Benyameen and Commissioner of Police NSW
[2017] AATA 121
•2 February 2017
Benyameen and Commissioner of Police NSW [2017] AATA 121 (2 February 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4608
Re:Reda Benyameen
APPLICANT
AndCommissioner of Police NSW
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:2 February 2017
Place:Sydney
The decision under review, being the decision of a delegate of the Commissioner of Police for New South Wales dated 10 August 2016 refusing Mr Benyameen’s application for a Class 1A and Class 1C security licence under the Security Industry Act 1997 (NSW), is set aside.
The matter is remitted to the Commissioner for reconsideration with the direction that Mr Benyameen’s application (dated 27 June 2016) for a Class 1A and Class 1C security licence in New South Wales be granted in accordance with the provisions of the Mutual Recognition Act 1992 (Cth).
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Deputy President J W Constance
Deputy President
CATCHWORDS
PROFESSIONS AND TRADES – licencing – mutual recognition – registration of security licence – whether materially false or misleading information provided – exercise of statutory discretion – decision set aside and remitted
LEGISLATION
Mutual Recognition Act 1992 (Cth) ss 19, 20, 23
Security Industry Act 1997 (NSW) s 21A
Security Providers Act 1993 (Qld) ss 14B, 15
CASES
Hoan Tran and Commissioner of Police (NSW) [2016] AATA 774
West Australian Field & Game Association Inc v Pearce (1992) 27 ALD 38
SECONDARY MATERIALS
Statutory Interpretation in Australia 8th ed
REASONS FOR DECISION
Deputy President J W Constance
2 February 2017
INTRODUCTION
Mr Benyameen has applied to the Tribunal for a review of a decision by the Commissioner to refuse his application for a New South Wales Classes 1A and 1C security licence under the Mutual Recognition Act 1992 (Cth) on the ground that information provided in the application was materially false or misleading.
For the reasons which follow the decision under review will be set aside and the matter will be remitted to the Commissioner for reconsideration in accordance with the direction that the licence sought be granted.
BACKGROUND
Mr Benyameen holds a Security Providers Licence issued to him under the provisions of the Security Providers Act 1993 (Qld). The date of issue of this licence is not in evidence, but it expires on 6 April 2017.[1]
[1] Exhibit R1 p.16.
On 16 May 2016 Mr Benyameen lodged with the Commissioner an application for a New South Wales security licence based on his holding of the equivalent licence in Queensland. By letter of 9 June 2016 the application was refused on the basis that the notice of the application was deficient on two grounds:
·that Mr Benyameen had failed to complete section 3.2 of the application which required him to specify any special conditions which applied to his working in the security industry in any State;[2]
·that he had failed to provide a certified copy of the back of his Queensland licence.[3]
[2] Exhibit R1 p.10.
[3] Exhibit R1 p.7.
On 14 July 2016 Mr Benyameen lodged with the Commissioner a new application for a security licence.[4]
[4] Exhibit R1 p.8.
Paragraph 3.2 of the pro-forma application provided by the Commissioner read:
Specify any special conditions which apply to your working in the security industry in any State.
To this request Mr Benyameen replied:
No security industry special conditions.
With this application Mr Benyameen lodged a certified copy of the front and the back of his Queensland licence. The back of the licence had the following notation:
Licence Conditions
As a crowd controller and/or bodyguard you must complete refresher training. You will find the required training listed on the notice issued with your licence card.
By a Notification of Refusal dated 10 August 2016[5] Mr Benyameen was informed that his second application was refused on the ground that information provided in his application was “materially false or misleading”.[6]The Notification stated that:
Checks with the Queensland Office of Fair Trading confirmed that your licence in Queensland was issued with conditions relating to your ability to work in the security industry.
[5] Exhibit R1 p.5.
[6] Exhibit R1 p.5.
