Constantin and Commissioner of Police (NSW)
[2022] AATA 1333
•20 May 2022
Constantin and Commissioner of Police (NSW) [2022] AATA 1333 (20 May 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1415
Re:Nicolas Constantin
APPLICANT
AndCommissioner of Police (NSW)
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:20 May 2022
Place:Sydney
Pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal extends the time for making an application for review in this matter to 15 February 2022.
.................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for an extension of time – refusal of mutual recognition for certain terms of security clearance – 28-day period has elapsed – where extent of delay reasonably explained – where there are reasonable prospects of success – extension of time granted
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 29
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Mutual Recognition Act 1992 (Cth) ss 19, 20, 23
Security Industry Act 1997 (NSW) ss 3, 17, 19, 24
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Berkelaar and Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 119 ALR 85
Constantin and Commissioner of Police, NSW Police Force [2012] NSWADT 172
Crick and Prosegur Australia Pty Ltd [2016] AATA 313
Dib and Commissioner of Police for NSW [2010] AATA 852
Doyle v Chief of General Staff (1982) 42 ALR 283
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516
Kabir and Commissioner of Police for NSW [2010] AATA 853
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Kuljic v Secretary, Department of Social Security [1994] FCA 886
McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281
Mowle and Commissioner of Police (NSW) [2017] AATA 2294
Petroulias [2005] 1 Qd R 643
Secretary, Department of Family and Community Services and Roberts (2003) 73 ALD 412
Special Protection Services (NSW) Pty Limited and Commissioner of Police, NSW Police Force; Constantin and Commissioner of Police, NSW Police Force [2015] NSWCATOD 112
SPWX and Secretary, Department of Social Services [2020] AATA 3883
Tran and Commissioner of Police (NSW) [2016] AATA 774
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
SECONDARY MATERIALS
Commonwealth, Parliamentary Debates, House of Representatives, 3 November 1992
NSW Police Force, Security Licences: < FOR DECISION
Chris Puplick AM, Senior Member
20 May 2022
BACKGROUND
This is an application by Mr Nicolas Constantin (the Applicant) who seeks an extension of time (EOT) to lodge an appeal against a decision by the New South Wales Commissioner of Police (the Respondent) to refuse recognition (in New South Wales) of certain terms of the Applicant’s Queensland-issued security licence under the provisions of the Mutual Recognition Act 1992 (Cth) (the MR Act).
The MR Act itself provides a uniform scheme whereby certain qualifications granted in one State or Territory may be recognised in another State or Territory without an applicant having to sit for or qualify for grant or recognition of a new qualification under that other State or Territory’s licensing or registration scheme.
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that applications for review of a relevant decision must be made within 28 days of the decision being notified to an applicant (pursuant to subsection 29(2)). However, the Tribunal has a discretion to allow applications to be lodged out of time if it is “satisfied that it is reasonable in all the circumstances to do so” (pursuant to subsection 29(7)).
This matter came before the Tribunal for an interlocutory hearing in respect of the Applicant’s extension of time request on 19 April 2022. Both parties were represented and the hearing was conducted by telephone.
PRINCIPLES FOR CONSIDERING EXTENSIONS OF TIME
Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them being granted.
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[1] gave four reasons why such limitations are an important part of the legal process. His Honour noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
…
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[1] (1996) 186 CLR 541 at 552-553. Footnotes and citations omitted.
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment [2] should be taken as the guide by this Tribunal in determining EOT matters.
[2] (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and thus it is “fair and equitable in the circumstances” to extend time;
·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
·any prejudice to the respondent caused by the delay;
·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
However, there are other principles which the Tribunal bears in mind in these considerations. They include:
·considering each case on its specific facts and merits, being guided by “what the justice of the case requires” and ensuring that all relevant factors are evaluated;[3]
·considering that “if a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal”;[4] and
·considering “any alternative avenues of relief for the Applicant should the extension of time order not be made”.[5]
[3] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59]; Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451 at 465.
[4] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
[5] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].
There is no hard-and-fast rule related to the length of time by which an application falls outside the prescribed lime limits serving as a guide as to whether or not an extension of time may be granted.
