Valkai v Commissioner of Police, New South Wales Police (GD)

[2005] NSWADTAP 21

Appeal Panel - Internal

CITATION:	Valkai v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 21
PARTIES:	APPELLANT Frank Robert Valkai RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	049048
HEARING DATES:	18/02/2005
SUBMISSIONS CLOSED:	02/18/2005
DATE OF DECISION:	02/18/2005
DECISION UNDER APPEAL:	Valkai v Commissioner of Police, New South Wales Police [2004] NSWADT 265
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Mapperson K - Non Judicial Member
CATCHWORDS:	security industry licence - review of decision - statutory interpretation - mandatory refusal
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043272
DATE OF DECISION UNDER APPEAL:	11/18/2004
LEGISLATION CITED:	Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Bourke & ors v Commissioner of Police [1998] NSWADT Commissioner of Police, New South Wales Police Service v Valkai (GD) [2001] NSWADTAP 34 Commissioner of Police, New South Wales Police Service v Valkai (No. 2) (GD) [2001] NSWADTAP 43 Tran v Commissioner of Police, New South Wales Police [2005] NSWADT 44 Valkai v Commissioner of Police, New South Wales Police Service [2001] NSWADT 63 Valkai v Commissioner of Police, NSW Police Service [2004] NSWADT 265
REPRESENTATION:	APPELLANT In person RESPONDENT P McLaughlin, solicitor
ORDERS:	Appeal dismissed

1 Background: In April 1999, the appellant was convicted of a social security offence (‘payment knowingly obtained where not payable’ in respect of social security payments, an offence under s 1347 of the Social Security Act 1991 (Cth)). The respondent Commissioner, as administrator, refused early in 2004 his application for renewal of his security industry licence issued under the Security Industry Act 1997 (the Act). The Act requires the Commissioner to refuse an application for a licence if the applicant had been convicted within the last ten years of an offence of dishonesty: see s 16(1)(a) of the Act; and cll 11(d) and 17 of the Security Industry Regulation 1998.

2 He applied to the Tribunal for review of the Commissioner’s decision. The Tribunal affirmed the Commissioner’s decision: Valkai v Commissioner of Police, NSW Police Service [2004] NSWADT 265. He now appeals to the Appeal Panel.

3 The previous licence was issued to the appellant in February 1999, two months prior to his conviction for the social security offence. At that time the Act did not require the Commissioner to revoke the licence (it now does), but gave him a discretion to revoke it. The Commissioner did revoke the applicant’s licence, but the Tribunal on review restored the licence. The Tribunal was influenced by a number of mitigating factors that included the steps taken by the appellant to repay the overpayment, the circumstances under which the overpayment occurred and the lack of any realistic likelihood of re-offence: see Commissioner of Police, New South Wales Police Service v Valkai (No. 2) (GD) [2001] NSWADTAP 43 esp at [16]-[17]; Commissioner of Police, New South Wales Police Service v Valkai (GD) [2001] NSWADTAP 34; and Valkai v Commissioner of Police, New South Wales Police Service [2001] NSWADT 63.

4 The appeal to the Appeal Panel on the present occasion was dismissed. The following oral reasons were given at the conclusion of the appeal. They have since been revised.

5 HIS HONOUR: The appeal today is an appeal against a decision of the General Division of the Tribunal where it affirmed a decision of the Commissioner of Police to refuse to renew Mr Valkai’s security industry licence. The details of the matter are set out fully in the reasons for decision of the Tribunal: Valkai v Commissioner of Police, NSW Police Service [2004] NSWADT 265.

6 This is a case of a kind that the Tribunal has encountered regularly since its foundation in 1998. At that time the mandatory exclusions from being licensed in the industry had just started to operate and caught many cases of the kind that has been presented today. I dealt with a number of applications to have the Tribunal exercise any discretion it had to overturn the decision of the Commissioner of Police in the case of Bourke & ors v Commissioner of Police [1998] NSWADT. That decision dealt with eight applications for review with similar features to the present. A number of the men who presented on that occasion had convictions within the previous ten years of the most minor kind and yet they all lost their licences.

