Clugston v Commissioner of Police
[1999] NSWADT 112
•19 November 1999
CITATION: Clugston -v- Commissioner of Police [1999] NSWADT 112 DIVISION: General APPLICANT: Bruce Clugston RESPONDENT: Commissioner of Police FILE NUMBER: 993084 HEARING DATES: 08/12/1999 SUBMISSIONS CLOSED: 09/15/1999 DATE OF DECISION: 19 November 1999 BEFORE:
P M Skinner - Judicial MemberPRIMARY LEGISLATION: Security Industry Act 1997 APPLICATION: Review of a decision to refuse to issue a security industry licence - MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
K Smark of counsel instructed by Macree Scully Karras, Solicitors
G Doherty, solicitor, NSW Police ServiceORDERS: 1. Set aside the decisions made by the delegate of the Commissioner of Police refusing the applicant's application for a Class 1A, a Class 1B and a Class 1C licence under the Security Industry Act 1997.
2. Substitute the Tribunal's decision that a Class 1A, Class 1B and Class 1C licence and be granted to the applicant effective from the date of refusal.
3. No order as to costs is made.
1 This is an application for review of a decision by the respondent refusing the applicant a licence under the Security Industry Act 1997 (‘the Act’).
Security Industry Licensing
2 The Act provides for the grant by the respondent of three classes of licence to persons working in the security industry: master licences (section 10), class 1 licences (section 11) and class 2 licences (section 12). The class 1 and class 2 licences are divided further into subclasses of licence.
3 Section 13 of the Act sets out those persons who may hold a class 1 or class 2 licence.
4 Section 14 of the Act sets out the procedure for an application.
Application for a licence
5 On 28 September 1998 the applicant applied for a class 1 licence covering all three possible subclasses under s 11 of the Act – class 1A, class 1B and class 1C.
6 The application form disclosed that the applicant was employed by Bankstown District Sports Club, sets out the Club’s licence number under the Act. There is no issue as to the applicant being eligible under section 13 of the Act to apply for the class 1 licences, nor as to his compliance with the procedure for an application as set out in section 14 of the Act.
Refusal by the Commissioner
7 The respondent refused the applicant’s application and he was served with a notification of refusal dated 19 January 1999.
8 That notification formally stated that the respondent, through his duly authorised delegate, was of the opinion that the applicant was ‘not suitable to hold a licence because you have been involved in corrupt conduct’ and referred to s 16(3) of the Act.
9 Section 16(3) is in the following terms:
‘16 Restrictions on granting licence - criminal and other related history
(3) The Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct.
Internal review
10 Through his solicitors the applicant requested a review by the Police Service of the refusal of his application. Such an internal review was held and the applicant’s solicitors were notified by letter dated 30 April 1999 that the original decision of the respondent’s delegate had been affirmed. The same reasons were given as in the first notification of refusal dated 19 January 1999.Application to this Tribunal
11 On 4 May 1999 the applicant applied to this Tribunal pursuant to s 29 of the Act for a review of the respondent’s decision to refuse him a licence under the Act.
12 The applicant was duly notified. Pursuant to s 49 of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’) a ‘Statement of Reasons’ prepared by the respondent, through his delegate Elizabeth Halloran, has been filed with the Tribunal and that document sets out the findings on material questions of fact, the understanding of the applicable law and the reasoning process relied upon by the decision maker in refusing the applicant a licence.
13 The Statement of Reasons reveals that as well as upon s 16(3) of the Act the respondent also relied upon s 15(1) of the Act and a finding upon the information available that the applicant was not a fit and proper person to hold a class 1 licence under the Act.
The hearing in this Tribunal
14 The application came on for hearing before me on 12 August 1999. At the commencement of the hearing I was advised by the legal representatives of the parties that the respondent was no longer relying upon s 15(1) of the Act and that all I had to determine was the application of s 16(3) of the Act to the material before me.
15 Further, I was advised that the respondent conceded that but for the actions of the applicant which were the subject of a finding of corruption by the Independent Commission Against Corruption (‘the I.C.A.C) in 1991, referred to below, he was a fit and proper person to hold a class 1 licence under the Act.
16 Prior to the taking of evidence, and at the conclusion of the hearing, submissions were put to me by both Mr Smark for the applicant and Mr Doherty for the respondent as to the way in which I should approach s 16(3) of the Act, as the decision maker under the Act.
