Avilion Group Pty Ltd v Commissioner of Police, NSW Police

4 The company applied to the Tribunal for stay of the notice of revocation pending a hearing of its application for review of the notice. The Commissioner opposed the stay application. The Tribunal granted the application. See Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37. The Tribunal also dispensed with the ordinary requirement for an internal review

5 The Commissioner then appealed that stay decision. On 11 March 2009 the Appeal Panel, comprised of the President sitting alone, set aside the stay. See Commissioner of Police, New South Wales Police Force v Avilion Group Pty Ltd (GD) [2009] NSWADTAP 18. The company then appealed that decision to the Supreme Court, which appeal was removed to the Court of Appeal: Avilion Group Pty Ltd v Commissioner of Police [2009] NSWSC 196. The appeal was allowed, with the result that the stay originally ordered by the Tribunal had effect and remains in place: Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93.

6 The substantive review hearing then proceeded in the Tribunal and was heard over seven days between October and December 2008. These reasons relate to the determination of the substantive hearing.

The Legislation 7 Section 9 of the SIA provides for four classes of licences which authorise licence holders to undertake various security activities: master licences, class 1 and 2 licences, and provisional licences. Master licences are provided for by s 10. There are four categories of master licence, with each category having a prescribed number of licensed persons the master licensee can employ. In Avilion's case it holds a class MD licence which authorises it to employ more than 50 licensed people. 8 Applications for licences are made under s 14. Section 15 specifies general suitability criteria for licence applicants. Relevantly, it provides: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) is not a fit and proper person to hold the class of licence sought by the applicant, or (b)... (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. (5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).

9 Clause 16 provides: "(4) For the purposes of section 15(4) of the Act, the Commissioner must refuse to grant an application for a licence if the applicant is convicted of an offence under the Act but only if a total of at least 3 such offences arising out of different sets of circumstances have been committed by the applicant during any period of 2 years. (5) For the purposes of subclause (4), a person is taken to have committed an offence at the time that the person: (a) is convicted of the offence by a court, or (b) pays the penalty required by a penalty notice served on the person under section 45A of the Act in respect of the alleged offence (or if the person does not pay the penalty and does not elect to have the matter dealt with by a court, at the time that enforcement action is taken against the person under Division 3 or 4 of Part 4 of the Fines Act 1996 ). 10 The effect of s 15(5), which is modified by clause 17 of the Security Industry Regulation 2007 (the SIR), is that all references to an applicant in the section, as quoted, includes a close associate of the applicant. Close associate is defined in s 5: "(1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a licence if the person: (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business, or (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or holder. (2) In this section: relevant financial interest in relation to a business means: (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise. relevant position means the position of director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others: (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position."

11 Section 21 provides that the Commissioner may grant or refuse to grant a licence, subject to conditions imposed by the Commissioner or under the Act or Regulations. Section 23 provides that it is a condition of every master licence that "the licensee must not employ or provide any person to work in any area which involves access to any operational information relating to the licensee's security business if that person would be refused a licence because of section 16."

12 Section 26 is concerned with the revocation of licences. It provides: (1) A licence may be revoked: (a) (Repealed) (b) if the licensee: (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) (Repealed) (d) for any other reason prescribed by the regulations. (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. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it. (3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. Note. Section 31 requires the licensee to immediately surrender the licence if the licence is revoked. (4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.

13 Clause 29 provides: "For the purposes of 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."

14 Section 29 is concerned with reviews by this Tribunal. It relevantly provides: (1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions: (a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)), (b) a condition imposed by the Commissioner on a licence granted to the person, (c) the revocation or suspension of a licence granted to the person. (2) … (3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. Note. Section 15 (7) of this Act provides that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information."

15 Section 75(1) of the ADTA provides that proceedings of the Tribunal are to be conducted in public, but sub-section (2) then makes provision in relation to closed hearings and the Tribunal's powers to restrict the disclosure, and publication, of evidence and materials before it. It provides: (2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

16 Penalty notices for offences against the SIA or the SIR are issued by authorised officers under s 45 of the Act.

Issues 17 The substantive issue was whether the Commissioner's decision to revoke the CML should be varied, set aside or confirmed. This required a consideration of: - Whether Mr Blissett is or was a close associate of Avilion? - If so: - whether Mr Blissett is a fit and proper person to hold a licence under the SIA? - whether Avilion has notified the Commissioner that Mr Blissett is a close associate? - Whether the public interest requires that Avilion be revoked? - Whether Avilion's licence should be revoked on ground that it would be refused a master licence under s 15(6) on the basis that Mr Blissett as a close associate is not fit and proper? - Whether Avilion has been convicted of an offence against the Act of Regulations and had committed at least 3 offences against the SIA, arising from separate circumstances, in the two years preceding the hearing, in which the Act requires that the licence be revoked? - Whether the penalty notices which have been served on Avilion point the conclusion that the licence should be revoked on discretionary grounds due to contraventions of the Act and Regulation.

18 Section 63 of the Administrative Decision Tribunal Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Dione Blissett 19 Mr Blissett held a class 1ABC licence and operated a security business known as "Web Protection Australia Pty Ltd" ("Web Protection"), for which he was the licensee. He was the sole director of the company. Web Protection's master licence and, and Mr Blissett's personal licence, were revoked by the Commissioner in February 2005. The ground of revocation was that Mr Blissett was not a fit and proper person, and that it was not in the public interest for him to hold the licences.

20 Mr Blissett reviewed that determination in this Tribunal. On 19 April 2006, the Tribunal (Fitzgerald JM) found that Mr Blissett was not a fit and proper person, and affirmed the Commissioner's revocation: Blissett v Commissioner of Police; Web Protection v Commissioner of Police [2006] NSWADT 114. The Tribunal found, at [30]-[34]: "Mr Blissett has a history of criminal and traffic offences including damage to property and assault. Mr Blissett is currently serving an order for periodic detention for driving while disqualified and it is not the first time that he has been convicted of that offence although only the current conviction post-dates the issuance of the security licence. The fact that periodic detention was requested by Mr Blissett as an alternative to home detention does not take away from the seriousness of the offence or that fact that a period of incarceration was ordered. While the evidence of his rehabilitation and the observations of Mr Cannon are relevant they are outweighed in these circumstances. There was no evidence of Mr Blissett offending during the 9 month period prior to the hearing but this is an insufficient time period to have elapsed since his last offence in light of his history. Compare QA v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 81. Mr Blissett's personal interest in retaining his licence cannot outweigh the public interest in having confidence in people involved in the security industry. This view does not mean that Mr Blissett should be prevented from re-entering the security industry at some time in the future if he does not re-offend as his efforts at rehabilitation are to be commended. However, at this time he is not a fit and proper person to hold a security licence and it is not in the public interest for him to do so. It follows that the stay ordered previously in these proceedings be revoked."

21 Mr Blissett's criminal record and traffic record accumulated between October 2000 and February 2005 is indeed extensive. His repeated conviction for driving while disqualified points to a lack of respect for the law. The circumstances of the assault are of considerable concern. The statement of facts demonstrates a violent and vicious assault. While there is no evidence of him being convicted of offences since the Tribunal found him not to be a fit and proper person under the SIA, that alone is not sufficient to demonstrate that he is now fit and proper, due to the expiration of time.

22 I am satisfied that he is not a fit and proper person to hold a licence under the SIA in accordance with the earlier findings of the Tribunal.

Dione Blisset's role in Avilion 23 Avilion was incorporated in June 2005. Its sole director and shareholder was and is Ms Stankovic.

24 At that time Ms Stankovic was employed as a receptionist by Web Protection. Ms Stankovic said that Web Protection provided crowd control and security to 10 licensed venues. Ms Stankovic was 19 at the time. She was studying business administration at TAFE. She says that she was not in an intimate relationship with Mr Blissett at that time.

25 Ms Stankovic gave evidence that Mr Blissett put a proposition to her; to set up her own security business and takeover the business of Web Protection. At this time she was aware that there were difficulties with Mr Blissett's licence. She gave evidence that: "Well I just know that there was a lot going on with his security licence and it being revoked and then the same happening with his master licence and it being revoked."

26 Ms Stankovic said that she jumped at opportunity to own and operate her own business. While she was unable to give precise figures she guessed that Web Protection's turnover at that time was $10,000.00 a week. Ms Stankovic did not purchase the business of Web Protection; it was given to her. She said that she did not think this peculiar.

