Itu'au-Puletua v Commissioner of Police, NSW Police Service [2004] NSWADT 10 (15 January 2004)

Last Updated: 16 January 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Itu'au-Puletua v Commissioner of Police, NSW Police Service [2004] NSWADT 10

PARTIES: APPLICANT

Villi Itu'au-Puletua

RESPONDENT

Commissioner of Police, NSW Police Service

FILE NUMBERS: 033291

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 27/11/2003

DECISION DATE: 15/01/2004

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Drug Misuse and Trafficking Act 1985

Interpretation Act 1987

Poisons and Therapeutic Goods Act 1996

Security Industry Act 1997

Security Industry Amendment Act 2002

Security Industry Regulation 1998

CASES CITED:

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

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

M Buchanan, solicitor

ORDERS: 1. The Commissioner's decision to revoke the Applicant's class 1AC security licence is affirmed.

Reasons for Decision:

1 This is an application by Villi Itu'au-Puletua ("Puletua") seeking a review of the decision of a delegate of the Commissioner of Police ("the Commissioner") to revoke his class 1AC security industry licence. The ground on which the Commissioner revoked the licence was Puletua's conviction, on 7 November 2002, at the Burwood Local Court, of a charge of possess a prohibited drug and two charges of unlawfully possessing a prescribed restricted substance.

2 The parties have requested that the Tribunal determine the application on the papers. These papers consisting of Puletua's application for review and the Commissioner's brief of evidence.

3 The Tribunal has jurisdiction to hear and determine this matter by virtue of paragraph 29(1)(c) of the Security Industry Act, 1997 and s.38 of the Administrative Decisions Tribunal Act, 1997.

Relevant legislation

4 The Security Industry Act, 1997 ("SI Act") provides for the licensing and regulation of persons in the security industry. Section 26 of that Act sets out the circumstances in which a licence issued under the SI Act can, or must be revoked. So far as is relevant to this application, that section provides as follows:

"s.26(1) A licence may be revoked: ....

(b) if the licensee; ....

(iii) contravenes any condition of their licence, ......

(1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused. (underlining added)

5 Sub-section 26(1A) of the SI Act was inserted into that Act by the Security Industry Amendment Act, 2002 (see clause 9 of Schedule 1) ("Amending Act"). This Amending Act was assented to on 29 November 2002 and sub-section 26(1A) came into operation on 31 January 2003.

6 Prior to the commencement of sub-section 26(1A) of the SI Act, paragraph 26(1)(a) provided that a license may be revoked on any of the grounds for which the Commissioner was required to refuse an application for a licence of the class held by the licensee. This paragraph was repealed by the Security Industry Amendment Act, 2002 (see Clause 8 of Schedule 1 of the Amending Act).

7 Section 16 of the SI Act sets out certain circumstances in which the Commissioner must refuse to grant an application for a licence. So far as is relevant to this application, that section provides as follows:

"s.16(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 ten 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".

8 The offences that are prescribed for the purposes of s.16 are contained in Clause 11 of the Security Industry Regulation, 1998 ("SI Regulation"). So far as is relevant to this application, that clause provides as follows:

"11. For the purposes of s.16(1)(a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(b) An offence in respect of a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act, 1985) committed under the law of any Australian jurisdiction,...."

Offence

9 The facts surrounding the circumstances of Puletua's conviction for an offence of possessing a prohibited drug and two offences of unlawfully possessing a prescribed restricted substance are set out in the police fact sheet that is contained in the Commissioner's brief of evidence. According to that fact sheet, on Thursday, 17 October 2002, at about 9.30am, Puletua had parked his car at the Silverwater Correctional Centre and was approaching the main entrance of the Centre when it would appear that he saw a corrective services officer together with a sniffer dog at the entrance. Puletua did not enter the Centre and instead turned around and walked back to his car. He was then approached by the corrective services officer and the sniffer dog and asked if he had any drugs, alcohol, weapons, needles or syringes on him. Puletua responded "no" to the question. The corrective services officer conducted a search of Puletua and found two small clear plastic bags containing powder substances in his wallet. He was then cautioned and informed that he was under arrest. He also consented to the corrective services officers conducting a search of his vehicle, where the officers found a bottle of human steroid and a small bottle of veterinary steroid. Puletua was questioned by the corrective services officers and police and acknowledged that the substance in the plastic bags was speed and that the bottles contained steroids. He also stated that the drugs were for his own personal use. He was subsequently charged with an offence of possessing a prohibited drug contrary to s.10(1) of the Drug Misuse and Trafficking Act, 1985 and two offences under s.16(1) of the Poisons and Therapeutic Goods Act, 1996 of unlawfully possessing a prescribed restricted substance.

10 As mentioned above, on 7 November 2002, Puletua was convicted of the offences with which he had been charged at the Burwood Local Court. In respect of each charge he was fined $200 and ordered to pay Court costs of $59.

