Constantin and Commissioner of Police (NSW) - [2024] AATA 1294

Constantin and Commissioner of Police (NSW) [2024] AATA 1294 (29 May 2024)
Division:GENERAL DIVISION

File Number(s): 2023/1304
Re:Nicolas Constantin
APPLICANT

AndCommissioner of Police (NSW)
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:29 May 2024
Place:Sydney

The decision of the Respondent dated 9 February 2023 is set aside and, in substitution, it is decided that:
(a) the applicant is not entitled to be registered pursuant to the MR Act for the NSW subclass 1D licence security consultant licence (subclass 2A) on the basis that he holds a Queensland security adviser (section 6A) subclass licence;
(b) the applicant is entitled to be registered pursuant to the MR Act for the NSW subclass 1D licence on the basis of his ‘security officer (dog patrol)’ licence in Queensland.
............................[SGD]............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS

MUTUAL RECOGNITION – application of Mutual Recognition Act 1992 (Cth) – licence revocation under paragraph 19(2)(e) – meaning of suspension and cancellation of licence – application of mutual recognition principles – substantial equivalence of occupations – automatic deemed registration – suspension of licence not a ground to refuse application under paragraph 19(2)(e) – NSW subclass 2A security consultant licence not substantially equivalent to section 6A Qld security adviser licence – NSW subclass 1D licence is substantially equivalent to Qld security officer (dog patrol) licence – decision under review set aside and substituted

LEGISLATION
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)
MUTUAL RECOGNITION ACT 1992 (CTH)
SECURITY INDUSTRY ACT 1997 (NSW)

Security Providers Act 1993 (Qld)

CASES

BOARD OF EXAMINERS UNDER THE MINES SAFETY AND INSPECTION ACT 1994 (WA) V LAWRENCE (2000) 100 FCR 255

CONSTANTIN AND COMMISSIONER OF POLICE (NSW) [2017] AATA 404
CONSTANTIN AND COMMISSIONER OF POLICE (NSW) [2022] AATA 1333
LANSEN V MINISTER FOR ENVIRONMENT AND HERITAGE [2008] FCA 903
Medical Board of Queensland v Renton [2006] FCA 947
SECONDARY MATERIALS

Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions (2008) 40 Loyola University Chicago Law Journal 1

REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
29 May 2024
BACKGROUND

Mr Constantin (the applicant) holds a Class 1 licence under the Security Providers Act 1993 (Qld) (SP Act) under which he is authorised to act as a ‘security officer (dog patrol)’. A ‘security officer’ is ‘a person who, for reward, guards, patrols or watches another person’s property…’[1] He also holds a Class 2 licence to act as a ‘security adviser’. A ‘security adviser’ is ‘a person who, for reward, gives advice about security equipment or security methods or principles (security advice).’[2]
[1] SP Act, section 7.
[2] SP Act, section 6A.
He also holds a current New South Wales security licence granted under the Security Industry Act 1997 (NSW) (SI Act).[3]
[3] Class 1ACE 2BC, No. 000244767, granted on 17 September 2019.
On 14 October 2020, he applied under the Mutual Recognition Act 1992 (Cth) (MR Act) to add a bodyguard licence (subclass 1B) to his NSW licence, relying on his Queensland licence. His application was approved on 16 October 2020.[4] His current NSW licence, including the additional 1B subclass, remains currently registered.[5] His NSW licence is due to expire on 16 November 2025.[6]
[4] T11, 38.
[5] RSFIC, [16].
[6] RSFIC, [16].
On 7 September 2022,[7] he applied for two further subclasses of licence: a subclass 1D guard dog handler licence and a subclass 2A security consultant licence.[8] The 1D subclass authorises the holder to ‘patrol, protect or guard any property with a dog’.[9] The 2A subclass authorises a holder to ‘to sell security methods or principles, and to act as a consultant by identifying and analysing security risks and providing solutions and management strategies to minimise those security risks’.[10]
[7] T12, 39, received on 23 September 2022:.
[8] T12, 40.
[9] SI Act, paragraph 11(1)(d).
[10] SI Act, paragraph 12(1)(a).
He provided certified copies of his current and previous Queensland licences.[11] He stated that his Queensland licence 3466303 (expiry 21 June 2025) was equivalent to NSW subclasses 1ACBD, and that his Queensland licence 4492392 (expiry 18 June 2023) was equivalent to 2A.[12]
[11] RSFIC [15], No. 3466303, expiring on 21 June 2025; No. 4492392, expired on 18 June 2023.
[12] T12, 42.
On 9 February 2023, the Respondent refused his application (the reviewable decision).[13] The ground of refusal was that a previous NSW security licence was revoked in 2012, and he was therefore unable to satisfy paragraph 19(2)(e) of the MR Act.
[13] T3, 12.
His application for review of the reviewable decision was heard by videoconference on 23 November 2023.
I note that Queensland licence 4492392 was current at the time of the reviewable decision. However, it expired on 18 June 2023. It was this licence that Mr Constantin claimed to be equivalent to subclass 2A.[14] There is no evidence before the Tribunal that this licence has been renewed. However, I note that under subsection 20(3) of the MR Act, once a person is registered pursuant to the MR Act, the entitlement to registration in the second state continues, whether or not registration (including any renewal of registration) ceases in the first state.
[14] T12, 42.
The fact that the Queensland licences were valid at the time of the reviewable decision is not disputed by the Respondent.
Prior to the hearing, the applicant lodged a Statement of Facts, Issues and Contentions (SFIC) dated 9 June 2023, and the Respondent filed a SFIC dated 10 July 2023, together with the section 37 documents (the ‘T docs’). The applicant filed a further response dated 25 August 2023.
The Respondent’s SFIC dated 10 July 2023 deals primarily with the cancellation issue arising under paragraph 19(2)(e). The SFIC contends in the alternative that the NSW occupation of security consultant (subclass 2A) is not equivalent to the Queensland occupation of ‘security advisor’.[15] At the hearing, the Respondent extended this equivalence argument to the subclass 1D licence, asserting that it was not equivalent to the ‘security officer (dog patrol)’ licence under the SP Act. At the Tribunal’s direction, the Respondent subsequently filed a supplementary SFIC dated 15 February 2024 relating to this issue. No further submission was received from the applicant.
[15] RSFIC, [44].
Subsection 19(1) of the MR Act provides that a person who lodges a conforming notice 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 20(2) of the MR Act provides that in certain circumstances the local registration authority may grant registration on the basis of equivalence and may grant renewals of such registration.

A PRELIMINARY ISSUE – WHETHER SUBSECTION 19(1) CONFERS A RESIDUAL DISCRETION

At the hearing, a question arose as to whether a receiving state has a residual discretion not to grant registration even though the conditions of the Act are satisfied.
This might be thought to flow from the use of the word ‘may’ in subsection 19(1) of the MR Act. Furthermore, there are other provisions which suggest that the Commissioner may retain some residual discretion. For example, in relation to the general suitability criteria for the granting of a security licence, section 15 provides:
(3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.
(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence.
The argument for the existence of a residual discretion is difficult to reconcile with the mutual recognition principle contained in section 17 of the MR Act.
(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a) to be registered in the second State for the equivalent occupation; and
(b) pending such registration, to carry on the equivalent occupation in the second State.
(2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
The distinction between ‘must’ and ‘may’ is well known, the former suggesting mandatory action or compulsion, the latter denoting discretion and choice. However, context may suggest otherwise. Subsection 20(2) of the MR Act, providing that in certain circumstances the local registration authority ‘may’ grant registration, can be read as simply permitting the local authority in the second state to do that which it otherwise would not be authorised to do.
I do not read subsection 19(2) as conveying a discretion not to grant registration on some ground not specified in the MR Act.[16] Such a construction would conflict with the use of the phrase ‘entitled to be registered’ in subsection 19(1), and with the mutual recognition principle itself.
[16] Under section 23 of the MR Act, a local registration authority may refuse registration of any of the statements or information in the notice as required by section 19 are materially false or misleading; or any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.

