Nassif v Commissioner of Police, New South Wales Police Force

[2025] NSWCATAD 119

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nassif v Commissioner of Police, New South Wales Police Force [2025] NSWCATAD 119

Hearing dates:

14 February 2025, 19 May 2025

Date of orders:

30 May 2025

Decision date:

30 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

(1) Decision under review set aside.

(2) A category 1A 2B security licence is to be reissued to the applicant.

Catchwords:

LICENSING – security industry – licence revocation – stay – fit and proper person – public interest – offence

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Security Industry Act 1997 (NSW)

Security Industry Regulation 2016 (NSW)

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11;

Blisset v Commissioner of Police, New South Wales Police Force [2006] NSWADT 114;

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42;

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657;

Commissioner of Police v Toleafoa [1999] NSWADTAP 9;

Constantin v Commissioner of Police, New South Wales Police Force (GD) [2013] NSWCATAP 16;

Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50;

Davis v Commissioner of Police, New South Wales Police Force [2017] NSWCATOD 16;

Director-General, Transport New South Wales v AIC (GD) [2011] NSWCATAP 65;

Director of Public Prosecutions v Smith (1991) 1 VR 63;

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70;

Habib v Commissioner of Police, New South Wales Police Force [2015] NSWCATOD 48;

Haining v Commissioner of Police [1999] NSWADT 6;

Hardy v Commissioner of Police, New South Wales Police Force [2006] NSWADT 167;

Hill v Commissioner of Police, New South Wales Police Force [2002] NSWADT 218;

Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127;

Ibrahim v Commissioner of Police [2009] NSWADT 245;

Infarinato v Commissioner of Police, New South Wales Police Force [2004] NSWADT 43;

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31;

McDonald v Director-General, Social Security [1984] FCA 37, (1984) 1 FCR 354;

O’Neill v Commissioner of Police, New South Wales Police Force [2005] NSWADT 130;

O’Sullivan v Farrer (1989) 168 CLR 210;

Shammon v Commissioner of Police, New South Wales Police Force (No. 2) [2024] NSWCATOD 183;

Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184;

Sterjovski v Director-General, Department of Transport [2017] NSWCA 31;

Sullivan v Civil Aviation Safety Authority [2014] FCA 93.

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Mr David Nassif (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Counsel:
Mr T Dubler (Applicant)

Solicitors:
Jeresyn Legal (Applicant)
McCullogh Robertson Lawyers (Respondent)

File Number(s):

2023/00270785

Publication restriction:

Nil

Reasons for decision

1. The applicant Mr David Nassif on 24 August 2023 applied to this tribunal for administrative review of a decision of the respondent on 13 July 2023 to revoke his class 1A 2B security licence pursuant to s 26 of the Security Industry Act 1997 (SI Act) on the ground that the Commissioner was not satisfied that he is a fit and proper person to hold that class of licence, and that it would be contrary to the public interest if he were to continue to hold it. He had held various security licenses since around June 2001.

2. The decision was based on issues identified in an investigation of AVS Services Aust Pty Ltd and the applicant’s dealings with the Security Licensing and Enforcement Directorate (SLED). The applicant had worked with AVS from around 2002 when he was aged 25, until at least August 2023. From approximately 15 April 2019 to 14 August 2023 he was the nominated person for AVS’s master licence and therefore the person who was authorized to represent AVS for the purpose of answering questions under s 39O of the Act.

3. In view of certain proceedings then pending in the Local Court relating to AVS’s compliance with a notice under s 39O of the Security Industry Act, Ransome SM on 30 August 2023 stayed the revocation decision pending further order of the tribunal.

4. The review application came on for hearing in the tribunal on 14 February 2025 and was adjourned part heard until 19 May 2025.

Applicable legislation

5. The tribunal has held that the objects of the Security Industry Act include ensuring that “those who are licensed under the Act can be trusted by the public to properly perform the duties of watching, guarding or protecting property, act as a bodyguard or carry out crowd control functions in a professional manner”: Scott v Commissioner of Police, New South Wales Police Force [2022] NSWCATOD 154, [92].

6. Consistently with those objectives, s 26 of the Act relevantly provides

26   Revocation of licence

(1)  A licence may be revoked—

(a)  (Repealed)

1. (b)  if the licensee—

(ii)  contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii)  contravenes any condition of the licence, or

(c)    (Repealed)

(d)  for any other reason prescribed by the regulations.

(1A)  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.

7. In relation to s 26(1A), s 15 relevantly provides:

15   Restrictions on granting licence—general suitability criteria

(1)  The Commissioner must refuse to grant an application for a licence if—

….

(c)  the applicant has supplied information—

(i)  in, or in connection with, the application, and

(ii)  that is, to the applicant’s knowledge, false or misleading in a material particular, or

….

(f)  the Commissioner is not satisfied that the applicant—

(i)  is a fit and proper person to hold the class of licence sought by the applicant, or

….

(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 or whether the grant of the licence would be contrary to the public interest, 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.

8. Relevantly to s 26(1)(d) of the Act, cl 25(1) of the Security Industry Regulation 2016 provides that for the purposes of s 26(1)(d) of the Act, a licence may be revoked if the Commissioner considers that it would be contrary to the public interest for the person to whom it is granted to continue to hold it.

9. Knowingly making a representational statement that is false or misleading in a material particular is an offence under s 33(2):

(2)  A person must not—

(a)  in relation to any application for the purposes of this Act or the regulations, or

(b)  in relation to any information, records or particulars that the person is required to furnish under this Act or the regulations,

make any representation or statement that the person knows is false or misleading in a material particular.

Maximum penalty—

(a)  for a corporation—200 penalty units, or

(b)  for an individual—100 penalty units.

10. In addition, s 38A of the Act prohibits unauthorized subcontracting by a master licensee:

38A   Prohibition on unauthorised subcontracting

(1)  A master licensee (the principal) who enters into a contract to provide persons to carry on any relevant security activity with a person (the client) must not engage another master licensee (the subcontractor) to provide those persons on behalf of the principal unless—

(a)  the client has expressly agreed in writing with the principal to the provision of the persons by a subcontractor, and

(b)  the principal provides a written notice of the requisite subcontracting particulars in relation to any subcontractor engaged by the principal to the client before requiring payment by the client for the work of such a subcontractor.

Maximum penalty—

(a)  for a corporation—500 penalty units, or

(b)  for an individual—250 penalty units or imprisonment for 6 months, or both.

