Habak v Commissioner of Police, NSW Police

[2006] NSWADT 213

CITATION:	Habak v Commissioner of Police, NSW Police [2006] NSWADT 213
DIVISION:	General Division
PARTIES:	APPLICANT Joseph Elias Habak RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063035
HEARING DATES:	27/04/06
SUBMISSIONS CLOSED:	04/27/2006
DATE OF DECISION:	07/20/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Security Industry Regulation 1998
REPRESENTATION:	APPLICANT T Shulze, counsel RESPONDENT R Burdick, solicitor
ORDERS:	Within 14 days of the date of this decision, the Commissioner is to advise the Tribunal whether it wishes to:; (a) rely solely on material that was made available to Mr Habak; or; (b) ask that the decision be remitted for further consideration under s 65 of the ADT Act; or; (c) request that the hearing be re-convened to make further submissions.

REASONS FOR DECISION

Introduction

1 Mr Habak is employed by the Attorney General’s Department as a Sheriff’s Officer. His security licence was revoked because the Commissioner of Police (the Commissioner) considered that he was not a fit and proper person to hold a security licence and it was not in the public interest for him to do so. He does not need a security licence for his position as a Sheriff’s Officer but he says he works part time on the weekends as a security guard. The event that led to the revocation of Mr Habak’s licence was that he entered the apartment of a woman he had recently met and left a bunch of flowers. When the woman arrived home, she assumed that Mr Habak had broken into her apartment because she always locks the door. Mr Habak says that he put his hand on the door handle as he was bending down to leave the flowers outside the door, and found the door unlocked. He then says he went inside and, finding no-one at home, left the flowers in a vase on the floor.

2 Mr Habak was convicted in the Local Court on 22 November 2005 of the offence of “Enter Enclosed Land Not Prescribed Premises without Lawful Excuse.” He lodged an appeal to the District Court. The District Court found Mr Habak guilty but did not record a conviction, and placed him on a bond to be of good behaviour for 12 months. As well as relying on the circumstances of that incident, the Commissioner relied on intelligence material in relation to Mr Habak, to support the decision to revoke his licence. That information was given to the Tribunal, but not to Mr Habak.

Preliminary issue

3 Before determining whether or not the Commissioner’s decision to revoke Mr Habak’s licence was the “correct and preferable” decision, a preliminary issue arises. That issue is whether the Commissioner may revoke (as distinct from refuse to grant) Mr Habak’s licence on the basis of information which includes intelligence material which was not disclosed to him. The Commissioner relied on s 15(7) of the Security Industry Act 1997 (Security Industry Act) in denying Mr Habak access to criminal intelligence information concerning him. In order to put this issue in context, I will briefly outline the statutory scheme applicable to the revocation of security industry licences.

Statutory scheme

4 The Security Industry Act regulates security activities by requiring anyone undertaking such activities to be licensed: Security Industry Act, s 7. The Commissioner issued Mr Habak with a Class 1 licence on 18 November 2004. That licence authorised him to perform activities including guarding and protecting persons and property, acting as a body-guard and performing crowd control and bouncer activities. The licence was due to expire on 13 January 2010.

5 Section 26(1) of the Security Industry Act gives the Commissioner discretionary power to revoke a security licence in certain circumstances. The two circumstances on which the Commissioner relied in this case were that Mr Habak was no longer a fit and proper person to hold a licence and that the Commissioner considered that it was not in the public interest for Mr Habak to hold a licence. The relevant provisions are as follows:

(1) A licence may be revoked:

. . .

(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.

6 Clause 18 of the Security Industry Regulation 1998 ( the Regulation ) gives the Commissioner a discretion to revoke a licence 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.”

7 There are also mandatory grounds for the revocation of a licence. The Security Industry Act has been amended to ensure that the grounds for mandatory refusal of an application also apply to the revocation of a licence. Section 26(1A) states that:

The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.
8 The grounds for mandatory refusal include where the applicant has been convicted in the preceding 10 years or been found guilty (but with no conviction recorded) in the previous 5 years, of a prescribed offence, or has been removed or dismissed from a Police Service within the preceding 10 years: Security Industry Act, s 16(1). The Commissioner conceded that this is not a case where he must revoke Mr Habak’s licence pursuant to s 26(1A) because he would be required by the Act to refuse any application for a new licence. In other words, this is not a case of mandatory revocation of a licence and s 26(1A) does not apply. Nevertheless, the Commissioner relied on s 15(6) and (7) which relate to restrictions on granting a licence, not to the revocation of a licence. Those provisions allow the Commissioner to have regard to certain undisclosed criminal intelligence material in deciding whether to revoke a person’s licence.

9 I set out the whole of s 15 below, to give context to those provisions.

15 Restrictions on granting licence—general suitability criteria

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) is not a fit and proper person to hold the class of licence sought by the applicant, or

(b) is not of or above the age of 18, or

(c) does not hold the qualifications and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or

(d) is not competent to carry on the security activity to which the proposed licence relates, or

(e) is not an Australian citizen or a permanent Australian resident.

(2) The Commissioner must refuse to grant an application for a licence to carry on a security activity that involves the possession of a firearm if the applicant is not authorised by a licence or permit under the Firearms Act 1996 to possess or use the firearm.

(3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.

(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence.

(5) A reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant.

(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:

(a) is relevant to the activities carried out under the class of licence sought by the applicant, or

(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or

(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.

(7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6). (Emphasis added.)

Reasoning and conclusion

10 The words underlined make it clear that s 15 in general, and s 15(7) in particular, only relate to the granting of a licence. The word “revocation” does not appear. Consequently, the Commissioner was not entitled to rely on s 15(7) when making a decision about whether to revoke a security licence. At the time of the hearing, I accepted the Commissioner’s submission that Mr Habak was not entitled to see the intelligence material because of the operation of s 15(7) and I excluded him from that part of the hearing. However, I allowed Mr Habak’s legal representative, Mr Shulze to remain in the hearing room. My view today is that s 15(7) does not allow the Commissioner to withhold the existence or content of the intelligence material from Mr Habak if he wants to rely on that material in reaching his decision. It follows that s 15(7) does not entitle the Tribunal to withhold the existence or content of such material from Mr Habak.

11 Accordingly, the Commissioner has three options. He can abandon his reliance on the intelligence material and rely solely on the material that was made available to Mr Habak. If he adopts that course, I will make a decision as to the correctness of the revocation decision on the basis of that material alone, without the need for a further hearing. Secondly, the Commissioner may ask that the Tribunal remit the decision to it under s 65 of the Administrative Decisions Tribunal Act 1977 to reconsider the decision. If that happens, the Commissioner would either make a new decision based on the non-intelligence material or provide the intelligence material to Mr Habak and take his response into account before making a new decision. If Mr Habak is still dissatisfied with the new decision, he may proceed with his application in the Tribunal. Finally, the Commissioner may wish to reconvene the hearing to make any further submissions he wishes to make which are not inconsistent with the Tribunal’s findings.

Directions

Within 14 days of the date of this decision, the Commissioner is to advise the Tribunal whether it wishes to:
(a) rely solely on material that was made available to Mr Habak; or

(b) ask that the decision be remitted for further consideration under s 65 of the ADT Act; or

(c) request that the hearing be re-convened to make further submissions.