JOSHUA QUINTON & COMMISSIONER FOR FAIR TRADING (Occupational Discipline)
[2010] ACAT 50
•14 July 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JOSHUA QUINTON & COMMISSIONER FOR FAIR TRADING
(Occupational Discipline) [2010] ACAT 50
SEC 3 of 2010
Catchwords: OCCUPATIONAL DISCIPLINE – licensing – Security Guard – review of decision to refuse application for licence – criminal offences- public interest – presumption of right to work-
List of Legislation: Security Industry Act 2003 section 21(1)(a)(iv)
International Covenant on Economic,
Social and Cultural Rights Article 6(1)
List of Cases:
R & R Fazzolari Pty Limited v Parramatta City Council;
Mac's Pty Limited v Parramatta City Council [2009] HCA 12; Commonwealth v Progress Advertising and Press Agency Co P/L 1909 10 CLR 457
Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410
Buckley v Tutty 1971 125 CLR 353;
Tellis & Other v Bombay Municipal Corporation and other (1987) LRC (Const) 351;
Truax v Raich (1915) 239 US 33, Meyer v Nebraska (1923) 262 US 390;
Bowman v Township of Pennsauken (D.N.J. 1989) 709 F.Supp. 1329; Sargood Bros v Commonwealth (1910) 11 CLR 258;
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328;
MU v Commissioner of Police (2004) NSWADT 197; Commissioner for Consumer Affairs v Leonello (2005) SADC 134; Al-Kateb v Godwin (2004) 219 CLR 562;
Daniels Corporation v ACCC (2002) 213 CLR 553;
CIC Insurance Ltd v Blacktown Football Club Ltd 1997 187 CLR 384;
Coco v Q (1994) 179 CLR 427 at 437;
Bropho v W.A. (1990) 170 CLR 1 at 17;
Malika Holdings v Stretton (2001) 204 CLR 290 at 28;
Gifford v Strang Patrick Stevedoring P/L (2003) 204 CLR 290. Minister for Immigration and Ethnic Affairs v Teoh (1995) 182 CLR 273.Pearce and Geddes Statutory Interpretation in Australia 6th ed pp182-190;
Sappideen, O’Grady and Warburton, Macken’s Law of Employment at [4.155];
Spigelman CJ Opening Address to the NSW Bar Association 2005 79(12) ALJ 769
Tribunal: Mr A. Anforth, Senior Member
Date of Orders: 14 July 2010
Date of Reasons for Decision: 14 July 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) SEC 3 of 2010
BETWEEN:
JOSHUA QUINTON
Applicant
AND:
COMMISSIONER
FOR FAIR TRADING
Respondent
TRIBUNAL: Mr A. Anforth
Senior Member
DATE: 14 July 2010
ORDER
The Respondent is to issue the Applicant a licence for the purpose of
section 13(1)(a) Security Industries Act 2003.
………………………………..
Mr A. Anforth, Senior Member
REASONS FOR DECISION
On 12 October 2009 the Applicant (DOB 8/4/87) applied for a class ‘A’ and ‘D’ security licence under the Security Industry Act 2003 (the Act).
Section 13 of the Act defines the categories of employee licences. A class ‘A’ licence permits the holder to be employed in the category of work described as ‘patrol, guard or protect property’. A class ‘D’ licence permits the holder to be employed as ‘a crowd controller’. In common parlance a class ‘A’ licence is the licence applicable to guards who sit at the entry of buildings or at airports or who do night patrols in cars to check on premises. A class ‘D’ licence is the licence applicable to ‘bouncers’ and the like in licensed premises and at public events.
The Applicant possessed the requisite qualifications for both categories of licence, having recently undergone the relevant training courses.
Section 21 of the Act provides relevantly that:
‘the Commissioner for Fair Trading must not issue or vary a license unless:
(a) satisfied that-
...
(iv) it is otherwise in the public interest to license the applicant
...
The ‘public interest’ test is in part defined in section 23 which requires that consideration must be given to:
(a) relevant criminal offences: and
(b) ‘any other relevant matter’
On 5 January 2010 the Respondent refused to grant the licence on the basis of the Applicant’s prior history of criminal convictions. The Respondent took the Applicant’s view that it was not in the public interest to issue the licences
(section 21(1)(a)(iv)).