(2)  A subcontractor providing persons on behalf of the principal must not engage another master licensee (further subcontractor) to provide any of the persons to carry on security activities that the principal has engaged the subcontractor to provide unless—

(a)  the principal has expressly agreed in writing with the subcontractor to the provision of the persons by a further subcontractor, and

(b)  the subcontractor provides a written notice of the requisite subcontracting particulars in relation to any further subcontractor engaged by the subcontractor to the principal before requiring payment by the principal for the work of the further subcontractor.

Maximum penalty—

(a)  in the case of a corporation—200 penalty units, or

(b)  in the case of an individual—100 penalty units or imprisonment for 6 months, or both.

(3)  The regulations may exempt any principal or class of principals or relevant security activity from the operation of subsection (1) (b) in such circumstances as may be specified in the regulations.

(4)  In this section—

relevant security activity does not include the provision of a restricted security keying system.

requisite subcontracting particulars, in relation to a subcontractor or further subcontractor, means—

(a)  the name and master licence number of the subcontractor or further subcontractor, and

(b)  any other particulars prescribed by the regulations.

11. Further, s 39 of the Act provides:

39   Master licensee not to provide unlicensed persons

(1)  Without limiting the operation of section 30, the holder of a master licence must not provide any person to carry on any security activity if that person is not the holder of a licence that authorises the person to carry on a security activity of that kind.

Maximum penalty—

(a)  in the case of a corporation—1,000 penalty units, or

(b)  in the case of an individual—500 penalty units or imprisonment for 2 years, or both.

(2)  It is a defence in proceedings for an offence under this section if the master licensee satisfies the court that the master licensee did not know, and could not reasonably have been expected to know, that the person provided by the master licensee did not hold a licence that authorised the person to carry on a security activity of the kind concerned.

12. At all relevant times (until 1 June 2023), s 39L provided that a person must not

1. obstruct, hinder or interfere with an enforcement officer in the exercise of a function under this Part, or

2. fail, without reasonable excuse, to comply with any requirement made of the person by an enforcement officer in the exercise of a function under this Part.

Maximum penalty – 100 penalty units.

13. Section 39L was subsequently repealed by the Security Industry Amendment Act 2022 from 1 June 2023. The amendments introduced by the Security Industry Amendment Act 2022 effectively replaced s 39 with various offences now set out in ss 39S to 39X of the Security Industry Act.

14. The issues in this case are thus whether the applicant is a fit and proper person to hold the relevant licence and whether it would not be in the public interest for him to continue to hold the licence.

Applicant’s evidence

Mr David Nassif (applicant)

Affidavit sworn 20 October 2024 – background and the audit

15. In oral evidence the applicant adopted three affidavits in the substantive proceedings, the first of which was sworn on 20 October 2024 (exhibit A1). It begins by stating his understanding that his licence had been revoked by SLED by reason of alleged findings made in his role as nominated person for the security master licence of AVS. After setting out his family background, it states that he commenced his career in the workforce as an apprentice carpenter and builder’s labourer, a role he held until the age of 23.

16. In addition, at the age of 20 he undertook part-time and weekend work in the hospitality industry as an RSA (Responsible Service of Alcohol) marshal and bar hand to supplement his income. After a few years he obtained his security licence and began carrying out security work. He immediately excelled in that role, enjoying his work and advancing from door guard to the position of second-in-charge, and eventually becoming a supervisor overseeing multiple venues in the CBD and Northern Beaches. These were high profile venues with large numbers of patrons.

17. He transitioned from the building industry to pursue a full-time career in security. By the age of 25 he had been promoted to regional night manager and then office area manager. At the time he was working with AVS Security. By the age of 30 he was appointed state liaison manager, followed by New South Wales State manager at 35. By the age of 40, he became national manager, which is the role he held at the time of the audit for Mr Gary Lawson.

18. In his role he was responsible for overseeing operations across four states, managing eight officers along with their respective teams, serving over a thousand clients and supervising more than 4000 staff members. He has travelled interstate for work every fortnight, ensuring the company’s stability and growth for the past eight years. His responsibilities include delivering and overseeing standard operations procedures, inductions, risk assessments, venue profit and loss statements, staff performance assessments and reviews, subcontractor management, client service actions, business development, compliance, and general practices that benefit the company as a whole.

19. Over his 28-year career within the industry he has retained every client. He has successfully undergone multiple audits, consistently meeting all requirements with the highest levels of honesty and integrity. His security licence has always remained current and he has never misused the responsibilities entrusted to him under the licence. The industry has experienced numerous changes, especially the impacts of the COVID – 19 pandemic. After the pandemic, the company experienced a substantial decline in both the number and quality of experienced security officers. That decline led to an increased reliance on subcontractors to meet client requirements.

20. During that period, subcontractors also began dealing with the same issues and began using further subcontractors themselves. That became highly problematic and difficult to manage, as security companies faced issues of supplying and dealing with rogue subcontractors. To date the situation had improved as more security officers had returned to the industry, reducing reliance on subcontractors.

21. Castle Hill Tavern had been a client under AVS for approximately 20 years. The applicant had no direct involvement with the Tavern at the relevant time. AVS Security has a state manager, four area managers, six night patrol managers and venue supervisors. The general day-to-day dealings with the Tavern would be for the allocated guards, allocated supervisor, night patrol manager and accounts manager.

22. On 13 March 2023 he received an email from Mr Gary Lawson asking for an audit of the Tavern and the employees used in the venue over a three-month period between February 2022 and April 2022. In his efforts to gather the required information, the applicant’s process was to send the audits in a Word document to an administrative staff member to provide him with all information and documents, which he would then compile and return to Mr Lawson.

23. After the information had been returned to him, he was dissatisfied with one of the responses and with opinions expressed in the document, which read: “A copy of contract/service agreement between Castle Hill Tavern and AVS. (I just made a bullshit unsigned service agreement up. As attached for your approval)”.

24. He did not approve of that passage nor did he implement the suggestion of using a fabricated service agreement. To his understanding, the minimum requirement needed to fulfil a service agreement with the client was receiving an email from the client asking for a roster or requesting guards at certain dates and times, of which he knew the accounts manager would hold records. He believes he overlooked removing that document. He sent the document in the form that it had been sent to him to Mr Lawson, along with other required information and documents. He now realises he was careless in that action.

