Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force; Abughazaleh v Commissioner of Police, NSW Police Force

NCAT Occupational|2017-05-15|Before: Dr J

unsel: Mr Carney (Applicants) P Herzfeld (Respondent in both matters in relation to the Constitutional issue)

Solicitors: Hutchison Lawyers (Applicants) Bartier Perry Lawyers (Respondent) NSW Crown Solicitors Office (Respondent in both matters in relation to the Constitutional issue) File Number(s): 2016/00384875 and 2016/00384879

REASONS FOR DECISION

These proceedings concern the question of whether it the correct and preferable decision is to revoke Mr Abughazaleh's security licence and the master licence of Sydney Training Academy, a corporation controlled by him.
The respondent ("the Commissioner") maintains that the applicants were training New South Wales residents so that they could obtain Queensland security licences, with a view to those residents then obtaining a New South Wales security licence, by way of the mutual recognition legislation. The New South Wales criteria for obtaining a security licence are more stringent than those applying in Queensland. The Commissioner also says that Mr Abughazaleh was training students in breach of his licence conditions.

Background

On 8 January 2010, Mr Abughazaleh incorporated Training First Pty Ltd ("Training First") for the purposes of providing training and assessment in partnership with registered training organisations to deliver training courses.
On 18 October 2010, Mr Abughazaleh sent an email to the Commissioner's security licensing staff on behalf of Training First stating that the organisation wished to provide Certificate II security training courses to applicants in New South Wales wishing to relocate to Queensland. In the email, he asked what the requirements were "to be compliant with NSW". He did not receive an answer to this question.
On 4 May 2011, Mr Abughazaleh applied for a security licence under the Security Industry Act 1997 (NSW). That application was granted.
On 1 June 2011, Mr Abughzaleh bought shares in Sydney Training Academy Pty Ltd ("Sydney Training Academy") and became a director of the company. He became the sole director and shareholder of that company on 26 July 2012.
Sydney Training Academy is a registered training organisation under the National Vocational Education and Training Regulator Act 2011 (Cth) ("the Federal Act"). It is taken to have been registered under that Act since 1 July 2011.
On 8 June 2011, the following condition ("the Training Condition") was imposed on Mr Abughazaleh's class 2D security licence: "… you may only conduct training, instruction or assessment in the units of competency identified in the Security Licensing and Enforcement Directorate (SLED) document Competency Requirements for Provisional and Class 1 Licenses (D\2011\52420), excepting HLTFA301B (Apply First Aid): - on behalf of a Registered Training Organisation (RTA) that is approved by the Commissioner under clause 45 of the Security Industry Regulation 2007, and - in accordance with the conditions that the Commissioner has imposed on that RTO's approval."
On 1 February 2012, Training First entered into a contract with a Queensland organisation, Peacemakers Security Pty Ltd, trading as Peacekeepers Security & Training Institute ("Peacekeepers"), for the provision of training. Mr Abughazaleh signed the agreement on behalf of Training First and was named as a qualified instructor on the contract.
On 12 October 2012, Mr Abughazaleh applied to be a close associate of Sydney Training Academy.
On 20 January 2013, Sydney Training Academy was issued with a corporation master security licence under the Security Industry Act. Mr Abughazaleh was the nominated person for Sydney Training Academy's master licence (see Security Industry Regulation 2007, cl 13(3)(c); and now Security Industry Regulation 2016 (NSW), cl 12(4)(c)).
On 17 July 2013, security licensing officers conducted an audit of Sydney Training Academy and Training First.
On 15 June 2016, Mr Abughazaleh was issued with a Class 1AC2D security licence. This authorised him to perform security activities as an unarmed guard, a crowd controller and a security trainer. The licence was subject to the Training Condition.
On 14 July 2016, the Commissioner's delegate sent Mr Abughazaleh and Sydney Training Academy notices informing them of the proposed revocation of their individual and master licences. The ground for the proposed revocation was that Mr Abughazaleh, as nominated person of Sydney Training Academy and previously of Training First, in partnership with Peacekeepers, was facilitating the provision of licences to New South Wales residents through the mutual recognition legislation. This was said to be by way of assisting students first to obtain a Queensland security licence and then to obtain a licence under the Security Industry Act by way of registration under the mutual recognition legislation.
The applicants responded to the notice, through their lawyers, by letter dated 5 August 2016, denying the allegations.
On 19 July 2016, the Australian Skills Quality Authority ("ASQA"), a federal regulatory authority, cancelled the registration of Peacekeepers as a registered training organisation. ASQA found that Peacekeepers had issued qualifications to some students without those students undertaking the proper training and assessment.
On 29 September 2016, the Commissioner's delegate revoked the master licence of Sydney Training Academy and the security licence of Mr Abughazaleh, on the grounds stated in the notice of 14 July 2016. The decision was made on the basis that it was not in the public interest for either applicant to hold a security licence, within s 26(1)(d) of the Security Industry Act and cl 29 of the Security Industry Regulation 2007.
This decision was affirmed on internal review.
Mr Abughazaleh and Sydney Training Academy then sought review of the revocation decisions in the Tribunal.

Tribunal's jurisdiction

The applicants are entitled to apply to the Tribunal, under s 29(1)(c) of the Security Industry Act, for a review of the decisions to revoke their licences.
The Tribunal has "administrative review jurisdiction" over a decision of an administrator in the circumstances set out in the Administrative Decisions Review Act 1997 (NSW) (Civil and Administrative Tribunal Act 2013 (NSW), s 30(1)). That Act provides, in s 9(1)(a), that the Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act of any such decision made by the administrator in the exercise of functions conferred or imposed by or under the legislation. Section 29(1)(c) of the Security Industry Act so provides.