In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated:
In many cases an extension of one day would not be opposed and an order to that effect would be made by the Tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order. [6]
[6] Secretary, Department of Family and Community Services and Roberts (2003) 73 ALD 412 at [16]; Dolan and Comcare (1993) 29 ALD 887 at 888.
In Roberts with just one day’s delay the extension of time was refused whereas in Berkelaar, where the time delay was 5 years, an extension of time was granted.[7] In 2020 the Tribunal saw fit to grant and extension of time to an applicant who had lodged her request well in excess of eight years after the appealable decision because although “the delay in this matter is very substantial”, nevertheless “the issues sough to be considered in a review are also of importance.” [8]
[7] Berkelaar and Comcare [1997] AATA 12015.
[8] SPWX and Secretary, Department of Social Services [2020] AATA 3883 at [49].
Within the “check list”, in this matter it appears that effectively only two of the Hunter Valley grounds are relevant – namely is there a reasonable explanation for the delay and what are the substantial merits of the case?
The Respondent itself in its Notice of objection to the grant of the EOT (Notice of Objection to EOT) states that it “does not assert any prejudice” but notes, properly, that the mere absence of prejudice is not sufficient for an EOT to be granted. As will be explained below the Applicant has not “rested on his rights” and there is no evident prejudice to any other parties or interests.
RELEVANT DECISION DATES AND LICENCE DETAILS
On 12 October 2021 the Security Licensing and Enforcement Directorate (SLED) of the NSW Police Force received the Applicant’s application for the grant of NSW 1D and 2A security licence subclasses, by way of recognition of his equivalent Queensland qualifications, under the MR Act.[9]
[9] Class 1D is a licence for a Guard Dog Handler (patrol, protect or guard any property with a dog) and Class 2A is a Security Consultant (work as a security advisor or consultant, identifying and analysing security risks and selling solutions and strategies to minimise these risks). NSW Police Force, Security Licences: <>
The Applicant sought to have these subclasses of licence attached to a current NSW Class 1ACE 2BC security licence[10] (number xxxxxx767) (hereafter the NSW licence) which was granted to him under the Security Industry Act 1997 (NSW) and which is valid until 16 November 2025. The Tribunal was informed by the Applicant that he first received this NSW licence on or about 16 November 2019 and the Respondent advised that their records indicate an approval date for the Applicant’s NSW licence of 17 September 2019 issued for a term of one year. It understood that the Applicant thereafter renewed the licence in 2020 for a period of 5 years.
[10] 1A (unarmed guard); 1B (bodyguard); 1C (crowd controller); 1E (monitoring centre operator); 2B (security seller); 2C (security equipment specialist). Ibid.
It appears that the Applicant apparently also holds two Queensland security provider licences (numbers xxxx303 and xxxx392) which are valid until 21 June 2022 and 18 June 2022 respectively.
On 22 December 2021 the Respondent apparently made a decision to refuse the application. A letter dated 23 December 2021 containing details of the refusal decision and stating the reasons for refusal was sent to the Applicant at a Post Office Box address.
This letter also outlined the Applicant’s review rights, including his right to appeal the decision to this Tribunal.
REASONS FOR DELAY
When was the Respondent’s notification received?
Under subsection 29(2) of the AAT Act an applicant has a period of 28 days (from the date on which notice of the decision was given to an applicant) in which to lodge an appeal against an administrative decision with the Tribunal.
Subsection 29(1) of the Acts Interpretation Act 1901 (Cth) (the AI Act) states that an item when posted is taken to be received (“effected”) “at the time at which the letter would be delivered in the ordinary course of post.”
It is difficult for the Tribunal to determine exactly when this would have been the case for a letter posted at some time on 23 December 2021 given the intervention of the various public holidays associated with Christmas Day, Boxing Day and New Year’s Day.
Version 1
The Applicant claims in an email to the Tribunal (via his Litigation Services representative) that he did not receive the Respondent’s letter until “early January”.
In his Application for Review of Decision (received 15 February 2022) the specific date of 16 January 2022 is stated as the date the Applicant received the reviewable decision. Given the Christmas-New Year pressures on the postal service and the fact that a Post Office box address was used, this may or may not have been the case. Nevertheless, the Tribunal notes that 16 January 2022 was a Sunday, so presumably this is the day the Applicant cleared his post office box.
