Achi v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 135

CITATION:	Achi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 135
DIVISION:	General Division
PARTIES:	APPLICANT Ghassan Achi RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003153
HEARING DATES:	01/02/2001
SUBMISSIONS CLOSED:	02/15/2001
DATE OF DECISION:	08/15/2001
BEFORE:	Lees M - Judicial Member
APPLICATION:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Security Industry Act 1997
CASES CITED:	Botros -v- The Commissioner of Police [2000] NSWADT 6 Australian Broadcasting Tribunal -v- Bond (1990) 94 ALR 11 Sobey -v- Commercial Private Agents Board [1979] 22 SASR 70 Re SRH and Controller-General of Customs (1995) 21 AAR 401 Incorporated Law Institute of NSW -v- Meagher (1909) 9 CLR 655 Hughes and Vale Pty Ltd -v- New South Wales (No. 2) (1955) 93 CLR 127 Sakellis -v- OIC Paddington Police (1968) 88 WN (NSW) 541 Re Queensland Electricity Commission and Others; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 O’Sullivan -v- Farrar (1989) 168 CLR 210 Re Thompson’s Application (The New Norfolk District Football Club’s Case) (1964) Tas SR 129 Right to Life Association (NSW) Inc -v- Secretary, Department of Human Services and Health and Others (1995) 128 ALR 238 Comalco Aluminium (Bell Bay) Ltd -v- O’Connor and Others (1995) 131 ALR 657
REPRESENTATION:	APPLICANT R Webb, barrister RESPONDENT J Klarica, barrister
ORDERS:	The Commissioner's decision to revoke Mr Achi's Licences is set aside.

1 This is an application by Mr Achi for review by the Administrative Decisions Tribunal (‘the Tribunal’) of a decision made by the Commissioner of Police (the Commissioner) to revoke his security industry licences 1A #407419760 and 2A #407812019 under the Security Industry Act 1997 (‘the Act’).

2 The Tribunal’s jurisdiction to consider Mr Achi’s application for review is found under s. 29 of the Act together with s. 38 of the Administrative Decisions Tribunal Act 1998.

Applicable Legislation
3 Section 11(1)(a) of the Act provides:

(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, guard, watch or protect property (including the guarding of cash in transit) or to carry on such other activities as may be prescribed by the regulations …
4 Section 12(1)(a) of the Act provides:
(1) Class 2 licences are to be classified into subclasses. Those subclasses, and the authority they c onfer, are as follows:
(a) class 2A—authorises the licensee to act as a security consultant…
5 Section 16 (1)(a) of the Act 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, whether or not the offence is an offence under New South Wales law, …
6 Section 26 of the Act as relevant reads:
(1) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of that class
(b) …
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(d) for any other reason prescribed by the regulations.
7 Clause 11 of the Regulation provides:
For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or
(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction),
and being an offence that would disqualify the applicant concerned from holding a licence under the Firearms Act 1996 .
8 Clause 18 of the Regulation provides:
In accordance with 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.

The evidence

9 In addition to the completed application for review form, the Tribunal was provided with:
(1) Mr Achi’s letter seeking internal review;
(2) the Police Notification of Revocation of licence (of 01/04/00) and the related statement of reasons (of 28/09/00);
(3) the Police internal review decision letter (of 14/04/00);
(4) a NSW Police Service Fact Sheet re Mr Achi and Computerised Operational Policing System (COPS) records;
(5) Mr Achi’s ‘Criminal History’;
(6) copies of recent references from: NSW Senator Stephen Hutchins; NSW MP Diane Beamer; Dr Abraham Constantin; Mr Alex Ashy (Director of Pentagon Protective Services (‘PPS’)); Khoder Saleh JP; and Sian Williams, After Hours Clinical Coordinator of Balmain Hospital; and older references from: TAFE Coordinator Pat Robertson; Hassan Moussa, Coordinator of the Australian Arabic Welfare Council Inc.; and Hani Hammoud, Chairperson of the Lebanese Community Group of St George;
(7) Mr Achi’s resume and documents stating his psychology, language, communication, welfare, language, clerical, first aid, firearm and security industry training and qualifications; and
(8) four photographs of the interior and boot of Mr Achi’s car.
10 Additional documents reveal that Mr Achi was appointed a NSW Justice of the Peace by the Attorney-General on 2 May 1990 and received an Honorary Award in 1993 for his services to the community from the Combined Australian Middle East Welfare Council Inc..

