Valkai v Commissioner of Police, New South Wales Police Service
[2001] NSWADT 63
•04/23/2001
CITATION: Valkai -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 63 DIVISION: General Division PARTIES: APPLICANT
Frank Valkai
RESPONDENT
Commissioner of Police, New South Wales Police ServiceFILE NUMBER: 003064 HEARING DATES: 30/05/2000 SUBMISSIONS CLOSED: 05/30/2000 DATE OF DECISION:
04/23/2001BEFORE: Lees M - 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
Security Industry Act 1997
Security Industry Regulation 1998
Social Security Act 1991 (Cth)CASES CITED: Hue Thi Le v Gary Wayne Shute [2000] ACTSC 56 (7 July 2000)
Minister for Immigration & Multicultural Affairs v "SRT" [1999] FCA 1197
Tran v Commissioner of Police, New South Wales Police Service [2000] NSWADT 18
Fenton v Commissioner of Police, New South Wales Police Service [2000] NSWADT 16
Howells v Commissioner of Police, New South Wales Police Service [2000] NSWADT 120
Price v Commissioner of Police, New South Wales Police Service [2000] NSWADT 127
Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6
Jasim -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 45
Tafengatoto -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 40
Hughes and Vale Pty Ltd v State of New South Wales (1953) 93 CLR 127
Sakellis v Officer in Charge of Police, Paddington (1968) 88 WN (NSW) Pt 1) 541
Sobey v Commercial Private Agents Board (1979) 22 SASR 70
Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321
Winika v Commissioner of Police, New South Wales Police Service [2001] NSWADT 8
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657
Joyce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 17
Commissioner of Police v Toleafoa ([1999] NSWADTAP 9REPRESENTATION: APPLICANT
in person
RESPONDENT
J Tunks, solicitorORDERS: 1. The Commissioner's decision to revoke Mr Valkai's licence is set aside.
1 Mr Valkai lodged an application with the Administrative Decisions Tribunal (the Tribunal) on 4 March 2000 for review of a decision made by the Commissioner of Police (the Commissioner). That decision, made on 23 February 2000, was to revoke Mr Valkai’s security industry licence under the Security Industry Act 1997 (NSW) (the Act). The Commissioner’s decision was made pursuant to a request by Mr Valkai for internal review of an earlier decision of revocation dated 2 February 2000.
2 The Tribunal’s jurisdiction derives from sections 29 of the Act and 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).
3 On 3 March 2000 Mr Valkai made an additional application to the Tribunal pursuant to s. 60(2) of the Tribunal Act for an urgent stay of the Commissioner’s decision. The President of the Tribunal granted the stay on 7 March 2000 until the date of the hearing. Another stay of the Commissioner’s decision was granted by the Deputy President of the Tribunal on 31 March 2000. At the close of the hearing on 30 May 2000 the stay was again granted, without objection, until the determination of the review application.
The relevant law
4 Section 16 (1)(a) of the Act provides
- (1) 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,….
- (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.
- 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…
- 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.
8 Mr Valkai’s application for review attached the two decisions of the Commissioner, the first revoking Mr Valkai’s security industry licence and the second affirming that revocation.
9 Mr Valkai also provided the following documents to the Tribunal in support of his application:
- - a copy of a handwritten undated document prepared in relation to his seeking review of the Commissioner’s decision (at one stage or another). Mr Valkai acknowledged that a neighbour had helped him prepare it. It refers to his regretting his ‘mistake’ and ‘misjudgement’, and that there is ‘no excuse for [his] deception’. The words are not Mr Valkai’s own words. In evidence he admitted to not knowing the meaning of ‘deception’;
- two letters of thanks from one of his employers, Chubb Protective Services, relating to Mr Valkai’s efforts over the 1999/2000 new year period; and
- twelve personal and professional references prepared either for his court case in April 1999 or for the purposes of seeking to retain the licence in issue.
- - a copy of the Wollongong Prosecuter’s ‘Statement of Facts’ together with a copy of the Probation and Parole Service Court Duty Officer Report on Mr Valkai; a copy of a completed ‘Periodic Detention Undertaking’ and a copy of the Australian Federal Police’s ‘Antecedents Report’ on Mr Valkai;
- a document dated 16 May 2000 entitled ‘Amended Statement of Reasons’ relating to the decision by the Commissioner’s delegate of 2 February 2000; and
- written submissions dated 17 May 2000.