The operation of s 16(3) of the Act
17 In my opinion, in its own terms s 16(3) of the Act requires the Commissioner or whoever is charged with his function, in coming to a decision on whether to grant an application for a licence, to proceed as follows:
18 The decision-making process under s 16(1) and indeed s 16(4) are however quite different, looking at the language of each subsection within its own terms. Under s 16(1), once the Commissioner is satisfied of any fact coming within paragraphs 16(1)(a), (b) or (c), he or she must refuse the licence. There is no reference to any opinion having to be formed
(a) a decision must be made as to whether the applicant has been involved in corrupt conduct; and
(b) if such involvement is found, an opinion must then be formed as to whether because of that the applicant is not suitable to hold a licence. If such an opinion adverse to the applicant is formed, the application (of course) must then be refused.
19 Section 16(4) contains yet different wording again. It, like s 16(3) but unlike s 16(1) refers to the Commissioner forming an opinion which then excites a mandatory refusal, but that opinion is an opinion as to a matter provable as a fact not as to a quality of the applicant – his suitability – like in s 16(3). Section 16(4) really operates, despite its different wording, in the same way as a 16(1).
20 Nonetheless I can see no reason why s 16(3) should be interpreted to operate in any way other than as its terms clearly express, despite coming within a section which contains other subsections prescribing different decision-making processes - of a mandatory nature. Each of the operative subsections in s 16 of the Act deals with a different topic, and can be interpreted meaningfully within its own terms.
21 In my opinion the legislature has given the Commissioner a discretion under s 16(3) of the Act whether or not to refuse a licence even if it is established as a fact that the applicant ‘has been involved in corrupt conduct’.
The facts in this case
22 Obviously the first of the steps in the two step process under s 16(3) that I outline in paragraph 17 would usually involve something more than just the finding of a fact. An opinion as to what is corrupt conduct must necessarily be formed by the decision maker.
23 However in this case, there is no difficulty in quickly coming to the decision that the applicant has been involved in corrupt conduct. That was so found by the I.C.A.C. within the meaning of the Independent Commission Against Corruption Act 1988 (‘the I.C.A.C. Act’) in 1991, in the course of an inquiry conducted by Assistant Commissioner Roden. I see no reason for present purposes, although the question may require deeper analysis in a different case, to consider whether the definition of ‘corrupt conduct’ under the I.C.A.C. Act is appropriate to apply under s 16(3), nor to go behind the 1991 I.C.A.C. finding.
24 As regards the second stage of my decision-making process however, the applicant put evidence before me as to:
(a) the circumstances of his engaging in the conduct found by the I.C.A.C to be corrupt;
25 This evidence consisted of written material dating from the time of the I.C.A.C. investigation in 1991 being a directed report made by the applicant to his superior dated 15 July 1991, a further written statement of facts by him dated 12 August 1999, written references from 1994 and (at my request and filed subsequently) contemporary written references, and sworn testimony from the applicant in the hearing before me. None of this material was seriously challenged by the respondent.
(b) his resigning from the police force in 1992;
(c) his employment with Bankstown Leagues Club since; and
(d) his good character.
Finding under s 16(3)
26 Notwithstanding the finding of corrupt conduct made against the applicant by the I.C.A.C. in 1991, upon due consideration of all the material before me including:
I cannot form the opinion that the applicant is not suitable to hold a class 1 licence under the Act.
(a) the finding by Assistant Commissioner Roden himself as to the low level of involvement by the applicant in corrupt conduct;
(b) the explanations as to same given by the applicant in 1991 and to me in 1999; and
(c) the solid references given as to the applicant’s good character including from the secretary/manager of his employer, who is well aware of the I.C.A.C. matters,
27 That being so, s 16(3) of the Act does not compel me to refuse to grant the applicant’s application for a licence, and given the concession of the respondent referred to in paragraph 15 above, I find that the applicant is a fit and proper person to hold a licence.
28 Further, I do not consider that the grant of the licence would be contrary to the public interest.
Orders
29 Accordingly, the Tribunal's determination pursuant to s.63 of the Tribunal Act is to:
and in relation to s. 88 of the Tribunal Act:
1. Set aside the decisions made by the delegate of the Commissioner of Police refusing the applicant's application for a Class 1A, a Class 1B and a Class 1C licence under the Security Industry Act 1997; and 2. Substitute the Tribunal's decision that a Class 1A, Class 1B and Class 1 C licence be granted to the applicant effective from the date of refusal;
3. No order as to costs is made.
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