Constitutional issue

On the first day of the hearing, the applicants' counsel appeared to be making a submission that the Security Industry Act was inconsistent, in some way, with the Federal Act. I indicated that the Tribunal would be assisted by clearer submissions in relation to the constitutional issue, if it was to be agitated, and made orders requiring the parties to file written submissions before the hearing resumed, some time later.
On 27 July 2017, the applicants filed a document entitled "Notice of a Constitutional matter under s 78B of the Judiciary Act 1903". The nature of the Constitutional matter was described in that notice as "the inconsistency of State and Federal law". The substance of the alleged inconsistency, as asserted in the notice, is that s 6A of the Security Industry Act, insofar as it purports to exclude the Federal Law, is ultra vires and unconstitutional.
The applicants' counsel said at the hearing that the notice had not been served on the Attorneys-General of the States and Territories.
Section 78B of the Judiciary Act 1903 (Cth) only applies where, relevantly, a cause is pending "in a court of a State". The Tribunal, when conducting merits review, is not a court of a State (see, in the context of discrimination claims, Burns v Corbett; Gaynor v Burns [2017] NSWCA 3; (2017) 316 FLR 448 and Sunol v Collier (2012) 81 NSWLR 619). Accordingly, that provision is not applicable to the Tribunal in these proceedings.
The basis on which the applicants assert an inconsistency between the Security Industry Act and the Federal Act is not entirely clear. The argument is best captured by the following paragraph of the applicants' submissions: "The amendment 6A to the Security Industry Act in so [sic] as it purports to exclude the Federal Act for training in NSW is ultra virus [sic] and unconstitutional. It is retrospective to July 2011. At its highest this amendment could only effect [sic] state training courses under the security [sic] Industry Act but could not exclude ASQA approved courses. He tried to say Federal Law prevails over the state law… section… This amendment was probably was [sic] enacted to deal with the factual matrix of cases X and Y. It cannot affect courses conducted under the Federal Law. It does not give authority to the NSW police to regulate any ASQA courses."
Counsel for the respondent, Mr Herzfeld, who acted in relation to the constitutional issue, identified the bases upon which the applicants impugn the Security Industry Act as being the following: 1. the Federal Act and the establishment of ASQA under that Act deprive the State of legislative power with respect to "training" and any regulatory action taken by the NSW Police based upon the Security Industry Act is accordingly beyond power; and 2. s 6A of the Security Industry Act is beyond power insofar as it purports to exclude the Federal Act or affect courses conducted under the federal law.
The applicants' counsel did not submit that this was an inaccurate summary of his clients' position. I accept that this is a fair statement of the applicants' case.
New South Wales has referred power to the Commonwealth under s 51(xxxvii) of the Constitution to support the making of the Federal Act: see Vocational Education and Training (Commonwealth Powers) Act 2010 (NSW).
Section 9(1)(a) of the Federal Act relevantly provides that an "NVR registered training organisation" operating in a State is not subject to a State law relating to the registration and regulation of vocational education and training organisations. An "NVR registered training organisation" is "a training organisation that is registered by the National VET Regulator [that is, ASQA] as a registered training organisation under" the Federal Act (Federal Act, s 3). Sydney Training Academy is an "NVR registered training organisation."
Section 10(2) of the Federal Act provides that that Act, other than s 10 and Part 2, does not apply in relation to a matter which a law of a referring State (such as New South Wales) has declared to be an "excluded matter" to the extent that the declaration so provides.
Section 6A of the Security Industry Act commenced on 25 June 2012. It was amended on 24 November 2015 by the Security Industry Amendment (Regulation of Training Organisations) Act 2015 (NSW), which inserted s 6A(2A) and (4) and amended s 6A(3). Subsection 6A(2) provides: "The State security industry regulation provisions are declared to be an excluded matter for the purposes of section 10 of the Commonwealth Act in relation to section 9 (Immunity from State and Territory laws) of the Commonwealth Act to the extent only that that section prevents the application of the State security industry regulation provisions to an NVR registered training organisation (within the meaning of the Commonwealth Act) providing training, assessment or instruction in relation to security activities regulated by this Act."
The term "State security industry regulation provisions" is defined in s 6A(1) of the Security Industry Act to mean the provisions of that Act and the Security Industry Regulation: 1. regulating organisations providing training, assessment or instruction in relation to any security activity, and 2. providing for the approval by or under the Security Industry Act of training, assessment or instruction provided by organisations, and 3. providing for the exercise of investigative powers, sanctions and enforcement by or under the Security Industry Act in relation to such matters.
As the Commissioner submits, the effect of s 6A(2) is that, in relation to provisions of the Security Industry Act falling within the s 6A(1) definition, the immunity from State laws provided by s 9(1) of the Federal Act to "NVR registered training organisations" providing training, assessment or instruction in relation to security activities regulated by the Security Industry Act is displaced. I also accept the respondent's submission that this is sufficient to allow the provisions of the Security Industry Act to operate according to their terms, and that there is nothing in Part 2 of the Federal Act which is inconsistent with the operation of these provisions.
Section 6A(2) is taken to have had effect from 1 July 2011, by operation of s 6A(3). Of course, this provision cannot avoid the operation of the Constitution, if there had been any inconsistency between the Security Industry Act and the Federal Act, prior to the commencement of s 6A on 25 June 2012 (see University of Wollongong v Metwally (1984) 158 CLR 447). This issue does not need to be considered, however, because the events and circumstances upon which the Commissioner relied mainly occurred after 25 June 2012. I have limited my consideration of the facts to those occurring from that date.
I am not satisfied that there is any inconsistency between the provisions of the Security Industry Act and those of the Federal Act in the period from 25 June 2012 to date. Accordingly, I reject the applicants' submission that s 6A of the Security Industry Act is ultra vires, and their argument that the NSW Police do not have power to regulate security courses to which the Federal Act applies.
The Commissioner also submitted that, even if there were an inconsistency between Part 2 of the Federal Act and the Security Industry Act, s 11(4) of the Federal Act and s 6A(2A) of the Security Industry Act would operate to displace the provisions of the Federal Act. Whilst it is not strictly necessary to address this argument, I accept the Commissioner's submission that this is the case.

