On 21 March 2018, the Applicant, Mohammad Moinul Islam, was issued with a Class 1ABC security licence under the provisions of the Security Industry Act 1997 (Sl Act). On 10 July 2020, the Applicant was found guilty at Burwood Local Court of an offence against s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (CDPV Act) and was directed to enter into a Conditional Release Order (colloquially known as a 'good behaviour bond') for a period of six months pursuant to s 9(1)(b) of the Crimes (Sentencing and Procedure) Act 1999, commencing on 10 July 2020 and concluding on 9 January 2021. As a result, on 13 July 2020, the Applicant's security licence was revoked pursuant to s 26(1A) of the Sl Act. The basis for the revocation was that the Applicant had been found guilty (but with no conviction recorded) of an offence against s 13(1) of the CDPV Act. The revocation decision was affirmed on internal review and the Applicant now seeks review by this Tribunal.
[2]
Legislative scheme
The SI Act creates a regime for the licensing and regulation of persons operating in the security industry. Under the Sl Act, it is an offence for a person to carry on security activities in New South Wales unless they hold the appropriate licence or permit: s 7 SI Act.
The Sl Act confers authority on the Respondent to decide applications for security licences, and imposes a number of restrictions on the ability of the Respondent to grant such applications. In some cases, the SI Act confers a discretion on the Respondent to refuse a licence application. In other cases, the Sl Act requires the Respondent to refuse a licence application if certain criteria are met, and the Respondent retains no residual discretion to grant the licence. Those obligations also carry through to the revocation of licences.
Section 26(1A) of the SI Act relevantly provides:
26 Revocation of licence
(1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused…
Section 16 of the SI Act provides for the circumstances in which an Applicant's criminal history will require a licence application to be refused. Relevantly, s 16(I)(b) provides:
16 Restrictions on granting licence - criminal and other related history
(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law…
Clause 15(1A)(a) of the Security Industry Regulation 2016 (Sl Regulation) relevantly provides:
15 Offences and civil penalties that disqualify applicants
…
(IA) Prescribed offences: section 16(1)(b) For the purposes of section 16(1)(b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(a) an offence referred to in subclause (1)(a), (b) or (d)-(l)…
Clause 15(1)(i) of the Sl Regulation relevantly provides:
15 Offences and civil penalties that disqualify applicants
Prescribed offences: section 16(1)(a) and (b) For the purposes of section 16(1)(a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
…
(i) Offences involving stalking or intimidation
An offence under the law of any Australian or overseas jurisdiction involving stalking or intimidation.
…
Section 13(1) of the CDPV Act provides:
13 Stalking or intimidation with intent to cause fear of physical or mental harm
(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental ham is guilty of an offence.
Maximum penalty--Imprisonment for 5 years or 50 penalty units, or both.
…
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
…
[3]
Issue for the Tribunal
Having regard to the criteria in s 16(1)(b) of the SI Act, it is clear that the Applicant has, within the last five years been found guilty (but with no conviction being recorded) by a court in New South Wales of an offence under New South Wales law.
The only remaining issue is whether the offence under s 13(1) of the CDPV Act is an offence prescribed by the Sl Regulation.
[4]
CONSIDERATION
Section 63 of the Administrative Decisions Review Act 1997 provides 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. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357.
The legislative scheme was described in Feurstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114 in the following terms:
11 ... 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. ...
Section 26(1A) of the SI Act provides that 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 Act to be refused.
Section 16(1)(b) SI Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales ... of an offence prescribed by the regulations in relation to the class of licence sought... Clause 15(1)(i) of the SI Regulation provides that for the purposes of s 16 of the SI Act, a relevant offence is one involving stalking or intimidation.
