Hussain v Commissioner of Police, New South Wales Police Service

[2003] NSWADT 251

CITATION:	Hussain v Commissioner of Police, New South Wales Police Service [2003] NSWADT 251
DIVISION:	General Division
PARTIES:	APPLICANT Ryaz Ahmed Hussain RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	033141
HEARING DATES:	13/08/2003
SUBMISSIONS CLOSED:	08/27/2003
DATE OF DECISION:	11/24/2003
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 Crimes Act 1900 Crimes Amendment (Sexual Offences) Act 2003 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Jacobs v Commissioner of Police, New South Wales Police (GD) [2003] NSWADTAP 55
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr Ryaz Ahmed Hussain for the grant of a class 1ABC licence under the Security Industry Act 1997 is affirmed.

1 These proceedings relate to a decision by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to refuse an application by Mr. Ryaz Ahmed Hussain for the grant of a class 1ABC licence under the Security Industry Act 1997 ("the Act"). The refusal was on two grounds. Firstly, the view that Mr. Hussain is not a fit and proper person to hold a security licence; and secondly that the offences committed by Mr. Hussain fall within the provisions of section 15(1) (a) and section 16(1)(a) of the Security Industry Act 1997 and Clause 11(c)(i) of the Security Industry Regulation 1998. In this regard no discretion exists for the grant of a licence in Mr. Hussain’s particular situation and accordingly his application must be refused.

2 Mr. Hussain lodged his application for the security licence on 17 December 2002. The decision was taken to refuse that application and Notice of that refusal was served on Mr. Hussain by post on 7 April 2003. By letter dated 16 April 2003 Mr. Hussain requested an internal review of the decision. A delegate of the Commissioner undertook the review and it was finalised on 7 May 2003. The decision ("the internal review decision") was made that the Commissioner's decision to refuse Mr. Hussain ’s licence application is to stand. The Commissioner's delegate gave detailed reasons for the internal review decision and Mr. Hussain was notified of the outcome of the review and those reasons.

Reviewable decision

3 The reviewable decision is that confirming the Commissioner’s decision to refuse Mr. Hussain ’s licence application. On 4 June 2003 Mr. Hussain applied to this Tribunal for review of the Commissioner's decision. The matter was listed before the Tribunal’s President on 8 July 2003 at which time he made directions for the filing of documents and the matter was listed for hearing on 13 August 2003 and proceeded on that day.

Background

4 It is common ground that on 23 May 1997 Mr. Hussain pleaded guilty to the offence of "Homosexual intercourse with male between 10 & 18 years". He was convicted of the offence and was sentenced to imprisonment to 3 years, comprising of 12 months minimum term with an additional parole period of 2 years.

5 Insofar as is relevant to these proceedings, sections 15(1) and 16(1) of the Act provide:

“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”
“ 16 Restrictions on granting licence--criminal and other related history

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

(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, …”

6 Clause 11 of the Security Industry Regulation 1998 (“the Regulation”) prescribes the offences for Section 16 of the Act. Clause 11 provides that:

“11 Offences that disqualify applicants: section 16

For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(c) Offences involving assault

An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being:

(i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both,” …

7 Therefore, section 16(1)(a) of the Act requires that the Commissioner must refuse to grant a licence if he is satisfied that the Applicant has been found convicted of a prescribed offence within a period of ten years before the application was made. If Mr. Hussain has been convicted of such an offence the refusal is therefore mandatory.

8 Section 63(2) of the Administrative Decisions Tribunal Act 1997 provides that in reviewing a reviewable decision, "the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision". Accordingly, the Tribunal is also bound by the provisions of section 16 in that it must refuse to issue a licence if it is satisfied that the Applicant has been convicted of a prescribed offence.

Does the offence for which Mr. Hussain was convicted constitute a prescribed offence for the purposes of the Act?

9 The offence for which Mr. Hussain has been convicted was contained within the now repealed section 78K of the Crimes Act 1900. Section 78K was repealed by the Crimes Amendment (Sexual Offences) Act 2003. Prior to being repealled section 78K provided that a male person who has homosexual intercourse with a male person of or above the age of 10 years, and under the age of 18 years, shall be liable to penal servitude for 10 years. The elements of that offence were subsequently incorporated into section 66C of the Crimes Act. Insofar as is relevant to these proceedings section 66C provides:

“ 66C Sexual intercourse—child between 10 and 16

(1) Child between 10 and 14

Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years.”

10 The issue of whether an offence under section 66C of the Crimes Act 1900 is an "assault of any description" for the purposes of Clause 11 of the Regulation was considered in the recent Appeal Panel decision in Jacobs v Commissioner of Police, New South Wales Police (GD) [2003] NSWADTAP 55. The appeal panel stated:

“19 Sexual intercourse, per se can constitute an assault. ( R v Clarence (1886-90) All ER Rep 133.) An offence under s 66C will always involve a "battery" because of the manner in which "sexual intercourse" is defined in s 61H. However, as with the offence of indecent assault under the Sexual Offences Act 1956 (UK), there is no distinction in the Crimes Act 1900, between assault and battery, at least in relation to what is known as child sexual assault offences including s 66C. A battery is now regarded as a "species of assault". ( R v Court (1989) 1 AC 28 at 41, per Lord Ackner). The same point was made by the Supreme Court (Kirby ACJ, Sheller and Cole JJA) in Fitzgerald v Kennard (1995) 38 NSWLR 184. Their Honours held that to establish the offence of indecent assault under s 61L of the Crimes Act 1900 it is not necessary to prove assault in the "customary sense" that is, that there has been intentional or reckless hostility so as to create fear on the part of the victim. According to Cole JA, at 200: "It is established law that the assault ingredient in any indecent assault charge may involve either physical contact, being a battery, or a threat to the victim involving a reasonable apprehension of immediate and unlawful personal violence."

20 The fact that the unlawful act is committed on a person under the age of 16 years, and consequently proof of failure to consent is not required, does not remove the conduct from the definition of an assault.

21 On the basis of this analysis, our conclusion is that an offence under s 66C of the Crimes Act 1900 is an "assault of any description" within the meaning of that term in s 16(1)(c) of the Act.”

11 Adopting this reasoning I am satisfied that the offence for which Mr. Hussain was convicted constitutes a prescribed offence for the purposes of the Act. Pursuant to section 16(1)(a) of the Act it follows that the Commissioner, and therefore the Tribunal, must refuse Mr. Hussain’s application. Accordingly, the Commissioner’s decision should be affirmed.

Orders

The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr. Ryaz Ahmed Hussain for the grant of a class 1ABC licence under the Security Industry Act 1997 is affirmed.