Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vlahos v Commissioner of Police, NSW Police Force [2019] NSWCATOD 113 Hearing dates: 20 May 2019 Date of orders: 20 May 2019 Decision date: 20 May 2019 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: Decision of the Respondent is affirmed Catchwords: Security Industry Act and regulations – prescribed offences – conviction within 10 years – mandatory revocation of licence Legislation Cited: Administrative Decisions Review Act 1997 Drug Misuse and Trafficking Act 1985 Road Transport Act 2013 Security Industry Act 1997 Security Industry Regulation 2016 Cases Cited: Bourke and Ors v The New South Wales Commissioner of Police [1998] ADT Commissioner of Police v Wilson and Anor, Court of Appeal, 29 July 1994, (unreported) Texts Cited: Nil Category: Principal judgment Parties: Omelio Vlahos (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: O Vlahos (Applicant self-represented) T Grey (Respondent) File Number(s): 2019/00053506 Publication restriction: N/A REASONS FOR DECISION 1. Mr Vlahos applied for review of a decision by the Security Industry Registry of the NSW Police Force to revoke Mr Vlahos' Class 1AC security licence. The licence was issued on 3 March 2014 under the Security Industry Act 1997 ("SIA"). The decision to revoke the licence was made on 13 December 2018. 2. The reason for the decision to revoke Mr Vlahos' licence was that Mr Vlahos had been convicted on 12 December 2018 at Hornsby Court NSW of the offence of drive vehicle with an illicit drug present in blood, first offence – Section 111(1)(A) of the Road Transport Act 2013. The Respondent revoked Mr Vlahos' licence because it was required to do so as Mr Vlahos had been convicted of an offence which was prescribed by the Regulations to the SIA. 3. Mr Vlahos sought review of this decision in the Tribunal. The Tribunal affirmed the decision to revoke Mr Vlahos' licence at the hearing on 20 May 2019. Mr Vlahos then requested that the Tribunal provide written reasons for its decision. The following sets out the reasons for the Tribunal's decision to affirm the decision to revoke Mr Vlahos' security licence. Background 1. Mr Vlahos obtained his security industry licence category 1AC on 3 March 2014. This licence permitted him to be an unarmed guard and crowd controller. On 12 December 2018 he was convicted of the offence of drive vehicle with an illicit drug present in his blood - first offence. He was fined $500. On 13 December 2018, a delegate of the Commissioner of Police wrote to Mr Vlahos advising him that his security licence had been revoked because of the conviction. Mr Vlahos applied for internal review of the decision, but it was affirmed by the internal reviewer on 18 January 2019. Mr Vlahos then brought his application to the Tribunal to review the decision. Mr Vlahos' case 1. Mr Vlahos did not deny the conviction. He did not appeal the conviction at the time. He considered that it was unfair for him to lose his security industry licence on the basis of the conviction. He said he had not done anything wrong at work. He was now without a source of income and would have to consider getting unemployment benefit. 2. Mr Vlahos provided a report from his psychologist Ms Anne Grapsas dated 17 April 2019. Ms Grapsas referred to the conviction. She supported Mr Vlahos' application for a reconsideration of the cancellation of his security licence. 3. Mr Vlahos provided a reference dated 6 May 2019 from Mr Blagoj Stojcov, Director of Logo Security Services. Mr Stojcov's reference stated that Mr Vlahos had worked for him. He found Mr Vlahos to be of good character and a fit and proper person to work in the security industry. He accepted that Mr Vlahos had been convicted of the offence, but stated that "we would like to say we have never seen anything to suggest that he has worked under any influence." Relevant Legislation 1. The relevant provisions of the SIA are Sections 16 (1)(a) and section 26(1A). 2. Section 16(1)(a) of the SIA provides that the Commissioner must refuse to grant an application for a licence if satisfied that an applicant: "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…" 1. Section 26(1A) provides that the Commissioner must revoke a licence if satisfied that, if the licensee were applying for a new licence, the application would be required to be refused under the SIA. 2. Clause 15(1)(b) of the Security Industry Regulation 2016 (the regulations referred to in section 16(1)(a) of the SIA, sets out prescribed offences. "For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences…: (b) An offence in respect of a psychoactive substance, prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985… committed under: (i) the law of any Australian jurisdiction…" The Tribunal's role 1. Section 29 of the SIA provides a right of review to the Tribunal of decisions including a revocation of a licence granted to a person. 2. Section 63 of the Administrative Decisions Review Act 1997, provides that in determining an application for an administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. 