Commissioner Of Police and Quaid
[2006] WASAT 325
•9 NOVEMBER 2006
COMMISSIONER OF POLICE and QUAID [2006] WASAT 325
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 325 | |
| SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) | |||
| Case No: | VR:147/2006 | 3 NOVEMBER 2006 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MS J HAWKINS (MEMBER) MR R SCAIFE (SESSIONAL MEMBER) | 9/11/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Order made under s 56 State Administrative Tribunal Act 2004 (WA) revoking licences issued under the Security and Related Activities (Control) Act 1996 (WA) | ||
| A | |||
| PDF Version |
| Parties: | COMMISSIONER OF POLICE MARC QUAID |
Catchwords: | Vocational regulation Application to revoke licences issued under the Security and Related Activities (Control) Act 1996 (WA) on ground of fitness and related grounds Agreement in writing between parties to settle proceedings Whether Tribunal has power under s 56 State Administrative Tribunal Act 2004 (WA) to revoke licences without expressing satisfaction that disciplinary grounds exist under enabling Act If power exists, whether it should be exercised |
Legislation: | Interpretation Act 1984 (WA), s 56 Security and Related Activities (Control) Act 1996 (WA), s 24, s 26, s 67(1), s 67(2), s 73 State Administrative Tribunal Act 2004 (WA), s 5, s 9, s 9(b), s 56, s 56(1), s 56(2) |
Case References: | Nil Nil |
Orders | The security agent's licence (SA18363), the crowd controller's licence (CA18363), the security officer's licence (SG18363) and crowd controller's licence (CC18363) of the respondent be revoked as at 10 November 2006 pursuant to s 67(2) of the Security and Related Activities (Control) Act 1996 (WA). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : COMMISSIONER OF POLICE and QUAID [2006] WASAT 325 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MS J HAWKINS (MEMBER)
MR R SCAIFE (SESSIONAL MEMBER)
- Applicant
AND
MARC QUAID
Respondent
Catchwords:
Vocational regulation - Application to revoke licences issued under the Security and Related Activities (Control) Act 1996 (WA) on ground of fitness and related grounds - Agreement in writing between parties to settle proceedings - Whether Tribunal has power under s 56 State Administrative Tribunal Act 2004 (WA) to revoke licences without expressing satisfaction that disciplinary grounds exist under enabling Act - If power exists, whether it should be exercised
(Page 2)
Legislation:
Interpretation Act 1984 (WA), s 56
Security and Related Activities (Control) Act 1996 (WA), s 24, s 26, s 67(1), s 67(2), s 73
State Administrative Tribunal Act 2004 (WA), s 5, s 9, s 9(b), s 56, s 56(1), s 56(2)
Result:
Order made under s 56 State Administrative Tribunal Act 2004 (WA) revoking licences issued under the Security and Related Activities (Control) Act 1996 (WA)
Category: A
Representation:
Counsel:
Applicant : Ms D Scaddan
Respondent : Mr R Shaw
Solicitors:
Applicant : Commissioner of Police
Respondent : Lavan Legal
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The Commissioner of Police applied to the Tribunal for orders revoking a number of licences held by Marc Quaid under the Security and Related Activities (Control) Act 1996 (WA) on the ground that he was not a fit and proper person to do so and had not complied with conditions of the licences.
2 Before the proceedings came on for a final hearing, the Commissioner and Mr Quaid, through their solicitors, agreed in writing to the settlement of the proceedings. The agreed settlement was that the Tribunal should simply make an order revoking the licences. Mr Quaid, through his solicitor, had explained to the Commissioner and the Tribunal that he had agreed to sell the business to which the licences related, the sale of which would be completed on 10 November 2006.
3 The parties drew attention to the Tribunal's power under s 56 of the State Administrative Tribunal Act 2004 (WA) to make a decision giving effect to the terms of an agreed written settlement between the parties to a proceeding.
4 The Tribunal decided that it had the power to make an order in terms of the agreed settlement between the parties, even though, in contested proceedings, the Tribunal could not revoke the licences under s 67(2) of the Security and Related Activities (Control) Act 1996 unless it was satisfied that there were grounds for disciplinary action.
