Valkai v Commissioner of Police, NSW Police

[2004] NSWADT 265

CITATION:	Valkai v Commissioner of Police, NSW Police [2004] NSWADT 265
DIVISION:	General Division
PARTIES:	APPLICANT Frank Robert Valkai RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	043272
HEARING DATES:	13/10/2004
SUBMISSIONS CLOSED:	10/13/2004
DATE OF DECISION:	11/18/2004
BEFORE:	Molony P - Judicial Member
APPLICATION:	Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Security Industry Amendment Act 2002 Security Industry Regulation 1998 Social Security Act 1991 (Cth)
CASES CITED:	Valkai -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 63Commissioner of Police, New South Wales Police v Valkai (GD) [2001] NSWADTAP 34Commissioner of Police, New South Wales Police v Valkai (No.2) [2001] NSWADTAP 43
REPRESENTATION:	APPLICANT In person RESPONDENT P McLaughlin, solicitor
ORDERS:	Orders made 13 October 2004: The Tribunal affirms the decision to refuse Mr Valkai's application for a Class 1 ABC licence under the Security Industry Act 1997.

Background

1 These are written reasons for the decision of the Tribunal, given orally on 13 October 2004, to affirm the Respondent’s decision to refuse Mr Valkai’s application made on 17 March 2004 for a Class 1ABC licence under the Security Industry Act 1997 (“the Act”). The reasoning underlying the Respondent’s decision was that the Respondent was required by s.16 (1)(a) of the Act to refuse the application because Mr Valkai had been convicted of a prescribed offence, involving dishonesty or fraud, within 10 years of making the application.

2 That decision was initially made by the Respondent on 31 May 2004, and was affirmed on internal review on 29 July 2004. On 17 August 2004 Mr Valkai lodged his application for the Tribunal to review the decision.

3 In giving my oral decision I attempted to explain to the Applicant, as simply as possible, the legal basis underlying my decision. I asked the Applicant to request full written reasons if he wished to appeal my decision, as I was aware that, while the oral reasons I had given to the Applicant sought to make the decision explicable to him, they did not express the depth of reasoning underlying the decision.

4 I am informed that Mr Valkai has now requested written reasons, and provide them accordingly.

5 Mr Valkai held a Class 1ABC licence from 27 February 1999 to 20 April 2004.

6 On 9 April 1999, Mr Valkai pleaded guilty to and 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(C'th) (since repealed), which provided:

A person must not knowingly obtain:
(a) payment of a social security payment under this Act or of fares allowance: or

(b) payment of. an instalment of a social security payment under this Act;

for which the person is not eligible or which is:
(c) not payable at all; or

(d) only payable in part.

The maximum penalty for an offence under s.1347 was imprisonment for 12 months: s.1350 Social Security Act 1991 (C'th). Mr Valkai 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.

7 On 23 February 2000 the Respondent determined to revoke Mr Valkai’s Class 1ABC licence, effectively as a result of the conviction. Mr Valkai appealed that decision to this Tribunal, and on 24 April 2004 the Tribunal set aside the decision to revoke his licence: Valkai -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 63. The Respondent then appealed to the Appeal Panel. There are two decisions of the Appeal Panel considering that appeal: Commissioner of Police, New South Wales Police v Valkai (GD) [2001] NSWADTAP 34 and Commissioner of Police, New South Wales Police v Valkai(No.2) [2001] NSWADTAP 43. The decisions of the Tribunal were there concerned with the provisions of s.26 of the Act which provided for the exercise of a discretion to revoke the licence. The result was that the appeal was dismissed, and Mr Valkai retained his Class 1ABC until it expired 20 April 2004.

8 Mr Valkai applied for a new licence on 17 March 2004 as his old licence was expiring. It is the Respondent’s decision to refuse that application which is the subject of this appeal. The conviction which underlies the Respondent’s decision to refuse Mr Valkai a subsequent licence, is the same conviction which formed the basis of the decision, made in 2000, to revoke Mr Valkai’s earlier licence that was aside by the earlier decision of this Tribunal. On this occasion the Respondent argues that it has no discretion to refuse Mr Valkai’s application for a subsequent licence and that this result follows from his conviction.

