Sekers v Commissioner of Police, NSW Police Force
[2012] NSWADT 54
•26 March 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Sekers v Commissioner of Police, NSW Police Force [2012] NSWADT 54 Hearing dates: 26 October 2011 Decision date: 26 March 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision to refuse the Applicant's application is affirmed.
Legislation Cited: Administrative Decisions Tribunal Act 1997
Security Industry Act 1997Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Haining v Commissioner of Police [1999] NSWADT 6
O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130Category: Principal judgment Parties: Daniel Sekers (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: D Sekers (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
File Number(s): 113200
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant applied to the Respondent for the issue of a class 1ACF 2ABDEF security licence under the Security Industry Act 1997 ("the Act"). A delegate of the Commissioner of Police refused the application. The basis for the refusal was that it was considered that the Applicant had not been engaged in the security activities authorised by his previous Class 1 security licence for a significant period.
The Applicant applied for an internal review of that decision. The internal review application was refused under section 15(2)(c)(ii) of the Act on the same basis as the original refusal.
The Applicant lodged an application with the Tribunal for external review of the decision.
Relevant background
The Applicant was issued with a Class 1ABC security licence in November 2001. He was subsequently issued with further licences the last of which was issued in March 2004. That licence was suspended in December 2007. In February 2004 the Applicant was issued with a Class 2B security licence and that licence was also suspended in December 2007.
The suspensions of the Applicant's licences followed amendments to the Act in September 2007. The amendments introduced new subclasses to the Class 1 and Class 2 licences, as well as new competency standards in respect of the training required to hold a Class 1 licence.
On the introduction of the Security Industry Amendment Bill into the NSW Legislative Council on 23 June 2005, The Hon. Tony Kelly (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, Minister for Lands, and Minister Assisting the Minister for Natural Resources) observed:
By expanding the licence categories, we can also more appropriately link criminal and other exclusions to the different licence categories. This will have the effect of enforcing higher standards on those members of the industry who are performing more specialised security work, such as armed guarding.
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 the 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.
In order to retain or take-up new subclass licences, the Applicant was required to provide evidence of having obtained the approved upgraded training by 30 November 2007.
The Applicant did not apply by the prescribed date and his Class 1ABC and Class 2B security licences were suspended effective from 17 December 2007. From that date he was no longer authorised to carry on security activities.
The Applicant applied for a Class 1ACF 2ABDEF security licence in February 2011. The refusal of that application has given rise to these proceedings.
Relevant legislation
Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The security industry in NSW is regulated by the Act. A person must not carry on a security activity unless the person is the holder of a licence that authorises the person to carry on the security activity.
Section 11 of the Act provides that:
11 Class 1 licences
(1) Class 1 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows:
(a) class 1A-authorises the licensee to patrol, protect, watch or guard any property while unarmed (and whether while static or mobile),
...
(c) class 1C-authorises the licensee to act as a crowd controller or to act in a similar capacity,
...
(f) class 1F-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),
...
Section 12 of the Act provides that:
12 Class 2 licences
(1) Class 2 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows:
(a) class 2A-authorises the licensee to act as a consultant by identifying and analysing security risks and providing solutions and management strategies to minimise those security risks,
(b) class 2B-authorises the licensee to sell, and provide advice in relation to, security equipment and to sell the services of persons to carry on any security activity,
...
(d) class 2D-authorises the licensee to provide training, assessment or instruction in relation to any security activity,
(e) class 2E-authorises the licensee to protect assets or other property by selling, installing, maintaining, repairing and servicing, and providing advice in relation to, barrier equipment,
(f) class 2F-authorises the licensee to sell, install, maintain, repair and service, and provide advice in relation to, electronic security equipment,
...
