Commissioner of Police v Fakhouri

NCAT Appeal Panel|2021-04-16

Background

The NSW Commissioner of Police appeals from a decision made by the Tribunal in January 2021 to grant Mr Mohamed Fakhouri a "class 1ACE security licence" under the Security Industry Act 1997 (NSW): Fakhouri v Commissioner of Police [2021] NSWCATOD 1 (the "2021 Decision"). The Tribunal granted Mr Fakhouri that licence subject to the following condition: "If the licence holder accumulates 5 or more driver demerit points before 31 December 2021, the Commissioner may summarily revoke his security licence."
On 17 February 2021, a differently constituted Appeal Panel stayed the operation of the 2021 Decision.
Mr Fakhouri was first issued a security licence by the Commissioner in November 2015. In January 2019, the Commissioner revoked that licence (the "Revocation Decision"). In June 2019, following an application by Mr Fakhouri for "administrative review" the Tribunal (constituted by Senior Member Walker) affirmed the Revocation Decision: Fakhouri v Commissioner of Police, NSW Police Force [2019] NSWCATAD 117 (the "2019 Decision"). Senior Member Walker also made the 2021 Decision.
The Commissioner relies on eight grounds of appeal, which assert a wide range of purported errors, including that the Tribunal failed to afford him procedural fairness and made a decision which was irrational, not based on logically probative evidence and beyond power.
Mr Fakhouri, who was self-represented, submits that the 2021 Decision was the correct decision and urges the Appeal Panel to dismiss the appeal.
For the reasons that follow we have allowed the appeal in part, set aside the 2021 Decision and remitted it for reconsideration by the Tribunal.

Statutory framework: NCAT review of decision made by Chief Commissioner not to grant a security licence

The Security Industry Act makes it an offence for a person to carry on a "security activity" without a licence issued under that Act: s 7(2). Division 2 of Part 2 of that Act provides for three classes of licence - a master licence, a class 1 licence and a class 2 licence. These are further divided into subclasses, which confer authority to provide different types of security activities. Mr Fakhouri applied for (and held until 22 January 2019): 1. a class 1A licence, which authorises the holder to patrol, protect or guard any property while unarmed; 2. a class 1C licence which authorises the holder to act as a crowd controller or to act in a similar capacity; and 3. a class 1E licence which authorises the holder to patrol, protect or guard any property while carrying on monitoring centre operations.
A person may apply to the Commissioner for a licence under the Security Industry Act: s 14. The Commissioner may refuse to grant an application in certain circumstances and must do so in others: 15 Restrictions on granting licence - general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant, or (b) is of or above the age of 18, or (c) has the competencies and experience approved by the Commissioner, or (d) has undertaken and completed the training, assessment and instruction that is approved for the class of licence sought by the applicant, or (e) is competent to carry on the security activity to which the proposed licence relates, or (f) is an Australian citizen or a permanent Australian resident, or holds a visa that entitles the applicant to work in Australia (other than a student visa or a working holiday visa). … (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. …
In addition to those imposed by the Security Industry Act or prescribed by the Security Industry Regulation 2016 (NSW), a licence granted under that Act is subject "to such conditions as may be imposed by the Commissioner (whether at the time the licence is granted or renewed or at any later time)": s 21(3).
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 the Security Industry Act to be refused: s 26(1A). The Commissioner may revoke a licence if the Commissioner "considers that it would be contrary to the public interest for the person to whom it is granted to continue to hold it": s 26(1)(d) of the Security Industry Act and cl 25(1) of the Security Industry Regulation.
A person aggrieved by a decision of the Commissioner to revoke or to refuse to grant a licence under the Security Industry Act may apply for administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW): s 29(1) of the Security Industry Act.
In determining an application made under s 29(1) of the Security Industry Act, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it: s 63(1) of the Administrative Decisions Review Act. The Tribunal may affirm or vary the reviewable decision, set aside the reviewable decision and make another decision in substitution for that decision, or set aside the reviewable decision and remit the matter for reconsideration by the Commissioner: s 63(3) of the Administrative Decisions Review Act.

The Revocation Decision

On 22 January 2019, the Commissioner revoked Mr Fakhouri's class 1ACE security licence on the ground that he was not satisfied that Mr Fakhouri was a fit and proper person to hold that licence and, in addition, that it would not be in the public interest for Mr Fakhouri to hold that licence. The trigger for that decision was Mr Fakhouri's conviction by the NSW Local Court on 17 January 2019 for several driving related offences: 1. "Police pursuit - not stop - drive dangerously - 1st offence". The Local Court placed Mr Fakhouri on an intensive correction order for 14 months, required him to perform 300 hours of community service and disqualified him from driving for 18 months; 2. "Drive recklessly/furiously or speed/manner dangerous - 1st offence". The Local Court placed Mr Fakhouri on an "intensive correction order" for six months and disqualified him from driving for 18 months; 3. "Drive in bus lane". The Local Court fined Mr Fakhouri $450.
On internal review the Revocation Decision was affirmed.