THE FIRST ISSUE – LICENCE REVOCATION – PARAGRAPH 19(2)(E)

Under section 19 of the MR Act, an application must include a notice in the prescribed form, requiring an applicant to respond affirmatively to certain statements. Paragraph 2(e) requires a response to the following:
[T]he person’s registration (including interim deemed registration and automatic deemed registration) in any State is not cancelled or currently suspended as a result of disciplinary action…
The prescribed form is Application Form P608, which requires applicants to respond to several statements. Question 2.4 relates to paragraph (e), and takes the following form:
No licences I hold or have previously held in any state have been cancelled or are currently suspended as a result of disciplinary action.
The applicant answered ‘False’ and added:
‘2.4 NSW. Got reinstated’.[17]
[17] T12, 40.
This was a reference to a Class 1AC licence granted to the applicant under the SI Act on 21 August 2007, which had been revoked on 10 August 2012 because of disciplinary action.[18] As he had done in previous applications, Mr Constantin answered the questionnaire truthfully.[19]
[18] See T4, 17.
[19] For example, in his application on 14 October 2020; T3, 30, and his application received 8 July 2019: T5, 22.
On 9 February 2023, the Respondent refused the application.[20] The delegate stated:
Section 19(2)(e) of the MR Act, states the notice (i.e. your application) “must state that the person’s registration in any State is not cancelled or currently suspended as a result of disciplinary action”. As your previous NSW security licence was revoked in 2012, you cannot satisfy the requirements under section 19(2)(e) of the Act. Subsequently, I am satisfied that the revocation of your NSW security licence prohibits you from being eligible for a licence under Mutual Recognition principles.
[20] T3, 12.
The Respondent informed the Tribunal that under current practices any previous licence cancellation or revocation based on disciplinary action is regarded as a ground for refusing registration under the MR Act. As to the approval granted on 16 October 2020 under the MR Act (para [3] above), the Respondent asserted that this was done in error, and that the ‘granting of this subclass is inconsistent with the Commissioner’s current approach and interpretation of the MR Act…’[21]
[21] RSFIC, [13].
The statutory requirement under paragraph (e) is that an applicant’s registration in any State ‘is not cancelled or currently suspended as a result of disciplinary action’.
The word ‘is’ has many functions and is patently ambiguous. The statutory context will determine whether the word applies to past events or actions. Neither the Commonwealth nor the state Interpretation Acts address this issue. An American commentator notes that the United States Dictionary Code provides “unless the context indicates otherwise ... words used in the present tense include the future as well as the present.” The US Supreme Court has observed that this means that “the present tense generally does not include the past.” Carr v. United States, 130 S. Ct. 2229, 2236 (2010).[22] But this will depend on context. See, for example, Lansen v Minister for Environment and Heritage [2008] FCA 903, at [24]-[36], per Mansfield J., where the court held that a relevant provision expressed in the present tense was not to be read so as to exclude the application of a bilateral agreement which came into force before the Minister made a relevant decision.
[22] See Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions (2008) 40 Loyola University Chicago Law Journal 1.
The Respondent’s practice is far reaching. Any cancellation or suspension of a licence is regarded as an impediment to registration under the MR Act, regardless of whether the licence was suspended and reinstated, or cancelled outright. The word ‘licence’ does not appear at all in section 19,[23] and section 4 (which defines occupation) refers only to registration being wholly or partly dependent on the attainment of some qualification.[24]
[23] The word ‘licence’ appears only in section 11 and section 42L of the MR Act.
[24] Section 4 of the MR Act provides: “occupation” means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper) …
Moreover, the impediment remains regardless of when the cancellation/suspension occurred, and even if, as in the present case, the actual licence that was cancelled or suspended would have expired if not renewed. Under the policy, cancellation or suspension by the state licensing authority of a qualifying licence would seem to constitute a permanent disqualification from using the MR Act to secure recognition of interstate qualifications. Under this policy, a person whose license has been cancelled or revoked at any point in time must submit to assessment under the local SI Act.
The contrast between registration that is cancelled, as opposed to registration that is merely suspended, is illuminating. Presumably, a suspended registration has the potential to spring back to life upon satisfaction of certain conditions including, perhaps, just the effluxion of time, whereas a cancelled registration cannot spring back, regardless of the status of any underlying or qualifying license. However, the Respondent’s practice (or policy) does not draw any distinction between cancellation and suspension. The policy is to treat any previous licence revocation as defeating an application for registration under the MR Act.
