Mearns v Commissioner for Fair Trading (Occupational Regulation)

[2016] ACAT 89

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEARNS v COMMISSIONER FOR FAIR TRADING (Occupational Regulation) [2016] ACAT 89

OR 46/2015

Catchwords:                OCCUPATIONAL REGULATION – administrative review - automatic cancellation of security licence due to conviction – conviction appealed – whether Tribunal has power to give effect to proposed consent orders

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 6, 9, 56, 65, 66, 69

ACT Magistrates Court Act 1930 s 216

Security Industry Act 2003 ss 21, 29, 30, 31

Cases cited:Byrne v Hulbert [2009] ACTSC 124

Director of Public Prosecutions v Burns [2010] NSWCA 265
In the matter of an application for bail by Osman [2010] ACTSC 81
Mearns v Neill [2016] ACTSC 36

Tribunal:                   Senior Member H Robinson

Date of Orders:  9 August 2016

Date of Reasons for Decision:         9 August 2016

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          OR 46/2015

BETWEEN:

DAVID MEARNS

Applicant

AND:

COMMISSIONER FOR FAIR TRADING

Respondent

TRIBUNAL:             Senior Member H Robinson

DATE:  9 August 2016

ORDER

The Tribunal Orders that:

1.The decision of 24 November 2015 is set aside.

2.The matter is remitted for reconsideration by the Commissioner.

………………………………..

Senior Member H Robinson

REASONS FOR DECISION

1.This is an application for review of a decision by the respondent to cancel the applicant’s security employee licence under section 29A of the Security Industry Act 2003 (SI Act).

Background

2.On 1 September 2014 the applicant was granted a security licence classes 1A and 1C (static guard and crowd controller) (security licence) under the SI Act.

3.On 7 August 2015 the applicant was convicted of two offences in the ACT Magistrates Court, one of which was common assault, for which he was fined $750.

4.Section 29A of the SI Act provides that the Commissioner for Fair Trading (the Commissioner) must cancel a licencee’s licence if the licensee is convicted or found guilty of a relevant offence mentioned in subsection 21(3) of the SI Act. Section 21(3)(a) of the SI Act states that ‘assault’ is a relevant offence where ‘stated circumstances’ apply. ‘Stated circumstances’ are in turn defined in subsection 21(5) of the SI Act to mean where a penalty is imposed on the applicant for the offence and the penalty is, inter alia, a fine of $500 or more.

5.There is no dispute that the applicant was convicted of a ‘relevant offence’ on 7 August 2015. Accordingly, the respondent was required, by section 29A of the SI Act, to cancel the applicant’s licence after this date (conviction date).

6.The complicating factor is that the respondent did not cancel the applicant’s licence until some months after the conviction date.  The respondent only became aware that the applicant had been convicted of a relevant offence on 17 November 2015, when so advised by the Australian Federal Police. It was not until 24 November 2015 that a delegate of the respondent cancelled the applicant’s licence (cancellation decision).

7.The cancellation decision of 24 November 2015 occurred over 15 weeks after the convictions were recorded and over 11 weeks after the notice of appeal was lodged.

8.In the meantime, on 3 September 2015, the applicant filed a notice of appeal in the ACT Supreme Court, appealing both the convictions and the sentences.

9.On 16 March 2016, the ACT Supreme Court upheld the applicant’s appeal.[1] Justice Penfold set aside the convictions and sentence and substituted a non-conviction order and 18 month good behaviour bond. The consequence of the appeal is that applicant is no longer convicted of a ‘relevant offence’ for the purposes of section 21(3)(a) of the SI Act.

[1] See Mearns v Neill [2016] ACTSC 36

10.On 18 March 2016, the respondent advised the applicant that, in light of the appeal being upheld, the applicant’s licence was reinstated. On 21 April 2016, to avoid any doubt, the Tribunal made an interim order that the applicant was eligible to hold a security licence from 16 March 2016.