Section 12A of the Act provides that:
12A Provisional licences
(1) Provisional licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows:
(a) class P1A-authorises the licensee to patrol, protect, watch or guard any property while unarmed (and whether while static or mobile), but only while being supervised as required by section 29A,
(b) class P1B-authorises the licensee to act as a bodyguard, or to act in a similar capacity, but only while being supervised as required by section 29A,
(c) class P1C-authorises the licensee to act as a crowd controller, or to act in a similar capacity, but only while being supervised as required by section 29A,
(d) class P1D-authorises the licensee to patrol, protect, watch or guard any property with a dog, but only while being supervised as required by section 29A,
(e) class P1E-authorises the licensee to patrol, protect, watch or guard any property while carrying on monitoring centre operations, but only while being supervised as required by section 29A,
(f) class P1F-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 and only while being supervised as required by section 29A,
(g) class P1G-authorises the licensee to patrol, protect, watch or guard any property while carrying on retail loss prevention, but only while being supervised as required by section 29A,
(h) any other class prescribed by the regulations (being a class that corresponds to any additional class prescribed by the regulations under section 11 (1) (h))-authorises the licensee to carry on the security activity prescribed by the regulations in relation to the prescribed class of licence concerned, but only while being supervised as required by section 29A.
(2) The relevant subclass is to be endorsed on each provisional licence. More than one such subclass may be endorsed on a provisional licence.
Section 14 of the Act provides that a person may apply to the Commissioner for the grant of a licence.
Section 15 of the Act states as follows:
15 Restrictions on granting licence-general suitability criteria
...
(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 Respondent's decision was pursuant to section 15(2)(c)(ii) of the Act i.e. on the basis that the Commissioner may refuse a class 1 licence when an applicant for a new licence who has previously been authorised by a licence to carry on security activity to which the proposed licence relates has not engaged in the security activities authorised by that previous licence for a "significant period".
The term "significant period" is not defined in the Act. For the purposes of section 15(2)(c)(ii) of the Act, the Commissioner has established that a period of 3 years is to be considered a significant period.
The internal review decision reasoning
In the Statement of Reasons provided in relation to the refusal of the internal review application, the Commissioner's delegate stated:
"12.After considering all of the above mentioned facts, I am satisfied that you have not been authorised to engage in security activities endorsed by your previous licence for a 'significant period' i.e. since December 2007. Therefore, I am satisfied that you have not carried out the security activities authorised by a Class 1 security licence within a period of 3 years before you submitted your current application for a Class 1 security licence.
13.It is my understanding that the intent of Section 15(2)(c) of the Act is to ensure the continued competence of the applicant.
The Commissioner has defined the term 'significant period' in s.15(2)(c)(ii) as three years to align with the commonly accepted benchmark for the currency of evidence of competence in relation to Recognition of Prior Learning.
To this effect, when referring to historical evidence, the NSW Vocational Education & Training Accreditation Board's document "RPL Framework for Registered Training Organisations in NSW 2005" states:
"A general rule of thumb is that evidence that is older than three years must be supported by more up to date evidence of the candidate's continued application of the relevant competence."
14.If your intention is to return to the security industry as a Class 1 security operative you will be required to undertake the Provisional Licensing Course for the subclasses of licence you wish to obtain.
15.Concluding, I am satisfied that the grounds for which your application for the grant of a security licence has been refused, clearly fall within the provisions of Section 15(2)(c)(ii) of the Security Industry Act 1997; therefore I affirm the decision of the delegate of the Commissioner to refuse your application for a security licence at this time."
Material before Tribunal
The Applicant relies on documentary evidence submitted to the Respondent along with his licence application in which he sets out his background and training and the circumstances that he asserts warrant the granting of his licence application. This includes copies of certificates, work history and letters of reference. He relies on a professional reference from Mr. Bradley Goldberg, Security Manager of the Sydney Convention and Exhibition Centre. The Applicant also relies on a statement by Mr Daniel Lewkovitz, a Security Professional; and on a statement by John William Murray, a qualified security trainer and Managing director of Portfolio Training Academy. Mr Lewkovitz also attended the hearing and gave evidence in support of the Applicant's case.
As required by section 58 of the ADT Act, the Respondent has lodged all relevant material in its possession. In addition to the Departmental file, the Respondent also relies on two affidavits (dated 13 September 2011 and 24 October 2011) provided by Mr Cameron Smith, Director of the Security Licensing & Enforcement Directorate (SLED). SLED is the business unit of the NSW Police Force responsible for the issuing and revocation of security licences under the Act. Mr Smith also attended the hearing and gave evidence in support of the Respondent's case.
Each of the parties filed written submissions in support of their case.
The Respondent's case
The Respondent submits that the Commissioner's delegate has appropriately exercised the discretion to refuse to issue the class 1ACF licence to the Applicant.
