Azzi v NSW Police Force

NCAT Occupational|2016-01-18

Reasons for decision

This matter is an application by Mr Michael Azzi for the Tribunal to review a decision made on internal review by the Respondent on 18th of September 2015. The decision was to refuse him a class 1EF2ABD security licence under the provisions of the Security Industry Act 1997 (SIA). Mr Azzi's application was refused by the Commissioner on the basis that he did not hold prescribed competencies and experience approved by the Commissioner. Further he had not provided information and particulars as required by the Commissioner in respect of the application and the Commissioner determined that the information provided by him in his application was false or misleading in a material particular.
Mr Azzi made his application on 23rd of March 2015 to the security licensing and enforcement directorate (SLED) to add subclasses 1EF2ABD to his existing class 1AC security licence which expired on 20th of December 2015.
The Tribunal notes that category 1E relates to monitoring centre operator; 1F relates to armed guard; 2A relates to security consultant; 2B relates to security seller and 2D relates to security trainer. Mr Azzi's previous licence 1A relates to unarmed guard and 1C to crowd controller.
On 25 March 2015 the SLED wrote to Mr Azzi requesting further documents and information from him to be provided by 15 April 2015.
Mr Azzi provided the SLED with correspondence which included a resume on the 9 July 2015. The Respondent alleges that there was information in the documents provided on 9 July 2015 by Mr Azzi which contradicted previous information held on the government licensing system in relation to Mr Azzi.
On 25 August 2015 the Respondent notified Mr Azzi that he was refused a grant of licence 1EF2ABD for a number of reasons set out in the SIA and Regulations.

The Respondent was not satisfied that he held the prescribed competencies and experience in respect of the class of licence sought.

Previous Application of 23rd of August 2013

The Tribunal notes that on 23rd of August 2013 Mr Azzi had made an application under the Security Industry Act 1997 to vary his existing class 1AC licence which was to expire on 20 December 2015. He wished to add licence subclasses 2A and 2D security consultant and security trainer. This application was ultimately refused by the Respondent. The resume provided by Mr Azzi in support of the August 2013 application is specifically relevant to the outcome of the March 2015 application currently before the Tribunal.
The Respondent requested by letter dated 27th of September 2013 that Mr Azzi provide documentary evidence demonstrating that he possessed a minimum of five years relevant experience in the security industry in respect of the 2A security consultant licence application and documentary evidence demonstrating he possessed a minimum three years relevant experience in the security industry in relation to the class 2D security trainer application. Mr Azzi responded on 16th of October 2013 attaching a resume. SLED then wrote to Mr Azzi on 22 October 2013 stating that his resume and documentary evidence did not demonstrate the competencies and experience required for the 2A/2D licence subclasses.
An interview was conducted by SLED representatives with Mr Azzi in January 2014. The record of interview with Mr Azzi in January 2014 notes that in respect of a number of entries on his resume that he had incorrectly described the roles that he had occupied with employers and incorrectly written the dates during which he had worked for those employers.
During the January 2014 interview Mr Azzi stated that he had submitted a second resume in order to provide further information as requested by SLED. He had used pieces of other people's resumes in order to provide the resume. He may have used the titles of the roles that they had occupied. He had also been assisted to complete the resume both by friends and his wife. This may have accounted for some of the inaccuracies. Mr Azzi told the Respondent in the interview that while he may not have had the position title set out in the resume, he effectively was doing the duties attributable to that kind of senior position. He also wanted to provide more details rather than be brief, as he had been in his previous resume.
When Mr Azzi applied in March 2015 for his 2A and 2D licences he submitted a further resume which was similar to that submitted in August 2013 which had been subject of his interview with SLED officers. The Respondent alleges that both resumes were false in that Mr Azzi misstated in each of them the periods of time during which he had worked for employers and the roles in which he had worked for them.

Documents before the Tribunal

The Tribunal had before it :

Mr Azzi's application for Tribunal review dated 30th of September 2015;
a letter dated 1 December 2015 from Mr Azzi;
the Respondent's section 58 Documents which contained material from the August 2013 application;
a statement from Cameron Smith Director of SLED dated 24th of December 2015;
a statement from David Young 22 December 2015;
the Respondent's written outline of submissions dated 4 January 2016.