Mr Benyameen has applied to the Tribunal to review the decision of 10 August 2016. Documents filed in these proceedings indicate that the materially false or misleading information referred to in the notice was Mr Benyameen’s failure to state that his licence was subject to the condition recorded on the back of the Queensland licence as set out above.[7]
[7] Respondent’s Statement of Facts and Contentions filed 22 December 2016, para 7.
LEGISLATION
Subsection 19(1) of the Mutual Recognition Act provides that:
A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
Section 19(2) sets out the statements/information that “must” be contained in the notice. It provides in part:
The notice must:
…
(g) specify any special conditions to which the person is subject in carrying on any such occupation in any State;…
Subsection 19(5) provides:
The statements and other information in the notice must be verified by statutory declaration.
Subsection 20(1) provides:
A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
Subsection 23(1) states, in part:
(1) A local registration authority may refuse the grant of registration if:
(a)any of the statements or information in the notice as required by section 19 are materially false or misleading;…
ISSUES FOR DETERMINATION
The following issues arise for determination.
(a)Did Mr Benyameen provide information in his application that was “false or misleading”?
(b)If he did, should the discretion to refuse Mr Benyameen’s application for registration be exercised?
EVIDENCE OF MR BENYAMEEN
In a statement filed in these proceedings and dated 17 November 2016 Mr Benyameen said, in part:
I filled in an application for transferring my security licence from Queensland to NSW, question 3.2 of the application by an individual for NSW security licence was left unanswered and I sent it to the police. The police charged me $120 for this application and told me that the application is missing an answer for question 3.2 and l must take the application back and answer question 3.2 and further attach [sic] a copy of the back of my licence.
I obtained another copy of the application and I still I didn't understand this question (3.2) so I asked my friend and my wife about it and they thought maybe it is asking if I have worked in NSW with my security licence before, as a result of this, I answered no.
I genuinely misunderstood the question, English is my second language and I have only been in Australia for eight months when I traid [sic] to fill this form.
I would not intentionally give misleading information.
On the form I answered no to question 3.2 which was asking about conditions on the licence however I also sent a copy of the back of the licence as was requested, and on the back of the licence the conditions are stated…[8]
[8] Exhibit A1.
THE COMMISSIONER’S ARGUMENT
It was argued on behalf of the Commissioner that the system for granting a licence under the Mutual Recognition Act is based on a “desk-top review”. It was put that an application should be able to be dealt with on its face without reference to any additional material.
It was further argued that any condition stated on a licence is a “special condition” within the meaning of section 19(f) of the Act. It follows that a failure to disclose any condition of a licence is therefore “materially false or misleading” within the meaning of section 23(1)(a).
In considering the discretion contained within section 19, it was put that fault, or lack of it, is not a relevant consideration. It was argued that any discretion is to be limited as a matter of public policy as the Act provides for “a system designed for efficiency”. It was argued that this was the intention of the legislature as the Act provides that an applicant may make as many applications as he or she wishes.
DISCUSSION
Issue 1: Did Mr Benyameen provide information in his application that was “false or misleading”?
The information which is required by section 19(2)(g) of the Act and paragraph 3.2 of the application form is the specification of “any special conditions” [emphasis added]. The condition which the Commissioner argues Mr Benyameen failed to disclose is preceded by the words “Licence Conditions” on the back of the Queensland licence.
In interpreting the words of a statute it is necessary to look at the words used in context. It is also necessary to give a meaning to all the words used as it is presumed that the Legislature intended all words used to be necessary to make its intention clear.
Looking at the ordinary meaning of the words used, the word “conditions” has been qualified by the word “special”. This distinguishes those conditions which have to be specified from ordinary or standard conditions of the subject licence. When one turns to the nature of the condition on the Queensland licence, it is referred to as a “condition”. It is not referred to as a “special condition”.
The Oxford English Dictionary defines “special” to mean “additional to the usual or ordinary”. The Macquarie Dictionary includes the definition “distinguished from what is ordinary or usual”.
The Queensland Security Providers Act, under which the condition in question has been imposed, itself distinguishes between “Statutory conditions” and “Imposed conditions”.
