The Applicant, Hans Martins-Gonzalez was issued with a Class 1ACE security licence under the Security Industry Act 1997 (the Act) on 28 October 2014. On 10 October 2019 that licence was revoked on the basis of a finding that on 8 June 2018, the Applicant had been found guilty, with no conviction recorded, of an offence under s 11C(1) of the Summary Offences Act 1988. The revocation decision was affirmed on internal review.
On 8 November 2019 the Applicant applied to the Tribunal for administrative review of the revocation decision, and also for an order under s 60 of the Administrative Decisions Review Act 1997 (the ADR Act), seeking an interim order that "the licence is reinstated and valid". The application for an order under s 60 of the ADR Act was subsequently refused by Principal Member Pearson.
[2]
Legislative scheme
Section 26(1A) of the 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 Act provides for the circumstances in which an applicant's criminal history will require a licence application to be refused. Relevantly, s 16(1)(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) of the Security Industry Regulation 2016 (the Regulation) sets out the types of criminal offences that disqualify applicants for the purposes of s 16(1)(b) of the Act:
(1A) 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) ...
Subclause 15(1)(a) of the Regulation provides, relevantly:
(1)(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm, or any other weapon, committed under:
(i) the law of any Australian jurisdiction, or
(ii) ...
and being an offence that would (had the offence been committed under the law of an Australian jurisdiction) disqualify the person concerned from holding a licence under the Firearms Act 1996.
Clause 5 of the Firearms Regulation 2017 (Firearms Regulation) sets out the types of criminal offences that disqualify applicants from holding a licence under the Firearms Act 1996 (Firearms Act). Somewhat circuitously, cl 5(1)(a) of the Firearms Regulation relevantly provides:
(a) Offences relating to firearms or weapons
An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under:
(i) the law of any Australian jurisdiction, or
...
Section 11C(1) of the Summary Offences Act 1988 provides:
11C Custody of knife in public place or school
(1) A person must not, without reasonable excuse (proof of which lies on the person), have in his or her custody a knife in a public place or a school.
Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.
2) Without limitation, it is a reasonable excuse for the purposes of this section for a person to have custody of a knife, if:
(a) the custody is reasonably necessary in all the circumstances for any of the following:
(i) the lawful pursuit of the person's occupation, education or training,
(ii) the preparation or consumption of food or drink,
(iii) participation in a lawful entertainment, recreation or sport,
(iv) the exhibition of knives for retail or other trade purposes,
(v) an organised exhibition by knife collectors,
(vi) the wearing of an official uniform,
(vii) genuine religious purposes, or
(b) the custody is reasonably necessary in all the circumstances during travel to or from or incidental to an activity referred to in paragraph (a), or
(c) the custody is of a kind prescribed by the regulations.
(3) However, it is not a reasonable excuse for the purposes of this section for a person to have custody of a knife solely for the purpose of self defence or the defence of another person.
(4), (5) (Repealed)
(6) The regulations may provide that this section does not apply to or in relation to any specified class or description of knife.
Section 3(1) of the Summary Offences Act defines "knife" as follows:
knife includes: a knife blade, or a razor blade, or any other blade,
but does not include anything that is of a class or description declared by the regulations to be excluded from this definition.
The Summary Offences Regulation 2015 does not provide for any exclusions to the definition of "knife" for the purposes of s 11C of the Summary Offences Act.
[3]
What led to the revocation?
On 8 June 2018 the Applicant was found guilty, with no conviction recorded, of an offence under s 11C(1) of the Summary Offences Act, of having "in his or her custody a knife in a public place...". The Applicant was discharged pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. The offence related to a "Swiss army" multifunction tool, which included a blade.
The revocation decision was based on the application of s 26(1A) of the Act, namely that the Commissioner must revoke a licence if satisfied that if the licensee was applying for a new licence, that application would be required to be refused. Section 16(1)(b) of the 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 NSW or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought. Clause 15(1A) of the Regulation states that for the purposes of s 16(1)(b) of the Act, an offence referred to, relevantly, in subclause 15(1)(a) is a prescribed offence if the person committed an offence relating to the possession or use of a firearm or any other weapon, which would disqualify them from holding a firearms licence: cl 5(a) of the Firearms Regulation.
The Respondent's position that the finding of guilt (without conviction) of the offence relating to possession of a knife in a public place means that, had the Applicant been applying for a new licence, it would have to be refused, and that, as a consequence, the Commissioner, and hence the Tribunal on review, is bound by s 26(1A) of the Act to revoke the licence.