The Hearing

The hearing was held on 18 January 2016. The Tribunal has jurisdiction to review the decision pursuant to section 29 of the Security Industry Act 1997 and section 30 of the Civil and Administrative Tribunal Act 2013 (NSW). The role of the Tribunal is to make the correct and preferable decision on the material before it.
The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.
The standard of proof that applies in these proceedings is set out in section 140 of the Evidence Act 1995 as on the balance of probabilities. 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

The Respondent's reasons on internal review for its decision to refuse to grant the class 2AD licence

The Respondent's statement of reasons on internal review dated 18 September 2015 stated that the Respondent had refused Mr Azzi's application for a class 1EF2ABD security licence under the provisions of the Security Industry Act 1997. However the reasons for this refusal referred only to the refusal of the class 2AD licence. The Tribunal notes the statement of reasons did not address the refusal of the 1EF (monitoring centre operator and armed guard) or 2B (security seller) licences. The Respondent's written outline of submissions provided to the hearing also referred only to the reasons for its refusal to grant the class 2AD.
The reasons submitted in relation to the refusal of the class 2AD licence were as follows. 1. The applicant did not satisfy the Commissioner that he had competencies and experience approved by the Commissioner for the 2AD licence. Section 15(1) (c) of the SIA provides for mandatory refusal in these circumstances. 2. The application submitted by the applicant on 23rd of March 2015 was not accompanied by the information and particulars required by the Commissioner as required by Section 14(2) (b) of the SIA. 3. The applicant did not provide such other information and particulars requested by the Commissioner on 25 March 2015 in respect of the application. Clause 13 (5) of the Regulation provides for discretionary refusal of the application in these circumstances - failure to provide requested information ground; 4. The applicant supplied information with his 23rd of March 2015 application, and in connection with that application, that was to his knowledge false or misleading in a material particular. Section 15(2C) of the SIA provides for mandatory refusal in these circumstances - the misleading information ground; and 5. In all the circumstances it is not in the public interest that the applicant be granted the class 2AD licence: section 15(3) of the SIA provides for discretionary refusal in these circumstances - the public interest ground.

Statement of Cameron Smith 24 December 2015

The Respondent had provided a statement from Cameron Smith Director security licensing and enforcement directorate (SLED) dated 24th of December 2015.
Mr Smith's statement commented on the qualification and experience requirements for any applicant for class 2A and class 2D licenses. It stated that 2A and 2D were the only classes of licence for which there was an experience requirement. The statement indicated that the requirements for the issue of class 2A licenses would change from 1 January 2016. There would also be some impact on class 2D licenses.

Statement of David Young senior compliance and enforcement officer SLED dated 22nd of December 2015

Mr Young's statement sets out enquiries he made concerning an application submitted by Mr Azzi for a class 2 security licence in 2013. The enquiries indicated that neither Mr Azzi nor his company Merc Security Pty Limited held a New South Wales master licence before 4 August 2013.
The statement sets out the enquiries made by Mr Young about Mr Azzi's previous employment in the security industry and the conduct of an interview with Mr Azzi on 22 January 2014 together with Mr Swan in which they put to Mr Azzi questions in relation to irregularities in his class 2 licence application made on 23 August 2013. At that time Mr Azzi held a class 1AC licence for an unarmed guard relating to crowd control. Mr Azzi had acquired a security master licence in 2013 for his company Merc Security.

Evidence of the Applicant, Mr Azzi

Mr Azzi did not provide a written statement of evidence to the Tribunal prior to the hearing. He did provide a written submission to the Tribunal dated 1 December 2015. Mr Azzi stated that it seemed that the "misunderstanding" had come from his resume and work history as submitted to SLED. He had been self-employed for quite a while now and had not written a formal resume since he had been in high school. He had a varied background in work, having owned multiple cafes and restaurants, a travel agency, a convenience store, a tobacconist and his own security company. At the same time he was studying and working within the security industry and working for multiple companies. He had completed certificates and a diploma in business management and marketing as well as other hospitality certificates, work health and safety etc. He stated that he was currently enrolled at Sydney University completing his law degree through the Legal Practitioners Admission Board. Therefore his integrity was very important to him as well as being important in his role as a Justice of the Peace in New South Wales.
As to what was stated in the resume, he had only intended to show the years working for different security firms and outlining the venues of where his services were used. The job titles and their descriptions were from the template that he used in putting his resume together. This would explain where the misunderstanding of him misleading SLED as to his work history had arisen. He had also obtained his Commercial Agents and Private Inquiry Agents Act 2004 (CAPI) Iicence as well as renewing his firearms licence. Gaining his 2AD qualification is vital in the growth of his business.