Tribunal affirms the Revocation Decision

In the 2019 Decision, the Tribunal affirmed the Revocation Decision.
In that decision, the Tribunal detailed Mr Fakhouri's history of driving offences included several committed before and after those detailed above. At [27], the Tribunal referred to a Police Facts Sheet, which recorded that on 16 January 2018 Mr Fakhouri was directed by Police to pull over to undergo a random breath test; the attending police officers observed Mr Fakhouri climb over and swap places with the front seat passenger. When asked to produce his driver's licence, Mr Fakhouri initially refused and claimed not to be the driver. Police noted that Mr Fakhouri was not cooperative. At the time of that incident Mr Fakhouri's licence was suspended. At [28] the Tribunal noted that Mr Fakhouri: denied failing to be cooperative with Police; claimed that the reason he had driven while his licence was suspended was because his cousins had asked for a lift, their father had died two months earlier and he did not want to "give them more grief"; and admitted that he had attempted to mislead Police. Mr Fakhouri stated that he intended to enter a guilty plea for the offence of driving while suspended, which was to come before the Local Court the following week: at [31].
At [78], the Tribunal noted that Mr Fakhouri has expressed remorse and contrition and is adamant that he has seen the folly of his ways and is determined to become a responsible and law-abiding citizen. In addition, the Tribunal noted that Mr Fakhouri and his referees believe that he should have a second chance.
However, the Tribunal concluded that Mr Fakhouri was not a fit and proper person to hold a licence under the Security Industry Act, reasoning: [79] There is no doubt that people can change. The incidence of law-breaking by male offenders falls off sharply after the age of 25, and the applicant is now 22. In the applicant's case, however, his bad record is still relatively recent, his worst offences having been committed in 2018. Indeed, he was charged only three months ago with driving while disqualified, an offence which he admits and to which he intends to plead guilty at his forthcoming hearing. The criminal justice system has already given him many second and subsequent chances, which he has chosen to waste. He may well have undergone a major recent change of heart and direction, but he still needs to prove it. [80] My conclusion is therefore that the applicant's repeatedly demonstrated disregard for the law and for the safety of others, coupled with his willingness to attempt deceit in order to escape the consequences of his wrongdoing, show that he has been a person from whom the public needed protection. He has lacked the qualities of character needed to make him a fit and proper person to hold the licences in question. In particular, he does not satisfy the higher standard required of persons licensed in the security industry, given its special role in maintaining public order, in protecting property and in ensuring public safety at community venues.
The Tribunal went on at [81]-[92] to consider whether it was not in the public interest for Mr Fakhouri to hold a licence under the Security Industry Act. At [87] the Tribunal stated that Mr Fakhouri's record of offences reveal "a pattern of habitual disregard of the law, including several instances of driving while suspended or disqualified". The Tribunal concluded that it cannot be in the public interest to have a person carrying out security guard duties who has been found not to be a fit and proper to hold a security industry licence: at [87].

The Commissioner refuses to grant Mr Fakhouri a security industry licence

On 18 September 2020, the Commissioner refused to grant Mr Fakhouri's application for a class 1ACE security licence. After detailing the history to the Tribunal's decision to affirm the Revocation Decision, the Commissioner's delegate concluded that "insufficient time had passed" since the Tribunal made that decision (14 June 2019) and that he "continue[d] to hold the concerns and views that led to that decision". On internal review that decision was affirmed. As noted above in the 2021 Decision the Tribunal set aside the decision to refuse to grant a licence to Mr Fakhouri, and, in substitution for that decision, granted Mr Fakhouri a licence with conditions.

