Constantin and Commissioner of Police (NSW)
[2017] AATA 404
•8 March 2017
Constantin and Commissioner of Police (NSW) [2017] AATA 404 (8 March 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4399
Re:Nicolas Constantin
APPLICANT
Commissioner of Police (NSW)And
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC
Date:8 March 2017
Place:Sydney
The Tribunal affirms the decision under review.
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The Hon. Dennis Cowdroy OAM QC
CATCHWORDS
PROFESSIONS AND TRADES – licencing – mutual recognition – refusal to grant security licence – disciplinary action – fit and proper person – decision affirmed
LEGISLATION
Mutual Recognition Act 1992 (Cth) ss 19, 20
Security Industry Act 1997 (NSW) ss 15, 16, 29
CASES
A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253
Constantin v Commissioner of Police NSW Police Force [2012] NSWADT 172
Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16
Jalal Dib and Commissioner of Police for NSW [2010] AATA 852
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Re Petroulias [2004] QCA 261
Special Protection Services (NSW) Pty Ltd v Commissioner of Police, NSW Police Force; Constantin v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112
Timothy Strik and Director-General, Department of Services, Technology and Administration [2011] AATA 177
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC
8 March 2017
By Application for Review of Decision filed on 22nd of August 2016, the applicant seeks review of a decision made by a delegate of the respondent on 26 July 2016. By such decision the respondent refused to grant a security licence under the Mutual Recognition Act 1992 (Cth) (“the MR Act”).
The Notification of Refusal records the receipt by the Security Licensing & Enforcement Directorate (SLED) of the applicant’s application that he be granted a Class 1AC NSW Security Licence under the MR Act. The Notification records that the applicant had written the word “False” to the following statement:
“No licences I hold or have previously held in any State had been cancelled or are currently suspended as a result of disciplinary action”.
The Notification contains the grounds of refusal which are stated as follows:
“I am satisfied that a previous security licence held by you in NSW has been revoked.
Section 19 (2) (e) of the MR Act provides that a person who lodges a written notice with a local registration authority of the second State for the equivalent occupation, must state that their registration in any State is not cancelled or currently suspended as a result of disciplinary action.
I am satisfied that the revocation of your NSW Security Licence prohibits you from being eligible for a licence under Mutual Recognition principles.
Accordingly, as a Delegate of the Commissioner. I have refused your application”.
The application for review contains one ground of challenge namely:
“The Applicant’s NSW Security Licence registration was not cancelled ‘as a result of disciplinary action’”.
Before this Tribunal, much evidence was led concerning other applications which have been made either by the applicant or by his wife or by a company, Special Protection Services (NSW) Pty Ltd, the sole director of which was the applicant’s wife. Such evidence is of historical and background relevance only and does not bear upon the only issue for determination, namely whether the respondent’s refusal to grant the licence was correctly founded upon the basis that the NSW security licence held by the applicant was cancelled as a result of “disciplinary action”. For completeness only, the Tribunal now refers to the other proceedings.
Prior Proceedings
By decision delivered on 14 October 2015, the New South Wales Civil and Administrative Tribunal (“NCAT”) affirmed a decision under review in each of two proceedings which found that the applicant (Nicolas Constantin) was not a fit and proper person to hold the class of licence for which application had been made under the Security Industry Act 1997 (NSW) as provided in section 15(1)(a), and (5) thereof: see Special Protection Services (NSW) Pty Ltd v Commissioner of Police, NSW Police Force; Constantin v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112 (“the NCAT decision”).
Application under the Weapons Act 1990 (Qld)
In late May 2011, the applicant travelled to Southport, Queensland for the purpose of applying for a Queensland firearms licence and a Queensland security firearms licence pursuant to the provisions of the Weapons Act 1990 (Qld). On 25 May 2011 the applicant (accompanied by his wife) attended at the Southport Police Station to make the application.
To establish entitlement to such licences, it was necessary that the applicant be a permanent resident of Queensland and provide proof of such residency. Both the applicant and his wife provided as their residential address, an address in far North Queensland. In answer to the question as to the length of such residency, each applicant wrote “0” years and “0” months.
The applicant also completed questions concerning his criminal history. In answer to the question: “Have you in Queensland or elsewhere ever been charged with an offence?”, he ticked the box indicating “No”. Further in answer to the question: “Have you ever been charged and/or convicted of… an offence involving the use or threatened use of violence?”, the applicant again ticked the “No” box.
The form also required an answer to the question: “Have you ever been charged and/or convicted of…an offence involving the use, carriage, discharge or possession of a weapon?”, the applicant ticked the box “No”.
At the end of the application form, the applicant (and his wife) each certified that all information provided in the application form was “true and correct in every detail”.
In fact the applicant, at that time, had a record of criminal convictions. In 1991 he was convicted of assault and sentenced to six months imprisonment. In the same year, he was convicted of malicious infliction of grievous bodily harm with intent, with a minimum term of three years and nine months imprisonment. In 1995, he was convicted of two counts of robbery being armed and sentenced to a minimum term of one year and five months imprisonment for each.
