Commissioner for Consumer Affairs v Quinn

[2003] SASC 183

COMMISSIONER FOR CONSUMER AFFAIRS v
SHANE CHARLES QUINN
[2003] SASC 183

Full Court:  Debelle, Lander and Nyland JJ

1. DEBELLE J           This is an appeal against a decision of the District Court in its Administrative and Disciplinary Division.

2. The duties of the appellant, the Commissioner for Consumer Affairs, include administering the Security and Investigation Agents Act 1995. Pursuant to Part 2 of that Act, the Commissioner determines applications for a licence to act as a security agent. “Security agent” is defined to mean a person who performs a number of functions for fee or reward. Those functions include protecting or guarding a person or property, preventing, detecting, or investigating the commission of an offence, controlling crowds, and providing advice on security, alarm or surveillance systems, or installing or maintaining such systems.

3. On 25 October 1996 the respondent applied for a security agent’s licence. He completed the prescribed application form. One part of the application form required the respondent to answer whether he had been convicted of any offence other than a traffic offence. The question was in the following terms and I quote:

   “Have you ever been convicted of any offence (other than a traffic offence) or are there any court proceedings pending? If yes, please provide details.”

   The respondent answered that question “Yes” and attached what he called an offender’s history report. That report was a document issued by the South Australian Police dated 10 October 1996. The document disclosed that the respondent had two convictions, one for producing and the other for possessing cannabis in 1993. He had been fined $400 for each offence. He disclosed no other convictions.

4. The Commissioner granted the respondent a security agent’s licence. Later, the Commissioner discovered that the respondent had failed to disclose two convictions for armed robbery. Those convictions had been entered in the Supreme Court of Victoria on 29 July 1983. For both offences, the respondent was ordered to serve a total period of four years imprisonment with a minimum of 18 months to be served before becoming eligible for parole.

5. After discovering these facts, the Commissioner on 22 October 2002 issued a complaint averring that the respondent’s failure to disclose the convictions for armed robbery was a proper cause for disciplinary action under s 26 of the Security and Investigation Agents Act.

6. The complaint was heard by a District Court judge in the Administrative and Disciplinary Division of that court. The judge found there was cause for disciplinary action. Section 25 includes as one of the grounds for disciplinary action the fact that the agent has improperly obtained the licence: see s 25(1)(e). The judge found that the respondent had improperly obtained the licence so that there was cause for disciplinary action. He reprimanded the respondent.

7. The Commissioner has appealed pursuant to s 43 of the District Court Act 1991 from that decision, contending the judge should have cancelled the licence. To the extent necessary, the Commissioner has been granted leave to appeal.

8. Section 9 of the Act prescribes the criteria which must be satisfied before a person is entitled to be granted a licence under the Act. Section 9 is expressed in such a way that the Commissioner must grant a licence if the applicant has satisfied the statutory requirements and must refuse it if the applicant does not. The Commissioner does not have any discretion to grant a licence in circumstances where an applicant has not satisfied one of the statutory requirements: see Commissioner forConsumer Affairs v Standley (1998) 71 SASR 152 at 158 – 159. However, the Minister for Consumer Affairs has a discretion to grant an exemption under s 33 of the Act. The respondent had not obtained such an exemption.

9. A natural person is not entitled to be licensed if that person has been convicted of an offence of a class specified by regulation in relation to functions to be authorised by the licence: see s 9(1)(b). Offences which prevent persons from being licensed under the Act are prescribed by regulation 5 and Schedule 1 of the Security and Investigation Agents Regulations 1996. Schedule 1 prescribes a list of offences. They include an indictable offence and, in my view, that includes an indictable offence committed anywhere in the Commonwealth of Australia. To conclude otherwise would plainly defeat the purpose of the licensing system and the clear intention of the Act that only fit and proper persons should hold a licence. That conclusion is reinforced by the fact that Schedule 1 has a dragnet provision which provides that the prescribed offences include an offence substantially similar to any of the offences listed in the Schedule against the law of another place. Armed robbery is an indictable offence in Victoria. Having been convicted for the crime of armed robbery, the respondent was not entitled to obtain a security agent’s licence. I repeat, the Commissioner had no discretion to grant the licence, notwithstanding the fact that 13 years had elapsed since the convictions had been entered.

10. Section 29 of the Act lists the penalties which the District Court may impose, if satisfied there was a proper cause for disciplinary action. Those penalties include the cancellation of the licence. Given that the respondent was not entitled to a licence and given that the judge in the District Court had found that the licence had been improperly obtained, the judge had no alternative but to cancel the licence. By reason of the convictions, the respondent was not in 1996, nor is he now, entitled to a security agent’s licence. The District Court judge should, therefore, have made an order cancelling the respondent’s licence.

11. The respondent’s case in the District Court was that he had been informed by an officer employed by the Commissioner for Consumer Affairs that a check on his police record was to be conducted nationally. That assertion was not tested. However, even if that were so, it did not relieve the respondent of the obligation honestly to answer the question in the prescribed form. Furthermore, the respondent did answer the question, but failed to answer it fully. It can hardly be suggested that he overlooked these convictions for which he had served a period of imprisonment.  Convictions for armed robbery are plainly convictions of a serious kind. His assertion as to what he was told by an officer of the Consumer Affairs Commission is also belied by the fact that he partly answered the question concerning previous convictions.

12. I would therefore make orders allowing the appeal, setting aside the penalty ordered by the District Court judge and, in lieu thereof, make an order cancelling the respondent’s security agent’s licence. I would also make an order that the respondent return his licence to the Commissioner for Consumer Affairs with all reasonable expedition.

13. These orders, on their face, appear harsh. However, as this Court has already observed in Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145, the provisions in the Security and Investigation Agents Act and the disciplinary proceedings under that Act exist for the purpose of the protection of the public.

14. There is nothing to prevent the respondent from again applying for a licence but it would be necessary for him first to seek to obtain an exemption from the Minister pursuant to s 33 of the Act exempting him from the obligation to comply with all the provisions of s 9. Given the fact that the conviction for armed robbery occurred some 20 years ago, it may be proper in all the circumstances to grant an exemption. However, that is, of course, for the Minister to determine. If such an exemption is granted, the respondent would be able to apply again for the licence. If he is granted an exemption, the Commissioner would be able to grant it.

15. NYLAND J            I agree with the reasons expressed by Debelle J and I agree with the orders proposed by him.

16. LANDER J             I also agree with the reasons given by Debelle J and the orders which he has proposed.

17. DEBELLE J           The orders of the court will therefore be:

    1.Appeal allowed.

    2.Set aside the penalty ordered by the District Court judge herein on 22 January 2003 and, in lieu thereof, order that the respondent’s security agent’s licence be cancelled.

    3.The respondent shall, by 5.00pm on Friday, 6 June 2003, surrender his licence to the Commissioner for Consumer Affairs.

    4.No order as to costs.