Grounds of appeal

The Commissioner has a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").
The Commissioner relies on eight grounds of appeal, namely that the Tribunal: 1. applied the wrong test when considering the duty in s 15(1) of the Security Industry Act and the discretion in s 15(3) of that Act; 2. imposed a condition on the applicant's licence that went beyond the statutory power granted by the Security Industry Act; 3. denied the Commissioner procedural fairness, in that it failed to provide him with an opportunity to be heard in relation to: the proposed licence condition; the character references tendered in the 2019 proceedings; and the proposition that "it is a well-known tenet of criminology that the incidence of law-breaking by male offenders falls off sharply after the age of 25"; 4. reached a decision that was: made without evidence; not based on logically probative material; irrational or illogical; and/or not reasonably open on the whole of the evidence; 5. failed to give due consideration to: 1. the applicant's fitness and propriety, including his honesty and ability to carry out the duties of a security guard, particularly with respect to interactions with law enforcement; 2. the public interest, including community expectations of licence-holders; 1. failed to deal with the Commissioner's arguments, seriously advanced, that the applicant had failed to "satisfy the legal obligation for clear evidence" of rehabilitation, after having his licence cancelled on fitness and propriety and public interest grounds; 2. if the Tribunal in fact gave consideration to and dealt with those matters, its reasons were inadequate; 3. failed to properly weigh the evidence going to fitness and propriety (s 15(1)) and the public interest (s 15(3)).
The Commissioner asserts that Grounds 1 to 7 give rise to a question of law.

Ground 4: the Commissioner was denied procedural fairness

The Commissioner contends that the Tribunal failed to afford him procedural fairness by failing to provide him with an opportunity to be heard in relation to: 1. the character references tendered by Mr Fakhouri in the 2019 proceedings, either at all or in isolation from the remainder of the evidence on the Tribunal's file in the 2019 proceedings; 2. the Tribunal's decision to impose a condition, in the terms as made; or 3. the Tribunal's decision to take into account the so-called "well-known tenet of criminology that the incidence of law-breaking by male offenders falls off sharply after the age of 25, and the applicant is now 24": 2021 Decision at [83].

A. The 2019 character references

The Commissioner asserts that the 2021 Decision contains detailed extracts taken from the character references tendered by Mr Fakhouri in the 2019 proceedings, which were not contained in the 2019 Decision. He contends that the logical inference to be drawn from the inclusion of that material in the 2021 Decision is that the Tribunal reviewed the material contained in the file of the 2019 proceedings, specifically the character references. Prepared by Mr Fakhouri's sister, Ms Mariam Fakhouri, and friends and former work colleagues of Mr Fakhouri, Messrs Mahmoud Bousaleh and Daniel De Sousa, those references were not tendered in the 2020 proceedings nor contained in the material the Commissioner was required to lodge with the Tribunal under s 58 of the Administrative Decisions Review Act.
The Commissioner does not take issue with the fact that the Tribunal had regard to the summary of the character references contained in the 2019 Decision. Rather his complaint is directed at the Tribunal's alleged actions in having regard to the entirety of those references and failing to inform the parties of its intention to do so, asserting that as a consequence, he was denied the opportunity to be heard about those references.
The Commissioner asserts that the Tribunal allegedly referred to that material in an apparent attempt to "plug the gap" in Mr Fakhouri's case.

Did the Tribunal access the 2019 file?