11 Also before the Tribunal were a Revocation Order and a Statement of Reasons from the NSW Police Service Firearms Registry dated 18 August 2000 relating to the revocation of Mr Achi’s Category H pistol licence and photocopies of the front of Mr Achi’s laminated firearm, security industry and driver’s licences.

12 On 23 February 2000 Mr Achi had been convicted of the offence of ‘not keeping firearm safely’ under s 39 (1)(a) of the Firearms Act 1996 (NSW) at the Waverley Local Court. He was fined $400 plus costs. Mr Achi had pleaded guilty to the offence.

13 Mr Achi attended the Tribunal hearing and gave oral evidence.

14 In short, the facts leading to Mr Achi’s firearm conviction involved his leaving his loaded work firearm wrapped in a car seat cover hidden under a tool kit in the boot of his car while he went for a swim at the beach. He was parked in a public place. Mr Achi locked the car and set the alarm. His evidence referred to the car having a special ignition lock switch as well. Mr Achi expected to be away from the car for a short time only. On his return about 20 – 25 minutes later, he found the police at his car.

15 The police evidence was that they responded to a call about a car alarm and found Mr Achi’s car unattended with one door wide open. On searching the vehicle in order to find information as to its owner, the police found Mr Achi’s work firearm in the boot of the car.

16 Mr Achi’s evidence as to why he stopped for a swim instead of returning directly to his employer’s premises after work was that he spoke with a work colleague at about 6pm who advised Mr Achi he was at the beach with another colleague having a swim and that Mr Achi could come by and get the firearm safe key from them there. One of these colleagues was PPS Director Mr Alex Ashy. Mr Achi’s evidence was that he gave this same evidence to the Local Court hearing. Mr Achi’s usual practice in relation to the firearm at the end of his working shift would be to return the firearm to PPS’s Harris Park office for safekeeping. His evidence was that on this occasion had he gone straight to Harris Park, there would not have been any one there in a position to securely store the firearm.

17 Prior to this incident, Mr Achi had never before been brought to the attention of the Police. He had had no criminal history or record of any conviction of any kind.

18 Mr Achi is married with three children. He has worked in the security industry for about ten years, initially as a security officer and later as a security consultant as well. Prior to this work he has worked as a teacher, counsellor and community and project worker. He has also been involved in many community, cultural and service organizations, often as a senior office holder.

19 In relation to the circumstances giving rise to his breach of the Firearms Act Mr Achi acknowledged he had made an error of judgment and he understood that he had no reasonable justification for his behaviour.

20 At the time of the hearing Mr Achi remained employed by PPS doing office duties ‘until this matter is finalised’. The reference for Mr Achi from PPS also states that it will make sure such incidents will not occur in the future.

21 Mr Webb for Mr Achi submitted that MrAchi’s evidence was honestly given and that his attitude and plea of guilty to the firearm offence evidenced Mr Achi’s candour and contrition. He submitted that there was abundant evidence in the form of references and testimonials supporting the submission that Mr Achi was a person of very good character - a hardworking, reliable person of honesty, responsibility and integrity who was regarded well and contributed generously to the community.

