Khwaunju v Commissioner of Police, NSW Police Force

NCAT Occupational|2023-06-13

Summary

The Applicant was first licensed as a security industry worker in New South Wales in 2016. He had his security licence revoked by the regulator (the Commissioner) in October 2022 after he pleaded guilty to a charge, under s 547B of the Crimes Act 1900 (NSW), of 'false representation resulting in police investigation'. An internal review upheld the revocation decision, and the Applicant has now applied to this Tribunal for administrative review.
I have concluded that the decision to revoke the Applicant's security licence was, and remains, the correct decision. That decision is affirmed, for the reasons that follow.

Preliminary issue - the stay application

The Applicant applied for a stay of the decision under review. With the consent of the parties the Tribunal ordered that the stay application was to be decided on the papers. Unfortunately, through administrative oversight, the stay application was not allocated to a Tribunal member for determination. Instead the substantive application was listed for hearing, by me, on 19 May 2023.
On 17 May 2023, and again with the consent of the parties, I ordered that the substantive application was to be determined on the papers. It was only on that day that I became aware that the stay application had not been determined.

Relevant law

The licensing of security industry workers is regulated by the Security Industry Act 1997 (the SI Act) and the Security Industry Regulation 2016 (the Regulations).
Part 2 of the SI Act deals with licensing procedures and criteria, and other matters.
Section 26 is the provision dealing with the revocation of licences. Subsection (1A) provides that the Commissioner must revoke a licence if satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.
One of the circumstances requiring a licence application to be refused is found in s 16(1)(b). That circumstance arises if the Commissioner is satisfied that the licence 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 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.
Among the offences prescribed by the Regulations for the purposes of s 16(1)(b) is any offence referred to in subclause 15(1)(a), (b) or (d)-(l) of the Regulations: subclause 15(1A)(a). Subclause 15(1)(d) refers to the following offence: An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.
This is where the dispute between the parties lies. Is the Tribunal, standing in the shoes of the Commissioner, satisfied that the Applicant has been found guilty, in the last 5 years, of an offence of that kind? If so, what action can or must be taken in relation to the Applicant's security licence?

Jurisdiction

The Commissioner's decision to revoke the Applicant's licence is subject to administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) by the Tribunal: s 29(1)(c) of the SI Act.
Section 63 of the ADR Act provides that, in determining the application for review, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. For this purpose the Tribunal may exercise any of the functions conferred or imposed on the Commissioner. The Tribunal may affirm, vary or set aside the decision, and may make its own decision in substitution for the decision under review, or may remit the matter to the Commissioner for reconsideration.

The Commissioner's position

The Commissioner's position is that (a) the Applicant was found guilty of an offence pursuant to s 547B of the Crimes Act; (b) the Commissioner is satisfied that s 547B is a prescribed offence; and (c) as a result the Commissioner was required to revoke the Applicant's security licence.
The Commissioner submits that the Tribunal has no discretion to come to a different decision if it is satisfied, as was the Commissioner, that the Applicant was found guilty of a prescribed offence.
I understand the Commissioner to submit in the alternative that, if the Tribunal is not so satisfied, then in its discretion the Tribunal would revoke the Applicant's licence on public interest grounds pursuant to s 26(1)(d) of the SI Act and clause 25(1) of the Regulations.

The Applicant's position

The Applicant submits that the words 'satisfied that' in s 26(1A) of the SI Act indicate the Commissioner (and by extension the Tribunal) is not required to revoke the licence but has a discretion to do so.
The submissions note the serious consequences for the Applicant if his licence is revoked. They rely on the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 in submitting the Tribunal would be hesitant to reach the required level of satisfaction to uphold the revocation decision.
They also note that offences of dishonesty are dealt with under Part 4 of the Crimes Act, while the offence to which the Applicant pleaded guilty is found in Part 14A under the category of 'Miscellaneous offences'. For that reason it should not be considered a dishonesty related offence for the purposes of clause 15 of the Regulations.

Consideration

It must follow from the Applicant's guilty plea, the Local Court's acceptance of that plea and the Court's imposition of a conditional release order (to which the Applicant remains subject) that the Applicant has been 'found guilty' by the Local Court of the offence charged. That no conviction was recorded does not negate that position.
The next question is whether the offence is an offence 'involving fraud, dishonesty or stealing'.