It was the evidence of the Applicant’s representative that, in the period between 16 January and 15 February 2022, he sought some form of “mediation” or dialogue with the Respondent in an attempt to “resolve” the Applicant’s concerns about the rejection of his application, and in the interim, by letter dated 24 January 2022, stated that he would “reserve the right to appeal out of time to the AAT should same fail.”
In correspondence with the Tribunal Registrar, the representative described his letter to the Respondent as being “within time, the matter remained alive and in time”. Furthermore, in the application for review the representative answered the question “[d]o you wish to apply for an extension of time?” by stating “[n]ot at this time”.
Version 2
However, to add to the confusion, when the Applicant then made an application for an Extension of Time on 7 March 2022, the application form indicated that the decision under review was received on 23 December 2021. This would be remarkable since the letter was not transmitted electronically but sent to a Post Office box where, if this claim is correct, it was received on the day it was posted.
Version 3
The Respondent then makes the matter even more indecipherable where it refers to this specifically in its Notice opposing the extension and writes: “The AET[11] states that the date of receipt of the decision was 22 December 2021.” This is not what the AET states and would be equally improbable as the Respondent’s letter is dated 23 December 2021.
[11] Application for an Extension of Time.
The 28-day rule
As noted the AAT Act provides that the period of time for an application to be filed as follows
Prescribed time for making applications--general
29(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision--the day on which a document setting out the terms of the decision is given to the applicant;
Applying this formula, it must be taken that the 28-day period from 23 December 2021 ended on or about 19 January 2022. Applying the requirements of the AI Act regarding “ordinary course of post” the period would have ended somewhere in the vicinity of 19 to 22 January 2022.
It is however, not required in this instance that an exact date be fixed because there is no doubt that the application for review made on 15 February 2022 was lodged out of time based on the date ranges above. Further, if the decision was indeed received on 16 January 2022, the application would be considered as being made within the 28-day statutory period. For the purposes of this extension of time application, the Tribunal does not accept this is the case.
DISCUSSION – REASON FOR DELAY
The primary reason for the delay in lodging the application for review was the action of the Applicant’s representative in deciding that he would “reserve his right” to make an application for an EOT if he were to be unsuccessful in seeking some form of compromise or settlement direct with the Respondent. Implicit in that approach is an assumption – an unfounded one – that any such EOT application would necessarily be granted. However, it does indicate that the Applicant was not resting on his rights but was active in pursuit of his cause.
It is not an absolute requirement that reasons be given for a delay in lodging an application;[12] nor should an applicant necessarily be disadvantaged because his/her representative caused delays;[13] nor should evidence that an applicant was pursuing an alternative course of action in support of their application be discounted.[14]
[12] Comcare v A’Hearn (1993) 119 ALR 85 at 88; McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281 at [25].
[13] Crick and Prosegur Australia Pty Ltd [2016] AATA 313 at [22]-[24].
[14] Doyle v Chief of General Staff (1982) 42 ALR 283 at 286.
In this instance, primarily as a result of the lack of clarity as to what might have constituted the 28th day in these proceedings, but also in light of the other representations made, the Tribunal determines that the failure to lodge the application within the required time should not be constituted as a barrier for the EOT to be granted.
PROSPECTS OF SUCCESS
Principles
In Kuljic von Doussa J explained:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal. Two questions therefore arise on the papers before the Court in this case: (1) whether an acceptable explanation for the delay has been proffered; and (2) whether, on the merits, there is any prospect of the appeal succeeding.[15]
[15] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
Similarly, in Afu Bromwich J stated:
The merit threshold for the grant of an extension of time is not especially onerous. It will seldom be in the interests of justice to grant an extension of time where there is little or no prospect of success, not least because of the additional resources that may need to be expended. However, unless the grounds are hopeless on an impressionistic reading of them that is without the benefit of detailed argument, such that it can be confidently concluded that the grounds must fail, the better approach may be to grant the extension of time and then consider the grounds properly and with the benefit of full argument. In this case, an impressionistic approach to the proposed grounds of review does not warrant the epithet of “hopeless”. The Court has had the benefit of full argument on those grounds, such that there is no question of any additional resources being expended by the grant of an extension of time. It follows that the appropriate course is to grant the extension of time and consider the grounds advanced in full.[16]
[16] Afu v Minister for Home Affairs [2018] FCA 1311 at [3]. Citations omitted.