1. The issue to be decided is whether the Commissioner made the correct and preferable decision by revoking the applicant's licence. The Respondent's submissions 1. The Respondent's case was that it had no choice but to revoke Mr Vlahos' security industry licence once he had been convicted of an offence set out in the regulations. 2. The Full Facts before Hornsby Court set out that on 29 October 2018 Mr Vlahos was driving a vehicle at Northwood. He was pulled over and arrested in relation to another driving offence. He was subject to a random drug test which proved positive to the presence of cannabis. Oral fluid taken from Mr Vlahos tested positive to THC. Mr Vlahos admitted to police that he had smoked cannabis the night before at home. 3. Mr Vlahos' conviction under section 111 (1)(A) of the Road Transport Act 2013 for drive vehicle, illicit drug present in blood was an offence in respect of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985. 4. Schedule 1 of the Drug Misuse and Trafficking Act 1985 included cannabis leaf as a prohibited drug. The Full Facts presented to Hornsby Court supported this. The Respondent also provided a report by Senior Forensic Analyst, Una Cullinan dated 24 April 2018 which asserted that cannabis leaf fell within the definition of a prohibited drug in Schedule 1 of the Drug Misuse and Trafficking Act 1985. 5. The Respondent referred to the matter of Bourke and Others vs the New South Wales Commissioner of Police [1998] ADT. In that matter the Tribunal considered the mandatory refusal of licence provisions of the SIA which had recently been introduced. These are the provisions which had led to the revocation of Mr Vlahos' licence. The Tribunal stated that the Tribunal did not have any discretion of its own to exercise in relation to the various appeals relating to the refusal of licences that were before it. The Tribunal considered that the only role that the Tribunal could perform in relation to mandatory refusals of licences under the SIA scheme was to consider any applications where there was a question as to the objective facts on which the Commissioner had relied in refusing the licence. 6. In Mr Vlahos' case, there was not a question as to the objective facts upon which the Commissioner had relied. It was clear that there had been a conviction which fitted within section 16 of the SIA and the regulations. 7. It was mandatory for the Respondent to revoke Mr Vlahos' licence. 8. In addition, the provisions bound the Tribunal standing in the shoes of the Commissioner in conducting the review. The Tribunal had no choice but to affirm the revocation of Mr Vlahos' licence. Findings of Fact 1. The Tribunal is satisfied, and it was not contested by Mr Vlahos, that he was convicted on 12 December 2018 at Hornsby Court NSW of the offence of drive vehicle with an illicit drug present in blood, first offence – Section 111(1)(A) of the Road Transport Act 2013. Findings of Law 1. Mr Vlahos' conviction drive vehicle with an illicit drug present in blood, first offence – Section 111(1)(A) of the Road Transport Act 2013 is an offence in respect of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985. This offence is a prescribed offence referred to in Clause 15(1)(b) of the Security Industry Regulation 2016. Consideration 1. If Mr Vlahos had been applying for a security industry licence the Respondent would have been obliged to refuse the application under section 16(1)(a) of the SIA because of the conviction. 2. When he was convicted, Mr Vlahos already held a licence under the SIA. Section 26(1A) of the SIA provides that the Commissioner must revoke a licence if satisfied that, if the licensee were applying for a new licence, the application would be required to be refused under the SIA. 3. In the matter of Bourke and Others vs the New South Wales Commissioner of Police [1998] ADT the Tribunal considered the scope of the Tribunal's role in reviewing decisions under the SIA. The Tribunal referred to the findings of the NSW Court of Appeal in the matter of Commissioner of Police v Wilson and Anor, Court of Appeal, 29 July 1994, (unreported) – Wilson's case. That matter dealt with provisions that mandated a firearms licence revocation following certain convictions. The Tribunal observed in Bourke that Wilson's case confirmed that it was not open to the Local Court in dealing with an appeal against revocation to exercise any additional or independent discretion. 4. This Tribunal accepts that it is similarly not open to this Tribunal in dealing with an appeal against revocation of a security industry licence in Mr Vlahos' circumstances to exercise any additional or independent discretion beyond that exercised by the Respondent. Decision 1. It is my view that the correct and preferable decision is that Mr Vlahos is not permitted to hold a security licence. It follows that the decision of the Commissioner to revoke Mr Vlahos' licence under the SIA should be affirmed. Order 1. The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 12 July 2019