Dib and Commissioner of Police for NSW
[2010] AATA 852
•2 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 852
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/3174
GENERAL DIVISION )
ReJalal Dib
Applicant
And Commissioner of Police for NSW
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Date2 November 2010
PlaceSydney
DecisionThe decision under review is affirmed.
.....................[sgd]....................
Mr RP Handley
Deputy President
CATCHWORDS
PROFESSIONS AND TRADES – registration - mutual recognition – requirement for registration –training upgrade - cancellation as a result of disciplinary action
RELEVANT ACTS
Mutual Recognition Act 1992 (Cth)
Security Industry Act 1997 (NSW)
Security Providers Act 1993 (Qld)
CITATIONS
Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence (2000) 62 ALD 535; (2000) 176 ALR 305; (2000) 31 AAR 305; [2000] FCA 900; (2000) 100 FCR 255
Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 109 ALR 361; (1992) 37 FCR 75; (1992) 16 AAR 142
Re Scalzo and Australian Postal Corporation (1991) 24 ALD 83; (1991) 14 AAR 339
Re Petroulias [2005] 1 Qd R 643; (2004) 208 ALR 552; [2004] QCA 261
OTHER AUTHORITIES
Macquarie Dictionary Fourth Edition (2005)
REASONS FOR DECISION
| 2 November 2010 | Mr RP Handley, Deputy President |
Mr Dib has applied to the Tribunal for the review of a decision of the NSW Commissioner of Police (the Commissioner) to refuse his application for a Class 1AC security licence under the Mutual Recognition Act 1992 (Cth) (the MR Act) on the ground that his licence had previously been revoked in NSW.
Background
On 23 April 2005, Mr Dib was granted a Class 1ABC security licence under the Security Industry Act 1997 (NSW) (the SI Act). On 1 September 2007, amendments to the SI Act took effect introducing different classes of licence and new competency standards. In November 2007, Mr Dib applied to “transition” his licence to a Class 1AC licence under the amended SI Act. He signed a Declaration on the application form stating:
I understand that my licence may be revoked if I fail to upgrade my training, in relation to any Class 1 licence subclasses I have requested, by the deadline set by the Security Industry Registry (see Fact Sheet 3).
Fact Sheet 3 stated that Class 1 licence applicants would need to upgrade their training to the new standards within the set timeframe, which was stated to be 1 November 2008 for Class 1AC licence holders. The Fact Sheet stated that Class 1 licences “will be issued with the condition that the licensee meets the associated new training standard/s by the relevant deadline”.
On 22 November 2007, Mr Dib was issued with a Class 1AC licence. On 1 December 2008, the Security Industry Registry of the NSW Police issued Mr Dib with a notice of revocation of his licence, effective on 8 January 2009, on the ground that he had failed to upgrade his training by attaining the new competency standards.
On 28 April 2010, Mr Dib was granted a Security Provider Licence under the relevant Security Providers Act 1993 (Qld). On 5 May 2010, he lodged an application for a NSW Class 1AC under the provisions of the MR Act, relying on his Queensland licence. By letter dated 14 May 2010, the NSW Security Industry Registry notified Mr Dib that it had postponed consideration of his application until he had completed and returned a further form concerning his application for registration in NSW. Mr Dib completed this form and returned it on 24 May 2010.
On 15 July 2010, a delegate of the Commissioner notified Mr Dib that his application for registration in NSW had been refused on the ground that he had provided false or misleading information. On 29 July 2010, Mr Dib applied to the Tribunal for a review of this decision. The delegate of the Commissioner subsequently provided a Statement of Reasons for the decision dated 11 August 2010.
Relevant Legislation and Issues
Section 19(1) of the MR Act provides that a person who is registered for an occupation in one State (the first State) may lodge a written notice with the local registration authority for that occupation in another State (the second State) seeking registration for the equivalent occupation in accordance “with the mutual recognition principle”. Section 19(2) sets out the statements/information that “must” be contained in that notice including the following:
(e) state that the person’s registration in any State is not cancelled or currently suspended as a result of any disciplinary action; and
…
Section 19(5) requires that s 19(2) statements/information “must be verified by statutory declaration”.
Section 20(1) provides for mutual recognition as if the law in the second State expressly provided that registration in the first State is a sufficient ground of entitlement to registration. Section 23(1) states that a local registration authority may refuse a grant of registration if, amongst other grounds:
(a) any of the statements or information in the notice as required by section 19 are false or misleading; or
…
As at 1 December 2008, s 26(1)(b)(iii) of the SI Act provided that a “licence may be revoked” if the licensee “contravenes any condition of the licence”.
