Luk v Commissioner of Police, New South Wales Police Force

Applicable legislation

1. The SI Act s 26(1A) 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 this Act to be refused".
2. Section 16 (1)(b) of the SI Act provides as follows: 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….
3. Clause 15(1A) of the Security Industry Regulation 2016 (SI Regulation) provides in pertinent part that "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)".
4. If one then refers back to clause 15(1)(i) of the Regulation, one finds that "For the purposes of section 16(1)(a) of the Act the following offences are prescribed offences regardless of whether they are committed a New South Wales:…(i) an offence under the law of any Australian or overseas jurisdiction involving stalking or intimidation".
5. Section 474.17 of the Criminal Code provides: 474.17 Using a carriage service to menace, harass or cause offence 1. A person commits an offence if: (a) the person uses a carriage service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
6. It is not disputed that in this context the phrase "carriage service" means a telecommunications network.
7. The issue in this application is thus whether the offence in s 474.17 of the Criminal Code is correctly characterized as being an offence involving intimidation.

The evidence

1. The facts are not in dispute, but the applicant lodged an unsworn and unsigned statement (exhibit A1) in which he stated inter alia that until about 2011 he was employed as a construction worker, but was injured in a workplace accident and became unable to continue to work in that industry. In or about 2012 he first obtained a security licence and commenced work as a security officer.
2. Following the proceedings in Blacktown Local Court for the offence referred to, he attempted to renew his security licence, and in the course of discussions with Services New South Wales was advised that the licence had been cancelled from September 2017. He had not been advised by the respondent about the cancellation of his licence until he received email correspondence on 27 February 2018 from the respondent to that effect.
3. Before being so informed, he had been working as a security guard with the same company for six years, and before notification of his licence cancellation had held a supervisory position in which he was responsible for up to 15 security guards. He had never had any incidents or disciplinary issues during his employment as a security guard. He is still employed by the same company, but has been informed by his employer that if he does not recover his security licence, he will be dismissed from his employment, as holding a licence is a key requirement for his continued employment with the company.
4. If dismissed from the company, he would have serious financial problems and serious difficulties in obtaining alternative employment, in either the security or the construction industries, which are the two areas in which he had previous skill and experience. He is already having significant financial issues as a result of the fact that his time at work has been reduced, and he is not earning as much money as he did before February 2018.
5. He is from South Sudan and has a large extended family in both South Sudan and Uganda for whose financial support he is responsible. The greater part of his present income is paid to his family overseas. He is required to support his 80-year-old mother in Uganda and provide money for housing, basic necessities and medical care. He is her only source of support. She has recently been suffering from significant medical problems and he has been required to make further payments for her medical care, but has been unable to do so fully as his employment has been substantially reduced following cancellation of his licence.
6. Further, he is the main source of support and income for his five nieces and nephews, his two brothers and sisters, their partners and their extended family, totalling approximately 50 people, in both Uganda and South Sudan. He is responsible for payments to meet their needs for basic education, housing and living expenses. He has five children but, at this stage, as he has been unable to provide financial support to their mother, he has been unable to see his children.