Issues

11.The parties are in agreement that the applicant is currently eligible for a security licence and, accordingly, that if the cancellation decision is still operative, it should be set aside. 

12.The only issue between the parties is whether the cancellation decision should be set aside from:

(a)the date the convictions were overturned, being 16 March 2016; or

(b)the date the cancellation decision was in fact made, being 24 November 2015.

13.In broad terms, the parties’ submissions focused on whether, upon becoming aware of the applicant’s conviction in November 2015, the Commissioner was required to cancel his licence, or whether the Commissioner had some discretion to make an alternative decision.

14.In summary, the applicant’s position was that section 216 of the Magistrates Court Act 1930 (Magistrates Court Act) operated to, in effect, ‘stay’ the conviction from the date the appeal was lodged, such that the respondent was no longer required to cancel the applicant’s licence when it made the decision on 24 November 2015. On this basis, the applicant contends that the ‘correct or preferable decision’ was that the applicant’s licence be suspended pending the outcome of the appeal (or that it should have been suspended, pending an application for an occupational discipline order). 

15.The respondent, on the other hand, says that the effect of section 216 of the Magistrates Court Act was not to stay the fact of the conviction, but only to stay the enforcement or execution of the penalty, and accordingly, the only action that was open to the Commissioner as at 24 November 2015 was to cancel the applicant’s licence in accordance with section 29A of the SI Act. The respondent says that the decision under review should be aside only from the date that the convictions were set aside and the appeal upheld.

A preliminary issue

16.While the submissions of the parties on section 216 of the Magistrates Court Act are very useful, there is a more fundamental issue that needs to be addressed first. That issue is: What is the effect of the setting aside of the conviction on these proceedings?

17.The consequence of the setting aside of a conviction on appeal is well established.  In Director of Public Prosecutions v Burns[2] Beazley JA (as her Honour then was) with whom Campbell JA agreed, observed that:

[42] A question arose during the course of the appeal as to how an appeal under s 11  should be fully and finally resolved where the District Court determines that the conviction be set aside. Under s 20, an order may be made setting aside the conviction or dismissing the appeal. The setting aside of a conviction is not equivalent to dismissing a charge or to finding a person not guilty, although on a successful appeal under s 11 that would be the intention behind setting aside the conviction. This was explained in Commissioner for Railways (NSW) v Cavanaugh (1935) 53 CLR 220 at 225 in the majority judgment of Rich, Dixon, Evatt and McTieman JJ as follows:

‘The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. "The judgment reversed is the same as no judgment" (per Coleridge J, R v Drury[(1849) 175 ER 517 at 520]).

If the conviction were alleged in a pleading, it would be a good answer that there was no such record (Dr Drury's Case [(1610) 77 ER 688 at 691]). It is "utterly defeated and annulled" (Lord Sanchar's Case [(1613) 77 ER 902 at 906]) ... "upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void ... and [he] shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him" (Archbold's Criminal Plead ing, Evidence and Practice (21st ed, 1893) at 226, 227).’

[43] Starke J, in a separate judgment, stated, at 227, that the setting aside of the conviction on the appeal had the effect of abrogating and obliterating the conviction. This is consistent with the first of the passages in the plurality judgment set out above, but does not go so far as the statement: the person 'shall stand in every respect as if he had never been charged'. However, as I would understand this statement, it is a reflection of the principle of double jeopardy which would enable the accused person to raise a plea in bar.[3]

[2] [2010] NSWCA 265

[3] at [42]-[43]

18.In other words, the effect of the setting aside of the applicant’s conviction on appeal is that it is ‘as if he had never been convicted’. The obvious consequence for these proceedings is that the conviction must be taken as having never happened, and therefore the applicant must be taken to have not, in fact, been convicted of a relevant offence.  Consequently, to the extent that the decision under review was made on the ground that the applicant was convicted of a relevant offence, it must be set aside, and it must be set aside from the date it was made,

19.This leads to the next question: what orders should the Tribunal substitute for the cancellation decision?

