Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43 Hearing dates: 12 July,13 August, 10 September, 16 October. Decision date: 02 May 2014 Jurisdiction: Occupational Division Before: P H Molony, Senior Member Decision: The Tribunal affirms the decision to revoke Essential Security Pty Ltd's Class MC Master Licence. Catchwords: Security Industry - close associate - breach of conditions of licence regarding close associate - revocation for - public interest- revocation in public interest - avoidance of licensing regime - abuse of mutual recognition principles. Legislation Cited: Security Industry Act 1997 Security Industry Regulation 2007 Mutual Recognition Act 1992 (Cth) Cases Cited: Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) (No 2) [2010] NSWADTAP 56 Ibrahim v Commissioner of Police [2009] NSWADT 245 Jones v Dunkel (1959) 101 CLR 298 Category: Principal judgment Parties: Applicant - Jasmin Naylor Respondent - Commissioner of Police, NSW Police Force Representation: Applicant - M White (first day). In person thereafter Respondent - J Mattson File Number(s): 133185

reasons for decision

Introduction 1Jasmin Naylor applied to review a decision of the Commissioner of Police to revoke the Class MC Master Licence issued to Essential Security Pty Ltd (the company) under the Security Industry Act 1997 (the SIA). Ms Naylor is the nominated holder and licensee of that master licence. The decision to revoke the company's licence was made on three grounds: * That Mr Muhammad Farooq, who has a disqualifying conviction, is a close associate of the company and Ms Naylor; * That a condition of the master licence had been breached by the failure to disclose that Mr Muhammad Farooq was a close associate; and * That it is in the public interest that the master licence be revoked. 2Section 16 of the SIA is concerned with criminal convictions that disqualify a person from obtaining a licence under the SIA. Relevantly, s 16(1)(a) 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 in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, ... (5) A reference in subsection (1), (2), (3), (4) or (4A) to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. 3There is no dispute that Mr Farooq, who is married to (but said to be now separated from) Ms Naylor, was convicted of larceny on 8 September 2008. This is an offence prescribed by clause 18(d) of the Security Industry Regulation 2007 (the SIR). At all times he was disqualified from obtaining a security licence under the SIA. Anomalously, because he holds an ACT security licence, he has been able to obtain a NSW security licence under mutual recognition arrangements, despite being disqualified from obtaining a NSW licence directly. This is so because s 21 of the Mutual Recognition Act 1992 (Cth) which applies in NSW by virtue of the Mutual Recognition (New South Wales) Act 1992 provides that: (1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration. 4A licensee of a master licence is a required to comply with conditions attached to a licence. Clause 34 of the SIR puts in place reporting conditions with respect to close associates. It provides: (1) It is a condition of a master licence that the licensee must notify the Commissioner in writing of: (a) any change in the particulars relating to close associates included in an application under clause 13 (2) (a) (ii) or (3) (d), and (b) the name, date and place of birth and residential address of any person who subsequently becomes a close associate of the licensee. (2) The notification must be made within 14 days after the change occurs or the person becomes a close associate. 5Close associate is defined in s 5 of the SIA: (1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a licence if the person: (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business, or (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or holder. (2) In this section: relevant financial interest in relation to a business means: (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise. relevant position means the position of director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others: (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position. 6Section 26 of the SIR sets out the Commissioner's power to revoke a licence. It relevantly provides: (1) A licence may be revoked: (a) (Repealed) (b) if the licensee: (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or the renewal of the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) (Repealed) (d) for any other reason prescribed by the regulations. (1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it. (3) ... 7In the company's case the Commissioner revoked the master licence relying on s 14(1)(b)(iii),(d) and (1A). The latter relied on clause 29 of the SIR which provides - For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.