There was no dispute that on 10 July 2020, the Applicant pleaded guilty to a charge of 'stalk/intimidate intend fear of physical etc harm (personal) - T2'. He was found guilty of an offence (by its terms, against s 13(1) of the CDPV Act) but no conviction was recorded, and a 6 month good behaviour bond commencing on 10 July 2020 was imposed. No information about the events giving rise to the charge was provided. In his submissions the Applicant wrote that he did not commit any assault, nor any other offence in the 15 years he has been in Australia. In his submissions he provided a copy of his submission to the Magistrate. Much of what he wrote was very difficult to follow, but there was a statement by a friend that the Applicant had been helping him move a washing machine when he, the friend became involved in a disagreement with another person; the Applicant was with him 'as a friend'. Clearly that was not the end of the story, but no further details were available, as only the information provided in relation to the charge was the Advice of Court Result.
Having said that though, it is not open to the Tribunal to look behind a guilty finding to consider the underlying facts and circumstances of the Applicant's offending: Farah v Director, Department of Finance Services (2014] NSWCATAP 23. The authorities are clear - in applying cl 15 of the Regulation, it is the offence for which the person has been found guilty that is relevant, and it is not permissible for the Tribunal to look behind a (conviction or) finding of guilt for that offence to consider the particular facts of the case: Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23. Hence, it irrelevant what gave rise to the finding of guilt that establishes the prescribed offence under cl 15(1)(a) of the Regulation for the purposes of the application of s 16(1)(b) of the Act.
In Bourke v Commissioner of Police, New South Wales [1998] NSWADT (unreported), O'Connor DCJ explained that in the case of the mandatory refusal provisions, the Tribunal has no discretion to exercise in relation to an application for review. The only role the Tribunal could perform was to consider whether the "objective facts" relied on by the Commissioner were made out. Those facts were whether there was a conviction, or a finding of a charge proven of a kind fitting within the parameters of s 16 of the SI Act.
The relevant 'objective facts' were that on 10 July 2020 the Applicant was found guilty of an offence involving stalking and, without proceeding to conviction, was subject to a good behaviour bond. The only question is whether, as a matter of construction, the offence is of a type prescribed by the SI Regulation as a disqualifying offence: Martins-Gonzalez v Commissioner of Police, NSW Police Force [2020] NSWCATAD 27. The offence is plainly one "involving stalking or intimidation" within the meaning of cl 15(1)(i) of the SI Regulation. I accept that that the conduct addressed by s 13(1) of the CDPV Act clearly falls within the terms of cl 15(1)(i) of the Sl Regulation. Accordingly, I find the offence in s 13(1) of the CDPV Act is a prescribed offence for the purposes of s 16(1)(b) of the SI Act.
Therefore, the Tribunal has no discretion and must revoke the licence: s 26(1A) SI Act. While the Applicant provided several character references from local politicians and business people, these references cannot be taken into account. Similarly, the Applicant's submission which referred to unfortunate family circumstances is irrelevant. Similarly, the Tribunal is not permitted to take into account discretionary factors such as the Applicant's character (as attested to by his character witnesses) or other public interest considerations, nor even the consequences of revocation on the Applicant's livelihood.
The combined operation of ss 26(1A) and 16(I)(b) of the Sl Act is that, if a person who holds an existing security licence is found to have committed an offence to which s 16(1)(b) applies, the Respondent, and hence the Tribunal on review, is obligated as a matter of law to revoke that person's security licence. This is because, if the person were applying for a new licence, the Respondent would be obligated under s 16(1)(b) to refuse the licence application.
The Tribunal has previously determined numerous cases involving the mandatory provisions of the SI Act, and it is clear that a decision to revoke a licence where the Sl Act mandates revocation based on the commission of a prescribed offence must be affirmed: see for example, Halligan v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 269 and Sauturaga v Commissioner of Police, NSW Police Force [2019] NSWCATOD 114.
The effect is that the Tribunal has no discretion when the criteria are satisfied, as they are in this matter.
[5]
Decision
1. The decision under review is affirmed.
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
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Decision last updated: 07 March 2023