22 Mr Webb submitted that Mr Achi’s firearm offence was serious and had resulted in Mr Achi having his firearm licence revoked noting that Mr Achi had not fought the charge and had not appealed the firearm licence revocation decision. Mr Achi has no quarrel with the decision or penalty. Mr Webb submitted that this is further indication of Mr Achi’s character and that this, taken together with the submission that the offence was a ‘one-off’ aberration, supported a conclusion that Mr Achi was a fit and proper person for a security industry licence.

23 Mr Webb also submitted that as Mr Achi would no longer be carrying a firearm if allowed to do security work, this would mean there was ‘little scope for the public interest to be prejudiced’.

24 Mr Klarica, for the Commissioner, submitted that there were three bases relied upon for the revocation of Mr Achi’s licence: that Mr Achi’s Firearms Act breach constituted a prescribed offence warranting revocation pursuant to s 26(1)(a); that Mr Achi was no longer a fit and proper person to hold a security industry licence (s 26(1)(c); and that it was no longer in the public interest for Mr Achi to hold a security industry licence (s 26(1)(d).

25 Mr Klarica’s submissions referred to passages from the following decisions submitting that they provide assistance in the interpretation and application of the relevant law: in relation to s.26(1)(a): Botros v The Commissioner of Police [2000] NSWADT 6; in relation to s 26(1)(c): Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, Sobey v Commercial Private Agents Board [1979] 22 SASR 70, Re SRH and Controller-General of Customs (1995) 21 AAR 401, Incorporated Law Institute of NSW v Meagher (1909) 9 CLR 655 and Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127; and in relation to s 26(1)(d): Sakellis v OIC Paddington Police (1968) 88 WN (NSW) 541 at 545, Re Queensland Electricity Commission and Others; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1, O’Sullivan v Farrar (1989) 168 CLR 210, Re Thompson’s Application (The New Norfolk District Football Club’s Case) (1964) Tas SR 129, Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Others (1995) 128 ALR 238, and Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657.

26 Mr Klarica submitted that Mr Achi’s offence fell within cl 11 of the Regulation and that accordingly s 26(1)(a) could be relied upon to revoke Mr Achi’s licence.

27 Mr Klarica did not dispute Mr Achi’s references or other evidence as to Mr Achi’s good character.

28 Mr Klarica submitted that Mr Achi’s explanation as to why he went to the beach was unsatisfactory and uncorroborated. He submitted that Mr Achi’s unlawful action was not a mistake but rather a conscious and intentional act which raised a question as to his ability to work in the security industry. He submitted Mr Achi’s conduct in relation to the firearm, an ‘instrument of his job’, was foolish and careless and had he been a police officer it would justify his being dismissed or ‘at the very least be charged with a criminal offence, firearm confiscated and transferred to duties’ not requiring a firearm. Mr Klarica submitted that it could be inferred from the facts that the breach of the Firearms Act was not an isolated incident.

29 In relation to the public interest, Mr Klarica submitted that Mr Achi’s behaviour was a breach of the ‘standards expected’ by the community via the legislature and that the public interest would be better served by Mr Achi not working ‘in the industry with a firearm’.

30 Mr Klarica submitted as relevant the facts that Mr Achi’s security industry licence could not be renewed when due and that he has qualifications in other fields upon which he could rely to obtain alternative employment.

31 Mr Klarica also raised as relevant to the public interest issue what appeared to be the somewhat ‘slack’ approach of Mr Achi’s employer to the safekeeping of firearms by organising such a meeting at the beach knowing there would be a firearm left either in a parked car or accompanying Mr Achi onto the beach. This ‘apparent complacency contributed to the Commissioner’s decision to revoke Mr Achi’s licence’.

Findings and Reasoning
32 The evidence is that Mr Achi is willing and able to work in the security industry despite no longer being firearm licenced. The question is should he be permitted to do so.

33 Some of Mr Klarica’s submissions addressed Mr Achi being trusted with a firearm in addition to his being trusted within the security industry. This decision concerns only the Commissioner’s decision relating to the security industry issue. According to the evidence Mr Achi’s firearm licence had already been revoked and that decision was not the subject of review. For some time into the future Mr Achi cannot own, possess or use a firearm, personally or professionally. This decision relies on that fact.

