Ridler-Dutton v Commissioner of Police, NSW Police
[2012] NSWADT 57
•28 March 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Ridler-Dutton v Commissioner of Police, NSW Police [2012] NSWADT 57 Hearing dates: 28 November, 21 December 2011 Decision date: 28 March 2012 Jurisdiction: General Division Before: S Frost, Judicial Member Decision: Set aside the decision under review; decide instead that a class 1F security licence is to be granted to the Applicant.
Catchwords: Security industry - armed guard activities - discretion to refuse to grant an application for a licence where a previously licensed applicant has not been engaged in the relevant activity for a significant period - factors to be taken into account in the exercise of the discretion Legislation Cited: Security Industry Act 1997 Category: Principal judgment Parties: Glen Ridler-Dutton (Applicant);
Commissioner of Police (Respondent)Representation: Counsel
C Ronalds SC (Applicant)
PCC Lawyers (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
File Number(s): 113209
reasons for decision
GENERAL DIVISION (S FROST (JUDICIAL MEMBER)): The Applicant has worked in the security industry for almost 20 years.
From 1991 to 2004 he lived and worked in New South Wales. During that period he undertook a range of security activities including, for three years from the beginning of 2002 until the end of 2004, armed guard activities.
In 2005 he relocated to Victoria but in 2010 he returned to New South Wales. He applied for, and in September 2010 was issued with, a class 1ACE security licence in this State, authorising him to carry on the following activities:
- class 1A - unarmed guard;
- class 1C - crowd controller;
- class 1E - monitoring centre operator.
In December 2010 he applied for an upgrade of his licence to include the following activities:
- class 1B - bodyguard;
- class 1F - armed guard.
His application was refused, and the refusal was affirmed on internal review. On 28 July 2011 he applied to this Tribunal for review of the refusal decision.
The Tribunal hearing was conducted on 28 November and 21 December 2011. During the first day of the hearing the respondent Commissioner of Police agreed that the Applicant was entitled to the issue of a class 1B licence on the basis of the Applicant's statement (Exhibit A7, at [2]) that he had "engaged in close personal protection [activities]" between 2005 and late 2009. On the Respondent's undertaking that a class 1B licence would be issued to him, the Applicant withdrew his application for review of the original refusal decision to the extent that it related to the class 1B licence.
What remains in issue between the parties is the question whether the Respondent should issue a class 1F licence to the Applicant.
The legislation
The licensing of people who work or wish to work in the security industry is controlled by the Security Industry Act 1997. That Act prohibits the carrying on of specified "security activities" without a licence.
Section 11 of the Act deals with class 1 licences. People who hold class 1 licences are authorised to carry on the activities that are specified in s 11 according to the subclasses in respect of which they are licensed. Relevant to the Applicant's case is paragraph (1)(f) of s 11, which, in respect of a "class 1F" licence:
authorises the licensee to patrol, protect, watch or guard approved classes of property while armed (but only under the authority of a licence or permit to use or possess firearms under the Firearms Act 1996).
An alternative to a class 1 licence in a particular subclass is a provisional licence (s 12A of the Act) in the corresponding subclass. So, relevantly, a class P1F provisional licence (s 12A(1)(f)) authorises the licensee to carry on the same activities as a class 1F licence, but "only while being supervised as required by s 29A". In practical terms, s 29A specifies that the holder of a P1F licence would need to be directly supervised, in relation to those authorised activities, by the holder of a class 1F licence.
Other provisions that are relevant to class P1F licences are s 14(5) and s 23C which provide as follows:
Section 14
(5)In the case of an application for a class P1F licence, the applicant must also supply a letter of endorsement from the applicant's employer or proposed employer (being an approved master licensee providing uniformed cash in transit security services) that states that the applicant is or will be employed by the employer.
Section 23C Special conditions - class P1F licences
(1)It is a condition of every P1F licence that the licensee must, before carrying on any security activity authorised by the licence, successfully complete approved training provided by the licensee's employer (being an approved master licensee providing uniformed cash in transit security services).
(2)It is a condition of every class P1F licence that the licensee remains employed by the approved master licensee who provided the licensee with a letter of endorsement, as referred to in section 14(5).
(3)It is a condition of every class P1F licence that the licensee must:
(a)within 3 months of being granted the licence, successfully complete such further training as is determined by the Commissioner, and
(b)successfully complete such other training as may be required by the Commissioner during the term of the licence.
