Saliba v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 55

CITATION:	Saliba -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 55
DIVISION:	General Division
PARTIES:	APPLICANT Elisabeth Louise Saliba RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013319
HEARING DATES:	15/03/2002
SUBMISSIONS CLOSED:	03/15/2002
DATE OF DECISION:	04/19/2002
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 Mohamed Abdel-Ghani -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 20 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9
REPRESENTATION:	APPLICANT B Kazi, solicitor RESPONDENT D Paterson, solicitor
ORDERS:	The determination of the Commissioner of Police, New South Wales Police Service to revoke the security licences held by Ms Elisabeth Louise Saliba is set aside.

Background

1 These proceedings relate to a determination made by the Commissioner of Police, New South Wales Police Service (“the Commissioner”) to revoke the Class 1ABC and 2B security licences held by Ms Elisabeth Louise Saliba (“Ms Saliba”) under the Security Industry Act 1997 (“the Act”). In making the determination the Commissioner relied on advice received that Ms Saliba had been convicted of a prescribed offence involving fraud, dishonesty or stealing.

2 Ms Saliba is 38 years of age, and has worked in the security industry since 1998. She was issued with a Class 1ABC security licence on 7 July 1999. This licence was due to expire on 26 July 2004. She was issued with a Class 2B security licence on 8 June 2000. This licence was due to expire on 27 July 2005.

3 On 5 September 2000 Ms Saliba was convicted of Social Security Fraud. The conviction related to a claim by Ms Saliba for the Newstart social security payment, which was not payable because Ms Saliba was employed and in receipt of income. She was paid the Newstart Allowance between 14 February 1994 and 20 August 1999. She had been employed and in receipt of income from 28 March 1999. As a consequence of the conviction Ms Saliba was fined $600, ordered to pay court costs of $56 and ordered to pay repatriation of $2,913.00.

4 On 8 May 2001 a delegate of the Commissioner, Ms Jennifer Dolbel, determined to revoke Ms Saliba’s licences. This Notice of Revocation was served on Ms Saliba on 14 October 2001.

5 The Statement of Reasons provided by the Commissioner advised:

“I am satisfied that you have been convicted of a prescribed offence involving fraud, dishonesty or stealing.
I am of the opinion that you are no longer a fit and proper person to hold a security licence.
I consider that it is not in the public interest for you to continue to hold a licence.
I am satisfied that you do not hold the prescribed qualifications and experience in respect of this class of licence. (Certificate II in security guarding).
I am satisfied that you are not competent to carry on the security activity to which the licence relates.
I am satisfied that you have contravened a condition of your licence”

6 The revocation of the licence means that Ms Saliba is no longer authorised to engage in any security activity in respect of the class of licence revoked. She is understandably concerned to ensure that the decision to revoke her licence is the correct and preferable one having regard to all the relevant material and law.

7 On 16 March 2000 Ms Saliba was issued with a Firearms Licence Category H. By notice served on 15 May 2001 she was advised that a decision had been taken to revoke that licence. That decision was taken by Mr Douglas Walsham, a Delegate of the Commissioner. The reasons provided for the decision to revoke the licence are as follows:

“Your licence was issued to possess and use firearms for the genuine reason of Security Guard.
However, you no longer possess a current Security Class 1A or 2D licence and a current Firearms Accreditation Certificate for the category of firearms you wish to use in the course of your duties.
My understanding of the applicable law is that:
Section 24(2) of the Firearms Act, 1996, provides that the Commissioner of Police may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence of the same kind.
Section 12(4) of the firearms Act, 1996, states that an applicant for a firearms licence to possess and use firearms for the genuine reason of Business or Employment must demonstrate that it is necessary in the conduct of the applicant' s business or employment to possess and use the firearms for which the licence is sought.
Clause 12 of the Firearms Regulation, 1997, states that if a licensee's genuine reason for possessing and using a firearm can no longer be established by the licensee, the licensee must within 7 days of ceasing to have the genuine reason, notify the Commissioner in writing of that fact.
Clause 69(2) of the Firearms Regulation, 1997, states that a security guard who possesses a firearm must undertake, at least once a year, such continuing firearms safety training courses as may be approved.
Clause 96 of the Firearms Regulation, 1997, provides for approved firearms safety training courses that are prescribed for the purposes of the Firearms Act, 1996.”
The decision to revoke your firearms licence was made as a result of the legislative requirement as described above.”