27 Avilion commenced business operating out of the same premises in Liverpool as Web Protection had operated from. Ms Stankovic commenced operations with the assistance of Mr Blissett. In cross-examination Ms Stankovic gave the following evidence with respect to Mr Blissett's role. A. Like I said, he was just assisting me to help me on my feet and that was about it. So just in basic administration roles. Q. Well what did that involve? A. Answering telephone calls. Picking-up cheques if necessary. Running errands. That sort of stuff. Q. Did you have any other staff at the time when you started? A. When I first commenced, no. Q. Just you and he, was it? A. Yes. Q. Who was the person who, at the beginning, dealt with the venue operators? A. Well like I said, I dealt with them on some occasions and then he obviously would have dealt with them on others. Q. When I say dealt with, I mean who was the person who would go out and meet with the people at the venues, when you first commenced? A. He would have. Q. So if there were any operational problems that the venues had, they would speak to Mr Blissett about that? A. Or they'd phone through and speak to me. Q. You were working what hours? A. Nine to five. Q. He was working what hours? A. I'm not certain - nights. Q. As necessary? A. Yeah. Q. So part of his role was to do the rostering? A. Yes. Q. That is to allocate particular security guards to particular venues? A. When we first commenced, yes, and then I ended up getting the relevant people and I include the relevant people, operations staff, to ensure that they took over. Q. That would have involved - that is, he's doing the rosters and so forth would have involved attending at the venues? A. I suppose so. Q. Well what do you mean, you suppose so? You're the company director aren't you? A. Well yes, I am but I worked from 9 to 5 so anything after 5 o'clock was--. Q. Dion did? A. Well, I suppose so, yes, yep. Q. At the beginning of the business, you say - or do you say you were still not in a relationship with him - personal? A. Yes. Q. So roughly around 5 or so you would leave the office and go home? A. Yes. Q. You were not living with him at the time? A. No. I think even on my application form, it's got ... which was where I lived with my parents. Q. And you basically left him to deal with anything that occurred outside the hours that you were not in the office? A. Yes. Q. So if there were problems with security guards at any particular venue then that was the sort of thing that he dealt with? A. Yes. Like I said, initially to start off with, he was assisting in administration until I found the appropriate people and then they took over. Q. And when you say assisting in administration, you mean dealing with the security guards? A. Yes, and I dealt with them too. Q. Certainly these things were included in his tasks to speak with security guards about any problems? A. Yes or they'd call the office. Q. If there was a problem at 11 o'clock at night or 2 o'clock in the morning, they wouldn't be calling the office would they? A. No, they wouldn't. Q. They'd talk to Dion about it, wouldn't they? Q. And if a security guard had been rostered by Dion to attend a particular venue and they hadn't shown up or they were sick or something, then they would call Dion, correct? A. The venue? Q. Yeah? A. Yes. Q. At the beginning of the business, the period I've just been asking you about, Dion was on the books as an employee? A. Yes, I believe so.

28 It can be seen that in this evidence Ms Stankovic said that when Avilion commenced business Mr Blissett was responsible for the rostering of security guards employed by the company, would deal with the venues on behalf of the company, and would deal with operational problems which arose (especially after hours). This evidence is to be contrasted with evidence Ms Stankovic gave before the President on 5 March 2009 when, in the course of re-examination, she said that Mr Blissett had never been a person with management control over the company.

29 Ms Stankovic said that as she became settled in the role of a business owner and operator, and as her business grew, she engaged a number of further employees who took on operational roles. It appears that she was remarkably successful. At the time of the hearing the evidence was that Avilion had grown to the point that, in early 2009, it had nearly 150 employees and provided security for around 50 venues.

30 Ms Stankovic said that Mr Blissett was not engaged in an administrative or operational role in the company, but assisted in "administration". His employment in that role continued until she terminated his employment in December 2008. It is to be noted that when Ms Stankovic gave evidence before the President, in earlier proceedings, she was unable to identify the date of Mr Blissett termination with the clarity she displayed in these proceedings, suggesting that it occurred in 2008.

31 During the course of her evidence there was considerable discussion as to what the role of an operations manager was. She said it included rostering, being available to address operational issues as they arose, undertaking assessments and giving quotes for new business.

32 Among those employed to assist in the management of the company were Thana Phabmixay, Hale Hunt, and a Mr Nelson, who she said had been employed as operations managers by the company. She was asked whether Mr Blissett had been performing the role of operations manager for the company before Thana Phabmixay commenced employment with the company. The following exchange took place: Q. Would you agree that before Mr Thana Phabmixay started working as an operations manager that that role was really performed by Dion Blissett? A. I think Thana's been with the company for a while, quite possibly 2006, maybe 2005, so he did perform the duties. And as previously stated, we are basically dictated to by the venues so in relation to rostering it's the venues who put their requests, who they want there, who they don't want there, the amount of guards, and we ensure that we assist them as much as we can. Taking phone calls, messages is done by all the staff, and then if they've got any queries they phone the office. Q. Thank you for that answer but it doesn't address the question I asked you. The question was, do you agree that before Thana Phabmixay took on the job of operations manager that that job was performed by Dion Blissett? A. Well I stated that I believe that Thana's employment was in early 2006 quite-- Q. I'll stop you again because you're still not answering the question. I'm not asking you about dates-- A. Well I'm stating-- Q. --I'm asking you about whether before Thana did the operations manager job, that job was done by Dion? A. What I'm stating is round about 2006 which I believe is the employment date, Thana took on that role, and as I did put forward prior, Dion did assist which he said that he would. It was only myself and him in the office, and we were very small at the time so he just assisted me to help me get on my feet. Q. So do we take that as being an answer that yes, Dion did the operations manager role before Thana? A. Yes, about late 2005.

33 It was then pointed out to Ms Stankovic that in March 2009 Thana Phabmixay had given evidence in the proceedings before the President. He had said that he commenced his role as an operations manager with Avilion in December 2008. Ms Stankovic acknowledged the difference between the date she said he took on the role, and what Mr Phabmixay said. She said, "…I'm saying that it's a possibility of it being 2006, so that's my answer." She acknowledged that before Thana Phabmixay commenced as operations manager the rostering had been done by Mr Blissett. She agreed that rostering was part of the role of the operations manager.

34 Ms Stankovic said that Mr Hunt had been an employee of the company since 2005 or 2006. 35 Ms Stankovic was shown a spreadsheet of Avilion's present employees, dated 25 February 2009, which was tendered in the hearing before the President in March 2009. Ms Stankovic had told that hearing that she had prepared this document herself. It showed Mr Blissett as an employee of Avilion. Ms Stankovic told me that the document was a printout of a database, and that her human resources manager would have prepared it. When the conflict between this evidence and her evidence to the earlier hearing, about who prepared the document, was pointed out to her, Ms Stankovic said, "Well, as I said it's - because it's something that can just be accessed by everybody I would have asked for her assistance and I would have done it or I would have just done it myself, but it would have been either or either of us that would have worked on this."

She ascribed the conflict between her evidence that Mr Blissett's employment had been terminated in December 2008 and the fact that his name appeared in a list of Avilion's employees in February 2009, to a failure update the database. When asked whether the spreadsheet was inaccurate she said, "No, I'm not saying that it's not accurate, I'm just stating that there may very well be some data on her [it] that just needed to be updated that wasn't."

36 Ms Stankovic agreed that Avilion has a web-site. She said that this had been built in 2008. She was shown two printouts form the web-site. They were dated 14 and 18 December 2009. The first invited interested person to contact Avilion for a no obligation free appraisal and quotation on a mobile phone number. The second was a company profile which, among other things, said that the company was always keen to serve and always contactable. It gave the same mobile phone number to contact, "to arrange a no obligation quotation and site assessment." That mobile phone number is the mobile phone number shown in the spreadsheet of Avilion's employees as belonging to Mr Blissett.