The Applicant’s criminal record was in evidence and showed the following convictions:
On 27 January 2010 the Applicant exercised his right of appeal to the Tribunal under section 37 of the Act to review the decision. In his letter of appeal the Applicant said the following and annexed various personal references:
To whom it may concern:
Whilst I understand the decision made by the Delegate, I would like to appeal this decision based on the following:I have made a conscious effort to relocate myself from negative influences in my life. This has involved a move from Wagga to Canberra in which I have focused on my music career as a DJ. I have also cut ties with individuals who have had less than positive impact on my lifestyle.
I have dedicated the last three years of my life to making sure I make responsible decisions including ensuring that I have regular income through using my own initiative in the music industry. I have developed many business contacts that have also helped me progress.
Whilst I believe that the Delegate is justified in considering my previous actions in refusing my application, I believe the decisions I have made over the past few years have greatly increased my ability to maintain a security licence with a professional approach.
I deeply regret some of my actions in the past and believe that I have changed the way I view my life and how I can be a successful individual.
I have also surrounded myself with positive people who have helped me develop a clearer outlook on both my lifestyle and career.
Please see attached character references as an example.
The matter was listed for directions before the Tribunal on 5 March 2010 at which time procedural orders were made for the Applicant to file and serve any evidence he relied upon. The Applicant filed the following statement together with further character references:
“To whom it may concern,
I am writing this letter to support my application to have a review of the decision regarding my application for a security licence. I would like to address the reasons given for not granting myself the licence.
Firstly I would like to say that I have moved away from Wagga to Canberra and with the support from my girlfriend I have been able to change the negative parts of my life and move forward in a very positive manner. I see myself as a role model for my brother and sister and want them to see me as a successful person with a job and who is respected by the people who know me. This is probably the most important aspect for me of getting a security licence so I can work and gain the respect of my family and my colleagues through working hard and being reliable.
Through my current employment I have learned that it is very important that I am reliable and willing to work. This has really helped me in understand how some of my previous actions have impacted other people.
I would like now to look at the convictions listed by the delegate;
The police certificate you provided from the AFP indicates that you have convictions against you which are relevant offences under the Act, specifically;· Obtain money by deception (19 July 2007)
· Obtain money by deception (19 July 2007)
· Resist officer in execution of his duty ( 21 September 2006)
· Destroy or damage property (21 September 2006)
I believe that the time that has elapsed since the above offences should be given considered. There has been almost three years since the last offence and almost four years since the other offence listed.
I would like to say that I in no way trying to defend my behaviour and regret them very much however I also think it is important to consider the nature of the offences as they seem to sound much worse in writing than they actually were. Firstly the obtain money by deception was for not paying for petrol on two occasions. Resist officer and damage property were in fact at the same time and was after trying to help a someone who had been bashed and was knocked out - his drunk friend grabbed me and then the police grabbed us both. I was upset and didn't behave properly and the police locked me in the police wagon where I kicked the back door open (this was the damage property).
I would now like to address what was considered by the delegate in his decision not to grant a license - the following was listed:
·the convictions against you relating to obtain money by deception and destroy or damage property are relevant to the security activity that you wish to be licensed for;
·the New South Wales Police fact sheet provided by the Wagga local court indicates that you were involved in the commission of the offences;
·the above charges appear to relate to recent events; and
·you did not supply any further information that you believe supported your suitability to work in the security industry as requested in a telephone conversation of 23 October 2009.
My response to these reasons are as follows:
Point 1 -I agree that the convictions could be considered relevant but would like to stress that they could be considered of a minor nature when taken in context with circumstances (referred to above).
Point 2 -I agree with point 2 that the fact sheet states I was involved in the offences.
Point 3 -I think this point can be argued as the offences listed at the top of this letter were a considerable time ago when put in perspective. Since they occurred I have relocated to Canberra, stopped socialising with previous negative influences, been in a job for close to 10 months, committed myself in a football team and moved in with my long term girlfriend (who has been a very positive influence for me).
Point 4 -I will or have provided further information as follows:
·a reference from my football coach
·a reference from my partner
·a reference from my employer
·a reference from my friend,
Who all support my application.”
The Respondent filed and served a list of authorities relied upon and the police statement of fact in relation to each of the convictions set out above.
The matter was listed for hearing on 27 May 2010 at which time the Applicant appeared in person and Ms Soper, solicitor appeared, for the Respondent. The Tribunal noted the terms of the Applicant’s submissions and references. The Tribunal noted that the references did not expressly indicate knowledge of the details of the Applicant’s prior offences.