8 On 9 November 2001 Ms Saliba applied for internal review of the Commissioner’s decision. That review was undertaken by Ms Liz Halloran, a Delegate of the Commissioner, on 23 November 2001, and Ms Saliba was subsequently advised that the initial decision to revoke her licence was confirmed on review.

9 Ms Halloran stated that upon considering an individual's right to be issued with a licence under the Act, she had formed the view that any decision should be made on the basis that the legislation has quite clearly been enacted to exclude from the industry persons with convictions for certain criminal offences. In this regard, criminal record checks are undertaken on a regular basis after licences are issued to maintain strict licensing requirements by identifying persons who fail to meet the criteria and thereby revoking such licences.

10 With respect to the issue of whether Ms Saliba is a fit and proper person to hold a security licence, Ms Halloran stated that generally, the security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe. In terms of a scheme licensing security guards, good character is a vital feature of the inherent qualifications for much of the work involved. In certain contexts character or reputation may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

11 She noted that Ms Saliba continued with her intent to deceive the Commonwealth Services Delivery Agency over a protracted period of time. As a result she received payment for 20 weeks when it was not payable at all. She considered that such an ongoing course of dishonesty could be viewed very seriously and pose a question mark over Ms Saliba’s integrity and rectitude of character. She therefore concluded that Ms Saliba is not a fit and proper person to hold a security licence.

12 With respect to the issue of the public interest, Ms Halloran noted that the expression “public interest” is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the weft being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. A security licence is granted by the Commissioner with the clear expectation that the licensee utilizes that authority for the good order of society and for the well being of its members or 'in the public interest'. Further, she considered that public interest in the context of section 15 (1) (3) of the Act requires paramount consideration be given to public safety.

13 In respect of the issue of public interest, having considered the circumstances of this offence and other relevant issues, and with a focus upon public safety, Ms Halloran concluded that she was not satisfied that it would be in the interest of the public for Ms Saliba to hold a security licence.

Reviewable decision

14 The reviewable decision is that of the Commissioner, dated 8 May 2001, to revoke to Ms Saliba’s licence. As noted above, the decision was advised to Ms Saliba by letter on 14 October 2001.

15 Ms Saliba applied for review of that decision to this Tribunal by Application dated 20 December 2001. The matter was listed for a Directions Hearing before the Tribunal’s President on 31 January 2002 and a timetable was set for the filing of documents. The matter came before me for hearing on 15 March 2002.

Nature of proceedings

16 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

17 These are not adversarial proceedings in which the applicant carries an onus of proof. The applicant, by making the application, triggers a process of merits review by the Tribunal. The applicant does not take on the responsibility of having to prove a case, nor does an applicant cause an administrator to have to prove a case. The applicant and the administrator are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

18 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the administrator’s, and “there is no presumption that the decision of the administrator is correct” (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

19 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Applicable Legislation

20 Section 16 (1) (a) of the Act provides:

“The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
(a).has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, …“

21 Section 26 of the Act as relevant reads:

“(1) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of that class
(b) if the licensee:
(i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(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) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(d) for any other reason prescribed by the regulations.”

22 Clause 11(d) of the Security Industry Regulation 1998 (“the Regulation”) reads:

"11. For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: …
(d) An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more. “

23 Clause 18 of the Regulation provides:

“In accordance with section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.”

24 At the Hearing the Commissioner withdrew several of the grounds for the revocation. The Commissioner only relies are those grounds under subsections 26(1)(a) and 26(1)(b)(iii) of the Act and Clause 18 of the Regulation.