37 Ms Stankovic agreed it is Mr Blissett's number. She said that she had not updated the web-site. The following exchange then took place: "Q. But it appears from those documents that he was being put forward as the person to contact for those purposes doesn't it? A. Well that's just a general number that we use on there and that's what it states but it doesn't necessarily mean that that's what he takes care of. Q. So you'd agree though that the public face of the company, as represented on that website, only quotes that number as the contact person for quotes and assessments? A. Yes but there is our contact details on there as well, which is the office number. Q. So you still maintain do you that Mr Blissett was never in the role of giving quotes and assessments? A. Yes that's correct I think there's even points on there that states that we do shopping centres which we do not, so we're obviously just trying to market ourselves and get ourselves out there, so I mean, I don't know if it's a crime to put down that you do things when you don't, obviously we don't do shopping centres but we've put it out there, that's something that we'd like to do but trying to market ourselves. Q. But Mr Blissett used to go out to the venues and represent the companies at the venues didn't he? A. As an RSA marshal? Q. No as a representative of the security company? A. No that's not true. Q. Well you gave some evidence on 27 February 2009, page 41 of the transcript of that day and I'll read to you the evidence that you gave, commencing at line 15, this is about Mr Blissett, "Q. So he's an employee of yours and you actually don't know what he was doing? A. Well I don't keep a track of everything that everyone does. I really do have a lot of things that I need to do and make sure I comply with by, so it's a little bit difficult to keep track of each and every individual. Q. But he was representing your company at venues, do you agree with that? A. Yes he did go out of the office, yes, that's correct. Q. But was he going out representing your company, you have to be very clear on this. A. Representing the company in what way? Q. With venues, contract negotiations, security guards. A. He used to go out to the venues, yes." Right? That's the evidence you gave back in February, I'd suggest that the effect of that evidence was that Mr Blissett used to go out and represent the companies at venues, would you agree? A. Yes but in an RSA role, an RSA marshal role sorry. Q. Well you made no mention of RSA marshal role in that answer did you? A. Well your question was broad so I gave a broad answer."

38 Ms Stankovic gave evidence about her relationship with Mr Blissett. She initially said that they had been living in a de facto relationship since mid-2005 and became engaged to be married in November 2008. She then said that initially they had been friends for some time and that their intimate relationship had commenced in 2006. They had not been in an intimate relationship when she applied for the master licence.

39 Mr Blissett and she live, as a couple, in a rental property which she rents, together with Mr Blissett's children: a boy whom Mr Blissett has the custody of, and a girl who he has the shared custody of. Ms Stankovic said that she likes to think she has a mothering role with respect to the children. Mr Blissett does not have a car. He takes public transport or uses a driver from Avilion. He calls the drivers directly, if he needs transport. The company pays for his drivers. They share household expenses.

40 She said that Mr Blissett works as an RSA Marshall for a number of licensed venues. She said that some of those venues are also venues at which Avilion provides security. She denied that he only works at venues at which Avilion provides security. The venues contact and pay him directly. Thus is consistent with Police reports of him being seen at such venues during the course of 2009. She was unable to say how much Mr Blissett earns each week, but estimated that he earns "around about $800.00 a month or something." She understood his contracts were verbal, and did not know how he was paid. She named the Collingwood Hotel, Liverpool as a place where he regularly works.

41 Ms Stankovic was asked about the decision to terminate Mr Blissett's employment with the company. She explained the decision to dismiss him thus: "we had sufficient people and policies and procedures put into place, and we no longer required his services." Despite the fact that he is her fiancé, and that they have lived together for some time, she said that she had not discussed the decision to terminate his employment with him. Similarly, she did not discuss the impact of his loss of work on their household with him.

42 This, like much of Ms Stankovic's evidence, is difficult to accept. It is inherently improbable that Ms Stankovic would not discuss the decision to terminate Mr Blissett's employment with him, when the two of them are living in a de facto relationship and he is her benefactor, having handed her an operating business on a plate.

43 In my view the objective evidence points to the truth of the matter being that Mr Blissett's employment with the company not being terminated in December 2008, as Ms Stankovic maintained. His name appears on the list of employees of the company as at February 2009. Ms Stankovic explained this by saying that the list was not kept up to date, and that Mr Blissett name appears in error. As I endeavoured to indicate to her during the hearing I have significant difficulties with this proposition.

44 The central asset of a company such as Avilion is its security personnel. Ms Stankovic repeatedly made the point during her evidence that the workforce is a casual and fluctuating one. In those circumstances the maintenance of a correct and accurate database of existing employees is essential. I do not accept that a company, with the number of contracts and employees that Avilion has grown to, could be managed without its list of employees being up to date, accurate and complete. I am reasonably satisfied to the standard required in Briginshaw v Briginshaw (1938) 60 CLR 336 that, as at February 2009, Mr Blissett remained in the employment of Avilion. I do not accept Ms Stankovic' evidence that she terminated Mr Blissett's employment in November 2008.

45 Further, up until December 2009, Avilion's web-site advised Mr Blissett's mobile phone number as the contact point for potential customers to contact for assessments and quotes. Ms Stankovic' explanation for this was that the web-site had not been kept up to date. Again I do not accept this. I find it inconceivable that a company of Avilion's size would allow its web-site to direct potential customers to the mobile phone of a former employee, some thirteen months after that employee was terminated.

46 I am satisfied that from the time Avilion commenced operations until November 2008 Mr Blissett was actively involved in the management and operational control of Avilion's business. Ms Stankovic gave evidence that until Thana Phabmixay started as an operations manager, Mr Blissett was responsible for rostering of security staff, and managing the operations of the business after hours. As the principal activity of the business is providing security and crowd control for licensed venues after business hours, it follows that the major operational decisions which arose in the course of the business' day to day activities would have been dealt with by Mr Blissett as they arose. Additionally, it is clear that Avilion held out to potential customers, on its web-site, that quotes and assessments and assessments could be obtained by contacting Mr Blissett's mobile phone. That was the case both before and after his purported termination.

47 There is other material before the Tribunal which the Commissioner says goes to demonstrates Mr Blissett's ongoing involvement in Avilion's business activities, including involvement after November 2008. Much of it is contained in disclosed criminal information (principally intelligence reports) which record hearsay information garnered by Police from contacts and informers, concerning Mr Blissett's involvement. That information is hearsay in nature. Aside from Mr Fullilove, the police officers who recorded those reports were not called to give evidence and were not available for cross-examination. Mr Lowe who appeared for Avilion submitted that as such their reports should be given little weight. He also submitted that much of the disclosed criminal information was self-corroborating, in the sense that the descriptions of Mr Blissett's role and associates contained in them, were based on previous intelligence reports. These, in turn, were based on unattributed hearsay, speculation and suspicion; and the author's were not available to have their evidence and opinions tested. I agree with this analysis with respect to a significant proportion, but not all, of the criminal information disclosed by the Commissioner. While replete with worrying accusations about Mr Blissett, speculation and suspicion, much of what they contain is unsubstantiated hearsay. I also agree that much of the material is self-corroborating; with the result that, when one considers the weight of the underlying evidence, the whole house of cards collapses. This, in my view, is not evidence upon which the Tribunal could be satisfied to the Briginshaw standard. In that case Dixon CJ said: "… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

48 Among the considerable body of material submitted by the Commissioner there are, however, a number of pieces of evidence which are sufficiently reliable for the Tribunal to rely on when making findings of fact.

49 Emanouel Spyrou is a security guard who usually works at venue called Bada Bing. He works for UVP (Avilion). He works Wednesday, Friday and Saturday nights from 8-30 pm until two or three o'clock in the morning. He said he had been working at the Bada Bing before UVP took over their security. He identified Dione as the person he contacted at Avilion and described Dione as his boss. When asked about Mr Spyrou, Ms Stankovic said: "He's actually a spruiker so he works for the venue directly and his boss would be the venue owner which would be Gary. We don't give - like Spyrou does not receive a roster. He goes there on his own will."

50 Mr Spyrou said that he signs on in at work using a time sheet which the proprietor of Bada Bing faxes to Avilion each week. He is paid by Avilion. Annexed to his statement was a payslip from Avilion to him dated 4 December 2008. That pay slip confirms Mr Spyrou's evidence that he is an employee of Avilion. It points to the falsity in Ms Stankovic's denial that he was an employee.

51 Emanuoel Spyrou's evidence verifies that during his two years as an employee of Avilion, Dione was his boss, and the person he reported to about operational matters. This is consistent with Dione exercising operational control of Avilion's enterprise.