Applicant's submissions

1. The applicant, through Mr Hamid, relied on written and oral submissions in which he argued inter alia that a denial of the security licence would result in severe and unusual hardship for him. It would remove all his prospects of employment, given that the only meaningful work experience he has is in the security and construction industries, both of which would require a security licence. Cancellation of the licence would result in widespread detrimental ramifications for his family in South Sudan and Uganda.
2. The charge against the applicant is the only criminal offence on his record. His conduct in relation to the offence could not be characterized as indicative of his character or reputation. Any chance of re-offending is minimal and cancellation would be disproportionate to his conduct.
3. Mr Hamid then submitted that the offence had been mischaracterized. The Regulation does not expressly or otherwise provide that the offence the applicant was charged with is a "prescribed offence" for the purposes of s 16(1)(b) of the SI Act. The express mention of specific offences as being prescribed, to the exclusion of all other offences, should necessarily exclude all other offences not enumerated in the Regulation, by reason of the expressio unius principle. Further, the offence in question cannot be treated as involving stalking or intimidation, an interpretation that would be inconsistent with the statutory language. The Regulation does not define "stalking" or "intimidation", and the applicant was not charged with any offence of stalking or intimidation.
4. The interpretation of those terms must be consistent with the language and purpose of the provisions of the statute. In Farah v Director, Department of Finance and Services [2014] NSWCATAP 23, [22], the Appeal Panel had observed that "The primary objective of statutory construction is to construe a provision so that it is "consistent with the language and purposes of all the provisions of the statute": Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28".
5. The language should be given a textual interpretation and not a broad one, for going beyond a textual approach would amount to a voyage of semantic discovery. And as the Appeal Panel had observed in Farah, disqualification from holding a licence had significant implications for the livelihood of the person concerned. The kinds of offences to which mandatory disqualification applies should therefore not be construed broadly.
6. The definition of the Criminal Code offence neither contained, nor referred to, stalking or intimidation or both as being constituent elements of the offence. In Farah, in which the prescribed offence was "an offence involving dishonesty", the Appeal Panel considered that if dishonesty must be involved in the offence itself, then it was the elements of the particular offence that had to be examined. In that case the elements did not include conduct of the kind engaged in by the applicant, which was concealing the truth from police, and consequently he had not committed an offence involving dishonesty.
7. There was no precedent or merit that allowed an expansive interpretation of the prescribed offence involving stalking or intimidation. Further, the applicant had not been charged with an offence of intimidation or stalking under ss 545B or 21A, or both, of the Crimes Act (NSW). The offence he had been charged with required no element of intimidation or stalking to make out the offence. The respondent had therefore mischaracterized the offence in question as regards a prescribed offence.
8. In Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 361, [32] Bell J had said in connection with the phrase "an offence of dishonesty" that "It seems to me that the crime or offence the subject of the conviction must be one which answers that description without further inquiry". Similarly, in C v Johnson [1967] SASR 279, 291, Bray CJ had concluded that the relevant inquiry was whether the offence was "one which of its nature necessarily involves dishonesty", adding that it was not necessary to "make any inquiry into the particular conduct of the particular salesman in relation to the particular offence".
9. In Farah, the Appeal Panel had pointed out (at [40]) that if a broader interpretation were 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. Consequently it was not permissible to look behind the conviction for the particular offence to consider the particular facts of the case. The agreed facts on which a guilty plea was based, the findings of the court in relation to a contested hearing and the sentencing remarks were not relevant (at [42]).
10. Although the legislative history indicated a parliamentary intention over the years to strengthen the legislation, the Act [actually the Regulation] contained limitations, as cl 15(1) listed only 12 categories of offences, those in cl 15(1)(a) to (l). Consequently a broad interpretation was inappropriate and the final outcome would lie in the legislation itself. The Legislature could have prescribed any offence under the Crimes Act (NSW) but chose not to do so. The expressio unius principle precluded the respondent's proposed interpretation.
11. The Property Stock and Business Agents Act 2002 (NSW) (PSBA Act) that was in issue in Farah could not be distinguished from the SI Act and Regulation and a wide interpretation would be inconsistent with the Appeal Panel's holding in that case. Stalking and intimidation were not elements of the offence in issue, as the Supreme Court had required in Barber.