In support of the assertion which underpins this ground of appeal, the Commissioner prepared a marked-up copy of the 2021 Decision (the Comparison Document). Colour coded, that document purports to identify: 1. text appearing in the 2019 Decision but omitted from the 2021 Decision; 2. text appearing in the 2021 Decision but not the 2019 Decision; 3. text appearing in both decisions but in a different part of the 2021 Decision; and 4. identical text appearing in both decisions.
Following a careful review of the two decisions together with the Comparison Document, we reject the assertion that the 2021 Decision contains a more fulsome account of the character references than that contained in the 2019 Decision.
The 2021 Decision largely duplicates the summary of the character references contained in the 2019 Decision. Any differences between the two are either in the form of editorial changes made to the text of the 2019 Decision or shortening the text in that decision. The discussion of the reference provided by Mr De Sousa in the two decisions illustrates this point: 2021 Decision 2019 Decision [69] One signed reference is from Mr Daniel De Sousa, duty manager of the Watershed Hotel, who was aware of the applicant's bad driving record but not of all of his offences. The referee stated that he had found the applicant a wonderful person to work with, as he was easy to get along with and cooperate with a team. They had become close friends and he began to learn more about him and his life. At the time of the offences the applicant had been living on his own and working in construction during the week, and as a security guard at the weekend. He was happy to be at work and loved what he did. It was great to have him at work, with his bubbly and friendly personality that brightened up the workplace. [35] The applicant produced three signed but undated references (exhibit A3), the first of which was from Mr Daniel De Sousa, duty manager of the Watershed Hotel. [36] The referee stated further that he found the applicant a wonderful person to work with as he was easy to get along with and work with. They had become close friends and he began to learn more about him and his life. At the time Mr Fakhouri had been living on his own and working in construction during the week, and as a security guard at the weekend. He was happy to be at work and loved what he did. It was great to have him at work, with his bubbly and friendly personality that brightens up the workplace. [70] He had been moved on from the Watershed to other venues around the Sydney CBD, as his skills in security were needed elsewhere for the benefit of the security company he was working for at the time, Prime Protection Services, but he remained in contact with his colleagues at the Watershed. After about a year he returned to work at the Watershed on weekends. He was "still the same lovable friend" and was great to work with as always. The referee had learned a great deal from Mohammed as he was always helping him to become the best manager he could be. [37] He had been moved on from the Watershed to other venues around the Sydney CBD as his skills and security were needed elsewhere for the benefit of the security company he was working for at the time, Prime Protection Services, but remained in contact with his colleagues at the Watershed. After about a year he returned to work at the Watershed on weekends. He was "still the same lovable friend" and was great to work with as always. He had learned a great deal from Mohamed as he was always helping him to become the best manager he could be. [71] He was always great at keeping situations calm and dealing with them collectively and safely. His professionalism and work ethic were fantastic, and his trait of always going above and beyond had never gone unnoticed. He could always be relied on to deal with situations with his fellow guards if an incident were to happen. He was always a first preference to have if there was a private function booked at the venue because of his excellence in communicating with customers and outstanding customer service. [37]…He was always great at keeping situations calm and dealing with them collectively and safely. His professionalism and work ethic were fantastic and his trait of always going above and beyond had never gone unnoticed. He could always be relied on to deal with situations with his fellow guards if an incident were to happen. He was always a first preference to have if there was a private function booked at the venue because of his excellence in communicating with customers and outstanding customer service. [71] He was very surprised and disappointed to learn about the police pursuit, thinking it extremely out of character. He had spoken to Mohammed about it, and he had said he was extremely sorry, saddened and remorseful. He had begun to think positively and accept the reality that he had committed the mistakes, and he accepted the consequences. He was hoping to move on with his life and would think positively before acting. [39] When he had heard what had happened with the applicant and his police pursuit, he was very surprised and disappointed as it was extremely out of character for him to do something like that. He had spoken to Mohamed about it, and Mohamed had told him he was extremely sorry, saddened and remorseful. He had begun to think positively and accept the reality that he had committed the mistakes, and he accepted the consequences. He said that he had a hearing in January 2019 and was ready to accept whatever he was given by the magistrate. He was hoping to move on with his life and think positively before acting. No equivalent [40] Mohamed had come to visit the Watershed one weekend and said he missed everything about work and Mr De Sousa as manager, and he feels the applicant has been mistreated and states that his security licence is very important to him and his family. He is an outstanding person who deserves a second chance and has moved on and is ready to accept more new responsibilities.

The only additional material relating to the character references contained in the 2021 Decision is the sentence highlighted in the passage below in which the Tribunal discusses the reference provided by Mr Bousaleh: [73] Mr Mohamed Bousaleh was for five years the security supervisor at the Watershed and is currently a security guard at the Sydney Opera House. When the applicant had first started at the Watershed in January 2016, he was very shy but quickly became part of the team. The referee then describes the applicant's work ethic and how he was working at two jobs in order to support his family, both in Sydney and in Abu Dhabi. He had accepted that he had "messed up" and had to realize that he could not save the world. He should have called an ambulance instead of driving to the chemist's with his sister while disqualified [see 2019 decision, para 32]. He deserved a second chance because although he had done wrong, the good outweighed the bad and he wanted an opportunity to prove that he was not going to go backwards. (Emphasis added.)
The reference provided by Mr Bousaleh did not include the highlighted sentence. It appears that the Tribunal, in the above passage, was referring to Mr Fakhouri's acknowledgement of having "messed up", which was referred to at [32] of the 2019 Decision. Whatever the explanation, the addition of the highlighted statement does not support the inference being drawn that in preparing its reasons the Tribunal had regard to character references on the 2019 file.
The premise on which this ground rests is not made out. The allegation that the Tribunal accessed material held on the 2019 file without informing the parties is of a serious nature, lacked any proper basis and ought not to have been put.