52 Michael Amante, is the owner of the Dreamgirls Theatre in Kings Cross. He said that Avilion was providing the security for that venue when he became involved in the business. In a statement dated 29 May 2009 he said: "Throughout the two years of my ownership, I would ring the office of United Venue Protection and speak to a lady whose name I can't remember. Occassionally, a man named Dione would pick up the phone and help me out with operational matters. I would ask him whether I needed additional guards, or less guards, or when they should start and finish etc. He always agreed to what I wanted and made arrangements accordingly. I have never spoken to Aleksandra except I had seen her name on the master licence which I had on display in my premises. I estimate I spoke to Dione at least 8 or 9 times in total. I spoke to the girls in the office at least once every two weeks. I remember that Dione came to Dreamgirls twice. The first time was on a Sunday morning at about 2am about 12 months ago. That was the first time I had ever met him. He introduced himself and came down with a guard from UVP who usually collects the checks. I wrote him a check for the security services that I had utilized. He didn't say much just stood there. He was a large build, caucasian, and dressed in black. He had a bag over his shoulder. The second time I met him was about a week after the first time. It was a Monday or Tuesday and in the afternoon sometime. He walked into Dreamgirls by himself and again I wrote him out a cheque. I talked to him for a couple of minutes and then he left. I haven't had any dealings with him since and have since ceased utilizing United Venue Protection at Dreamgirls."

53 In his evidence Mr Amante said that his statement should refer to ladies he had spoken to at Avilion, and that, as he could not recall their names, it was incorrect to say that he had never spoken to Aleksandra. He did not know Dione's role in the company. He said that Dione's first visit was in January 2009.

54 While Mr Amante did not know Dione's last name, I am satisfied on balance that this individual was Mr Blissett and that he was collecting cheques for Avilion. There is no suggestion in the evidence that there was any other Dione associated with Avilion. The individual, on the first occasion, was accompanied by a UVP guard who usually collected the cheques. The individual introduced himself as Dione, and Mr Amante had spoken to him previously about operational matters. 55 Mr Amante's evidence demonstrated that Dione was dealing with him as a customer of Avilion's, with respect to operational matters regarding the provision of security at the Bada Bing. It also demonstrates that in January 2009 Mr Blissett was collecting cheques on behalf of Avilion.

56 Mr Corsi is licensee of Hugo's Lounge in Kings Cross. On 15 April 2009 at 11:15am he was approached in his business premises by a man. I said to him, Can I help you?" He introduced himself saying, "My name is Dione. We have the security downstairs. I was just walking by and I wanted to know if you are happy with your security?" I said, "We have just changed security companies in August to a company called Marshell" He said, "Are you happy with them?" I said, "Extremely. All good". He said, "Would you consider changing?" I said, "No". He said, "We do other venues including Havana on Oxford Street". He also said he does 'several places in the Cross'. I said, "I know Eric", who I know is one of the owners of Havana and is involved in the premises downstairs which trades as The Club. He said, "If you ever want to change just let us know?" I said, "No we're happy". He then said, "Thanks". He then turned and then walked out of Hugo's Lounge and down the main entry stairs which lead out onto Bayswater Road. He was polite throughout this process. This whole conversation took about 3-4 minutes. I have not had any further conversation with this male since this incident but I did see him walking west on Bayswater Road about 12 midday on Tuesday 215t April 2009. I have since requested video footage of this incident from my CCTV provider at the request of Kings Cross Police. I have viewed this footage which also shows the male writing in his clipboard at the reception desk at the front of Hugo's Lounge, just prior to him conversing with me.

57 Among the material before the Tribunal are still colour photographs taken from the video footage of the man who visited Hugo's lounge on that day. While the images are not vey clear, Mr Fullilove, in his evidence, identified the individual in the photographs as Mr Blissett. That identification was not challenged. I accept the photographs show Mr Blissett.

58 When asked whether she had any explanation for Mr Blissett's attendance at Hugo's Lounge, Ms Stankovic did not: she said, "if he wants to go to Hugo's Lounge then he can go to Hugo's Lounge." She did agree that, at the time, Avilion provided security to Havana. I conclude that in April 2009 Mr Blissett was touting for work on behalf of Avilion, some five months after Ms Stankovic said she dismissed him.

59 The evidence as to the nature of Mr Blissett's role in the company after December 2008 is less clear than that before then. While Ms Stankovic says this is because she had dismissed him, the evidence of Mr Amante and Mr Corsi points to him still playing an ongoing role in the company, as does the company web-site. It will be remembered that Ms Stankovic said that he was dismissed because the company had no further use for his services, despite the fact that he had in effect given her the business, and that they live together. The inherent improbability of Ms Stankovic's evidence about the dismissal is obvious.

60 There is a more likely and probable explanation of these events. This is that the increasing attention that the Police were taking in the operations of the company, and of Mr Blissett's role in it, pointed to a need for him to be seen to distance himself from the company in order to protect Avilion's licence.

61 In 2008 Mr Fullilove (then an Acting Sergeant in charge of Licensing Police at Kings Cross) was playing an increasing interest in the activities of Avilion. He gave evidence that during that year he became concerned by what he saw as the company's spreading influence. It was providing security to a large number of high risk venues in the area. He was in the possession of disclosed intelligence reports which led him to think that that Mr Blissett was the undisclosed owner of the company, and had adverse criminal connections. That criminal intelligence once again consisted of hearsay allegations from contacts and informers, speculation and suspicion. The sources of that information were not available for cross-examination. I do not consider it reliable evidence to enable the Tribunal to draw conclusions of fact from to the Briginshaw standard.

62 Nonetheless, the intelligence caused Mr Fullilove to make further inquiries. An audit of Avilion guards working in Kings Cross was conducted in October 2008, in which he took part. License checks were conducted. Two Avilion guards were identified as having expired licences. Mr Fullilove said that he participated in that audit and that security guards were asked a number of simple questions regarding who they worked for and how they got paid? Mr Fullilove said that, "A number of the guards when questioned as to their employment referred to Dione as being their boss and being paid cash in relation to their duties, and that was important for us just to put in perspective and clarify some of the information we'd previously received."

63 Following that audit Mr Fullilove served a notice to produce documents on Avilion by fax on 29 October 2008. The documents were produced the next day, at what Mr Fullilove described as an informal meeting at Kings Cross Police Station. Present were Mr Fullilove, Ms Stankovic, Mr Blissett and one other police officer. Mr Fullilove said that Mr Blissett handed him documents on behalf of Ms Stankovic. Following the meeting Mr Fullilove completed COPS Event E 35311227. It recorded the following information: "At 4.00pm on the afternoon of Thursday 30th October 2008, STANKOVIC and BLISSET attended Kings Cross Police Station to meet with Police, and produce the above listed documents. STANKOVIC was able to produce most of the records requested by Police, as documented in Official Police Notebook F444269, pg 18-21. Upon analyzing the records, Police noted that all UVP staff had varying amounts of money paid to them and taxed accordingly. Upon questioning some of these payments and comparing them to the amount of hours performed by individual guards, BLISSET acknowledged that he has initiated a system where he pays all his 150 or so security guards 50%of their wages through legitimate means to ensure they are covered by Workers Compensation. BLISSET further stated that the additional 50% of wages is paid cash in hand, and not declared to the Australian Taxation Office. This process is aimed at allowing United Venue Protection to charge a lower rate compared to other security companies in the area. In relation to BLISSET's employment, Police sighted payment records relating to income he has generated from United Venue Protection from the period 1st July 2007 to 26th October 200E. Police noted that BLISSET is paid a set wage of $720 a week, minus $24.22 child support and $95 tax, and is listed as a casual employee. When questioned in relation to his actual role with the company, BLISSET stated that he just assisted STANKOVIC with 'administration'. It should be noted that throughout this audit process, BLISSET was the primary source of information to Police in relation to all aspects of the business. BLISSET had a thorough knowledge of relevant security policies and procedures, relevant contracts, payments details, rostering details etc. It was evident to Police that BLISSET does continue to maintain a controlling influence over STANKOVIC and United Venue Protection as a whole. Police requested both STANKOVIC and BLISSET be interviewed at this point in relation to various Security Industry Act offences. Both STANKOVIC and BLISSET refused this process at this time pending legal advice. It is anticipated that these interview processes may be able to be conducted in the near future.

64 When asked about the suggestion that Avilion paid employees half their wages in cash, Mr Fullilove agreed that he had never conducted an analysis of the records produced. A pay slip from an employee was put to him. This showed apparently regular wages payments with PAYG deductions. He agreed that he had not investigated the documentation further. He said: "…what Mr Blissett was referring to, or what I understood the process to be was that in addition to those hours there would be additional hours not declared on that PAYG. Not for that individual and my report is a summary of the overall issue, I never did too much individual analysis of every individual payslip, I just received the documents, I received the information from Mr Blissett and I attempted to document a summary of what I believed to be occurring.