Grounds for revoking licence

The Commissioner relies on the following grounds for revoking Mr Abughazaleh's licence: 1. he has contravened a condition of his licence (Security Industry Act, s 26(1)(b)(iii)); 2. he is not a fit and proper person to hold a licence (Security Industry Act, ss 15(1)(a), 26(1A)); and 3. it is not in the public interest that he retain his security licence (Security Industry Act, s 26(1)(d) and Security Industry Regulation 2016, cl 25(1)).
The Commissioner submits that the revocation of the master licence of Sydney Training Academy is the correct and preferable decision because: 1. neither Mr Abughazaleh nor Sydney Training Academy is a fit and proper person to hold a licence, making the revocation mandatory (Security Industry Act, ss 15(1)(a) and (5), 26(1A)); and 2. it is not in the public interest that Sydney Training Academy retain its master licence (Security Industry Act, s 26(1)(d) and Security Industry Regulation 2016, cl 25(1)).

Relevant Legislative Provisions

Revocation of a licence is mandatory where the Commissioner is not satisfied that the applicant or, in the case of an applicant for a master licence, a close associate of the applicant, is a fit and proper person to hold the licence. Section 26(1A) of the Security Industry Act provides: "(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 15(1)(a) and (5) of the Security Industry Act provide: "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, … … (5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant."
Clause 14 of the Security Industry Regulation 2016 provides that, for the purposes of s 15(5) of the Security Industry Act, a reference to an applicant in section 15(1)(c)-(f) of the Act does not include a reference to a close associate of the applicant.
The Commissioner also has a discretion to revoke a licence, including where the licence holder has contravened a condition of the licence and where it is contrary to the public interest for the licence holder to continue to hold the licence. Section 26(1) of the Security Industry Act relevantly provides: "26 Revocation of licence (1) A licence may be revoked: … (b) if the licensee: … (iii) contravenes any condition of the licence, or … (d) for any other reason prescribed by the regulations."
Clause 25 of the Security Industry Regulation 2016 provides: "25 Revocation of licence - additional reasons: section 26 (1) (d) (1) For the purposes of section 26 (1) (d) of the Act, a licence may be revoked 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. (2) For the purpose of determining whether it would be contrary to the public interest for a person to continue to hold a licence, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the person that: (a) is relevant to the activities carried on under the class of licence held by the person, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the person continues to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the person continues to hold the licence. (3) The Commissioner is not, under the Act or any other Act or law, required to give any reasons for revoking a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in subclause (2)."
The Tribunal's function is to decide what the correct and preferable decision is having regard to the material before it: Administrative Decisions Review Act, s 63(1).

Did Mr Abughazaleh contravene a condition of his licence?

The Commissioner submits that Mr Abughazaleh has engaged in a security activity in New South Wales, namely training and assessment, without holding the appropriate New South Wales security licence and/or in contravention of a condition of his class 2D licence (namely, the Training Condition).
For reasons which are set out below, I am satisfied that Mr Abughazaleh contravened the conditions of a security licence held by him prior to 15 June 2016. Notwithstanding this, I am not satisfied that it is open to me to affirm the revocation of Mr Abughazaleh's licence on the ground that he contravened a condition of his licence.
The security licence held by Mr Abughazaleh, which was revoked by the Commissioner, was granted on 15 June 2016. The conduct of Mr Abughazaleh, in breach of his licence conditions, occurred before that date.
Section 26(1)(b)(iii) of the Security Industry Act permits a licence to be revoked if the licence holder contravenes a condition of "the licence." In my opinion, the definite article ("the") before the word "licence" indicates that the licence in question must be the licence held by the licence holder at the time. There is no evidence that Mr Abughazaleh contravened the conditions of his security licence after 15 June 2016.
It may be that a licence which has been renewed is the same licence as that held before the renewal. That is, it may be that "the licence" referred to in s 26(1)(b)(iii) of the Security Industry Act includes a licence held in the period before an applicant's current licence, where that licence was renewed.
I do not need to decide this, given the conclusion I have reached as to Mr Abughazaleh's fitness and propriety to hold a licence.

Is Mr Abughazaleh a fit and proper person to hold a licence?