25 The issue for this Tribunal is: what is the correct and preferable decision? The decision to be made is whether it can be said that it is not in the public interest for Ms Saliba to continue to hold a licence or whether for any other reason Ms Saliba should not continue to hold a licence.

Evidence

26 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file.

27 Ms Saliba presented evidence on her own behalf. Several written testimonials were provided in support of her application.

The Commissioner’s case

28 The Commissioner relies on the Police Service’s file and in particular the fact that on 5 September 2000 Ms Saliba was convicted of an offence involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is imprisonment for 3 months or more. By her actions, Ms Saliba has demonstrated a lack of integrity and has breached community trust in a fundamental matter. The Commissioner’s view is that the circumstances leading to the conviction and the fact of the conviction provide evidence that it is not in the public interest for Ms Saliba to continue to hold a licence.

29 The seriousness of the offence can be ascertained by the fact that an Order was made that Ms Saliba pay a $600 fine and that she repay an amount of $2,913.00. Of this amount, only a small amount has been repaid.

30 If Ms Saliba were an applicant for a licence in her present circumstances the Commissioner would be required by the Act to refuse the application because of the conviction.

31 Ms Paterson urged that a broad interpretation be given to the Act and that the Tribunal should find that the purpose of the Act is to maintain a standard in the industry by excluding persons with criminal convictions. A security licence places the holder in a very responsible position. Only persons of the highest character should be permitted to perform those responsibilities. As Ms Saliba has a conviction relating to dishonesty, she should be excluded from that role.

32 In relation to the issue of public interest, Ms Paterson submitted that the issue is separate to that of Ms Saliba’s character. It can relate to a wide number of people in the community. It requires consideration of factors including community trust, the behaviour which could reasonably be expected of an individual operating within the security industry, and the importance of the breach of trust on the community. When these relevant factors are taken into account, the decision taken by the Commissioner must be considered to be the correct and preferable decision.

Ms Saliba’s case

33 Evidence of Ms Saliba being of good repute comes from the written testimonials tendered on her behalf. Evidence of her being a fit and proper person to hold an authority and her general good character and standing in the community comes from those documents and her own evidence.

34 As noted above, several written testimonials were provided in support of Ms Saliba’s application. These testimonials each stated that the author had known Ms Saliba for some period of time and stated that she was a person of good repute.

35 Mr Ayhan Kurt, Director of Blackhawk Protective Services certified that Ms Saliba is currently employed by Blackhawk Protective Services in an Administrative position. He is clearly aware of the issues currently before the Tribunal. He stated that Ms Saliba has been approached and offered the position of Operations Manager pending the decision of the Tribunal. In his opinion she has both the experience and other attributes to hold this position. She is held in the highest regard and he trusts her implicitly. He considers that she is honest, reliable and trustworthy and has the integrity to uphold such a position.

36 Mr James Gold, Director/Instructor of Mace Firearms Training stated that he has known Ms Saliba since 1997 in both a professionally and personal capacity. He has worked as her Supervisor/Operations Manager and also shared rental accommodation with her. He indicated that he found Ms Saliba to be a trustworthy, honest, reliable friend and work Colleague.

37 Mr Gold stated that Ms Saliba confided to him the full circumstances surrounding the incident involving Centrelink. In his opinion she is remorseful and she has learnt a valuable lesson from this experience. He said that he believes that this was a one off incident.

38 Mr Bren C Helson, an Instructor with the Sentinal Security Training Academy, certified that he has known Ms Saliba since 1999. During this time I he worked as an OCA Ranger along side Ms Saliba and also trained her in security firearm procedures.

39 Mr Helson indicates that he is fully aware of Ms Saliba's situation with Centrelink and expressed the view that the situation would have only arisen because of her financial hardship at that time. In his opinion Ms Saliba is deeply regretful of the incident in hand and it was totally out of character. He considers Ms Saliba to be honest, trustworthy and reliable and an asset to the Security Industry. She has the training and experience and the integrity to hold a security licence.

