Abdel-Ghani v Commissioner of Police, New South Wales Police Service [2002] NSWADT 20 (20 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Abdel-Ghani -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 20

PARTIES: APPLICANT

Mohamed Abdel-Ghani

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 013307

HEARING DATES: 06/02/2002

SUBMISSIONS CLOSED: 06/02/2002

DECISION DATE: 20/02/2002

BEFORE: Montgomery S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Security Industry Act 1997

Security Industry Regulation 1998

CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392

Saadieh v Director General, Department of Transport [1999] NSW ADT 68

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

APPLICANT REPRESENTATIVE: APPLICANT

A S Kassem, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

D Paterson, solicitor

ORDERS: Pursuant to s. 63 of the Administrative Decisions Tribunal Act 1997 the Commissioner's decision to revoke Mr Abdel-Ghani's Class 1 ABC security licence is set aside.

Reasons for Decision:

Background

1 These proceedings relate to a determination made by the Commissioner of Police, New South Wales Police Service ("the Commissioner") to revoke the Class 1ABC security licence held by Mr Mohamed Abdel-Ghani ("Mr Abdel-Ghani") under the Security Industry Act 1997 ("the Act"). In making the determination the Commissioner relied on advice received that Mr Abdel-Ghani had been convicted of a prescribed offence involving fraud, dishonesty or stealing.

2 Mr Abdel-Ghani is 23 years of age, and has worked in the security industry since 1999. He was issued with a Class 1ABC security licence on 1 October 1999. This licence was due to expire on 25 November 2004. The Class 1ABC licence authorised Mr Abdel-Ghani to perform the following security activities:

Class 1A licence authorised the guarding and protection of persons and property including the transport of cash and other valuables (hotel, club revenue and gaming machine takings), static and mobile patrols and security monitoring station activities.

Class 1B licence authorised the provision of close personal protection;

Class 1C licence authorised engaging in crowd control activities at public and private venues which may include public exhibitions and concerts, monitoring access to licensed premises, hotels, clubs, nightclubs, etc and ejecting patrons from these venues.

3 On 31 August 2001 Mr Abdel-Ghani was convicted of Obtain Payment, which is Not Payable/ Only Part Payable and ordered to perform 150 Hours Community Service. The conviction related to a claim by Mr Abdel-Ghani for the Newstart social security payment, which was not payable at all or only payable in part because Mr Abdel-Ghani was employed and in receipt of income.

4 By letter dated on 26 September 2001 a delegate of the Commissioner, Ms Maggie Vergara, advised Mr Abdel-Ghani that she had determined to revoke his licence.

5 The Statement of Reasons provided by the Commissioner advised:

"I am satisfied that you have been convicted of a prescribed offence involving fraud, dishonesty or stealing.

I am of the opinion that you are no longer a fit and proper person to hold a security licence.

I consider that it is not in the public interest for you to continue to hold a licence."

6 The revocation of the licence means that Mr Abdel-Ghani is no longer authorised to engage in any security activity in respect of the class of licence revoked. He is understandably concerned to ensure that the decision by the Commissioner to revoke his licence is the correct and preferable one having regard to all the relevant material and law.

7 Mr Abdel-Ghani applied for internal review of the Commissioner's decision. That review was undertaken by Ms Liz Halloran, a Delegate of the Commissioner, on 23 November 2001, and Mr Abdel-Ghani was subsequently advised that the initial decision to revoke his licence was confirmed on review.

8 Ms Halloran stated that upon considering an individual's right to be issued with a licence under the Act, she had formed the view that any decision should be made on the basis that the legislation has quite clearly been enacted to exclude from the industry persons with convictions for certain criminal offences. In this regard, 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 criteria and thereby revoking such licences.

9 With respect to the issue of whether Mr Abdel-Ghani is a fit and proper person to hold a security licence, Ms Halloran stated that generally, the security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe. In terms of a scheme licensing security guards, good character is a vital feature of the inherent qualifications for much of the work involved. In certain contexts character or reputation may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. She noted that while this is Mr Abdel-Ghani's only offence, the offence itself involves a repeated calculated breach of the community's trust. Objectively, such an ongoing course of dishonesty could be viewed very seriously and pose a question mark over Mr Abdel-Ghani's integrity and rectitude of character. She therefore concluded that Mr Abdel-Ghani is not a fit and proper person to hold a security licence.

10 With respect to the issue of the public interest, Ms Halloran noted that the expression "public interest" is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the weft being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. A security licence is granted by the Commissioner with the clear expectation that the licensee utilizes that authority for the good order of society and for the well being of its members or 'in the public interest'. Further, she considered that public interest in the context of section 15 (1) (3) of the Act requires paramount consideration be given to public safety.