65 Mr Fullilove said that Mr Blissett was asked about his role in Avilion: '…he made a number of comments, he was obviously vague. I remember him using the word "administration". I also remember him stating things, like, you know, he's been waiting for this to happen, one of his sentences was he's "been waiting for the axe to fall" on him, I remember that very clearly. "

66 When asked why this was not recorded in the event reference he said it was a formal report, and, while this was not included in the report, he had a clear recollection of it. 67 Mr Fullilove said that at the end of the meeting he had asked Ms Stankovic and Mr Blissett to participate in formal records of interview, but Mr Blissett had indicated they would not do so without legal advice. Because the informal meeting had not been recorded and Mr Blissett had not been cautioned, he did not think he had sufficient evidence to charge Mr Blissett at that time. That was why he requested formal records of interview. Mr Fullilove said: "… Mr Blissett said that he would get legal advice and prior to making a decision I had a number of phone conversations with Mr Blissett after this date where I followed it up and asked if he'd obtained legal advice and whether we could organise an interview to occur. He communicated to me on a number of occasions that he's still making inquiries and then finally a couple of weeks after he said no he didn't want to participate in that process."

68 In her evidence Ms Stankovic agreed that she had attended this meeting at Kings Cross Police Station. She said that both she and Mr Blissett did the talking, "round about the same I suppose." She said it was an informal discussion with nothing recorded. Mr Blissett's statement that 50% of employee's wages were paid in cash was put to her. She said this was not right; it was not said. There was no mention of cash payments at the meeting.

69 This evidence from Ms Stankovic is at odds with and inconsistent with evidence she gave before the President on 27 February 2009. Then, she agreed with proposition that "Mr Blissett basically had the conversation with the police officers concerning the documents." She explained that this was so she felt "intimidated by Police". She also agreed in that evidence that Mr Blissett had acknowledged, in the meeting, that a "small portion" of the guards were paid cash in hand. Those inconsistencies lead me to reject Ms Stankovic's evidence about the informal meeting. I accept Mr Fullilove's evidence as to what occurred.

70 I add that Mr Blissett was not called to give evidence on the Applicant's behalf. It is reasonable to infer that his evidence would not have Avilion's case: Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367.

71 I conclude that at the meeting, while Ms Stankovic was present, Mr Blissett effectively represented the interest of Avilion. In the course of doing so he displayed a close knowledge of its finances and operations and spoke of himself exercising decision making powers within the company.

72 I am satisfied that as a result of this meeting Ms Stankovic and Mr Blissett were aware that Police were looking closely at the operations of Avilion, and asking difficult questions about Mr Blissett's involvement in the company's management and operations. This created a need for Mr Blissett to be seen to cease his association with the Avilion. That need, for Mr Blissett to distance himself from the company, is the probable and likely explanation for ms Stankovic's evidence that she terminated his employment in December 2008.

73 The evidence of Mr Corsi and Mr Amante demonstrates that, despite his claimed termination of employment, Mr Blissett continued to be involved with Avilion, as does the company's web-site. He collected cheques in payment for its services and looked for work for it. The level of that involvement is less clear. When I consider all the evidence surrounding the formation and growth of Avilion; Ms Stankovic's transformation from receptionist at Web Protection to owner and licensee of Avilion; Ms Stankovic's total lack of experience in the security industry; the rapid growth of Avilion; Mr Blissett's experience and history; Mr Blissett's central role in Avilion's operations and management up till October 2008; the evidence of his continued association with the company; and, the demonstrated unreliability of Ms Stankovic inconsistent and variable evidence, I am satisfied that the claims of Mr Blissett's employment being terminated are false. I am satisfied that retains substantial, but surreptitious control over and influence on the operations of the company.

74 Ms Stankovic gave evidence as to the current employees who exercise control over the company. These are Mr Hunt, Ms Nelson and Ms Correra. The two men she variously referred to as operations managers and area managers. When I sought to identify precisely what their duties and roles were, Ms Stankovic was unable to provide clear answers. Ms Correra appears to have an administrative and human resources role. Ms Stankovic's lack of clarity about the roles of people she maintains are her principal managers is entirely at odds with what one would expect of the young, but highly successful, chief executive of a busy security company. This, once again, points to their being some other controlling mind influencing the company's operations.

75 Mr Hunt, Ms Nelson and Ms Correra were not called to give evidence with respect to their roles. Once again I infer that their evidence would not have assisted the Applicant's case.

Is Mr Blissett a close associate? 76 There is no evidence that Mr Blissett holds a relevant financial interest in Avilion within the meaning of s 5 of the SIA.

77 On Ms Stankovic's own evidence I am satisfied that from the commencement of Avilion's operation until Thana Phabmixay took over as operations manager Mr Blissett acted as the operations manager of Avilion. Given Ms Stankovic's uncertain evidence as to when Mr Phabmixay took on the role of operations manager, and Mr Phabmixay's clear evidence before the President that this occurred in December 2008, I accept that he commenced as operation manager in December 2008.

78 The duties Mr Blissett performed included making operational decisions as needed, rostering of the company's personnel, liaising with and advising clients and providing them with quotes. He was a manager in the company and exercised executive authority.

79 A person is a close associate of an applicant under s 5 if that person holds a position of "director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition." The Macquarie Dictionary On-Line defines "manager" - noun 1. someone who manages. 2. a person charged with the management or direction of an institution, a business or the like

80 I am satisfied that, as the operations manager of Avilion, Mr Blissett was charged with the management of the core business of the company. He was therefore a manager and the holder of an executive position in Avilion. As such he was a close associate within the meaning of s.5.

81 I am further satisfied that from the time Avilion commenced its operations to date and continuing, Mr Blissett, by virtue of his relationship with Ms Stankovic, has exercised a relevant power over and participated in the executive decisions of the company. In my view, the history of the growth of the corporation, together with the evidence as to the nature of Mr Blissett's relationship with Ms Stankovic, Ms Stankovic's inexperience and her poor command of details concerning the operations of the company, point to her not being the controlling mind behind the evolution and growth of Avilion. Rather, the circumstances of Avilion's creation, the fact that it took over the contracts of Web Protection, Ms Stankovic's role as a receptionist at Web Protection and her subsequent emergence as the sole director of Avilion, her intimate personal relationship with Mr Blissett, and his acknowledged role in the establishment and operations of Avilion, all point to him being the true controlling mind behind the company. That control has been and continues to be exercised by virtue of his relationship with Ms Stankovic.

82 While Ms Stankovic maintains that Mr Blissett no longer has any role with the company, I have already rejected her evidence and have found that he has an ongoing, albeit now surreptitious, role. This explains his collection of cheques and his seeking work for Avilion from Hugo's. Mr Blissett and Ms Stankovic remain a couple. In my opinion, by virtue of his relationship with Ms Stankovic, he continues to be able to exercise a significant influence over and with respect Avilion's business, as he has in the past.

83 Section 5 of the SIA provides that a person will be a close associate if the person "is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that … power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business."

84 To be close associate on the basis that one is able to exercise a relevant power, s 5 requires that a number of requirements be satisfied. First, it has to be established that the person is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant. Relevant power is defined in sub-section (2) as meaning any power whether exercisable by voting or otherwise and whether exercisable alone or in association with others to participate in executive and managerial decisions etc. Secondly, the Commissioner needs to be of the opinion that by virtue of that power the person will be or to exercise a significant influence over or with respect to the conduct of that business.

85 This provision has not been previously considered by the Tribunal. I have reached the conclusion that Mr Blissett has, is and will be able to exercise a relevant power in Avilion. That power is exercisable through and by virtue of his relationship with Ms Stankovic who is the sole director and shareholder of the company. It enables him now, as it has in the past, to participate in the executive and managerial decisions of Avilion. While, when the company was initially formed and later, he also exercised those powers by virtue of the fact that he held a managerial position, I am of the view that all of the evidence points to him always having exercised such a power as the controlling mind behind the incarnation and the growth of Avilion.

The Consequences of Mr Blissett being a close associate 86 Mr Blissett is not a fit and proper person to hold a licence under the SIA and has been found to be a close associate of Avilion. Ms Stankovic has not notified the Commissioner that he is a close associate.

87 If he had been declared as a close associate at the time the application for master licence was made, the effect of s 15(5) would have been to require the Commissioner to refuse to grant the master licence on the ground that Mr Blissett, a close associate, was not a fit and proper person to hold a master licence.