Consideration

1. This tribunal has jurisdiction to determine the present review application by reason of s 29 of the SI Act. The matter turns on statutory interpretation and does not involve evaluating the factual merits of the events giving rise to the proceedings.
2. The Commissioner revoked the applicant's license under s 26(1A) of the SI Act, which provides that the Commissioner must revoke a licence where the Commissioner is satisfied that if the applicant were applying for a new licence, the application would be required by the Act to be refused. Section 16(1) sets out the circumstances in which refusal would be mandatory, including (b), that within the preceding 5 years, the applicant had been found guilty, without conviction recorded, of an offence prescribed by the regulations. Clause 15(1A) of the Regulation prescribes most of the offences listed in cl 15(1), including an offence "involving stalking or intimidation" (cl 15(1)(i)). In this case the offence of which the applicant was found guilty (without conviction being imposed) was the Criminal Code provision prohibiting using a telecommunications network in such a way "that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive".
3. Section 26(1) enumerates a number of grounds that give the Commissioner a discretionary power to revoke a licence, but in this instance the respondent relies on the mandatory revocation provision in s 26(1A). As O'Connor J noted in his ex tempore decision in Bourke, the SI Act licensing scheme has divided the manner in which licensing will be conducted into categories, where certain applications must be refused mandatorily and others where applications will be considered on a discretionary basis: "So we have got a licensing scheme that has mandatory elements to it and discretionary elements to it".
4. The tribunal in Bourke, a decision that has been followed in many subsequent cases, made it clear that the tribunal must refuse to grant a licence where the Act mandates refusal on the basis of certain offences set out in the regulation to that Act. It has no discretion in the matter. O'Connor J stated in that case that:- Having made those observations, it would be clear, I think to those listening that I consider the tribunal does not have any discretion of its own to exercise in relation to the various appeals that are before it this morning…. In light of those conclusions, I consider that the only role that the Tribunal can perform in relation to mandatory refusals of licences under the Security Industry Acts scheme is to consider any applications which may be made where there is a question as to the objective facts to which the Commissioner has relied.
5. His Honour then proceeded to explain what was meant by "objective facts": The cases make it clear...that the Tribunal is only able to proceed to satisfy itself that the objective facts, as they are called, upon which the Commissioner relied were properly relied on by the Commissioner. That clearly goes simply to the question of whether there was a conviction or a finding of a charge proven of a kind which fits within the parameters of section 16.
6. There is no dispute that within the period of five years before the application was made, the applicant was found guilty (but with no conviction recorded) of an offence within the meaning of s 16(1)(b). The next question is whether that Criminal Code offence is a "prescribed offence", specifically "An offence…involving stalking or intimidation" under cl 15(1)(i).
7. In Farah the Appeal Panel noted that the provision there in issue referred 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" (at [39]). The tribunal could not look at the facts surrounding the offence to see if, in that particular case, the person had engaged in dishonest conduct: 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" (at [42]).
8. In Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 861, another case where the meaning of "offence involving dishonesty" was in issue, Bell J had said, "It seems to me that the crime or offence the subject of the conviction must be one which answers that description without further inquiry" (at [32]). In this case the parties agree that Farah and Barber lay down the correct approach to be taken in the present matter.
9. The crux of the present matter therefore resolves into the question whether the Criminal Code offence of using a telecommunications network in a way that reasonable persons would regard as "in all the circumstances, menacing, harassing or offensive" is an offence "involving stalking or intimidation" within cl 15(1)(i). As there is no dispute between the parties about the "objective facts", the question is purely a matter of statutory interpretation "without further inquiry". That process will entail giving general words their accepted legal meaning: Sterling Nicholas Duty Free Pty Ltd v Commonwealth [1971] 1 NSWLR 353, 358-359.
10. "Stalking" can be left out of account as being inapplicable to the use of telecommunications networks, whether for the purpose of menacing, harassing or of offending any person.