B. Decision to impose a condition on Mr Fakhouri's licence

In the 2020 proceedings, the Commissioner urged the Tribunal to affirm his decision to refuse to grant a licence to Mr Fakhouri. Mr Fakhouri, on the other hand, urged the Tribunal to set aside the Commissioner's decision and to grant him a licence. In the course of the proceedings, neither of the parties nor the Tribunal raised the possibility of the Tribunal exercising the power conferred by s 21(3)(a) of the Security Industry Act to grant a licence to Mr Fakhouri with conditions.
In reaching the correct and preferable decision, the Tribunal was not confined to the binary options proposed by the parties. It was entitled to make any of the types of decisions listed in s 63(3) of the Administrative Decisions Review Act, while included setting aside the Commissioner's decision and making another decision in substitution for that decision, such to grant a licence with conditions: s 63(2) of the Administrative Decisions Review Act.
However, because neither party raised the possibility of the Tribunal exercising the power to grant a licence subject to conditions, the Tribunal was obliged to invite the parties to comment before proceeding to grant a licence subject to conditions. It had a duty to "take such measures as were reasonably practicable to ensure each party had a reasonable opportunity to be heard" (s 38(5)(c) of the NCAT Act). The procedural flexibility afforded by s 38(1)(a) of the NCAT Act permitted the Tribunal to determine the manner and timing of such invitation. For example, it was open to the Tribunal when reserved to invite the parties to make written submissions.
Without considered argument this is not the occasion to determine whether the Tribunal was obliged to advise the parties of the precise terms of the proposed condition. However, as a minimum it was required to invite the parties to comment on whether the power to grant a licence with conditions should be exercised. The Tribunal's failure to do so amounted to a denial of procedural fairness.

C. "incidence of law-breaking by male offenders falls off sharply after the age of 25"

This ground is based on the reasoning of the Tribunal at [83] of the 2021 Decision: [Mr Fakhouri] has now been driving on the roads since his suspension ended for some five months without incident, which should be quite unremarkable, but in his case, it represents a clear change from his earlier pattern of behaviour. And as I noted in the 2019 decision, it is a well-known tenet of criminology that the incidence of law-breaking by male offenders falls off sharply after the age of 25, and the applicant is now 24. (Emphasis added.)
The Commissioner contends that the obligation to afford procedural fairness required the Tribunal to notify the parties if it intended to take notice of the purported fact that the "incidence of law-breaking by male offenders falls off sharply after the age of 25" (the offending proposition), citing in support Thomas v Mowbray (2007) 233 CLR 307 at 521 per Heydon J. In addition, the Commissioner contends that the offending proposition is not a matter of "common knowledge" of which the Tribunal was entitled to take notice.
The Commissioner acknowledges that the solicitor who represented him in the 2020 proceedings recited the following passage from the 2019 Decision in the context of making submissions about Mr Fakhouri's claim to be rehabilitated (Tcpt, 16 December 2020, p 124(25-35)): [79] There is no doubt that people can change. The incidence of law-breaking by male offenders falls off sharply after the age of 25, and the applicant is now 22. In the applicant's case, however, his bad record is still relatively recent, his worst offences having been committed in 2018. Indeed, he was charged only three months ago with driving while disqualified, an offence which he admits and to which he intends to plead guilty at his forthcoming hearing. The criminal justice system has already given him many second and subsequent chances, which he has chosen to waste. He may well have undergone a major recent change of heart and direction, but he still needs to prove it. (Emphasis added.)
Nonetheless, the Commissioner asserts that he was not on notice that the Tribunal intended to "notice" the offending proposition, reasoning that in the 2019 Decision the offending proposition was made "arguendo", as part of the Tribunal's reasons as to why Mr Fakhouri had failed to demonstrate rehabilitation but might be able to in the future. In contrast, the Commissioner contends that in the 2021 Decision, the offending proposition took on "new significance", was elevated to a "well-known tenet of criminology" and became one of a handful of factors that the Tribunal saw as supporting Mr Fakhouri's claimed rehabilitation.

Consideration

The Tribunal was not bound by the rules of evidence: s 38(2) of the NCAT Act. Nonetheless, even if the Tribunal was required to apply the rules of evidence, it would not have required proof of the offending proposition if it was a matter of "common knowledge" (s 144(1)(a) of the Evidence Act 1995 (NSW)), or "capable of verification by reference to a document the authority of which cannot reasonably be questioned" (s 144(1)(b) of the Evidence Act). However, the Evidence Act would have required the Tribunal to give the parties "such opportunity to make submissions, and to refer to relevant information relating to the acquiring or taking into account of knowledge [of the kind falling within s 144(1)] as is necessary to ensure that the party is not unfairly prejudiced": s 144(4) of the Evidence Act.
The procedural freedom afforded the Tribunal to "inform itself on any matter in such manner as it thinks fit" is "subject to the rules of natural justice": s 38(2) of the NCAT Act.
For current purposes we will assume, but not decide, that the offending proposition fell within s 144(1) of the Evidence Act and consider whether, as the Commissioner contends, by taking "notice" of that proposition the Tribunal offended the rules of natural justice.
In our view, the Commissioner is not assisted by the distinction he seeks to draw about the Tribunal's use of the offending proposition in the two decisions, namely that it was made "arguendo" (for the sake of argument) in the 2019 Decision and was a factor supporting the Tribunal's ultimate conclusion in the 2021 Decision. The issue is not the significance placed by the Tribunal on the offending proposition, but whether the Commissioner was given a reasonable opportunity to comment on that proposition.
The Commissioner was not only aware that the Tribunal held the view that the incidence of law-breaking by male offenders falls off sharply after the age of 25, but he also expressly addressed that view in submissions. In the proceedings below, the effect of the Commissioner's submissions was that notwithstanding the passage of time, Mr Fakhouri had not "established himself as a different man", and that there was no character evidence to attest that he was "[once] a troublesome child, but now he's turned into a mature, responsible man".
The contention that the Commissioner was somehow taken by surprise by the Tribunal's view is rejected. To accord procedural fairness, the Tribunal was not required to provide a running commentary of the individual findings which it may be contemplating: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48]. This ground of appeal is not established.