A discussion occurred concerning the circumstances of each offence, the Applicant’s work history and the evidence which may support the Applicant’s assertion that he had reformed his behaviour since the last of the offences for which he had been convicted.
Arising out of the discussions, the Tribunal formed the view that the Applicant had matured in the last several years and that he was now living in a stable and law abiding manner.
However, the Tribunal also formed the view that it was premature to grant the Applicant a class ‘D’ licence to be employed as a ‘bouncer’ given the element of lack of self control in the face of provocation inherent in some of the previous convictions. The Tribunal is aware from its own experience, and treats as common general knowledge, the fact that bouncers at licensed premises late at night are frequently the subject of provocation by intoxicated patrons.
This does not mean that it will never be appropriate to grant the Applicant a class ‘D’ licence. Should the Applicant continue in his present lifestyle then the Respondent may see fit to grant a class ‘D’ licence in the next few years.
Different considerations apply in the case of the class ‘A’ licence. Employees working under these licences would rarely face intoxicated and provocative people. The role carried out by a class ‘A’ licence holder is more sedentary involving watching, reporting and checking on people entering buildings etc.
During the hearing the Tribunal raised with the Respondent the possibility of the grant of a class ‘A’ licence but the Respondent maintained its objections.
The Tribunal indicated at the time that it was not convinced that it was not in the public interest to issue the Applicant a class ‘A’ licence.
In the course of the discussions the Tribunal raised for consideration the second limb of the ‘public interest’ test in section 21(1)(a)(iv) of the Act and whether it should:
(a)be construed against the background of the Applicant’s common law right to work in his chosen profession, subject to holding the requisite qualifications and subject to there being no bar at law to that course of action; or
(b)be taken to include consideration of the Applicant’s existing common law right to work in his chosen profession, subject to holding the requisite qualifications and subject to there being no bar at law to that course of action; i.e. whether it is in the public interest for the Tribunal to acknowledge and place some weight upon this fundamental common law right.
If either of these propositions applied then the practical effect would be a prima facie presumption in favour of issuing a license to an applicant unless the relevant disqualifying public interest considerations outweigh that prima facie presumption.
The Respondent contended that there was no such common law right and no such presumption in favour of the Applicant. The Tribunal asked the parties to file and serve submissions on the point after which it was agreed that the Tribunal would proceed to a decision in writing without further oral hearing.
The Respondent filed its very thorough and helpful submissions the full text of which are worth reciting and are set out as an appendix to these reasons.
The Tribunal has carefully considered these submissions and notes the Respondent’s view that the nature of the offences and the fact that the last such offence was only three years ago, should result in a denial of even a class ‘A’ license irrespective of any prima facie presumption. This is a matter of judgement of the Applicant’s personality and maturity upon which the Respondent and the Tribunal have formed different views.
In forming its view concerning the class ‘A’ licence the Tribunal has not ignored the fact and nature of the convictions and has taken these into account in assessing the public interest. In fact these considerations were decision in the Tribunal’s decision to refuse the class ‘D’ license.
Whether or not the Applicant can actually find work with a class ‘A’ licence is not a matter of immediate concern to the Tribunal although there is some evidence that such work is available to him.
In coming to its view in relation to the class ‘A’ license the Tribunal has taken into account:
(a) the fact of the convictions;
(b) the nature of the offences;
(c) the timing of the offences;
(d) the age of the Applicant at the time of the offences and now;
(e) the subsequent history of the Applicant;
(f) the fact that the Applicant has successfully undertaken the relevant training program for the licence;
(g) what the Applicant and his partner had to say about their current life style;
(h) the Applicant’s aspirations for his future;
(i) the references (albeit acknowledging that some of the referees made no reference to the offences); and
(j) the Applicant’s prima facie right to work in his chosen profession subject to possessing relevant qualifications and subject to any law to the contrary.
The Respondent has submitted that the taking into account of factor (j), is contrary to law. Counter factually, even if the Tribunal did not take into account factor (j) the consideration of the other factors would lead to the same outcome, namely the issue of a class ‘A’ licence. But the Tribunal does not resile from the fact that it did in fact take into account factor (j) and that factor (j) formed part of the reason for the final decision. For this reason and in deference to the thorough and useful submissions by the Respondent on the point, the Tribunal will outline its reasons for adopting factor (j).
