Jasim v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 45

CITATION:	Jasim -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 45
DIVISION:	General Division
PARTIES:	APPLICANT Mohammed Jasim RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003119
HEARING DATES:	19/05/2000
SUBMISSIONS CLOSED:	07/12/2000
DATE OF DECISION:	03/21/2001
BEFORE:	Lees M - Judicial Member
APPLICATION:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Lopati Tafengatoto v Commissioner of Police, NSW Police Service NSWADT [2001] 40 Tran v Commissioner of Police, New South Wales Police Service [2000] NSWADT 18 Fenton v Commissioner of Police, New South Wales Police Service [2000] NSWADT 16 Howells v Commissioner of Police, New South Wales Police Service [2000] NSWADT 120 Price v Commissioner of Police, New South Wales Police Service [2000] NSWADT 127 Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6 Sakellis v Officer in Charge of Police, Paddington (1968) 88 WN (NSW) Pt 1) 541 Hughes and Vale Pty Ltd v State of New South Wales (1953) 93 CLR 127 Sobey v Commercial Private Agents Board (1979) 22 SASR 70 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Commissioner of Police v Toleafoa [1999] NSWADTAP 9
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, solicitor
ORDERS:	1. The Commissioner’s decision to revoke Mr Jasim’s licence is affirmed.

1 This is an Application by Mr Jasim for review by the Administrative Decisions Tribunal (‘the Tribunal’) of a decision by the Commissioner of Police (‘the Commissioner’) to revoke his licence under the Security Industry Act 1997 (‘the Act’).

2 Mr Jasim was served with a ‘Notification of Revocation of Licence’ dated 9 March 2000. The decision relied on sections 16 and 26 of the Act read with Clause 11 of the Security Industry Regulation 1998 (‘the Regulation’). Mr Jasim sought internal review by the Commissioner of this decision.

3 By letter dated 12 April 2000 Mr Jasim was advised that the internal review decision affirmed the original decision to revoke the licence.

4 The Tribunal’s jurisdiction to consider Mr Jasim’s application for external review is found under s. 29 of the Act together with s. 38 of the Administrative Decisions Tribunal Act 1998 (the Tribunal Act).

5 On 28 April the Deputy President of the Tribunal made an order pursuant to s 60(2) of the Tribunal Act staying the Commissioner’s revocation decision pending the Tribunal’s determination of Mr Jasim’s application.

Applicable Legislation

6 Section 16 (1)(a) of the Act provides

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

(a)…
(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, …….

7 Section 26 of the Act as relevant reads

(1) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of that class…..
(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.

8 Clause 11(d) of the Regulation reads

11. 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:

(a) - (c) …
(d) An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.
……

9 Clause 18 of the Regulation provides

In accordance with section 26 (1) (d) of the Act, a licence may be revoked 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.

Evidence

10 In addition to his application for review by the Tribunal, Mr Jasim provided the Tribunal with a copy of his letter to the Commissioner seeking internal review, one employment reference, a document recognising Mr Jasim’s overseas-obtained science degree as equivalent to an Australian bachelor degree and a letter to the Tribunal in almost identical terms as the letter to the Commissioner.

11 Mr Jasim gave oral evidence at the Tribunal hearing assisted occasionally by an interpreter. He was not legally represented.

12 Prior to the hearing the Commissioner provided the Tribunal with a copy of the Police Service Facts Sheet relating to Mr Jasim.

13 On 17 February 2000 Mr Jasim was observed by Telstra ‘plain clothes operatives’ attempting to use a phonecard. He was first observed trying to work the card into the slot of a Telstra payphone and attempting to make a call; he was then observed trying to do the same at another Telstra payphone and appeared to be speaking on that phone for a number of minutes. After the call he was approached by the Telstra operatives and subsequently taken to the Surry Hills police station.

14 The phonecard he had been using had copper wire attached to it, in a manner which, according to Police evidence, causes a short in the phone enabling unlimited credit on the card and therefore free calls for the user.

15 Mr Jasim was issued with a ‘Field Court Attendance Notice’ to appear before the Downing Centre Local Court.

16 On 15 February 2000 before that Court Mr Jasim, legally assisted by Legal Aid, pleaded guilty to the offence of ‘obtaining money, etc by deception’(s 178BA of the Crimes Act 1900 (NSW)). The Court extended the benefit of s 556A of the Crimes Act to Mr Jasim and recorded no conviction.