The expression "fit and proper person" is a common statutory term which has been considered by this Tribunal and in other jurisdictions in numerous cases.
In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-157, the High Court said: "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: "The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
Their Honours went on to say at 388: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of the Administrative Decisions Tribunal made the following comments on the meaning of the expression, in the context of the security industry: "Whether a person is 'fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry."
In IJ v Commissioner of Police, NSW Police Force [2003] NSWADT 230 at [27], Montgomery JM of the Administrative Decisions Tribunal commented that "the expression 'fit and proper person' takes its meaning from its context. A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe."
In Brandusoiu v Commissioner of Police, NSW Police Force [2011] NSWADT 57 at [48], Montgomery JM observed that "honesty and integrity are implicit requirements for the holder of" a security licence.
I approach the question of whether Mr Abughazaleh is a fit and proper person to hold a security licence in light of the statements of principle set out above.
In support of the position that Mr Abughazaleh is not a fit and proper person to hold a licence, the Commissioner relies upon the following propositions: 1. Mr Abughazaleh engaged in a security activity in New South Wales, namely training and assessment, without holding the appropriate New South Wales security licence and/or in contravention of the conditions of his class 2D licence; and 2. Mr Abughazaleh and Sydney Training Academy were associated with Peacekeepers, from 2012 to 2016, and have provided security training and assessment in New South Wales, and to residents of this State, to obtain a Queensland licence and to the subsequently seek a New South Wales licence under mutual recognition laws; 3. Mr Abughazaleh lacked candour and frankness in his evidence and was not always honest when giving evidence.

Breach of licence conditions

A person carries on a security activity if the person carries on the activity of providing training or instruction, or the activity of assessing another person's training, instruction or competencies, in relation to any security activity referred to in s 4 of the Security Industry Act in the course of conducting a business or in the course of the person's employment (Security Industry Act, s 4(1)(j) and (k)).
Putting to one side the constitutional issues, it does not appear to be in dispute that, if Mr Abughazaleh conducted training in New South Wales, this constituted engaging in a security activity in that State. Mr Abughazaleh said, however, that he was not carrying on the security activity of providing training and instruction within the Security Industry Act where he was conducting a course under the Federal Act.
The Training Condition, set out above, only permitted Mr Abughazaleh to conduct training for an approved organisation. Neither Sydney Training Academy, Training First nor Peacekeepers was an approved organisation to provide security training: see Security Industry Act, s 15(2), (2A) and (2B) (as in force up to 8 May 2017), Security Industry Regulation 2016, cl 43 and, prior to the commencement of this regulation, Security Industry Regulation 2007 (NSW), cl 45. Mr Abughazaleh accepted, under cross examination, that this was the case.

Training between 25 June 2012 and May 2013

The Training Condition applied to Mr Abughazaleh's licence from 8 June 2011. Mr Abughazaleh's evidence is that he conducted training for the course Security II in Security Operations in New South Wales in 2012 and 2013, for Training First, pursuant to a contract with Peacekeepers. He accepted that he did not check whether Peacekeepers was an approved organisation. He said Peacekeepers work under the Federal Act and that the course he was teaching, Security II in Security Operations, was approved by ASQA. He denied conducting any training under the Security Industry Act. Mr Abughazaleh also denied that he had breached the Training Condition when conducting training with Peacekeepers.
Mr Abughazaleh was "providing training or instruction in relation to" security activities referred to in s 4 of the Security Industry Act, and was doing so in the course of conducting a business or in the course of his employment. He was therefore carrying on a security activity (Security Industry Act, s 4(1)). It was an offence to carry on a security activity unless this was authorised by his licence (Security Industry Act, s 7(2)). It was not, as neither Peacekeepers, Training First nor Sydney Training Academy were approved organisations.
I do not accept Mr Abughazaleh's constitutional argument for the reasons given above. Nor do I accept that, because the course was approved by ASQA, Mr Abughazaleh was not conducting training within the Security Industry Act.
It follows that Mr Abughazaleh breached a condition of the licence he held in 2012 and 2013. It is relevant to his fitness and propriety to hold a security licence to consider whether or not he did so knowingly, and whether there are any extenuating circumstances.
As indicated above, Mr Abughazaleh made an enquiry with the New South Wales security licensing staff, by email in October 2010, as to what the requirements were to be "compliant with NSW", when offering training to students wishing to relocate to Queensland. I accept his evidence that he did not receive an answer to his enquiry. He also says he had a telephone conversation with a security licensing officer in New South Wales who told him that he would have to talk to the Office of Fair Trading in Queensland. He does not provide the details of what he told the officer, which elicited this response.
Mr Abughazaleh was then informed, by letter of 8 June 2011, that the Training Condition had been imposed upon his licence. The letter states that "[t]his condition will only impact you if you are involved in conducting training, instruction or assessment within NSW in relation to units of competency from the Certificate II in Security Operations or Certificate III in Security Operations qualifications." This is exactly what Mr Abughazaleh was doing and/or what he proposed to do. At the very least, it was reckless for Mr Abughazaleh to provide training in relation to units of competency from the Certificate II in Security Operations after receiving that letter.
I do not accept that it was reasonable for Mr Abughazaleh to believe, after 8 June 2011, on the basis of the email inquiry above, the telephone conversation with the security licensing officer referred to above, and/or any telephone conversations with the Office of Fair Trading in Queensland, that he was permitted to provide training for the Certificate II in Security Operations, other than for an approved organisation. I find that he provided such training, either knowing that the provision of training was in breach of his licence conditions, or being reckless as to whether it was in breach of the conditions.