5 The Tribunal noted that the Parliament encourages the resolution of disputes by settlement between parties. The Tribunal considered that for the purposes of s 56(2) of the State Administrative Tribunal Act 2004, it would have the power to make a decision in terms of the agreed settlement and there was no inconsistency between s 56 of the State Administrative Tribunal Act 2004 and s 67(2) of the Security and Related Activities (Control) Act 1996 in these circumstances.
6 While the Tribunal accepted that it had the power to make an order giving effect to the written settlement of the parties, it noted that it was not bound to do so in every case and retained a discretion as to whether it would be appropriate to make such an order from case to case.
7 However, in the circumstances of the case before it, where the parties were legally represented, where there had been an issue concerning the
(Page 4)
- power of the licensee to surrender the licences under the enabling Act, the licensee was proposing to effect the sale of the businesses to which the licences related and the Commissioner of Police was satisfied that this was an appropriate way to complete the proceedings, the Tribunal considered that an order giving effect to the settlement between the parties was appropriate.
8 The Tribunal then made orders revoking the four licences held by Mr Quaid under the Security and Related Activities (Control) Act 1996.
Issue
9 The issue, the subject of these reasons for decision is whether the Tribunal can and should make an order to revoke licences held by the applicant under the Security and Related Activities (Control) Act 1996 (WA) (the Security Control Act), pursuant to s 56 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), where the parties to the current proceedings having agreed in writing to settle the proceedings on the basis that the Tribunal should make an order to the following effect:
"The security agent's licence (SA18363), the crowd controller's licence (CA18363), the security officer's licence (SG18363) and crowd controller's licence (CC18363) of the respondent be revoked as at 10 November 2006 pursuant to s 67(2) of the Security and Related Activities (Control) Act 1996."
Facts
10 At all material times, the respondent held the licences mentioned on behalf of Rustic Nominees Pty Ltd trading as Triden International of 89 Milligan Street, Northbridge.
11 By application made 24 August 2006, the Commissioner of Police applied to the Tribunal for orders revoking the licences under the Security Control Act on the grounds that the respondent was not a fit and proper person to hold them and could not provide adequate management, supervision and/or control of the business to which they related.
12 The application was listed for a final hearing on Friday 3 November 2006.
13 Prior to the final hearing the matter was set down for a further directions hearing on 10 October 2006 before the President. Counsel for the respondent then sought an order that the final hearing date be vacated,
(Page 5)
- on the basis that the respondent proposed shortly to surrender his licences upon the sale of the business to which they related to a third party. Counsel for the Commissioner of Police opposed any vacation of the proceedings, on the basis that it was not open to the respondent to surrender his licences under the Security Control Act.
14 In the event, the President considered the question of surrender to be premature as it was not proposed by the respondent that he would surrender his licences in any event on or before the date set for the final hearing on 3 November.
15 However, just before 3 November, the solicitors for the parties advised the Tribunal that they had agreed in writing to the settlement of the proceedings on the basis that the proposed order, set out above, should be made by the Tribunal pursuant to s 56 of the SAT Act.
16 On 3 November 2006, the Tribunal heard submissions from counsel for the parties as to the powers of the Tribunal to make the order pursuant to s 56 of the SAT Act and, if it had such power, whether it should be exercised in the manner proposed.
The Tribunal's power to make an order under s 56 of the State Administrative Tribunal Act 2004
17 It is customary in contested proceedings under vocational regulation legislation for vocational regulatory bodies and the Tribunal to make orders concerning a person's registration in a particular vocation or calling on defined grounds. Unless those grounds are made out, ordinarily the body or Tribunal lacks power to make any such order.
18 For example, s 67(2) of the Security Control Act provides that if, in a proceeding commenced by an allegation under subsection (1) against a licensee, the Tribunal is satisfied that proper cause exists for disciplinary action, the Tribunal "may revoke the licence of the licensee or cancel an endorsement on the licence under s 24 or 26".
19 The Security Control Act otherwise makes it clear that a cause for disciplinary action may exist if, amongst other things, a licensee is not a fit and proper person to hold the licence; or the conditions upon which a licence has been issued have not been complied with - the grounds initially relied on by the Commissioner in these proceedings.
20 However, as noted, the parties here have purported to settle the proceedings in writing and propose that the Tribunal should make an
(Page 6)
- order revoking the licences, without more. It is not proposed, for example, that the Tribunal should express any satisfaction as to the making out of the grounds for revocation initially alleged by the Commissioner in the application.