11. Of the phrase "menacing, harassing or offensive", only the word "menacing" could reasonably be regarded as falling within the connotation of "intimidation". It is therefore necessary to examine the meanings of those two words to determine whether there is a sufficient degree of equivalence between them to enable the tribunal to find that the concept of "intimidation" includes "menacing", such that the former "involves" or includes the latter. If it does not, the mandatory revocation procedure is inapplicable.
12. The Appeal Panel made it clear in Farah that to create "an offence involving dishonesty", a provision did not need to contain the word "dishonesty" (in its various forms): 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 obtained through indirect means such as false pretences and conspiracy to defraud: Barber…at [32]. Perjury is another example. There is also clear authority that obtaining money by false or misleading statements is an offence involving dishonesty….
13. Those observations apply in the present case; thus the Criminal Code telecommunication offence need not contain the word "intimidation" in order to qualify as a prescribed offence.
14. I therefore turn to the concept of "intimidation". Neither the SI Act nor the Regulation defines "intimidation" or "involving". Nor does either of them contain an objects clause, although the tribunal described the purpose of the Act in Feuerstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114, [11], providing some guidance for the process of interpretation: 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. The legislation was enacted to exclude from the industry persons convicted of prescribed offences.
15. Jowett's Dictionary of English Law (4th edn., Sweet and Maxwell 2015) defines "intimidation" as the use of violence or other threats to compel a person to behave in a particular way. It can denote "such intimidation as implies a threat of personal violence": Connor v Kent [1891] 2 QB 545, or "the using of language which causes another man to fear": Judge v Bennett (1887) 36 WR 103.
16. The definitions in general dictionaries are to a similar effect. The Macquarie Dictionary (6th edn.) defines "intimidating" as "1. Threatening". The online Oxford English Dictionary gives the meaning of, and synonyms for, "intimidation" as "Frightening, menacing, terrifying, scaring, alarming, terrorising, cowing, subduing, daunting, unnerving" (my emphasis). The online Cambridge Dictionary defines "intimidate" as "To frighten someone, usually in order to persuade them to do something that you want them to do" and lists among the synonyms "menacing" (my emphasis).
17. "Menaces" are "serious or significant threats", according to an often-quoted case: R v Clear (1968) 1 QB 670, 679. Sellers LJ's comments in that case use the words "threats" and "menaces" as synonyms: at 676D. His Lordship pointed out that while menaces are "threats likely to alarm the mind of an ordinary person of normal stability", they need not "affect the person actually addressed" (ibid.).
18. Lord Wright in Thorne v Motor Trade Association [1937] AC 797, 817 said that "I think the word "menace" is to be liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended".
19. The various definitions and lists of synonyms indicate that the words "menacing" and "threatening" are interchangeable. The only point of difference appears to be etymology. The word "menace" is originally French (menace, n.f.), while the origin of "threaten" (ƥrētian) is Old English, hence Germanic. Such parallel etymologies are quite common in English.
20. That leads to the conclusion that if conduct is threatening, it is also "menacing". And as Mr Grey pointed out, the word "involving" is used in several places in cl 15(1) as part of a generic description of various types of offences, such as an offence "involving assault of any description" (cl 15(1)(c), or "involving fraud, dishonesty or stealing" (cl 15(1)(d)) or "involving robbery (whether armed or otherwise)" (cl 15(1)(e).
21. Examples exist of other legislation creating offences plainly involving intimidation but that do not actually use the word, such as s 315A of the Crimes Act. Still other offences of intimidation describe prohibited intimidatory conduct as "menaces", such as s 99 of the Crimes Act. Consequently, as the authorities make clear, conduct that is threatening or menacing is conduct "involving… intimidation". Communications that are menacing also by their very nature constitute intimidation. Conduct falling within the Criminal Code offence therefore necessarily qualifies as a prescribed offence within s 15(1)(b) of the SI Act. As the Appeal Panel found in Farah in a similar context, the offence is one that involves intimidation "without further inquiry".
22. Mr Hamid emphasized that the Criminal Code offence with which the applicant was charged did not refer to intimidation and, moreover, he was not charged with intimidatory conduct as such, although such offences exist, for example ss 545B and 201A of the Crimes Act. As to the first point, the authorities quoted above establish that the offence provision need not include the word "intimidation" in order to constitute a prescribed offence. The offence with which the police decide to charge a person is a matter lying within their discretion and their choice of one provision rather than another has no bearing on the proper application of the relevant provisions. It is not one of the "objective facts".
