Tran v Commissioner of Police, New South Wales Police Service [2000] NSWADT 18 (3 March 2000)

Last Updated: 24 March 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Tran -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 18

PARTIES: APPLICANT

Pele Huan Giang Tran

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 993253

HEARING DATES: 03/02/2000

SUBMISSIONS CLOSED: 03/02/2000

DECISION DATE: 03/03/2000

BEFORE: Wilson K - Judicial Member

LEGISLATION CITED: Security Industry Act 1997

CASES CITED: Fenton -v- Commissioner of Police, New South Wales Police Service (2000) NSW ADT 16

APPLICATION: Review of a decision to refuse to issue a security industry licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: K Baker, solicitor, Quirk Davidson Easdown

RESPONDENT REPRESENTATIVE: A Spajic, solicitor, New South Wales Police Service

ORDERS: 1. The revocation of the Applicant's licence is set aside and the licence should be re-issued.

Reasons for Decision:

1 On 25 January 1999, the Applicant applied for a Class 1A licence under the Security Industry Act for a term of five years. He was granted such a licence on 13 May 1999. This licence is revoked pursuant to a decision taken on 16 December 1999 on the basis that the Applicant was not fit and proper to hold the licence.

2 The Applicant, it turns out, was found guilty of an offence of break, enter and steal in respect of two matters which occurred when he was dealt with in the Children's Court in 1995 and 1996. He was placed on a good behaviour bond for six months in respect of one matter and ordered to pay compensation and in respect of another matter, he was found guilty but with no conviction being recorded and was placed on probation to be of good behaviour and also to pay compensation. He met the conditions of these impositions.

3 He was issued with his Security Industry Licence and it only subsequently came to the notice of the Commissioner of Police, through the computer records, that these previous convictions had taken place. Relevantly he had disclosed on the licence application form the history of these matters.

4 The Respondent argues that had these matters been at the forefront of the knowledge of the decision-maker at the time of that the original licence was given, then the Applicant would not have been deemed to be fit and proper and, accordingly, should not be deemed to be fit and proper now and that the Commissioner is entitled to exercise his discretion under the Act to revoke the licence.

5 At the hearing none of these matters were in contest nor was there any contest to the fact that the Applicant, a young man now aged 21, had been operating in the security industry for a number of years and had no complaint against him, nor was there any suggestion that he had in any way reverted to the conduct which had brought him into contact with the law at age 16 and 17. Several references were provided which were not contested which attest to his reliability and the responsible way in which he discharges his duties. He works three days a week for a security firm and attends a TAFE College dealing with security industry matters. He has purchased a home and is establishing his life in the Green Valley area.

Issues

6 There is no contest that the administrative decision taken in relation to this application was one that involves the exercise of discretion. Accordingly, the Tribunal should consider the exercise of that discretion against the background of the information that has been provided and the reasoning of the original decision-maker.

7 In the Tribunal's view the original decision-maker took a too limited approach to the consideration of the matters in this application. The original decision-maker essentially determined that had these matters been before the Primary decision-maker who issued the licence in the first place, then it was unlikely that the Applicant would have received the licence because of the mandatory nature of those provisions and accordingly, he should no longer hold his licence. In the Tribunal's view, this reasoning is limited and slightly misdirected. The exercise of the administrative discretion requires that the decision-maker take into account all relevant circumstances before coming to a concluded view.

8 In Fenton v Commissioner of Police [2000] NSW ADT 16 Deputy President Hennessy sets out the appropriate reasoning which should a accompany the process of decision-making in cases similar to this. The exercise of discretion requires consideration of all the relevant elements.

9 This case has several factors to be taken into account. In particular, the fact he was a minor when the offences occurred, the actual record of the Applicant in carrying out his duties and the fact that he disclosed fully in his original application the nature of these incidents and notwithstanding that, the licence was issued to him. Also, he had held a licence under the old system and had no complaints registered against him. He is a young man of present good character and has excellent references which are not contested.

10 The exercise of discretion rests on the particular circumstances of each case and the Tribunal is satisfied that in the circumstances of this case, as previously detailed in these reasons, that he is a person of whom it could be said that he was fit and proper to hold a licence.

11 Accordingly, the Tribunal determines that in this particular case, taking into account all the circumstances, the revocation of the Applicant's Security Industry Licence Class 1A should be set aside and the licence should be reinstated.