In respect to the Applicant's experience the Respondent contends that while the Applicant's previous licences expired in May 2009 the licences were suspended in December 2007. At the time of the suspension of the Applicant's class 1A licence, there was no separate class of licence for armed guard activities and, depending on the type of class 1A activities being undertaken by the licence holder, the class 1A activities may have included armed guarding. The Applicant's class 1A licence did in fact authorise him to undertake armed security activities
The Applicant held a separate category H firearms licence under the Firearms Act 1997. That licence was revoked in February 2007 due to the Applicant's accreditation expiring in November 2006.
The Respondent submits that the discretion in section 15(2)(c)(ii) allows the Commissioner to issue a full licence where an applicant has demonstrated that he or she has appropriate relevant and current experience for the particular security activity that meets or exceeds the standard provided for by the provisional licensing system. However, where an applicant does not demonstrate such experience, the Commissioner may refuse an application for a full class 1 licence and the applicant must obtain a provisional licence for a minimum of 12 months and complete the training requirements before being eligible for a full class 1 licence.
The Respondent relies on Mr Smith's evidence in respect of the rationale behind the provisional licensing scheme in the Act.
The Respondent contends that the provisional licensing scheme provides invaluable on the job training, supervision and support for inexperienced persons performing security activities involving significant risks. During the provisional licensing period for a class 1C licence, a provisional licence holder must be supervised by an experienced crowd controller and there must be no more than three provisional licensees per supervisor on the relevant premises. After the 12-month provisional licence period, the provisional licence holder's competency is assessed and, assuming they are competent, they can apply for a full class IC licence.
The Respondent further contends that because of the significant risk involved in armed guarding in particular, Parliament has made specific provision in the Act for armed guards to be required to undertake a period of provisional licensing through an authorised cash-in-transit ("CIT") organisation. This provisional licensing period provides on-the-job training to complement the theoretical skills the provisional licence holder has acquired by the completion of the relevant certificates in security operations.
During the provisional licensing period for a class 1F licence, the provisional licence holder will be directly supervised by an experienced armed guard and there must be no more than one provisional 1F licensee per supervisor on the relevant premises. A provisional licence holder will not be able to supervise other provisional licence holders.
The Respondent submits it was Parliament's intention that applicants undertake a period of close supervision and provisional licensing in circumstances where they are new entrants, or entrants returning to a particular class of licensing have not engaged in security activities in that licence class for a "significant period". Parliament's intention is to ensure that holders of security licences are well trained and competent and that their skills are current.
The Respondent considers competency to be more than the obtaining of theoretical skills and knowledge (no matter how rigorously they are assessed in a training environment), but it is the application of those skills and knowledge in the workplace that evinces competency.
The term "significant period" is not defined in the Act, however the Respondent submits that a three-year period is indicative of the current relevancy of an applicant's experience.
The Respondent argues that the stipulation of a three year period as a "significant period" is consistent with the period of time commonly accepted by a number of Australian training organisations - and by the Vocational Training and Education Accreditation Board, which was the regulator of vocational training in NSW until 1 July 2011 - as representing the limits of the currency of a person's competence for recognition purposes.
However, while the Respondent considers that a three year period is appropriate, it concedes that this period is not fixed and the consideration of whether an applicant had not been engaged in the relevant security activities for a "significant period" would require the consideration of the specific circumstances of each application. It would be necessary to take account of an applicant's licence history, experience, qualifications and the length of time since they last undertook the licence activities for which they were previously authorised.
In his Statement dated 24 October 2011 Mr Smith further explained the Respondent's reasoning in regard to the time period by reference to time periods applicable to others fields of activity. He stated (paragraph numbers and references to attachments omitted):
In the course of preparing this statement I have been provided with a copy of the Applicant's Submissions, dated 17 October 2011.
Part 2 of the Applicant's Submissions refer to the University of New South Wales, University of Technology and New South Wales Police Force time periods of recognition of prior learning to participate in those courses and programs.
I do not consider those courses or programs to be comparable to the skills required of a licensed security guard.
In respect to the higher education sector, the skills required for the vocational education and training (VET) sector (competency based training) are distinct from the higher education sector. The VET sector focuses on skills, while the latter focuses on knowledge. The Good Universities Guide ... states that the main difference between VET and higher education is that the latter generally focuses more on knowledge rather than skills.
