knowledge and competency in relation to the security activity authorised by the previous licence. 55I recently considered this provision in the matter of Sekers v Commissioner of Police, NSW Police Force [2012] NSWADT 54. In that decision I stated: "75 It is apparent from the Parliamentary debate in relation to the Bill that introduced the section 15 provisions into the Act that the provisional licensing scheme recognises the significance of practical skills and experience. This is particularly so in the case of armed guarding and in my view the issue of a class 1F licence must be subject to stringent training and competency requirements. 76 It is also apparent from the Parliamentary debate that some concern had been expressed about the operation of the provisional licensing scheme. The Applicant has raised the issue of the availability of approved supervisors who are able to participate in the provisional licensing scheme and the consequent limited opportunities for an applicant to engage in the scheme. He has raised the issue of the lack of opportunity for an applicant of his experience who is able to engage in the scheme to benefit from that engagement because of the comparative inexperience of approved supervisors. Inevitably the limitations of the scheme will lead to the need for cash-in-transit sector of the industry to find alternatives to reliance on armed security operators. The respondent does not dispute this point. 77 I accept that it is necessary for the Respondent to adopt a 'rule of thumb' approach to the meaning of the term "significant period". It is not in dispute that the Act provides no guidance in regard to how that term should be interpreted. The exercise of the discretion in section 15(2) must therefore take account of the specific circumstances of each application. 78 I agree with the Applicant's argument that some knowledge is highly perishable and other knowledge is not so. Some competencies will deteriorate over time if not practiced. It is reasonable to expect that an individual who has operated within the industry for a considerable period of time might retain currency of knowledge and skills for a longer period than a relatively inexperienced individual. Similarly, an individual who has operated at a high level within the industry might retain that currency for a longer period than an individual who has operated at a significantly lower level. However, that will not always be the case and the specific circumstances of each application must be considered. 79 In my view, a determination of whether a "significant period" has passed is related to both the specific circumstances of each applicant and the category of licence that is sought. For example, it is my view that the relevant period might be longer in the case of a highly experienced applicant who is seeking a licence to undertake only static security work than would be relevant to an applicant wishing to perform armed CIT security work. 80 I do not agree with the Applicant's argument that the reference point for the purposes of section 15(2)(c)(ii) is the date on which his licence was due to expire i.e. 6 May 2009. In my view, the reference point should be the date on which the Applicant last performed licensed security activities. The time at which the period is assessed is the date of the determination: section 63 of the ADT Act. 81 I agree with the Respondent's submission that the legislation requires that the Applicant has been "engaged in" the security activity authorised by the previous licence. I also agree that work in planning security-related events does not satisfy that requirement. 56Those views are equally applicable to the circumstances of this matter. 57The evidence suggests that the Applicant has not undertaken armed security activities since 2006. He has therefore not been "engaged in" the security activity authorised by the previous licence for between five and six years. His previous experience is relevant but in my view it is not of the kind that is sufficient to satisfy the current requirements. 58It is my view that the Applicant has not been engaged in security guard activities of the kind to which the proposed licence relates for a "significant period" for the purposes of section 15(2) of the Act. On the evidence before me I cannot be satisfied that the Applicant satisfies the criteria for category 1F licence. 59It follows, in my view, that the Respondent has correctly determined the application and the decision should therefore be affirmed. 60I note the Applicant's comments in regard to the considerable expense that he incurred in undergoing training to support his application for the category 1F licence. Given the efforts that the Commissioner has made to resist the Applicant's application and the general policy aiming to reduce the number of further entrants into the CIT sector, I am unable to understand why the Respondent's staff would advise an applicant to undertake further training. 61I have no power to order the Commissioner to compensate the Applicant for the expenses he incurred in undertaking his training. However, the Commissioner may form the view that in the circumstances it would be reasonable to do so. Order The decision to refuse the Applicant's application is affirmed. ********** 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. Decision last updated: 10 April 2012