Mahabir v Commissioner of Police, NSW Police

[2006] NSWADT 358

CITATION:	Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358
DIVISION:	General Division
PARTIES:	APPLICANT Rajesh Jerry Mahabir RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	063372
HEARING DATES:	12/12/06
SUBMISSIONS CLOSED:	12/12/2006
DATE OF DECISION:	12/15/2006
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Review of refusal of application
MATTER FOR DECISION:	Whether pre-condition for mandatory refusal established
LEGISLATION CITED:	Casino Control Act 1992 Children (Criminal Proceedings) Act 1987 Commercial Agents and Private Inquiry Agents Act 2004 Crimes (Sentencing Procedure) Act 1999 Criminal Records Act 1991 Listening Devices Act 1984 Security Industry Act 1997 Security Industry Regulation 1998 Telecommunications (Interception) Act 1979 (Cth) Totalizator Act 1997 Tow Truck Industry Act 1998 Weapons Prohibitions Act 1998
CASES CITED:	Pearce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 99 Saraswati v R (1991) 172 CLR 1 Butler v Attorney-General (Vict.) (1961) 106 CLR 268 Department of Premier and Cabinet v Hulls (1999) 15 VAR 360 Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221
REPRESENTATION:	APPLICANT P de Mestre, solicitor, de Mestre & Co., solicitors RESPONDENT W Pisani, agent
ORDERS:	Determination under review set aside.

REASONS FOR DECISION

1 This applicant has applied for review under s 23 of the Commercial Agents and Private Inquiry Agents Act 2004 (the CAPIA Act) of a decision by the Commissioner to refuse his application for an operator licence. This decision deals with the question of whether the Commissioner, in the circumstances, was entitled to exercise that power. In this instance the Commissioner formed the opinion that the applicant was a ‘disqualified individual’ within the meaning of the Act, and was therefore not entitled to a licence. The applicant contends that his circumstances do not fall within the meaning given to ‘disqualified individual’ by the Act.

2 The CAPIA Act has introduced a stricter scheme for the licensing of commercial agents and private inquiry agents than that contained in the previous act of the same name passed in 1963.

3 The objects of the new Act, as set out in s 3 are:

‘(a) to protect the public in relation to commercial agent and private inquiry agent activities (that is, process serving, debt collection, repossession of goods, surveillance of persons and investigation of persons), and

(b) to provide for the licensing of persons carrying out, and persons carrying on business in relation to, commercial agent and private inquiry agent activities, and

(c) to establish standards to be observed by licensees in relation to commercial agent and private inquiry agent activities, and

(d) to ensure that licensees are accountable for their acts and omissions in relation to commercial agent and private inquiry agent activities.’

4 The Act provides for two types of licence – a ‘master’ licence and an ‘operator’ licence. The ‘master’ licence authorises a person to carry on business as a commercial agent or a private inquiry agent. An ‘operator’ licence authorises a person to undertake one or more of the following activities, and is the licence needed by someone employed or engaged by the holder of a master licence. The activities are: process serving; debt collection; repossession of goods; surveillance of persons; and investigation of persons.

5 Section 13(1) provides that an application for an operator licence ‘must be refused if the applicant is a disqualified individual’.

6 The definition of ‘disqualified individual’ (s 4) encompasses:

‘(d) an individual who has been convicted or found guilty of a major offence’.
7 A ‘major offence’ is defined as (s 4):
‘ major offence means:

(a) an offence involving violence, fraud, dishonesty or theft, being an offence punishable by imprisonment, or

(b) an offence involving the unlawful possession or use of a firearm or other weapon, or

(c) an offence involving the unlawful possession or use of a drug, or

(d) an offence under Part 2 of the Listening Devices Act 1984, or under corresponding provisions of the law of the Commonwealth or of another State or Territory, or

(e) an offence under the Telecommunications (Interception) Act 1979 of the Commonwealth, or

(f) any other offence declared by the regulations to be a major offence for the purposes of this Act.’

8 These are wider categories than applied under the 1963 Act where a person was only disqualified if he or she had been convicted of an indictable offence (ss 9, 10(6)(a)(vii)).

9 On 5 May 2006, four days after the new Act came into operation, the applicant made an application for an operator licence. The Commissioner refused the application on the basis that the applicant had been found guilty on 23 March 2004 of the offence of common assault for which he received a 12 month good behaviour bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. This is clearly a category (a) ‘major offence’.

10 The applicant’s submission is that his satisfactory expiation of the bond has given rise to a ‘spent conviction’ under the Criminal Records Act 1991 (Criminal Records Act) and can not be taken into account by the Commissioner.

11 The objects clause of the Criminal Records Act (s 3) provides:

‘(1) The primary object of this Act is to implement a scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person’s criminal history.

(2) The Act also provides for the effect of the quashing of a conviction and the pardoning of an offence.’

12 A finding of guilt is treated as a conviction for the purposes of the Act: s 5. There is no dispute that the present conviction is one ‘capable of becoming spent’ (see further s 7). Section 8 provides:
‘(1) A conviction is spent on completion of the relevant crime-free period, except as provided by this section.’
13 It is agreed that none of the exceptions apply to this case, and that the applicant has satisfied the ‘relevant crime-free period’ which in this instance is:
‘(4) A finding that an offence has been proved, or that a person is guilty of an offence, and:

(a) the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period, on participating in an intervention program or on other conditions determined by the court, or

(b) the releasing of the offender on probation on such conditions as the court may determine, for such period of time as it thinks fit,

is spent on satisfactory completion of the period or satisfactory compliance with the program (including any intervention plan arising out of the program) or conditions, as the case may require.’

