Fenton v Commissioner of Police, New South Wales Police Service [2000] NSWADT 16 (23 February 2000)

Last Updated: 29 February 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Fenton -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 16

PARTIES: APPLICANT

Nicholas Ryan Fenton

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 993208

HEARING DATES: 17/11/99

SUBMISSIONS CLOSED: 17/11/1999

DECISION DATE: 23/02/2000

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Security Industry Act 1997

CASES CITED: Boltros -v- Commissioner of Police [2000] NSWADT 6 at [18]

Derisi -v- Vaughan [1983] 3 NSWLR 17

APPLICATION: Review of decision to revoke security industry licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: In person

RESPONDENT REPRESENTATIVE: G Doherty, solicitor, Legal Services Branch, NSW Police Service

ORDERS: 1. Decision of the Commissioner of Police to revoke the the applicant's licence is affirmed.

Reasons for Decision:

Introduction

1 On 14 September 1999 Mr Fenton applied to the Tribunal for a review of a decision by the Commissioner of Police, to revoke his licence under the Security Industry Act 1997 (the Act). He also applied at that time for an urgent stay of the Commissioner's decision. On 15 September, the Tribunal granted a stay, by consent, pending further determination of the matter.

Background to this application

2 On 9 February 1999, the Police Commissioner issued Mr Fenton with a Class 1A, 1B and 1C licence under the Act. These licences are valid for 5 years. The licences authorised him to carry out security activities including: patrol, guard, watch or protect property (Class 1A); bodyguard (Class 1B); and crowd controller or bouncer.(Class 1C).

3 On 25August 1999 Mr Fenton was served with a Notification of Revocation of Licence advising him that his Class One security licence had been revoked. The reason given was that Mr Fenton had been convicted of larceny at Hornsby Local Court on 13 July 1994 and fined $600.00. The Notice stated that under s 16(1)(a) of the Act, the Commissioner must refuse to grant an application for a licence if he is satisfied that the person had been convicted of a prescribed offence within the period of 10 years before the application was made. The Commissioner later realised that this was not the appropriate power to use as Mr Fenton had already been granted a licence.

4 At Mr Fenton's request, an internal review of the Commissioner's decision was carried out. By letter dated 26 August 1999 the Commissioner advised Mr Fenton that the original decision had been affirmed. The Commissioner's delegate gave the same reasons as those given in relation to the original decision. Mr Fenton applied to a Tribunal for a review of this decision on 14 September 1999.

Findings of fact

5 Mr Fenton has been working in the security industry for about 12 years. He explained that in 1994 he was living in the Hornsby area with his wife and a young woman who was a friend of his wife. There was an incident involving the friend which Mr Fenton says arose because she was drinking and taking drugs. He said that he tried to get her to leave the house. As an incentive, he removed a video recorder from the house which the friend was renting. He gave the video recorder to another friend. The woman called the police and Mr Fenton was charged with larceny. He was convicted at Hornsby Local Court on 13 July 1994 and fined $600.00.

6 Mr Fenton told the Tribunal that he realises that what he did was wrong and that he is "truly sorry". He submitted several references and told the Tribunal, during cross examination, that each referee knew of the conviction when providing the reference.

Respondent's submissions

7 An amended Statement of Reasons was filed by the respondent on 25 October 1999. This statement relied on different reasons from those originally given to Mr Fenton. In particular, the Commissioner relied on:

Section 26(1)(a) of the Act which provides that the Commissioner may revoke a licence for any reason for which the licensee would be required to be refused a licence of that class;

Section 26(1)(c) of the Act which provides that the Commissioner may revoke a licence if he is of the opinion that the licensee is no longer a fit and proper person to hold a licence; and

Clause 18 of the Security Industry Regulation 1998 which provides that the Commissioner may, in accordance with section 26(1)(d) of the Act, revoke a licence, 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 In relation to the first ground, s 26 (1)(a) states that:

(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.

9 Conviction for the offence of larceny in 1994 required the Commissioner to refuse Mr Fenton's application for a licence in 1999. Larceny is a prescribed offence involving "involving fraud, dishonesty or stealing" and pursuant to s 16(1)(a) of the Act and Clause 11(d) of the Security Industry Regulation 1998, refusal is mandatory.