A person whose registration is currently suspended might, at a later point of time, be reinstated. They would then not be ‘currently suspended’. If such a person was permanently denied access to the registration process under the MR Act because a qualifying licence held by them had once been revoked, in the sense of suspended, the second limb would be devoid of any useful content. If the Respondent’s interpretation governs, the ‘springing back’ or reinstatement of the licence would be irrelevant.
The expression ‘is not cancelled or currently suspended’ was recently considered by the Tribunal in the context of an extension of time application.[25]
[25] In Constantin and Commissioner of Police (NSW) [2022] AATA 1333, per Senior Member Puplick AM. As explained by the RSFIC, this was a successful application for an extension of time, although the matter was subsequently dismissed due to non-payment of the filing fee.
64. So, the question arises, is the Applicant’s registration cancelled or currently suspended (irrespective of any cause)? That is, is it presently cancelled or suspended?
65. It would seem that the answer to that is “no”. By his own admission the Respondent states, in a letter to the Applicant’s representative dated 18 February 2022:
. “I acknowledge that your client is the holder of a current 1ABCE2BC NSW security licence which is due to expire on 16 November 2025.”
66. Subsection 24(1) of the Security Industry Act 1997 (NSW) specifies that in relation to a class 1 or 2 licence:
A licence remains in force for a period of 5 years (or such shorter period as may be prescribed by the regulations) from the day on which it comes into force, unless sooner surrendered or revoked or it otherwise ceases to be in force.
67. The licence may be renewed under section 17 of that Act.
68. The class 1AC Security Licence which was revoked in August 2012 would by now have expired without renewal and so it cannot be regarded as “cancelled” or “suspended” in the present. It may have been cancelled or suspended until it expired, but that would have been some years ago. As an authorisation it is functus officio.
69. On the other hand, the Applicant IS the holder of a current licence (including 1AC subclasses) granted in 2016 and that licence is not cancelled or suspended in the present. Indeed, it appears to have been renewed.
…
71. Plainly paragraph 19(2)(e) contains no formulation which supports reading it as meaning “was” (i.e. in the past) cancelled or suspended. The choice of the word “is” by the Parliament imports a status in the present and a status which is continuing.
72. It is also appropriate to consider the effect of accepting the Respondent’s position simply stated, that a previous cancellation of a licence results inevitably and absolutely in an applicant never being able to access the provisions of the MR Act. This would be regardless of how many aeons ago such cancellation happened, even for a matter no more than failure to attend retraining, which nevertheless amounts to disciplinary action and no matter how otherwise qualified an applicant might be.
73. It is hard to imagine that this was the intention of the nine parliaments which agreed to the mutual recognition scheme in the first place.
74. Equally, to accept that an applicant cannot avail themselves of the provisions of the mutual recognition scheme but can attain the same objective by making a fresh application in a second (third and subsequent) jurisdiction … as indeed has been the case in this instance, would be to set aside the underlying philosophy and purpose of that scheme which is to avoid such unnecessary duplications.
75. Section 3 of the MR Act states that the “principal purpose” of the Act is:
for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia.
76. In the original Second Reading Speech introducing the Bill, the Minister stated:
“The second principle is that, if a person is registered to carry out an occupation in one State or Territory, then he or she should be able to be registered and carry on the equivalent occupation in any other State or Territory:
If someone is assessed to be good enough to practise a profession or occupation in one State or Territory, then they should be able to do so anywhere in Australia.
A person will only need to give notice, including evidence of his home registration, to the relevant registration authority in another jurisdiction to be entitled immediately to commence practice in an equivalent occupation in that second State or Territory. Local registration authorities will be required to accept the judgment of their interstate counterparts of a person's educational qualifications, experience, character or fitness to practise.”[30]
77. That principal purpose stated in the MR Act and the second principle outlined by the Minister would surely be frustrated by reading paragraph 19(2)(e) as narrowly as the Respondent contends.
78. No submissions were made to the Tribunal in relation to this specific matter and this is not the place for such a determination to be made.
79. The Tribunal thinks that there may be an arguable point here, on the other hand, it concedes that it may have misread or misunderstood the meaning of the relevant subsection.