Mr Azzi's sworn evidence at the hearing

Mr Azzi gave sworn evidence at the hearing and was cross examined by the Respondent. He told the Tribunal that in the security industry there was a fine line between the practical realities and the theoretical requirements of the security industry. He told the Tribunal that his role in security had always been a back-end job. He took a break from his role in security between April 2004 and November 2010. He had applied for the 2A/ 2D licence in March 2015 as he had applied to be recognised as a Registered Training Organisation. He held his integrity at the uppermost.
He again stated that his resume provided in August 2013 had been based on that of a friend, as he had not written a resume previously. His wife Joyce had written some of it for him as he was busy. He attended the SLED meeting in January 2014 and read through the resume he had provided then. In relation to the discrepancies pointed out by the Respondent, he said the actual job titles in the resume weren't correct - but they described the work he had been doing. The dates that he had put in were rough - he hadn't really thought about it. He had had a difference of opinion with Mr Levanios his employer at Neutral Zone. He had got his dates mixed up. He said that Danny Farah from Sun Security had provided him with the reference stating the dates he had worked there. Mr Azzi said he hadn't known that Danny Farah had taken his name from the Sun Security business when the reference was provided.
He referred to the incident at the Randwick Race course on 11 April 2015. He said he had seen a small woman police officer escorting a large man out of the premises. He knew that this man had about 30 associates there with him. He was concerned that there would be a brawl caused by the man's associates. There was only himself and two other of his security workers with him and two police officers. He was concerned about public safety if there were a brawl. He approached the police woman in a respectful manner and asked if they would like assistance from him to escort the man from the premises. He considered that the police officer was escalating the incident. He would rather walk someone out safely than cause a brawl. He had acted in the interest of public safety and his own self-preservation. He said that he was still working at the Australian Turf club and had retained his job there despite the disagreement with police in relation to the matter.
He noted he had also completed a firearms course and felt that he should be entitled to a class 1EF licence. He considers himself a business entrepreneur - and when he sees an opportunity he likes to grab it. He noted that he had registered the Merc Security company name with ASIC sometime ago but had not applied for a security licence until sometime later. He had inaccurately written down the date of obtaining ASIC registration rather than the date of obtaining of the master licence when he referred to Merc Security in his resume. He thought that the refusal of his licence applications had been a result of the little misunderstanding. He wishes to work with SLED and with the police and does so presently in providing security at boxing tournaments.
Under cross-examination Mr Azzi agreed that he had obtained his New South Wales security licence in 2010 and that he had only worked as an employee guard when he did not have a master licence. He had not obtained the master licence until August 2013. He acknowledged that the application forms in August 2013 required him at the time of submission to provide evidence of his work with supporting documents from employers. He acknowledged the importance of providing accurate information. He was aware that under the SIA a ground for refusal of a licence application was the provision of false or misleading information. He had known this when he had submitted his applications in 2013 and later in 2015. He agreed that he had not provided a resume or documentary evidence with his application of 23 March 2015. He had provided information to SLED in July 2015 in response to the letter from SLED dated 25th of March 2015 requesting further information. He had provided a curriculum vitae. He said that he hadn't provided any additional documents with the 2015 application because he thought that they would have the documents from his previous application in 2013. He was uncertain about whether the resume he had provided in 2013 was the same as the one he provided in 2015. He said that his wife had prepared his resumes. He had brought this application to clarify the mistakes. He said that he had skimmed the application rather than reading it prior to sending it off. He agreed that the information he had provided about his work with Neutral Zone in both resumes was false as to the time span that he worked there and also as to his role. He had described himself in the 2015 resume as a "senior security officer" and that he had worked there between 1998 in 2004. He agreed that he had told SLED when he had attended an interview in January 2014 that he was wrong about the dates for Neutral Zone and his description of himself as a manager there. He had in fact finished with Neutral Zone in 2001 - not 2004. He agreed that in the second resume in 2015 he changed the position description in relation to Neutral Zone - but not the dates he worked there. They were still incorrect.
The Respondent also put other discrepancies to Mr Azzi - such as the reference provided by Mr Danny Farah dated 28th October 2013 when Mr Farah was no longer Managing Director of Sun Security. Mr Azzi said he was not responsible for this.
Mr Azzi denied that he had a problem with honesty. He said it was not a problem with honesty but a problem with oversight. He had never worked in security without a licence.
He did not understand why he had been refused his 1F and 1E licences. He holds a firearms licence.

Mr Azzi's submissions

Mr Azzi said that the sole problem with the whole application was the resume. He had done it twice without looking at it. He is always concerned about public safety and he had acted - particularly in the Randwick racecourse incident - in order to ensure public safety.

