Constantin and Commissioner of Police (NSW)

The Administrative Appeals Tribunal (AAT) considered an application by Mr Constantin for an extension of time to appeal a decision by the Commissioner of Police (NSW) to refuse his application for security licences under the Mutual Recognition Act 1992 (Cth). Mr Constantin sought to have Queensland security licence subclasses recognised in New South Wales, but his application was refused by the Commissioner. The primary dispute concerned whether Mr Constantin could satisfy the requirements of section 19 of the Mutual Recognition Act, specifically the declaration that his registration in any state is not currently cancelled or suspended as a result of disciplinary action, given a previous revocation of a NSW security licence in 2010.

The legal issues before the Tribunal were whether to grant an extension of time for Mr Constantin to lodge his application for review, and if so, whether his application had reasonable prospects of success. This involved determining the meaning of "is not cancelled or currently suspended" in section 19(2)(e) of the Mutual Recognition Act, and whether a past licence revocation, even if disciplinary in nature, precluded an applicant from accessing the mutual recognition provisions if they currently held a valid licence. The Tribunal also had to consider the reasons for the delay in lodging the appeal and whether any prejudice would be caused to the respondent by granting the extension.

The Tribunal reasoned that while previous decisions indicated that a licence revocation due to disciplinary action would prevent an applicant from making the required declaration under section 19(2)(e), the present case was distinguishable. Mr Constantin's previous licence had expired, and he currently held a valid NSW licence. The Tribunal found that the word "is" in section 19(2)(e) implied a present and continuing status, and that the applicant's current valid licence meant he was not presently cancelled or suspended. Furthermore, the Tribunal considered that a strict interpretation of the provision, preventing access to the Mutual Recognition Act for any past disciplinary action, would frustrate the Act's purpose of promoting freedom of movement for service providers. The Tribunal also noted the ambiguity surrounding the exact date of receipt of the refusal letter, contributing to the delay.

Ultimately, the Tribunal granted the extension of time. It found that Mr Constantin had provided a reasonably explained delay and that there were arguable prospects of success, particularly concerning the interpretation of section 19(2)(e) and the underlying purpose of the Mutual Recognition Act. The Tribunal certified that the preceding reasons were a true copy of its decision.