Proposed consent orders

20.When this matter came before the Tribunal on 21 April 2016, it was apparent that the parties had reached an agreement on appropriate substitute orders. Draft consent orders were proposed. The proposed orders are annexed to this decision.

21.The Tribunal’s power to give effect to consent orders is found in section 55(1) of the ACAT Act. This provides, relevantly, as follows:

55     Powers of tribunal if parties reach agreement

(1)     This section applies if, at any stage in dealing with an application—

(a)   the parties reach agreement—

(i)about the terms of a tribunal decision in relation to the application; or

(ii)about how to deal with a part of the application or a matter arising out of the application; and

(b)   the terms (the agreed terms) of the agreement are reduced to writing, signed by the parties and lodged with the tribunal; and

(c)    the tribunal is satisfied that an order or decision in, or consistent with, the agreed terms would be—

(i)within the powers of the tribunal; and

(ii)appropriate for the tribunal to make.

22.At the hearing the Tribunal raised concerns as to whether the Tribunal in fact had the jurisdiction to give effect to the proposed order. Following some discussion of the proposal, the hearing was adjourned so that the parties could provide revised draft orders for the Tribunal’s consideration, and make written submissions on the power of the Tribunal to make them.

23.Having now had regard to the proposed consent orders, I am not satisfied that the Tribunal has the power to make them.

24.This matter is before the Tribunal by virtue of an application of a decision made under the SI Act – this brings it within the ‘administrative review’ jurisdiction of the Tribunal.[4]

[4] Section 68(1) of the ACAT Act

25.When exercising its administrative review jurisdiction, the Tribunal “may exercise any function given by an Act to the entity for making the decision”.[5] This power is colloquially described as ‘standing in the shoes of the decision maker’.

[5] ACAT Act section 68(2); it is noted that the reference number for this decision is preceded by the letters “OR” for occupational regulation. This is an administrative tool used by the Tribunal to record and categorise claims – it does not reflect that this is an application for occupational discipline, as that term is used in the ACAT Act.

26.In the context of this case, the power permits the Tribunal to (metaphorically) stand in the shoes of the Commissioner for Fair Trading, and the resulting decision is taken to be a decision of the Commissioner for Fair Trading for most purposes.[6] 

[6] Section 69(2)(a);

27.Consequently, in order to make the consent orders sought by the parties, the Tribunal must be satisfied that the decision it is substituting through those orders is a decision that it would be open to the Commissioner to make. 

28.Proposed Order 1(a) may meet this requirement. Section 29B of the SI Act provides a power for the Commissioner to suspend a person’s security licence for a period of 30 days, in circumstances where the Commissioner applies, or intends to apply, to ACAT for an occupational discipline order. The purpose of this power is to allow the Commissioner to temporarily suspend a person’s licence, pending an application to ACAT. If such an application is made, it is then a matter for ACAT to determine whether a the person’s licence should suspended pursuant to an occupational discipline order under subsection 66(2)(e) of the ACAT Act.

29.The difficulty is, the parties are asking me to make this substitute decision in circumstances where I know, as a matter of fact, that the Commissioner, as at 24 November 2015, neither applied nor intended to apply for an occupational discipline order. As such, there is a degree of ‘rewriting history’ involved in the exercise of this power in this fashion.

30.The problems become even more significant when I turn to proposed Order 1(b). By this order, the parties are requesting the Tribunal make a substitute decision that the applicant’s licence is suspended for the period 24 December 2015 to 16 March 2016. 

31.The Commissioner did not, and does not, have the power to suspend the applicant’s licence for this period. Such a suspension may only be made by the Tribunal, exercising its occupational discipline jurisdiction. 

32.Can the Tribunal make an order for occupational discipline in the context of these proceedings?

33.Section 66 of the ACAT Act deals with orders for occupational discipline. Subsection 66(1) of the ACAT Act provides that:

(1)     This section applies if the tribunal may make an order for occupational discipline in relation to the subject person

NoteSection 65 sets out when the tribunal may make an order.