Training after audit in July 2013

The Commissioner alleges, and the applicants deny, that Mr Abughazaleh continued to provide security training in this State after Training First and Sydney Training Academy were audited on 17 July 2013.
Mr Abughazaleh says that he told Ms Ruby Andrews, an Authorised Enforcement Officer of the Security Licensing and Enforcement Directorate, on the day of the audit, that he had stopped the training by Training First some time earlier because an officer of Peacekeepers had asked him to. He said "they" may need to issue a refund to students. He later said, in cross examination, that he ceased training in New South Wales in May 2013.
I am not prepared to accept this evidence, given Ms Andrews' evidence that, when she attended the premises of Sydney Training Academy, a woman behind the desk had piles of paper in front of her which were Peacekeepers security course books. She said that the woman told her that Mr Abughalazleh had asked her to put the assessment dates on the book. Ms Andrews took photographs of the books, which are in evidence.
Ms Andrews' evidence on this point was unchallenged and I accept it. I have found Mr Abughazaleh to be an unreliable witness. It is unlikely that, if Mr Abughalazleh had ceased training in May 2013, he would have instructed a staff member to put assessment dates on the security course books over six weeks later. I find that he was still providing security training in this State at this time.

Training in late 2013

Training certificates issued by Peacekeepers in December 2013 identify Training First as having conducted the training of four students. The students who received these certificates were residents of New South Wales.
Mr Abughazaleh accepted in cross examination that Training First could have provided training to those students in December 2013, but said that the training was provided in Queensland. He did not, however, mention Training First providing training in Queensland in his affidavit, filed prior to the hearing. Further, he instructed his lawyers to respond to a notice of proposal to revoke a licence in August 2016. The notice alleged that Mr Abughazaleh was facilitating the provision of security qualifications to New South Wales residents for the purpose of those residents obtaining a Queensland security licence then a New South Wales licence under mutual recognition legislation. The response did not refer to Training First providing training in Queensland.
Other evidence, referred to below, establishes to my satisfaction that, as at July 2013, Mr Abughazaleh provided training to New South Wales residents for the purpose of them obtaining Queensland security licences, then obtaining New South Wales security licences via the mutual recognition legislation. I am also satisfied that Mr Abughazaleh was not honest about his involvement in this scheme. For reasons which follow, I have also rejected Mr Abughazaleh's evidence that he did not train students in New South Wales in 2015.
In light of this evidence, Mr Abughazaleh's lack of credibility, and the fact that the training in December 2013 was provided to New South Wales residents, I find that the training was provided in New South Wales.