(4)The Commissioner must revoke a class P1F licence if the Commissioner is satisfied that the licensee has failed to comply with a condition under this section.
I have referred to these "provisional licence" provisions not because the Applicant has applied for such a licence - he has not - but because the Respondent considers that a class 1F licence should not issue to the Applicant unless he has first gone through the provisional licence regime.
Mr Cameron Smith, the Director of the Security Licensing & Enforcement Directorate (SLED) of the NSW Police Force, explains in his statement (Exhibit R1) that provisional licences were introduced in 2007 as a consequence of a major overhaul of the security industry undertaken in 2005. The original proposal arising from that overhaul was that provisional licences would be available for class P1A, P1B, P1C, P1D, P1E and P1G - significantly, not P1F, an apparently deliberate omission which Mr Smith says (R1 [20]) "removed the entrance pathway to armed security activities for inexperienced applicants". However, following submissions from and further consultation with the industry, it was decided to introduce the P1F class as well (R1 [25]-[27]).
Mr Smith notes the following comment of the Honourable Tony Kelly, the responsible Minister, in the second reading speech in the NSW Legislative Council for the amending Bill:
We will also introduce a provisional licensing system. New entrants to the industry will be required to undertake a pre-licensing course, which has been developed by TAFE and approved by the Commissioner of Police. This course will provide new entrants with the critical foundation knowledge necessary to obtain a provisional licence and subsequently a job in the industry.
The provisional licensing scheme will also ensure that a new entrant to the industry has supervised on-the-job training from an appropriately qualified security employee, so he or she can learn practical skills required to carry out their duties effectively. This on-the-job training will be assessed in the workplace, before a new entrant can be deemed eligible to apply for a full licence.
From the Applicant's perspective, the provisional licensing system presents a significant problem in his case. Because of the special conditions in s 23C of the Act (referred to above), he can only progress from a P1F licence to a full class 1F licence after 12 months of supervised employment with an "approved master licensee providing uniformed cash in transit security services". There are apparently only three such master licensees in this State. Therefore, to obtain a P1F licence, the Applicant would have to resign his position with his current employer (where he has worked since August 2010, and before that, from 1997 to 2005) and seek employment with one of the three cash-in-transit master licensees. He is understandably reluctant to do that, but even if he did, it is not certain that he would be able to secure such employment.
The Applicant's history of activity in the security industry
The Applicant's relevant work history is set out in his statements dated 27 September 2011 (Exhibit A6) and 16 November 2011 (Exhibit A7) and is not disputed by the Respondent. Exhibit A6 includes the following (the Tribunal ordered on 6 September 2011that the name of the Applicant's current employer not be disclosed; the entity is referred to here as "XYZ"):
[3]From 1991 until 1995 I worked for Prime Protection as a Security Officer. My key duties and responsibilities in that position included:
a)Crowd control at licensed premises; and
b)Body guarding of high profile and international identities.
[4]From 1995 to 1997 I was employed by Blucon Security as a Security Officer. My key responsibilities in that position included:
a)Static guarding at retail stores; and
b)Security duties at commercial high rise buildings in CBD locations.
[5]From 1997 to 2005 I was employed by XYZ Limited (XYZ) as a Security Officer. My key duties and responsibilities in that position included:
a)Unarmed guarding;
b)Providing security at the headquarters of XYZ Limited;
c)Cash-in-Transit duties escorting daily banking;
d)Executive protection for Directors and dignitaries visiting the building;
e)Crowd control duties at high profile corporate events;
f)Deputy Chief Fire Warden;
g)Monitoring centre operations; and
h)Supervising five full-time staff and contract personnel.
[6]From 2002 to 2004 I worked for Bos Security Group Pty Ltd (BSG) as well as XYZ. My key duties and responsibilities included the following:
a)Armed Guarding at high profile buildings; and
b)The protection of high value and portable assets at prominent sites.
[7]From 2005 to 2009 I was employed by Business Risk International, Melbourne. My key duties and responsibilities in that position included the following:
a)Unarmed guarding conducting patrols of business, retail and residential sites;
b)Supervising and co-ordinating security team; and
c)Daily cash escorts at the Australian Centre for the Moving Image (ACMI).