34.Section 65 of the ACAT Act provides that:

(1)This section applies if the tribunal is considering an application for occupational discipline against a person (the subject person).

(2)The tribunal may make an order for occupational discipline in relation to the subject person if satisfied that a ground for occupational discipline exists against the person.

35.Hence, an order for occupational discipline may only be made where there is an “application for occupational discipline” before the Tribunal. There is currently no such application before the Tribunal.

36.As I understand the position of the parties, they are requesting that the Tribunal treat the application for consent orders as an application for occupational discipline. They submit that this is a permissible approach, having regard to “sections 6(c) and 6(d), and the various powers of the Tribunal under sections 55, 56 and 68 of the [ACAT] Act.”

37.Sections 6(c) and 6(d) of the ACAT Act provide that:

6Objects of Act

The objects of this Act are—

(c)to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and

(d)to ensure that decisions of the tribunal are fair; and

38.I accept without reservation the parties’ contention that the making of the proposed consent orders would be both fair and consistent with both the efficient and just resolution of proceedings. However, while the objects clause informs the interpretation of other provisions of the ACAT Act, it is not a source of power to make an order where there is no other power to do so.

39.Turning to section 56 of the ACAT Act, this section provides that:

56Other actions by tribunal

The tribunal may, by order—

(a)hear an application jointly with another application that arises from the same or similar facts; or

(b)make other orders with the consent of the parties to the application or as the tribunal considers necessary or convenient; or

(c)amend or set aside a tribunal order if—

(i)the order was made after hearing an application in the absence of a party; or

(ii)the order is in error in relation to an amount or the name or address of a party, and the tribunal proposes to amend or set aside the order only to correct the error; or

(iii)extraordinary circumstances make it appropriate to amend or set aside the order; or

40.There is much merit in the argument that the Tribunal can, and should, where possible take a flexible approach to its proceedings. Section 56 gives the Tribunal a broad range of powers to take actions that are appropriate to achieving this goal. But does it go so far as to enable the Tribunal to deem an application for administrative review to be an “application for an occupational discipline order” pursuant to section 65(1), such that its jurisdiction under section 66 is enlivened?

41.The starting point is to consider the meaning of the term ‘application’.

42.The Dictionary to the ACAT Act defines the term ‘application’ as follows:

application—

(a)for this Act generally—means an application under section 9; and

(b)for parts 5 to 9 includes—

(i)a matter referred or appealed to the tribunal under any authorising law; and

(ii)a matter heard or dealt with by the tribunal on its own initiative.

43.An order for occupational discipline falls within Part 6 of the ACAT Act.

44.Section 9 then provides:

9Applications under authorising laws

A person may apply to the tribunal if an authorising law provides that the application may be made.

45.Consequently, an ‘application’ for an occupational discipline order includes an application by a person under an ‘authorising law’, and includes a matter heard or reviewed by the Tribunal, or a matter that the Tribunal reviews on its own initiative.

46.Section 31 of the SI Act provides that:

31Commissioner may apply to ACAT for occupational discipline

If the commissioner for fair trading believes on reasonable grounds that a ground for occupational discipline exists in relation to a licensee, the commissioner may apply to the ACAT for an occupational discipline order in relation to the licensee.

47.The current proceedings are not an application by the Commissioner – they are an application by Mr Mearns, and I do not see how it is possible to deem them as otherwise. 

48.Perhaps, if one takes a flexible approach, the application for consent orders, which is made jointly by the applicant and the Commissioner, may be capable of being considered an ‘application for a discipline order’. This would, as a first step, require the Commissioner to pay an application fee for an occupational discipline order, which has not been paid. The second step would be considering whether there are ‘reasonable grounds’ to bring such an application (this being required under the SI Act).