12 On 27 February 1999, Mr Valkai was issued with a Class 1A, 1B and 1C licence under the Act. The licence authorizes Mr Valkai to carry out the following security activities: 1A: patrol, guard, watch or protect property (including the guarding of cash in transit); 1B: bodyguard; 1C: crowd controller or bouncer. Mr Valkai had been working in the security industry for about five years prior to that licence being granted.
13 On 9 April 1999, Mr Valkai was convicted in the Wollongong Local Court of the offence of ‘Payment knowingly obtained where not payable’ being an offence under s. 1347 of the Social Security Act 1991 (Cth). He was released without sentence being passed on recognisance to be on good behaviour for 2 years and to pay $500 surety within 3 months. A reparation order was also made in the sum of $3350. Mr Valkai had already paid back the sum of $2088.99 prior to his court appearance.
14 The behaviour leading to the conviction involved lodging forms with the Commonwealth Services Delivery Agency, formerly the Department of Social Security (the Agency). When lodging those forms Mr Valkai either failed to declare that he was employed and in receipt of income, or under-declared his employment income. Mr Valkai was on Job Search allowance between 1 July 1996 and 13 September 1996 and began on Newstart allowance from 14 September 1996 to a date unspecified. He had been in casual employment with Chubb Security since 13 March 1996.
15 The offending behaviour occurred between 16 August 1996 and 29 June 1997 resulting in approximately ten overpayments to Mr Valkai. There was no evidence of the number of forms Mr Valkai completed inaccurately or of the breakdown of the sums involved.
16 At the time of the Tribunal hearing Mr Valkai had repaid the monies he received improperly.
17 The Commissioner’s evidence was that on 23 June 1998 in an interview with Agency investigators, Mr Valkai admitted to giving the Agency ‘false information’.
18 Mr Valkai described the agency interview as largely providing him with the opportunity of answering questions with yes/no answers only.
19 Mr Valkai pleaded guilty at the Wollongong Local Court. He says he was advised to do so.
20 Mr Valkai had no previous convictions or police record of any kind prior to this offence. There have been no incidents subsequent to the time of the offence.
21 Mr Valkai’s oral evidence provided a little additional information about Mr Valkai himself, his life circumstances and the way his work in the security industry began. He referred to his many efforts since he left school in 1991 to try some courses and start a business and that none of these had worked out. Having been offered some casual security work, Mr Valkai undertook some training and was employed under a specific employment program aimed at removing people from the dole.
22 In relation to his circumstances at the time of his actions leading to the conviction, Mr Valkai referred to having been under some familial, emotional and financial strain. He also referred fleetingly to his tax situation, his accountant, working 12 ½ hour shifts and then not working at all. There was a suggestion in the evidence, but it was not clear, that Mr Valkai was in some kind of financial debt at the time.
23 Mr Valkai’s evidence was that he understands that his actions at the relevant time were wrong. He expressed remorse and contrition in this regard. He was confident he would never make the same mistake again. He has learnt a great deal from his conviction experience and its consequences.
24 Mr Valkai gave evidence of how much he loved his work and how it provides him with the opportunities to learn from his employers. He believes his security industry work has given real meaning to his life. The prospect of losing his licence and probably having to return to the dole was very distressing to him.
25 Mr Valkai asserted he has an impeccable record in his six years in the security industry. He respects his work. He was adamant that he is not a liar or a cheat.
26 Mr Valkai gave evidence he had been responsible at times, including very recently, for carrying large sums of money, and gave examples of two such sums being $8000 and $10000.
27 Mr Valkai provided the Tribunal with thirteen references: one reference from the Managing Director of one of the companies employing Mr Valkai; two from work supervisors; two from work colleagues; four from members of the local community working in the buildings Mr Valkai works in; and four from other members of his local community: his GP; his MP; his football club secretary and a former employer with long term knowledge of Mr Valkai.
28 The evidence of numerous community members in their references supported the fact of Mr Valkai’s asserted enthusiasm for his work.