25. During that period he had been diagnosed with late onset diabetes and is now a type 1 diabetic dependent on daily self-administrating insulin. He was diagnosed with sleep insomnia due to stress and with a serious case of migraines due to lack of sleep and stress. Managing all the new medications, he was struggling mentally at that time. He attached a diagnosis from his general practitioner Dr Harinesan. During that period, his father was mentally unstable and required continuous medical attention and his personal care. He was trying to juggle his personal life and his work life, which at the time proved unsuccessful.

26. In March to April 2023 and June to July 2023, his wife insisted they take family holidays to get him away from the stress of work and his medical issues. They booked a trip to Bali in March/April and then another to Dubai in June/July. They also regularly stayed with his sister who resides in the Hunter Valley region in between the two above holidays, to again get away from his commitments and daily stress in hopes of improving his overall health.

27. On 11 April 2023 Mr Lawson emailed him with new notices stating that he had failed to provide all the required information. They in fact did not supply one document for a subcontracted guard by the name of Nenad Petrovic. He apologized and began chasing up that document with his support team immediately. He then emailed Mr Lawson, again stating Mr Petrovic was a subcontractor and his staff had yet to obtain his information. He further explained in an email to Mr Lawson that this was unacceptable and if the subcontractor did not pass on the requested information, he would cease their subcontracting relationship with AVS for failure to provide.

28. On 8 May 2023 Mr Lawson emailed him requesting a meeting. He promptly responded stating that he would be away and happy to meet once he had returned. Mr Lawson then asked for a contact person to deal with in his absence, which he had provided, and Mr Lawson acknowledged. On 15 June 2023 Mr Lawson emailed him a meeting request, which he accepted. Notwithstanding the meeting request, on 16 June 2023, Mr Lawson sent multiple penalty notices in regard to the audit. The penalty notices were contested by AVS. The applicant is aware of this as he was involved in providing instructions and evidence in relation to the circumstances that led to the issue of the notices.

29. On or about 31 May 2024, two of the AVS penalty notices were listed for hearing at Burwood Local Court. The applicant was in attendance with AVS’s legal representatives. The matter proceeded and at the conclusion of the police case the charges were dismissed on the basis of the legality of the issue of the notice.

30. On or about 18 July 2024, the remaining two AVS penalty notices were listed for hearing before Parramatta Local Court, but were withdrawn before hearing. He is now in a new role that sees him subcontracting his work to AVS and other clients as a consultant, risk assessor, auditor and adviser to security companies and licensed venues. That role also expects him to deal with investigators/regulators, but he has not yet done so as there has not been a need so far.

Affidavit sworn 31 January 2025 – the incident of 7 January 2025

31. This affidavit (exhibit A5) dealt with the incident with the SLED investigators on 7 January 2025. The applicant deposed that at approximately 1:05 pm on that date he received a call from Rolda, administration office manager at Jaken Business Centre, stating that at approximately 1:00 pm two SLED enforcement investigators named Edward Stanmore and Nicole Farrell were at 17 [street name and suburb will be anonymized as “C Street”], asking for a staff member from AVS Security who rents an office next door at 15 C Street.

32. Rolda told him that she had advised them that she had called through to the AVS office at Suite 1, 15 C Street and nobody was present at the time. She also told him that she gave them Chanel Magele’s phone number and email address and advised them to contact him, which in her opinion they seemed satisfied with.

33. At that time the applicant was inspecting the back office of 88 [name] Road suburb] , [this address will be anonymized as 88 P Road] which overlooks the car park of 17 C Street. As he looked out of the window, he noticed an unaccompanied male and female walking into the car park behind another visitor. That visitor was a friend of a staff member from the IT company named Mittul and was walking through at the time. The male and female looked persistent as Mittul was trying to walk away, but they did not let him. Mittul later confirmed that the male and female were Edward and Nicole from SLED. He later asked Mittul if he had permitted them entry, to which he said no and that he does not have authority to permit them entry.

34. During that conversation Mittul told him in effect that the investigators had been questioning him regarding AVS Security and if he was an employee of AVS. He told the applicant they had threatened to prosecute him if he were to give false answers.

35. After receiving a phone call from Rolda at about 1:05 pm about SLED investigators calling from outside the premises and then noticing the male and female in the car park, he assumed that they were SLED investigators at that point. He made his way to the car park. At that time the two SLED officers were still in the 17 C Street car park. They were now questioning Rolda, who is not employed by AVS. He heard them demanding that she give them her full name and access to the AVS Security office, to which she explained that the AVS Security office was next door, and nobody was there.

36. They then said somebody must be there as there is a car marked AVS there. The applicant then intervened and asked who they were and what they required. Once he went down and presented himself to them, they then confirmed they were SLED    investigators. Nicole Farrell stated that they were there to investigate AVS Security. He questioned him on who allowed them access to that property, to which they said Mittul had allowed them access.

37. He then told them that AVS Security did not have operations on that property and reminded them that Rolda had already told them so and passed on the contact details for AVS Security management. He went on to tell them that they were trespassing on private property, working outside the scope of their powers and they must leave immediately unless they had a warrant, otherwise he would call the police.

38. Edward then came towards him and challenged him to call the police, stating that he was the police. The applicant asked for identification, but they did not produce a badge, and only SLED investigators’ ID tags. To his knowledge, SLED investigators can only demand entry to registered security company addresses or locations where they believe security activities are taking place. They were informed, however, by two different people that all security operations were next door at 15 C Street.

39. He again told them that they were on the wrong property, as AVS did not operate there. He told them they had no right to be in the premises and that he would be contacting his solicitor to file a formal complaint. Edward then took a step towards him and screamed in his face to back away with words to the effect of “you’re too close to me”. However it was Edward who got close to him, and he only stood his ground. Edward then demanded his position and name, to which he replied that he was the business centre property manager and refused to cooperate any further as he believed they were not NSW police officers, they were at the wrong address; there were intimidating staff that were not employees or employed by AVS Security; they were trespassing and were abusing their powers as SLED investigators.

40. After his firm stance he refused to further converse with Edward, as he was very agitated and the applicant was concerned that he might escalate the situation. He turned his focus and his attention to Nicole in the hope of calming the situation down. They both stood there and refused to leave, while continuing to threaten him with charges of failing to assist. He reminded them again that he was not there in any security company capacity, and again that there were no security activities or security registered business on the property they trespassed on. He then said that if they wanted to stand trespassing that he would accommodate them with a coffee while he called the police to have them removed and charged.

41. They finally left the premises and walked to the car park to cross the road and the applicant returned to work. About five minutes later, he noticed from an office window that the two investigators drove up and stopped in front of 15 Cowper Street Granville. They looked into the car park for a moment before driving away.