Expressly however, the Tribunal is not empowered to delve so far into the application as to risk prejudging any outcome which might result from a full merits hearing.
The High Court made this explicit, holding that:
The understanding of counsel for the appellant as to how the Court would examine "the merits" was consistent with the practice of the courts in a number of common law jurisdictions dealing with applications to extend the time for appealing. In R v Secretary of State for the Home Department; Ex parte Mehta, for example, Lord Denning MR said:
"We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time."
These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question - should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court's business would be prejudiced by granting the application.[17]
[17] Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [3] per Brennan CJ and McHugh J, also at [66] per Kirby J. Citations omitted.
Legislation
It is at this stage that the specific provisions of the Mutual Recognition Act 1992 (Cth) (the MR Act) come into focus. Section 19 of the MR Act provides that, in seeking mutual recognition of qualifications, certain information must be provided to the local recognition authority (in this instance, the Respondent) in order to trigger the recognition allowed for under section 20. Relevantly, the sections provide:
Section 19 Notification to local registration authority
(1) A person who is registered in the first State for an occupation that is equivalent to an occupation in the second State may lodge a written notice with the local registration authority of the second State for the equivalentoccupation, seeking registration for the equivalentoccupation in accordance with the mutual recognition principle.
(2) The notice must:
…
(d) state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and
(e) state that the person’s registration in any State is not cancelled or currently suspended as result of disciplinary action; and
(f) state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State…Section 20 Entitlement to registration and continued registration
(1) A person who lodges a notice in accordance with 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) then provides that a local registration authority may refuse to grant registration by way of mutual recognition if, inter alia:
(a) any of the statements of information in the notice as required by section 19 are materially false or misleading…
On 10 August 2010 the Respondent revoked a Class 1AC Security Licence (number xx956) then held by the Applicant under the provisions of paragraph 15(1)(a) of the Security Industry Act 1997 (NSW).
It is not necessary for the Tribunal to canvass in detail the reasons for this licence revocation, suffice to say that it was based on a finding by the Commissioner that the Applicant was not a “fit and proper person” to hold such a licence and that proceedings in the NSW Administrative Decisions Tribunal[18] and collaterally in the NSW Civil and Administrative Tribunal[19] upheld the Commissioner’s decision on appeal.
[18] Constantin and Commissioner of Police, NSW Police Force [2012] NSWADT 172.
[19] Special Protection Services (NSW) Pty Limited and Commissioner of Police, NSW Police Force; Constantin and Commissioner of Police, NSW Police Force [2015] NSWCATOD 112.
The upheld grounds included a finding that the Applicant had misled the registration authorities in Queensland about certain details of his registration and that he had been convicted of serious offences involving assault and robbery.
It is clear, and not contested by the Applicant, that the basis for the revocation of the licence was as a result of “disciplinary action”.
An immediate question arises as to whether the “revocation” of a licence is the same as the “cancellation” or “suspension” of a licence. The Macquarie Dictionary (seventh edition, 2017) gives:
“Revoke: (1) to take back, withdraw, annual, cancel or reverse; rescind or repeal.”
The Oxford English Dictionary (OED) New Words List June 2021 gives:
“to revoke or suspend a person’s membership.”
The OED Lexico site gives as synonyms for “revoke”:
“cancel, repeal, rescind, reverse, abrogate, annul, nullify, declare null and void, make void, void, invalidate, render invalid, quash, abolish, set aside, countermand, retract, withdraw, overrule, override.”[20]
[20] Emphasis in original.
The Tribunal can thus be confident that in terms of a licence being “revoked” it has the same meaning as a licence being “cancelled” or “suspended”.[21]
[21] Dib and Commissioner of Police for NSW [2010] AATA 852 at [24].
The Respondent argues that since the Applicant cannot make the statement required by paragraph 19(2)(e) he is not entitled to access the benefits conferred by section 20 of the MR Act.