29 Mr Valkai submitted that his conviction should not be used as a reason to revoke his licence as he had already been sentenced for his crime and was meeting that penalty as ordered. He viewed the revocation as further punishment and unfair. He was supported in this submission in the reference provided by his local MP.
30 Mr Valkai submitted he was fit and proper and relied on his unblemished record of security industry service and the references provided as illustrative of his suitability and reliability.
31 Mr Valkai’s ‘private’ interest in this application is that he may continue to be in gainful employment and so continue in a job that means just about everything to him.
32 In relation to ‘the public interest’, Mr Valkai focused on public safety and submitted he was ‘a danger to no one’.
33 The Commissioner relied on the document dated 16 May 2000 entitled ‘Amended Statement of Reasons’ and the written submissions dated 17 May 2000.
34 The Commissioner’s initial decision was based on s. 26(1)(a), 16(1)(a) & (b), cl 11 (d) and cl 18; the internal review decision relied on the same provisions except cl 18. The Amended Statement of Reasons document was prepared in relation to the initial decision. In his submissions and at the hearing, Mr Tunks for the Commissioner either directly or indirectly relied on the same provisions.
Findings and Reasoning
35 The Commissioner relies on the exercise of three discretions as the bases for revoking Mr Valkai’s licence. These relate to: the recency and nature of Mr Valkai’s conviction and the power to revoke a licence where it could be refused (s 26(1)(a)); the requirement to be fit and proper (s 26(1)(c)) and the public interest (s 26(1)(d)).
36 I note at the outset that subsequent to the hearing I became aware of the decision of Hue Thi Le v Gary Wayne Shute [2000] ACTSC 56 (7 July 2000). It casts considerable doubt as to whether the provision under which Mr Valkai was charged and convicted created an offence at all.
37 However, that is a matter of criminal law and its procedures. For present purposes the conviction stands. As the full Federal Court found in Minister for Immigration & Multicultural Affairs v "SRT" [1999] FCA 1197 at [46]:
‘While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise.’
38 The s 26(1)(a) discretion provides that a licence may be revoked for any reason for which the licensee ‘would be required to be refused a licence of that class’. Section 16 provides the bases on which the Commissioner must refuse to grant an application for a licence. These include where a licence holder has, within the period of 10 years before the application for the licence was made, been found guilty of a prescribed offence in NSW.
39 Interpreting s. 26(1)(a) strictly, the discretionary power to revoke arises if the licensee has, within the relevant period before the application for the licence was made, been found guilty of a prescribed offence in NSW. This power provides for the situation where a person has been granted a licence yet they should not have been because they had been found guilty of a prescribed offence at the time of the licence application. This power provides for revocation in circumstances such as where, at the time the decision to grant a licence is taken, the Commissioner’s records are incomplete or the searches undertaken are inaccurate or the licensee provided incorrect information. See for example the previous Tribunal decisions of Tran v Commissioner of Police, New South Wales Police Service [2000] NSWADT 18, Fenton v Commissioner of Police, New South Wales Police Service [2000] NSWADT 16, Howells v Commissioner of Police, New South Wales Police Service [2000] NSWADT 120 and Price v Commissioner of Police, New South Wales Police Service [2000] NSWADT 127.
40 The s 26(1)(a) power therefore is to revoke or not to revoke if the licensee had been found guilty but not convicted of a prescribed offence during the relevant period before the application for the licence was made. In my view the power to revoke cannot be exercised where there was no guilt of the relevant kind at the time the licence application was made. This construction of s 26(1)(a) differs from the approach taken by the Tribunal in the decision of Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6.
41 I had not formed this view on s 26(1)(a) until after the hearing and so there was no opportunity to raise it with the parties to invite their views.
42 As I have previously noted in the decisions of Jasim -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 45 and Tafengatoto -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 40, it is possible to conceive of several circumstances which could lead to the anomalous situation where a licensee might be able to retain his or her licence for the licence’s duration despite the licensee having recently committed a prescribed offence. Mr Valkai’s circumstances would appear to fall into one of the examples, namely, the situation where a person has been granted a licence yet it is subsequently proven they had committed a prescribed offence before the licence application had been made.
43 In my view, in relation to interpreting and applying legislation, a circumstance or outcome can be considered anomalous if the legislation allows it to prevail in that there is no provision by which the circumstance can be addressed.