I agree with this analysis. By parity of reasoning, Mr Constantin’s class 1AC licence revoked in August 2012 would have expired some time ago and so it cannot be regarded as ‘cancelled’ or ‘suspended’ for present purposes.
In my view, the MR Act does not authorise the practice adopted by the Respondent. The fact that at some point of time an authority in NSW revoked a qualifying licence upon which registration was or might have been sought under the MR Act, does not automatically disqualify an applicant for registration under the MR Act. The suggestion that the revocation of any licence for disciplinary action is a permanent disqualification for registration under the MR Act cannot be sustained.

Automatic Deemed registration

I also note the provisions in Part 3A of the MR Act dealing with so-called automatic deemed registration. Unlike Part 3, which provides for mutual recognition of occupations that are equivalent, Part 3A provides that a person who is registered for an occupation in the person's home State may be allowed to carry on an activity covered by an occupation in another State (the second State). This Part was not relied on in the present case, however, it does provide an important extension of the scope of the MR Act, and contains in paragraph 42D(4)(b) a provision equivalent to paragraph 19(2)(e), so that the views expressed by the Tribunal in respect of Part 3 would seem to apply with equal force to Part 3D, although no settled opinion is expressed on this point.

THE SECOND ISSUE – EQUIVALENCE – GENERAL PRINCIPLES

I turn to the question of equivalence. At the outset, I note that this issue was not considered by the decision-maker at all, and I have considered whether it is appropriate to remit the matter to the Respondent for reconsideration. However, I have decided not to do so. Given the extensive submissions provided by the Respondent, there is no prospect of a different decision being made by the Commissioner. I am also mindful of the statutory obligation to provide a decision that is fair, just, economical, informal and quick.[26] Further delay in this matter is not in the interests of the parties.
[26] Administrative Appeals Tribunal Act 1975 (Cth), section 2A.
The relevant statutory provisions relating to equivalence may be found in Division 4 of Part 3 of the MR Act.
Section 29 provides:
General principles
(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration in accordance with this Part so as to achieve equivalence between occupations in different States.
(3) (omitted)
(Emphasis added)
Section 4 provides:
"occupation" means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted.
Determining whether two regulated occupations are equivalent is based on a comparison of the functions undertaken in the respective occupations, as well as the eligibility requirements to obtain registration. The focus of the exercise is upon the formal requirements as laid down in the respective jurisdictions, rather than the personal qualities of the applicant, such as relevant experience.
In Medical Board of Queensland v Renton [2006] FCA 947, Kiefel J. (as her Honour then was) noted that equivalence is tested by determining whether the activities authorised to be carried out under each registration are substantially the same; or may be so with the imposition of conditions (at [28]). That question is to be determined by reference to the terms and statutory context of the registration in each State.[27] In commenting upon the approach of the Tribunal in that case, her Honour noted, at [23]:
The Tribunal then turned to the question whether the occupations of medical practitioner in New South Wales and registered specialist in intensive care in Queensland were equivalent, which arose from s 29(1) of the Mutual Recognition Act. It did not consider that that determination involved a scientific process. Sande v Registrar of the Supreme Court of Queensland (1996) 134 ALR 560, 565 had held that the Commonwealth legislation should be applied in a practical common sense manner, regard being had to the substance of a matter and to the substantial equivalence of the occupation. It referred to the approach suggested in Rowe v NSW Police Service (1997) 47 ALD 442, 444 which required the identification of the occupation for which the person was registered and the activities authorised to be carried out under that registration followed by a comparison with the activities authorised under the registration which was sought. This approach had been endorsed in Board of Examiners v Lawrence at [68]. The Tribunal observed that in that case French J had emphasised that judgments about equivalence ‘must be made by reference to the terms and statutory context of the registration in each State’.
[27] Citing Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 at [64] French J (as he then was).

Equivalence: General observations regarding the structure of the SI vs SP Acts
SI Act