Applications under the Security Providers Act 1993 (Qld)
On 27 May 2011, both the applicant and his wife applied under the Security Providers Act 1993 (Qld) for an unrestricted security provider licence as a crowd controller, security officer (cash in transit) and security officer (unarmed). In respect to the answers provided by them in the application forms, each gave their residential addresses as being a Queensland address. Further, in response to the question: “Do you have any convictions greater than ten years old where the sentence imposed was 30 months imprisonment or greater?”, the applicant ticked the box indicating “No”.
Both the applicant and his wife were issued with licences under the Security Providers Act which require annual renewal.
Applicant’s application for a pistol licence
On 21 July 2011, the applicant applied to the Commissioner of Police, NSW (“the Commissioner) for a Category H pistol licence. Such application was refused on 29 November 2011. The applicant then applied to the Administrative Decisions Tribunal (NSW), (“ADT”) for review of such decision. On 23 August 2012, the ADT affirmed the decision to refuse the applicant’s application for a pistol licence: see Constantin v Commissioner of Police NSW Police Force [2012] NSWADT 172. The applicant then appealed to the ADT Appeal Panel which dismissed the appeal on 18 April 2013: see Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16.
It should be mentioned that simultaneously the applicant’s wife applied on 6 August 2012 under the Security Industry Act for a Class 1 Licence as an unarmed guard and crowd controller and such application was granted. However since the application now before this Tribunal only concerns the applicant, no further reference need be made to any applications of his wife.
Master Security Licence application
On 14 February 2014 Special Protection Services (NSW) Pty Ltd (“the Company”), being an incorporated company which has as its director the applicant’s wife, applied to the Commissioner for a Class MB Corporation Master Security Licence under the Security Industry Act. Such application was refused on the ground that a close associate of the company namely, the applicant’s wife had deliberately provided misleading information when applying for a firearms licence to the Queensland government in her application. In May 2011, an internal review was sought by the company. However a different delegate of the Commissioner also refused such licence on the same grounds. On 16 July 2014, the company applied to NCAT pursuant to section 29(1) of the Security Industry Act to review the Commissioner’s decision.
Applicant’s 2014 application for Security Licence
The applicant’s Class 1AC Security Licence held under the Security Industry Act was revoked on 12 August 2012, and on 24 February 2014 the applicant made a new application for such a licence. On 8 April 2014, the application was refused pursuant to section 15 (1)(a) and (3) and section 16(2) of the Security Industry Act. The refusal was made on the basis that the applicant was not a fit and proper person to hold such licence and that it would be contrary to the public interest to grant such licence. Further the Commissioner’s delegate was satisfied that the applicant had a conviction that was not capable of becoming spent.
The applicant sought review, but a delegate of the Commissioner decided that the decision to refuse the Class 1AC security licence should be upheld. Accordingly on 16 July 2014 the applicant applied to NCAT pursuant to section 29(1) of the Security Industry Act for review by the Tribunal.
Decision of NCAT
NCAT refused the application, finding it could not be satisfied that the applicant (and his wife) were not fit and proper persons to hold such a licence. In reaching this conclusion, the Tribunal referred in detail to the answers provided by the applicant (and his wife) when making applications for licences pursuant to the Queensland legislation. NCAT found that both the applicant and his wife deliberately attempted to mislead the Queensland police by providing the residential address so given. With respect to the applicant, the NCAT also concluded that the applicant provided false information concerning his criminal convictions on his Queensland security licence application form, and that the applicant’s claim that he was told by a woman at the Southport Police Station to put “0” as his length of residence at the Queensland address, was an invention.
Applicant’s submissions to this Tribunal
The applicant submits, firstly that his Security Licence issued in New South Wales was withdrawn upon the basis that he had misled the Queensland authorities: however his Security Licence issued under the Queensland legislation was approved and renewed annually on four occasions in that State.
Secondly, the applicant claims he did not mislead the Queensland authorities in respect of his address, because at the date of the application he did not hold a Queensland licence and he listed the length of time in Queensland as “0” in respect of the months and years.
Thirdly, the applicant submits that he accepts his error in failing to reveal his convictions in his application form to the Queensland authorities and asserts that he did so upon “the incorrect belief that his almost 20 (twenty) year conviction free period acted to cause his past matters to be ‘spent’”. The applicant points to the fact that the Queensland authorities approved and issued him with a security licence which has (as stated above) been renewed on four occasions.
References have been provided in writing to the Tribunal in support of the applicant form the following individuals: Des Sengunlu, Risk Manager, Department of Defence; Douglas Grand, Chief Executive Officer, King’s Cross Licensing Accord Association Incorporated; Gary Koschel, Justice of the Peace and former Inspector of Police, King’s Cross.
The respondent has provided the Tribunal with written submissions and oral submissions and has provided various documents, including copies of the application made to the Queensland authorities by the applicant which contain the information concerning his residency and also the applicant’s answers to the questions relating to prior convictions.
Statutory provisions
Section 19 of the MR Act relevantly provides:
(1)A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
(2) The notice must:
…
(e) state that the person’s registration in any State is not cancelled or currently suspended as a result of disciplinary action…
Section 20 of the MR act relevantly provides:
(1)A person who lodged a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.