11 In respect of the issue of public interest, having considered the circumstances of this offence and other relevant issues, and with a focus upon public safety, Ms Halloran concluded that she was not satisfied that it would be in the interest of the public for Mr Abdel-Ghani to hold a security licence.

Reviewable decision

12 The reviewable decision is that of the Commissioner to revoke to Mr Abdel-Ghani's licence, advised to Mr Abdel-Ghani by letter dated 26 September 2001.

13 Mr Abdel-Ghani applied for review of that decision to this Tribunal by Application dated 12 December 2001. The matter was listed before the Tribunal's President on 18 December 2001 for a hearing of an urgent stay application. That stay was granted.

Nature of proceedings

14 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

15 These are not adversarial proceedings in which the applicant carries an onus of proof. The applicant, by making the application, triggers a process of merits review by the Tribunal. The applicant does not take on the responsibility of having to prove a case, nor does an applicant cause an administrator to have to prove a case. The applicant and the administrator are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").

16 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the administrator's, and "there is no presumption that the decision of the administrator is correct" (McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357).

17 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Applicable Legislation

18 Section 16 (1) (a) of the Act provides

"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, ..."

19 Section 26 of the Act as relevant reads

"(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

.....

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(d) for any other reason prescribed by the regulations.

20 Clause 11(d) of the Security Industry Regulation 1998 ("the Regulation") reads

"11. 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:

(a) - (c) ...

(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. "

21 Clause 18 of the Regulation provides:

"In accordance with section 26 (1) (d) of the Act, a licence may be revoked 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."

22 The issue for this Tribunal is: what is the correct and preferable decision? The decision to be made is whether Mr Abdel-Ghani can be considered "to be of good repute and in all other respects a fit and proper person to be the holder of a security licence and whether it can be said that it is not in the public interest for Mr Abdel-Ghani to continue to hold a licence.

Evidence

23 The Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file.

24 Mr Abdel-Ghani presented evidence on his own behalf. Several written testimonials were provided in support of Mr Abdel-Ghani's application. And the authors of two of those testimonials, Mr Ibrahim Gogebakan and Mr Kurt Ebert, attended the hearing and were available to give evidence. Mr Ebert also gave oral evidence in support of Mr Abdel-Ghani's application.

The Commissioner's case

25 The Commissioner relies on the Police Service's file and in particular the undisputed fact that on 31 August 2001 Mr Abdel-Ghani was convicted of an offence involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is imprisonment for 3 months or more. As noted above, the Commissioner's view is that the circumstances leading to the conviction and the fact of the conviction provide evidence that Mr Abdel-Ghani cannot be considered to be of good repute and in all other respects a fit and proper person to be the holder of a security licence and that it is not in the public interest for Mr Abdel-Ghani to continue to hold a licence.

26 The seriousness of the offence can be ascertained by the fact that an Order was made requiring that Mr Abdel-Ghani perform 150 hours of Community Service and that he repay an amount of $11,497.76. Of this amount, only a small amount has been repaid.

27 If Mr Abdel-Ghani were an applicant for a licence in his present circumstances the Commissioner would be required by the Act to refuse the application because of the conviction.

28 Ms Paterson urged that a broad interpretation be given to the Act and that the Tribunal should find that the purpose of the Act is to maintain a standard in the industry by excluding persons with criminal convictions. A security licence places the holder in a very responsible position. Only persons of the highest character should be permitted to perform those responsibilities. As Mr Abdel-Ghani has a conviction relating to dishonesty, he should be excluded from that role.

29 By his actions, Mr Abdel-Ghani has demonstrated a breach of community trust in a fundamental matter. He has demonstrated a lack of integrity notwithstanding the fact that he has being attempting to better his circumstances.

30 In relation to the issue of public interest, Ms Paterson submitted that the issue is separate to that of Mr Abdel-Ghani's character. It can relate to a wide number of people in the community. It requires consideration of factors including community trust, the behaviour which could reasonably be expected of an individual operating within the security industry, and the importance of the breach of trust on the community. When these relevant factors are taken into account, the decision taken by the Commissioner must be considered to be the correct and preferable decision.

Mr Abdel-Ghani's case

31 Evidence of Mr Abdel-Ghani being of good repute comes from the written testimonials tendered on his behalf. Evidence of his being a fit and proper person to hold an authority comes from those documents, his own evidence, and Mr Ebert's evidence.

32 As noted above, several written testimonials were provided in support of Mr Abdel-Ghani's application. These testimonials each stated that the author had known Mr Abdel-Ghani for some period of time and stated that he was a person of good repute.