88 Section 26(1A) provides that the Commissioner must revoke a licence if satisfied that, were the licensee applying for a new licence, the Act would require that the application be refused. This is the case here. Mr Blissett, a person who is not fit and proper to hold a master licence, has been and continues to be a close associate of Avilion. In those circumstances the Commissioner is bound to revoke its master licence.

89 On this ground alone I consider that the Commissioner's decision to revoke Avilion master licence should be confirmed.

90 Should Avilion's licence be revoked in the Public Interest? 91 One of the initial reasons for the Commissioner's decision to revoke the master licence was that it was in the public interest to do so.

92 In Ibrahim v Commissioner of Police [2009] NSWADT 245 Montgomery JM discussed the meaning of the public interest in the context of the SIA: 45 The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

46 'Public interest' embraces standards acknowledged to be 'for the good order of society and for the well being of its members': Director of Public Prosecutions v Smith (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 (at page 681). The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith .

47 The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. 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: Haining v Commissioner of Police [1999] NSWADT 6.

93 I agree with Montgomery JM's analysis of the objects of the Act, and of the public interest to be served in exercising the discretion to revoke a licence on public interest grounds.

94 I consider that it is not in the public interest that Avilion retain its licence. The evidence before the Tribunal demonstrates that since that licence was first granted Avilion has been subject to the direction and control if Mr Blissett, a person with a substantial criminal record, who is not a fit and proper person to hold a master licence.

95 While Ms Stankovic has always been the nominated license holder, I am satisfied that she is not a person with the ability or experience to manage that role, and has done so as a front for Mr Blissett. Despite her assurances that she is now operating the company free of the influence of Mr Blissett (an influence she has always denied) I do not accept that this is the case. The public interest requires that this no longer continue.

96 I will confirm the decision to revoke Avilion's licence on public interest grounds.

The s 15(6) issues 97 The Commissioner also relied on confidential criminal information which was provided to the Tribunal, but not to the Applicant or its representatives in accordance with s 26(6) of the SIA. I heard evidence in respect to that material in a confidential hearing conducted under s 75 of the ADTA, in the absence of the Applicant and its representatives.

98 Before doing so I heard and ruled on extensive submissions from Mr Lowe, for Avilion, which had at their heart the submission that the word 'applicant' in s 29(3) does not have the extended meaning given to it in s 15. Therefore, he argued, s 29(3) does not apply in this case, as it is not an application for review of a decision to revoke a licence on the ground that the applicant is not a fit and proper person, but of a decision to revoke a licence on the ground that a close associate of the applicant is not a fit and proper person. 99 In Commissioner of Police New South Wales v Gray [2009] NSWCA 49 McColl JA said, at [74] with respect to the construction of s 29(3), that: "In undertaking the construction exercise, it is appropriate to have regard to the context in which s 29(3) appears, bearing in mind that context includes the existing state of the law and the mischief s 29(3) was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (at 408) per Brennan CJ, Dawson, Toohey and Gummow JJ. Section 29(3) must also be construed so it is consistent with the language and purpose of all of the provisions of the SI Act: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [69]) per McHugh, Gummow, Kirby and Hayne JJ.

100 The mischief to which s 29(3) is directed was identified as the application of the common law principles relating to public interest immunity: these were modified so that the Tribunal could have regard to material which would otherwise be the subject of a public interest immunity claim (and therefore not among the material before the Tribunal) without being required to disclose it to the Applicant or the Applicant's representatives. She said, at [79]: "It is apparent that it was intended to modify the application of the principles of public interest immunity as they might otherwise have applied in an external review of a refusal or revocation of a licence. It ensured that a successful s 29(3) claim did not, as would a successful public interest immunity claim, preclude the Tribunal from considering relevant s 15(6) materials pursuant to ss 58(1)(b) and 63 of the ADT Act."

101 That, therefore, was the mischief the provision was intended to remedy. Bearing that in mind, it is necessary to construe s 29(3) so as to be consistent with the language and purposes of the rest of the act.

102 By virtue of s15(5) the word 'applicant' when used in reference to assessments of fitness and propriety, whether one is considering an application for a licence under the Act or the revocation of such a licence, has a wider meaning, so as to include the applicant and close associates of the applicant.

103 Given that wider meaning, I considered it would be inconsistent with the language and purposes of those provisions to construe the words 'an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person' in s 29(3), in the narrow sense urged by the Applicant.

104 In so finding I was conscious of the remarks of Chief Justice French in K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 252 ALR 471 at [84] where his Honour said: "There is also a well established and conservative principle of interpretation that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. That is to say, there is a presumption against a parliamentary intention to infringe upon such rights and freedoms ."

105 Mr Lowe pointed to the use of the word applicant in s 26(3) and the absence of a provision in the section which says it should have an extended meaning, similar to that found in s15(5). Its absence, he argued, creates an ambiguity.

106 When read in the light of the language and purposes of the Act as a whole, and bearing in mind the mischief addressed by s 29(3), I can detect no such ambiguity. Section 29(3) makes it clear that that it is referring to an applicant in the context of an assessment of fitness and propriety. In that context, for the purposes of the SIA, applicant for a master licence has the wider meaning given to it by s 15(5).

107 As a result I concluded that s 29(3) applies to a review of a decision to revoke a licence on the ground that a close associate of the applicant is not being fit and proper.

108 Mr Lowe also urged me to approach the evaluation of any confidential evidence carefully, paying close attention to its veracity and reliability. He referred me to Gray and submitted that the Tribunal had to satisfy itself that the confidential information which the Commissioner sought to rely on is a criminal intelligence report or other criminal information and if so, should give careful scrutiny to the material in determining what weight it should receive.

119 In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 at [46-54] I wrote: "The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." See also Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at [25]. In the present context, additionally to these principles, s.15(6) of the SIA provides that "for the purpose of determining whether the Applicant is a fir and proper person" the Commissioner may have regard to criminal intelligence or information which, among other things, "causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence." The Act contains no definition of "improper conduct". Section 33 of the Interpretation Act 1987 ("the IA") says that: "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object." S.34 of the IA then provides: "(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable." … The Macquarie Dictionary contains the following definition of "improper" - "not in accordance with propriety of behaviour, manners, etc .: improper conduct. " On that understanding, the improper conduct to which s.15(6) refers is conduct in the course of the regulated activity or as a consequence of the grant of a licence. In FD's case, were he granted a licence, this would be as an unarmed guard of persons or property, or in crowd control. The purpose and object of the Act appear to be the maintenance of the highest standards of personal integrity and conduct in the carrying out of regulated security activities. What amounts to prospective improper conduct (having regard to criminal intelligence) in the context of such a licence, which the Commissioner is not confident will not occur, is a difficult question. Some guidance can be found from the Second Respondent Speech on the Security Industry Amendment Act 2002 - which, among other things, introduced s.15(6) and (7) to the SIA. Mr Gaudry, Parliamentary Secretary, in the Legislative Assembly on 12 November 2002, said: "The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security.

It is the view of NSW Police that persons who are known to have extensive links to organised crime figures, who are members of an outlaw motor cycle gang linked to organised crime, or who are suspected of offences relating to drug trafficking, murder or other violence offences, should be regarded as "not fit and proper" to hold a security licence.

However, the determination of whether a person is "fit and proper" is contextual, as has been recognised in common law. For example, in Australian Broadcasting Tribunal v Bond, Justices Toohey and Gaudron found that:

"The expression "fit and proper person" standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper person" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of those activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

The Deputy President of the Administrative Decisions Tribunal has also held that there should be some 'nexus' between the conduct complained of and the activities to which the licence relates. This would apply, for example, in the case of a security guard who is reported to be associated with criminals with convictions for the armed robbery of banks. It is therefore considered that there is insufficient direction within the Security Industry Act to ensure that the balance is maintained between the interests of public safety in ensuring a crime free security industry, and the interests of individual licence holders in retaining their licences to work within the industry.

