Since 2006 the Applicant, Adam Alexiou, has been a security guard. His recent Class 1ACF licence, granted on 26 September 2019, was issued under the provisions of the Security Industry Act 1997 (SI Act). On 21 April 2020 the Applicant was charged with one count of 'Acquire Prohibited Firearm Part No authority to do so', eight counts of "Possess Unregistered Firearm - Prohibited Firearm' and two counts of 'Possess or Use a Prohibited Weapon Without Permit' (the charges), and, on 25 June 2020 he was convicted of each of the charges at Sutherland Local Court and given a Community Correction Order (CCO) for two years, commencing on 25 June 2020.
On 23 April 2020 a delegate for the Respondent issued a Notification of Revocation of the Applicant's security licence. That decision was affirmed on internal review on or about 28 July 2020, and despatched to the Applicant. On 7 October 2020 the Applicant applied to the Tribunal for review of the decision.
[2]
Relevant legislation: Time period within which to make the administrative review application
The SI Act does not specify the time period within which an application for administrative review is to be made, but subrule 24(3)(b) of the Civil and Administrative Tribunal (CAT) Rules, specifies "by the end of the default application period". The "default application period" for the purposes of subrule 24(3)(b) of the CAT Rules is 28 days after the finalisation of the internal review: subrule 24(4)(a).
The Tribunal has the power under s 41 of the CAT Act to grant an extension of time in which to make an application. In exercising its discretion, the Tribunal must seek to give effect to the guiding principles to facilitate the just, quick and cheap resolution of the real issues in the proceeding: s 36 of the CAT Act. Guidance in relation to the factors the Tribunal is to take into account when considering whether to exercise its discretion to grant an extension was provided by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (citations omitted):
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant ,
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success…,
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider
(a) The length of the delay,
(b) The reason for the delay,
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case, and
(d)The extent of any prejudice suffered by the respondent (to the appeal) and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.
[3]
Issue for the Tribunal
Whether the Tribunal should exercise its discretion to permit the application for review to be brought out of time.
[4]
CONSIDERATION
The Respondent submitted the Tribunal, having regard to the Tribunal's guiding principles, should decline to grant an extension of time.
[5]
Would strict compliance with the rules be unjust to the Applicant?
The Respondent submitted that strict compliance with the statutory timeframe does not work an injustice upon the Applicant. I do not think it is possible to answer this question without an evaluation of the merits of the substantive application, because, clearly, if the application had merit, then requiring strict adherence to the statutory timeframe may be unjust to the Applicant.
[6]
Is there prejudice to the Respondent if the extension of time is granted?
The Respondent submitted, in effect, that it is entitled to certainty in relation to its decision - the Commissioner has discharged his statutory functions under the Sl Act, and had conducted an internal review of that decision at the request of the Applicant. The Respondent should, it was submitted, unless the discretionary factors relating to extension of time are significant, be able to be satisfied that its decision stands. I accept that it is desirable that the Respondent has certainty in relation to its decision-making, however, I do not think this factor, in the present matter has much weight. The Respondent is not otherwise disadvantaged by having the matter reviewed.
[7]
What was the length of the delay?
The Applicant stated in his application for review that he was notified of the decision on 28 July 2020, but it is unlikely, in my view, that he was notified of the decision on the very date the decision was made. Rule 13(4)(a) of the CAT rules, provides that unless the contrary is proved, the Applicant is taken to have received the decision at the end of the seventh working day after the date on which the decision was posted to him, which by my calculation, would have been 6 August 2020.
According to sub-rules 24(3)(b) and 24(4)(a) of the CAT Rules, the default application period ran until 3 September 2020 and the application for review should have been lodged by that date. Instead, it was lodged on 7 October 2020, some 34 days late.
The Respondent submitted that the length of delay is significant. Taken in isolation, the delay is the Application for Review was filed over a month late, which, is not of itself, in my view, overly significant.
[8]
What was the reason for the delay?
In his Application for Review the Applicant wrote that the reason for the application being lodged late was that he was not able to find an available lawyer to represent him.
In his submissions, though, the Applicant wrote:
… I did file it late as I was not mentally ready at the time to object this decision and I waited til (sic) I was mentally ready to object (sic) this decision.