44 I consider that there is power within the Act to address at least some of these otherwise potentially anomalous circumstances. Where a person has been found guilty of an offence subsequent to the application and granting of his or her licence, such as Mr Valkai, there are relevant powers to revoke the licence and these are found in s 26(1)(c) or s 26(1)(d) of the Act.
45 Accordingly, for the above reasons I do not agree with the application of the discretion available in s 26(1)(a) against Mr Valkai.
46 Mr Tunks also submitted that Mr Valkai’s licence should be revoked because he can no longer be considered fit and proper to hold a licence citing the decisions of Hughes and Vale Pty Ltd v State of New South Wales (1953) 93 CLR 127, Sakellis v Officer in Charge of Police, Paddington (1968) 88 WN (NSW) Pt 1) 541 and Sobey v Commercial Private Agents Board (1979) 22 SASR 70.
47 In Sakellis, Henchman DCJ referred to Dixon, CJ’s judgement in Hughes and Vale stating that fitness with respect to an office involves three things: honesty, knowledge and ability. In this regard Dixon CJ had quoted Coke (without further citation): ‘honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’. (Hughes and Vale at 156, Sakellis at 548).
48 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 to be ‘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).
49 In Sobey, after having noted Sobey had an extensive juvenile criminal record, Walters J considered that a person’s record of previous offences is most germane to the question whether a person is a fit and proper person. ‘Any previous breaches of the law, and any propensity towards offending against the law must …. be regarded as of crucial importance’(at 75).
50 These decision makers agree however that it cannot be said that a man once convicted of a crime may never again be a fit and proper person to hold a licence, (see Sakellis at p. 548, Sobey at p 75, Hughes and Vale at pp156-157).
51 In the recent decision of the Tribunal in Winika v Commissioner of Police, New South Wales Police Service [2001] NSWADT 8 the Deputy President found that the offence Mr Winika was convicted of under s 1347 of the Social Security Act 1991 (Cth), the same offence Mr Valkai was convicted of, was an offence involving dishonesty. See at paragraphs 12 and 13 of the decision:
- The words "fraud, dishonesty or stealing" must be interpreted according to their ordinary meaning and the purpose of the Act. "Dishonest" is defined in the Macquarie Dictionary, 3rd edition, as "not honest; disposed to lie, cheat or steal”.…..
There are three elements of this offence. Firstly, a person must have obtained a social security payment; secondly the person is not eligible for the payment; thirdly, the person obtained the payment knowing that he or she was not eligible for it. The third element of the offence involves dishonesty. Regardless of exactly how the benefit was obtained, a person who obtains a benefit to which he knows he or she is not entitled, is dishonest.
53 There is no doubt that the crime Mr Valkai was convicted of was one involving dishonesty. I agree with Mr Tunks’ submission that the dishonesty was ‘if not deceptive, it was at best reckless, probably wilfully blind’.
54 Mr Valkai’s work in the industry is mostly as a guard. His conviction is not related to the security industry or the type of work he has been involved in to date. There was evidence Mr Valkai has been entrusted with large sums of money and that he carried out his related duties without inappropriate incident. There was nothing in the evidence to suggest any dishonesty or other failing by Mr Valkai in the course of carrying out his duties and responsibilities in his security industry employment to date.
55 Mr Valkai has no other offences recorded against him. No evidence was provided suggesting the existence of any complaint or problem with his work during the years of his security industry employment.
56 There is a lot in Mr Valkai’s evidence, particularly that provided by the references, to recommend him as far as his general ability, dedication and enthusiasm for his security guard job goes.
57 Mr Valkai’s evidence as to his regret for his offensive behaviour focussed very much on acknowledging the error and inappropriateness of his behaviour. He fully understands what he has done was wrong and inexcusable. I think Mr Valkai is well aware of that. He did not seek to excuse or justify his behaviour at all. His regret appeared genuine and sincere.
58 As far as his role or ‘office’ as a security guard goes there is every indication by his appreciative referees that he has a very personal commitment to his employers and their clients and would do everything he could not to abuse, offend or endanger those relationships.
59 As far as Mr Valkai’s knowledge about his work and his ability to do it is concerned the fact he has maintained employment over a six-year period suggests he meets these criteria. In addition there is further support for this conclusion in the numerous employment references Mr Valkai submitted. None of this evidence was challenged or objected to.
