983005 - JOEL LINDSAY BOURKE v COMMISSIONER OF POLICE

983007 - RONALD HARPER v COMMISSIONER OF POLICE

983008 - GILBERT NEIL OLIVER v COMMISSIONER OF POLICE

 983009 - JULES MARTIN HERRON v COMMISSIONER OF POLICE

983010 - DARRYL GADDES v COMMISSIONER OF POLICE

983011 - JAMIE DANIEL EVANS v COMMISSIONER OF POLICE

953013 - JOSHUA ROY CAVANAGH v COMMISSIONER OF POLICE

983017 - WARREN WILLIAM COBLE v COMMISSIONER OF POLICE

APPEARANCES:

The Appellants appeared in person.

MR G DOHERTY, Solicitor, for the Commissioner of Police.

HIS HONOUR: These are my reasons for decision in respect of a group of cases that involve appeals to the Administrative Decisions Tribunal under the provisions of the Security Industry Act. For the sake of clarity I will list the matters that will be affected by my ruling. The appeals include Bourke, Harper, Oliver, Herron, Gaddes, Cavanagh and Coble. This ruling goes to the question of law which is common to all of those matters. That question relates to the extent to which the Administrative Decisions Tribunal can exercise any discretion independent or additional to the powers that are able to be exercised by the Commissioner of Police under the scheme in respect of these appellants.

Each of the appellants, as I understand their circumstances, has been subject to what is known as a section 16 refusal of a security industry licence. Section 16 of the Security Industry Act 1997, which came into effect on 1 July 1998, states that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant is affected by certain characteristics. Those characteristics are that the applicant:

"(a) has, within a period of ten years before the

(c) has ... been removed or dismissed from the Police Service of New South Wales ... "

The matters before me today all involve circumstances that appear to be within the categories (a) and (b) of section 16(1) of the Security Industry Act. I should possibly make some remarks about the Security Industry Act licensing scheme.

Under the Act three classes of licence are provided for, a Master Licence, a Class 1 licence and a Class 2 licence. A Master Licence is a licence which enables the holder of the licence to employ people, to carry on security activities. Class 1 and Class 2 licences are licences to be held by people who are employed by- the security industry and these licences are divided in each case into classes. Class 1 licences are divided into 1A, 1B and 1C, and Class 2 licences are divided into 2A, 2B, 2C and 2D and under those licences various activities are permitted.

The basis of the decision as I see it between Class 1 licences and Class 2 licences is that Class 1 licences tend to be connected with direct patrol and guarding activities, whereas Class 2 licences appear more to be connected with the operation of security equipment or the selling of such equipment and training and instruction.

That is the nature of the licensing scheme, and as you have heard this morning and on an earlier occasion when I dealt with these cases at directions, the law in the area changed as a result of the passage of the Security Industry Act. Basically the position in relation to the effect of old convictions on an application for a licence was altered and, it appears, made stricter.

The right of appeal in relation to a refusal of a licence under the Act was expressed generally, and that is contained in section 29. A person may under section 29(1) apply to the Administrative Decisions Tribunal for a review of the following decisions:

The significance of Commissioner of Police vs Wilson & anor, Court of Appeal, 29 July 1994, unreported "Wilson's case"), as we have heard today, relates to the fact that it is a decision of the Court of Appeal which goes to the operation of a licensing scheme, in that case a firearms licensing scheme, where the Commissioner of Police was affected by a requirement, which appeared to be a mandatory requirement, as to circumstances in which he must refuse an application for a licence. Under the scheme as it was in force at the time of that case, section 25 of the Firearms Act 1989 stated that a licence must not be issued to a person who has at any time, or, if the regulation so provides, within a specified period before the licence application was made, been convicted in New South Wales or elsewhere of a prescribed offence. In the circumstances of that case a licence application was refused and the person affected then appealed to the Local Court in respect of that refusal. The Local Court allowed the appeal and directed, as I understand it, the Commissioner to issue a licence.