9 While not strictly relevant to this appeal, it is to be noted that since the decision to revoke Mr Valkai’s licence was set aside by the Tribunal in 2001, s.26 of the Act has been amended by the Security Industry Amendment Act 2002 which inserted a new s.(1A) into s.26. That amendment provides:

The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.

10 There is no suggestion that Mr Valkai has committed any further offences, or behaved in any way improperly in his work in the security industry. Indeed, all the evidence, including a recent reference from his employer (The Sydney Cricket Ground Trust) points to him being very good at his job. He is understandably very confused to have his application for a subsequent licence refused after having the earlier revocation of his licence set aside by the Tribunal.

The Legislation

11 The Tribunal’s jurisdiction to hear this appeal is found in s.29 of the Security Industry Act 1997 and s.38 of the Administrative Decisions Tribunal Act 1997

12 The Security Industry Act 1997, among other things, regulates the licensing of persons working in the security industry. Persons undertaking security activities are required to be licensed: s.7. There are a number of classes of licence. In considering whether or not to grant a licence, s.15 and s.16 set out a number of circumstances in which the Commissioner must refuse to grant an application for a licence.

13 One such circumstance is that set out in s.16(1)(a), which 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,
…
Clause 11(d) of the Security Industry Regulation 1998 provides:
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.

14 The Act itself makes no distinction between an application for a licence and an application to renew a licence or for a subsequent licence. The only reference to the concept of licence renewal, or the issue of subsequent licences, is to be found in clause 17 of the Regulation, which provides:

(1) If:
(a) a person applies for a subsequent licence before the term of the person’s current licence expires (referred to in this clause as the old licence), and

(b) the application has not been dealt with by the time the old licence permit expires,

the authority conferred by the old licence continues until such time as the person is notified of the granting, or refusal of, the subsequent licence.

(2) …

Indeed, this provision was used to extend Mr Valkai’s old licence up to the time his application for a subsequent licence was refused.

15 The evidence clearly establishes that Mr Valkai was convicted of an offence under s.1347 of the Social Security Act 1991 (C'th) on 9 April 1999. It was determined that his conviction is one “involving fraud, dishonesty or stealing” in respect of which the maximum penalty is imprisonment for 3 months or more (as required by clause 11 of the Regulation) in this Tribunal, at both first instance and by the Appeal Panel, in earlier decisions concerning Mr Valkai.

16 It is therefore a conviction for an offence to which s.16(a) of the Act applies. Upon being satisfied that Mr Valkai was convicted for that offence, within 10 years of applying for his licence, the Commissioner, and this Tribunal in his place, must refuse Mr Valkai’s application for a licence. There is no discretion not to do so: the provision is mandatory. This is to be contrasted with the position of the Tribunal when reviewing the earlier decision to revoke Mr Valkai’s licence. Section 26 of the Act, as it then stood, gave the Commissioner and the Tribunal discretion to revoke or not. That is not the case here. The Act requires that Mr Valkai’s application for a licence be refused.

17 I have considered whether a distinction can be made between the application of s.16 to new applications for a licence, as opposed to renewals or subsequent licences. I can find no basis for making such a distinction. I am of the view that the provisions of clause 17 of the Regulation lend weight to that conclusion. Clause 17 clearly contemplates the situation in which Mr Valkai finds himself, in which the holder of an old licence is unable to meet the requirements for the granting of a subsequent licence. I have also considered whether the transitional provisions of the Security Industry Amendment Act 2002 have any relevant operation in the present circumstances, but think that they do not.

18 I have considerable sympathy for the position in which Mr Valkai finds himself, and appreciate the difficulty he has in reconciling what has happened in the past with his present situation. I attempted to explain him that the decision to refuse his application for a Class 1ABC is one that the Act says must be made, and that neither the Commissioner nor the Tribunal have the power to do anything but refuse his application. Past events make it difficult for him to accept or understand this.

19 The decision of the Tribunal is to affirm the decision to refuse Mr Valkai’s application for a Class 1 ABC licence under the Security Industry Act 1997.