[8]From August 2010 and ongoing I have been employed by XYZ in the Corporate Security Division. My duties and responsibilities include the following:
a)Mobile patrols and alarm responses;
b)Static guarding; and
c)Crowd control at Corporate Events.
[9]In the course of my employment with XYZ from 1997 to 2005 and BSG from 2002 to 2004 I regularly performed Executive Protection including Bodyguarding, Cash-in-Transit and armed security duties which are relevant to the competencies required for the holding of a Class 1BF security licence.
In Exhibit A7 he says this:
[2]... I did engaged (sic)in close personal protection in the course of my employment with Business Risk International between 2005 and late 2009. The following information is provided in relation to that experience.
a)Whilst working for Business Risk International I was assigned to work at Queen Victoria Precinct (the QV Precinct) in Melbourne for the period of 2005 to 2008.
b)My role at QV Precinct was as a Security Shift Supervisor and Control Room Operator.
c)As a Security Shift Supervisor I was placed in charge of coordinating and carrying out unarmed close personal protection of VIPs and key persons for major public events which occurred during my shift. The events were held in an open air court yard at the QV Precinct.
d)Approximately six of these events were held during my shift each year from 2005 to 2008. The VIPs involved in these events consisted of mainly television celebrities who attracted significant crowds of up to several thousand people.
e)As supervisor I worked in close proximity with the QV Precinct Events Coordinators. I was briefed by the Events Coordinators on VIPs attending, the equipment, the staff involved and the timetable for the event including time of arrival of the VIPs and closing, or bump out, time.
f)As there were a limited number of entry and exit points to the square where these events were held, part of my role was to escort VIPs from the vehicles and into the event area and to the stage. The VIP usually remained in the stage area.
g)Once a VIP was present, the VIP usually remained in the Stage area. I remained in close proximity to the VIP and continued to supervise the other staff who were either roving around the site or placed in strategic static position.
h)When the VIP was due to leave the stage area, I was responsible for personally escorting the VIP from the stage, out of the Event area and back to the vehicle.
i)In 2008 I was assigned by Business Risk International to work at the Australian Centre for Moving Images (ACMI) in Federation Square Melbourne and continued in that position until late 2009.
j)As the Security Supervisor at ACMI, I was responsible for various coordinating and supervising duties as well as unarmed close personal protection of VIPs and key persons.
k)Events were held regularly to coincide with new exhibitions. At these events artists and film directors were in attendance and required close personal protection. The artists and directors were escorted to and from the Centre by me or a member of my team.
l)In or around September 2009, following the re-fit of the Centre, an event was held to celebrate the reopening of the Centre. Among the VIPs present was the Victorian Premier John Brumby. The attendance of this politician required extensive planning of alternative entering and exiting routes as well as scoping of potential safe rooms. I was involved in working in conjunction with the Premier's security detail to ensure the safety of this politician and other VIPs attending the reopening.
m)Another role of mine at ACMI was daily cash escorts. This involved escorting a member of staff carrying the cash from a cash point for an exhibition in the Centre to the cash office on the top floor of ACMI. Sometimes if an exhibition was particularly popular I would be required to do a couple of escorts a day.
n)The procedure was as follows. I was advised by radio that I was required to escort a staff member to the cash office. When I received such a call I would go to the exhibition to accompany the staff member through the building to the cash office. I would advise the staff member, where possible, to carry the money on their person, or else in a discrete (sic) manner such as in a plastic bag.
o)A major part of this role was to ensure the safety of the staff member carrying the money.
p)A further role of mine at ACMI was to escort disruptive people or people with no proper purpose at the Centre from the premises. This was to ensure the safety of staff and members of the public.
The Applicant's recent upgrade in qualifications
In Exhibit A6 the Applicant refers to the training he has recently undertaken (again, this is not disputed by the Respondent):
[12]From November 30 2010 until the 2nd of December 2010 I undertook further security industry training provided by the VAST Academy ... . I was granted the following qualifications by the Vast Academy:
a)Certificate II in Security Operations - granted 2 December 2010;
b)Certificate III in Security Operations - granted 2 December 2010;
c)Successful completion of the Monadnock Expandable Baton and Handcuff Course - granted 30 November 2010;
d)Successful completion of the Monadnock Defensive Tactics and Weaponless Control Course - granted 30 November 2010.
...