That decision was then appealed to the Supreme Court and heard by a single judge of the Supreme Court, Allen J. (see Commissioner of Police v Wilson, Supreme Court, 26 November 1993). A similar view was adopted, that is that there was some discretion available under the appeal scheme to the Local Court to reconsider and, if appropriate, direct the Police Commissioner to issue a licence, even though it appeared that section 25 of the Firearms Act itself made it mandatory for the Commissioner of Police to refuse the licence.

It is clear, I consider, that the case is generally relevant to these proceedings. I will deal shortly with some of the points of contention that were raised in argument this morning by some of the appellants as to why possibly the case is not applicable.

In the Court of Appeal the judges, Clarke, Meagher and Powell JJ.A., dealt with the questions raised by the Commissioner of Police and ruled in favour of the Commissioners case.

The Commissioner argued, as you might expect, that as the Commissioner was obliged to refuse the licence, it was not open to the Local Court on appeal to exercise any separate or additional discretion in relation to the matter. Without going into the detail here, there was some language in the Local Court Act upon which the Magistrate initially had relied, and upon which the Supreme Court judgement of Mr Justice Allen had relied, which might have suggested that the Local Court did have some independent discretion. That language is basically the following which appeared in section 42(4) of the Firearms Act:

I must say some similar possibilities have occurred to me in considering my decision, in that it might be argued that the Administrative Decisions Tribunal Act has some language which might suggest that there is some additional scope for the exercise of discretion. The Administrative Decisions Tribunal is charged under section 63 of its Act with deciding what the "correct and preferable decision" is in relation to a matter that is before it. In that regard, it is to have regard to "material then before it" including relevant factual material or any applicable written law. So that it might be thought that that language gives the Tribunal some additional role beyond that administered by the Commissioner of Police.

That way of looking at the matter was despatched fairly cursorily in the Court of Appeal, The Court of Appeal was strongly of the opinion that in a licensing scheme which had the kind of characteristics that were found in the Firearms Act licensing Scheme, it was not open to the Local Court to exercise any additional or independent discretion founded simply on some general provisions as to the jurisdiction of the Local Court to deal with licence appeals under the Firearms Act.

Whilst obviously the Local Court was at large in respect of what might be called discretionary refusals, it was not at large in respect of mandatory refusals. The Court of Appeal referred in the decision to the inappropriateness in public policy terms of a situation where an administrator who is obliged to take certain action might have that action infringed or changed at a higher level on the basis that the appeals body (the Local Court in that example and this Tribunal in this example) could act in a different way in relation to the same matter. What the decision was saying, as I read it, is that there needs to be consistency in the justice system in the way in which it examines matters which are the subject of mandatory requirements.

It will be obvious from those observations, that unless there are some distinctions which are persuasive, I regard myself as bound by the ruling of the Court of Appeal in Wilson’s casein regard to the matters that are before me today.

Moving on to distinctions that were raised in submissions providing possible bases for not acting on Wilson’s case.

The first was that the case dealt with firearms licensing, whereas this case deals with security industry licensing. Whilst I appreciate that that may appear to some to be a material distinction in regard to the circumstances with which we are faced today, my conclusion is that it is not a material distinction. The key factor that is relevant to both Wilson’s case and the present situation is that we are dealing with licensing schemes that have divided the way in which our licensing will be conducted into categories, where certain applications must be refused manditorily and others where applications will be considered on a discretionary basis.

So we have got a licensing scheme that has mandatory elements to it and discretionary elements to it. That was the position in Wilson’s case and that is the position here. It appears to me that Wilson’s case is material today.

In fact, the particular matter today is licensing of security guards. I acknowledge in that regard that quite plainly the present security industry licensing scheme bears on the livelihood of individuals in a much more direct way than a firearms licensing scheme would ordinarily bear on the livelihood of individuals.

I appreciate the gravity of the impact of the new rules that are contained in the Security Industry Act 1997 on the livelihood of many people here today.