42. Later that night he received a text message from a younger relative who has exactly the same name as he does (David Nassif), asking him if he knew a man by the name of Edward Stanmore, and attached a picture of him. His relative explained that Edward Stanmore was visiting his LinkedIn page and he was wondering why a stranger was viewing his information and identity. The applicant realized that it was the same Edward Stanmore from SLED who he had encountered earlier that day. He explained to his relative not to worry as he was positive he was looking for him and not the relative. He found this extremely concerning and invasive.

43. AVS Services Aust have a registered business office at 15 C Street (not 17 C Street).

44. Cross-examined by Mr Roberts on behalf of the respondent, the applicant reiterated the points in his affidavits, noting that he had held security industry licenses since he was 24 and after he was 25 worked mainly with AVS. He had been state liaison manager, then New South Wales CEO, national CEO, had been a director from 2018 and following the Lawson incident had ceased his employment with AVS by agreement.

45. At AVS he had been responsible for security industry compliance. From April 2019 he was the nominated person, including in 2023 when the notices issued. Chanel was the operations manager. He gained extensive experience with AVS, including in relation to compliance, depending on the year, and gained a knowledge of the Act. Persons providing guards needed a master licence, which AVS held. The guards also had to be licensed and could only work as an employee of a master licensee. A master could subcontract to other masters. His practice had been to liaise with police, including in person. SLED had some police on its staff working with the investigators.

46. The AVS office at 15 C Street was the company’s main place of business. He had worked at No. 15. The interaction of 7 January 2025 had taken place in No. 17’s car park. At that time the applicant had been with Trojan Services, which has an office at No. 17, as do other companies that are not related to or serving AVS. They share a call centre, Jaken Business Centre providing only administrative services. In 2018 – 2019 AVS had a secretary there. He had become national manager of AVS in March 2023, in an operational role, Chanel holding the master licence. In March-April 2023 he had never interacted with Jaken next door. No. 15 has a car park.

47. In relation to the audit in March 2023, they had received a s 39O notice calling for information in connexion with Mr Lawson’s investigation and s 38A(2). He knew it was important and had obtained an extension of time. He had taken prompt action about the notice and had asked for help in replying to it. He had prepared the template for the response (exhibit R1, p 151) preparing a draft copying from Mr Lawson’s requirements. He had sent the draft to admin – to Sonya and someone perhaps named Pauline – but did not talk to Sonya in the meantime.

48. He had leaned on Sonya for information and she had access to AVL records but she did not work for AVS and was outsourced. He had never asked her for her address and did not know what else she did. He did not contact other administrative personnel, just Chanel in relation to operational matters. Mount Tzion was the subcontractor and held a master licence. The applicant did not know who All Food Fresh Imports was and made no inquiries about them.

49. Once Sonya’s email had come back to him with her comments, he had shown it to Chanel to make known his disgust with the comments from his team. He had never spoken to Sonya since, taking the matter seriously because of the effect it could have on the company’s reputation. He had told Chanel that he would never deal with Sonya’s team again.

50. Petrovic had been paid by All Food Fresh Imports. He had assumed that they paid him as part of a tax arrangement although not for tax avoidance. Guards had been taxed in various ways, some through PAYG, and some held an ABN as sole traders. He did not know the significance of All Food Fresh Imports because all the guards worked for the same subcontractor.

51. He did not know why item 10 on Sonya’s email of 7 April referring to Petrovic (exhibit R3, p 4) was highlighted. It was not necessarily because his position had been in some way different. He did not know whether Sonya had highlighted the entry because there was no payslip for Petrovic. He had paid no attention to it, nor had he asked Sonya. Mr Lawson had said he had missed one guard, and he chased the matter up, but he could not get through and had told Mr Lawson that he could not get it and thought that Mr Lawson would chase it up. He himself had tried to obtain the payslip until 13 April 2023. He was not clear about all of the dates, but all required steps have been taken.

52. He had been concerned by Sonya’s comments because she had spoken of submitting a false document, and he was mortified because he feared it would jeopardize his 10-year relationship with the company. He had prepared his response to Gary Lawson using the information obtained from Sonya. The dot points in his email of 9 April 2023 (exhibit R1, pp 128 – 129) are similar to those in Sonya’s email as he had copied her text, edited it and forwarded it to Gary. He had omitted the blue text and the highlighting of Petrovic’s name.

53. He had not intended to hide anything from SLED as all guards were working for the same subcontractor, Mount Tzion. By not attaching a payslip for Petrovic he was not attempting to hide that he was with All Foods Fresh because all were working for the same subcontractor. He did not know what Rolda’s administrative role had been on 7 April 2023. He had not intended to attach Sonya’s false document and was embarrassed about it.

54. On 13 April 2023 he had emailed Gary Lawson and told him that Petrovic was an employee of the subcontractor that they used at Castle Hill Tavern and consequently they did not prepare or provide him with payslips and had no access to such records (id., 409). He could not recall how he found out that all the guards worked for Mount Tzion but had been told so. Mount Tzion might have used All Foods Fresh, as it was very common to use subcontractors. He would never mix subcontractors in the same venue because it could lead to poaching of staff and generally become ugly.

55. The applicant had referred in his affidavit (exhibit A1, [20] – [22]) to the impact of the COVID pandemic, which had caused a substantial decline in the number and quality of experienced security officers. That decline had led to increased reliance on subcontractors to meet client requirements. During that time subcontractors also began dealing with the same issues and began using further subcontractors themselves. That had become highly problematic and difficult to manage as security companies had the issues of supplying and dealing with rogue subcontractors. The situation had lately improved as more security officers had returned to the industry, reducing reliance on subcontractors.

56. He agreed in cross-examination that Petrovic had asked him for a copy of his contract several times. Chanel had never raised the matter of Petrovic with him, not because he was being deliberately evasive but probably because All Foods had hired a subcontractor who had failed to supply payslips. He did not know whether All Foods was associated with AVS.

57. The proposed interview with Gary Lawson for which a date had been fixed had not taken place, but not because he was trying to avoid it. He did not have any personal communications with Gary after the penalty notices had issued. The issuance of the notices and the circumstances surrounding it were described in Gary Lawson’s witness statement (exhibit R4, paras 14, 24 – 26).