[13]During the training provided by VAST in 2010, I was deemed competent in all of the required modules to be issued with a Class 1BF Security licence.
...
[15]In November 2010 I undertook advanced first aid training provided by Re:Viva ...
Statements in support of the Applicant
Jane McLean is the Chief Executive Officer of Vast Academy (Aust) Pty Ltd (VAST Academy). She provided a statement to the Tribunal (Exhibit A1) which is not challenged by the Commissioner. She has NSW security licences in classes 1A/1B/1C/1D/1E/1F/1G and 2A/2B/2D/2E/2F, and a Category H Firearms Licence. She has a number of diplomas and certificates relevant to the security industry and has completed several training courses provided by local and overseas law enforcement agencies. She explains at [2] of her statement:
I have worked in the security industry continuously for the last 12 years and have been a NSW Police Officer for 26 years from 1985-2011. During my police service, I was the Education Development Officer for the Mt Druitt Local Area Command and responsible for the planning and co-ordination of all training for over 130 police on an annual basis from probationary constables to senior commissioned officers. I carried out these duties for a period of 7 years.
VAST Academy, according to Ms McLean, offers a full range of courses which provide training in competencies and skills required to work in the security industry in Australia.
Ms McLean explains at [22] of her statement that she is responsible for much of the recognition of prior learning (RPL) assessment undertaken by VAST Academy. She says:
... The process I undertake for recognition of prior learning involves a review of the prior qualifications of the students. It also involves the type of qualification and the nature of the skills and knowledge requirements to carry out that particular task. Consideration is also given to the recent work undertaken by the Candidate and if they have significant similar duties and skills to those being assessed for the qualification. Also the extent of time since the task or similar duties have been carried out by the Candidate and the possible deterioration of those skills and knowledge over the length of time involved is considered. ... I conduct a detailed review of all Candidates' work histories and personally interview all RPL Candidates. I also require in some circumstances for Candidates to attend further training to update their knowledge and skills if there has been significant changes since the issuance of their original qualification and their application for RPL at the present time.
She continues:
[25]... There are very few Security Employer Organisations that offer quality, up to date on the job training for their staff. One company that prides itself on continual skills training for their staff is XYZ Pty Ltd. It is essential for XYZ operatives to be well trained and rehearsed in all areas of Security because of their high profile clients. Any ongoing repetitive training received is usually retained by the individual. After reviewing Glen's portfolio of evidence he attended Vast Academy to complete a 2 day upgrade course. On interviewing Glen I found him to be very capable and highly competent in all areas he was being assessed in. I believe that the ongoing practice of skills over a seven year period with XYZ Pty Ltd has most definitely been retained by Glen.
[26]As an operational Police Officer for 26 years I have had the benefit of working with different calibres of people, male and female, young and old, competent and not so competent, officers from multi-cultural backgrounds and as an Education Development Officer with the NSW Police I was also responsible for identifying Officer's deficiencies and determining personal development programs for them.
[27]As a result of this exposure I can now quickly identify characteristics best suited to certain roles in relation to security tasks.
...
[30]For Mr Ridler-Dutton to amend his NSW licence and add 1B and 1F sub-classes he was required to upgrade his previous Certificates II and III Security Operations qualifications to meet the new licensing requirements. Mr Ridler-Dutton was required to attend 2 days of refresher training where he completed all lectures and Student Workbooks 1 and 2. He was also required to complete an additional one day training course for Defensive Tactics. Once the 1F sub-class is issued, Mr Ridler-Dutton will then be required to complete a Firearms Qualification Shoot.
[31]I understand that Mr Ridler-Dutton has over 19 years continuous experience with the Security Industry and has worked in varied roles. He has extensive knowledge, skills and training which are backed by his qualifications and specialised certificates of training provided which I considered when assessing his RPLs. He has worked at a higher level of security than the average guarded due to his employment with XYZ Limited and has references acknowledging his performance. His experience and ability are evident in speaking with him.
...
[34]Based on my knowledge of [his] previous work history and the recent assessment of his skills by myself on behalf of VAST Academy, I say that Mr Ridler-Dutton has all relevant qualifications, experience, skills and attitudes to carry out body guarding and armed guard roles professionally and competently in NSW. He has received extensive training in these fields which was ongoing during his employment with XYZ Limited and BSG. This type of training and experience is then part of the person's ongoing skill set. Based on my recent interactions with Mr Ridler-Dutton during his training I have no doubt that Mr Ridler-Dutton maintains this skill set.