An offence involving … dishonesty

An Appeal Panel of this Tribunal considered the meaning of the expression 'offence involving dishonesty', for the purposes of s 16 of the Property Stock and Business Agents Act 2002 (NSW), in Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23. At [26] the Appeal Panel settled upon the Macquarie Dictionary definition of 'dishonesty' as (1) lack of honesty; a disposition to lie, cheat, or steal; (2) a dishonest act, as a fraud or theft. There is no reason why a different meaning of the expression in the SI Act should be adopted.
The Appeal Panel noted in Farah at [31]: To be an 'offence involving dishonesty' the relevant statutory provision does not have to contain the word 'dishonest' or 'dishonesty'. Examples of offences which come within the ordinary meaning of dishonesty offences are stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud: Barber v Law Society of NSW (No 2) [2001] NSWSC 361 at [32]. Perjury is another example. There is also clear authority that obtaining money by false or misleading statements is an offence involving dishonesty: Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 at 668-669; Doja v R [2009] NSWCCA 303 at [174]-[179].
After dealing with some earlier cases (including RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49) where the relevant expression had been interpreted as allowing reference to the circumstances of an offence, not merely the terms of the offence provisions, the Appeal Panel stated its preference for 'the narrower approach of confining the Tribunal's consideration to the offence itself', explaining itself as follows: [39] Firstly, as a matter of statutory interpretation, the provision refers to a conviction for an offence involving dishonesty. The provision does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence. The applicant's counsel gave an extreme example to illustrate the consequences of adopting that interpretation. If a person is convicted of murder but dishonestly lured the person to a remote location before killing that person, the offence would be one involving dishonesty. [40] Secondly, if the broader interpretation is applied, there would be a practical onus on the person to prove that he had not acted in a dishonest manner or did not have a dishonest state of mind. In relation to the factual situation in Sharp Towing, the applicant would have to prove that he did not act dishonestly in charging a particular fee. That would require a separate factual inquiry and decision on the part of the decision maker. It is unlikely that the legislature intended that such an inquiry be carried out in circumstances where disqualification is mandatory upon conviction of a particular kind of offence. [41] Thirdly, for the reasons we have given, the phrase should not be given a broad interpretation because the effect of disqualification is that a person will lose their livelihood. [42] Our conclusion is that it is the offence itself that must 'involve dishonesty.' It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, the offence must be one which involves dishonesty 'without further inquiry'.
The reference in Farah [42] to 'the words of Bell J' is a reference to Barber v Law Society of NSW (No 2) [2001] NSWSC 361, where it was concluded at [32] that an offence involving dishonesty 'must be one which answers that description without further inquiry'.
The Appeal Panel in Farah went on to explain the approach to adopt when addressing the question whether a particular offence is an offence 'involving dishonesty'. That is to examine the elements of the offence, and determine whether any act or omission involved in the offence comes within the ordinary meaning of dishonesty (as to which, see [23] of these reasons, containing the meaning of the word 'dishonesty' - a meaning I adopt).
The elements of the offence under s 547B of the Crimes Act were set out by Scotting DCJ in Colbron v The Queen [2022] NSWDC 370, as follows: 1. That a person knowingly; 2. Makes a false representation to a police officer (or another person by extension in s 547B(2)); 3. About an act that has been done or will be done or an event that has occurred or will occur; and 4. The act or event, as represented, calls for investigation by a police officer.
Even though the words fraud, dishonesty and stealing are not used in s 547B, in my view it is clear that a person who knowingly makes a false representation of the kind caught by the section has committed an offence involving dishonesty. Neither the principle in Briginshaw nor the fact that s 547B is found in Part 14A of the Crimes Act rather than Part 4 can displace that conclusion.

Maximum penalty under s 547B

The maximum penalty under s 547B is imprisonment for 12 months, or a fine of 50 penalty units, or both. The threshold for subclause 15(1)(d) of the Regulations is 'imprisonment for 3 months or more'. The penalty under s 547B takes the offence above the threshold.

Conclusion

I am satisfied that the Applicant has been found guilty of an offence involving dishonesty, being an offence in respect of which the maximum penalty is imprisonment for 3 months or more. The particular offence is a prescribed offence for the purposes of s 16(1)(b) of the SI Act.
In those circumstances neither the Commissioner nor the Tribunal on administrative review has any discretion to make a decision other than to revoke the Applicant's security licence.
It is unnecessary to address the Commissioner's alternative 'public interest' submission.
The decision under review must be 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 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: 13 June 2023

Property Stock and Business Agents Act 2002(NSW)

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Judgment (11 paragraphs)

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