The time periods for recognition of prior skills and experience for the VET sector will necessarily be different from the higher education sector, because the VET sector is focused on the currency of practical skills.
In respect to the entry requirements for rejoinees to the New South Wales Police Force, I do not consider this to be comparable to the skills required of a licensed security guard. New South Wales Police Officers are required to undergo an extensive application process for admission as a Police Officer and required to have more extensive knowledge and skills to the competencies required to undertake licensed security activities.
Notwithstanding I do not consider the skills required of a Police Officer to be relevant, I note the application process for entry into the New South Wales Police Force requires a combination of both knowledge (by way of an Associate Degree in Policing Practice) and skills. New entrants are required to undertake a period as a probationary constable before becoming a constable.
In respect to rejoinees, paragraph 9.07.01 of the New South Wales "Rejoinee & Police Professional Mobility Employment" program ... indicates that a period of three years is relevant to the eligibility criteria for two of the three categories of rejoinees. Paragraphs 9.07.24 - 9.07.33 detail the probationary requirements for rejoinees and indicate that rejoinees may be required to undertake probationary periods of up to twelve months. ...
[T]he Vocational Education and Training Accreditation Board (VETAB) (which was the regulator of vocational training in NSW until 1 July 2011) recognised a three year period as generally representing the limits of the currency of a person's competency.
In the absence of the SI Act specifying a period for recognition of prior learning, I consider the three year period recognised by VETAB to be relevant to SLED's consideration of the currency of an applicant's competency, taken together with all of the applicant's history, experience, qualifications and the length of time since they last undertook security activities.
Paragraph 9.07.01 of the publication "Rejoinee & Police Professional Mobility Employment" states:
Categories of Rejoinees/Police Professional Mobility Employees (RPPM)
9.07.1There are three distinct categories of current and former police officers to which this policy applies.
1. Former Confirmed Constable of the NSW Police Force - A person who was previously a sworn police officer of the NSW Police Force, confirmed to the rank of Constable. Along with this, the applicant must meet the following criteria:
The period since resignation is not more than ten years from the date of application; and,
If the period since resignation is longer than five years, the applicant must have spent more time in the NSW Police Force than the time lapsed since resignation; or
Can demonstrate recent external employment in a related "Law Enforcement" field. Refer to Definitions at the end of this document for further information.
2. Former Probationary Constable of the NSW Police Force - where the applicant had satisfied the necessary criteria and was attested as a Probationary Constable in the preceding three years, but due to resignation, did not achieve confirmation as a Constable of Police, i.e. the applicant resigned during their probation period, the following additional criteria applies:
satisfy all relevant re-entry criteria established by Charles Sturt University with respect to the Associate Degree in Policing Practice (ADPP);
re-entry point into the ADPP Course is by academic assessment conducted by Charles Sturt University.
3. Current or former Police Officer from an Australian or New Zealand Police Jurisdiction - Sworn police officers from the following Australian and New Zealand Police jurisdictions; Queensland, Victoria, Western Australia, Northern Territory, South Australia, Tasmania, Australian Federal Police and New Zealand.
Category 3 applicants must be either serving police officers with minimum three years full-time service with their home jurisdiction or ex-police officers who have completed at least three years of full-time police service with their home jurisdiction and their resignation date was not longer than three years from the date of their application received by the NSW Police Force.
Under cross-examination Mr Smith conceded that there is some concern within the industry in relation to the class 1F licence provisional pathway. He conceded that only three employers have been approved for this aspect of the scheme.
With respect to the Applicant's experience the Respondent argues that the Tribunal should take account of the date on which the Applicant last performed licensed security activities. It contends that the relevant date is not the date on which his licence was suspended or the date his licence expired. The Respondent says that the Applicant has not undertaken licensed security activities since 2006 i.e. for a period of over 5 years.
The Respondent further submits that the Applicant's events management and coordination experience does not demonstrate current competence to undertake licensed security activities. The Respondent argues that the mere fact that the Applicant has continued to work in security-related events does not evidence current competency to undertake licensed security activities.
Mr Smith conceded that the Applicant's events management and coordination experience might indicate that he has the ability to carry out activities. However, the Respondent submits that the legislation requires that an applicant has been "engaged in" the security activity authorised by the previous licence and that work in planning security-related events does not satisfy that requirement.