To this end, it is proposed to clarify the definition of "fit and proper person" in section 15 of the Act such that it can be clearly seen to include, but is not limited to, circumstances where: - criminal intelligence is held on a licence applicant-holder which has a relationship to the duties performed under the licence applied for/held;

• which cause the Commissioner of Police to conclude that improper conduct is likely to occur if the person were to be granted/continue holding a security licence; or

• which cause the Commissioner of Police to not have confidence that improper conduct will not occur if the person were granted/continued to hold a security licence. Clearly, it is in the public interest that persons thought by police to present a public safety or a criminal risk are not given special access to premises, persons or goods under the security licensing system. This should apply even where the person has yet to be charged with a specific criminal offence." It is apparent that the legislative intention underlying s 15(6)(c) is that where criminal intelligence or other criminal information causes the Commissioner to not be confident that an applicant will not act in accordance with the high standards of integrity and behaviour required by the SIA, the Commissioner may find that person not to be fit and proper to hold a licence. This is so despite the fact that, without that criminal intelligence or other criminal information, the person may otherwise be fit and proper."

121As a consequence I am satisfied that were Avilion now applying for a master licence, the Commissioner would be obliged to refuse that application under s 15(1)(a). As a result s 26(1A) requires that Avilion's master licence be revoked.

122 I conclude that the decisions to revoke Avilion's licence should be confirmed on that ground.

The Penalty Notices - Mandatory Revocation? 123The Commissioner led a body of evidence relating to a significant number of penalty notices issued against Avilion and Ms Stankovic.

124The Commissioner submitted that the Tribunal is required to revoke Avilion's licence on mandatory grounds under s 26(1A) on the basis set out in clause 16(4) of the Regulations. That clause is made under s 15(4), which provides that the regulations may specify additional mandatory and discretionary grounds for the granting (and by virtue of s 26(1A) the revocation of) a license. Clause 16(4) provides. "(4) Mandatory grounds for refusal - offences and payment of penalty notices under the Act For the purposes of section 15 (4) of the Act, the Commissioner must refuse to grant an application for a licence if the applicant is convicted of an offence under the Act but only if a total of at least 3 such offences arising out of different sets of circumstances have been committed by the applicant during any period of 2 years. (5) For the purposes of subclause (4), a person is taken to have committed an offence at the time that the person: (a) is convicted of the offence by a court, or (b) pays the penalty required by a penalty notice served on the person under section 45A of the Act in respect of the alleged offence (or if the person does not pay the penalty and does not elect to have the matter dealt with by a court, at the time that enforcement action is taken against the person under Division 3 or 4 of Part 4 of the Fines Act 1996 )."

125The evidence in respect of the penalty notices issued against Avilion and Ms Stankovic was somewhat jumbled and confusing. It was the subject of a considerable body of evidence from Ms Byrnes from the Registry, Mr Single from the SDRO, and Ms Stankovic.

126Penalty notices are issued under s 45A of the Act. It provides: "(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence. (2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section. (3) A penalty notice may be served personally or by post. (4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence. (5) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. (6) The regulations may: (a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and (b) prescribe the amount of penalty payable for the offence if dealt with under this section, and (c) prescribe different amounts of penalties for different offences or classes of offences. (7) The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court. (8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences. (9) In this section, authorised officer means any of the following persons authorised in writing by the Commissioner as an authorised officer for the purposes of this section: (a) a police officer or any other member of the NSW Police Force, (b) a member of staff of a Department within the meaning of the Public Sector Employment and Management Act 2002 , (c) any other person prescribed by the regulations.

127Mr Single in his affidavit of 2 December 2009 outlined the enforcement process which follows the issue of a penalty notice: a. When a penalty notice is issued to an alleged offender, it has a due date by which the alleged offender needs to take action. On the back of the Penalty Notice, options are given to the alleged offender for either electing to have the matter heard in court, or payment of the fine. b. If no response is received from the alleged offender (i.e. either a payment of the fine or a court election), a reminder notice is issued allowing a further 28 days for action to be taken by the alleged offender. c. If, after this time no response is received, an enforcement order is issued by the SDRO, which includes an additional $50 fee and a further 28 days to respond. d. If still no response is received from the alleged offender, the SDRO can instruct the Roads and Traffic Authority (RTA) to impose restrictions and a further enforcement fee of $40 for each restriction would apply. This can be in the form of suspension of drivers' licences for individuals and cancellation of vehicle registration for individuals and corporate entities. e. If payment is still not received the SDRO will authorise seizure of goods or property, garnishee wages or assets, or place a charge on any land fully or partly owned by the individual or company. Another $50 enforcement fee would apply plus any garnishee or Sheriff's costs.

128Mr Single referred to seventeen penalty notices issued in the period 10 April 2008 to 15 May 2009 and gave evidence with respect to their status. In summary that evidence was that: A - Penalty Notice 4018554623 was issued to Avilion on 10 April 2008 in the sum of $2,200.00 for employing an unlicensed person for a security activity. This fine was paid on 6 June 2008. B - Penalty Notice 4012731398 was issued to Ms Stankovic on 12 September 2008 in the sum of $2,200.00 for permitting a provisional licence holder to carry on an unsupervised security activity. This fine was paid on 1 October 2008. C - Penalty Notice 4109089196 was issued to Ms Stankovic on 10 December 2008 in the sum of $1,100 for permitting a provisional licence holder to carry on an unsupervised security activity. This fine was paid on 27 January 2009. D - Penalty Notice 4021485977 was issued to Ms Stankovic on 5 February 2009 in the sum of $2,200.00 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 280144016) was issued on 24 April 2009. On 7 May 2009 a court election notice was received. This was rejected as out of time. On12 June 2009 Ms Stankovic was advised of this by letter. On 24 June 2009 Ms Stankovic driver's licence was suspended due to non-payment of the fine. A property seizure order issued on 9 September 2009 was not satisfied. On 5 December 2009 Ms Stankovic's driver's licence suspension was lifted after she paid the outstanding fine. An application for annulment of the enforcement order was received on 8 December 2009 E - Penalty Notice 402489111 was issued to Avilion on 25 January 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. No payment or Court election was received by the due date, and an enforcement order (EO 208322829) was issued on 4 May 2009. On 8 May 2009 a court election notice was received. This was rejected as out of time. On12 June 2009 Ms Stankovic was advised of this by letter. F - Penalty Notice 4023077026 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. G - Penalty Notice 4023077035 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. H - Penalty Notice 4022942139 was issued to UVP on 19 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283666465) was issued on 5 August 2009. I - Penalty Notice 4023077044 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. J - Penalty Notice 4020879244 was issued to Avilion on 24 February 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. A court election notice was received on 8 May 2009 from Ms Stankovic. On 22 May 2009 the SDRO wrote to her requesting that she supply a public document from Avilion demonstrating her authority to act on behalf of the company, and giving her 21 days to do so. No further correspondence was received. An enforcement order (EO 282270735) was issued on 29 June 2009. K - Penalty Notice 4020879253 was issued to Avilion on 24 February 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. A court election notice was received on 8 May 2009 from Ms Stankovic. On 22 May 2009 the SDRO wrote to her requesting that she supply a public document from Avilion demonstrating her authority to act on behalf of the company, and giving her 21 days to do so. No further correspondence was received. An enforcement order (EO 282270735) was issued on 29 June 2009. All fleet registrations of motor vehicles for Avilion have been cancelled as a result of this non-payment and Avilion has been prevented for registering new vehicles. L - Penalty Notice 4023077053 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. M - Penalty Notice 4023077062 was issued to Avilion on 22 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283729212) was issued on 10 August 2009. On 2 December 2009 an annulment application for the enforcement order was received. This was declined. N - Penalty Notice 4020879354 was issued to Avilion on 19 March 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. A court election notice was received on 7 May 2009 from Ms Stankovic. On 9 June 2009 the SDRO wrote to her requesting that she supply a public document from Avilion demonstrating her authority to act on behalf of the company, and giving her 21 days to do so. No further correspondence was received. An enforcement order (EO 283089529) was issued on 15 July 2009. O - Penalty Notice 4022502624 was issued to Avilion issued to Avilion on 17 April 2009 in the sum of $2,200 for permitting a provisional licence holder to carry on an unsupervised security activity. A court election notice was received on 7 May 2009 from Ms Stankovic. On 9 June 2009 the SDRO wrote to her requesting that she supply a public document from Avilion demonstrating her authority to act on behalf of the company, and giving her 21 days to do so. No further correspondence was received. An enforcement order (EO 283422249) was issued on 24 July 2009. On 4 December 2009 an annulment application for the enforcement order was received. This was declined P - Penalty Notice 4019795001 was issued to Ms Stankovic on 25 April 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283328910) was issued on 21 July 2009. This was paid in full on 3 December 2009. An application for annulment of the enforcement order was received on 8 December 2009 Q - P enalty Notice 4022502651 was issued to Avilion on 15 May 2009 in the sum of $2,200 for employing an unlicensed person for a security activity. No payment or Court election was received by the due date, and an enforcement order (EO 283616163) was issued on 4 August 2009. On 8 December 2009 an annulment application for the enforcement order was received. This was declined.