33 Mr Kurt Ebert, the state manager for E Group Security, stated that Mr Abdel-Ghani is of good character and that he plays a vital role within Mr Ebert's company with his dedication to service. Mr Ebert was clearly aware of the circumstances which had led to these proceedings. He was nevertheless prepared to provide a testimonial on behalf of Mr Abdel-Ghani and to give oral evidence on his behalf. Mr Ebert noted that as a result of Mr Abdel-Ghani's commitment and performance, E Group Security had providing him with the opportunity to undertake further education and qualifications and had covered the cost of that education. Mr Ebert noted that he had observed the remorse which Mr Abdel-Ghani had shown in relation to the offence of which he had been convicted.

34 The oral evidence provided by Mr Ebert was consistent with the statement contained in his testimonial.

35 Mr Ali Nagm, of Next Gen Computer Services, stated that he has known Mr Abdel-Ghani for over five years and stated that he knew him as an honest, kind, reliable and trustworthy man. Mr Nagm is clearly aware of the circumstances of this matter and observed that Mr Abdel-Ghani understands the issues at hand and is willing to make amends.

36 Mr Jeffrey Bachi states that he has known Mr Abdel-Ghani for a period of approximately six years. He states that he has acted as Mr Abdel-Ghani's supervisor in a work capacity. He states that he has known Mr Abdel-Ghani to be a person of high integrity and honour who is diligent, reliable and keen to learn. Mr Bachi states that he has never known Mr Abdel-Ghani to act unjustly or unfairly in any situation.

37 Ms Michelle Turner, Human Resources Assistant with Mastech Asia Pacific Pty Limited stated that she has known Mr Abdel-Ghani for over seven years. She states that he has always been a kind and trustworthy person, who has proven to be reliable and who is well respected by all his friends.

38 As noted above, Mr Ibrahim Gogebakan provided a written testimonial on behalf of Mr Abdel-Ghani and also attended the Tribunal hearing and he made himself available to give evidence if required. Mr Gogebakan states that he has known Mr Abdel-Ghani for a period of approximately two years. In that time Mr Abdel-Ghanihas worked under Mr Gogebakan's direction as venue supervisor of security for E Group Security. He states that on these occasions Mr Abdel-Ghani has worked diligently and effectively. He displays enthusiasm in tasks that are asked of him and carries out his duties in a responsible manner. He has displayed qualities of trustworthiness, sincerity and honesty. Mr Gogebakan states that he has found Mr Abdel-Ghani to be very cooperative and helpful with staff and clients.

39 Mr Abdel-Ghani also gave evidence on his own behalf. He provided a written statement which outlined circumstances of his life which were submitted as factors which could be taken into account. He states that his mother died when he was 13 years old and that his father remarried. He commenced working at Woolworth's Marrickville when he was in year 11 at high school.

40 Following completion of high school in 1995, Mr Abdul-Ghani moved out of his father's home and thereafter he has been largely self supporting. His father chose to move back to Egypt to be with his stepmother and half sister. Mr Abdul-Ghani commenced study in an Advance Diploma of Accounting in 1996 at Bankstown TAFE. During this period he needed to cover his own expenses, including medical expenses for an incurable scalp disease. He studied during the day and worked during the night.

41 In order to make ends meet he completed a Security Course at Loftus TAFE and towards the end of 1998 he found himself a role as a security guard one day per week. He completed his advance diploma in accounting at the end of 1998. However he was unable to obtain work in the field. In 1999 Mr Abdul-Ghani travelled overseas to visit family.

42 At the beginning of 2000 he obtained an Accounts Payable contract for three months. Because this was a full-time role his employment at Woolworth's was reduced to one Saturday per fortnight. On completion of the Accounts Payable contract, and while looking for another accounting role he remained working on a casual basis at Woolworth's and rarely as a security guard. He found another Accounts contract in November 2000 for one month. In June 2001 he finally gained a full-time permanent position. Throughout this time Mr Abdul-Ghani had accumulated debts which required prepayment.

43 While he has full qualifications in accounting, he has been unable to obtain full-time employment in the accounting field. Mr Abdul-Ghani stated that he sees his future in the security industry. While he is currently employed on a casual basis, he works full-time hours in the security industry. He works shifts of between four and six hours. He also stated that he has an interest in joining the police. It is therefore important to him that he retained his security licence.

44 Mr Abdel-Ghani's evidence is that following his conviction he undertook community service work and has completed the 150 hours that was ordered. This work was undertaken at the Islamic Center. He has also entered into an agreement with Centrelink for the repayment of the amount which he had unlawfully obtained. Under this agreement he is required to make payments of $30 per week. His evidence is that since entering into this agreement he has made all payments required. He produced into evidence receipts for the payments made.