Ground 2: the condition was beyond power

By Ground 2, the Commissioner contends that the condition was beyond power because it purports to give the Commissioner the power to "summarily revoke" Mr Fakhouri's licence.
The power conferred by s 21(3) to impose conditions on a licence issued under the Security Industry Act is not subject to any express limitation. It is confined only by the scope and purposes of that Act. Nonetheless, any condition imposed must be "within the object and purpose for which the power was created" and "not repugnant to or inconsistent with" the Security Industry Act: Television Corporation Ltd v The Commonwealth of Australia (1963) 109 CLR 59 at 75; [1963] HCA 30.
The effect of the condition was to give, or to purport to give, the Commissioner the power to "summarily revoke" Mr Fakhouri's licence if Mr Fakhouri "accumulate[d] 5 or more driver demerit points before 31 December 2021".
The term "condition" is not defined by the Security Industry Act or the Security Industry Regulation. In other statutory contexts that term has been taken to mean the specification of acts that the licence holder is required to do or to abstain from doing: Television Corporation Ltd v The Commonwealth of Australia at 70; an obligation imposed on the licence holder: Boyle v WorkCover Authority of New South Wales [2015] NSWCATAD 90 at [40]. Those meanings are consistent with the types of conditions imposed on, and prescribed for, holders of licences granted under the Security Industry Act, for example: 1. on Class 1F licence holders: not to carry a firearm unless wearing a "recognisable security guard's uniform": s 23A of the Security Industry Act; 2. on Class 1 licence holders: to undertake and complete such approved training, assessment or instruction as required by the Commissioner: s 23E of the Security Industry Act; 3. on all licence holders: at the Commissioner's request, to consent to having "his or her fingerprints or palm prints or both taken": s 24 of the Security Industry Regulation.
The condition imposed by the Tribunal went further than requiring Mr Fakhouri to do, or to refrain from doing, a particular act, that is, to not accumulate five or more driver demerit points. It purported to give to the Commissioner the power to "summarily revoke" Mr Fakhouri's licence in the event Mr Fakhouri contravened that requirement. It is unclear why the Tribunal considered it necessary to give the Commissioner that power, in circumstances where s 26(1)(b)(iii) of the Security Industry Act gave the Commissioner power to revoke Mr Fakhouri's licence if he contravened any condition of that licence.
On one view, the phrase contained in the condition, "the Commissioner may summarily revoke his security licence" was simply surplusage, and merely recorded the fact that the Commissioner had a discretion to revoke Mr Fakhouri's licence in the event that he "contravene[d] any condition of the licence". However, the condition went further and purported to give the Commissioner the power to adopt a particular procedure, to "summarily revoke" the licence if Mr Fakhouri accumulated 5 or more driver demerit points before 31 December 2021.
While broad in scope, the power conferred by s 21(3) of the Security Industry Act neither gave the Tribunal the power to confer on the Commissioner a separate power of revocation nor the power to adopt a particular procedure in exercising that power.
This ground of appeal is established.

Ground 1: the Tribunal applied the wrong test

The Commissioner contends that the Tribunal misapplied s 15 of the Security Industry Act by: 1. imposing an onus on the Commissioner to disprove that Mr Fakhouri was a fit and proper person; 2. making a provisional assessment about: 1. whether Mr Fakhouri was a "fit and proper" person to hold a Class 1ACE licence; 2. whether it would not be in the public interest to grant Mr Fakhouri a Class 1ACE licence.