In support of that contention the Applicant provided a report from his Psychotherapist, Winton Foote, dated 10 November 2020. Mr Foote wrote of the Applicant's family trauma in December 2019, and that the Applicant's "traumatized brain" affected his reasoning and cognitive processing. Mr Foote further wrote of the impact of the revocation of the Applicant's firearms licence - his loss of employment and, as a consequence of his loss of income, then the refusal of a loan with which he planned to build a home, and that it is possible he may lose the land as well. The inference was that these consequences had also impacted the Applicant's ability to lodge his Application for Review on time.
The Respondent submitted that, in any event, the Applicant had sufficient time to lodge his application, and that the reason for the delay is not sufficient to warrant an extension of time.
I accept that the Applicant experienced a devastating personal loss in December 2019. I further find, that as a consequence of the loss of his firearms licence he has lost his employment, his source of income, the refusal of a housing loan and possibly the land he owns. Although Mr Foote did not directly address the Applicant's inability to lodge his application for review within time, I am satisfied that, the Applicant's brain remained "significantly compromised" such that his ability to be sufficiently organised to lodge his Application for Review was affected.
[9]
What are the Applicant's prospects of success?
The Respondent submitted the Applicant has no prospects of success in his substantive administrative review. In the circumstances of the matter, this is the most significant consideration and the one to which I have given most weight.
[10]
Revocation of licences
Section 26(1A) of the SI Act provides:
26 Revocation of 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.
Section 16(1)(a) of the SI Act provides:
16 Restrictions on granting licence - criminal and other related history
(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 in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law...
Clause 15(1)(a) of the Security Industry Regulation 2016 (SI Regulation) states as follows:
15 Offences and civil penalties that disqualify applicants
(1) Prescribed offences: section 16 (1) (a) and (b) For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or
…,
and being an offence that would (had the offence been committed under the law of an Australian jurisdiction) disqualify the person concerned from holding a licence under the Firearms Act 1996
Section 50AA(2) of the Firearms Act 1996 (Firearms Act) provides:
50AA Acquisition of firearm parts
…
(2) A person must not acquire a firearm part that relates to any kind of pistol or prohibited firearm unless the person -
(a) is the holder of a licence or permit for that kind of pistol or prohibited firearm, or
(b) is authorised by a permit to acquire the firearm part
Section 36(1) of the Firearms Act states as follows:
36 Unregistered firearms
(1) A person must not supply, acquire, possess or use a firearm that is not registered
Section 7(1) of the Weapons Prohibition Act 1998 (Weapons Prohibition Act) states as follows:
7 Offence of unauthorised possession or use of prohibited weapon
(1) A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit
Section 11 of the Firearms Act states as follows
11 General restrictions on issue of licences
…
(5) A licence must not be issued to a person who -
…
(b) 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, or
(d) is subject to one of the following in relation to an offence prescribed by the regulations -
(i) a good behaviour bond, whether entered into in New South Wales or elsewhere,
(ii) a community correction order imposed in New South Wales,
(iii) a conditional release order imposed in New South Wales
Clause 5(1)(a) of the Firearms Regulation 2017 (Firearms Regulation) provides:
5 Offences that disqualify applicants
(1) For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed -
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under -
(i) the law of any Australian jurisdiction, or
…
Section 10 of the Weapons Prohibition Act states as follows:
10 Issuing of permit
…
(3) A permit must not be issued to a person who -
(a) has, within the period of 10 years before the application for the permit 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, or …
(c) is subject to one of the following in relation to an offence prescribed by the regulations -
(i) a good behaviour bond, whether entered into in New South Wales or elsewhere,
(ii) a community correction order imposed in New South Wales,
(iii) a conditional release order imposed in New South Wales
Clause 5(1)(a) of the Weapons Prohibition Regulation 2017 states as follows:
5 Offences that disqualify applicants
(1) For the purposes of section 10 (3) (a) of the Act, the following offences are prescribed -
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under -
(i) the law of any Australian jurisdiction, or
…
[11]
Is there a discretion not to revoke the Applicant's licence?
Under s 16(1)(a) of the SI Act the Commissioner must refuse to grant a licence in circumstances where an applicant has, within 10 years before the application for the licence was made, been convicted of an offence prescribed by the regulations. Under s 26(1A) of the SI Act, the licence must be revoked where, if the licensee were applying for a new licence, the application would be required by the SI Act to be refused.