40 Ms Angela Jaworski stated that she has known Ms Saliba for over seven years in which time they have formed a strong friendship and she has come to know her extremely well. In her opinion Ms Saliba has a strong moral character and in all their dealings she has been honest and trustworthy.

41 Ms Jaworski is aware of Ms Saliba's situation involving Centrelink and the circumstances surrounding it. In her opinion Ms Saliba is aware of her wrong doings and is deeply remorseful. She has witnessed Ms Saliba being extremely upset by the ongoing repercussions surrounding this incident.

42 Ms Gina Trelese certified that she has known Ms Saliba for the past twenty years. Throughout this time she has found Ms Saliba to be a trustworthy, honest and loving person.

43 She stated that Ms Saliba enjoys a high level of respect and admiration among her peers for her ability to listen, care and respond with understanding regardless of the circumstances. Ms Saliba maintains a large circle of friends and acquaintances, the quality of these people have only enhanced her strong moral character from which she has benefited enormously.

44 Ms Trelese stated that Ms Saliba has confided to her the circumstances surrounding the incident involving Centrelink and the continued repercussions due to this. In her opinion, Ms Saliba is deeply remorseful and has learnt a valuable lesson and she will apply herself in putting this incident behind her.

45 Ms Sharron McBride stated that she has known Ms Saliba for the past three years. During this time the two have become close friends. She has found Ms Saliba to be an honest, understanding, reliable and trustworthy person.

46 Ms Saliba also gave evidence on her own behalf. She provided a written statement which outlined circumstances of her life which were submitted as factors which could be taken into account.

47 Upon first entering the workforce she sustained an injury that has prevented her from pursuing many careers paths. From 1988-1993 she was employed in a family owned business with her then spouse. In 1994 the marriage dissolved and as she had no formal qualifications she was forced onto Unemployment Benefits. She was also heavily in financial debt as a result of this separation.

48 Due to her lack of formal training and qualifications and the ongoing injury which inhibited her, she found it extremely difficult to re-enter the Workforce. In 1998 she underwent training and obtained her security operatives licence. She accepted a casual security position, which lasted 6 months. When the contract ceased she was once again unemployed. She continued to pay off the debts that had accrued during her marriage. She found Casual employment some seven months later, but again she had no substantial job security. She states that it was only due to the shear financial hardship and stress she was experiencing that she did not declare her casual earnings whilst obtaining benefits.

49 In January 2000 Centrelink wrote to her and requested that all monies that she had been paid be returned to them. She advised Centrelink of her financial status at that time and a payment agreement was reached between them.

50 Nine months later she was issued with a summons regarding monies owed to Centrelink. She was shocked by the legal action against her as there had been no breach of the payment arrangements she had agreed with Centrelink.

51 Ms Saliba stated that she has been employed full time in the security industry since late 1999. She has training as well as hands on experience in many areas of security. She has gained knowledge and skills and has become quite adept in her chosen profession and has finally found complete job satisfaction. The integrity of her performance as a security officer has never been breached or ever in issue.

52 Ms Saliba stated that she has no other formal qualifications. She fears that the revocation of her licences would only result in the prospect of future long term unemployment. In contrast, she has not only obtained the relevant skills but also feels she has a lot more to offer the security industry.

53 Ms Saliba submitted that she is a person of good character. While she acknowledges her conviction, she stated that she has co-operated with the authorities ever since and that she pleaded guilty to the charges brought against her on legal advice. She argued that these facts ought to be taken into account by the Tribunal.