Under the heading “Statutory conditions” subsection 14B(2) of the Queensland Act provides:
(2) An unrestricted licence is subject to the condition that, if required in writing by the chief executive, the licensee must complete relevant approved training—
(a) on renewal of the licence; or
(b) at 1 or more stated intervals during the term of the licence; or
(c) both on renewal of the licence and at 1 or more stated intervals during the term of the licence.
Subsection 15(1) of the Queensland Act provides:
15 Imposed conditions
(1) The chief executive may grant a licence on conditions decided by the chief executive and stated on the licence (“imposed conditions”).
(2) Without limiting subsection (1), for a security firm licence, the imposed conditions may include a condition that the licensee must monitor, at stated intervals, whether or not its employees who are employed as security providers are complying with this Act.
(3) The licensee must comply with the imposed conditions of the licence.
(4) The contravention of an imposed condition that is prescribed under a regulation for this section is an offence.
Maximum penalty—40 penalty units.
These “Imposed conditions” are properly described as special conditions in contrast to the conditions referred to in section 14B. It is only those conditions (if any) imposed under section 15 which are required to be disclosed to meet the requirements of subsection 19(2)(g) of the Mutual Recognition Act.
The conclusion which I have reached is supported by a consideration of the Security Industry Act 1997 (NSW), which also indicates the context of the words used in the Mutual Recognition Act.
Section 21A of the New South Wales Act provides:
It is a condition of every class 1 or class 2 licence that the licensee undertake and complete, to the satisfaction of the Commissioner, such training, assessment and instruction as may be required by the Commissioner to ensure the licensee has continuing knowledge and competency in relation to the security activity authorised by the licence.
Section 21A is to be contrasted with sections 23AA, 23A, 23B, 23D, 23E and 23F, all of which provide for the imposition of “Special conditions”.
There are no special conditions on Mr Benyameen’s Queensland licence. The information provided by him in his application to the Commissioner was accurate and was not “false or misleading”. His application for a New South Wales Security Licence should be granted.
Counsel for the Commissioner argued that I should take a similar approach in this matter to that taken by the Tribunal in Hoan Tran and Commissioner of Police (NSW) [2016] AATA 774. In that matter the Tribunal held that Mr Tran could not give the notice required by section 19 as a licence previously held by him had been revoked as a result of disciplinary action. As a result of this revocation he could not meet the requirement that “[the] notice must… state that the person’s registration in any State is not cancelled or currently suspended as a result of disciplinary action…”
In Mr Benyameen’s case the requirement under consideration is that he provide certain information; once he did that the requirements of a valid notice were satisfied and the discretion given by section 23 was enlivened if that information was materially false or misleading.
Issue 2: Should the discretion to refuse Mr Benyameen’s application for registration be exercised?
In view of the conclusion I have reached in the preceding paragraphs this issue does not arise. However in case I am wrong in that conclusion I make some observations as to the exercise of the discretion given to the decision-maker by section 23 of the Mutual Recognition Act.
The use of the word “may” in subsection 19(1) of the Act makes it clear that the Commissioner (and on review, the Tribunal) has a discretion to refuse a grant of registration if any of the information supplied in the application is “materially false or misleading”. The Act does not require that registration must be refused in those circumstances.
It was argued on behalf of the Commissioner that as a matter of policy and public interest the Commissioner and the Tribunal (standing in his stead) should refuse an application if it contains information that is materially false or misleading. It was put that this followed from the fact that an applicant could make repeated applications for the same licence.
I do not accept this argument. A decision-maker given a discretion by the legislature must exercise that discretion and exercise it reasonably after giving consideration to all relevant matters.
In Statutory Interpretation in Australia[9] Emeritus Professor Pearce and Adjunct Professor Geddes said:
It should not be overlooked when considering whether a provision is obligatory or discretionary that, even though the power is discretionary, the decision maker must still consider whether, on the facts, the discretion should be exercised in favour of a person. Merely because the outcome is not dictated by the section does not mean that the decision maker can do nothing. This general issue is dealt with in textbooks on administrative law. See West Australian Field & Game Association Inc v Pearce (1992) 8 WAR 64; 27 ALD 38 for a discussion of the matter in statutory interpretation terms.