58. On the day of the 7 January 2025 interaction he had been at 88 P Road, which connects with 17 C Street, working for Trojan in the Jaken Commercial Centre where Trojan and other companies have offices, when he received the telephone call from Rolda Yacoub (affidavit 31 January 2025, exhibit A6) saying that she had seen a man and a woman investigating Security Industry matters in No. 88. He had assumed they were investigators. He looked through the window and saw Mittul talking to them, and because they had no business in No. 17 he went to see them.

59. AVS also had an office in Jaken Centre in No. 17 and had a 1300 number, but it was purely a paging centre and there was no security activity undertaken there. He went to the car park and eventually objected to their presence. They had shown their security cards in relation to the Security Industry investigation. They said they needed no warrant, but they were at the wrong address, and AVS was at No. 15, not 17. He had never described himself as a consultant to AVS, but people tended to assume that he had such a role in view of his long association with that company. He was now only working with Trojan.

60. On 7 January Trojan was not consulting to AVS, but had been until recently when it consulted for the Gold Coast Titans. Mr Stanmore had come close to him but he had stood his ground and kept his distance as far as he could. To try to calm the situation he addressed his remarks to Nicole. Mr Stanmore told him to move back but he did not move. He knew they were enforcement officers but did not swear at them, although he had used the “F” word once for emphasis, but not directed to them.

61. He had not been loud and aggressive and when asked to give his name had simply said “Bob”. The gates to the car park close automatically and he had a buzzer to control them. He had threatened to make a complaint against them but had opened the gate when they said they wanted to leave. He had felt they were abusing their powers and that they were on the wrong property. He had not challenged them, but simply asked them why they were there and had not assaulted them. He had not seen event report E 98455530 dated 7 January 2025 (exhibit R3, p 85).

62. In re-examination the applicant said that the clients he served in his operational role included venues, schools, hospitals and AVS. He was involved in client relations nationally and was responsible for about 3000 venues and hundreds of clients. The response to the s 39O notice was outsourced to the administrative team and was not handled by AVS, which has very few employees and uses subcontractors for all its activities. AVS never hires guards. Chanel was responsible for day-to-day administration and matters such as uniforms.

63. The applicant had drafted the headings for the audit response on the basis of information from those involved. Based on what he had been told, all the guards were working for Mount Tzion. On 8 May 2023 he had emailed Gary Lawson explaining that he would be away on leave until 24 July and asked if a time for the review could be scheduled after his return. He also asked the reason for the interview and whether it was suggested needed legal representation (exhibit A1, p 29). But on his return he found that the penalty notices had already been issued. Communications were cut off from that point on.

Mr Joe Nasr, solicitor

64. In his affidavit dated 31 January 2025 (exhibit A7) Mr Nasr, the applicant’s legal representative in these proceedings, deposed that his firm acted for AVS Services Aust Pty Ltd in two criminal prosecutions in the Local Court for offences against the Security Industry Act 1997.

65. Mr Nasr deposed that on 31 May 2024 he appeared along with the applicant on behalf of AVS Services at Burwood Local Court where one of the proceedings was listed for hearing. The proceedings concerned two penalty notices alleging offences against s 39L of the Security Industry Act 1997 relating to circumstances giving rise to the present application.

66. One alleged offence was that AVS Services obstructed an enforcement officer by providing a false service agreement between Castle Hill Tavern and AVS Services, contrary to s 39L(1)(a). The second alleged that AVS Services had failed to comply with a requirement of an enforcement officer by not providing a payslip in relation to Nenad Petrovic as required by a s 39O notice, contrary to s 39L(1)(b). Counsel, whom he had instructed to appear, was also in attendance. The matter was called on for hearing and Investigator Lawson gave evidence.

67. At the end of the prosecution case, counsel made a successful application for the charges to be dismissed on the basis that there was no prima facie case. The magistrate dismissed the proceedings on the ground that an offence under s 39L required the relevant officer to be exercising a power of entry and search, which was not the case in those proceedings. The magistrate also expressed reservations about the sufficiency of the evidence to attribute the conduct to AVS Services and the lawfulness of the exercise of the power, although concluding that it was not appropriate to dismiss the charges on that basis at that stage of the proceedings. As the proceedings were dismissed, there was no defence case called. The applicant did not give evidence.

68. On 18 July 2024 Mr Nasr appeared along with the applicant on behalf of AVS Services at Parramatta Local Court where the final set of proceedings was listed for hearing. The proceedings on 18 July 2024 also concerned two penalty notices, alleging offences against ss 39 and 38A of the Security Industry Act 1997. Those allegations, again, related to circumstances giving rise to the present application.

69. One offence alleged that AVS Services provided All Food Fresh Imports to carry on security activities while All Food Fresh Imports did not hold a master licence, contrary to s 39.

70. The second offence alleged AVS Services provided All Food Fresh Imports as a subcontractor without the agreement of Castle Hill Tavern, contrary to s 38A. Counsel, who Mr Nasr had instructed to appear, was again in attendance.

71. On the morning, before the proceedings were called, the police prosecutor indicated that the offence contrary to s 38A was to be withdrawn. The deponent understood that the basis of that was that s 38A required All Food Fresh Imports, as the subcontracted party, to hold a master licence, which was contrary to the prosecution case for the s 39 offence.

72. Mr Nasr and counsel then made representations to the prosecutor about the sufficiency of the evidence to establish the s 39 offence. It was suggested that if All Food Fresh Imports was simply in the position of a payroll company, that was not a security activity under the Security Industry Act. It was also suggested that there had been a lack of investigation into related entities to determine whether AVS Services had been the ones to provide All Food Fresh Imports. When the matter was mentioned, the proceedings were withdrawn and dismissed. The applicant was not required to give evidence. Mr Nasr was not required for cross-examination.

Ms Rolda Yacoub

73. At the hearing Ms Rolda Yacoub adopted her statement dated 31 January 2025 (exhibit A6) in which she stated that she is the administration office manager at Jaken Business Centre located at 17 C Street. On 7 January 2025 at about 1:00 PM she received a telephone call on the main business centre line from a caller identifying herself as Nicole Farrell from the New South Wales Police Force. Ms Farrell requested access to the AVS Security office as she and her partner were there to investigate AVS Security. Ms Yacoub placed Nicole on hold and attempted to contact the AVS Security office, but there was no answer. She informed Nicole that the office was unattended and advised her to visit the AVS Security business at 15 C Street, as she assumed that that was where the personnel were. She also provided Nicole with the email address of Chanel Magele, explaining that he was recovering from an operation but would be the best point of contact for her investigation.