Section 12 of the SI Act (NSW) provides that class 2 licences are to be divided into subclasses. The section identifies five distinct subclasses together with ‘any other class prescribed by the regulations’.
Section 12 provides:
Class 2 licences
(1) Class 2 licences are to be classified into subclasses. Those subclasses, and the authority they confer, are as follows--
(a) class 2A --authorises the licensee--
(i) to sell security methods or principles, and
(ii) to act as a consultant by identifying and analysing security risks and providing solutions and management strategies to minimise those security risks,
(b) class 2B--authorises the licensee--
(i) to sell, and provide advice in relation to, security equipment, and
(ii) to sell the services of persons to carry on any security activity, and
(iii) to act as an agent for, or otherwise obtain contracts for, the supply of persons to carry on any security activity, the supply of any security equipment or the supply of any security activity, and
(iv) to broker any security activity by acting as an intermediary to negotiate and obtain any such activity for a person in return for a commission or financial benefit,
(c) class 2C--authorises the licensee to sell, install, maintain, repair and service, and provide advice in relation to, security equipment (including electronic security equipment and barrier equipment) and to act as a locksmith,
(d) class 2D--authorises the licensee to provide training, assessment or instruction in relation to any security activity,
(d1) class 2E--authorises the licensee to act as a private investigator or act in a similar capacity,
(g) any other class prescribed by the regulations--authorises the licensee to carry on the security activity prescribed by the regulations in relation to the prescribed class of licence concerned.
(2) The relevant subclass is to be endorsed on each class 2 licence. More than one such subclass may be endorsed on a class 2 licence.
(3) The authority conferred by a class 2D licence does not extend to training, assessment or instruction in the use of firearms.
The SP Act
Section 4 of the SP Act (Qld) defines a ‘security provider’ to include a bodyguard, a crowd controller, private investigator, security adviser, a security equipment installer, a security officer and a security firm. Each of these functions is the subject of a separate statutory definition,[28] and categorised in Schedule 2 as a Class 1 or Class 2 licence.[29]
[28] For example, a bodyguard (section 4A) ; a crowd controller (section 5); private investigator (section 6); security adviser (section 6A); a security equipment installer (section 6B); a security officer (section 7) and a security firm (section 8).
[29] SP Act, Schedule 2.
"class 1 licence" means—
(a) an unrestricted licence for carrying out the functions of 1 or more of the following—
(i) a bodyguard;
(ii) a crowd controller;
(iii) a private investigator;
(iv) a security officer;
(v) a security firm supplying security firm services of a person mentioned in any of subparagraphs (i) to (iv) who holds a class 1 unrestricted licence; or
(b) a restricted licence for carrying out 1, or more than 1, of the functions of a bodyguard, crowd controller, private investigator or security officer.
"class 2 licence" means—
(a) an unrestricted licence for carrying out the functions of 1 or more of the following—
(i) a security adviser;
(ii) a security equipment installer;
(iii) a security firm supplying security firm services of a person mentioned in subparagraph (i) or (ii) who holds a class 2 unrestricted licence; or
(b) a restricted licence for carrying out the functions of either or both a security adviser or security equipment installer.
As noted above, the applicant holds the following class 1 security provider subclasses: bodyguard, crowd controller, security officer (cash in transit); and security officer (unarmed).[30]
[30] T8, 31.
The security adviser (section 6A) subclass is defined as a Class 2 licence.[31] Relevantly, section 6A defines ‘security adviser’ as a person who, for reward, gives advice about security equipment or security methods or principles. Such advice is referred to as ‘security advice’.
[31] SP Act, Schedule 2.
The SP Act sets out the primary requirements governing entitlement to a licence. A person must be 18 years or more (a security equipment installer apprentice may be younger) and an appropriate person to hold the licence. A person seeking a class 1 licence (other than a security firm licence or restricted licence) must successfully complete an approved training course for carrying out the functions, or the category of functions, of each type of security provider for which the licence is sought.[32]

Is the NSW security consultant substantially equivalent to the Queensland security adviser (section 6A) subclass?

[32] SP Act, section 11.