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 the revocation constitutes such a cancellation, the consequence of this is that Mr Dib’s notice, dated 5 May 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.
The Commissioner no longer contends that Mr Dib made a statement that was materially false or misleading, thereby enlivening his discretion, pursuant to s 23(1)(a), to refuse a grant of registration.
Submissions
Mr Dib said he misunderstood the meaning of the words “cancelled … as a result of disciplinary proceedings” on the application for mutual recognition form. He did not consider that the revocation of his NSW licence was as a result of disciplinary action. He therefore ticked the ‘No’ box on the application form. He did, however, declare that he had previously held a NSW licence. He apologised for his mistake in completing the form.
Ms Richardson, for the Commissioner, submitted that as the word ‘cancelled’ in s 19(2)(e) is not defined in the MR Act, it should be interpreted according to its ordinary meaning when considered in the context of the Act as a whole. She referred the Tribunal to the definition of ‘cancel’ in the Macquarie Dictionary (4th edition) and its meaning “to make void; annul”, and to the definition of ‘revoke’ meaning “to take back or withdraw; annul, cancel, or reverse; rescind or repeal”. Ms Richardson said it should be remembered that the Act is generic legislation that must accommodate different legislation across all States and Territories and across a wide range of occupations: see, for example, Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence (2000) 62 ALD 535 at [64]-[66] (per French J). She submitted that in such a context, it is not of any significance that the SI Act uses the term ‘revoke’ whereas the MR Act uses the term ‘cancel’.
The Commissioner noted that the revocation of a licence under the SI Act renders it of no effect and withdraws permission to carry on security activities. In the same way, in the context of the MR Act, cancellation of registration involves withdrawal of permission to carry on that occupation. Thus, the Commissioner submitted that according to their ordinary meanings, the word ‘revoke’ in the SI Act is relevantly synonymous with the word ‘cancel’ in the MR Act. Thus, when Mr Dib’s licence was revoked under the SI Act, this met the description of ‘cancelled’ under the MR Act.
The Commissioner noted that words ‘disciplinary action’ in s 19(2)(e) are also not defined in the MR Act. Ms Richardson submitted that those words should be interpreted according to their ordinary meaning in the context of the MR Act as a whole and consistently with its purpose. The Macquarie Dictionary (4th edition) defines ‘disciplinary’ as “promoting discipline” and ‘discipline’ as meaning:
… 2. instruction and exercise designed to train to proper conduct or action. 3. punishment inflicted by way of correction and training. 4. the training effect of experience, adversity, etc. 5. subjection to rules of conduct of behaviour; a state of order maintained by training and control … 6. a set or system of rules and regulations …
The Commissioner submits that as the MR Act concerns ‘occupations’, ‘disciplinary action’ will be action taken within the occupation’s rules of conduct for the promotion of a person’s instruction or training or for punishment. Ms Richardson submitted that the use of the words ‘disciplinary proceedings’ as opposed to ‘disciplinary action’ in subparagraphs (d) and (f) of s 19(2) indicates that Parliament intended that the two terms should be distinguished. She submitted that ‘disciplinary proceedings’ contemplate a process such as a show cause process or a hearing, whereas ‘disciplinary action’ does not contemplate such a process.
Ms Richardson referred the Tribunal to the Federal Court decision in Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 37 FCR 75, at 83, where Cooper J said that “the phrase ‘disciplinary action’ means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline”. For action to constitute ‘disciplinary action’ the application of a sanction is not necessary: Re Scalzo and Australian Postal Corporation (1991) 24 ALD 83, at 89. Accordingly, Ms Richardson submitted that the revocation of Mr Dib’s licence was as a result of ‘disciplinary action’.
With regard to the effect of Mr Dib being unable to supply the statement required by s 19(2)(e), Ms Richardson referred the Tribunal to the decision of the Queensland Court of Appeal in Re Petroulias [2005] 1 Qd R 643, where, in a matter involving an application for the registration of a solicitor in Queensland pursuant to the provisions of the MR Act, the applicant was unable to make the statement required by s 19(2)(d) (and therefore the statutory declaration verifying the statement required by s 19(5)). The Court found that “the notice did not accord with s 19, and the notice was consequently not apt to crystallize the entitlement to registration in Queensland provided by s 20”: per de Jersey CJ at [19]; see also McMurdo P at [48].
Ms Richardson said that s 19 is the “gateway” to the provisions for mutual recognition. Because Mr Dib cannot make the statement required by s 19(2)(e), he is unable to give the written notice required by s 19 and, thus, he has no entitlement to registration under s 20.
