Eliot v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 145

CITATION:	Eliot -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 145
DIVISION:	General Division
PARTIES:	APPLICANT Carl Duncan Eliot RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023120
HEARING DATES:	25/07/02
SUBMISSIONS CLOSED:	07/25/2002
DATE OF DECISION:	08/19/2002
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 Security Industry Act 1997
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	The decision of the Commissioner of Police, NSW Police Service to refuse the application by Carl Duncan Eliot for the grant of a Master security licence under the Security Industry Act 1997 is affirmed.

Background

1 These proceedings relate to a decision dated 8 April 2002 made by Yves Seeruthun, a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner"). The Commissioner's decision was to refuse an application by Mr. Carl Duncan Eliot for the grant of a Master security licence under the Security Industry Act 1997 ("the Act").

2 Mr Eliot lodged his application for the Master licence on 8 March 2002. He clearly indicated on his application form that he had been declared bankrupt within the last five years. He also stated that the period of his bankruptcy ended in April 2002. The bankruptcy was in fact discharged on 16 April 2002.

3 The Commissioner's delegate relied on the information relating to the bankruptcy that was provided by Mr Eliot as grounds for refusing his application for the Master licence. In the reasons for the refusal the Commissioner’s delegate stated:

“I AM OF THE OPINION THAT YOU HAVE BEEN DECLARED BANKRUPT.

Section 26(1)(a) of the Security Industry Act 1997 provides that the Commissioner may revoke a licence for any reason for which the licensee would be required to be refused a licence of that class.

The Commissioner must refuse to grant an application for a master licence if the Commissioner is of the opinion that the applicant (or, if the applicant is a corporation, any person who is a director or who is concerned in the management of the corporation) has, within the period of 5 years before the application was made, been declared bankrupt.

The Commissioner has delegated his functions under the Security Industry Act 1997 to me. As a result of the operation of the legislative requirement as described above, I have refused to grant your application.”

4 On 19 April 2002 Mr Eliot lodged an application for an internal review of the Commissioner's decision with the Manager, Security Industry Registry. In his application for review, Mr Eliot stated:
“3 years ago I was engaged to be married with 3 children and in debt. My then de facto walked out on me and left me with my children and I was unemployed. I tried to make every effort to make my repayments and feed my children but with very little income. I was in deep financial trouble which I did not know how to rectify, so I took the only option I knew which was bankruptcy.

Since then I have made every effort not to fall into that trap again. And have learnt a very important lesson the hard way. Which won’t be made again.

Since my bankruptcy, I have owned a small business called Carsanda Alround Services which I ran with no problems.

I have enclosed a few statements from people that knew me at the above time in hoping that it will help my review”.

5 The Commissioner authorised Ms Jennifer Dolbel to undertake the internal review. Her decision is dated 17 May 2002. In her written reasons for decision, Ms Dolbel stated:
“D. REASONING PROCESS:

The Security Industry Act, 1997 established a scheme for licensing people to carry on security activities. Within the Act, there are clearly defined situations where the Commissioner must refuse to grant an application for a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have taken into consideration the issues raised by you.

After fully and independently considering all relevant matter, I make the following fresh determination.

The holder of a Master licence under the Security Industry Act 1997 authorises the licensee to conduct a business of providing properly licensed persons to carry on security activities.

When considering an individual's right to be granted a licence under the Security Industry Act, 1997, I formed the view that any decision should be made on the basis that the legislation has quite clearly been enacted to exclude persons who have been declared bankrupt within a period of 5 years before the application was made, from the grant of a Master Licence.

I have taken into account information obtained concerning your bankruptcy and note that by your own petition you were declared bankrupt on and from 15 April 1999.

This bankruptcy falls clearly within the provisions of Section 16(4), of the Security Industry Act 1997. In this regard no discretion exists for the grant of a licence in your particular circumstances and accordingly your application must be refused.

I have taken into consideration the aspects raised in your letter and understand your domestic and financial circumstances at the time of bankruptcy. I have read the letters from Mr Rex Tracey, M. J. Martin, Mrs Joan Eliot and Mr Cohan who verify your situation and attest to your good character.

Not withstanding all of the aspects mentioned, it should be clearly understood that having been satisfied that you were declared bankrupt within the period specified under the Act, I have no alternative other than to refuse your application on mandatory grounds.

E. DECISION:

I have found that you were declared bankrupt within 5 years before making an application for a Master Licence and that such bankruptcy falls well within the definition of that prescribed under the Act. In these circumstances, your application for a licence must be refused under the mandatory grounds as specified.