Training of Mr Papadellis and another student in 2015

Records obtained from Peacekeepers indicate that Mr Papadellis and another student, Mr Abdulwahab, were trained by Sydney Training Academy and issued with a certificate in November 2015. Both obtained a Queensland security licence then applied for a New South Wales security licence under mutual recognition laws.
The Commissioner filed documents in these proceedings, pursuant to s 58(1)(c) of the Administrative Decisions Review Act ("the s 58 documents"). That provision requires an administrator to file in administrative review proceedings all documents the administrator considers to be relevant to the determination of the application by the Tribunal.
The s 58 documents included an application for a licence under the Security Industry Act made by John Papadellis on 30 November 2015, which annexed a Certificate II in Security Operations in Mr Papadellis's name, issued by Peacekeepers. The Commissioner relied upon this document to support the submission that Sydney Training Academy and Mr Abughazaleh were conducting training in 2015, contrary to the conditions of Mr Abughazaleh's licence.
Mr Abughazaleh initially denied that Sydney Training Academy had trained Mr Papadellis.
Mr Abughazaleh said that he had obtained Mr Papadellis's phone number from the s 58 documents. He said he telephoned Mr Papadellis, after receiving those documents, and introduced himself, and that the purpose of his call was to clarify the evidence. Mr Abughazaleh's evidence was that Mr Papadellis had said that Mr Abughazaleh had not trained Mr Papadellis before and that he had asked Mr Abughazaleh how he had obtained Mr Papadellis's telephone number. Mr Abughazaleh also said that Mr Papadellis told him that he did the course in Queensland with a trainer from Peacekeepers.
Mr Mattson, for the Commissioner, asked Mr Abughazaleh some questions concerning his prior involvement with Mr Papadellis. When shown evidence of telephone calls with Mr Papadellis on 20 and 21 October 2015, Mr Abughazaleh accepted that it was possible he had communications with Mr Papadellis on those dates. When asked whether he recalled receiving a text message from Mr Papadellis on 16 March 2017, he said he did not know. He also said he could not recall having a telephone discussion with Mr Papadellis that day lasting 76 seconds.
Mr Mattson showed Mr Abughazaleh a certificate dated 19 December 2013 from Peacekeepers certifying that a particular individual had fulfilled the requirements for Certificate II in Security Operations. It then had the words "Statement No 8215 Training First Pty Ltd." A spreadsheet from Peacekeepers apparently recorded training by "Training First" on 19 December 2013 with the numbers 8214 to 8217. Mr Abughazaleh said he could not say whether that was an accurate record or not.
Over the lunch break, Mr Abughazaleh checked some records. When the hearing resumed, he gave evidence that Mr Papadellis had done a one-day first aid course on 17 March 2017. Mr Abughazaleh said that he had not provided the training personally, but a staff member had.
Phone records produced by the Commissioner show that Mr Papadellis was not on site doing the course on 17 March 2017. He was in various other places in Sydney. Further, Mr Papadellis already had a first aid certificate which was valid for three years from 22 June 2015. I do not accept Mr Abughazaleh's explanation that Mr Papadellis was doing a refresher course. As the telephone records indicate, Mr Papadellis did not complete any training course at the premises of Sydney Training Academy on 17 March 2015.
The telephone records provide clear evidence of contact between Mr Papadellis and Mr Abughazaleh prior to the service of the s 58 documents in March 2017. I accept the evidence that Mr Papadellis called Mr Abughazaleh on 20 October 2015 and that they exchanged text messages about this time. Mr Papadellis then obtained a Certificate II in Security Operations on 17 November 2015, through Sydney Training Academy, as the documentary evidence shows.
I also find that the documentary evidence establishes that Mr Papadellis and Mr Abughazaleh had telephone contact and exchanged text messages on 16 March 2017, prior to the service of the s 58 documents. Mr Abughazaleh's claim that he "introduced himself" to Mr Papadellis later in March 2017 is untruthful. It is unlikely that Mr Abughazaleh would have forgotten having a telephone conversation with Mr Papadellis less than a week earlier. It is also unlikely that Mr Papadellis would have asked Mr Abughazaleh how he got his number. I find that Mr Abughazaleh already knew Mr Papadellis.
Mr Papadellis made a statement in the proceedings, at Mr Abughazaleh's request. Mr Papadellis said in that statement that he was trained by an officer of Peacekeepers when completing a security licence training course. He also said that he completed the course in Queensland in November 2015 then relocated to Sydney on 10 October 2016. In an email to security licensing staff, annexed to his statement, Mr Papadellis says that he relocated to Queensland prior to completing the security course.
On 22 April 2017, the Commissioner's lawyers asked the applicants to provide Mr Papadellis for cross examination. At the hearing on 15 May 2017, the applicants did not make him available for cross examination. Their counsel, Mr Carney, said he had had difficulty contacting Mr Papadellis. This is unacceptable, especially when a party is represented by solicitors and counsel. If genuine and concerted efforts had been made to contact Mr Papadellis, without success, the applicants' legal advisers should have informed their opponents, in advance of the hearing, and produced some evidence of their unsuccessful attempts to contact their witness.
I asked Mr Carney to arrange for someone to telephone Mr Papadellis on the day of the hearing, with a view to arranging for him to come to the Tribunal or to give evidence by telephone. Mr Carney reported after the lunch break that the attempt to contact Mr Papadellis had been unsuccessful. Following a short further adjournment, Mr Carney told the Tribunal that his client had "made contact with Mr Papadellis who's under medication and is a bit incoherent" and that Mr Papadellis could not attend that day. Mr Abughazaleh then gave evidence that Mr Papadellis had told him on the telephone that he was on heavy medication.
The hearing was adjourned to another day. So as to ensure that a summons would be issued, I made an oral direction that the Registrar issue a summons for the attendance of Mr Papadellis at the next hearing. My understanding was that the applicants' legal representatives would approach the Registrar to arrange for the summons to be issued. When the hearing resumed, Mr Carney explained that the applicants had assumed, as a result of my direction, that they did not need to do anything to secure the attendance of Mr Papadellis. Accordingly, they had not arranged for the issue of a summons or otherwise contacted him to arrange for his attendance at the hearing.
Whilst the Tribunal does not have the benefit of Mr Papadellis's oral evidence, documents provided by the Commissioner cast considerable doubt on the veracity of Mr Papadellis's statement.
Those documents show that Mr Papadellis has been enrolled to vote in New South Wales since 1990. His mobile phone records show that all calls made by Mr Papadellis between 27 August 2015 and 17 November 2015 were made in New South Wales. They also reveal that he called and sent text messages to Mr Abughazaleh on 20 October 2015 and 21 October 2015. Mr Papadellis's bank records for the period of 1 July 2015 to 31 December 2015 only reveal transactions in New South Wales, and also show that he was paid a salary from a business in New South Wales throughout the period. An application for a New South Wales security licence made by Mr Papadellis on 30 November 2015 provides a New South Wales address as a residential address, as does a Queensland security licence application made in January 2016 and another licence application of June 2016.
I am persuaded by the documentary evidence that Mr Papadellis did not relocate to Queensland as he claimed. I also find that he did not attend a course conducted by Peacekeepers in Queensland. Rather, I find that he enrolled in a course provided by Sydney Training Academy in New South Wales (in the name of Peacekeepers) and received a certificate for completing that course. This explains the telephone contact between Mr Papadellis and Mr Abughazaleh in October 2015.
I also find that Mr Abdulwahab, the other student, was a New South Wales resident who received a certificate for security training by the Sydney Training Academy. The Commissioner has provided evidence of Mr Abdulwahab's residency in New South Wales. I am not satisfied that the training was conducted in Queensland.
It is unclear whether Mr Abughazaleh conducted the training in Sydney, whether another person did so or whether a certificate was issued without any training having been provided. Regardless of which of these factual scenarios occurred, it is plain that Mr Abughazaleh has not been frank or candid with the Tribunal or with the Commissioner.
The Commissioner submits, and I accept, that Mr Abughazaleh and his companies have had an ongoing association with Peacekeepers relating to the provision of security training and assessment to New South Wales residents. The association has involved New South Wales residents obtaining Queensland security training qualifications, and has been occurring from 2012 to March 2016. I do not accept that the training was provided by Mr Abughazaleh or one of his companies in Queensland. There is no evidence, other than Mr Abughazaleh's oral evidence, to support this claim. The principal place of business of Sydney Training Academy is in Sydney. Had Mr Abughazaleh provided training in Queensland, it would be expected that he would have provided documentary evidence to confirm this. The evidence concerning Mr Papadellis supports my conclusion that Mr Abughazaleh has invented the story that he trained students in Queensland.