49.The ‘reasonable grounds’ for the purposes of section 31 of the SI Act are set out in section 30 of that Act. They include:

30Grounds for occupational discipline

(1)Each of the following is a ground for occupational discipline in relation to a licensee:

(a)the licensee gave information in relation to the application for the licence that was false or misleading in a material particular;

(b)the licensee is not eligible to apply for, or be issued with, a licence of the class the licensee holds;

(c)the licensee has contravened, or is contravening, this Act, whether or not the licensee has been convicted of an offence for the contravention;

(d)the licensee has contravened, or is contravening, a condition of the licence;

(e)the licensee has committed a relevant offence, whether or not the licensee has been convicted of the offence;

(f)it is not otherwise in the public interest for the licensee to be licensed;

(g)another ground prescribed by regulation.

50.The submission made by the Commissioner’s representatives at hearing was that it is ‘in the public interest’ that the licence of a person who has been convicted of a relevant offence be suspended, notwithstanding that the conviction is the subject of an appeal. The applicant did not oppose that contention. That is the sole basis put forward by the Commissioner for the making of the consent orders.

51.It may be the case that it is in the public interest to suspend the licence of a person who has been convicted, pending the outcome of any appeal. However, the difficulty with doing so through these consent orders is that we now know, as a matter of fact, that the appeal has been finalised.  The Applicant does not have a conviction for a relevant offence. It is not appropriate that the Tribunal ‘step back in time’ and impose an occupational discipline order on the basis of circumstances that have since changed.

52.The appeal did not result in a complete acquittal. The facts of an offence were admitted. It may be that other grounds for the making of an occupational discipline order exist on these facts. However, those grounds have not been properly advanced by the parties and I do not think it is appropriate that I make an order other than in accordance with the process for consent orders for occupational discipline set out in Nursing and Midwifery Board of Australia v Izzard.[7] This process, in essence, requires that the Tribunal be satisfied that occupational discipline orders are appropriate, even where they are sought by consent.  I cannot be so satisfied in this case, on the evidence in front of me, and accordingly, even if I were able to make an occupational discipline order in these proceedings, I would decline to do so.

[7] [2016] ACAT 68

53.Rather, there is a more straightforward approach available to the parties. The facts that formed the basis of the original decision have now changed. This matter needs to go back the Commissioner for consideration on the current facts. It will then be a matter for the Commissioner to consider what, if any, action should be taken in relation to the applicant’s licence.

54.Accordingly, the Tribunal is of the view that the appropriate outcome is to:

(a)set aside the decision of 24 November 2016; and

(b)remit the matter to the Commissioner for reconsideration.

The cancellation dilemma

55.That leaves only the question of the operation of section 216 of the Magistrates Court Act.

56.As a consequence of the above reasons and decision, I do not need to decide this issue. Nonetheless, I recognise the dilemma the operation of section 29A of the SI Act creates for the Commissioner. The mandatory language of section 29A requires the Commissioner cancel the licence of any licence-holder who is convicted of a relevant offence – but that leaves open the question of what should happen if the licence holder appeals that conviction. Could the Commissioner decline to cancel the licence in such circumstances, or would that itself be a breach of the Commissioner’s obligations under the SI Act?

57.Clearly, the effect of section 216 of the Magistrates Court Act is to ‘stay’ the ‘enforcement or execution’ of a ‘decision, sentence, conviction order, sentence or penalty’ until the appeal is decided. But what consequence does the section have in circumstances, such as this, where it is the fact of the conviction, or the finding of guilt, that is the trigger for a subsequent administrative action?

58.On a ‘plain language’ reading of section 216 of the Magistrates Court Act, the respondent’s submissions appear current. It is execution of the sentence or conviction that is stayed, not the fact of the conviction. This makes logical sense - it is the fact of the conviction that is being appealed, so it would make little sense for that fact to be stayed. A person who has been convicted remains convicted until the sentence is set aside, but, pursuant to section 216, they are not liable for punishment or enforcement.

