Roberts v Commissioner of Police, NSW Police Service

[2003] NSWADT 130

CITATION:	Roberts -v- Commissioner of Police, NSW Police Service [2003] NSWADT 130
DIVISION:	General Division
PARTIES:	APPLICANT Ian James Roberts RESPONDENT Commissioner of Police, NSW Police Service
FILE NUMBER:	033102
HEARING DATES:	03/06/2003
SUBMISSIONS CLOSED:	06/03/2003
DATE OF DECISION:	06/04/2003
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Jurisdiction - Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997
CASES CITED:
REPRESENTATION:	APPLICANT M Simone, solicitor RESPONDENT C Capper, solicitor
ORDERS:	Application dismissed.

1 This decision concerns a preliminary issue as to whether the Tribunal has jurisdiction to hear the applicant’s application. The Tribunal determined to decide this issue “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

2 On 22 April 2003, the applicant, Ian James Roberts, filed an application with the Tribunal for a review of a reviewable decision. Mr Roberts stated that the decision was made on 28 March 2003. Mr Roberts attached a letter to the application dated 28 March 2003 signed on behalf of the Registrar, Security Industry Registry, NSW Police. That letter stated that:

I am writing in reference to the Authority for Pre-Training Criminal Record Check concerning your suitability to undertake security industry training.

A person is not eligible to undertake any such approved security industry training if the person would be refused a licence upon application.

Inquiries made with the National Names Index reveal that on the basis of the details contained therein the Commissioner would be bound by the legislation to refuse granting of an application for a security licence to you.

Attached is a list of the offences requiring mandatory refusal by the Commissioner of Police.

3 Section 38(1) of the ADT Act confers jurisdiction on the Tribunal to review reviewable decisions. That section states that:
The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other functions of the administrator identified by the enactment.

4 The decision in this case is a decision of the respondent to the effect that the applicant is not eligible to undertake an approved security industry training course. The applicant was unable to point to the enactment under which such a decision is reviewable by the Tribunal.

5 Under s 29 of the Security Industry Act 1997 gives the Tribunal jurisdiction to review certain decisions:

(1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions:
(a) the refusal or failure by the Commissioner to grant a licence to the person,

(b) a condition imposed by the Commissioner on a licence granted to the person,

(c) the revocation or suspension of a licence granted to the person.

(2) For the purposes of this section, an application for the grant of a licence is taken to have been refused if the licence is not granted within 60 days after the application is made in accordance with this Act.
6 While a decision made by the respondent to refuse to grant a licence to a person, is reviewable, a decision that a person is not eligible to undertake an approved security industry training course is not reviewable. That is the case despite the fact that the completion of such a course is a pre-requisite to being granted a licence.

7 The Tribunal cannot review a decision unless an enactment gives the Tribunal jurisdiction to review that decision. As there is no enactment which gives the Tribunal jurisdiction to review the decision that a person is not eligible to undertake an approved security industry training course, the Tribunal cannot hear this matter.

8 If the applicant applies for a licence and his application is refused, he can then apply to the Tribunal for a review of that decision. The application is dismissed.