The issue of retrospectivity was also raised. I must agree with the submission of Mr Doherty that it would create a mischief of significance if I were to somehow seek to interpret this legislation to suggest that it only intended to deal with past convictions once the ten years or five years that is relevant had run under the new legislation. It is clear, I think, in the present legislation that the general subject matter of the legislation is intended to capture convictions that pre-date the operation of the Act for ten years in one instance and five years in another instance. In those circumstances I would have to accept, although it is likely to be regarded as unfair, that this legislation is intended to operate retrospectively.

 Having made those observations, it would be clear, I think to those listening that I consider the Tribunal does not have any discretion of its own to exercise in relation to the various appeals that are before it this morning.

The cases make it clear, including the Court of Appeal ruling in Wilson, that the Tribunal is only able to proceed to satisfy itself that the objective facts, as they are called, upon which the Commissioner relied were properly relied upon by the Commissioner. That clearly goes simply to the question of whether there was a conviction or a finding of a charge proven of a kind which fits within the parameters of section 16.

As I have understood the submissions on the occasion of the directions, today most, if not all, of the appellants here today have not really questioned what might be called the objective facts. But I will give people at the end of the delivery of these reasons and opportunity if they wish to raise a question about whether the objective facts ate made out in relation to each of the appeals.

The impact of this scheme as reflected in the appeals that are here this morning is clearly quite draconian in relation to circumstances where people have had quite minor past convictions. Those minor convictions fall within the prescribed categories that are set out in the regulations. Without wishing to discriminate between the various cases that were here this morning, I think it is useful to observe that most, if not all, of the cases that are before me today do involve relatively minor circumstances. In some the fines that were imposed by the courts would tend to suggest that that was the view on t the day that was held about those events.

I think in most, if not all, instances that are before me today, people are currently engaged in stable employment within the industry. In many cases they have had several years of good conduct prior to the commencement of this scheme. The effect of the scheme is in fact to remove those people, as I see it, from the industry in a was which I think would be regarded by many as harsh.

A couple of these cases here today involve people with minor drug offences which appear in each case to have involved one set of events. In one case, the case of Joel Burke, the total fines imposed were $300 and that occurred three years ago in relation to a person who is still quite young. In another case, I think Herron’s case, the fines imposed in respect of the matters before the Court, which appear to have arising out of the one set of events, total $500 and those fines were imposed more than six years ago. Most of the cases are similar.

I could go on and talk about some of the other cases but I simply mention those as an example of the harsh way in which this law is operating and affecting people in stable employment in this industry.

I certainly commend to the Government that there be some reconsideration of the way in which the scheme is currently structured, whilst appreciating the public policy considerations which have led the Parliament to take this approach (see Second Reading Speech, Security Industry Bill, Hansard (LA), 2088 (19 November 1997).

In light of those conclusions, I consider that the only role that the Tribunal can perform in relation to mandatory refusals of licences under the Security Industry Act’s scheme is to consider any applications which may be made where there is a question as to the objective facts upon which the Commissioner has relied.

In light of those conclusions, which I realise are substantially adverse to the interests of a number of the appellants who are here today, what I propose now to do is simply to adjourn all of the matters that were listed before me today and to discontinue the operation of the various stay orders that were in place in relation to a number of these matters. I will give people an opportunity to indicate whether they wish to test the objective facts, as I will call them. If obviously they do not wish to contest the objective facts, we will then move to dismiss the appeals. That is the approach I propose to take.

Public Document Reprinted With Permission

Comments by Alexander Wilon JP PhD.

The club members of course are exempt from Carr's draconian legislation.  When they wrote the NSW Security Industry Act (also known as the Club Members Act) they made sure that they would be exempt from prosecution.  For this reason, corrupt club members who have been convicted in a court of law for massive fraud can continue to hold a Master Licence--not only, but they also reward one another with Awards.

On the other hand if a person was "convicted" of an offence 5 years ago, such as being found in possession of an illegal cigarette when he was 18 years old (and has never re-offended), that person is not a fit and proper person to hold a licence.

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