Winika v Commissioner of Police, New South Wales Police Service [2001] NSWADT 8 (31 January 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Winika v Commissioner of Police, New South Wales Police Service [2001] NSWADT 8

PARTIES: APPLICANT

Charles Winika

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 003317

HEARING DATES: 27/11/2000

SUBMISSIONS CLOSED: 27/11/2000

DECISION DATE: 31/01/2001

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Social Security Act 1991 (Cth)

Administrative Decisions Tribunal Act 1997

Security Industry Act 1997

Security Industry Regulation 1998

CASES CITED:

APPLICATION: Security Industry Act - security industry licence -grant of licence

Security industry licence - grant of licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: No appearance

RESPONDENT REPRESENTATIVE: J Tunks, solicitor

ORDERS: 1. The decision to refuse the applicant's application for a security industry licence is affirmed

Reasons for Decision:

Introduction

1 This matter was listed for hearing on 27 November 2000. Mr Winika did not appear and at approximately 10.20 the hearing commenced in his absence. Later in the morning, after the hearing had finished, Mr Winika contacted the Tribunal and advised that he was withdrawing his application. As the matter had already been heard, it was too late for Mr Winika to withdraw it. Below I have set out short reasons for my decision.

2 The respondent refused Mr Winika's application for a Class 1 ABC licence under the Security Industry Act 1997 (the Act). The reason for the refusal was that Mr Winika had been convicted of offences under the Social Security Act 1991 (Cth).

Jurisdiction

3 Section 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act) gives the Tribunal power to review a decision if an enactment so provides. The enactment in this case is the Security Industry Act 1997. Section 29(1) of that Act gives the Tribunal power to review certain decisions including the refusal or failure by the Commissioner to grant a licence.

Relevant legislation

4 The Act sets out circumstances where it is mandatory for the Commissioner to refuse an application for a security industry licence. In particular, section 16(1) of the Act states that:

(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,

5 Under Clause 11 of the Security Industry Regulation 1998 (the Regulations) certain kinds of offences are prescribed. Clause 11 states that:

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) Offences involving fraud, dishonesty or stealing

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.

Issue

6 The issue in this case is whether the offence committed by Mr Winika comes within the meaning of an offence as set out in Cl 11(d) of the Regulations. In particular, is it an offence "involving fraud dishonesty or stealing" and for which the maximum penalty is imprisonment for 3 months or more. If so, the Commissioner must have made the correct decision in refusing the application.

Findings of facts

7 On 10 January 1995, Mr Winika was convicted of the offence of "obtain benefit payable in part only" under s 1347(d) of the Social Security Act 1991 (Cth). That section states that

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.

8 Under s 1350, the penalty for committing such an offence is imprisonment for 12 months.

9 The circumstances of the offence, as set out in the indictment, were that:

Between about 2 March 1993 and 21 December 1993 at Bankstown, New South Wales knowingly obtained payment of an allowance namely, Job Search allowance and then New Start Allowance under the Social Security Act 1991, which was payable in part because he was employed by and in receipt of income from Mark Waller Industries Pty Ltd at McMahons Point; Australian Concert and Entertainment Security at Moore Park; Convention Centre at Pyrmont and Darling Harbour; and office of Juvenile Justice at Haymarket

10 In the `facts sheet' tendered to the court in the criminal proceedings, the following information was recorded:

During these periods the defendant lodged forms with the Department of Social Security in which he either failed to declare his earnings or underdeclared his earnings.

As a result of the defendant failing to advise the Department of his income from employment, Job Search Allowance and Newstart Allowance were paid at a higher rate than was payable.

11 Mr Winika was convicted and released on his own recognizance in the sum of $5000.00 to be of good behaviour for a period of 2 years. He was also ordered to pay compensation of $5709.07.

Reasons and decision

12 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." "Fraud" is defined as "deceit, trickery, sharp practice, or breach of confidence by which it is sought to gain some unfair or dishonest advantage". The offence with which Mr Winika was convicted involved knowingly obtaining payment of a social security benefit which was only payable in part.

13 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.

14 Mr Winika was convicted of the offence in 1995, consequently it is within the period of 10 years before the application for the licence was made.

Orders

15 The decision to refuse the applicant's application for a security industry licence is affirmed.