7 I expressed on that occasion in 1998 my concern at the sweeping effect of the rules that were brought in after the Peterson Inquiry into the Security Industry: Industrial Relations Commission, Report to Minister, Matter No IRC 1880 of 1995, Reference regarding the Transport and Delivery of Cash and Other Valuables Industry (28 February 1997, Peterson J). Had the Inquiry had put in front of it the kind of cases we have seen here, it might have thought more carefully about its recommendation to bar any person who has been convicted within the past 10 years of any of a very wide range of offences: Recommendation 3:4. The Tribunal notes that the Peterson Inquiry recommendations were confined to the cash in transit industry, but the Parliament implemented them to apply generally to guarding and related activities: see Second Reading, Hansard, LA (19 November 1997), 2088.

8 The report found that by 1997 a situation had arisen where a large percentage of licensed persons had convictions (the report said 25%). It considered that the police discretion to issue licences to persons with criminal records was often exercised too liberally. Moreover it considered that Magistrates were too lenient in dealing with appeals against refusals. Its solution was to introduce a centralised licensing system (now seen in the form of the Firearms and Security Industry Registry attached to the Commissioner of Police) and a centralised external review system (now seen in the review jurisdiction given to this Tribunal).

9 The position today is very different from the loose regime that operated prior to 1997. The Registry and the Tribunal have provided for some years centralised oversight in the way, hopefully, contemplated by the Inquiry. The wide variances in approach and outcomes previously seen have, hopefully, been eliminated.

10 At the time when those recommendations were made, there was also widespread concern that people holding security licences might be involved in criminal activities (vehicles of the drug trade, stand-over activities) and that some corrupt police might also be involved.

11 There were serious problems; but the provisions that have been introduced have caught a lot of small fry in their net. The problems noted by this Tribunal over the reach of the law in Bourke reached the attention of the Parliament; with some Members of Parliament expressing similar concerns: Hansard, LA (9 September 1999) 234; (16 September 1999) 685. Since then the laws have, however, been further strengthened to overcome what was seen as a kind of imbalance, that is some people could have a discretion exercised to retain their current licence during its period of currency (the one that benefited Mr Valkai on his previous application to the Tribunal).

12 In my view, there is a case for introducing some limited discretion back into the system to deal with minor convictions falling within the proscribed categories incurred by a person otherwise of good character, and where there is no discernible risk of relapse.

13 As to the present case, the Tribunal does not have any flexibility, in contrast to the position that applied when the revocation was challenged some years ago. Mr Molony, Judicial Member, explained this accurately in his decision.

14 I have given another decision lately in a case much like yours Mr Valkai involving a man named Tran, Tran v Commissioner of Police, New South Wales Police [2005] NSWADT 44 (27 October 2004) (revocation, restoration using the discretion then available, fresh application, refusal). I made similar observations on that occasion. That person was caught by the very same set of circumstances you face. His licence had continued for a time, even though he had a disqualifying conviction. He was equally as unconvinced of the merit of what happened to him as you are.

15 The police have rarely suggested in the many mandatory refusal cases that the Tribunal has dealt with involving people affected by a simple, minor conviction that they are not persons of good character.

16 It is accepted, and there is no question here today, that you are a person of good character. It may well be, as you have asserted, that your offence was of a relatively minor matter. The approach the Tribunal must take is to ask whether the offence is an offence of dishonesty. It does not ask is the person convicted a dishonest person or a person who cannot be trusted in the future. It is simply asking whether the offence is one that fits within the categories of mandatory refusal. We do not think there is any doubt the offence of which you were convicted is an offence of dishonesty.

17 All I think we can say to you today Mr Valkai is to encourage you to remain positive and to see what work you can find of a kind that satisfies you around the entertainment industry that may not require a licence for its execution.

18 For those reasons we must dismiss the appeal.