45 Mr Abdul-Ghani submitted that he is a person of good character. While he acknowledges his conviction, he stated that at all times when he was receiving the allowance to which he was not entitled, he had made his employment situation known to the relevant authorities. He stated that he has co-operated with the authorities ever since and that he pleaded guilty to the charges brought against him on legal advice. He argued that these facts ought to be taken into account by the Tribunal.

46 It was submitted on behalf of Mr Abdel-Ghani that the offences of which he has been convicted were committed before the security licence had been issued to him and therefore the provisions of the Act should not apply to his circumstances. It was also submitted that the evidence shows that Mr Abdel-Ghani is a person who has achieved a great deal and overcome considerable disadvantage. His achievements are notable. Since his conviction his conduct has demonstrated that he is a person of honour and responsibility. He is able to carry the burden and to clear his debts. He clearly has the support of his peers and he is open and honest. Because of his background he is a valuable asset to the community. The interest of the public would continue to be served if Mr Abdel-Ghani were to continue to hold the security licence.

47 In contrast to the Commissioner's submission, Mr Abdel-Ghani's submission is that while the offence is a serious one and the maximum penalty substantial, it should be clear that the result of 150 hours of community service and Court costs of $56.00 is an extremely favourable result bearing in mind the way in which the Courts have to treat matters of this kind. The leniency provided by the Court was as a result of Mr Abdel-Ghani's good fame and character and the circumstances surrounding the offence and the financial circumstances he found himself in at the time.

48 The indiscretion is minor for a man of Mr Abdel-Ghani's background and age. It should not be held against him so as to compromises his ability to hold a security licence or conduct the business needed in the security industry.

Application of law and decision

49 The provisions of s 26 of the Act, provides that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

50 As to the meaning of fit and proper person, Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63] said that:

"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."

51 The concept of "reputation" was discussed by Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 in the following terms:

"A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession. . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation."

52 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17], the Deputy President of this Tribunal set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority. These included:

· the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

· the nature, seriousness and frequency of any complaints made against the applicant;

· the applicant's reputation in the community; and

· the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

53 In my opinion, these factors are readily adaptable to the requirements of the Act when determining a person's fitness and suitability to hold a security licence.

54 Applying these factors to the present case, Mr Abdel-Ghani has been convicted of offences related to a claim by Mr Abdel-Ghani for the Newstart social security payment, which was not payable at all or only payable in part because Mr Abdel-Ghani was employed and in receipt of income. This is a serious offence. I note that this offence occurred prior to Mr Abdel-Ghani obtaining his security licence however I am satisfied that this should in no way affect the Commissioner's power under section 26 of the Act. I note the Commissioner's submission that he offence continued over a period of 72 weeks. Notwithstanding that view, I also not that the penalty imposed on Mr Abdel-Ghani was relatively lenient.

55 There was no evidence that Mr Abdel-Ghani had been convicted of any other offences, that any complaints had been made against him or that he had an unsatisfactory record as a security guard.

56 Mr Abdel-Ghani's reputation in the community and among his peers is strong. This is clearly evidenced by the testimonials presented on his behalf and the fact that two of his supervisors appeared and were prepared to give evidence on his behalf.

57 In my view there is very little likelihood that Mr Abdel-Ghani will re-offend. This is his first and only conviction. While it is a serious matter, Mr Abdel-Ghani admitted the offence and has undertaken the community service work he was ordered to perform. He has set in place an agreement for the repayment of the money which he unlawfully received and to date he has met his obligations under that agreement. I am satisfied that he understands the seriousness of what he did.

58 With respect to the issue of the Public Interest, I accept the evidence that Mr Abdel-Ghani is a valued member of his community because of his background. He is clearly a man who has tried hard to better himself under difficult circumstances. I accept Ms Paterson's submission that the issues of character are separate to those of the public interest, nevertheless, I am satisfied that Mr Abdel-Ghani is able to demonstrate the type of behaviour that the community could expect of an individual operating within the security industry.

59 It could be expected that he would utilizes that authority for the good order of society and for the well being of its members, that is, 'in the public interest'. I am not prepared to conclude that it is not in the public interest for Mr Abdel-Ghani to continue to hold a security licence.

60 On the basis of this reasoning, I am satisfied that the Commissioner's delegate has not made the correct and preferable decision in revoking Mr Abdel-Ghani's licence. The Commissioner's delegate should have looked at all the circumstances available at the time before deciding to revoke Mr Abdel-Ghani's licence. She did not adequately take into account all the information available, particularly the fact that this was Mr Abdel-Ghani's only conviction and other evidence of his good character and reputation. If she had done so, she should have come to the view that Mr Abdel-Ghani's licence should not have been revoked.

Order

61 Pursuant to s. 63 of the Administrative Decisions Tribunal Act 1997 the Commissioner's decision to revoke Mr Abdel-Ghani's Class 1ABC security licence is set aside.