Agboma v Commissioner of Police, New South Wales Police

[2005] NSWADT 181

CITATION:	Agboma v Commissioner of Police, New South Wales Police [2005] NSWADT 181
DIVISION:	General Division
PARTIES:	APPLICANT Jude Agboma RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	043217
HEARING DATES:	12/07/2005
SUBMISSIONS CLOSED:	07/12/2005
DATE OF DECISION:	08/05/2005
BEFORE:	Montgomery S - 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:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Farquharson -v- Director General, Department of Transport [1999] NSWADT 53
REPRESENTATION:	APPLICANT I Asuzu, barrister RESPONDENT A Venditti, advocate
ORDERS:	The Commissioner's decision to revoke Mr Agboma’s Class 1 ABC security licence is affirmed.

1 Mr Agboma has held a Class 1 ABC security licence since April 2001. This licence was due to expire on 07 June 2006. He has worked with different companies in the security industry in different locations and at different sites including Government buildings, shopping centres and hotels.

2 On 1 October 2003, Mr Agboma was charged with "Possess Prohibited Import -Narcotic trafficable but less than commercial quantity not cannabis". The matter has been set down for trial in the District Court on 12 September 2005.

3 In October 2003, the decision was made to suspend Mr Agboma’s security licence, as it was not considered to be in the public interest for him to continue to hold the licence whilst court proceedings are pending. In May 2004, the decision was made to revoke Mr Agboma’s security licence for the same reason. Mr Agboma requested an internal review of the Commissioner's decision and on review the decision was taken that the revocation is to stand.

4 Mr Agboma has applied to this Tribunal for an external review of the Commissioner's decision. The essence of his case is that he has not been convicted of any offence and therefore is innocent until proven guilty.

5 He maintains that his involvement with the alleged offence was in being at the wrong place at the wrong time. He says he never had any plan to traffic drugs into this country. He was only helping out a friend. He is sure that he is not going to be found guilty at the end of the case. He therefore argues that he should get his licence back, in order that he can go back to work and be able to look after his family. His evidence is that he and his wife are in receipt of social security benefits with a combined income of around $600 per fortnight. He also provided evidence of significant debts that he needs to service. These relate to contracts entered while he was working as a security guard before his licence was revoked.

6 Mr Agboma has also provided a number of personal references that attest to his good character. None of these testimonials make any reference to the author’s knowledge of the fact that Mr. Agboma is facing charges. They do not indicate whether the authors were aware of the circumstances that lead to those charges. Nor do they make any direct reference to these proceedings.

7 The Commissioner contends that in light of the seriousness of the charges that Mr. Agboma is facing it is not in the public interest that he continues to work in the security industry. Section 26(1)(d) of the Security Industry Act 1997 (“the Act”) provides that a licence may be revoked for any other reason prescribed by the regulations.

8 Clause 18 of the Security Industry Regulation 1998 provides:

“18 Revocation of licence - additional reasons

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.”

9 The Commissioner contends that the legislation has quite clearly been enacted to exclude persons from the industry where it is not considered within the public interest for them to hold a licence. In this regard criminal record and other checks are undertaken on a regular basis after licences are issued to maintain strict licensing requirements by identifying persons who fail to meet the criteria and thereby revoking such licences.

10 The Commissioner relies on criminal intelligence reports and other criminal information held in relation to Mr. Agboma. 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 Mr Agboma’s absence so that I could consider this material.

Findings

11 The Act established a scheme for licensing people to carry on security activities. It is intended that the community should be able to have confidence in a professional security industry. In Mr Agboma’s case the licence authorised him to perform a number of security activities including the guarding and protection of persons and property, static and mobile patrols, alarm response and security monitoring station activities, security screening at airports, government buildings, public transport etc., the provision of close personal protection and crowd control activities.

12 The authority conferred upon the holder of a security licence is granted with the clear expectation that the licensee utilizes that authority for the good order of society and for the well being of its members or 'in the public interest'. The need for Mr Agboma to hold a security licence is subordinate to the need to ensure public safety.

13 I have taken into account the fact that at present Mr Agboma have been charged with, in my opinion, a very serious offence and this charge is still to be determined by the Court. I have also taken into account and noted details of the alleged offence. And the material on which the Commissioner relies. I have weighed these against the arguments and material presented on Mr Agboma’s behalf.

14 I find that it would be contrary to the public interest for Mr Agboma to continue to hold a security licence whilst this outstanding charge is still to be determined. It is my opinion that Mr Agboma cannot be confidently held out to the public to utilize that authority for the good order of society and well being of its members in a position where he is entrusted to patrol, guard, watch or protect the public.

15 I am not satisfied that it would be in the interest of the public for Mr Agboma to retain his security licence and therefore affirm the decision of the delegate of the Commissioner to revoke that licence.

16 This view is consistent with that taken by the Tribunal’s President in Farquharson -v- Director General, Department of Transport [1999] NSWADT 53. In the present instance a charge related to an offence of the utmost gravity has been laid. Mr Agboma’s ability to earn income from his work as a security guard has been diminished by the revocation of his licence, but not extinguished. He has in the past worked in a range of positions as is evidenced from his references he has provided. While I appreciate that he has had difficulty in finding work, his history suggests that he has skills and experience to assist him in finding other sources of income. In my view, in the circumstances of this matter, the balance of the public interest considerations clearly favours the view that Mr Agboma should not work as a security guard. It follows that the Commissioner has made the correct and preferable decision.

Order

The Commissioner's decision to revoke Mr Agboma’s Class 1 ABC security licence is affirmed.