Williams v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 144

CITATION:	Williams -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 144
DIVISION:	General Division
PARTIES:	APPLICANT Deborah Williams RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013150
HEARING DATES:	23/08/2001
SUBMISSIONS CLOSED:	08/23/2001
DATE OF DECISION:	09/06/2001
BEFORE:	Higgins S - 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
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	The Commissioner's decision to revoke Ms Williams' Class 1A, 1B and 1C licence is affirmed.

Background
1 Ms Williams applied to the Administrative Decisions Tribunal (the Tribunal”) on 21 June 2001 for review of the decision of the Commissioner of Police (“the Commissioner”) to revoke her Class 1A, 1B and 1C licence under the Security Industry Act, 1997 .

2 The Tribunal’s jurisdiction derives from s.29 of the Act and s.38 of the Administrative Decisions Tribunal Act, 1997 (“the Tribunal Act”).

3 In revoking the licence the Commissioner relied on Ms Williams having contravened a condition of her licence (s.26(1)(b)(iii) of the Security Industry Act, 1997). The Commissioner relied on the same grounds for the purposes of the hearing before the Tribunal.

Undisputed Facts
4 On or about 3 November 1998 Ms Williams made an application for a Class 1 and Class 2 licence under the Security Industry Act, 1997 which had come into force on 1 July 1998 (“the new Act”). This was the first application Ms Williams had made under the new Act having previously held a licence under the repealed Security (Protection) Industry Act, 1985 (“the repealed Act”). In making her application Ms Williams provided evidence of her qualifications which included a Diploma and Certificate in Security Studies from the University of Western Sydney in 1998.

5 Prior to making her application Ms Williams received a copy of a booklet entitled “Security Industry Act, 1997” published by the New South Wales Police Service in May of 1998. This booklet was tendered into evidence and marked Exhibit “A”. The booklet provided an explanation of the new laws relating to the security industry as set out in the new Act.

6 On 19 March 1999 Ms Williams was issued with a Class 1A, 1B and 1C licences and Class 2A, 2B and 2C licences under the new Act for a period of five years. The Class 2 licences are not the subject of this appeal.

7 On being advised that her licence had been approved Ms Williams attended the Roads & Traffic Authority (“RTA”) so that she could be issued with a photo licence. She was issued with a five year photo licence which made no mention of the licence being conditional.

8 Shortly after Ms Williams received her photo licence from the RTA she received in the mail, addressed to her and referring to her licence number, a “Notice of Authority and Conditions” in respect of her licences. This document stated so far as is relevant:

“AUTHORITY CONFERRED BY LICENCE:

Authorises the licensee to patrol, guard, watch or protect property including the guarding of cash in transit or to carry on such other activity as may be prescribed by the regulations.
Authorises the licensee to act as a body guard.
Authorises the license to act as a crowd controller.
STANDARD CONDITIONS:

1. ………
2. ………
3. ………
4. ……….
5. It is a condition of this licence that the licensee demonstrate to the Commissioner within twelve months of the licence being granted, or in the case of a Class 2 licence, within a period specified by the Commissioner, evidence of attaining approved competency levels for this class of licence”.
9 On 7 and 15 February 2000 the New South Wales Police Service wrote to Ms Williams requesting that she provide evidence of attainment of approved competency standards in respect of specified units that were to have been completed by her, by 19 March 2000, as a condition of the grant of her licence.

10 On 3 March 2000 Ms Williams wrote to the Security Industry Registry stating that she had supplied all relevant qualification and experience at the time she had made her application. This information had been accepted for the purposes of issuing her licences. The Commissioner states that it never received this letter, however nothing turns on this.

11 During September 2000, there was additional correspondence and a telephone conversation between Ms Williams and the Commissioner in relation to training requirements.

12 On 9 October 2000, the Commissioner again wrote to Ms Williams informing her of the legislative requirement for a Certificate II in Security Guarding in order to obtain a Class 1 security licence under the Act. Ms Williams was advised to contact an approved Registered Training Organisation (“RTO”) and make arrangements to be assessed against the required competency standards.

13 On 13 February 2001 the Commissioner issued a notification of revocation of Ms Williams’ licence. This notification was served on 28 February 2001.

14 On 21 March 2001 Ms Williams made a request for internal review of the revocation decision. On 22 May 2001 the Commissioner (through his Delegate) affirmed the revocation decision.

Legislation
15 The Commissioner’s power to revoke a licence is contained in s.26 of the new Act and in this case the relevant provisions are:

s.26(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, or
(b) if the licensee:
(i) ………
(ii) ………
(iii) contravenes any condition of the licence, ………”
16 The new Act provides that the Commissioner must refuse or not grant an application for a licence where he is satisfied that the applicant does not have the required qualifications as prescribed. The relevant provisions are:
s.15(1) : “The Commissioner must refuse to grant an
application for a licence if the Commissioner is satisfied that the Applicant:
“(a) ………
(b) ………, or
(c) does not hold the qualifications and experience prescribed by the regulations in respect of the class of licence sought by the Applicant, …. (emphasis added)”
AND
s.17(1): “The Commissioner must not grant an application for a Class 1 or Class 2 licence unless the Applicant has completed, to the satisfaction of the Commissioner, an approved security industry training course relevant to the class of licence sought by the Applicant” (emphasis added).
17 Regulation 10(1) of the Security Industry Regulations, 1998 sets out the qualifications prescribed for the purposes of s.15(1)(c) of the new Act. This regulation provides:
Regulation 10(1) : “Class 1 and 2 licenses:
For the purposes of s.15(1)(c) of the Act, the following qualifications are prescribed in relation to an Applicant for a Class 1 or 2 licence:
“(a) attainment of the approved competency standards, or the approved level of accreditation, for the class of licence sought by the Applicant, or
(b) in the case of a Class 1 licence only – completion of an approved first aid course” (emphasis added).
18 The new Act also enables the Commissioner to issue a licence subject to conditions. This power is contained in s.21(3) of the Act which provides:
s.21(3) : “A licence may be granted by the Commissioner subject to such conditions as the Commissioner thinks fit to impose and that are specified in the licence. A licence is subject to such other conditions as may be prescribed by the regulations”.
19 The new Act also contains the following provisions in respect of the form of the licence:
s.22(1) : “A licence is to be in any one or more approved forms”.
(2) : “A licence must:
(a) contain a recent photograph of the person to whom it is ranted (such photograph being obtained in accordance with arrangements determined by the Commissioner), and
(b) bear the signature of the licensee, and
(c) specify the class (or subclass) of licence, and
(d) contain the number of the licence, and
(e) contain such other details as may be prescribed by the regulations”.
Applicant’s Submissions
20 Ms Williams acknowledged that she received the document “Notice of Authority and Conditions” shortly after she was issued with her licence by the RTA. A copy of this notice was contained in the documents Ms Williams had filed in the Tribunal in support of her application. However, she stated that when she was issued with her photo licence it was not in fact marked conditional. She accepted that she would need to do additional training after the expiry of her five year licences. It was her application that the Commissioner’s failure to issue a photo licence without stating it to be conditional prevented him from imposing conditions subsequently. Ms Williams also argued that her qualifications were superior to those that were actually required and had been accepted by the Commissioner when her licence application was approved.

21 Ms Williams also stated that she had not made any inquiries of an approved RTO as to what additional training, if any, would be required in order for her to meet the necessary competency standards.

Evidence
22 In support of the Commissioner’s case, Ms Paterson relied on a statement, dated 26 July 2001, of Senior Constable Craig Stewart Donald who holds a position of Enforcement/Liaison Manager at the New South Wales Security Industry Registry.

23 Senior Constable Donald also gave evidence and was cross examined by Ms Williams. The evidence of Senior Constable Donald was of assistance to the Tribunal in explaining the systems adopted by the Security Industry Registry since the new Act came into force in July 1998 in regard to training. However, for the purpose of Ms Williams’ application I have placed greatest reliance on what information was provided to her at the time she made her application for a licence and what was provided when her licence was issued. Additionally, I have considered these findings of fact in the context of the legislature requirements referred to above.

Findings of Fact
24 I find as a matter of fact that the Class 1A, 1B and 1C licence issued to Ms Williams on 19 March 1999 was conditional on the terms set out in the Notice of Authority. These were standard conditions that included a requirement to obtain evidence by 19 March 2000 of attainment of the new competency standards for this class of licence. Under s.21(3) of the Act the Commissioner had power to issue the licence subject to this condition. This requirement being a requirement under Regulation 10(1) of the Security Industry Regulations. Senior Constable Donald explained that this condition was standard for all persons who had held licences under the repealed Act. The requirement was also contained in the May 1998 booklet, which was Exhibit “A”.

25 The fact that the photo licence made no reference to licence being conditional in my opinion does not mean that these conditions did not apply. Section 22 of the Act does not require the form of licence to expressly state that the licence is conditional and what those conditions are. As a matter of practicality it would be difficult to do so and contrary to the purpose for which the form of photo licence is issued.

26 Ms Williams submitted that the booklet (“Exhibit A”) at page 7 stated that persons with existing licences would be issued with a conditional licence for a period of 12 months during which period the licence holder had to show that he/she had attained the approved competency standards for that level of licence. She states that having been issued with a 5 year photo licence without any mention of conditions meant that the Commissioner did not require her to undertake the requisite training as her high level of training had been accepted as being sufficient.

27 In my opinion, for the reasons already stated, this cannot be supported by the evidence before the Tribunal and the legislative requirements placed on the Commissioner. On receipt of the “Notice of Authority and Conditions” Ms Williams was clearly informed of this condition. The fact she already had significant training I am informed is taken into account by the RTO’s and that there were examples of persons in the same position as Ms Williams, who, during this transitional period from the repealed Act to the new Act, were required to do minimal or no additional training to obtain the necessary qualification certificate.

28 As Ms Williams failed to provide to the Commissioner evidence of attaining approved competency levels for her Class 1 licences I find that she breached Standard Condition No. 5 of her licence and this is a basis on which her licence may be revoked (s.26(1)(b)(iii) of the Act).

29 I also find the conduct of Ms Williams in failing to make any inquiries of any RTO’s approved by the Commissioner, of which there are many, about what, if any, additional training was required in order for her to obtain the necessary certification and evidence of having attained approved competency levels, as being an indication of a reluctance to comply with the provisions of the new Act, an objective of which was to provide improved training standards as well as high levels of integrity and accountability.

Decision
30 For the reasons set out above, I order that the Commissioner’s decision to revoke Ms Williams’ Class 1A, 1B and 1C licence be affirmed.