Accordingly it should be observed that registration is achieved on the basis that the applicant holds an existing licence: i.e. the applicant must have an existing entitlement to a licence in order for s 20(1) to operate.
The Security Industry Act makes provision, in Division 3 thereof for the making of applications for various classes of licences. Significantly, section 15(1) thereof relevantly provides:
(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
is not a fit and proper person to hold the class of licence sought by the applicant…
The section is mandatory and provides, in effect, that if the Commissioner is satisfied that the applicant is not a fit and proper person to hold the licence, the Commissioner must refuse the application.
Commissioner’s submissions
The Commissioner submits:
(a)that the applicant’s notice fails to satisfy the requirements of section 19(2)(e) because the statement that “No licences I hold or have previously held in any State have been cancelled or are currently suspended as a result of disciplinary action” is false. As a result, since the Commissioner has no power other than under section 20(2) of the MR Act to register a person as a licence holder, there is no power to effect registration in New South Wales;
(b)that an entitlement to registration under section 20(1) of the MR act is conditional upon the relevant notice satisfying the conditions under section 19(2);
(c)that the applicant's MR notice does not comply with section 19(2)(e) because the applicant cannot make the statement required by that subsection.
Consideration
In making the application under the MR Act, it is essential that the applicant state that his or her registration in any state is not cancelled or suspended as a result of disciplinary action. This mandatory requirement was considered in Jalal Dib and Commissioner of Police for NSW [2010] AATA 852, where in the Tribunal found that the written notice under section 19 “must” satisfy the requirements of section 19.
This raises for consideration the meaning of the term “disciplinary action”. Such term has been defined in respect of disciplinary proceedings taken against officers of the Supreme Court: see for example; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 at [12]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 412; 440 especially at D –G, and 442 at A-G: 444 at B-F.
Courts have recognised that the regulation of members of a profession or occupation is one which is vital to the public interest and in this respect courts exercise disciplinary functions. The Macquarie Dictionary defines “discipline” to include:
“subjection to rules of conduct of behaviour; a state of order maintained by training and control: good discipline in an army.”
In Timothy Strik and Director-General, Department of Services, Technology and Administration [2011] AATA 177, the Tribunal, relying upon the decision of the Queensland Court of Appeal in Re Petroulias [2005] 1 Qd R 643; (2004) 208 ALR 552; [2004] QCA 261 found that an application by Mr Strik to be registered as electrician in the Australian Capital Territory failed to satisfy the requirements of section 19(2)(f) because he was personally prohibited from carrying on the occupation of an electrician in New South Wales. The Tribunal found that if the notice under section 19 did not contain the requisite statements or information “the entitlement to registration under section 20 is not enlivened” [see para 23]. In that matter, submissions were also made concerning the misleading statements made by Mr Strik in his application. However it was not necessary to consider such matter in view of the fact that the fundamental requirement, namely compliance with section 19 of the MR Act was not satisfied.
Findings
It follows from the above authorities that where a licence is cancelled because the regulatory authority determines that conduct justifies such cancellation, the licence cancellation results from “disciplinary action”.
In the present circumstances the applicant’s Class 1AC Security Licence held under the Security Industry Act was revoked on 10 August 2012 by the issue of a Notification of Revocation of Licence. It recorded that the applicant was “not a fit and proper person to hold a security licence” because the delegate was satisfied that the applicant, in his application for a firearms licence made on the 25 May 2011:
·represented to the Queensland government that he was a resident of Queensland, knowing that he was not;
·represented that he no longer resided at 5 St James Place, Appin when he continued to reside there;
·represented that he had not been charged with or convicted of an offence when he had been charged with and convicted of serious offences in NSW;
·certified that the answers he provided in the application were true and correct in every detail when he knew that the answers were not true and not correct.
Whether the four reasons provided were justified is irrelevant to the question whether the applicant was able to comply with the section 19 notice, and in fact did so. The fact is that the licence relied upon to justify registration under the MR Act had been cancelled. The merits of the reasons for the cancellation is an entirely separate issue.
The applicant might feel aggrieved by the finding concerning his stated address and the correctness of the answer he provided in relation to the question asked in the application form. His submission for failing to record his convictions could also be arguable, namely that he had a genuine belief that because of a time lapse his convictions were “spent”. However these matters are not relevant for the purpose of the consideration of the operation of the MR Act. The provisions of section 19(2) of the MR Act are not concerned with conduct, but only whether the requirements of that subsection are satisfied. In this case the applicant could not satisfy that subsection.
CONCLUSION
It follows that the Tribunal upholds the Commissioners second and third contentions. It is unnecessary to consider the first contention raised by the Commissioner.
For these reasons the Tribunal finds that the correct and preferable decision is that made by NCAT. It follows that the decision under review is affirmed.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC
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Associate
Dated: 8 March 2017
Date(s) of hearing: 15 December 2016 Applicant’s Representative: Butler Hardy Solicitors for the Respondent: NSW Crown Solicitor's Office
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