34 Under the Act the firearm offence is a prescribed offence for the purpose of mandatory refusal of an application for a security industry licence. The Act does not provide that such an offence leads to the mandatory revocation of a security industry licence that has already been granted. Rather, the Act provides a number of bases on which a discretionary revocation may be made. Under s 26(1) of the Act, a decision maker is provided with the discretionary power to revoke a person’s licence in the four circumstances provided for under s 26(1)(a) to (d).

35 The circumstance provided for in section 26(1)(a) is that the decision maker may revoke the licence ‘for any reason for which the licensee would be required to be refused a licence of that class’. This refers to the power under s 16(1)(a) of the Act read with cl 11 of the Regulation.

36 The discretionary power in s 26(1)(a) arises if the licensee has within the period of 10 years before the application for the licence was made, been found guilty by a NSW court of a prescribed offence. Prescribed offences include offences relating to firearms or weapons such as Mr Achi’s in breach of s 39 of the Firearms Act.

37 Mr Klarica submitted that Mr Achi’s offence fell within cl 11 of the Regulation (and that accordingly s 26(1)(a) could be relied upon to revoke Mr Achi’s licence). For present purposes, I accept that the offence falls within cl 11 as it alone would certainly disqualify an applicant.

38 In relation to the application of s 26 (1)(a), the power is to revoke or not to revoke if the licensee had been found guilty of a prescribed offence during the relevant period before the application for the licence was made. The reason for refusal in section 16(1)(a) relates to the fact an applicant has been found guilty of an offence before a licence is applied for. In my view this power to revoke cannot be exercised where there was no guilt of the relevant kind at the time the licence application was made. The powers to revoke that may be exercised in the present circumstance of a person being found guilty of a prescribed offence subsequent to the application and granting of a licence are found in 26(1)(c) or 26(1)(d) of the Act rather than in 26(1)(a).

39 I had not formed this view on the construction of s 26(1)(a) until after the hearing and so it was not raised with the parties to invite their views. If this view is incorrect, and this discretion can be exercised to revoke a security licence in Mr Achi’s circumstances, I have not been persuaded by the evidence that it should be.

40 In relation to Mr Klarica’s submission that Mr Achi was no longer a fit and proper person, the High Court has stated that:
The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’ Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (per Toohey and Gaudron JJ at par 63 of their decision); and that where a person must satisfy a legislative requirement of being ‘fit and proper’ in relation to a licence of some kind, the requirement takes its meaning ‘from the activities which the person is or will be authorized to engage in by virtue of the licence and the ends to be served by those activities……….depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question: (Australian Broadcasting Tribunal v Bond per Toohey and Gaudron JJ at par 36 of their decision).

41 According to the Court in its earlier decision of Hughes and Vale, fitness with respect to an office involves three things: honesty, knowledge and ability. It quoted Coke: ‘honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’. (Hughes and Vale at 156, Sakellis at 548).

42 Hughes and Vale suggests there is a strong connection between dishonesty and unfitness but does not preclude a person convicted of a crime of dishonesty from never again being a fit and proper person. Walters J in Sobey observes that a criminal record is germane and crucial in determining the question of a person’s fitness but does ‘not go so far to say that one criminal offence must necessarily deprive a person of that fitness…’. (at 75).

43 Although Mr Achi’s explanation about the circumstances of his firearms offence was uncorroborated before the Tribunal, I do not agree with Mr Klarica’s submissions that the explanation was unsatisfactory or that it could be inferred that the incident was not an isolated incident.