Respondent's oral submissions

The Respondent referred to the purposes of the SIA. The objects were to ensure a high standard in the industry. The reforms have been made to ensure a professional and high-quality industry. The application before the Tribunal was not simply the result of a mistake. Mr Azzi had used the same excuse in 2013 blaming his wife. His CV was wrong. It was unbelievable that Mr Azzi would not have noticed the glaring inaccuracies in times and roles in both CVs in 2013 and 2015. For instance he described himself as a CEO of an organisation. Even if the 2013 resume had been the result of mistakes, he had been on notice after being interviewed by SLED in January 2014 that he needed to be accurate in his submission of documents. His conduct in not ensuring that the documents submitted were true and correct is not conduct that would give the community confidence that he is a suitable professional. There is evidence that Mr Azzi had received cash for his work rather than paying tax. He had referred to this in his interview with Mr Young. There was a legitimate concern raised that he may have been performing work while he was unlicensed. The incident at Randwick racecourse occurred when he knew that the female police officer was legitimately exercising powers. He had to be told twice to step away. Those who work in the security industry are taught not to intervene in policing matters. On the ground of public interest Mr Azzi should not be granted licences.
There are also four other grounds. There was uncontested evidence in relation to the 2A and 2D applications that he had not provided the information required by the application form with his application. Further he had not provided information as requested by the Commissioner in the letter of 25 March 2015.
He had provided incorrect information in support of his March 2015 application.
The Respondent submitted at the hearing that it relied on the public interest ground in refusing Mr Azzi both the 1EF and the 2B licences.

The Respondent's written outline of submissions

The Tribunal summarises the Respondent's written outline of submissions as follows.
The Respondent's decision to refuse to grant the class 2AD licence is based on the following grounds:

The Applicant did not satisfy the Commissioner that he had the competencies and experience approved by the Commissioner for this class of licence: see s15(1)(c) of the Security Industry Act 1997 (Act) (competencies and experience ground);
The application submitted by the Applicant on 23 March 2015, was not accompanied by the information and particulars required by the Commissioner under s15(1 )(c) of the Act: see s14(2)(b) of the Act and clause 13(1 )(e) of the Security Industry Regulation 2007 (Regulation) (failure to provide information and particulars ground);
The Applicant did not provide such other information and particulars that were requested by the Commissioner on 25 March 2015 in respect of the application: clause 13(5) of the Regulation (failure to provide requested information ground);
The Applicant supplied information with his 23 March 2015 application, and in connection with that application, that was (to his knowledge) false or misleading in a material particular: s15(2C) of the Act (false and misleading information ground); and
In all the circumstances, it is not in the public interest that the Applicant be granted the class 2AD licence: s15 (3) of the Act (public interest ground).

The Respondent referred to the April 2015 incident at Randwick race track when Mr Azzi was alleged to have intervened when police were moving on a member of the public from the race track. This was evidence that it was not in the public interest for Mr Azzi to be granted the 2AD licences.

Relevant legislation Security Industry Act 1997 and Security Industry Regulation 2007

The Tribunal summarises the applicable law as follows.
Section 14(2) (b) of the Act prescribes that an application must be in the approved form and be accompanied by such information and particulars as may be prescribed by the regulations.
Clause 13(5) of the Security Industry Regulation 2007 (the Regulation) provides that the Commissioner may refuse to grant an application for a licence if the applicant does not provide such other information and particulars as the Commissioner may require in respect of the application.
Clause 13(1)(e) of the Regulation indicates that for the purposes of section 14(2)(b) of the Act, an application for a class 1 or class 2 licence must include evidence of the applicant's competencies and experience referred to in section 15(1)(c) of the SIA.
Section 15(1) (c) of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant has the competencies and experience approved by the Commissioner.
Section 15(2C) of the SIA provides that the Commissioner must also refuse to grant an application for a licence if the applicant has supplied information that is (to the applicant's knowledge) false or misleading in a material particular in, or in connection with, the application.
Section 15 (3) sets out public interest grounds for discretionary refusal of an application. It provides that 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.