Training by Sydney Training Academy

In 2013, at the date of the audit, Sydney Training Academy had signs outside its business premises identifying the name of the business as "Sydney Training Academy." The sign identified that the company conducted training courses in security.
When Ms Andrews attended the premises on 17 July 2013, she took photographs of a large sign displayed on the outside of the premises. The sign reads: "Sydney Training Academy Pty Ltd Training Courses

Security
RSA
RCG
First Aid
White Card
Bus Driver Authority
Car Driving Instructor."

Mr Abughazaleh's evidence is that Sydney Training Academy did not conduct training courses. He says that he told Ms Andrews that the sign was required by ASQA, because Sydney Training Academy had a security course approved by ASQA on its scope. He gave the same explanation for why Sydney Training Academy appeared to market the security course on its website.
The Commissioner submits that the evidence establishes that Sydney Training Academy advertised training courses in security, and that security training and assessment was occurring at its premises, including by Mr Abughazaleh.
On balance, I am satisfied that Sydney Training Academy conducted security training courses at its premises in New South Wales between 25 June 2012 and May 2013. Mr Abughazaleh's evidence that it did not do so is disingenuous. The signs and website of Sydney Training Academy clearly indicated, in July 2013, that the company offered such courses. There is also clear evidence that Sydney Training Academy was providing training to New South Wales residents after the audit. I do not accept Mr Abughazaleh's explanation that these advertisements were designed to comply with ASQA's requirements and that the company was not, in fact, providing training. I give greater weight to the documentary evidence which indicates that Sydney Training Academy was conducting training courses in 2013. This is consistent with Mr Abughazaleh's admission that he conducted training courses at the premises of that company in 2013, albeit that he says he did so on behalf of Training First.
The circumstance that Mr Abughazaleh was not honest about Sydney Training Academy providing training is a matter relevant to his fitness and propriety to hold a security licence.
Mr Abughazaleh suggested that the payment of $100 was "inadvertently recorded." This is unlikely.

2016 association with Peacekeepers

The Commissioner's documents also indicate that Training First and Sydney Training Academy provided training for Peacekeepers up until March 2016. A report indicates that Sydney Training Academy paid Peacekeepers $2,700 and $100 in January 2016. Mr Abughazaleh explained that the sum of $2,700 was for purchasing resources and material to use Peacekeeper resources for Sydney Training Academy clients in Queensland. For reasons given above, I do not accept that Sydney Training Academy provided training in Queensland. Mutual recognition scheme
Ms Andrews' photographs show that Mr Abughazaleh and his companies kept application forms at the premises, including an application form for a Queensland security licence and a form entitled "Application by an individual for a NSW security licence under the Mutual Recognition Act 1992". Mr Abughazaleh's evidence was that he had no knowledge of his students obtaining New South Wales security licences under mutual recognition laws after obtaining Queensland training qualifications from Peacekeepers. He said that he knew that, as a result of the training, the students would obtain a security licence in Queensland but denied knowing that, following this, the students would apply for a New South Wales licence under mutual recognition legislation.
Mr Abughazaleh denied providing the mutual recognition form to students. He accepted he had the mutual recognition form in the premises where he conducted training, and that he had multiple copies of it, but said it was there because he was reading it.
Mr Abughazaleh's evidence that he did not provide the mutual recognition form to students was not credible. The photographs taken by Ms Andrews show shelving containing multiple copies of forms, with an identifying label on the edge of each shelf. Mr Abughazaleh's claim that the mutual recognition forms were there because he was reading them is inherently implausible. There would be no need to have multiple copies of the forms, or to have a shelf set aside for the forms, if Mr Abughazaleh only needed one form to read. Mr Abughazaleh accepted that the other forms on the shelves were there for the purpose of being given to students. The positioning of the mutual recognition forms beneath the application forms for a Queensland licence is consistent with both being provided to students at the same time.
I accept the respondent's submission that Mr Abughazaleh kept the forms at his premises to give to students. I reject Mr Abughazaleh's evidence that he had no knowledge that his students would seek to obtain a New South Wales licence through the mutual recognition legislation. On the contrary, I find that he encouraged this practice.