The Applicant argues that while there is no dispute that a licence was revoked/cancelled on disciplinary grounds in 2010 it would be unjust and inequitable for that to be held against the Applicant, effectively for the rest of his life. The Applicant goes further and draws attention to the fact that the Applicant applied to the Respondent for a new licence under NSW legislation and this was granted, without condition or qualification by the Respondent in 2016 and is current until November 2025.[22] In the period intervening between 2010 and the grant of the current licence and to the present, there is nothing adverse in the Applicant’s record and indeed and at some point has apparently served as a member of the Special Air Services Regiment (SAS), although the Tribunal was not provided with details of the extent or nature of this service.
[22] This presumes not only that the NSW licence was granted, but that it was renewed as licences generally are issued for a five-year period.
Cogent arguments on both sides leaves the Tribunal adrift between Scylla and Charybdis.
Authority
The Courts and this Tribunal have considered this issue on a number of occasions.
In the case of Petroulias the full Court of Appeal in Queensland considered an application by a Victorian solicitor for registration in that State under the MR Act. Although the matter before the Court did not involve paragraph 19(2)(e) it did involve another paragraph of subsection 19(2). At issue was the Applicant’s inability to satisfy the requirements of paragraph 19(2)(d) which relates to “pending” disciplinary proceedings. Chief Justice de Jersey stated:
In view of these circumstances, Mr Petroulias could not make the declaration required by s. 19(2)(d) of the Act, because he was in fact subject to a “preliminary investigation … that might lead to disciplinary proceedings” in relation to his registration as a solicitor in Victoria. By statutory declaration, he verified the inaccurate para. 6 of the form he submitted. Because of that inaccuracy, which relates to matters of serious potential relevance to his being registered as a solicitor, the notice did not accord with s. 19, and the notice was consequently not apt to crystallise the entitlement to registration in Queensland provided for by s. 20.[23]
[23] Petroulias [2005] 1 Qd R 643 at [19].
The issue was before the Tribunal in two cases, heard at the same time before Deputy President Handley.
In Dib the Deputy President made it plain that:
As stated above, the issue for the Tribunal is whether the revocation of Mr Dib’s NSW licence constitutes a “cancellation as a result of disciplinary action”. If it does, I agree with the Commissioner’s submissions that Mr Dib cannot satisfy the requirements necessary for his application under the MR Act to constitute a notice to under s 19 of the MR Act and, as a consequence, no entitlement to registration in NSW arises pursuant to s 20.[24]
and made the same point differently expressed in Kabir:
The issue for the Tribunal is whether the revocation of Mr Kabir’s NSW licence constitutes a “cancellation as a result of disciplinary action”. If the revocation constitutes such a cancellation, the consequence of this is that Mr Kabir’s notice, dated 15 April 2010, seeking NSW registration cannot satisfy the requirements of s 19(2) of the MR Act. As explained above, if a valid notice is not given under s 19(2), there is no entitlement to registration under the mutual recognition principle.[25]
[24] Dib and Commissioner of Police for NSW [2010] AATA 852 at [20].
[25] Kabir and Commissioner of Police for NSW [2010] AATA 853 at [11].
In the matter of Dib (at [4]) the cancellation of a licence resulted from the failure of the applicant “to upgrade his training by attaining the new competency standards” whereas in Kabir (at [7]) the cancellation resulted from the fact that the applicant “had provided false or misleading information by not disclosing that his previous NSW licence had been revoked”.
In Tran the matter again related to the applicant’s failure to complete the required units of competency leading to revocation of his licence. Mr Tran’s NSW licence was cancelled in 2014 and he then obtained an equivalent security licence in Queensland in 2015 and sought to have that mutually recognised in NSW. The Tribunal[26] held that:
The issue before the Tribunal is whether or not Mr Tran is entitled to registration as the holder of a class 1 security licence in New South Wales by virtue of his registration as such in Queensland.
This requires a decision whether or not Mr Tran can comply with the notice requirements set out in paragraph 19(2)(e) of the Mutual Recognition Act, which in turn requires a decision whether or not the revocation of Mr Tran’s New South Wales licence on 1 October 2014 was a cancellation “as a result of disciplinary action”.[27]
[26] Deputy President Constance, Senior Member McGrowdie and Member Bygrave.