60 His nine employment-related references are very complimentary and supportive of Mr Valkai’s work in the industry. He is valued as an employee. The references provide considerable weight in support of Mr Valkai’s fitness in terms of his ability to do the job. In the work Mr Valkai has been involved in and continues to be involved in, he has proved to be honest, reliable and conscientious.
61 On balance I have formed the views that, although Mr Valkai has engaged in improper conduct, it is not likely to recur and that Mr Valkai remains fit and proper to continue working in the industry.
62 Accordingly I do not exercise the s 26(1)(c) discretion against him.
63 Mr Tunks also submitted that Mr Valkai’s conviction was a sufficient basis on which to conclude that Mr Valkai’s licence should be revoked in the public interest in accordance with s 26(1)(d).
64 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….. …..consideration. The effect of the reference is to amplify the scope and purpose of the legislation’ (per Wilcox, CJ, Keely & Moore JJ at 681).
65 Mr Tunks also referred to the Sakellis decision and quoted Henchman DCJ at p. 545:
The words “having regard to the public interest” are somewhat vague. I think the intention is that the court must take into account in applying the section the interest of the public in ensuring that those persons who are permitted by public licence to exercise certain functions and are required to conform to certain statutory standards, such as accounting for moneys received, should be suitable persons to be so permitted.
66 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….’.
67 Mr Valkai’s security industry duties have consisted mainly of guarding premises and some accompanying of valuable private property. His security industry licence lets him: patrol, guard, watch or protect property (including the guarding of cash in transit); work as a bodyguard; and as a crowd controller or bouncer.
68 To licence Mr Valkai is to hold Mr Valkai out to the community as a person who is suitable and to be trusted in these tasks.
69 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.
70 Mr Valkai takes his work very seriously and he has a strong sense of personal responsibility to his employers and those people and their property he has been entrusted to protect. This personal commitment and accountability to others contribute significantly to Mr Valkai being effective and competent in his work.
71 Of the total of thirteen personal and employment references, it is clear that at least three of the referees knew that Mr Valkai had offended and that his licence had been ‘suspended’ (sic) as a result. A couple of the references were prepared prior to Mr Valkai’s court hearing in the knowledge of that hearing and with the understanding Mr Valkai’s work as a security officer was under threat. It is not clear from any of these five references whether the referees knew the precise nature of the charge against Mr Valkai. No conclusion can be drawn in this regard. Of course if the referees knew the precise nature of Mr Valkai’s offence their references and support would carry more weight.
72 Two of the referees refer to Mr Valkai’s considerable and generous contribution of his time and effort into local community sporting and charitable activities.
73 Overall, his references from his employers, his colleagues and some of his employer’s clients, members of Mr Valkai’s local community, confirm Mr Valkai’s dedication and competence and illustrate their willingness to trust and support Mr Valkai in his work as a security guard.
74 There was no evidence provided that contradicted the information provided by Mr Valkai’s referees.
75 At the hearing it was acknowledged that Mr Valkai’s criminal act was not connected with his security guard duties but did occur at the time he had some work as a security guard.
76 There was no evidence to suggest Mr Valkai is, has been or will be associated or involved with criminals in his private life. There was nothing to suggest he is a threat to the security industry itself.
77 After carefully considering all the evidence available I am confident that Mr Valkai will not again act against the interests of the general community. As he himself acknowledges, he made a huge ‘blunder’, letting down both himself and the wider community.
78 There is no persuasive reason to believe that the interests of the wider community and Mr Valkai’s own interests will compete or conflict again. I consider him to be suitable and trustworthy for the work of a security guard.
79 In light of these findings, I do not consider that allowing Mr Valkai to retain his security industry licence would be contrary to the public interest.
80 Given that Mr Valkai was not represented before the Tribunal, he should note that if he applies to renew his licence in 2004, that application will be rejected. That is if the law does not change in the meantime. This is because the Commissioner will be required to refuse him the licence due to the operation of s 16 of the Act.
Decision
81 Pursuant to s 63 (3)(c) of the Tribunal Act, I make the following orders:
1. The Commissioner's decision to revoke Mr Valkai’s licence is set aside.
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