Sivananthan v Commissioner of Police, New South Wales Service

[2001] NSWADT 40

CITATION:	Tafengatoto -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 40
DIVISION:	General Division
PARTIES:	APPLICANT Lopati Tafengatoto RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003138
HEARING DATES:	18 July 2000
SUBMISSIONS CLOSED:	08/02/2000
DATE OF DECISION:	03/15/2001
BEFORE:	Lees M - Judicial Member
APPLICATION:	Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Security Industry Act 1997 Administrative Decisions Tribunal Act 1997 Security Industry Regulation 1998
CASES CITED:	Joyce v Commissioner of Police [2000] NSWADT 17 Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6 Hughes and Vale Pty Ltd v State of New South Wales (1953) 93 CLR 127 Sobey v Commercial Private Agents Board (1979) 22 SASR 70 Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa ([1999] NSWADTAP 9
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, Solicitor
ORDERS:	1 The Commissioner’s decision to revoke Mr Tafengatoto’s licence is set aside.

Reasons for Decision

Background

1 This is an Application by Mr Tafengatoto for review by the Administrative Decisions Tribunal (‘the Tribunal’) of a decision by the Commissioner of Police (the Commissioner’ or ‘Administrator’) to revoke his licence under the Security Industry Act 1997 (‘the Act’).

2 On 8 March 2000 Mr Tafengatoto was served with a ‘Notification of Revocation of Licence’. The decision to revoke Mr Tafengatoto’s licence was made on 4 February 2000 by Mr Steinwall, a sub-delegate of the Commissioner. Mr Steinwall relied on section 26 of the Act read with Clause 11 of the Security Industry Regulation 1998 (‘the Regulation’). Mr Tafengatoto sought internal review by the Commissioner of this decision.

3 By letter dated 31 March 2000 Mr Tafengatoto was advised that the internal review decision was to affirm the original decision to revoke the licence. The internal review decision was made by Mr Houlton, the Manager of the Security Industry Registry and a delegate of the Commissioner.

4 The Tribunal’s jurisdiction to consider Mr Tafengatoto’s application for external review is found under s. 29 of the Act together with s. 38 of the Administrative Decisions Tribunal Act 1998.

5 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, …

6 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
…..
(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.

7 Clause 11(d) of 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:

(a) - (c) …
(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.
……

8 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.

Administrator's Reasoning and Documentation

9 Before proceeding to the evidence and at the invitation of Mr Tunks for the Commissioner after some brief discussion at the hearing, a couple of observations follow concerning the documentation of the decisions and notices relating to Mr Tafengagtoto’s licence.

10 In relation to the internal review decision document dated 31 March 2000, it incorrectly referred three times to the Administrator’s decision as one refusing Mr Tafengatoto’s licence. Presumably this occurred due to the use of a pro-forma standard letter by the Administrator, suggested by the document identifier at the base of the page. It is acknowledged it may only be a one-off oversight. However, care clearly needs to be taken in the use of such standard documents as inaccuracy of this kind is confusing and unhelpful in assisting licencees understand the decisions being made about their licences.

11 In relation to the same document, as it conveyed an internal review decision it must accord with ss. 53 (6) and 53(7) of the Tribunal Act. The document includes the statement ‘as a result of the operation of the legislative requirement described above’ as the ‘reasoning process’ for the decision. In my view this does not meet ss 53(7)(c) adequately and accordingly the document does not meet the requirements of ss 53(6). Where a discretion is being exercised, such as those under ss 26(1)(a) to (d) of the Act, it is not sufficient to simply state that, because of a person’s conviction X, that person is no longer fit and proper or it is not in the public interest for that person to hold the licence involved, ie where a discretion is being exercised the reasoning of ‘if X then Y’ is insufficient.

Evidence

12 Prior to the hearing a bundle of documents consisting of the material relating to the decision to revoke Mr Tafengatoto’s licence was lodged with the Tribunal on behalf of the Commissioner. Briefly described, the essential material consisted of copies of :

- the ‘Amended Statement of Reasons’ of the Commissioner’s sub-delegate Steinwahl dated 13 June 2000 re decision of 4 February 2000;

- the Police Service Facts Sheet, Criminal History Bail Report and officer statements relating to Mr Tafengatoto’s offence;

- Mr Tafengatoto’s application for internal review; and

- the internal review decision of Commissioner’s delegate Houlton.

13 In addition to his application for review by the Tribunal, Mr Tafengatoto provided the Tribunal with several references, a medical report and a document indicating his previous work in the transport industry. These latter documents were provided after the hearing as Mr Tafengatoto was not sure if he had left them at home or lost them enroute to the hearing. Accordingly there was no opportunity at the hearing for cross-examination or further exploration of the documents’ contents.

