Toleafoa v Commissioner of Police, NSW Police Service

[1999] NSWADT 42

Set aside by Appeal: Set aside by appeal on 18/11/1999 - Remitted back to Tribunal

CITATION:	Toleafoa -v- Commissioner of Police, NSW Police Service [1999] NSWADT 42
decision revised on:	07/01/1999
DIVISION:	General
APPLICANT:	Gauta Toleafoa
RESPONDENT:	Commissioner of Police, NSW Police Service
FILE NUMBER:	993041
HEARING DATES:	05/28/1999
SUBMISSIONS CLOSED:	05/28/1999
DATE OF DECISION:	28 May 1999
BEFORE:	R Bartley - Judicial Member
PRIMARY LEGISLATION:	Security Industry Act 1997
APPLICATION:	Review of a decision to refuse to issue a security industry licence -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: L Carr of counsel Respondent: N Marsic, solicitor
ORDERS:	1. Application granted.

Background (This background does not form part of the Decision)

The application for review relates to the refusal by the respondent of the applicant’s application for a Class One Security Licence under the Security Industry Act 1997.

Section 15(1)(a) provides that the Commissioner “must refuse” to grant an application if a person is “not a fit and proper person” to hold the class of licence sought. Section 15(3) provides that the Commissioner “may refuse” to grant an application if he consider that it “would be contrary to the public interest”

In the present case, the refusal was based on each of these grounds. Under the old licensing scheme the applicant had successfully appealed to the Local Court against a refusal based on not being a fit and proper person. The relevant statute, the Security (Protection) Industry Act 1985, did not include an additional ground equivalent to section 15(3) of the current Act. The Local Court appeal under the old Act was heard at Newcastle before Mr Morahan magistrate on 11 August 1997 the appeal was upheld and the licence granted.

The applicant in support of the present application submitted that as the facts were no different to those before the Local Court in 1997, the Tribunal should uphold the appeal. The respondent agreed that the facts of concern had not changed, but submitted that the law had, and that there was now an additional ground to refuse the licence, that is, that the grant would be contrary to the public interest.

Reasons for Decision

1 I think the matters are well set out in the exchange between counsel and myself, that as Mr Carr has pointed out there is no difference in the factual matters that went before Mr Morahan than has been before myself.

2 Quite frankly, if it was to be done again I would be of the view that I do not agree with Mr Morahan's decision but to my mind on the second part, as Ms Marsic has pointed out, that there is a new Act and one has also there to consider public interest. She said the Commissioner has objected on two grounds:

(1) he is not a fit and proper person and I suggest, as I have told her, I do not agree with Mr Morahan's decision; and

(2) that he also says not in the public interest and when one reads the decision of K. Smith she has not distinguished at all between the reasons for saying he is not a fit and proper person and the reasons for saying it is not in the public interest.

There is nothing there that would support a refusal on the grounds of public interest.

3 On the contrary in my view, as Mrs Smith has pointed out in the decision of DPP v Smith [1991] 1 VR 63, public interest is a term embracing matters against others, of standards of human conduct and of the functioning of government and government instrumentalities et cetera established and accepted to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct to the interest of the individual or individuals

4 In this case in my view the public have a very great interest in that whereas a member of the public has had a decision of a court in their favour, nothing has happened since the decision of the magistrate and in my view it is in the public interest there be conformity in the courts and the matter having been dealt with already by Mr Morahan I am of the view that I should not change it and in my view it is in the public interest that the application be granted.