The onus issue

The Court of Appeal (Bathurst CJ, Beazley P and Basten JA) explained in Banerjee v Commissioner of Police [2018] NSWCA 283 ("Banerjee") at [11] that the task of considering an application for a licence under the Security Industry Act is undertaken on the basis of several mandatory and discretionary criteria. Although each criterion is identified by reference to a state of satisfaction or opinion of the Commissioner, some are defined in concrete terms (such as the age of the licence applicant and his or her immigration status (ss 15(1)(b), 15(1)(f)), while others involve evaluative judgments, including "the public interest": Banerjee at [14].
Section 15(1)(a) required the Tribunal to refuse to grant Mr Fakhouri's application for a licence if it was not satisfied that Mr Fakhouri "is a fit and proper person to hold the class of licence sought by the applicant". As explained in Banerjee, the formation of that state of satisfaction or opinion involved making an evaluative judgement.
In an application for administrative review made under the Administrative Decisions Review Act, if the enabling legislation does not impose an onus of proof, neither party bears an onus of proof: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [34]; Meacham v Commissioner of Police [2020] NSWCATAP 107 at [75].
In support of the contention that the Tribunal imposed an onus on the Commissioner to establish that Mr Fakhouri was not a fit and proper person to hold a licence, the Commissioner pointed to the following highlighted passage from the 2021 Decision: [33] It is commonly accepted that there is no strict onus of proof in tribunal proceedings. In Hardy v Commissioner of Police, New South Wales Police Force [2006] NSWADT 167, Higgins JM explained that "It is well established that proceedings such as these are non-adversarial in nature and that there is no onus of proof in the sense that it applies to other legal proceedings" (at [12]). In the context of licence revocation under the SI Act, however, it has been held that where the issue to be decided is whether circumstances have arisen that would justify licence cancellation or suspension, the onus of proving that such circumstances have arisen devolves on the accuser. In that sense the party alleging that change of circumstances has the onus of proving it: Habib v Commissioner of Police, New South Wales Police Force [2015] NSWCATOD 48, [81]. (Emphasis added.)
Pointing out that the above passage was copied from the 2019 Decision, the Commissioner submits that while this does not give rise to an error, it is nonetheless problematic because of a "relevant change of circumstances". Namely, the 2019 proceedings involved the revocation of a licence under the Security Industry Act, while the 2020 proceedings involved the grant of a licence under that Act.
The Commissioner contends that the Tribunal approached s 15(1)(a) by effectively requiring him to prove affirmatively that Mr Fakhouri was unfit and improper. The Commissioner contends that in this case the misplaced onus was especially significant, given that the Tribunal's reasons suggest that the Tribunal considered the evidence concerning Mr Fakhouri's fitness and propriety to be finely balanced.

Consideration

For the following reasons we are not persuaded that the Tribunal imposed an evidentiary or legal onus on the Commissioner.
First, the Commissioner's argument rests largely on the statement at [33] of the 2021 Decision: "[i]n the context of licence revocation ... where the issue to be decided is whether circumstances have arisen that would justify licence cancellation or suspension, the onus of proving that such circumstances have arisen devolves on the accuser. In that sense the party alleging that change of circumstances has the onus of proving it" (emphasis added). As is apparent, that statement relates to the revocation of a licence, not to the refusal to grant a licence. It cannot reasonably be suggested that the Tribunal misapprehended that the decision it was reviewing was a decision to revoke Mr Fakhouri's licence.
Second, the above passage is inconsistent with the balance of [33] of the 2021 Decision, which opens by stating there is "no onus of proof in tribunal proceedings".
Third, it is a nonsense to suggest, as the Commissioner contends, that the Tribunal considered the Commissioner to be "the accuser … the party alleging a change in circumstances". The Commissioner's case was put squarely on the basis that Mr Fakhouri had failed to demonstrate that he had changed. In circumstances where Mr Fakhouri had been found by the Commissioner (in January 2019) and the Tribunal (in June 2019) to not be a fit and proper person to hold a licence and the Commissioner contended before the Tribunal in the 2020 proceedings that he had not demonstrated that he had changed, it is implausible that the Tribunal cast the Commissioner in the role of "the party alleging a change in circumstances".
Fourth, a fair reading of the 2021 Decision does not support the conclusion that the Tribunal approached the task required to be undertaken by s 15(1)(a) by asking whether the Commissioner had established that Mr Fakhouri was not a fit and proper person to hold a licence.
At [43]-[55], the Tribunal detailed the history of Mr Fakhouri's driving offences. At [64] the Tribunal described that history as "a catalogue of driving offences of such an extent, gravity and frequency as to constitute an extraordinarily bad history which he himself described as 'atrocious'". After discussing at [63]-[67] several other matters the Tribunal considered to be adverse to Mr Fakhouri, the Tribunal considered at [68]-[83] those matters it considered to be favourable to Mr Fakhouri. The Tribunal concluded: [84] In my view the evidence shows on the preponderance of probabilities that the applicant is now a fit and proper person to hold a class 1ACE security licence and that it would not now be contrary to the public interest for him to do so, and I so find.
At the heart of this ground lies the contention that given what the Commissioner argues is the paucity of evidence favourable to Mr Fakhouri, the only possible explanation for the Tribunal's ultimate conclusion is that the Tribunal cast an evidentiary onus on him. For the reasons given, we reject that contention.
This ground of appeal fails.