74. As she proceeded to the back office on level 2 of the [road name will be anonymized as “P Road”] building, she noticed marketing office staff looking out the window. When she asked about the situation, one of them said that two individuals had entered uninvited and were speaking to a visitor of the IT business. She then looked outside and saw one male and one female in the car park of the premises and went down to approach them, and was then immediately questioned about AVS Security.

75. Nicole asked for her full name, which she provided, and enquired about the businesses in the centre. The witness clarified that she worked for the business centre, which houses multiple businesses, and reiterated that AVS Security operated next door. She also explained that nobody was answering the telephone at their office, so it seemed likely that no-one was there at the time.

76. The two people were not in uniform and showed her a name card with their pictures, but did not present police badges. By that point, she began to feel uncomfortable and intimidated, as they stood too close to her. The male then asked for her surname, to which she enquired if she was legally required to provide that information. He insisted that she do so.

77. At that moment, and before she could reply, David Nassif, one of the business centre managers and a business consultant for Trojan Consultants, intervened and addressed the situation. He informed the individuals that they were on private property and that AVS Security was located next door. He then proceeded to ask them to leave the premises as they were trespassing. Ms Yacoub moved away from the situation at that point and heard no further discussion after that.

78. In oral evidence the witness explained that she is responsible for anything to do with Jaken Business Centre, which is her employer. She is the main contact for the building. In relation to other businesses she simply answered the telephone and text messages if there is no reply. Number 88 P Road is the front of 17 C Street. Not many people work there, perhaps four or five. She does not remember a Sonya, but she does not see everyone who works at the centre. She herself has worked there since 2022. She answers the telephone for AVS but if there is no reply, she takes messages and forwards them to AVS.

79. The email addressed to Chanel at AVS dated 1 March 2022 (exhibit A4, p 46) is from her and gives the email address of AVS. The other address is Jaken’s, as is the telephone number. Chanel is the contact at AVS, which operates from No. 15. She would sometimes bump into AVS staff as there was an internal door. She did not recall speaking to Chanel about a job application, but she had sent the form (id., 47 – 48) to him at his request. She did not recall speaking to Chanel about Petrovic, but the name seemed familiar. She did not know the company Food Fresh. She had known the applicant since she started working at the centre and he worked for Trojan. He had never asked her to do work for AVS and she had no knowledge of the SLED documents.

80. On 7 January 2025 she had been working at No. 17. There was a gate at the back with an intercom that connected to the business centre. She received a telephone call on the number shown on the gate, but received no answer from AVS.

81. The witness knew that Nicole was from the New South Wales Police SLED directorate. She had gone to the car park, where the applicant also came. She did not talk to him but asked the woman if she was Nicole. She did not give her surname. They said they were from the police, but she was not sure who they were and felt uncomfortable and intimidated and moved away. The applicant had not raised his voice and she did not hear him swear at the officers. It all happened quickly and she did not hear the officer telling the applicant to step back or raise his hand. In re-examination the witness said the car park is in 17 C Street, and there is a door in the business centre that leads to a bathroom and a gym.

82. The applicant also tendered some character references, the contents of which are outlined below.

Respondent’s evidence

Mr Gary Lawson

83. This witness adopted his statement with annexures dated 15 January 2025 (exhibit R4) in which he stated inter alia that he is an investigator attached to the Security Licensing and Enforcement Directorate (SLED) whose duties include conducting audits and investigations within the New South Wales security industry.

84. On 10 May 2024 and 26 June 2024, he prepared two statements, respectively, in the matter of Police v AVS Services Aust Pty Ltd which related to security licensing-related offences.

85. On 3 March 2022, Nenad Petrovic, a former AVS employee, made a complaint to SLED about AVS. On 20 July 2022 he commenced an investigation into AVS for possible breaches of ss 38A and 39. Around 6 June 2023 he prepared an investigation report making a number of recommendations, including the issue of penalty notices to AVS (exhibit R1, pp 71 – 80).

The penalty notices

86. Following the conclusion of his investigation, he recommended, because of AVS’s history of non-compliance and the seriousness of the alleged offences, that penalty infringement notices be issued to AVS. He also recommended that AVS’s master licence and the applicant’s class 1A 2B security licence be revoked. At the time of the revocation of his security licence, he was the nominated person for AVS.

87. On 16 June 2023, the witness issued four penalty notices to AVS for:

• knowingly employing an unlicensed person contrary to s 39 of the SI Act;

• unlawfully providing a subcontractor, Food Fresh Imports Pty Ltd, without the client’s agreement in the contract for the provision of persons, contrary to s 38A(1) of the Act;

• obstructing and hindering an enforcement officer in the exercise of function by providing a false service agreement between AVS and Castle Hill Tavern, contrary to s 39L(1)(b) of the Act; and

• failing to provide the required records requested in the notice (in relation to the payslips provided directly by AVS or through a subcontractor for each person provided at the Castle Hill Tavern) contrary to s 39L(1)(b) of the Act.

88. Two of the charges were dismissed by Burwood Local Court on or around 31 May 2024 on the basis that the term “obstruct” in s 39L required a physical obstruction, as opposed to obstruction by email or another electronic method. The two remaining penalty notices were withdrawn by the prosecutor at Parramatta Local Court on or around 18 July 2024, on the grounds outlined above.

Communication with the applicant regarding an interview

89. At about 9:20 5 AM on 8 May 2023, he emailed the applicant and asked whether he could attend a recorded interview between 29 May 2023 and 9 June 2023. At about 1:50 7 PM on the following day, he sent a further email saying “I have tried to call you, unfortunately with no luck. I can just make out the screenshots you text to me and I think it says you are unavailable till 24 July. Could you please call or try the email again to discuss this matter further”.

90. At about 12:40 3 PM on 16 May 2023, he sent a further email to the applicant saying “Further to our discussion regarding your availability for an interview. If I or SLED require further information or records, could you please let me know who is acting in your role while you are away for the master licences that you are the nominated person”. At about 10:24 AM on 17 May 2023, he received an email from the applicant saying, “I’m still in control of all operations via phone and email however with my authorisation any compliance or legal matters will be handled by my solicitor in my absence”. At about 10:40 1 AM on 8 June 2023, he emailed the applicant saying “when you are free could you please contact me to discuss this investigation?”.