The Applicant's case
The Applicant currently holds the following industry related certifications:
a.Certificate IV in Workplace Training & Assessment
b.Certificate IV in Security & Risk Management
c.Workcover NSW OH&S General Induction Card (Green Card)
d.NSW Emergency Management Certification (Emergency Management Arrangements & Managing an Emergency)
e.NSW RTA Authorised Traffic Controller
f.NSW Fire Brigade - Fire Wardens Certification
g.Responsible Service of Alcohol Certification
h.Senior First Aid Certification
He has recently been assessed by Portfolio Training Academy, an authorised Registered Training Organisation (RTO), as competent in both Certificate II and Certificate III in Security Operations. The basis of much of the assessment was recognition of the Applicant's professional history and prior learning and recognition of current competency.
The Applicant has worked in the Security and Major Events industry for over 11 years. He worked as an armed security operative from 2003 - 2006. His experience has included security oversight of events at the highest level including a visit of the Israeli President and close personal protection of the NRMA Board of Directors during their Annual General Meeting. He consulted to the NSW Government and NSW Police Force on a number of major events in the areas of command, control and communications and major event operations (including security). Some of these events included APEC 2007, Melbourne 2006 Commonwealth Games, the City to Surf, Sydney New Years Eve, the Sydney Mardis Gras Parade, Forbes Conference and the Rugby World Cup. He also consulted to other major organisations in regard to security arrangements.
In the period of 2006 - 2008 the Applicant was employed as the Head of Operations with the local organising committee of World Youth Day 2008. In that role he had oversight of security operations in relation to the event and the visit of Pope Benedict XVI and was responsible for the management of crowds. He has subsequently assisted in the formation of Khaos Group PL t/as Calamity Monitoring in the design and implementation of a new highly advanced Security Monitoring Centre. He has an ongoing consultation project with the NSW Jewish Community on additional physical security upgrades to community buildings.
The Applicant contends that the limited number of approved supervisors for the provisional licensing scheme the options available to a person wishing to enter the scheme were limited. Most applicants who intended to enter the scheme would be unable to do so because of the limited positions available.
The Applicant relies on a professional reference from Mr. Bradley Goldberg, Security Manager of the Sydney Convention and Exhibition Centre. Mr. Goldberg is an accredited NSW Firearms instructor and a Special Constable with the NSW Police Force. Mr. Goldberg has known and worked with the Applicant for over 8 years and trained with the Applicant in the use of firearms. He considers that in the period when the Applicant was an armed security operative he was one of the elite in both skill and safety.
Mr Lewkovitz is a security professional who has worked within the security industry for a period of over 17 years and has performed numerous roles in regard to training within the industry. He holds licenses in several classes including bodyguard, crowd control security training, and armed guard. He is also a weapons trainer and certified protection professional with an internationally recognised qualification in security management.
Mr Lewkovitz has known the Applicant in a professional capacity for 6 years. He trained the Applicant in weapons and firearms handling as well as acted as his client when he was responsible for the overall management of World Youth Day in 2008.
He believes the Applicant to be an outstanding security professional. His evidence is that the Applicant had weapons handling skills that were at Instructor level and that his knowledge and overall security skills are at the highest level. On that basis he has asked the Applicant to work for his company, subject to the acquisition of a licence.
Mr Lewkovitz believes that the provisional licensing scheme for armed guards is deeply flawed. He does not believe that the scheme is respectful of the Applicant's previous experience, nor does he believe that it is at all relevant to the work that the Applicant might likely be asked to perform.
He stated that it is possible that under the provisional licensing scheme an applicant could find himself or herself supervised by a person who has never worked in the industry. In that circumstance the Applicant's skill set would far exceed that of the supervisor and the Applicant would not benefit from involvement in the scheme.
He also believes that the Applicant's knowledge has clearly not diminished, as demonstrated by his successful attainment of training certificates. He considers that any suggestion that the Applicant would represent a threat to public safety is absurd. He believes that the Applicant is precisely the sort of candidate the security industry should be attracting.
Mr Murray is a qualified security trainer who has worked within the security industry for 43 years. He has first hand knowledge of the Applicant's skills and expertise through his involvement with World Youth Day 2008 to which Mr Murray's company was a consultant and he also conducted a formal assessment of the Applicant's prior training, learning professional activities.