[35]... He can demonstrate previous training and competence and extensive experience. He has retained his knowledge and skills and is confident when questioned on what to do in certain circumstances. ...
...
[46]In conclusion, having been an Operational Police Officer for 26 years and Licensed Security Guard for 12, I would have no hesitation in working alongside Mr Ridler-Dutton in a close personal protection or armed guard role. ...
The Tribunal also has before it an unchallenged statement (Exhibit A2) by the General Manager of XYZ's Corporate Security Division. In it he says that he is the nominated person on XYZ's NSW Security Industry Master Licence, a position which, at the time of making the statement in September 2011, he had held for six months. He has worked for XYZ for over 20 years and holds class 1ABCEF and class 2D security licences and a Category H Firearms licence. He says:
[4]... I was a colleague of Mr Ridler-Dutton's [at XYZ from 1997 to 1999] and was then his direct supervisor from 1999 to 2001. In 2001 I was promoted to manager, but continued to work closely with Mr Ridler-Dutton from 2001 to 2005. Throughout this the period (sic) 1997 to 2005, I worked closely with Mr Ridler-Dutton.
...
[7]From 1999 until Mr Ridler-Dutton's employment with XYZ ended in 2005, he was the holder of a 1ABC security licence. The license classifications changed in 2007. During Mr Ridler-Dutton's previous employment he was involved in activities relevant to both the current 'B' and 'F' classes of security licence and he performed these activities to a very high level of competency.
[8]Whilst working for XYZ prior to 2005, Mr Ridler-Dutton completed numerous advance training courses including a 5-day "specialised pistol training program" in 2003 and a 3-day "Corporate Security Close Personal Protection Program" in 2000. The training provided on these courses was well above industry standards at the time and at the present. These types of courses are not generally available or undertaken by security officers holding a 1BF licence and the skills and proficiency to which Mr Ridler-Dutton was trained was at the highest level commercially available.
[9]Mr Ridler-Dutton was reemployed by XYZ as a Security Officer within the Corporate Security Division in August 2010, on his return to New South Wales. As the General Manager of XYZ Corporate Security Division, I had no hesitation in reemploying Mr Ridler-Dutton.
...
[15]I have overseen Mr Ridler-Dutton's performance since he recommenced employment for XYZ Limited. He has completed a rigorous induction program, completed licensing upgrade training as well as in-house scenario training [where] he has demonstrated that he has remained competent in all aspects of his role. He has been unable to be assessed in the practical component of firearms as he has been unable to obtain the required licensing to participate in this activity.
[16]During Mr Ridler-Dutton's employment with XYZ both between 1997 and 2005 and from 2010 onwards, he has been a very reliable and hardworking employee. In all my dealings with him, Mr Ridler-Dutton has conducted himself with the highest ethical standards.
Exhibit A3 is an unchallenged statement of Philip Bos, the Managing Director of Bos Security Group (BSG), which provides security services to XYZ. After outlining his own qualifications (class 1ABCEF and class 2ABCDEF security licences, Category H Firearms licence and licensed Security Consultant, Security Trainer and Firearms Instructor), Mr Bos describes the Applicant as a "fit, capable, level headed and intelligent person who has demonstrated that he is able to successfully fulfil the required duties to a high standard": [7](b). He also says at [8]:
BSG places great emphasis on our recruitment process to ensure we only employ high quality candidates with unquestionable integrity. Mr Ridler-Dutton has all the attributes of a quality employee that we are looking for. We have worked with him before and know that his work ethic, integrity and capabilities are in line with our expectations.
The power to refuse to grant the licence, and the exercise of the power
The provision on which the Respondent relies to support the refusal to issue a class 1F licence is s 15(2)(c)(ii) of the Act. I set out s 15(2) in full:
Section 15
(2)The Commissioner may refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
(a)in the case of an application for a class 1 licence:
(i)has not, for at least 12 months, held a provisional licence authorising the applicant to carry on the security activity to which the proposed licence relates, or
(ii)has not previously been authorised by a licence (other than a provisional licence) to carry on the security activity to which the proposed licence relates, or
(b)in the case of an application for a provisional licence-has not completed, to the satisfaction of the Commissioner, an approved security industry training course that is relevant to the class of licence sought, or
(c)in the case of an application for a class 1 licence where the applicant has previously been authorised by a licence to carry on the security activity to which the proposed licence relates:
(i)has failed to demonstrate active participation or employment in the security industry for a significant period of the previous licence, after taking into account any actual experience or offered work or contracts, or
(ii)has not been engaged in the security activity authorised by the previous licence for a significant period, or
(iii)has failed to demonstrate continuing knowledge and competency in relation to the security activity authorised by the previous licence.