In cases involving the mandatory refusal provisions of the SI Act, the Tribunal has no discretion to exercise in relation to an application for review. As explained by O'Connor DCJ in Bourke & Ors v the New South Wales Commissioner of Police [1998] NSWADT 17 December 1998 (unreported) at 7:
I consider that the only role that the Tribunal can perform in relation to mandatory refusals of licences under the Security Industry Act's scheme is to consider any applications which may be made where there is a question as to the objective facts upon which the Commissioner has relied. (emphasis added)
The then President explained what was meant by "objective facts":
The cases make it clear... that the Tribunal is only able to proceed to satisfy itself that the objective facts, as they are called, upon which the Commissioner relied were properly relied on by the Commissioner. That clearly goes simply to the question of whether there was a … finding …. of a kind which fits within the parameters of section 16.
Therefore, the relevant "objective fact" is whether the Applicant has been convicted of an offence to which s 16(1)(a) of the SI Act applies. On 25 June 2020 the Applicant was convicted in the Local Court of nine offences under the Firearms Act and two offences under the Weapons Prohibition Act.
The Applicant submitted that he was charged with having "so called" illegal firearms - gel ball blasters which are considered toys "by federal law". NSW Police failed in their duties to even speak to the public about banning such weapons and banned them regardless, he contended. Mr Foote wrote that the Applicant had purchased 'gelballs' and other skirmish equipment which are illegal in NSW, but are apparently not illegal in Queensland where the Applicant had first qualified for his firearms accreditation.
Mr Foote further wrote of the impact the revocation of the Applicant's firearms licence - his loss of employment and, as a consequence of his loss of income, the refusal of a loan with which he planned to build a home. The Applicant also provided character references, including from his former employer, all of which spoke of his honesty, trustworthiness and respect for the law.
Nonetheless, it is not permissible for the Tribunal to look behind a conviction to consider the underlying facts and circumstances of the Applicant's offending. Those facts and circumstances are irrelevant, as are "the findings of the court in relation to a contested hearing and the sentencing remarks": see Farah v Director, Department of Financial Services [2014] NSWAP 23 at [42].
Recently, in El-Ahmad v Commissioner of Police [2020] NSWCATOD 118, SM Dr Lucy explained at [18] -19):
… ss 16(1)(a) and 26(1 A) of the Security Industry Act, read with cl 15(1)(b) of the Security Industry Regulation, require the Commissioner to revoke the applicant's licence. The Tribunal, standing in the Commissioner's shoes, if satisfied of the fact of the conviction, does not have any discretion to come to a different decision (Vlahos v Commissioner of Police, NSW Police Force [2019] NSWCATOD 113 at[19]-[22]; Bourke v The New South Wales Commissioner of Police[1998] ADT).
The Tribunal in that matter referred to multiple unfortunate features of the Applicant's circumstances but observed that "even if the Tribunal were to accept the applicant's evidence as to these matters, it would not have any discretion to set aside the respondent's decision."
As whether an offence is "an offence prescribed by" the SI Regulation, the Tribunal's task is determine whether the offence is of a type described in cl 15 of the SI Regulation: see Luk v Commissioner of Police, NSW Police [2019] NSWAP23 at [33]. The offences committed by the Applicant against the Firearms Act and the Weapons Prohibition Act are plainly "offence[s] relating to the possession or use of a firearm, or any other weapon" within the meaning of cl 15(1)(a) of the SI Regulation. Accordingly, the Applicant's conviction of the offence and his sentencing for a community correction order means that he would not be issued a licence and is accordingly disqualified from holding a licence under the Firearms Act pursuant to cl 15(1)(a) of the SI Regulation. Similarly, his conviction and his sentence of a CCO means that he would not be issued a permit and consequently is disqualified from holding a permit under the Weapons Prohibition Act pursuant to cl 15(1)(a) of the SI Regulation.
The Tribunal has consistently held that it must affirm a decision to refuse or revoke a licence where the SI Act mandates refusal or revocation based on the commission of a prescribed offence: see, for example, Islam v Commissioner of Police [2020] NSWCATAD 294.
Therefore, on consideration of the objective facts, I would be obliged to affirm the decision to revoke the licence.
[12]
Conclusion
I find that, were the extension of time granted, the outcome for the Applicant cannot be favourable, because, as I have discussed, I do not have any discretion to allow his Application for Review. Consequently, there is no utility in allowing the extension of time.
I observe that the Applicant was critical of the mandatory 10 year ban of his security licence. To some extent, I agree with the Applicant's concerns - that the firearms/weapons which gave rise to the Applicant's conviction were allegedly legal in at least one other state; that no account can be taken of his references; nor of his personal tragedy or the impact of the loss of his licence. As I have said, as the law stands, the Tribunal has no discretion in relation to the substantive issue.
[13]
DECISION
1. The Application for Review is dismissed.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 21 January 2021