129It can be seen that twelve of the penalty notices were directed to Avilion, one was directed to UVP, and four to Ms Stankovic.

130Of those directed to Avilion one has been paid (A); in four a court election was filed, but rejected and enforcement orders issued (E, J, K and O); and, the remainder have been the subject of annulment applications that have been refused (F. G. I. L, M, N and Q). Avilion has exercised its right under s 50 of the Fines Act 1996 to appeal those refusals to the Local Court, and the enforcement orders are stayed.

131The penalty notice, H, which was issued in the name of UVP (a register business name of Avilion) remains unpaid and subject to an enforcement order.

132Of the four penalty notices in Ms Stankovic's name two (B and C) have been paid, with no further action taken. Two more, (D and P), were the subject of an enforcement order that resulted in her driver's licence being suspended. They have since been paid and are the subject of annulment applications.

133As I understood Mr Single's evidence, in order for Ms Stankovic to have her drivers' licence suspension lifted it was necessary for her to pay the outstanding amounts, despite the fact that she was seeking annulment of those enforcement orders.

134The Commissioner submitted that penalty notices A, B and C each relate to fines which have been paid and as a result are not the subject of annulment applications. As a result, the Commissioner submitted that Avilion is taken to have committed those offences under clause 16(4). The Commissioner noted that these three penalty notices were in the names of Avilion and Ms Stankovic. "These three penalty notices were not all issued in the same name (the first one is in the name Avilion Group Pty Ltd and the other two are in the name Aleksandra Stankovic). However, this does not matter, because although the Master licence is in the name "Avilion Group Pty Ltd", the licence nominates Aleksandra Stankovic as the "Licensee". Under s.10 of the SIA the person to whom a Master licence is issued is "the holder" of the licence. And, under s.3 of the SIA, "licensee" means "the holder of a licence", and "master licensee" means the holder of a master licence. In other words, the SIA treats the "holder" of a licence as the "licensee". The actions of Ms Stankovic as licensee (in paying the penalty notices and thus admitting the two offences issued in her name) is equivalent therefore to an admission by Avilion (the holder of the licence or Master licensee). In addition, however, there is s.44 of the SIA. That section provides that where a corporation contravenes a provision of the Act or regulations, each person who is a director... is taken to have contravened the same provision (unless the person satisfies the court of certain matters).

135Avilion did not take issue with those submissions. I accept them.

136For Avilion Mr Lowe submitted that this evidence did not establish that Avilion had been convicted of any offence(s) which lead to it being subject to mandatory disqualification under clause 16(4). Clause 16 relevantly provides: "(4) For the purposes of section 15 (4) of the Act, the Commissioner must refuse to grant an application for a licence if the applicant is convicted of an offence under the Act but only if a total of at least 3 such offences arising out of different sets of circumstances have been committed by the applicant during any period of 2 years. (5) For the purposes of subclause (4), a person is taken to have committed an offence at the time that the person: (a) is convicted of the offence by a court, or (b) pays the penalty required by a penalty notice served on the person under section 45A of the Act in respect of the alleged offence (or if the person does not pay the penalty and does not elect to have the matter dealt with by a court, at the time that enforcement action is taken against the person under Division 3 or 4 of Part 4 of the Fines Act 1996 ).

137This interpretation of this provision causes some difficulty. There is no evidence that Avilion has ever been convicted of an offence against the SIA.

138Clause 16(5) makes provision for the circumstances in which offences under the Act are "taken to be committed;" i.e. on the payment of payment of a fine, or non-payment of the find combined with a failure to elect to have the matter dealt with by a court. It is critical, that sub-clause (5) is addressed to satisfying the requirement of sub-clause (4) that at least 3 offences under the Act have been committed in a two year period. It does not, on its face, operate to satisfy the requirement of sub-clause (4) that "the applicant is convicted of an offence under the Act."

139Section 45 of the SIA provides that proceedings for offences against it may be dealt with summarily in the Local Court. Such proceedings, if successful, will result in a conviction.

140Section 45, on the other hand, makes provisions for the issue of penalty notices. Relevantly it provides: (4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence. (5) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. (6) The regulations may: (a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and (b) prescribe the amount of penalty payable for the offence if dealt with under this section, and (c) prescribe different amounts of penalties for different offences or classes of offences.

141Mr Lowe made lengthy and extensive submission in which he argued that sub-clauses 16(4) and (5) were invalid and inconsistent with the Act in so far as they purport to make the failure of a penalty notice a "conviction'. The Commissioner made written submission in reply.

142In my view it is not necessary to determine those issues. This is so as the SIR does not purport to make the failure to pay a penalty notice a conviction. Clause 16(4) provides for a mandatory refusal if the applicant is convicted of an offence under the Act but only if during any two year period the applicant has committed a total of at least 3 such offences arising out of different sets of circumstances. The clause requires a conviction and three offences against the Act, arising from separate circumstances, before it has effect. Sub-clause (5) makes provision for convictions and paid or uncontested penalty notices to be "taken" as offences so committed. It does not provide that paid or uncontested penalty notices be taken as a convictions, only as offences committed.

143For clause 16(4) to operate there must first be a conviction. In Avilion's case there is no conviction. Clause 16(4) therefore does not operate as a ground to found a mandatory disqualification.

The Penalty Notices - Discretionary Revocation? 144Next the Commissioner argued that the numerous penalty notice offences served on Avilion and Ms Stankovic justified a discretionary decision to revoke Avilion licence under s 26 (b)(ii) on the ground that Avilion had contravened any provision of the Act or the regulations.

145Of the penalty notices, ten (D, F, G, H, I, L, M, N, P and Q) relate to offences of employing an unlicensed security guard in the first 6 months of 2009. I heard considerable evidence from Ms Byrnes, Mr Fullilove and Ms Stankovic in relation to changes in the industry during this time, following the introduction of new competency and accreditation requirements for the various categories of guards. Guards without the necessary training and accreditation had their licences revoked, either wholly or by category. Ms Byrnes said that approximately 10,000 licences were affected. In February 2009 Police began licence checks to enforce the changes. Ms Stankovic said that, at the time, she had checked the licences of employees on the Security Industry Web-site, but that not all of them had been up to date. She produced print outs demonstrating that she had done so. In cross-examination Ms Byrnes acknowledged that processing delays at the time had meant that the Register was not up to date. In those circumstances, I am not persuaded that issue of these penalty notices should be used as a basis for a discretionary revocation of Avilion's master licence.

146Six of the penalty notices relate to provisional licence holders being unsupervised. Line of sight supervision is required. A consideration of the limited evidence relating to those circumstances, principally the penalty notices themselves, shows that three of these notices are based on the supervisor not being in light of sight, while the other three are based on either no supervision or unqualified supervision. When considered in the light of the size of Avilion's operations and the number of guards in its employs, I do not consider that these justify a discretionary refusal to cancel Avilion's licence. In reaching that conclusion I do not seek to minimise the requirements of supervision, but acknowledge the onerous nature of those requirements and the difficulty of management ensuring strict compliance by guards on site in an operation of Avilion' size.

Conclusion 147 I conclude the Tribunal should confirm the Commissioner's decision to cancel Avilion master licence. As this will have a significant effect on Avilion's employees and clients I think it appropriate that the confirmation not have effect immediately. The Commissioner suggested that five days notice should be given, so that people affected can make alternate arrangements. I think this too short. Pursuant to s 66 I think it appropriate that the Tribunal's decision to confirm the revocation have effect 14 days after this decision.

148In order to ensure compliance with s 29(3) of the SIA I will also make orders under s 75(2) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure to Avilion or its representatives, and the publication of, paragraphs 109 to 118 inclusive and paragraph 120 of these reasons.

Order 149With effect 14 days after this decision the Tribunal confirms the Commissioner's decision to revoke Avilion's master licence.

150The Tribunal prohibits the disclosure to Avilion or its representatives of paragraphs 109 to 118 inclusive and paragraph 120 of these reasons.

151The Tribunal prohibits the publication of paragraphs 109 to 118 inclusive and paragraph 120 of these reasons.

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.