44 The evidence establishes that Mr Achi is generally a law-abiding man. His failure to meet his obligations that late January afternoon was a foolish error of judgment that could conceivably have led to dreadful consequences. Fortunately it did not. There was, however, no dishonesty involved in Mr Achi’s offence or behaviour. There has been no suggestion of any dishonesty on Mr Achi’s part. There was no suggestion or evidence that Mr Achi’s general character was in question. It was clear Mr Achi understood the seriousness of his breach and sincerely regretted it. Although explaining how he came to make such an error, he did not seek to excuse himself in any way.

45 In relation to Mr Klarica’s submissions about the inappropriateness of the actions of Mr Achi’s employer, PPS, and such being relevant to the issue of Mr Achi’s licencing, I do not consider there to be sufficient evidence to draw conclusions in this regard.

46 Mr Achi has no other offences recorded against him. No evidence was provided suggesting the existence of any complaint or problem with his work during the duration of his ten-year security industry employment.

47 Using the guidance provided in Bond’s case quoted above, Mr Achi’s activities if licenced would be restricted to security consulting and to security duties not requiring or involving the possession or use of a firearm. In my view, his experience and his character render him suitable for these tasks. Mr Achi’s behaviour in the circumstances leading to his firearm offence was improper conduct, but I agree that it was in the nature of an aberration and unlikely to occur again. This is not only because Mr Achi no longer has a firearm licence but also because I accept that neither he nor PPS will allow such or similar circumstances to be repeated.

48 Accordingly, I am not persuaded that Mr Achi is no longer fit and proper for the role of security officer or consultant. He can be held out to the public as a person who can be entrusted with the responsibilities and duties his licences authorise.

49 In relation to the public interest discretion, Mr Klarica quoted from a number of decisions including Comalco: ‘The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account and to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the scope and purpose of the legislation’ (per Wilcox, CJ, Keely & Moore JJ at 681).

50 The Tribunal’s Appeal Panel has considered the exercise of the public interest discretion in the security industry licencing matter of Commissioner of Police v Toleafoa ([1999] NSWADTAP 9. It stated (at p 25) that the public interest is: ‘. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual….’.

51 The interests of the public in the present circumstances consist mainly in the strict and fair control of security industry licencing and personnel and the protection of the safety of the public.

52 In relation to Mr Klarica’s submission that Mr Achi’s behaviour was a breach of the ‘standards expected’ by the community via the legislature, it is noted that the resultant penalty in the revocation of Mr Achi’s firearm licence significantly and appropriately restricts his potential roles within the security industry (conforming with Mr Klarica’s police officer comparator). I do not think Mr Achi’s breach undermines the standards or contributes to bringing the security industry into disrepute.

53 Mr Klarica’s submissions regarding the interests of the public seemed to forget the fact Mr Achi no longer has a firearm licence and that any work he did under a security licence simply could not involve the use or possession of a firearm. Whatever threat Mr Achi was submitted to pose to the safety of the public has been removed.

54 There is no evidence to suggest or reason to believe that the interests of the community and Mr Achi will be in conflict again. I am of the view Mr Achi’s serious failure to meet his firearm storage responsibilities was an exceptional one-off incident which cannot be repeated due to his losing his firearm licence.

55 Accordingly, I do not consider that it is not in the public interest for Mr Achi to continue to hold his security industry licences. As Mr Achi is no longer firearm licenced, his security licences restrict him to carrying out security activities that do not involve the possession or use of a firearm.

56 Mr Klarica submitted as relevant that a mandatory statutory refusal will operate at the time Mr Achi’s licences will be up for renewal and that he has qualifications in other fields upon which to rely to obtain alternative employment. In relation to the latter, Mr Achi’s evidence was that his firearm conviction disallows him from returning to work in the field of psychology. In relation to the former, Mr Klarica is correct as far as the law presently stands but this does not persuade me to alter the above findings.

Decision

57 I exercise the relevant discretions in Mr Achi’s favour and in accordance with s. 63 (3)(c) of the Act make the following order:
The Commissioner’s decision to revoke Mr Achi’s licences is set aside.