Khalil v Commissioner of Police, NSW Police

[2007] NSWADT 81

CITATION:	Khalil v Commissioner of Police, NSW Police [2007] NSWADT 81
DIVISION:	General Division
PARTIES:	APPLICANT Walid Khalil RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063266
HEARING DATES:	4 October 2006
SUBMISSIONS CLOSED:	4 October 2006
DATE OF DECISION:	11 April 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	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:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 McDonald v Director General of Social Security (1984) 1 FCR 354 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 QR v Commissioner of Police, NSW Police [2006] NSWADT 307
REPRESENTATION:	APPLICANT M El Sankari, agent RESPONDENT W Pisani, agent
ORDERS:	The decision to refuse Mr Khalil's application for a security industry licence is affirmed.

REASONS FOR DECISION

Background

1 Mr Khalil’s application for a Class 1AC security licence was refused by the Commissioner of Police. The licence application was refused on the basis that Mr Khalil was not a fit and proper person to hold such a licence and that it is not in the public interest for him to do so.

2 In reaching this decision, the Commissioner of Police referred to a number of Police reports, printouts from the Computerised Operational Policing System (“the COPS system”) and printouts from the Integrated Licensing System (“the ILS”). Pursuant to section 15(7) of the Security Industry Act 1997 (“the Act”) the Commissioner declined to provide Mr Khalil with further information regarding those reports.

3 The decision of the Commissioner was upheld after an internal review. Mr Khalil has applied to this Tribunal for review of the determination to refuse his application.

4 The matter was heard on 4 October 2006. The first part of this hearing was held in the presence of Mr Pisani, the representative for the Commissioner, Mr Khalil and his representative Ms El Sankari. A later part of the hearing was held in the absence of Mr Khalil and Ms El Sankari. Each party made submissions.

Confidential hearing

5 Generally, Tribunal hearings are held in public. However, under section 75 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”), the Tribunal has the power to order that a hearing be conducted either wholly or partly in private and to make an order prohibiting or restricting the disclosure of evidence given before the Tribunal to some or all parties. Mr Pisani sought to have a confidential hearing in this matter and I agreed to that request. In the absence of Mr Khalil and Ms El Sankari, I heard from Mr Pisani as to the nature of the material he wished to put before the Tribunal. Having heard Mr Pisani’s submissions in relation to the material that he wished to tender to the Tribunal on a confidential basis, I formed the view that the confidential information is ‘of such importance and cogency that justice is more likely to be done by receiving the information in confidence and denying the party access to it than by refusing an order to exclude the party.’ Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.

6 I determined to proceed on that basis and advised Mr Khalil accordingly. Consequently Mr Khalil was not made aware of the material that was tender on a confidential basis.

7 I agreed to hear from a witness for the Commissioner and to consider the relevant material on a confidential basis. I have given weight to this confidential material and any reference to that material is deleted from the published reasons. Those parts of the decision where the confidential material is discussed are identified as “Subject to suppression order”.

8 The brief of evidence filed for the Commissioner contains the material provided to the Commissioner in support of Mr Khalil’s application, the original determination and the internal review determination.

9 The confidential material tendered to the Tribunal included:

[Subject to suppression order]
Mr Khalil’s case

10 Mr Khalil gave evidence that he was not provided with any explanation of the basis for the Commissioner’s view that it is not in the public interest for him to hold a licence. He said that he undertook the training to obtain qualifications to obtain the licence at a cost of about $700. Prior to undertaking that course he had to obtain a security clearance from the Commissioner. The Commissioner raised no objection at that time and he was given the security clearance. It was only after completing the course that he was refused the clearance.

11 His evidence is that he has never been involved in criminal activity. He is married and about to be a father. He does not get involved in activities that could lead to harm of himself or his family. He is involved with the United Muslim Association, which is linked to Sydney's Lakemba Mosque. He said that he undertakes an enormous amount of social work as a youth worker providing help to the elderly. He is involved in fund raising for and work with the homeless. He also conducts school presentations and weekend youth workshops, as well as camps and other outings. He says that he looks forward to these activities and the satisfaction of seeing improvement and self-sufficiency in those he is assisting.

12 He is a qualified carpenter and works in that industry. He sought the licence as a fall back qualification. His main objective is a stable future and wants to stay in the workforce.