Findings of Fact and Law

Mr Azzi acknowledges that he did not provide the information required by the Commissioner in his March 2015 application. Mr Azzi said he thought that the Commissioner would refer to his previously provided information and documents. The Tribunal finds that Mr Azzi's application of March 2015 was not accompanied by the information required by the Commissioner in relation to his application for a 2A and 2D licence.
The Tribunal finds that Mr Azzi did not provide information or particulars requested by the Commissioner on 25 March 2015. Mr Azzi did eventually provide some further information in July 2015. This is the failure to provide requested information ground. The Commissioner could have refused both the class 1 licences sought - 1EF and the class 2 licences sought - 2ABD - on this ground under clause 13 (5) of the SI Regulation. The Tribunal would refuse all of these licences, 1EF2ABD, on these grounds. Mr Azzi has had ample opportunity to provide correct information and he has not done so.
The Tribunal finds that Mr Azzi did not satisfy the Commissioner that he had the competencies and experience approved by the Commissioner for 2AD licences with his application of 23 March 2015. Nor has Mr Azzi done so since. Mr Azzi has not provided an updated resume accurately setting out his experience. Section 15(1) (c) of the SIA provides that the Commissioner must refuse a grant of licence in these circumstances. Accordingly the Tribunal would refuse the grant of the 2AD licences sought by Mr Azzi.
The Tribunal finds that Mr Azzi supplied information with 23 March 2015 application which was to his knowledge, misleading in a material particular - the false and misleading information ground. The Tribunal is satisfied that Mr Azzi knew that the information that he provided in his resume accompanying the March 2015 application was false or misleading. He had already been interviewed by the SLED officers in January 2014 in relation to the inaccuracies and inconsistencies in his resume. It is not a matter for the Tribunal to establish the true account of Mr Azzi's experience. Having heard Mr Azzi's evidence, the Tribunal cannot now be sure of the true picture of Mr Azzi's work experience.
The Tribunal finds that Mr Azzi knew that the information in the resume he provided with his application in March 2015 was incorrect. He told the Tribunal that he saw his application to NCAT as an opportunity to correct these matters. However it was open to Mr Azzi at a much sooner time, without bringing an application to NCAT, to correct the record as to the reality of his experience. This included the kinds of roles he had occupied and the periods of time for which he had occupied them. Further Mr Azzi did not in his evidence before the Tribunal attempt to clarify the record and continued to refer to the provision of false information as "a misunderstanding". The Tribunal needs only to be satisfied on the standard set out under the Evidence Act 1995 that the information was false or misleading and that Mr Azzi knew it to be so. This is apparent from Mr Azzi's evidence before the Tribunal. This establishes the false and misleading information ground. The Tribunal must refuse the applications in both classes 1 and 2 in these circumstances under section 15(2C) of the SIA.

Public Interest ground

Section 15(3) of the SIA provides that the Commissioner may refuse the grant of a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. The Respondent relied in its internal review reasons on the public interest ground as a reason for refusing the 2AD licences.
At the hearing the Respondent relied on the public interest ground as the reason for refusing the 1EF and 2B licences.
The SIA does not define the term public interest. The Tribunal looks to the objects of the SIA to interpret the meaning of "public interest" when considering the granting and refusal of security licences.
In Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114, the Tribunal observed, at [11]: "The Security Industry Act 1997 established a scheme for licensing people to carry on security activities. Within that Act there are several provisions that allow the Commissioner to revoke a licence. The Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard."
In IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 23 Judicial Member Montgomery commented in respect of the term, 'public interest': "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals."' See also Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
Elsewhere public interest has been referred to as: "an inherently broad concept, given the ability of the decision-maker to have regard to a wide range of factors in choosing whether to exercise the discretion adversely towards an individual (Toleafoa v Commissioner of Police [1999] NSWADT 9."
In considering the issue of public interest, the Tribunal has taken into account the inconsistent details of Mr Azzi's applications for licences under the SIA, his interview with SLED officers in January 2014 which put him on notice of the need for accuracy in the information he provided and his unsatisfactory evidence before and his submissions to the Tribunal. In the light of these factors the Tribunal considers it would be very difficult to convince the public that Mr Azzi presently demonstrates that he can provide and maintain to a high standard "competence, integrity and accountability" as referred to in Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114, at [11.:
In the Tribunal's opinion the need for Mr Azzi to be granted a security licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 provides: "The purpose of the reference to '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 Commissioner's consideration. The effect of the reference is to amplify the ´scope and purpose' of the legislation."
In these circumstances the Tribunal considers it is not in the public interest for Mr Azzi to be provided with the licences he is seeking on the basis of the information that he has provided to the Commissioner and the Tribunal. The licensing system relies upon applicants to provide true and correct information. The Tribunal cannot be certain that Mr Azzi has done so or that he has understood that the responsibility to do so is his.
The Tribunal finds that it is not, at this point in time, in the public interest for the Applicant to hold security industry licences 1EF2ABD.
The Tribunal affirms the decision of the Commissioner of Police, New South Wales Police to refuse the Applicant's security industry licences 1EF2ABD. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2016

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (1)

Cases Cited (2)

Cited By (1)