54 It was submitted on behalf of Ms Saliba that she is a person who has achieved a great deal and overcome considerable disadvantage. Since her conviction her conduct has demonstrated that she is a person of honour and responsibility. She is able to carry the burden and has made significant efforts to clear enormous debts which remained following the dissolution of her marriage with no assistance from her former husband. She clearly has the support of her peers and she is open and honest. The interest of the public would continue to be served if Ms Saliba were to continue to hold the security licence. The indiscretion that has lead to these proceedings should not be held against her so as to compromises her ability to hold a security licence or to operate in the security industry.

Application of law and decision

55 Ms Saliba has been convicted of offences related to receipt of social security payments which were not payable because Ms Saliba was employed and in receipt of income. I note that this offence occurred after Ms Saliba obtaining her security licence and the Commissioner’s submission that the offence continued over a period of 20 weeks. This is a serious offence. Notwithstanding that view, I also note that the penalty imposed on Ms Saliba was relatively lenient.

56 There was no evidence that Ms Saliba had been convicted of any other offences, that any complaints had been made against her or that she had an unsatisfactory record as a security guard.

57 While I note that the ground of Ms Saliba’s fitness to continue working in the industry was not pressed by the Commissioner, on balance I have formed the views that, although Ms Saliba has engaged in improper conduct, it is not likely to recur and that Ms Saliba remains fit and proper to continue working in the industry. I set out my understanding of the law in relation to this issue in my recent decision in the matter of Mohamed Abdel-Ghani -v- Commissioner of Police, New South Wales Police Service. There is no reason to restate the views expressed in that matter.

58 Ms Paterson submitted that Ms Saliba’s conviction was a sufficient basis on which to conclude that Ms Saliba’s licence should be revoked in the public interest in accordance with the legislation referred to above.

59 She referred to the case of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 which states that ‘the purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account and to make clear that the interests of the whole community are matters for….. …..consideration. The effect of the reference is to amplify the scope and purpose of the legislation’ (per Wilcox, CJ, Keely & Moore JJ at 681).

60 In relation to another security industry matter the Tribunal’s Appeal Panel in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 stated (at p 25) that the public interest is:

‘. . . an inherently broad concept giving the [decision maker] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual….’.

61 Ms Saliba’s security industry duties have consisted mainly of guarding premises and private property. To licence Ms Saliba is to hold Ms Saliba out to the community as a person who is suitable and to be trusted in these tasks.

62 The interests of the public in circumstances such as these consist mainly in the strict and fair control of security industry licensing and personnel and the protection of the community and its collective and private property.

63 Ms Saliba takes her work very seriously and she has a strong sense of personal responsibility to her employers, their clients and the property she has been entrusted to protect. This personal commitment and accountability to others contribute significantly to Ms Saliba being effective and competent in her work.

64 Of the references, it is clear that most of the referees knew that Ms Saliba had offended and that her licence had been revoked as a result. It is also clear that most of the referees knew the nature of the charge against Ms Saliba. Overall, her references from her employers and her colleagues confirm Ms Saliba’s dedication and competence and illustrate their willingness to trust and support Ms Saliba in her work as a security guard.

65 There was no evidence provided that contradicted the information provided by Ms Saliba’s referees.

66 There was no evidence to suggest Ms Saliba is, has been or will be associated or involved with criminals in her private life. There was nothing to suggest she is a threat to any individual or the security industry itself.

67 After carefully considering all the evidence available I am confident that Ms Saliba will not again act against the interests of the general community. As she herself acknowledges, she made a grave mistake, letting down both herself and the wider community.

68 There is no persuasive reason to believe that the interests of the wider community and Ms Saliba’s own interests will compete or conflict again. I consider her to be suitable and trustworthy for the work of a security guard.

69 In light of these findings, I do not consider that allowing Ms Saliba to retain her security industry licence would be contrary to the public interest. Nor do I consider that there is any other reason to prevent her from continuing work as a security guard.

Decision

70 Pursuant to s 63 (3)(c) of the Tribunal Act, I make the following order:

The determination of the Commissioner of Police, New South Wales Police Service to revoke the security licences held by Ms Elisabeth Louise Saliba is set aside.