14 Mr Tafengatoto also gave oral evidence at the Tribunal hearing. He was not legally represented.

15 On 28 July 1999 Mr Tafengatoto was issued with a ‘Class 1ABC’ licence for a term of 5 years.

16 On 4 October 1999 Mr Tafengatoto was charged with the offence of having goods in his personal custody reasonably suspected of being stolen.

17 On 24 January 2000 Mr Tafengatoto was convicted by the Fairfield Court of that offence and was fined $200. It was not made clear in the evidence how Mr Tafengatoto pleaded or whether he was legally represented at those proceedings.

18 Prior to being granted the licence in 1999, Mr Tafengatoto had three years previous industry experience and had held licences under the former licencing system.

19 Mr Tafengatoto did not dispute anything in the Police Facts Sheet. He provided the Tribunal with additional information and background to the circumstances of the offence.

20 On the evening of 3rd October 1999 whilst at work at the Marconi Nightclub at the Flemington Hotel, Mr Tafengatoto was contacted on his mobile telephone by a ‘mate’ named ‘Cooper’ who said that he had a tv and video he wanted to sell as he needed some money. Mr Tafengatoto‘s response was first that that he was at work and didn’t have time, but then decided he was interested. It was arranged that Cooper bring the items to the nightclub’s carpark and ring Mr Tafengatoto on arrival. After taking a look at the equipment and checking they were Cooper’s to sell, Mr Tafengatoto agreed to buy them for cash on the spot. Mr Tafengatoto did not enquire of his mate whether the goods were stolen. No receipts were obtained. The items were moved from one car boot to another, the latter car being owned by a workmate of Mr Tafengatoto’s. After work that night Mr Tafengatoto and the goods were dropped off at a taxi rank near Fairfield station. Mr Tafengatoto was observed there with the goods and approached and questioned by the Police. Subsequently he was taken to Fairfield Police Station, where the television was confirmed as having in fact been stolen over a year before in September 1998. There was no further evidence as to the video. Mr Tafengatoto denied any knowledge that the items could be stolen. He was charged with having custody of goods reasonably suspected of being stolen.

21 At the time of the Tribunal hearing Mr Tafengatoto was providing for his pregnant de facto wife and one child. He was also studying English and mathematics at a local TAFE institution.

22 Mr Tafengatoto gave evidence that due to a back injury in 1998 while working as a store- person he continues to experience lower back pain. For this reason security industry work particularly suits him as it does not necessarily involve bending or lifting. He submitted that he needed his security industry licence in order to work at something he could physically manage and to support himself and his family. At the time of the hearing he was endeavouring to find some sort of other work.

23 The medical report provided by Mr Tafengatoto was from Dr N. Harvey dated 24 July 2000 and it attached a copy of a CT SCAN report from Dr F.A. Doull dated 25 January 2000. These reports support Mr Tafengatoto’s evidence as to his lower back pain and were not the subject of cross-examination.

Findings and Reasoning

24 The Commissioner relied on the Amended Statement of Reasons dated 13 June 2000 and provided written submissions to the Tribunal after the hearing.

25 The submission that the offence Mr Tafengatoto was convicted of falls within the clause 11(d) category of offence ‘involving stealing, fraud, dishonesty or stealing’ is accepted. The same offence was carefully considered by the Deputy President of the Tribunal in Joyce v Commissioner of Police [2000] NSWADT 17 and her reasoning and conclusion on this question are agreed with for present purposes.

26 In relation to s 26(1) of the Act, a decision maker is provided with the discretionary power to revoke a person’s licence in the four circumstances provided for in 26(1)(a) to (d). The circumstance provided for in section 26(1)(a) is that the decision maker may revoke the licence ‘for any reason for which the licensee would be required to be refused a licence of that class’.

27 The way this discretionary power to revoke is meant to work in relation to s 16(1)(a) is not absolutely clear. Section 16(1)(a) requires the Commissioner to refuse an applicant for a licence if she or he has, ‘within the period of 10 years before the application for the licence was made, been convicted in New South Wales…’. Strictly interpreting s. 26(1)(a), the discretionary power to revoke or not arises if the licensee has ‘within the period of 10 years before the application for the licence was made, been convicted in New South Wales…’.

28 This power clearly provides for the situation where a person has been granted a licence yet they should not have been because they had a relevant conviction under s16(1)(a) at the time of the licence application. The power provides for revocation in circumstances where for example at the time the decision to grant a licence is taken, the Commissioner’s records are incomplete or the searches are inaccurate or the licensee provided incorrect information. See for example the previous Tribunal decisions of Tran, Fenton, Howells and Price.