Mr Murray believes that the Applicant demonstrated a high level of skills, knowledge and competence. He stated that he would have no hesitation in recommending that the Applicant be issued with a security licence and he would regard the Applicant as an asset to the industry at a time when good candidates are increasingly rare.
The Applicant made submissions in relation to accepted time frames for the recognition of prior learning ("RPL"). He referred to the Respondent's reliance on training and RPL guidelines for vocations outside of the security field. He submits that it is noteworthy that different training doctrines advise relevant periods of currency on the basis that some knowledge can be 'perishable' or the material being trained (for example in highly technical fields) changes frequently. By way of example, he referred to the University of New South Wales, Australian School of Business Recognition of Prior Learning Protocol that stipulates that RPL is at the discretion of the course leader and that five years is an accepted time frame. By way of further example he referred to the University of Technology Sydney Education Recognition of Prior Learning Guidelines that stipulates that the normal time limit for the currency of prior learning is seven years.
However he submits that a relevant comparison can be made to the guidelines for former Police officers seeking to rejoin the NSW Police Force. He argues that the NSW Police Rejoinee program states in its criteria that a person may participate in the rejoinee program if they were previously a sworn Police officer in the NSW Police Force and the period since resignation is not more than 10 years from the date of application.
He further submits that a 'significant' period during which knowledge may perish would also depend on the particular candidate's retention of such knowledge. As an extreme example, a 'significant period' for a person with short-term memory loss might be measured in days or weeks, whereas years or decades might be relevant to others.
He argues that it is evident that there is no standard period that can arbitrarily be defined as a maximum period. He submits that for this reason, the relevant guidelines in use across the training community, refer only to a subjective 'significant period' which in turn must be qualified by the relevant assessor as being relevant to that individual and that subject.
The Applicant submits that the Respondent's decision should be reversed for several reasons:
- he was assessed by an authorised Registered Training Organisation as competent in both Certificate II and Certificate III in Security Operations;
- in accordance with the Respondent's understanding of the expression 'significant period', if the last valid date of the Applicant's security licence prior to its suspension is used as a reference point, the three year period would have concluded on 17 December 2010;
- the Applicant's licence was due to expire on 6 May 2009. Therefore, if that date is used as a reference point, the three year period would have concluded on 6 May 2011;
- the Applicant commenced the RPL process on 20 September 2010, almost 2 months prior to the conclusion of the proposed three year timeframe.
- as the licence was only suspended and not cancelled it may be considered that the requisite knowledge was still current during this period as the licence may have been reinstated through a simple administrative task.
The Applicant notes the Respondent's reference to the VETAB RPL Framework three-year time frame and that this framework is to be used as a 'general rule of thumb'. He submits that the VETAB RPL Framework goes further and states that evidence that is older than three years must be supported by further evidence of competence. He states that such evidence has been provided.
Discussion
It is not in dispute that the Applicant is not currently licensed to undertake security activities however he has previously held a licence under the Act. His licence was suspended on 17 December 2007 and expired on 6 May 2009. Before the suspension of his licence on, the Applicant was authorised to undertake security activities in a number of categories. He was authorised to undertake armed security activities as part of his class 1A licence. He also held a separate category H firearms licence under the Firearms Act 1997.
The Respondent submits that the Applicant has not been engaged in security guard activities for a "significant period" and he has not demonstrated current competency in security guard activities.
The Applicant disputes the Respondent's contention.
As noted above, section 15(2) of the Act provides that an application for a licence may be refused if the Commissioner, and therefore the Tribunal, is satisfied that the Applicant has not been engaged in the security activity authorised by the previous licence for a significant period, or has failed to demonstrate continuing knowledge and competency in relation to the security activity authorised by the previous licence.
When exercising discretion in relation to a licence it is necessary to keep in mind the activities that the person will be engaged in under the licence. In that regard, the objects and purposes of the Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130.
Several decisions of this Tribunal have emphasized the view that 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: Haining v Commissioner of Police [1999] NSWADT 6.
The discretion provided for by section 15(2) allows the Commissioner to consider the Applicant's individual circumstances. Each of the circumstances referred to in section 15(2) relates to an applicant's training and experience.
The discretion in section 15(2)(c) relates to an application where the applicant has previously held a licence and requires an assessment of whether an applicant's training and experience is relevant and current for the particular security activity for which the licence is sought.