[27] Tran and Commissioner of Police (NSW) [2016] AATA 774 at [16]-[17].
That Tribunal came to the following conclusion, affirming the Commissioner’s refusal decision, but also added a rider to its findings:
Mr Tran had his New South Wales security licence revoked on 1 October 2014 by reason of his failure to complete the required units of competency. This was a cancellation “as a result of disciplinary action”. Consequently, Mr Tran cannot make the statement required by section 19(2)(e) of the Mutual Recognition Act and he is unable to give the written notice required by section 19. He is not entitled to registration under section 20 of the Mutual Recognition Act.
While it is not possible for Mr Tran to be granted a security licence in New South Wales under mutual recognition principles, the Tribunal notes that Mr Tran is not prevented from applying for a security licence in this State de novo if he so wishes.[28]
[28] Ibid at [28]-[29].
In the case of Mowle,[29] a decision by Deputy President Constance in setting aside the refusal to grant a licence under the MR Act was based on the fact that the applicant was able to establish that the Commissioner was in error in basing his decision on a finding that a previous licence of his had been cancelled when this was in fact not the case and no such previous cancellation had occurred.
[29] Mowle and Commissioner of Police (NSW) [2017] AATA 2294.
The authorities, which are binding on this Tribunal, are clear that where an applicant cannot satisfy, in full, the requirements of subsection 19(2) they cannot avail themselves of the mutual recognition benefits of section 20 of the MR Act.
DISCUSSION – PROSPECTS OF SUCCESS
Paragraph 19(2)(e) appears unforgiving in its terms which are worth repeating (emphasis added):
“state that the person’s registration in any State is not cancelled or currently suspended as result of disciplinary action”.
The operative word here is “IS”. The word “is” is defined in the Macquarie Dictionary as being (emphasis added):
“3rd person singular present indicative of be”.
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?
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.”
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.
The licence may be renewed under section 17 of that Act.
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.
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.
This application is sufficiently distinguishable from Dibb, Kabir and Tran in that, in each of those cases, the licence that had been revoked/cancelled was the licence held currently by the applicant. Mr Dibb had a licence granted in 2005 which needed to be “transitioned” to new requirements in 2007 and was granted and then revoked in 2010 when it was determined that false statements had been made in the application. The like was also the case with Mr Kabir whose licence was granted in 2007 and cancelled in 2010. Mr Tran had a provisional licence granted in 2012, revoked in 2014 whereupon he obtained a licence in another State which was not mutually recognised.
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.
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.
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.
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 (Tran) – 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.
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.
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]
[30] Commonwealth, Parliamentary Debates, House of Representatives, 3 November 1992 at 2433.
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.
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.
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.
There is a way for this matter to be resolved and that is to allow the application to go forward to a full hearing of the Tribunal where this point can be addressed by the parties and resolved after due consideration.
To take such a position is consonant with the finding that, if the Tribunal is right in its concerns about the wording of paragraph 19(2)(e) then the Applicant has “some prospect of success” (Kuljic).
Moreover, as Hill J explained (albeit within the taxation regime but touching on the same principles):
What is required is the balancing of the delay; the explanation for it; the circumstances which gave rise to it and such prejudice if any as may be shown to exist to the Commissioner against the prejudice which may arise to a taxpayer who has by reason of the failure to object in time lost the right to a review of the assessment. In this balancing process the Commissioner or the Tribunal on a review will be guided by what the justice of the case requires. The balancing process should be approached on the basis that while Parliament has stipulated a time in which objections are required to be lodged it has entrusted to the Commissioner a power to extend that time in appropriate circumstances. The decision maker should not lose sight of the fact that s14ZW is an ameliorating provision designed to avoid injustice.[31]
[31] Brown v Commissioner of Taxation [1999] FCA 563 at [59].
DECISION
Pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal extends the time for making an application for review in this matter to 15 February 2022.
I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
......................................[sgd]..................................
Associate
Dated: 20 May 2022
Date(s) of hearing: 19 April 2022 Advocate for the Applicant: Mr A Brownlee, Butler Hardy Solicitors for the Respondent: Mr A Grey, Office of the General Counsel NSW Police Force
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