The security adviser role

As a class 2 licence in Queensland, there does not appear to be any specified general training requirements to achieve a ‘security adviser’ role under the SP Act, although the Act does provide for approved training programs in some cases. For example, subsection 14B(2) states:
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.
(3) The chief executive may make a requirement under subsection (2) only if satisfied the relevant approved training is required—
(a) because of an increased risk to public safety or protection of property since the licensee’s latest successful completion of an approved training course or relevant approved training; or
(b) to update the licensee’s competency for carrying out the functions, or the category of functions, of a security provider authorised under the licence.
By contrast, under the SI Act, the eligibility criteria for a subclass 2A security consultant licence requires, in addition to certain general suitability criteria, the following requirements:
(a) at least five years of relevant security industry experience;
(b) Certificate IV in Security Risk Analysis (CPP41519) including specified units of competency;
(c) Demonstration to the Commissioner’s satisfaction that the applicant has:
(i) Held a Class 1 and/or a Class 2 security licence continuously for a total period of at least five years, or
(ii) Been recorded as a nominated person for one or more Master security licensees continuously for a total period of at least five years, or
(iii) Been employed by one or more Master security licensees to manage the carrying on of security activities continuously for a total period of at least five years, or
(iv) Carried on the activities authorised by a Class 2A licence in another jurisdiction, or as an exempt person, for a total period of at least five years.
The Respondent draws attention to the scope of authorisation and the qualification and training requirements.
The Respondent contends that the 2A subclass under the SI Act is not substantially equivalent to that of a ‘security adviser’ registered under the SP Act.
the SI Act provides greater rights than the SP Act, allowing a licensee to “act as a consultant by identifying and analysing security risks” and to provide “solutions and management strategies”. Whereas the SP Act provides the more limited authority to give “advice about security equipment or security methods or principles”, containing no equivalent to section 12(a)(ii) of the SI Act. It is clear from the above that the SP Act does not confer an authority to provide analytical or strategic advice, such that the activities authorised are not substantially similar. In light of this, the two occupations are not equivalent for the purposes of the MR Act.[33]
[33] RSFIC, [58].
In a supplementary SFIC, the Respondent stated:
b) As noted at paragraph [27] of the Supplementary SFIC, the Commissioner submits that the qualifications and experience for each registration is a relevant consideration in the assessment of the equivalence between the two occupations and whether conditions would achieve the required equivalence. In this regard, the Commissioner notes there is a significant difference in eligibility criteria to receive authorisation for the respective licences, including (but not limited to) the requirement that the individual attain a Certificate IV in Security Risk Analysis to be eligible for a Class 2A subclass licence. The Commissioner submits that the nature of the modules undertaken as part of this Certificate, as required for provision of a Class 2A subclass licensee’s activities, is evidence that the activities of a ‘security adviser’ for the purposes of the SP Act are not equivalent (particularly noting there are no training requirements to hold this licence). The Commissioner submits that on this basis, it cannot be held that a licensee of each of the subject licences would hold equivalent occupations.[34]
[34] Supplementary RSFIC, [50].
The applicant’s response to these contentions was:
The difference in eligibility requirements between Queensland and NSW in both licences … cannot give rise to disqualifying the Applicant. Practicality must apply in that should the position of the Respondent be argued successfully the Mutual Recognition Act 1992 would be unworkable. It is highly unlikely that the eligibility requirements between the States and Territories will ever enjoy your 100% match word for word, specification by specification.[35]
[35] A’s Reply to RSFIC, [44].
The NSW 2A subclass authorises a holder to ‘to sell security methods or principles, and to act as a consultant by identifying and analysing security risks and providing solutions and management strategies to minimise those security risks.[36] By contrast, the terms of a section 6A Queensland licence authorises the holder, for reward, to gives advice about security equipment or security methods or principles.
[36] SI Act, paragraph 12(1)(a).
It appears that the holder of a 2A licence is entitled to sell expertise in relation to subjects that are simply not covered by a section 6A licence. The expression ‘security methods or principles’ cannot be treated simply as an empty vessel into which any meaning can be poured. One may have a sound understanding of security methods and principles while lacking the expertise to identify and analyse security risks and provide solutions to minimise such risks. The latter is a more sophisticated function which does not appear to have any counterpart in the SP Act. This is also apparent from section 4, which defines a ‘security provider’ to include a bodyguard, a crowd controller, private investigator, security adviser, a security equipment installer, a security officer and a security firm.
On balance, I consider that there is a significant mismatch between the duties or qualifications of each occupation. They cannot be taken to be substantially equivalent. The functions, duties and eligibility requirements are disparate. I am satisfied that the NSW security consultant licence is not substantially equivalent to the Queensland security adviser (section 6A) subclass.
In relation to this aspect of the application, I affirm the decision of the Respondent made on 9 February 2023.
Dog patrol equivalence
As noted above, the applicant holds a licence in Queensland as a ‘security officer (dog patrol)’. This is one of four categories of functions of a security officer, the others being cash in transit, monitoring category and unarmed category.[37] These are Class 1 licences under the under the SP Act.
[37] SP Act, Schedule 2.
In Queensland, the relevant "dog patrol category", of functions of a security officer, means
the carrying out of the activities of personally guarding, patrolling or watching another person’s property with a dog.[38]
In NSW, the subclass 1D guard dog handler licence sought by the applicant authorises the holder to ‘patrol, protect or guard any property with a dog’.[39]
[38] SP Act, Schedule 2; Supplementary RSFIC, [24]-[26].
[39] T12, 40; SI Act, paragraph 11(1)(d); Supplementary RSFIC [27].
The question is whether the activities authorised to be carried out under each registration are substantially the same.
The Queensland licence authorises ‘watching’, whereas the NSW authorises ‘guarding’. The Respondent argues that these activities are not equivalent. Ordinary usage suggests that ‘guarding’ invariably involves ‘watching’; the more difficult question is whether ‘watching’ extends to ‘guarding’. Watching is undoubtedly an important aspect of guarding.
The issue was not addressed in the Respondent’s SFIC in relation to the guard dog handler subclass (subclass 1D). The curriculum requirements of each occupation are dealt with extensively in the supplementary SFIC filed by the Respondent on 15 February 2024.[40] The applicant did not respond to the supplementary SFIC.
[40] RSFIC, [35]-[39].
It appears that the only substantial difference in qualification requirements relates to the level of first aid training required for each licence, In NSW it is an advanced course, in Queensland it is the basic course. In my view this is an inadequate ground to differentiate between the occupations, which I consider to be substantially equivalent.
I therefore set aside the decision of the Respondent dated 23 November 2023 relating to the dog handler licence and remit the matter for reconsideration with a finding that the a ‘security officer (dog patrol)’ licence in Queensland may be taken to be substantially equivalent to a NSW subclass 1D licence.