Where an assessment of the applicant's circumstances indicates that the applicant does not have such relevant and current experience, the applicant will not be eligible for a full class 1 licence unless they complete the requirements of the provisional licence scheme.
The term "significant period" is not defined in the Act. The Respondent submits that a three-year period is indicative of the current relevancy of an applicant's experience. However, it concedes that the period is not fixed and would depend on the specific circumstances of each application.
The Applicant argues that a longer period is more appropriate in the case of an applicant who has operated at a high level within the industry. He places himself in that category. He particularly points to the role he played as in regard to security operations in relation to World Youth Day 2008 and the visit of Pope Benedict XVI and other major events. The Applicant's witnesses have each expressed the view that the Applicant has high levels of competency, skills and knowledge.
It is apparent from the Parliamentary debate in relation to the Bill that introduced the section 15 provisions into the Act that the provisional licensing scheme recognises the significance of practical skills and experience. This is particularly so in the case of armed guarding and in my view the issue of a class 1F licence must be subject to stringent training and competency requirements.
It is also apparent from the Parliamentary debate that some concern had been expressed about the operation of the provisional licensing scheme. The Applicant has raised the issue of the availability of approved supervisors who are able to participate in the provisional licensing scheme and the consequent limited opportunities for an applicant to engage in the scheme. He has raised the issue of the lack of opportunity for an applicant of his experience who is able to engage in the scheme to benefit from that engagement because of the comparative inexperience of approved supervisors. Inevitably the limitations of the scheme will lead to the need for cash-in-transit sector of the industry to find alternatives to reliance on armed security operators. The respondent does not dispute this point.
I accept that it is necessary for the Respondent to adopt a 'rule of thumb' approach to the meaning of the term "significant period". It is not in dispute that the Act provides no guidance in regard to how that term should be interpreted. The exercise of the discretion in section 15(2) must therefore take account of the specific circumstances of each application.
I agree with the Applicant's argument that some knowledge is highly perishable and other knowledge is not so. Some competencies will deteriorate over time if not practiced. It is reasonable to expect that an individual who has operated within the industry for a considerable period of time might retain currency of knowledge and skills for a longer period than a relatively inexperienced individual. Similarly, an individual who has operated at a high level within the industry might retain that currency for a longer period than an individual who has operated at a significantly lower level. However, that will not always be the case and the specific circumstances of each application must be considered.
In my view, a determination of whether a "significant period" has passed is related to both the specific circumstances of each applicant and the category of licence that is sought. For example, it is my view that the relevant period might be longer in the case of a highly experienced applicant who is seeking a licence to undertake only static security work than would be relevant to an applicant wishing to perform armed CIT security work.
I do not agree with the Applicant's argument that the reference point for the purposes of section 15(2)(c)(ii) is the date on which his licence was due to expire i.e. 6 May 2009. In my view, the reference point should be the date on which the Applicant last performed licensed security activities. The time at which the period is assessed is the date of the determination: section 63 of the ADT Act.
I agree with the Respondent's submission that the legislation requires that the Applicant has been "engaged in" the security activity authorised by the previous licence. I also agree that work in planning security-related events does not satisfy that requirement.
In the present matter, the Applicant has held relevant licences. The evidence suggests that he has had weapons handling skills that were at Instructor level and that his knowledge and overall security skills were at the highest level.
The evidence suggests that the Applicant has not undertaken licensed security activities since 2006. He has therefore not been "engaged in" the security activity authorised by the previous licence for between five and six years.
On the evidence before me I could be satisfied that the Applicant satisfies the criteria for some but not all categories of licence. However, it is my understanding that he is seeking a licence in all of the 1ACF 2ABDEF classes. He has not sought to limit the application in any way.
That being the case, it is my view that the Applicant has not been engaged in security guard activities of the kind to which the proposed licence relates for a "significant period" for the purposes of section 15(2) of the Act. I note that I may well have reached a different conclusion if the Applicant had sought a licence in fewer categories.
Taking into account the whole of the Applicant's circumstances, it is my view that he has not demonstrated current competency in the relevant security guard activities. It follows, in my view, that the Respondent has correctly determined the application and the decision should therefore be affirmed.
Order
The decision to refuse the Applicant's application is affirmed.
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Decision last updated: 26 March 2012
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