Provisional assessment

The Commissioner contends that the Tribunal failed to ask, as required by s 15(l)(a), whether it was satisfied at the time it made its decision that Mr Fakhouri "is a fit and proper person to hold a [Class 1 ACE] licence". Rather, argued the Commissioner, the Tribunal undertook a "provisional assessment" by imposing a probationary test, which required Mr Fakhouri to not "accumulate 5 or more driver demerit points before 31 December 2021". If Mr Fakhouri passed that test, he would establish that he "is a fit and proper person to hold a [Class 1 ACE] licence".
In support, the Commissioner points to the following passage from the 2021 Decision: [85] At the same time, as only approximately two years have elapsed since his last offence, some additional safeguard is needed for the protection of the public in the event of a relapse into offending behaviour.
The Commissioner contends that the Tribunal's approach to s 15(3) suffered from the same defect.
The evaluative judgment ss 15(1)(a) and 15(3) required the Tribunal to make relates to the relevant state of affairs as they existed at the time the Tribunal made its decision and not at some future date. That is clear from the use of the present tense: "is a fit and proper person …" (s 15(1)(a)); "considers that the grant of the licence would be contrary to the public interest" (s 15(3)).
The language used in the 2021 Decision indicates that the Tribunal understood that the evaluative judgment required by ss 15(1) and (3) was required to be made at the time the Tribunal made its decision: In my view the evidence shows on the preponderance of probabilities that the applicant is now a fit and proper person to hold a class 1ACE security licence and that it would not now be contrary to the public interest for him to do so, and I so find.
However, can it be inferred, as the Commissioner contends, from the decision to impose the condition, that the Tribunal had misgivings about whether the relevant criteria were satisfied at that point in time, and concluded that they would only be satisfied if Mr Fakhouri "passed the test" of not accumulating 5 or more driver demerit points before 31 December 2021?
The Tribunal failed to explain the apparent inconsistency between being satisfied that Mr Fakhouri is a fit and proper person and it would not be contrary to the public interest to grant Mr Fakhouri a licence, and its assessment that an "an additional safeguard is needed" and the decision to impose the condition to guard against a "risk of relapse".
Mr Fakhouri's driving record, for someone so young, was very poor. It implied, at the very least, an immaturity and lack of understanding of the responsibility of individual drivers for maintaining safe driving conditions for the community as a whole. It is difficult to understand how the Tribunal could properly reconcile a view that the public needed to be protected from Mr Fakhouri with a view that he was, nevertheless, fit to hold a security licence the purpose of which was to provide protection to members of the public and their property. By imposing the condition which, given Mr Fakhouri's record, it must have been concerned might not be met, the Tribunal appears to have been attempting to hedge its bets. If so, it is difficult to understand how it could have reached an appropriate level of satisfaction that Mr Fakhouri was a fit and proper person to hold a licence.
We accept that the inference can be drawn from the Tribunal's decision to impose the condition that it had misgivings about whether the relevant criteria were satisfied at the time it made its decision. In our view, the Tribunal misapplied ss 15(1)(a) and 15(3) in the manner contended by the Commissioner.
This ground of appeal is established.

Disposition of the appeal

It is not necessary to consider the remaining grounds of appeal as they largely overlap with those addressed above.
Given our conclusion that Grounds 1 (in part), 4 (in part) and 6 are established we have decided to allow the appeal. We do not accept the Commissioner's contention that the only decision open to the Tribunal on the material before it was to affirm the decision to refuse to grant a licence to Mr Fakhouri. Therefore, we have decided to set aside the 2021 Decision and to remit the whole of the case to be reconsidered by the Tribunal. Given that the decision under appeal was made over six months ago and on remittal the Tribunal will be required to reach the correct and preferable decision at the time it makes its decision, we have decided that it is necessary and appropriate that the parties be provided with the opportunity to provide further evidence.
The constitution of the Tribunal will require consideration of practical matters, including member availability. For that reason, in accordance with usual practice, the President of NCAT or her delegate should decide the constitution of the Tribunal.

Orders 1. The appeal is allowed in part. 2. The decision made by the Tribunal on 5 January 2021 is set aside. 3. The matter is remitted to be reconsidered by the Tribunal with further evidence.

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: 27 July 2021

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (12)

Cited By (3)