59.Unfortunately, in cases such as this, where there is a mandatory action or penalty attached to a conviction, the plain language reading of section 216 can result in something of an injustice to the convicted appellant, and perhaps an administrative inconvenience for the entity taking the action.

60.The problem, and the lack of a clear solution, was identified by Justice Penfold in Byrne v Hulbert [2009] ACTSC 124 (Byrne). In that case, Justice Penfold considered the operation of section 216 in the context of the recording demerit points under section 13A the Road Transport (Driver Licensing Act) 1999. Her Honour observed as follows:

“43. As mentioned above, one of the circumstances in which the RTA is to record demerit points is when a person is convicted or found guilty of a demerit points offence. The incurring of the points depends on the recording of those points on the register, which is done pursuant to an obligation imposed on the RTA by s 13A.

44. A person who is convicted or found guilty of a demerit points offence has the usual rights of appeal from the court’s decision. However, the effect of appealing a conviction or finding of guilt is not absolutely clear.

Effect of instituting an appeal before points recorded

45. Section 216(1) of the Magistrates Court Act 1930 provides that where a relevant appeal is instituted to the Supreme Court from any of the Magistrates Court decisions or orders listed in s 208:

... the enforcement or execution of the decision, conviction, order, sentence or penalty appealed from is stayed until the appeal is concluded or is abandoned or discontinued ...

46. As already noted, a conviction for a demerit points offence imposes a separate obligation on the RTA to record demerit points for that offence in the demerit points register; only when that record is made does the person incur those points (although the incurring is then automatically backdated to the date of the offence).

47. It is arguable that, under s 216(1), an appeal would stay the operation of the conviction, among other things to the extent that it imposes an obligation to record the demerit points. On the other hand, it is not clear that the recording of the points by the RTA is properly treated as an element of the enforcement or execution of the conviction or order, because it is in fact the performance of a separate statutory duty imposed by operation of law as a result of the conviction or order. Nor is either the obligation to record the points, or the recording of the points, clearly a penalty imposed on the offender, whether by operation of law or by the convicting court. The recording of the points occurs when a separate authority performs its own separate statutory obligations. Furthermore, recording demerit points may never have any direct effect on a person who manages not to incur further demerit points within the relevant period. For these reasons, the stay effected by an appeal may not affect the recording of demerit points at all, and it may be that the points can be, or even must be, lawfully recorded by the RTA even after an appeal is instituted.

61.While her Honour’s observations are clearly relevant to this case, the facts in Byrne were such that she did not need to make any decision on this issue.

62.Justice Refshauge gave further consideration to the effect of section 216 of the Magistrates Court Act provision in In the matter of an application for bail by Osman [2010] ACTSC 81. This matter concerned the operation of the Bail Act, so again the context was different, but his Honour’s reflections provide a useful guide to the intended operation of the section:

21. The question thus is as to whether the stay created by s 216 of the Magistrates Court Act affected the automatic cancellation of the nonparole period set by Chief Magistrate Cahill by virtue of the imposition of the sentence (albeit stayed) of Magistrate Doogan. That cancellation was effected legislatively by virtue of s 66 of the Sentencing Act. As the section says, it is the imposition of the sentence that automatically cancels the nonparole period earlier set.

22. In Hadba v The Queen, Higgins CJ and Crispin J held that where a person commences an appeal and  s 216 of the Magistrates Court Act applies, then s 9 of the Bail Act 1992 (ACT) (the Bail Act) (as it was at February 2004) applied so that the appellant had to show “special or exceptional circumstances” before being eligible to be granted bail, apparently because he had been “sentenced to a period of imprisonment” (s 9(1)(a)) even though, of course, the enforcement of the sentence had been stayed.

23. Gyles J, in that case, agreed with the orders proposed by the majority, but expressed reservations about whether an appellant had to show special or exceptional circumstances. He commented (at 482 [44]):

The evident intention of s 216 was to grant an automatic stay of execution whenever an appeal has been instituted, regardless of the merits or otherwise of the appeal or any other circumstance. In that respect it is as if the conviction has not occurred pending disposition of the appeal.