The Respondent acknowledged by reference to various authorities the principle of statutory interpretation that requires a statute to be construed against the background of the common law and to adopt the construction that is reasonably open on the wording of the statute that does the least violence to existing fundamental common law rights, having regard to the legislative intention underlying the statutory scheme. There are many other authorities to this effect besides those cited by the Respondent. See for example (Pearce and Geddes Statutory Interpretation in Australia 6th ed pp182-190.)
The most recent such pronouncement from the High Court appears to be R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty Limited v Parramatta City Council [2009] HCA 12 where French CJ had the following to say in relation to the statutory power of a council to compulsorily acquire land for public purposes:
“5…In accordance with established principles of statutory interpretation the preferable construction is that which authorises the least interference with private property rights…
43. The terminology of "presumption" is linked to that of "legislative intention". As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. It operates in the United Kingdom as a manifestation of a "principle of legality" and has been described in Australia as an aspect of the rule of law [55].
44. In its application to property rights this long-standing interpretive principle is consistent with international developments in the recognition of human rights since World War II. Although not specifically protected by the International Covenant on Civil and Political Rights, or the International Covenant on Economic, Social and Cultural Rights, the right to property was recognised in the Universal Declaration of Human Rights and in various other international instruments [56]. Discrimination, based on race, in relation to the enjoyment of property rights is prohibited by Art 5 of the International Convention on the Elimination of all Forms of Racial Discrimination 1965[57].
As indicated by French CJ the presumption against the invasion of fundamental common law rights is now generally subsumed within the rubric of ‘the principle of legality’ along with other presumptions (Spigelman CJ Opening Address to the NSW Bar Association 2005 79(12) ALJ 769). The ‘principle of legality’ has been adopted by Gleeson CJ in Al-Kateb v Godwin (2004) 219 CLR 562 at [19] and by Kirby J in Daniels Corporation v ACCC (2002) 213 CLR 553 at 582:
The principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary the courts therefore presume that even the most general words were intended to bed subject to the basic rights of the individual...
The presumption operates strongly in relation to ‘fundamental common law rights’ but only weakly in relation to general common law doctrines (Coco v Q (1994) 179 CLR 427 at 437; Bropho v W.A. (1990) 170 CLR 1 at 17; Malika Holdings v Stretton (2001) 204 CLR 290 at 28; Gifford v Strang Patrick Stevedoring P/L (2003) 204 CLR 290).
The presumption against invading fundamental common law rights applies to all species of vested fundamental rights recognised by the common law and not just to rights related to real or personal property. See for example Pearce and Geddes at p189-90 where a list of relevant cases is set out. It includes the right at common law to participate in the market place i.e. the right of freedom to enter contracts whether for the sale or purchase of goods or services (including a person’s own labour).
The right to participate in the market and for a person to sell their labour and skills in their chosen vocation is a fundamental right. The status of this right is expressly recognised in Article 6(1) of the UN International Covenant on Economic, Social and Cultural Rights which was signed by Australia in 1972 and ratified in 1980 and in the common law of the US and India. Without the right to participate in the market in this way a citizen may be:
(a) deprived of his or her capacity to earn income for the support of the person and his/her dependents
(b) forced to accept employment substantially beneath his/her capacity with a consequential diminution in income;
(c) denied the capacity to develop a career with the attendant issues of personal satisfaction
(d) generally marginalised in society.
The fundamental nature of the right is also affirmed in the common law doctrine that prevents contracts in restraint of trade as being contrary to the public interest (see Sappideen, O’Grady and Warburton, Macken’s Law of Employment at [4.155]).
In Buckley v Tutty 1971 125 CLR 353 the High Court said:
“The law treats unreasonable restraint as unenforceable because it is contrary to the public welfare that a man should unreasonably be prevented from earning his living in whichever lawful way he chooses and that the public should unreasonable be deprived of the services of a man prepared to engage in employment...
In construing the Act it is necessary to have regard to the context of the Act as a step prior to the identification of any ambiguity or uncertain in the Act (CIC Insurance Ltd v Blacktown Football Club Ltd 1997 187 CLR 384 at 408). The context includes the nature of the Act, its legislative precursors and the mischief that the Act was aimed at.