Discussion
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.
The Queensland Court of Appeal decision in Re Petroulias, referred to above, while not binding on the Tribunal, in my view correctly sets out the way in which ss 19 and 20 operate. The written notice that the applicant for registration in the second State is required to lodge under s 19 “must” satisfy the requirements of s 19(2). The requirement for the notice to include the specified statements and information is mandatory. That this is so is reinforced by the requirement in s 19(5) for the applicant to verify the statements and other information by statutory declaration. As de Jersey CJ said in Re Petroulias at [19], if the notice does not accord with s 19(2), the entitlement to registration under s 20 is not enlivened.
Turning to whether the revocation of Mr Dib’s NSW security licence constituted a ‘cancellation as a result of disciplinary action’, I also agree with the Commissioner’s submissions as to how these words should be interpreted. Since the words are not defined in the MR Act, they should be interpreted according to their ordinary meaning when considered in the context of the Act unless their meaning is ambiguous or obscure or would lead to a result that is manifestly absurd or unreasonable. The principal purpose of the MR Act, stated in s 3, is to promote “the goal of freedom of movement of goods and service providers in a national market in Australia”. To that end, the Act provides for the mutual recognition of “a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State” (s 16(2)).
However, the entitlement to registration in the second State is dependent on the applicant for registration notifying the local registration authority for the particular occupation in that State (s 17(1)) and is subject to the exception that the mutual recognition principle “does not affect the operation of the laws that regulate the manner of carrying on an occupation in the second State” (s 17(2)).
In my view, the ordinary meaning of the word ‘cancelled’ in s 19(2)(e) of the MR Act should be interpreted according to the ordinary meaning of ‘cancel’, meaning to “make void” or “annul”. While the ordinary meaning of the word ‘revoked’ in s 26(1) of the SI Act is subtly broader in that the word ‘revoke’ can mean to withdraw or take back, to revoke also encompasses to make void or annul. In the context of disciplinary action, as in s 19(2)(e) of the MR Act, I am satisfied that the meanings of the words ‘cancel’ and ‘revoke’ are synonymous. I am also mindful, as MsRichardson pointed out, that the MR Act sets up a national scheme for mutual recognition which must accommodate small differences in word use across a variety of legislation in different jurisdictions.
With regard to the meaning of the words ‘disciplinary action’, I also note that in s 19(2) the legislative drafting employs the words ‘disciplinary proceedings’ in subparagraphs (d) and (f) and ‘disciplinary action’ in subparagraph (e), indicating that a distinction is intended by the different word choice. I agree with the Commissioner that the words ‘disciplinary proceedings’ contemplate a process with a view to determining whether a person should be disciplined for his or her conduct. By contrast, the words ‘disciplinary action’ contemplate the action that is taken against a person for the purpose of promoting discipline. I am satisfied that the meaning of the word ‘disciplinary’ in this context includes the revocation of a licence for failure to meet occupational standards, specifically, in this case, failure to undertake additional training required for that occupation with a view to raising standards of conduct.
The Class 1AC licence issued to Mr Dib on 22 November 2007 was subject to a specific condition requiring him to upgrade his training, and there was a warning in Fact Sheet 3, referred to above, that if he failed without reasonable excuse to comply with this condition by the specified date, the Security Industry Registry of the NSW Police would revoke his licence. In my view, the fact that Mr Dib’s NSW security licence was subsequently revoked for failure to meet new training standards by 1 November 2008 equates with a cancellation of his licence as a result of disciplinary action.
Thus, Mr Dib was unable provide the statement required by s 19(2)(e) that his registration had not been cancelled in any State. Consequently, since the notice given by Mr Dib to the NSW Commissioner of Police did not meet the requirements of s 19(2), it did not enliven an entitlement to registration under 20(1). The Commissioner’s decision to refuse Mr Dib’s application for a Class 1AC security licence under the MR Act must therefore be affirmed.
I note that s 42 of the MR Act states:
Nothing in this Part prevents a person from seeking registration or being registered for an occupation under a law apart from this Part.
It is always open to Mr Dib to complete the necessary (upgraded) training to meet the requirements for registration under the SI Act and to make a fresh application for the grant of a licence under that Act.
Decision
The decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: ...............[sgd]..........................................................
A Veness, Associate
Date of Hearing: 26 October 2010
Date of Decision: 2 November 2010
Applicant representative: Self-represented
Respondent representative: Mr C Woolard
Respondent counsel: Ms K M Richardson
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