21 In the view of the Tribunal, it is open to make an order in the circumstances as they exist here.
22 Section 56(1) expressly authorises the Tribunal to make any orders necessary to give effect to a written settlement of proceedings. Section 56(2) of the SAT Act qualifies the broad power of the Tribunal under s 56(1) by stating that an order cannot be made unless the Tribunal "is satisfied that it would have the power to make a decision in the terms of the agreed settlement…". The critical issue in whether the Tribunal "would have the power to make a decision in the terms of the agreed settlement".
23 The "decision" the subject of the written agreement of the parties by which they have settled the proceedings, is that the Tribunal should make an order revoking the licences. The Tribunal is satisfied that this proposed decision is one that it "would have the power to make". Section 67(2) of the Security Control Act enables the Tribunal to "make a decision" to "revoke" the licence of a licensee. While in contested proceedings the Tribunal needs to be satisfied that there are disciplinary grounds for exercising the power, the position under s 56 of the SAT Act is different. Under s 56 the Tribunal's capacity to exercise the power to revoke is enlivened by the written settlement of the parties.
24 In the view of the Tribunal, there is no inconsistency between the power of the Tribunal to act under s 56 of the SAT Act and s 67(2) of the Security Control Act. If there were, then by reason of s 5 of the SAT Act, the Security Control Act provision would prevail. The reason there is no inconsistency between the two provisions is that under both provisions the Tribunal has the same power to make a decision revoking a licence. Section 56 of the SAT Act facilitates the exercise of that power where there is a written settlement. Section 67(2) enables the exercise of the same power, but on different grounds. There is not, in any relevant sense, any inconsistency between s 56 of the SAT Act and s 67(2) of the Security Control Act. Section 56 of the SAT Act simply adds another circumstance in which the Tribunal can exercise power to revoke given by s 67(2) of the Security Control Act.
(Page 7)
25 While the Parliament has plainly encouraged the resolution of disputes by settlement between parties, before the Tribunal can act on any settlement, the parties must reduce their agreement to settle a proceeding to writing. This is the first requirement to be satisfied before the Tribunal can consider making an order under s 56.
26 The Tribunal is not bound to make an order giving effect to any agreement between parties to settle the proceeding. Section 56(1) makes it clear that the Tribunal "may" make any orders necessary to give effect to the settlement. The word "may" indicates that the Tribunal has a full discretion in the matter and may or may not make such an order: see Interpretation Act 1984 (WA) s 56.
27 However, where parties to a proceeding are legally represented, the background to the circumstances giving rise to the proposed order are understood by the Tribunal, the objectives of the Tribunal set out in s 9 of the SAT Act are advanced, and it is considered generally in the public interest to do so, the Tribunal may be expected to act on a written settlement made by parties and to make orders giving effect to their settlement.
28 In the present circumstances, the parties are legally represented, an issue has arisen concerning the power of the licensee to surrender the licences held (about which there is some doubt), the licensee is proposing to effect a sale of the businesses to which the licences relate, and the Commissioner is satisfied that his concerns are met by the revocation of the licences. All this suggests that the proposed order should be made. To do so also achieves the objectives of the Tribunal set out in s 9(b) of the SAT Act to act as speedily and minimise the costs to the parties.
29 There is no need for the Tribunal here to consider in any detail the question of surrender of a licence under the Security Control Act save to mention that there appears to be no express power to surrender a licence under the Security Control Act. There is a question whether s 73 of the Security Control Act implies such a licence. However, there is quite some doubt about that in the view of the Tribunal. The Tribunal has now been advised that the Minister for Police is promoting amendments to the Security Control Act which would include amendments relevant to the surrender of licences. This seems a sensible course to take as one would ordinarily expect that a system of registration would permit licences to be surrendered on appropriate terms.
(Page 8)
Conclusion and order
30 For the reasons set out above, the Tribunal is satisfied that it can, and in the circumstances of this case should, make orders under s 56(1) of the State Administrative Tribunal Act 2004 to give effect to the agreement in writing of the parties to settle the proceedings by making the following order:
1. The security agent's licence (SA18363), the crowd controller's licence (CA18363), the security officer's licence (SG18363) and crowd controller's licence (CC18363) of the respondent be revoked as at 10 November 2006 pursuant to s 67(2) of the Security and Related Activities (Control) Act 1996 (WA).
- I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
0
0
3