QR v Commissioner of Police, NSW Police

[2005] NSWADT 122

Pending Appeal:

CITATION:	QR v Commissioner of Police, NSW Police [2005] NSWADT 122
DIVISION:	General Division
PARTIES:	APPLICANT QR RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	043379
HEARING DATES:	17/02/2005, 19/05/2005
SUBMISSIONS CLOSED:	05/19/2005
DATE OF DECISION:	06/07/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Mutual Recognition Act 1992 (Cth) Security Industry Act 1997
CASES CITED:
REPRESENTATION:	APPLICANT K Dailly, barrister RESPONDENT P Mclaughlin, solicitor
ORDERS:	1. The decision of the Commissioner of Police, New South Wales Police to refuse the application by QR for the grant of a Class 1 ABC security licence is affirmed

1 I have decided, because of the sensitivity of the information in this case, not to publish the Applicant's name and to delete any other information which could lead to his identification. In these reasons I refer to the applicant as " QR".

2 QR has worked as a security guard for a number of years. He held a licence to work as a security guard in Tasmania and applied to have his qualifications recognised and to be licensed in NSW under the provisions of the Commonwealth Mutual Recognition Act 1992. The Commissioner has refused QR’s application.

3 QR abandoned the application insofar as it was based on the Mutual Recognition Act 1992 but sought review of the Commissioner’s decision to refuse his application on the basis that he has satisfied all the requirements for the licence.

4 The Commissioner’s refusal is based on his opinion that QR is not a fit and proper person to hold a licence and that the grant of the licence would be contrary to the public interest. Section 15(1)(a) of the Security Industry Act 1997 (“the Act”) requires that the Commissioner must refuse to grant the application for a licence if he is satisfied that QR is not a fit and proper person to hold the class of licence sought. Section 15(3) of the Act gives the Commissioner discretion to refuse to grant the application if he considers that it would be contrary to the public interest. The Commissioner takes no issue with QR’s assertion that he has satisfied all the training requirements for the licence.

5 QR contends that it has now been 11 years since he was last convicted on any criminal offence. In that time he has proven that he has successfully rehabilitated and sought to improve his situation in life. He has proven himself in recent years to be a valued member of the community due to his proven commitment to maintaining regular employment. He says that there is no likelihood that he will re-offend. QR has obtained several references in support of his application.

6 The Commissioner points to QR’s criminal record. In 1993 he was convicted of conspiracy to import a commercial quantity of cocaine and was sentenced to four years imprisonment with a non-parole period of two years six months. QR does not dispute this conviction. However, he asserts that since he has worked entirely within the security industry he has not been charged with or convicted of any additional criminal offences.

7 The Commissioner also relies on criminal intelligence reports and other criminal information held in relation to QR. Section 15(6)(a) of the Act provides that the Commissioner, and therefore the Tribunal, may have regard to this material. I formed the view that it was desirable that the hearing be conducted partly in private and determined pursuant to section 75 (2) of the Administrative Decisions Tribunal Act 1997 that a hearing should be conducted in QR’s absence.

8 A hearing took place in the absence of QR and his legal representatives on 19 May 2005. The purpose of this hearing was to allow me to consider this aspect of the Commissioner’s evidence in greater detail than was possible at the initial hearing of the matter.

9 On that occasion I also made an order prohibiting the disclosure of evidence given before the Tribunal, or received in evidence by the Tribunal on that day.

10 Section 15(7) of the Act states that the Commissioner is not required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6) of the Act. After considering the evidence presented by each party, I consider that this provision is relevant to QR’s application. As the Tribunal stands in the shoes of the Commissioner, it follows that the Tribunal similarly has no obligation to provide reasons in those circumstances. It is my view that in the circumstances of this matter no such reasons should be given.

11 I appreciate that this puts QR at a significant disadvantage in that his licence application is refused and he is given an inadequate explanation for the decision. Nevertheless, that must be the case in these circumstances. I am unable to offer QR any further explanation for this decision.

Order

1. The decision of the Commissioner of Police, New South Wales Police to refuse the application by QR for the grant of a Class 1 ABC security licence is affirmed.