This is particularly important in the context of regulatory statutes such as the Security Industries Act 2003. Regulatory statutes are those that purport to regulate the right or manner in which citizens may carry out hitherto lawful conduct. Regulatory statutes do not create the right to engage in the conduct in question, rather a regulatory statute operates upon the existing right to engage in lawful conduct to modify that right in some way.
If the existing right to engage in particular conduct derives solely from an earlier statute then there are principles of statutory interpretation that apply to resolve conflicts between statutes. The present presumption applies only where the existing right to engage in the conduct in question derives from the common law and requires a conservative construction of the regulatory statute so as to achieve the least violence to the existing fundamental rights that is consistent with the wording of the statute and the statutory scheme.
In the present case the Respondent denies that there is or was any pre-existing right at common law for a citizen to engage in their chosen vocation (subject to possessing requisite qualifications and any lawful bar). On this premise the Respondent then denies the operation of the presumption referred to above.
The Respondent concedes that a right to work has been recognised in the common law of India and the United States.
The Respondent notes that Article 6(1) International Covenant on Economic, Social and Cultural Rights explicitly recognises the right to work in a chosen vocation but denies that this Covenant forms any part of domestic law in Australia. Nevertheless, Australia is a signatory to this Covenant which therefore brings into play the principle of statutory interpretation whereby the preferred construction of a statute enacted subsequent to a treaty is that which is consistent with Australia’s international obligations (Pearce and Geddes at pp75-79 for authorities; Minister for Immigration and Ethnic Affairs v Teoh (1995) 182 CLR 273 at 287; Al-Kateb v Godwin (2004) 219 CLR 562).
Before reverting to authorities, it is convenient to note the obvious point that security officers of various forms, including those covered by class A and D licences under the Act, existed before the Act and before any statutory regulation of their vocation. There is no suggestion that the engagement of people in these vocations prior to the first enactment of a statutory regulation of the vocation was unlawful. If not unlawful then it was lawful. Thus the first regulatory statute was enacted to regulate an existing vocation.
The right of citizens to sell their labour as security agents is a species of the common right to contract and pre-existed any statutory regulation in the ACT.
The Respondent’s contention that there is no common law right to work in a chosen vocation recognised in Australian at common law is not correct. In addition to the restraint of trade cases referred to above, Pearce and Geddes cite two authorities in support of the principle; Commonwealth v Progress Advertising and Press Agency Co P/L 1909 10 CLR 457 and Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410).
In Progress Advertising O’Connor J noted the following:
“In ascertaining what was the real intention of the legislature two well known principles of interpretation must be applied. The first is that, as every citizen is at liberty primâ facie to carry on his business in his own way within the law, it will not be held that the legislature has intended by any Statute to impair that liberty unless it has expressed that intention by plain words or by necessary implication from the language it has used. The second rule is that general words in a Statute will ordinarily be construed with no wider meaning than is necessary to carry into effect its object and purpose.”
In the Fruit Marketing case Higgins J noted:
‘Even if (contrary to my opinion) the words used in the Act were equally consistent with the existence of these powers and with their non-existence, the Legislature "must not be deemed to take away or extinguish the right" of the growers or agents to carry on their business "unless it appear, by express words, or by plain implication, that it was the intention of the Legislature to do so" (Western Counties Railway Co. v. Windsor and Annapolis Railway Co.[16]).’
Strake J put it thus:
‘It is a sound rule of construction that the rights of citizens are not to be destroyed or taken away "unless you have plain words which indicate that such was the intention of the Legislature" (cf. In re Cuno; Mansfield v. Mansfield[19]; London and North-Western Railway Co. v. Evans[20]). "Prima facie a trader in a free country in all matters not contrary to law may regulate his own mode of carrying on his trade according to his own discretion and choice" (Mogul Steamship Co. v. McGregor, Gow & Co.[21]). Clearly, the statute has interfered with this right to some extent, and the question is—to what extent? The words "take control of the marketing" point, I think, to supervision of the operations rather than to the conduct of the operations themselves.’
………………………………..
- Anforth
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: SEC 3 of 2010
APPLICANT: JOSHUA QUINTON
RESPONDENT: OFFICE OF REGULATORY SERVICES
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: Mr Quinton
RESPONDENT: Ms Soper,
TRIBUNAL MEMBER/S: A. Anforth, Senior Member
DATE/S OF HEARING: 14 July 2010 PLACE: CANBERRA
DATE/S OF DECISION: 14 July 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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