24. This approach would clearly result in the stay of the automatic cancellation of the nonparole period for, to paraphrase his Honour, “it is as if the sentence had not been imposed pending disposition of the appeal”.

25. That approach may, however, appear inconsistent with the approach of the majority in that case and, of course, I am bound by the decision of the majority. There was, however, little or no argument in that case about the issues there decided or the reason for the approach taken by the majority.

26. It seems to me that the intention of s 216 of the Magistrates Court Act is properly identified by Gyles J, though I would not use the words his Honour used. Any effect of the imposition of the sentence should be put on hold until the appeal is ended in one of the ways mentioned in the section. Thus, other consequences of the imposition of the sentence (or, if the appeal is against conviction, of the conviction) would be stayed by virtue of the filing of the Notice of Appeal. For other such consequences, that would seem to me to be also stayed, see Travini v Starczewski [2009] ACTSC 123 (at [20]-[21]). (emphasis added)

27. In my view, this is not inconsistent with what the majority held in Hadba v The Queen for it does not seem to me that the relevant bail provisions are, in the same way, a consequence or part of the enforcement of the sentence (emphasis added).

63.Osman arguably provides some basis for the Commissioner to refrain from cancelling a persons’ licence under section 29A, where that person is convicted of a relevant offence, but has appealed that conviction. The situation, however, is far from clear. Legislative intervention may be warranted to clarify what was intended in these circumstances so that the Commissioner will not find himself in the difficult circumstances presented by these facts again.

Order

64.For the above reasons, I:

(a)set aside the decision of 24 November 2015; and

(b)remit the matter that is the subject of the decision for reconsideration by the Commissioner.

………………………………..

Senior Member H Robinson

ANNEXURE A

Consent Orders

Introduction

The parties acknowledge the Objects of the ACT Civil and Administrative Tribunal Act 2008 (“the Act”) specifically sections 6(c) and 6(d), and the various powers of the Tribunal under sections 55, 66 and 68 of the Act.

The parties have reached agreement about the terms of a tribunal decision in relation to the application [subsection 55(1) of the Act].

The orders sought below invite the tribunal to exercise powers in two stages, as follows:

1.Order 1.a invites the tribunal, in accordance with subsection 68(2) of the Act, to exercise a function of the respondent under the Security Industry Act 2003 (“Security Act”).

2.Order 1.b invites the tribunal to exercise its power under subsection 66(2)(e) of the Act, as if the tribunal were considering an application for occupational discipline against the application made under section 31 of the Security Act.

Orders sought

The parties seek the following orders of the Tribunal:

1.Pursuant to subsection 68(3)(c) of the Act, the decision of 24 November 2015 to cancel the Applicant’s security employee licence be set aside and substituted with the following decisions:

a.Pursuant to section 29B of the Security Industry Act 2003 (“Security Act”), the Applicant’s security employee licence for subclasses 1A and 1C is suspended from 24 November 2015 to 24 December 2015; and

b.Pursuant to subsection 66(2)(e) of the Act, the Applicant’s security employee licence for subclasses 1A and 1C is suspended from 24 December 2015 to 16 March 2016.

2.The Interim Order of the Tribunal dated 21 April 2016 that the Applicant is eligible to hold a Security Licence for subclasses 1A and 1C from 16 March 2016 be made a Final Order.

3.Such further orders as the Tribunal considers appropriate.

HEARING DETAILS

FILE NUMBER:	OR 46/2015
PARTIES, APPLICANT:	David Mearns
PARTIES, RESPONDENT:	Commissioner for Fair Trading
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Mr Sexton
SOLICITORS FOR APPLICANT	Ms Cory, Legal Aid ACT
SOLICITORS FOR RESPONDENT	Ms Helen Sexton, ACT Government Solicitor
TRIBUNAL MEMBERS:	Senior Member H Robinson
DATES OF HEARING:	13 & 21 April 2016