The use of the words "may refuse" in s 15(2) confirms that it is a discretionary provision, rather than a mandatory one.
There are two stages to the decision-making process in s 15(2)(c)(ii).
The first stage is for the decision-maker to ask whether the conditions for the potential exercise of the power to refuse to grant the licence have been met. The first condition is that the Applicant has previously been authorised by a licence to carry on armed guard activities. The second condition is that he has not been engaged in those activities for a significant period.
Assuming that those two conditions have been met, the power to refuse to grant the licence is enlivened. This is where the second stage comes into play. In that second stage, the decision-maker must consider whether the power to refuse to grant the licence should be exercised. Refusal of the application does not follow automatically once it is determined that the power has been enlivened; the decision-maker still has to consider whether the power should be exercised.
The parties' positions in relation to s 15(2)(c)(ii)
It appears to be common ground that the first condition (see [28] of these reasons) for the enlivening of the power to refuse to grant the licence has been met. This is in recognition of the Applicant's having carried on armed guard activities throughout the three years 2002, 2003 and 2004 and the apparent acknowledgment that the carrying on of those activities was in accordance with a valid licence at the time.
The Respondent further submits that the second condition has also been met. The Respondent takes the view that a "significant period" in the context of s 15(2)(c)(ii) is three years. The Applicant, at the time he applied in December 2010 for a class 1F licence, had not been engaged in armed guard activities for six years (since the end of 2004). The Respondent therefore submits that the second condition has been met.
As far as the second condition is concerned, the Applicant initially submitted (Applicant's Outline of Submissions ("AS"), at [56]) that there was "no statutory basis" for the Respondent's view that the expression "significant period" in s 15(2)(c)(ii) equates to three years. Nevertheless, in taking that position, the Applicant was implicitly accepting (consistently with the Respondent's interpretation) that the focus of s 15(2)(c)(ii) was on the period of time that had elapsed since the Applicant last carried on the relevant activities. I will refer to this interpretation as "the initial interpretation".
During the first hearing day I asked the parties to consider whether an alternative interpretation of s 15(2)(c)(ii) was open - namely, that the real question that was being posed was whether the Applicant had, at any time, been engaged in the relevant activities for a significant period. On this interpretation, the second condition would not be dependent on the time elapsed since the carrying on of the activities, but on the period of time the Applicant had spent engaged in those activities. In other words, the second condition would be met if the length of time during which he had engaged in the activities had not been a "significant period". After some discussion, the hearing was adjourned to allow the parties to make further written submissions in relation to this alternative interpretation.
The Respondent considered the alternative interpretation but submitted that the initial interpretation was the correct one.
The Applicant's supplementary written submissions favour the alternative interpretation. His position now is that:
- the second condition has not been met and as a result the power to refuse to grant the licence was not enlivened;
- alternatively, if the initial interpretation is preferred, then the second condition has not been met because the time elapsed is not a "significant period", and therefore the power was not enlivened; but even if the time elapsed is a "significant period", with the result that the power was enlivened, it should not have been exercised.
The correct interpretation of s 15(2)(c)(ii)
After careful consideration of the parties' further submissions, I have concluded, based on the text of the provisions and the context in which they appear, that the initial interpretation of s 15(2)(c)(ii) is the correct one. There are three reasons for this conclusion:
- subparagraphs (i) and (ii) of s 15(2)(c) both use the expression "has failed to demonstrate ..." and, in my view, if the legislature had meant subparagraph (ii) to carry the meaning conveyed by the alternative interpretation, it would have repeated that expression in that subparagraph;
- the alternative interpretation of s 15(2)(c)(ii) would result in that subparagraph dealing with an almost identical set of circumstances to that covered by subparagraph (i); and
- the language used in subparagraph (ii) is the natural way to encapsulate the concept caught by the original interpretation. If the alternative concept had been the target then the provision would more likely have used the expression "has not engaged in ..." rather than "has not been engaged in ...". The expression used is more apt to describe a continuing, current state of affairs than the historical state of affairs suggested by the alternative.