10 For reasons which were not explained, the Commissioner did not refuse the licence when Mr Fenton applied in 1999. When the conviction came to their attention, they sought to revoke the licence. The Commissioner submitted that

. . . the legislation has quite clearly been enacted to exclude from the industry persons with convictions for certain criminal offences within the last 10 years. Criminal record checks are undertaken on a regular basis after licences are issued, to maintain strict licensing requirements by identifying persons who fail to meet the licensing criteria and thereby revoking such licences.

11 The Commissioner also submitted that in circumstances where the application should have been refused, s 16(1) imposes an obligation on the Commissioner to revoke a licence if it comes to their attention after granting the licence that the applicant has been convicted of a prescribed offence.

Tribunal's reasoning process

12 While I agree that the legislation provides for mandatory exclusion of people applying for a security licence if they have committed certain offences within a specified period, there is no provision for mandatory revocation of a licence. Section 26(1)(a) states that a licence "may" be revoked for any reason for which the licensee would be required to be refused a licence of that class.

13 I agree with Mr Skinner's finding in Botros v Commissioner of Police [2000] NSWADT 6 at [18] that the Commissioner of Police

". . . clearly has a discretion under s 26(1) of the Act as to whether to revoke a licence. Any argument that revocation is mandatory where s 26(1)(a) of the Act applies cannot be accepted. The words of the legislation granting a discretion are clear."

14 Section 9 (1) of the Interpretation Act 1987 states that:

(1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion.

(2) In any Act or instrument, the word "shall", if used to impose a duty, indicates that the duty must be performed.

15 In this case, s 26(1)(a) confers a power on the Commissioner to revoke a licence. This conclusion is supported by the fact that the word "must" is used in s 16(1) in relation to applications for licences but "may" is used in s 26(1)(a) in relation to revocations. The conclusion is further supported by the analysis of the Court of Appeal in Derisi v Vaughan [1983] 3 NSWLR 17. In that case, the Court was considering a similar licensing scheme under the Commercial Agents and Private Inquiry Agents Act 1963. The provision in question was s 11(1) which provided that a person who is licensed as a private inquiry agent may be required to show cause before a magistrate why his licence should not be cancelled. Section 11(2) provides that on being satisfied of the truth of any of the grounds specified in s 11(1) the court "may" order cancellation. The Court of Appeal interpreted "may" in this context as conferring a discretionary power on the court. Their Honours, Glass, Mahoney and Priestley JJA stated at 22 that:

It is conceivable that there could be some reason, such as completion of work for some particular client, why a magistrate might allow a licensee to retain his license for the balance of the then current year; it might well have been also that the occasions when a magistrate could be so persuaded would be very few; one would think that in most cases the existence of the ground would incline the court to exercise its discretion in favour of cancellation rather than the opposite. The point was however that the policy of the Act to prevent the grant or renewal of a license when one of the relevant grounds existed does not seem inconsistent with the court being left with the very limited discretion involved in permitting a licensee to retain his license for the balance of its current year, if a sufficiently strong case had been made to persuade the magistrate to do so.

Application of reasoning to the present case

16 In my view, the Commissioner made the correct and preferable decision in revoking the applicant's licence under s 26(1)(a). Mr Fenton did not put anything to the Tribunal, other than the circumstances of the offence itself, his remorse and his good character, in support of his application. If the Commissioner had been aware of this offence at the time, he would have had no choice but to refuse Mr Fenton's application for a licence. In the absence of some unusual or exceptional circumstances, the fact that the Commissioner failed to exercise this duty cannot be allowed to compromise the clear intent of the legislation.

17 Although I have found that the Commissioner made the correct decision, the process by which the decision was made and the reasoning involved deserves comment. In my view, the Commissioner should not fetter his discretion in any way by assuming that he is obliged to revoke a licence once the existence of a relevant conviction has been brought to his attention. Gummow J in Khan v Minister for Immigration and Ethnic Affairs (unreported, December 1987) stated that:

. . . what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy.

18 In addition, in my view, the Commissioner should afford a current licence holder procedural fairness by giving that person the opportunity to make submissions as to why the licence should not be revoked. Having said this, I agree with the thinking of their Honours Glass, Mahoney and Priestley JJA in Derisi's case that it will be unusual for this discretion to be exercised in favour of an licensee.

19 Having come to the conclusion that the Commissioner made the correct decision under s 26(1)(a), it is not necessary for me to consider the other grounds for revocation relied on by the Commissioner. It will only be necessary to rely on these alternative grounds in situations which do not come within s 26(1)(a).

20 The decision of the Commissioner in revoking the applicant's licence is affirmed.