29 The power therefore is to revoke or not to revoke if the licensee had a relevant conviction at the time the licence was applied for. The reason for refusal in section 16(1)(a) relates to there having been a conviction at the time a licence is applied for. In my view the power to revoke cannot be exercised where there was no conviction at the time the licence application was made.

30 I agree with the observation made in the decision of Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6 at par 23 that

[I]t would be anomalous if despite the committing of a prescribed offence barely five weeks after the grant of the licence, the applicant were to retain his five year licence.

31 A similarly anomolous situation would arise in the circumstance where a person has been granted a licence yet had committed a prescribed offence but had not yet, or only, been charged with it before the application had been made.

32 In my view, however, the powers to revoke that may be exercised in the circumstance of a conviction occurring subsequent to the application and granting of a licence, are presently found in 26(1)(c), or 26(1)(d) read with the clause 18 of the Regulation, not 26(1)(a).

33 I had not formed this view on the construction of s 26(1)(a) until after the hearing and so there was no opportunity to raise it with the parties to invite their views. If the view is incorrect, and the discretion can be exercised to revoke in Mr Tafengatoto’s circumstances, I am not persuaded that it should be.

34 In relation to Mr Tunks’ submission that Mr Tafengatoto’s licence should remain revoked on the basis he was no longer a fit and proper person (s 26(1)(c)), he cited and quoted from the cases of Hughes and Vale Pty Ltd v State of New South Wales (1953) 93 CLR 127 and Sobey v Commercial Private Agents Board (1979) 22 SASR 70.

35 Hughes and Vale (at 156-157) suggests a strong connection between dishonesty and unfitness but does not preclude a person convicted of a crime of dishonesty from never again being a fit and proper person. Sobey (at 75) observes that a criminal record is germane and crucial in determining the question of a person’s fitness but does ‘not go so far to say that one criminal offence must necessarily deprive a person of that fitness…’.

36 Although it is accepted that circumstances such as Mr Tafengatoto’s could suggest a preparedness to be involved in illicit transactions and reflect negatively on a person’s fitness, I am not persuaded such is the case here. After hearing from Mr Tafengatoto and considering the circumstances very carefully I do not agree that the timing of the offence ‘so quickly’ after being granted the licence or the fact Mr Tafengatoto bought the offending tv from a friend or ‘mate’ while at his workplace are significant factors in the question of Mr Tafengatoto’s fitness. In my view the timing and place of the transaction on this occasion were a coincidence and were not connected with Mr Tafengatoto’s employment as a bouncer /nightclub doorman. Although the offence did occur in the carpark of Mr Tafengatoto’s workplace, it could have occurred anywhere Mr Tafengatoto had happened to be that night.

37 Mr Tafengatoto’s work in the industry is mostly as a bouncer at a nightclub. His conviction is not related to the security industry or the type of work he has been involved in to date. The evidence did not suggest the unlawful transaction that night interfered with his work any more or less than when any other worker is distracted from their task or leaves their work station or place to make a purchase. There was nothing in the evidence to suggest any dishonesty or other failing by Mr Tafengatoto in the course of carrying out his duties and responsibilities in his security industry employment to date.

38 Mr Tafengatoto has no other offences recorded against him. No evidence was provided suggesting the existence of any complaint or problem with his work during the three previous years of his security industry employment.

39 In relation to Mr Tafengatoto’s evidence that he inquired whether the property was Cooper’s to sell, Mr Tunks sought to cast doubt on that by suggesting that, even if that were the case, Mr Tafengatoto ‘did not care much for the answer’. Mr Tunks’ suggestion is not accepted. Mr Tafengatoto stated he did care and was concerned, and there is no reason to disbelieve him. Mr Tafengatoto was in a hurry and he wanted to get back to work. He found Cooper’s assurance adequate at the time. I agree there is room for criticism of Mr Tafengatoto in this regard but not to the extent suggested.

40 In another High Court matter, Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321, the court was of the view that: the question whether a person is fit and proper is one of value judgment and in that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker (at para 63); and that where there is a legislative requirement of being ‘fit and proper’ in relation to a licence of some kind ‘the requirement takes its meaning from the activities which the person is or will be authorized to engage in by virtue of the licence and the ends to be served by those activities….’; and that ‘depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur’ (see at 380).

41 Mr Tafengatoto was convicted for an offence involving dishonesty. That is serious. As to the question of how serious, some indication is provided by the arguably light penalty imposed on Mr Tafengatoto by the Court. There is nothing in the evidence to suggest this is one act of dishonesty among many; in fact there is no second incident of dishonesty or deception or any pattern of dishonest action at all. There were no elements of deception in Mr Tafengatoto’s behaviour on the night in question.