Relevance of conducting mutual recognition scheme

The respondent relied upon the cases of Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43 ("Naylor") and Ahmed v Commissioner of Police, NSW Police Force [2017] NSWCATAD 73 ("Ahmed"). In Naylor, Ms Naylor was the only close associate of a company which held a master licence under the Security Industry Act. Peacekeepers provided training at the company's premises and the company accepted payment for the courses. The Tribunal said at [23]: "Ms Naylor conceded that by providing training for Queensland security licences the company provided a means whereby NSW residents, who are ineligible for a security licence in NSW but satisfy the less strict Queensland criteria, can obtain a NSW security licence by first obtaining a Queensland licence, and then applying for a NSW security licence under mutual recognition. She conceded that this was a 'backdoor' method of obtaining a NSW security licence, but argued that it was lawful."
Senior Member Molony considered whether the company's master licence should be revoked in the public interest and was satisfied that it should be. He commented (at [86]): "The training activities undertaken by the company achieve a situation whereby, through interstate licencing and mutual recognition, the rigours of the NSW security licensing regime can be avoided by NSW residents. … This is not in the public interest. It is not in the public interest that a master licence be held by a company undertaking those activities which undermine the integrity of the licensing regime established by the SIA."
In Ahmed, Mr Ahmed was involved in conducting training provided by Peacekeepers to New South Wales residents for the purposes of obtaining a security licence in Queensland. Senior Member Ransome observed (at [41], [44] and [45]): "Under Australia's mutual recognition laws, a person who is registered in one state in relation to a particular occupation is entitled to be registered in another state in relation to that occupation. The respondent argues that the purpose of providing the training was to circumvent what is required for registration in NSW. People enrolled in Mr Ahmed's training were issued with certificates which enabled them to obtain a Queensland licence. They could then obtain a NSW licence under mutual recognition laws without meeting NSW qualifications. … In my view, Mr Ahmed was aware that the reason NSW residents were being provided with training for Queensland security licences was so they could obtain qualifications which would then be recognised in NSW. As a result, the training could be delivered in a less rigorous way by an unlicensed trainer and to people, such as people on a student visa, who would not otherwise qualify in NSW. Conclusion I am satisfied that Mr Ahmed … knew the purpose of the program was to take advantage of mutual recognition laws and he also knew that the training he delivered was inadequate. After considering all the evidence, I am of the view that Mr Ahmed is not a fit and proper person to hold a security licence."
Senior Member Ransome also found that it was not in the public interest for Mr Ahmed to continue to hold a security licence. One of the factors leading to this conclusion was that Mr Ahmed had "participated and engaged in a process which has allowed people to circumvent the requirements of the Act and undermined the principles of mutual recognition of occupational qualifications" (at [50]).
The respondent submits that, as a matter of comity, the same outcome should apply to the applicant's security licences.
It was common ground that it is easier to obtain a security licence in Queensland than in New South Wales. However, Mr Carney submitted that the "loophole" by which a person can obtain a Queensland security licence, then obtain a New South Wales licence under the mutual recognition legislation, was "not something illegal or wrong".
I have some sympathy for this submission. The Parliament of New South Wales has, by its Security Industry Act, created a regime to regulate the security industry which is more rigorous than that adopted by the Queensland Parliament. However, New South Wales has also enacted the Mutual Recognition (New South Wales) Act 1992 (NSW). Had the Parliament wished to exempt the security industry from the mutual recognition legislation, it could have chosen to do so. Alternatively, it could have provided for exceptions to that legislation where New South Wales residents obtained interstate licences, then sought to obtain New South Wales licences through mutual recognition. It did not do so. Rather, it applied the Mutual Recognition Act 1992 (Cth) which provides in s 36 that residence or domicile in a particular State is not to be a prerequisite for or a factor in entitlement to the grant, renewal or continuation of registration arising under Part 3 of the Act (Occupations). In those circumstances, on one view at least, there is nothing wrong in obtaining a New South Wales licence in this way.
It is not, however, necessary to decide this issue in the circumstances of this case and the tentative view expressed above is, as the Commissioner submitted, inconsistent with the views expressed by other members of the Tribunal in Naylor and Ahmed. Mr Abughazaleh denied operating a scheme by which he provided training to New South Wales residents for the purpose of them obtaining first a Queensland security licence then a New South Wales licence, by way of registration under the mutual recognition legislation. I am satisfied from the evidence that he did, in fact, operate such a scheme. His evidence that he had no knowledge that his students would apply for mutual recognition of their Queensland qualifications was unconvincing. I am satisfied that he deliberately attempted to deceive both the Commissioner and the Tribunal as to his security training activities and his involvement in the mutual recognition scheme.
In these circumstances, I accept the Commissioner's submission that Mr Abughazaleh's lack of honesty and candour indicates a lack of fitness and propriety to hold a security licence. I have also found that he contravened the conditions of an earlier security licence by conducting security training and that he did so recklessly or with knowledge that this was in breach of his licence conditions. It follows that I am not satisfied that he is a fit and proper person to hold a security licence. Accordingly, I am bound to affirm the Commissioner's decision to revoke his licence (Security Industry Act, ss 15(1)(a), 26(1A)).
I am also bound to affirm the Commissioner's decision to revoke the licence of Sydney Training Academy, as Mr Abughazaleh is a close associate of that company (Security Industry Act, ss 15(1)(a), (5), 26(1A)). Pursuant to s 26(1A) of the Security Industry Act, 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 to be refused. Section 15(1)(a) provides that the Commissioner must refuse to grant a licence application if the Commissioner is not satisfied that the applicant is a fit and proper person to hold the class of licence sought. By operation of s 15(5), the reference in s 15(1)(a) to an "applicant" includes, in the case of an application for a master licence, a reference to each close associate of the applicant.
It follows that it is not necessary to consider the Commissioner's alternative submissions that Sydney Training Academy is not a fit and proper person to hold a licence and that it is not in the public interest for the applicants to retain their licences.
The Commissioner sought to be heard on costs, should the revocation decision be affirmed. I have provided an opportunity for submissions to be made on costs, in the orders.

Orders I make the following orders in proceedings 2016/384875 and 2016/384879: 1. The respondent's decision is affirmed. 2. If any party seeks costs, leave is granted to file and serve a short written submission on that issue within 14 days of the date of this decision. 3. Leave is granted for the other party or parties to file and serve a short written submission in reply within a further 14 days. 4. Submissions should address the question of whether the Tribunal should dispense with a hearing on the issue of costs, pursuant to s 50 of the Civil and Administrative Tribunal Act 2013.

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: 06 December 2017

Whether Security Industry Act 1997(NSW)

Security Industry Amendment (Regulation of Training Organisations) Act 2015(NSW)

Security Industry Regulation 2007(NSW)

Powers) Act 2010(NSW)

(Civil and Administrative Tribunal Act 2013(NSW)

At a glance

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Judgment (20 paragraphs)

Legislation Cited (13)

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