The decision under review
Mr Smith in his oral evidence confirmed that the critical factor, indeed the only one, that led to the rejection of the Applicant's application for a class 1F licence was the fact that he had not undertaken armed guard activities since at least 2005. He also confirmed that the delegate did not take into account the Applicant's general experience in the industry; or the skills he used to perform the work undertaken since entering the industry almost 20 years ago; or the fact that he had had to demonstrate, in undertaking his recent qualification upgrade with VAST Academy, an ability to exercise judgment under pressure and to make decisions in potential situations of conflict; or that he had used these skills in recent work that he had undertaken in the security industry in Victoria.
He summarised the position of SLED in this way: an applicant needs to demonstrate the relevant competencies (which the Applicant does) and also current, relevant experience (which, in SLED's view, he does not). The Applicant's length of experience did not - in fact, could not - tip the balance in the Applicant's favour because the experience that SLED regarded as relevant was too old.
Consideration
A discretion of the kind mentioned in s 15(2)(c)(ii) must be exercised in a way that promotes, rather than defeats, the policy and object of the Act. The evident policy and object of the Act is to ensure that security activities are undertaken only by licensed persons who are competent to undertake those activities, and who can be relied on to undertake them to a high standard and with safety. Safety is one of the most important concerns. The original decision-maker must have regard to the potential impact that licensing an applicant may have on the safety of the person to be licensed, of their colleagues, of those with or for whom they work, and of members of the general public.
Any exercise of discretion by the Tribunal on merits review of the decision of the Commissioner needs to be undertaken with as much regard for and consideration of the purpose and object of the Act as is required of the Commissioner in the making of the original decision. This is because the Tribunal, on review, fulfils the role of regulator of the security industry, such that the decision of the Tribunal is taken to be the decision of the regulator: s 66(2) of the Administrative Decisions Tribunal Act 1997.
In undertaking his regulatory function the Commissioner must recognise that people who have legitimate claims to be licensed to conduct a particular security activity should have those claims fully assessed and fairly determined, in a way that promotes the policy and object of the Act. In this way the Commissioner can ensure, as far as reasonably practicable, not only that unworthy candidates are kept out of the industry, but also, and equally importantly, that worthy candidates are accepted into the industry and become licensed to conduct the full range of activities for which their aptitude, training, skills, experience, character and attitude equip them.
In this particular case, Mr Smith acknowledges that in deciding not to grant the licence, SLED did not take into account the Applicant's aptitude, skills, experience, character or attitude. The delegate, confronted with a gap of about six years since Mr Ridler-Dutton had carried out armed guard activities, decided on that basis alone that the licence should be refused. The Applicant's experience of almost 20 years in the industry, in circumstances where he has plainly made security work his career, apparently counted for nothing. No consideration of his aptitude or character was undertaken. No examination of his more recent security industry activities in Victoria, or the relevance of the skills that he displayed there, was made. That does not amount, in the circumstances, to a full assessment or a fair determination of his claim.
The evidence, in fact, overwhelmingly points towards a conclusion that the Applicant has the aptitude, training, skills, experience, character and attitude to be licensed as an armed guard. Each of Ms McLean, Mr Bos and the General Manager of XYZ's Security Division is very well placed to gauge the Applicant's suitability to perform armed guard activities. They unhesitatingly support him. I have extensively quoted their statements earlier in these reasons and do not consider it necessary to repeat those excerpts here. The statements are very persuasive, especially since to allow the Applicant to carry out armed guard activities potentially exposes two of those witnesses, and those they serve and employ, to situations of grave physical danger. And yet, with over 53 years of experience in the security industry between them, those two witnesses support the granting of a class 1F licence to the Applicant. Such forceful commendations are not easily ignored.
In the circumstances I am comfortably satisfied that, although at the time of application the Applicant had not been engaged in armed guard activities for a significant period, he nevertheless should be licensed to conduct armed guard activities in this State.
For these reasons the Tribunal sets aside the decision under review and decides instead that the Applicant is to be granted a class 1F security licence.
**********
Decision last updated: 28 March 2012
0
1