14 There is no dispute that the applicant has satisfactorily completed his good behaviour bond.

15 The applicant relies on s 12 of the Criminal Records Act, and submits that the Commissioner can not take into account his recent history. Section 12 provides:

‘ 12 What are the consequences of a conviction becoming spent?

If a conviction of a person is spent:

(a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and

(b) a question concerning the person’s criminal history is taken to refer only to any convictions of the person which are not spent, and

(c) in the application to the person of a provision of an Act or statutory instrument:

(i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and

(ii) a reference in the provision to the person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.’

16 There are two previous decisions of the Tribunal dealing with the question raised by this case, both in the context of the Security Industry Act 1997 (Security Industry Act). They are in conflict. In Pearce v Commissioner of Police, NSW Police Service [2000] NSWADT 99, Robinson JM held that the Commissioner, in fulfilling his obligation under s 16(1)(b) to refuse applications for security industry licences from persons who had been convicted of the kind of offence for which the person in this case had been convicted, could have regard to convictions that were spent within the meaning of the Criminal Records Act. He commenced by referring to the statutory obligation placed on the Commissioner by the Security Industry Act and the content of s 12 of the Criminal Records Act, and continued:
‘33 In my opinion, the two provisions are clearly in conflict. They relate to the same subject matter, namely, the application of past convictions (or a finding of guilt but with no conviction recorded) over a specified period of time to the application by an administrative decision-maker of the terms of an Act (the Security Industry Act 1997) to a person who has applied for something under it.

34 A decision that a later Act repeals by implication an earlier Act cannot be taken lightly. It must be made only on very strong grounds. It must be presumed where possible that Parliament did not intend to contradict itself. In Saraswati v R (1991) 172 CLR 1 at 17, Gaudron J stated:

“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v Attorney-General (Vict.) (1961) 106 CLR 268, per Fullagar J. at p 276, and per Windeyer J. at p 290.”
35 Notwithstanding that there is some conflict between the two provisions, they each have different work to do. The earlier Act here is more general (subject to specified exceptions) and is of ambulatory operation in that section 12 of the Criminal Records Act 1991 is plainly intended by Parliament to operate in future in respect of future legislation and regulations of a kind then unforeseen by Parliament – see: Department of Premier and Cabinet v Hulls (1999) 15 VAR 360 at [40], per Phillips JA, with Tadgell and Batt JJA agreeing. The later Act here is more specific and relates only to security industry licencing.

36 Bearing in mind the principles stated by Gaudron J in Saraswati, rather than this Tribunal making any finding that there is repugnancy here, it is more appropriate for me to find that Parliament intended both provisions should operate and that, to the extent that they overlap, one should be read as subject to the other. I do not regard both provisions as being so inconsistent or repugnant that they cannot possibly stand together.

37 Accordingly, I find that section 12 of the Criminal Records Act 1991 should be read as being subject to section 16(1)(b) of the Security Industry Act 1997.’

17 In Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221 Hennessy DP dealt with the same question; and said at [7]-[8]:
‘7 A reference to a conviction in an Act or Regulation, such as the Security Industry Act 1997 and the Security Industry Regulation 1998, is a reference only to convictions which are not “spent”. (See Criminal Records Act 1991 s 12.) Mr Stranges’ conviction for the cab charge docket offence comes within the definition of a “spent conviction” because the Magistrate gave him a caution and released him on probation for 5 months. ( Criminal Records Act 1991 s 5 and Children (Criminal Proceedings) Act 1987 s 33(1)(a) and (e).) A finding that a person is guilty of an offence, and the releasing of the offender on probation, is “spent” on satisfactory completion of the probation period. ( Criminal Records Act 1991 s 8(4).) Mr Stranges’ conviction was “spent” when he completed the five-month probation period.

8 The Commissioner cannot take into account any spent conviction to refuse a person’s application for a security industry licence, either on mandatory grounds or on fitness grounds. It follows from this conclusion that I disagree with the Tribunal’s previous decision in Pearce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 99. In my view there is no conflict between the provisions of the Security Industry Act 1997 and s 12 of the Criminal Records Act 1991.’

18 I favour the view expressed by Hennessy DP. Section 12 of the Criminal Records Act is intended, as I read it, to have general application. The relevant words for this case are these:
‘in the application to the person of a provision of an Act or statutory instrument: a reference in the provision to a conviction is taken to be a reference to any convictions of the person which are not spent’.
19 This must mean that wherever the word ‘conviction’ is used in State legislation it is to be read down in this way, unless there is an express provision to the contrary or a necessary implication can be found in the other statute read as a whole. I do not see this as the kind of case to which the ‘repugnancy’ learning is directed. In my view there is no conflict of the degree suggested by Robinson JM. The general provision found in s 12 applies across the body of State legislation. It is a dampener on the meaning to be given to the term ‘conviction’ across all State legislation.

20 The applicant referred, in his submissions, to numerous examples in State law of express provisions to the contrary. Many of them are found in statutes relating to applications for licences. Those examples include: Casino Control Act 1992, s 158; Totalizator Act 1997, s 109; Weapons Prohibition Act 1998, s 9; Tow Truck Industry Act 1998, s 96.

21 In my view the applicant’s submission is correct. Accordingly the Commissioner was mistaken in regarding this applicant’s application as one which engaged his obligation to refuse. Some care will need to be shown in future by the CAPIA Registry when dealing with applications from persons who fall into the s 8(4) category.

22 It follows that the determination under review should be set aside.