Makisi v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 166

CITATION:	Makisi -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 166
DIVISION:	General Division
PARTIES:	APPLICANT Tika Makisi RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003113
HEARING DATES:	19/05/2000
SUBMISSIONS CLOSED:	05/19/2000
DATE OF DECISION:	11/17/2000
BEFORE:	Lees M - 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:	Security Industry Act 1997
CASES CITED:	Bourke & Ors -v- Commissioner of Police [1998] ADT 1
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, solicitor
ORDERS:	The decision of the Commissioner of Police to refuse to issue a Master licence to the applicant is affirmed.

Introduction

1 Mr Makisi lodged an application with the Administrative Decisions Tribunal (the Tribunal) on 18 April 2000 for review of a decision made by the Commissioner of Police (the Commissioner) on 15 March 2000 refusing Mr Makisi a ‘Master’ licence under the Security Industry Act 1997 (NSW) (the Act).

2 The Commissioner’s decision was made pursuant to a request by Mr Makisi for internal review of an earlier decision of 25 January 2000 which had also refused Mr Makisi a Master licence.

3 The Tribunal’s jurisdiction derives from sections 29 of the Act and 38 of the Administrative Decisions Tribunal Act 1997.

4 Some weeks prior to the Tribunal hearing Mr Makisi was provided with a copy of the Tribunal decision Bourke & Ors -v- Commissioner of Police [1998] ADT 1 (the Bourke decision) for his information.

The relevant law

5 Section 16 of the Act concerns restrictions on granting licences in circumstances involving certain criminal and other related history. Section 16(1)(a) provides

(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.

6 Clause 11 of the Security Industry Regulation 1998 (NSW) prescribes the offences that disqualify applicants. It reads:

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, or
(ii) in such cases where the applicant concerned has been found guilty but not been convicted an offence that, in the opinion of the Commissioner, is a serious assault offence.
The issue

7 The issue for the Tribunal in this application is to ascertain whether or not the objective facts on which the Commissioner relied in making the decision to refuse the applicant a Master licence are established, ie was Mr Makisi convicted of an offence and penalized and if so do these facts fall within the parameters of section 16 of the Act read with clause 11 of the Regulation?

The evidence

8 At a Tribunal directions hearing on 9 May 2000, the parties made clear that the facts were that on 20 May 1994 Mr Makisi was convicted of the offence of common assault in the Penrith Local Court, and was fined $400 (excluding court costs) were not in dispute. Accordingly the Tribunal directed that no formal record of the conviction was required. At the hearing neither Mr Makisi nor the Commissioner provided any further detail as to the circumstances of the offence.

9 Mr Makisi had provided the Tribunal with a letter dated 17 April 2000 attached to his application for review. Mr Makisi referred in the letter to his religious beliefs and his prayers for forgiveness for his crime of 1994, his trouble free record since 1994, his abstinence from alcohol, his responsibilities as a father and provider for five children, and the security service business he proposes to establish and the expenses he has already incurred in that regard.

10 Mr Makisi’s oral evidence at the hearing was brief. Essentially he focussed on two things: his own nature and his current employment status. He gave evidence on his own behalf that he ‘was not a bad man’ and that he was currently in casual employment in two different positions, fork lifting by night and technician by day.

11 Mr Makisi also provided the Tribunal with some documentary evidence. This consisted of copies of the following: references from his school principal (dated 1985), his accountant, the presiding Bishop of Mr Makisi’s church, a former employer ‘The Bible Society’ and a current employer ’Precision Valve Australia Pty Limited’; and documents relating to Mr Makisi’s security industry training and his proposed business ‘Tika Security Services’.

Submissions

12 In his letter of 17 April 2000 and to some extent in his oral submissions, Mr Makisi appealed to the Tribunal for ‘leniency’.

13 Although Mr Makisi made this submission, perhaps in the belief or hope that the Tribunal had some form of discretion to exercise in his favour, he also appeared at the hearing to understand the mandatory nature of the relevant legislative provision and that it operated in his circumstances to exclude leniency from the decision-making equation.

14 The Commissioner submitted that the Tribunal is required by section 16(1)(a) of the Act to refuse to grant the applicant a licence if satisfied the applicant has been convicted of a prescribed offence within the 10 years before the licence application was made. Prescribed offences are detailed in the Regulation cl 11, the relevant sub-clause for present purposes being 11(c)(i) - the applicant was convicted of the offence of assault and was fined a sum greater than $200. Accordingly, the Commissioner submitted, the Commissioner had no discretion under section 16(1)(a) and neither does the Tribunal, and so the application must therefore be refused.

Conclusions

15 In the Bourke decision, the President of the Tribunal, Judge O’Connor dealt with the question whether the Tribunal could exercise any independent discretion in a case where the primary decision maker, such as the Commissioner, had made a decision on a mandatory ground. Judge O’Connor concluded that it was not open to the Tribunal to exercise any independent discretion and that its role on review was limited to satisfying itself that the objective facts on which the decision maker relied in making the decision were made out.

16 It was undisputed that Mr Makisi was convicted of the offence of ‘common assault’ six years ago. This conviction occurred within the period of ten years before Mr Makisi’s application for a licence. The penalty imposed was a fine of $400.

17 The objective fact relevant in this application is that Mr Makisi was convicted for a charge proven of a kind which fits within the parameters of section 16 of the Act. In such circumstances the legislation does not allow the exercise of any discretion.

18 The evidence produced and the submissions made by Mr Makisi suggested that he remained under the mistaken belief that the Tribunal has some sort of choice in circumstances such as his, for example ‘to choose’ its decision or to ‘exercise leniency’. The evidence Mr Makisi provided to the Tribunal, although illustrating aspects of his good character, is not capable of altering the objective facts of his committing an assault, his conviction and the penalty, which, in the process of refusing his application for a Master licence are the only relevant facts.

19 The submissions made on behalf of the Commissioner of Police are accepted.

20 I am satisfied that the facts established meet the requirements of section 16(1)(a) of the Act and that according to that provision I am required to refuse Mr Makisi a Master licence.

Decision

In accordance with section 63 (3)(a) of the Administrative Decisions Tribunal Act 1997, the decision of the Commissioner of Police to refuse Mr Makisi’s application for a Master licence is affirmed.