In this regard, I have no discretion whatsoever to vary the decision previously made and therefore affirm that the decision of the Commissioner to refuse your application for a Master licence, is to stand.”

Reviewable decision

6 The reviewable decision is that of the Commissioner to refuse Mr Eliot’s Master licence application.

7 On 4 June 2002 Mr Eliot applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal’s President on 2 July 2002 at which time he made directions for the filing of documents and the matter was listed for hearing on 25 July 2002.

Nature of proceedings

8 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

9 These are not adversarial proceedings in which Mr Eliot carries an onus of proof. Mr Eliot, by making the application, triggers a process of merits review by the Tribunal. Mr Eliot does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr Eliot and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

10 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and “there is no presumption that the decision of the [Commissioner] is correct” (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

11 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Applicable Legislation

12 Section 10 of the Act provides:

“10 Master licences
(1) A master licence authorises the licensee to employ or provide persons to carry on security activities.

(2) The authority conferred by a master licence allows only the employment or provision of persons who are the holders of a licence.

(3) A master licence does not authorise the licensee to enter into any arrangement, by contract, franchise or otherwise, with another person for the purpose of employing or providing persons to carry on security activities unless the other person is the holder of a master licence.”

13 Section 16(4) of the Act provides:
“16 Restrictions on granting licence—criminal and other related history
(4) The Commissioner must refuse to grant an application for a master licence if the Commissioner is of the opinion that the applicant (or, if the applicant is a corporation, any person who is a director or who is concerned in the management of the corporation) has, within the period of 5 years before the application was made, been declared bankrupt.”
14 The issue for this Tribunal is: what is the correct and preferable decision? The decision to be made is whether Mr Eliot has, within the period of 5 years before the application was made, been declared bankrupt. If that is the case, does the Tribunal have any discretion to grant him the Master licence which he sought not withstanding that bankruptcy?

Mr Eliot's case

15 Mr Eliot presented evidence on his own behalf. His case is essentially based on the argument that the Commissioner's decision is unfair. He stated that when he made inquiries of the registry in relation to obtaining the Master licence, he was not advised that his bankruptcy would be an impediment to obtaining the Master licence. He was sent the application form, and was told that he needed to obtain insurance, to join an industry association, and to register a business name.

16 Mr Eliot stated that he acted on the advice given by the registry. As a consequence he has incurred considerable expenses. These expenses included paying over $1000 in relation to insurance, costs associated with registering the business name, and industry association fees. These expenses are not recoverable. He also purchased a guard dog and paid for the training of the dog at a cost of over $900. He stated that he would not have incurred these expenses if the registry officer to whom he had spoken had advised him of the implications of his bankruptcy for his application. He also stated that the application form provided no indication that his bankruptcy would be a bar to him obtaining the Master licence. He alleged that this was unfair.

17 Several written testimonials were submitted in support of Mr Eliot's application. These documents provided support for Mr Eliot and indicated that he is a person of good character. He also submitted documents which support his claim that he has been promised work which he will be able to take up if he is granted the licence.

The Commissioner's case

18 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file.

19 The Commissioner’s case is essentially that outlined in the reasons provided following the internal review. There is no suggestion that Mr Eliot is not a person of good character or that there is any public interest issue to be considered. There is no dispute that Mr Eliot has been declared bankrupt within the period of five years before his application was made. As a consequence, the Commissioner has no discretion to grant his licence application because of the provisions in section 16(4) of the Act.

Decision and Reasons

20 On the evidence before me I am satisfied that Mr Eliot has been declared bankrupt within the period of five years before his application was made. It follows that the provisions of section 16(4) of the Act must be taken into consideration.

21 I agree with the argument presented by Ms. Paterson for the Commissioner. In my view the Commissioner has no discretion to grant Mr Eliot's Master licence application because of his bankruptcy. As the Tribunal stands in the shoes of the Commissioner, it follows that the Tribunal similarly has no discretion to grant Mr Eliot's Master licence application. Therefore, this application must fail and the Commissioner’s decision must be affirmed.

22 It is regrettable that Mr Eliot has incurred expenses in anticipation of being granted the licence. However, I do not accept that there was a responsibility on the part of the Registry to explain the consequences of Mr Eliot's bankruptcy. Notwithstanding that view, I suggest that consideration be given to the feasibility of providing future applicants with guidelines which would alert them to the various factors which could adversely affect their application.

Orders

The decision of the Commissioner of Police, NSW Police Service to refuse the application by Carl Duncan Eliot for the grant of a Master security licence under the Security Industry Act 1997 is affirmed.