11 The Commissioner's brief of evidence does not contain any other previous criminal history of Puletua.

Licence history

12 Puletua was issued with a class 1AC security industry licence, on 24 September 2000. That licence was due to expire on 24 September 2005. It would appear that Puletua had been the holder of a security industry licence prior to this date as he states that he has been in the industry for 7 years.

13 On 18 November 2003, 10 months after Puletua's conviction, the Commissioner determined to revoke his class 1AC security industry licence pursuant to sub-section 26(1A) of the SI Act.

14 On or about 29 August 2003, Mr Puletua sought an internal review of that decision. In his letter requesting an internal review Puletua stated the following:

"In October 2002, Lidcombe Police found I was in possession of a prescribed restricted substance. At the time of my arrest, the two police officers who escorted me to Lidcombe Police Station clearly explained that I would have to attend Local court for my actions however if convicted it would not in any way affect my security licence.

I have been working in the Security Industry for the past seven years and have been employed by Gas/Bohem Club for four of those years as a Security Person. Due to my expertise, in 2000 I was made Security Manager for the club. My position entails the safety of all patrons and the organisation of the other security personnel. I am confident I have performed my role to the best of my ability and to the satisfaction of my employer. I solely rely on my security licence for employment purposes and I would be exceptionally appreciative if you could review my case.

I am extremely regretful for my actions, however going on what the police had informed me, I never expected to have my licence revoked. Choosing security as a career, I still feel I have a lot to offer the Security Industry. Personally it would be a great loss to lose my licence as well as the wealth of experience from the past years".

15 Enclosed with his request for an internal review was a character reference by John Gavin JP, Operations Manager of AMP Henderson Global Investors. Mr Gavin states that he has known Puletua for seven years and that he has known him to be a very mature person, capable of handling situations that require a sense of responsibility and trust. However, he makes no reference to Puletua's convictions.

16 On 9 September 2003, another delegate of the Commissioner completed an internal review of the decision to revoke Puletua's security industry licence. That delegate affirmed the previous decision and in the reasons for decision stated the following at [18]:

"After taking into consideration all relevant facts and information, I am satisfied that you were convicted of the prescribed disqualifying offence pursuant to Clause 11(b) of the Security Industry Regulation, 1998. In this regard and under the provisions of s.26(1A) of the Security Industry Act, 1997, no discretion exists for the revocation of your licence in your particular situation and I must concur with the decision of the delegate of the Commissioner and affirm the decision to revoke your licence".

17 In the reasons for decision the Commissioner also makes reference to Puletua having contravened a condition of his licence (see para 16 of reasons for decision). The contravention referred to is the failure by Puletua to supply the Commissioner with a current valid senior first aid certificate.

Reasons and decision

18 The role of the Tribunal is to determine whether the Commissioner's decision is the correct and preferred decision having regard to all the relevant facts and the applicable law (see s.63(1) of the Administrative Decisions Tribunal Act, 1997).

19 As Puletua was convicted on 7 November 2002, which was prior to the commencement of sub-section 26(1A) of the SI Act, the first issue to be determined is whether the Commissioner's decision that he had no discretion was correct. This is a matter of statutory interpretation including the application of the provisions of s.30 of the Interpretation Act, 1987.

20 While the papers did not address this issue, in my opinion the Commissioner's decision that he had no discretion is correct. The Amending Act contained no transitional provisions which preserved the repealed s.26(1)(a) of the SI Act for licences which had been issued prior to the commencement of s.26(1A) of that Act. That is, in this case, Parliament expressly provided that the new mandatory revocation provision contained in s26(1A) of the SI Act was to apply to future licence holders as well as existing licence holders as from the date of the commencement of the operation of the new provision (i.e. 31 January 2003).

21 On this basis, the fact that Puletua had been convicted of an offence in respect of a provision that came within the terms of the Drugs Misuse and Trafficking Act, 1985, together with the fact that such a conviction had been entered within the ten year time period meant that the Commissioner had no alternative but to revoke Puletua's security industry licence.

22 Even if I am incorrect as to the operation of s.26(1A) of the SI Act, in respect of convictions entered before the commencement of that sub-section, in my opinion the offences for which Puletua was convicted were such that the Commissioner was correct in exercising his discretion to revoke his licence. The Tribunal received no explanation from Puletua as to why he had these particular substances on him on the day in question. Furthermore, he was in possession of a prohibited drug, which he clearly intended to take into the Correctional Services Centre. Such conduct is not only unlawful but extremely serious. What is surprising is that it took the Commissioner ten months to issue the revocation notice.

23 For the abovementioned reasons, the Tribunal is of the opinion that the Commissioner's decision is the correct and preferred decision.

24 Accordingly, the Tribunal orders that the Commissioner's decision to revoke the Applicant's class 1AC security industry licence is affirmed.