[9] Eighth Edition at p.439.
In West Australian Field & Game Association Inc and Others v Pearce the Supreme Court of Western Australia considered subsection 2(a) of the Wildlife Conservation Act1950 (WA) which provided, in part:
The Minister may from time to time declare:
that any of the fauna is not protected or is protected to such extent for such period of time throughout the whole or such parts of the State as he shall think fit…
The Court said, in part:
The next step in the argument was that the provisions of s 14 were facultative in the sense of enabling the minister to act if he desired to do so, but not imposing any duty on him to act or, indeed, to consider whether or not he should act. Counsel for the minister placed much reliance on the decision of the House of Lords in Julius v Bishop of Oxford (1880) LR 5 App Cas 214 . In that case the relevant statute provided that “it shall be lawful” for the Bishop to issue a commission of inquiry regarding alleged misconduct in certain circumstances. Lord Selborne said at 235: “The question whether a judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power.
This passage was approved by the High Court in Ward v Williams (1955) 92 CLR 496 at 505 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ. At 505–6 their Honours also referred with approval to a passage in the speech of Lord Cairns in the same case at 225 in which his Lordship said: “My Lords, the cases to which I have referred appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised.
In my opinion, it is apparent from the context that this passage was not to be regarded as an exhaustive statement of the basis of the duty of a public officer or body in whom a discretionary power is vested by statute, or the circumstances under which the court would require the power to be exercised. As stated in Wade, Administrative Law 6th ed, 1988, at p 295: “Whether a power, expressed in merely permissive language is accompanied by duty to exercise it in certain circumstances requires consideration of the whole statutory context in which the power is given.[10]
[10] At p.45.
Section 23 of the Mutual Recognition Act provides a discretion to refuse an application in favour of an applicant if statements or information in the application are false or misleading. The corollary is that the discretion may be exercised in favour of an applicant to grant the application. In this context a duty arises to exercise the discretion and to exercise it reasonably; a decision-maker is not entitled to determine that, as a matter of policy or for any other reason, the discretion will always be exercised in a certain manner. Unfortunately it appears that the Commissioner adopted this practice. I do not accept the argument that the practice is justified by the fact that the Act allows for repeated applications. The decision-maker should exercise the discretion given by section 23 in relation to each application on its merits.
This is consistent with section 33 of the Acts Interpretation Act 1901 (Cth) which provides:
Meaning of may
(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body. [emphasis in original]
Had Mr Benyameen provided materially false or misleading information (which I have found he did not), in the circumstances of his application I would have exercised the discretion in his favour and granted the registration applied for.
I would have reached this conclusion taking into account that there was only one condition attached to Mr Benyameen’s licence and that with his application he provided a copy of the back of his licence setting out that condition. I would have taken into account also that this was Mr Benyameen’s second application and that he had previously been made aware of the importance of providing the information sought. I would have been reasonably satisfied that he did not intend to mislead the decision-maker in any way and that his failure to disclose the condition was a result of a misunderstanding of what was required.
DECISION
The decision under review, being the decision of a delegate of the Commissioner of Police for New South Wales dated 10 August 2016 refusing Mr Benyameen’s application for a Class 1A and Class 1C security licence under the Security Industry Act 1997 (NSW), will be set aside.
The matter will be remitted to the Commissioner for reconsideration with the direction that Mr Benyameen’s application (dated 27 June 2016) for a Class 1A and Class 1C security licence in New South Wales be granted in accordance with the provisions of the Mutual Recognition Act 1992 (Cth).
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of J W Constance, Deputy President
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Associate
Dated: 2 February 2017
Date(s) of hearing: 20 January 2017 Applicant: In person Counsel for the Respondent: M Seymour Solicitors for the Respondent: New South Wales Crown Solicitor's Office
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