17 Mr Jasim did not dispute anything in the Police Facts Sheet. He provided the Tribunal with additional information and background to the circumstances of the offence. His evidence was that he had been given the card by a stranger as payment for some cigarettes. The stranger had said ‘you can use it in the phone in the telephone box’ …… ‘there is some more credit on it…’. He put the card in his pocket until the next night when he tried to use it. He had seen phone cards before but had not used them. He says he first noticed the copper wire when he had taken it from his pocket to use and that he had thought it was a joke. He agreed the card looked like it had been tampered with. Mr Jasim’s evidence was that he tried to use the card ‘to see if it worked’, ‘to find out’ if it worked. The card did not slide easily into the relevant slot, he had to ‘push it hard’, ‘push it by force’. He had tried several times on one phone then he tried another. His evidence was that he unsuccessfully endeavoured to ring his own mobile several times; the only connection he made was with a recorded female voice advising that the number dialled was not correct. He said it was his ‘curiosity’ that made him ‘try’ the card ‘to see how much credit there was …and if it really works’. He said he did not know that the altered card was a kind of cheating and that if he had known that its use could put his ‘future and reputation’ in jeopardy, he would not have tried to use it.

18 Mr Jasim gave evidence he was a refugee from Iraq and had arrived in Australia in September 1998, approximately one year before the offence.

19 He gave evidence that at the time of the Tribunal hearing he was undertaking a twelve month long part-time course in computer programming/information technology at Lidcombe TAFE, with the plan to become an alarms systems designer. The course finish date was scheduled for February 2001.

20 At the time of the hearing Mr Jasim had been employed with Fogl Knight Security for eight months. He said they were aware he had ‘a problem with the police, but not the details’.

21 Mr Jasim submitted that the revocation of his licence would mean he would lose his only source of income while he was studying and the study was threatened because of that. Mr Jasim sought to keep his licence so that he could continue his studies.

22 Mr Jasim submitted he did ‘not know the system here’ but understands the offence he has committed is ‘a big thing’ with consequences as to his future.

23 In addition to his oral and written submissions, Mr Tunks for the Commissioner, relied on the internal review ‘statement of reasons’ dated 12 April 2000. [In relation to that statement/document, I note that in my view it has the same problem as the internal review decision in Lopati Tafengatoto v Commissioner of Police, NSW Police Service NSWADT [2001] 40 and does not meet ss 53(7)(c) of the Tribunal Act adequately and accordingly the document does not meet the requirements of ss 53(6) of the same Act.]

Findings and Reasoning

24 The submission that the offence Mr Jasim was guilty of falls within the clause 11(d) category of offence ‘involving stealing, fraud, dishonesty or stealing’ is accepted.

25 In relation to s 26(1) of the Act, a decision maker is provided with the discretionary power to revoke a person’s licence in the four circumstances provided for in 26(1)(a) to (d). The circumstance provided for in section 26(1)(a) is that the decision maker may revoke the licence ‘for any reason for which the licensee would be required to be refused a licence of that class’.

26 As I noted in the Tafengatoto decision in relation to s16(1)(a), the way the discretionary power to revoke is meant to work is not absolutely clear. The same can be said regarding s 16(1)(b). Section 16(1)(b) requires the Commissioner to refuse an applicant for a licence if she or he 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…….’. Strictly interpreting s. 26(1)(a), the discretionary power to revoke or not, arises if the licensee 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 NSW court. This power clearly provides for the situation where a person has been granted a licence yet they should not have been because they had been found guilty of a prescribed offence at the time of the licence application. The power provides for revocation in circumstances other than those relating to this application such as, where, at the time the decision to grant a licence is taken, the Commissioner’s records are incomplete or the searches are inaccurate or the licensee provided incorrect information. See for example the previous Tribunal decisions of Tran v Commissioner of Police, New South Wales Police Service [2000] NSWADT 18, Fenton v Commissioner of Police, New South Wales Police Service [2000] NSWADT 16, Howells v Commissioner of Police, New South Wales Police Service [2000] NSWADT 120 and Price v Commissioner of Police, New South Wales Police Service [2000] NSWADT 127.

27 The power therefore is to revoke or not to revoke if the licensee had been found guilty but not convicted of a prescribed offence during the relevant period before the application for the licence was made. The reason for refusal in section 16(1)(b) relates to the fact an applicant has been found guilty before a licence is applied for. In my view the power to revoke cannot be exercised where there was no guilt of the relevant kind at the time the licence application was made.

28 As I noted in Tafengatoto, I agree with the observation made in the decision of Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6 at par 23 about the anomaly that can arise under the Act where a licensee who commits a prescribed offence shortly after the grant of the licence may be able to retain the five year licence. I noted in Tafengatoto that it would be similarly anomalous where a person has been granted a licence yet had committed a prescribed offence but had only been charged with it before the licence application had been made. A similar anomaly would arise if such a person had not been charged at all prior to the licence application being made.

29 It is my view, however, that the powers to revoke that may be exercised in the circumstance of a person being found guilty of an offence (and not having a conviction recorded against them) subsequent to the application and granting of a licence, are presently found in 26(1)(c), or 26(1)(d) read with the clause 18 of the Regulation, not 26(1)(a).