23. Nor does the expressio unius principle support the applicant's case. That principle relates to legislation treating lists of similar matters in different terms. The offences listed in cl 15(1), however, are of a disparate nature, including firearms, fraud, assault and industrial relations matters as well as stalking or intimidation. Some of the offences, such as the drug offences, are identified specifically, while others are referred to in general terms such as offences involving assault of any description and offences involving robbery, whether armed or otherwise. The clause thus leaves little scope for the operation of the principle. In any event, expressio unius "is applied by the courts with extreme caution": D Pearce, R Geddes, Statutory Interpretation in Australia, 8th edn., Lexis Nexis Butterworths 2014, 179.
24. Counsel also submitted that revocation of Mr Luk's security licence would have serious adverse effects on his employment prospects, as his only work experience was in security and in construction, an area in which he could no longer work because of a workplace injury (the nature and severity of which he did not particularize). Loss of his licence would cause hardship for his extended family in South Sudan and Uganda, who in varying degrees depended on his income for their support.
25. The fact that the refusal or revocation of an occupational licence can have serious effects on an applicant's welfare is a factor that the tribunal regularly takes into account as a general guiding principle, as, for example, in Bourke. The tribunal does not strive to find ways of enlarging existing interpretations so as to widen the grounds of possible disqualification. As Farah and Barber establish, when applying the SI Act mandatory revocation provisions, the tribunal is concerned only with the "objective facts", and not with the other facts and circumstances of the case. In any event Lal v Director-General, Department of Transport [2001] NSWADT 74, [47], and subsequent cases (e.g. Husain v Roads and Maritime Services [2017] NSWCATOD 8, [34]), have held that hardship to an applicant is not a factor that can be taken into consideration on review of licensing decisions. The evidence that the applicant adduced on that point is therefore of little assistance to the tribunal.
26. Further, in light of the objectives of the legislation as inferred in Feuerstein, the matters that may be borne in mind include concerns relating to public protection, public safety and public confidence in the licensing system: Constantin v Commissioner of Police [2013] NSWADTAP 16, [33]. The Appeal Panel noted in Mielczarek v Commissioner of Police, New South Wales Police Force [2016] NSWCATAP 255 ([at 162]) that "occupational regulatory schemes such as the TP Act not only directly protect the public from harm, but also help to preserve public confidence in the regulated activity and its members".
27. In other circumstances I might have taken the view that the applicant's wrongdoing in the present case lay towards the lower end of the scale of culpability, a factor that might count in his favour in the exercise of any discretion. Under the mandatory revocation provisions, however, that is not relevant, as the tribunal has no discretion in the matter. Commenting on the security industry licensing system in Bourke in 1998, O'Connor J observed that "The impact of this scheme as reflected in the appeals that are here this morning is clearly quite draconian in relation to circumstances where people have had quite minor past convictions". His Honour urged the government to reconsider the way in which the scheme was currently structured, though he appreciated the public policy considerations that led the Parliament to take that approach. In the event, however, the Legislature's reconsideration of the SI Act has led to its being made wider and more stringent, rather than the opposite. Whereas originally the 1998 Regulation prescribed six categories of offence that were grounds for mandatory refusal, those categories have since been supplemented by six additional categories, including riot, affray, terrorism and organized criminal groups, as well as stalking and intimidation. The legislation has been strengthened in other respects also. The intention of Parliament is thus abundantly clear.
28. At the time of the hearing and of writing this decision I was unaware that Ransome SM had decided a very similar case the previous week: Gabriel v Commissioner of Police, New South Wales Police Force [2018] NSWCATOD 69. The reasons and decision are in substance identical with mine and of course I agree with them.
29. I therefore find that the Criminal Code offence that was found proved against the applicant is an offence involving stalking or intimidation and that consequently the mandatory revocation provisions apply. The application must therefore fail.

Order 1. Decision under review 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: 21 April 2023