91. The same day, he telephoned the applicant and they spoke about the outcomes of the investigation and his availability to attend an interview to discuss his response to the s 39O notice issued to AVS. Mr Nassif told him that he would be overseas until 19 July 2023 and asked if he could email the offences to him. During the conversation he recalls Mr Nassif asking him “what was this all about?”. He recalls telling him “you need to have to go back and have a look at the documents you sent me in your response to the s 39O notice and that will tell you what I was talking about”.

92. At about 6:00 a.m. on 14 June 2023, he emailed the applicant saying “could you please contact me to discuss the outcomes of the investigation into AVS Services Aust Pty Ltd?”. At about 1:12 PM the following day he emailed the applicant saying “as discussed, when you return from leave in late July, you will be invited to attend an interview to discuss your response to a section 39O notice issued to AVS Services Aust Pty Ltd. Soon an enforcement notice will be sent to AVS Services Aust Pty Ltd, outlining the offences”.

93. He received no response to his emails of 8, 14 or 15 June 2024 and never conducted an interview with Mr Nassif during his investigation into AVS.

All Food Fresh Imports Pty Ltd

94. From his investigation and discussions with Mr Petrovic, he became aware that he was employed by AVS but was paid by All Food Fresh Imports Pty Ltd and received his payslips from All Food Fresh from the email address payslips@Lucky88. net.au. A search of “lucky 88” showed a number of entities, including Lucky 88 Enterprises Pty Ltd.

95. Further investigation confirmed that All Food Fresh Imports Pty Ltd has never held a master licence, nor has Lucky 88. On the basis of his experience as an investigator attached to SLED, his review of the documents provided by Mr Petrovic and matters of which he has become aware in the course of his investigation, he believes that AVS has paid Mr Petrovic through All Food Fresh Imports Pty Ltd in an attempt to circumvent:

• Security licensing legislation requirements primarily in relation to subcontracting and record-keeping;

• taxation obligations; and

• the Security Services Industry Award.

96. Cross-examined by Mr Dubler on behalf of the applicant, the witness said that emails passing between the witness and the applicant, which he detailed, showed that the latter had been granted multiple extensions of time to comply. In his email of 11 April 2023 (exhibit R1, p 212) he had asked the applicant to provide more specific information and the following day pointed out that the applicant had “failed to provide the payslip for one guard – Nenad Petrovic”. On 13 April the applicant wrote to the witness that “I can confirm that Nenad was an employee of the subcontractor that we used at Castle Hill Tavern. As such we did not prepare or provide him with payslips and accordingly, we have no access to such records”. He said that his office had reached out to the subcontractor to see if payslips could be obtained, but received no response (id., 211).

97. Also on 13 April, the applicant wrote “Gary, I’m just as confused at this point but mark my words I’ll be placing pressure on my team to get to the bottom of it” (id., 210). The witness agreed that the email showed that the applicant was relying on his team, in that instance. On 31 March the applicant wrote when seeking a further extension, “I’m waiting for supply partners to produce further required documents” (id., 214).

98. He had emailed the applicant or on 8 May asking him to provide a date for a s 39Q recorded interview between 29 May and 9 June. The applicant had replied that he was unavailable until 24 July (id., 210). He had again emailed the applicant on 12 May, 17 May, 8 June and 14 June and on 17 May the applicant had said that compliance matters would be handled in his absence by his solicitor (id., 209). The witness agreed that he had known that the applicant was on leave and wanted to meet with Mr Lawson on his return. He had not contacted the applicant’s solicitor, however, and said that he had given him enough time. Further, his solicitor would not have known the answers to the questions that would be asked.

99. He had spoken to Mr Petrovic, who had said that he was employed by AVS (exhibit R4, pp 41 – 45).

Mr Stan Kutis

100. This witness, a former police officer, said in his statement dated 19 December 2024 (exhibit R5) that his professional experience has been in the construction, maintenance and support of computer and computer-related equipment. From 2006 to 2009 he attended multiple digital forensic workshops and courses, as well as multiple conferences and symposiums in the field of digital forensics.

101. From 2006 to 2009, while a sworn police officer, he was attached to the State Electronic Evidence Branch, which involved identifying, reconstructing and recovering evidence obtained through computers as part of police investigations, training other officers, appearing in courts and tribunals as an expert witness and conducting forensic investigations, including the preservation and examination of data contained within computer systems.

102. As part of his current role as an assessment officer with SLED he conducts probity and criminal history checks of security licence holders, makes assessments on whether an individual is “fit and proper person” to hold a security licence and conducts audits of security licence holders to ensure compliance with licence conditions and rules. After a detailed explanation of the nature, accessibility and significance of metadata, he stated that on 27 November 2024 Gary Lawson had sent him an email originally sent to Gary by someone undersigned as David on 9 April 2024, with the subject RMS: Castle Hill SLED Audit.

103. Two of the attachments to the email were Microsoft Word Documents, being Castle Hill Tavern Security Service Agreement.docx and Castle Hill Tavern Audit.docx. On the basis of his experience and his review of the metadata associated with the service agreement:

• the document creation timestamp was 4:45 PM on 6 February 2023;

• the document was last edited and saved by P S at 2: 53 PM on 5 April 2023 which was four days before the email from David to Gary Lawson;

• it appeared to have been saved 9 times; and

• the total editing time for the document was 31 minutes. The author of the document was “David”.

104. On the basis of his review of the metadata associated with the Castle Hill Tavern Audit document:

• the document creation timestamp was 12:08 PM on 15 March 2023;

• the document was last edited and saved by John Doe at 2:47 PM on 16 March 2023;

• it appeared to have been saved 12 times;

• the total editing time for the document was 1 hour and 37 minutes; and

• the author of the document was “John Doe”.

105. Mr Kutis stated that it is extremely difficult to ascertain the identity of the person sitting behind a keyboard and therefore it is difficult to determine who may or may not have created a document or file, or for that matter anything else that can be created on the computer. That was also the case for emails. One could not be sure that who sent you an email is in fact the person they claim to be. When forwarding an email, all forwarded text from subsequent emails in the email chain can be edited to suit a particular narrative.

106. The contents of a Word or PDF document, or an email, or any other such file or container can be copied and then pasted into a vast array of different computer applications, at which point the original metadata, author, content, and timestamps of the documents and files are no longer available and potentially lost for ever, and the narrative and content within those files may have changed multiple times.

107. Cross-examined by Mr Dubler, the witness reiterated those points, stressing that the author field is not editable. The username can be changed when editing the document. It was unreliable to rely on the author metadata.