Making a Declaration

Subsection 31(1) of the MR Act provides that on a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation and may specify or describe conditions that will achieve equivalence.
The Respondent asked the Tribunal to make orders under section 31 of the MR Act, in respect of both subclasses. Given the findings of the Tribunal, the question only arises in respect of the NSW security consultant licence subclass 2A and the Queensland security adviser (section 6A). I have found that these occupations are not substantially equivalent.

Paragraph 31(2)(b) of the MR Act provides that once a declaration is made the appropriate authorities in each state must be promptly notified and must thereafter act in conformity with the decision in relation to other persons seeking registration.
The power to make a declaration under section 31 of the MR Act is discretionary. The matter of equivalence arose as a subordinate question to the main point agitated by the Respondent, relating to paragraph 19(2)(e) of the MR Act. Moreover, there was a dearth of case law relating to the matter in question. In terms of training requirements, the SP Act provides for the Chief Executive to require a licensee to undertake approved training programs in particular cases.[41] A variability in the respective training requirements is not conducive to making a blanket rule.
[41] SP Act, subsection 14B(2), see [47] above.
The present decision is not a suitable vehicle to make a declaration requiring the Respondent to act in conformity with the declaration in relation to other parties seeking registration.
CONCLUSION
I am satisfied that the revocation of the applicant’s licence in 2012 was not a ground for refusing to consider his application under the MR Act by reason of paragraph 19(2)(e).
I am satisfied that the NSW security consultant licence (subclass 2A) is not substantially equivalent to the Queensland security adviser (section 6A) subclass.
I find that that the ‘security officer (dog patrol)’ licence in Queensland may be taken to be substantially equivalent to the NSW subclass 1D licence.
DECISION
I therefore set aside the decision of the Respondent dated 9 February 2023 and, in substitution, find that:
(a)the applicant is not entitled to be registered pursuant to the MR Act for the NSW subclass 1D licence security consultant licence (subclass 2A) on the basis that he holds a Queensland security adviser (section 6A) subclass licence;
(b)the applicant is entitled to be registered pursuant to the MR Act for the NSW subclass 1D licence on the basis of his ‘security officer (dog patrol)’ licence in Queensland.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...................................[SGD].....................................
Associate
Dated: 29 May 2024

Date(s) of hearing:

23 November 2023

Counsel for the Applicant:

A J Brownlee

Counsel for the Respondent:

C Tipene

Date(s) of hearing:	23 November 2023
Counsel for the Applicant:	A J Brownlee
Counsel for the Respondent:	C Tipene