42 There is nothing in the evidence that suggests that Mr Tafengatoto’s offence was anything more than a one-off incident. There is no evidence to support a conclusion that Mr Tafengatoto has the propensity or inclination to reoffend in any way whatsoever. On the contrary, there is sufficient evidence to conclude confidently that such improper conduct will not recur.

43 Mr Tunks suggested that the suspicious circumstances of the offence contributed to the questionability of Mr Tafengatoto’s fitness. I am unable to agree that all the circumstances are necessarily suspicious and lead to the conclusion Mr Tunks suggests.

44 Mr Tafengatoto’s evidence was frank and open. It was clear that at the time of the offence he acted quickly and trustingly and with insufficient caution, and he understood that. Taking a break to buy something during working hours is not in itself an activity warranting criticism or suspicion. Using cash to buy goods is not unusual. It is not unreasonable when buying something second-hand from a friend or mate to not ask for or expect a receipt or that the item be packaged. Mr Tafengatoto did not ask his ‘mate’ for proof of ownership of the goods. This is understandable in a transaction between mates. Similarly it is understandable not to ask for an explanation as to the other’s need for money. Mr Tafengatoto wanted to get back to work. He was in a hurry. Of course it is clear Mr Tafengatoto was not as suspicious as he might have been. In my view this is not a character flaw.

45 The four personal references provided after the hearing by Mr Tafengatoto were from Bishop Hafoka of the Church of Jesus Christ of the Latter Saints; Costa Angelis of Tenneco Automotive; Harry Berberian of RSM Security; and Finau Tavake of Tu’i Tufuta Security.

46 The last reference was objected to by Mr Tunks on behalf of the Commissioner. This was on the basis that it should not be taken into account because there was no indication from the author that he was aware of Mr Tafengatoto’s offence despite having employed Mr Tafengatoto for the eight months or so preceding the Tribunal hearing. Mr Tafengatoto was made aware of this objection but provided nothing further. The objection is accepted.

47 The RSM Security reference re three months work by Mr Tafengatoto and the Tenneco Automotive reference re two years work between 1997 and 1999 each regarded Mr Tafengatoto as honest, reliable and hard working/conscientious. Both had no hesitation in recommending Mr Tafengatoto for work.

48 The Bishop’s reference recommends Mr Tafengatoto as having been a very active member of his Church for more than two years. The reference appears to have been prepared for the application before the Tribunal and indicates the Bishop was aware of Mr Tafengatoto’s ‘case’. It does not indicate whether the Bishop was aware of the nature of the application or Mr Tafengatoto’s conviction, but similarly it does not indicate he is not aware of such details.

49 The references make a positive contribution in the assessment of Mr Tafengatoto’s fitness.

50 In my view Mr Tafengatoto can be considered and held out to the public as a person who can be entrusted with the responsibilities and duties his licence authorises. I consider that he is fit and proper for the work authorised by the licence – to patrol, guard, watch or protect property (including the guarding of cash in transit); and to work as a bodyguard, crowd controller or bouncer.

51 Mr Tunks also submitted that Mr Tafengatoto’s conviction was a sufficient basis on which to conclude that Mr Tafengatoto’s licence should be revoked in the public interest.

52 He 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 the Commission's consideration. The effect of the reference is to amplify the scope and purpose of the legislation’ (per Wilcox, CJ, Keely & Moore JJ at 681).

53 The Tribunal’s Appeal Panel has considered the exercise of the public interest discretion in another security industry licencing matter in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9. It 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….’.

54 Mr Tafengatoto’s interest is in the return of his licence so that he may resume employment and provide for his young family. His interest is also in work that he is physically able to do.

55 The interests of the public in circumstances such as these consist mainly in the strict and fair control of security industry licencing and personnel, the protection of private property and the eradication of the market for stolen property.

56 In the circumstances of this application, there is no reason to believe that the interests of the community and Mr Tafengatoto are necessarily competing or conflicting or that they will compete or conflict again.

57 I do not consider Mr Tafengatoto to be of the criminal element and I do not consider Mr Tafengatoto’s behaviour and offence to be a threat to the security industry.

58 Accordingly I do not consider that it is not in the public interest for Mr Tafengatoto to continue to hold his security industry licence.

59 It is clear that there was more material before the Tribunal than there was before the Commissioner at the time the internal review decision was made. With the benefit of this additional material and oral evidence provided by Mr Tafengatoto relating to his particular circumstances and for all the above reasons, I do not agree with the Commissioner’s decision to revoke Mr Tafengatoto’s licence.

60 Under s. 26 of the Act I have the discretion to revoke or decline to revoke the applicant’s licence. I exercise that discretion in Mr Tafengatoto’s favour and in accordance with s. 63 (3)(c) make the following order:

1 The Commissioner’s decision to revoke Mr Tafengatoto’s licence is set aside.