[4]
Consideration
The Applicant provided a statement dated 18 November 2019, which he supplemented in his evidence. He conceded that on 8 June 2018 he was found guilty, with no conviction recorded, of an offence under s 11C(1) of the Summary Offences Act, of having "in his or her custody a knife in a public place...". The Applicant said he is not a person who would use a knife, not have a need to use a knife. He said it posed no risk, and nor had he used it. He said the tool can have up to 27 functions, including a blade. He only now contends (and apparently not before the magistrate) that this is not a "knife" or "weapon" as such, instead a multi-function tool, of a size no larger than an average sized thumb. Before me he provided a copy of a photograph, which, indeed depicted a device with a very small blade.
The Applicant submitted that the context of the offence should be considered. He said that in the week after Christmas in 2018, he went to a nightclub with a friend. He had recently separated from his wife. At the club drank too much and was evicted, leaving everything except his phone and the tool inside. He did not leave when asked and police were called and he was charged with 3 offences. The Applicant was subsequently also found guilty with no conviction recorded, and received a s 10 bond, for a further offence of Resist Officer in Execution of Duty. A charge of Remain in Vicinity of Licensed Premises was dismissed.
He said that he did not appreciate that pleading guilty to the charge in relation to the knife would have an impact upon his security licence. He would have explained that he had a genuine reason to have the knife. He said that he had it for "genuine religious purposes", citing an expectation that he would receive a Christmas present and that the multitool was a Christmas gift from his father. He did not give evidence that he had only just received it that night and therefore could not store it in his bag, at his friend's or elsewhere. I do not accept his contention that it he had it for "genuine religious purposes" falls within the meaning of the exception in s 11C(2)(vii) of the Summary Offences Act.
The Applicant noted that he was not convicted of the offence. He also referred to s 3 of the Summary Offences Act which defines "knife" to include a knife blade, or a razor blade, or any other blade, but that a multitool is not mentioned in the definition of "knife", and hence it was his submission that it was not a "knife" at all.
Clause 15(1)(a) of the Regulation refers to "an offence relating to the possession or use of a firearm, or any other weapon". I agree with the analysis of PM Pearson that while "weapon" is not defined in the Act or the Regulation, the common or ordinary meaning of that term as defined in the Macquarie Dictionary (online edition) as "any instrument for use in attack or defence in combat, fighting, or war, as a sword, rifle, cannon, bomb, etc.", would clearly include a knife. I also accept that "possession" as used in cl 15(1)(a) is synonymous with the term "custody" in s 11C(1) of the Summary Offences Act. The test, in my view, is an objective one, and it is irrelevant whether the Applicant intended to use the implement in any aggressive fashion; it is the fact that the Applicant was found guilty of having in his possession an implement which included a blade that is determinative. It was open to Parliament to specify the size of a blade or to specifically exempt a "Swiss army" type tool from the definition of "knife" for the purposes of s 11C of the Summary Offences Act, but it did not do so. I am satisfied that the offence under s 11C(1) of the Summary Offences Act, for which the Applicant was found guilty, is an offence "relating to the possession of ... any other weapon" as prescribed in cl 15(1)(a) of the Regulation.
The authorities are clear - in applying cl 15 of the Regulation, it is the offence for which the person has been convicted or 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: Farah v Director, Department of Finance and Services [2014] NSWCATAP 23; Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23. Hence, it irrelevant what type of knife was in the Applicant's possession, or whether there was or would be any prospect of improper use. It is the fact of the finding of guilt of the offence under s 11C(1) of the Summary Offences Act 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.
The Applicant contended that he is a fit and proper person to hold a security licence and noted his incident free record as a security officer. In that regard he referred to Haynes v Commissioner of Police [2001] NSWADT 52, but the issue in that matter, unlike the present application for review, involved the exercise of the Tribunal's discretion.
The decision to revoke the security licence was mandatory under the relevant provisions of the Act and the Regulation. 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. …
At the hearing of the stay application and before me the Applicant stated that he had been working full time in corporate security. He needs his licence for financial reasons, and needs to pay rent as well as provide support for his child with his former partner. He has now been unemployed for a year. His licence was for unarmed security and there is no history of issues with knives. He cannot get other work, he claimed, if he discloses his record, and some employers regard a security licence as, effectively, a short-cut police check, even if the job does not entail security work. While other provisions of the Act confer a discretion in relation to revocation of a licence, unfortunately for the Applicant, there is no discretion in the present matter. Consequently consideration of whether he is a fit and proper person, and his personal and financial circumstances are not relevant.
[5]
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: 03 March 2023