13 Mr Khalil said that he has gone to significant effort to obtain his qualifications and has incurred significant expenses in doing so. He contends that the Commissioner had ample time to consider his request for security clearance prior to him undertaking the course and the refusal should have been made at that time. He says that it is unfair to now refuse his application and that in the circumstances the Commissioner should refund the expenses that he incurred in undertaking the training.

14 Contained in the Commissioner’s brief of evidence are relevant certificates held by Mr Khalil including Certificate II in Security (Guarding) and Senior First Aid. Also contained in the brief of evidence are references from Aicha Taleb, a Justice of the Peace; and Sheikh Shady Alsuleiman, religious leader at the Lakemba Mosque. Each has known Mr Khalil for a number of years and has found him to be an honest, polite, co-operative and responsible person who is a good role model in his community.

15 Mr Khalil asserts that he is a fit and proper person to be granted a security licence and that there is no public interest reason to preclude the grant of the licence.

The Commissioner’s case

16 [Subject to suppression order]

17 [Subject to suppression order]

18 [Subject to suppression order]

19 Mr Pisani submitted that it is not in the public interest for Mr Khalil to be granted the licence. He argues that Parliament’s intention, reflected in the Act, is to ensure that a high standard of the industry and that entry to the industry is restricted to reduce the likelihood of criminal activity. He refers to the decision in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 as indicative of the approach that should be taken. A high standard applies to the grant of a licence. Moral integrity and rectitude of character is an essential requirement of licensees. If a person does not possess these traits it is not in the public interest that they be given the special access that is permitted by the grant of a security licence.

20 Mr Pisani says that the fact that Mr Khalil was not spoken to by Police or that he was not charged is not a barrier to refusing his application. He referred to the views expressed by Rice JM in Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 and the authorities cited in that decision at paragraph [21] as making it clear that it is the person’s conduct, not the fact of a conviction, which is to be considered. He submits that in light of the evidence presented, the Tribunal should err on the side of caution and affirm the determination to refuse the application.

Findings

21 The Commissioner refused to grant a security licence to Mr Khalil for two reasons: because he was not satisfied that Mr Khalil was a fit and proper person to hold the class of licence sought and because he considered that the grant of the licence would be contrary to the public interest.

22 The Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then confirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of the Commissioner of Police 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.)

23 Section 15(1)(a) of the Act requires an application for a security licence to be refused if the Commissioner is of the view that the applicant is not a fit and proper person. Section 15(3) of the Act provides that an application for a security licence may be refused if the Commissioner considers that it would be contrary to the public interest. The Tribunal stand in the shoes of the Commissioner and has the same powers of the Commissioner in regard to the grant or refusal of the licence and is subject to the same restrictions.

Public Interest

24 Section 15(3) of the Act provides that an application for a security licence may be refused if the Commissioner considers that it would be contrary to the public interest.

25 Mr Khalil has no criminal history. However there is evidence before me that was presented on a confidential basis.

26 [Subject to suppression order]

27 I accept that evidence and I agree with the Commissioner that the Tribunal should err on the side of caution.

28 I accept that Mr Khalil has obtained qualifications for entry into the security industry and that he incurred considerable expense in doing so. Given the efforts that the Commissioner has made to resist his application I am unable to understand why he was given the security clearance that enabled him to undertake that training. I have no power to order the Commissioner to compensate Mr Khalil for the expenses he incurred in undertaking his training. However, the Commissioner may choose to consider that in the circumstances the request is a reasonable one.

29 Taking into account the evidence presented on behalf of the Commisioner it is my view that it would not, at this stage, be in public interest for Mr Khalil to be granted a security licence.

Fit and proper person

30 The question of whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 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.

31 It has been held in this Tribunal (see for example QR v Commissioner of Police, NSW Police [2006] NSWADT 307) that factors which should be considered when determining a person’s fitness and suitability to hold a security licence include:

the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

the nature, seriousness and frequency of any complaints made against the applicant;

the applicant's reputation in the community; and

the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

32 As I have determined that it would not be in the public interest for Mr Khalil to continue to hold a security licence, it is not necessary for me to consider the second ground relied on by Mr Pisani, that Mr Khalil is not a fit and proper person to hold a licence.

Decision

The decision to refuse Mr Khalil's application for a security industry licence is affirmed.