Ms Nicole Farrell

108. In her statement dated 12 February 2025 (exhibit R6), Ms Farrell, an investigator and enforcement officer with SLED, said inter alia that she had created event report E 9835530 (exhibit R3, pp 85-89) and confirmed that it contained an accurate account of what she saw, heard and observed on 7 January 2025 when in company with Officer Edward Stanmore she had attended at 15 C Street.

109. She stated that when she and Officer Stanmore arrived at No. 15, she noticed that there was a steel security fence along the entrance to No. 15, with a security gate that was closed. There was no way to enter the property as the gate was closed. She looked at the front entrance of the next property, No. 17, and on the front of that gate there was a small sign displaying an arrow which said to buzz the intercom or call 9912 2100. She recognized that number as the number recorded for AVS Services on the Onegov system, so she rang the intercom in an attempt to speak with a representative of AVS Services. She and Officer Stanmore entered the car park of 17 C Street, as the latter was speaking with Mittul Hansaliya, who had collected what appeared to be an Uber Eats delivery from a delivery driver who had parked in the driveway. While speaking with that man, he re-entered No. 17 and she and Officer Stanmore entered the premises with him. Mittul Hansaliya spoke to them freely and provided them with a copy of his digital licence, which they used to identify him.

110. They did not ask for permission to enter the premises as they were engaged in a conversation with Mittul and believed there was security activity being carried on at the premises. For that reason they were authorized to enter the property using their powers under s 39I of the SI Act. Further, Onegov records indicate that three security businesses operate from the premises at 88 P Road and 17 C Street. To the best of her understanding, those two addresses were for the same property that sits between P Road and C Street.

111. Mittul had engaged in conversation with them freely, and they did not threaten to prosecute him. When Rolda Yacoub walked into the car park, the applicant followed closely behind her and stopped about 2 or 3 m behind her, and appeared agitated. Neither she nor Officer Stanmore “demanded” Rolda’s full name or access to the AVS Services office. They did ask what security companies worked at the premises and asked for Rolda’s full name, which she did not provide. At no time did the applicant identify himself as being David Nassif. They told him that they were there to speak to someone from AVS Services but did not say that they were allowed entry by Mittul.

112. The applicant replied that there was no-one there from AVS Services and said he had nothing to do with AVS next door. They explained to the applicant their powers and the reasons for entry, and encouraged him to call police in view of his escalating behaviour. They did not identify themselves as police officers but introduced themselves as enforcement officers with SLED and showed their identification cards on a number of occasions.

113. Information held on SLED’s licence system recorded security companies at 15 C Street and 88 P Road, and as they believed a security activity was being carried out on the premises they had a right of entry without warrant. They were not told that they were on the wrong property but the applicant did tell them that he would be contacting his solicitor and would be lodging a formal complaint. She did not see Officer Stanmore approach or scream in the applicant’s face. It was the applicant who approached Officer Stanmore, and because of how agitated the applicant was, Officer Stanmore requested him to stand back on three occasions and gestured with his hand to keep distance between himself and the applicant. Officer Stanmore remained calm throughout the conversation, but the applicant had raised his voice, had a red face and had agitated body language and used obscene language. His behaviour caused her concern for her safety. She attempted to explain their powers and reasons for entry, but he did not want to hear what she was saying.

215. The applicant’s conduct in the 7 January 2025 interaction with the investigators, though improper and objectionable, was an isolated incident. Nothing of that nature has been recorded previously in the applicant’s 28-year service in the industry. The applicant pointed out that in Constantin v Commissioner of Police, New South Wales Police Force (GD) [2013] NSWADTAP 16, [26], the Appeal Panel had expressed concerns about finding a lack of fitness on a ground that was “narrowly based”. The 7 January episode in itself is not a sufficient basis for a finding that he is not a fit and proper person to hold a licence.

216. Regard should also be had to the character evidence outlined above, notably to Messrs Budd and Sudana’s strongly supportive remarks about the applicant’s character in a professional setting.

217. The totality of the evidence in my view leads to the conclusion that the applicant is a fit and proper person to hold a security licence of the kind in question, and I so find.

The public interest

227. The alternative ground for revoking the applicant’s licences advanced by the respondent was that it was not in the public interest for the applicant to hold them.

228. In O’Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence under the SI Act, the appeal panel described the public interest ground in the SI Act in the following terms:

[A]n inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

229. The concept does include standards acknowledged to be “for the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

230. In the context of this regulatory scheme, the purpose and scope of the legislation are the attainment of a professional and safe security industry, free from persons who engage in unprofessional and irresponsible conduct. Paramount consideration is to be given to public safety: Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43, [18]. That being so, the applicant’s personal interest in retaining his licence cannot outweigh the public interest in maintaining full confidence in the professionalism of those involved in the industry. Nor should the decision-maker shy from exercising a discretion merely on the ground that the licensee may suffer hardship or inconvenience or both. All the circumstances of the conduct must be taken into account: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [22]; Blisset v Commissioner of Police, New South Wales Police Force [2006] NSWADT 114, [32].

231. As the discretion in s 26(1)(d) and cl 25(1) must be exercised in light of the activities that the person will be engaging in, the Act’s objects and purposes are relevant. They include the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in it are appropriately qualified and persons of integrity: O’Neill v Commissioner of Police, New South Wales Police [2005] NSWADT 130. As was pointed out in Haining v Commissioner of Police [1999] NSWADT 6, the security industry has a special role in ensuring that public order is maintained, and that the public and public venues are safe.

232. The applicant has worked in the security industry for 28 years and, having filled a variety of roles, from door guard to senior national manager, he is a knowledgeable and skilled participant in the industry. There is no evidence of any risk to public safety posed by the applicant’s holding a security licence. The 7 January 2025 episode was an isolated incident and needs to be viewed in the context of his long and creditable service and his favourable reputation in the industry. Although he acted carelessly in complying with the s 39O notice, that lapse also should not be viewed in isolation. The evidence leads to the conclusion that it would not be contrary to the public interest for the applicant to hold the licence in question, and I so find.

233. The respondent also raised a subsidiary issue, that the applicant had contravened s 33(2)(b) of the Act by, in relation to information, records or particulars that the applicant was required to furnish under s 39O, making a representation or statement that he knew was false or misleading in a material particular (exhibit R2, p 3). In view of the finding above that the evidence does not establish that the applicant knew the representations were false, that contention fails.

Orders

1. Decision under review set aside.

2. A class 1A 2B security licence is to be reissued to the applicant.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 May 2025