30 I had not formed this view on the construction of s 26(1)(a) until after the hearing and so there was no opportunity to raise it with the parties to invite their views.

31 Included in Mr Tunks’ submissions were that Mr Jasim could no longer be considered fit and proper and that it was not in the public interest that he continue to hold a security industry licence and accordingly the discretionary powers under ss 26(1)(c) and (d) should be exercised to revoke Mr Jasim’s licence. Cited were the decisions of Sakellis v Officer in Charge of Police, Paddington (1968) 88 WN (NSW) Pt 1) 541, Hughes and Vale Pty Ltd v State of New South Wales (1953) 93 CLR 127, Sobey v Commercial Private Agents Board (1979) 22 SASR 70 and Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657.

32 In relation to Mr Tunks’ submission that Mr Jasim was no longer a fit and proper person, the High Court has stated that

‘The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’ Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (per Toohey and Gaudron JJ at par 63 of their decision); and that where a person must satisfy a legislative requirement of being ‘fit and proper’ in relation to a licence of some kind, the requirement takes its meaning ‘from the activities which the person is or will be authorized to engage in by virtue of the licence and the ends to be served by those activities……….depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question: (Australian Broadcasting Tribunal v Bond per Toohey and Gaudron JJ at par 36 of their decision).

33 According to the Court in its earlier decision of Hughes and Vale, fitness with respect to an office involves three things: honesty, knowledge and ability. It quoted Coke: ‘honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’. (Hughes and Vale at 156, Sakellis at 548);

34 Walters, J in Sobey states that in his view ‘Any previous breaches of the law, and any propensity towards offending against the law must ….. be regarded as of crucial importance’(at 75).

35 In relation to the public interest discretion Mr Tunks quoted from Comalco: the purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account and to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the scope and purpose of the legislation. (per Wilcox, CJ, Keely & Moore JJ at 681).

36 In relation to another security industry matter the Tribunal’s Appeal Panel in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 stated (at p 25) that the public interest is:

‘. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual….’.

37 There was no evidence of a prior criminal record or any pattern of dishonest behaviour on Mr Jasim’s part or any problems with Mr Jasim’s employment in the security industry.

38 I agree with Mr Tunks that Mr Jasim’s offence is ‘not …on the higher scale of criminality..’. This is suggested also by the approach taken by the Local Court. However, it is an offence involving dishonesty. Mr Jasim was aware the card he was trying to use had been tampered with. He knew he was using force in the endeavour to have the card enter the slot.

39 I agree with Mr Tunks that Mr Jasim is not an unsophisticated man. His education, presentation and personal testimony contribute to that conclusion. It is extremely unlikely he was using the card completely naively thinking all was as it should be.

40 I agree with Mr Tunks that Mr Jasim’s explanation of his use of the card was unconvincing. The behaviour required by the offence involved deliberateness or recklessness. When aimed at obtaining a personal advantage, such behaviour evidences a readiness or propensity to act out of self-interest when the opportunity arises. This is not behaviour which lends itself to being considered trustworthy. This is potentially very serious in the circumstances of the security industry. Part of the public interest relevant to the security industry is in it having people licenced in the security industry who can be trusted. Mr Jasim’s behaviour has cast doubt on whether he warrants that trust.

41 The employment reference provided by Mr Jasim was from the Managing Director of Fogl Knight Security Resources Pty Limited. Mr Jasim had worked as a ‘security officer’ with the firm for eight months at the time of the hearing. The reference was very positive. There was no evidence in the reference or otherwise about the type of work Mr Jasim had been carrying out in his security officer role. It was also the case that the employer had no knowledge of the type or details of Mr Jasim’s offence at the time the reference was written, although being generally aware Mr Jasim had ‘a problem with the police’. This has reduced the weight to be accorded the reference.

42 There is in Mr Jasim’s evidence much to recommend him as far as his general ability, dedication and determination go. However, the evidence of regret concerning Mr Jasim focussed more on the fact that the incident could jeopardise his future than on the fact his behaviour was inappropriate. This contributes to concern about his being fit and proper in the sense that his knowledge and understanding of his responsibilities both within the community and within the security industry appear to be wanting. Sufficient doubt is cast, in my view, on Mr Jasim’s fitness.

43 Additionally, his personal interest in retaining his licence cannot be considered to outweigh the community’s interest and confidence in the trustworthiness of security industry personnel.

44 As noted earlier, the Tribunal granted a stay of the Commissioner’s decision until determination of the application. This decision now having been made, the stay is no longer in operation.

Decision

45 I agree with the Commissioner’s decision to revoke Mr Jasim’s licence relying on the discretions found in ss 26(1) (c) and (d) of the Act.

46 In accordance with s. 63 (3)(a) of the Tribunal Act I make the following order:

The Commissioner’s decision to revoke Mr Jasim’s licence is affirmed.