Mowle and Commissioner of Police (NSW) - [2017] AATA 2294

Mowle and Commissioner of Police (NSW) [2017] AATA 2294 (17 November 2017)
Division:GENERAL DIVISION
File Number(s): 2017/4046
Re:Jason Mowle
APPLICANT

AndCommissioner of Police (NSW)
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:17 November 2017
Place:Sydney

The reviewable decision made 29 June 2017, being the decision of the Commissioner of Police for New South Wales to refuse Mr Mowle’s application for grant of a Class 1AC New South Wales security licence under the Mutual Recognition Act 1992 (Cth), is set aside.
The matter is remitted to the Commissioner of Police for reconsideration in accordance with these reasons for decision.
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J W Constance
Deputy President
CATCHWORDS
PROFESSIONS AND TRADES – mutual recognition – security licence – current Northern Territory licence – applied for licence in New South Wales – application refused – grounds of refusal – licence had previously been revoked – materially false or misleading statements in application – whether a licence had been cancelled or revoked – whether cancelled or revoked as a result of disciplinary action – whether can rely on Northern Territory licence – decision set aside and remitted for reconsideration
LEGISLATION
Mutual Recognition Act 1992 (Cth) ss 19(1), 19(2), 19(5), 20, 21(3)(a), 23(1)(a), 33
Security Industry Act 1997 (NSW) ss 7(2), 17(1), 18(3)
Private Security Act (NT) ss 26, 27
CASES
Dib and Commissioner of Police for NSW [2010] AATA 852
SECONDARY MATERIALS
Oxford English Dictionary
REASONS FOR DECISION
Deputy President J W Constance
17 November 2017
INTRODUCTION

Mr Mowle has applied to the Tribunal for a review of a decision by the Commissioner to refuse his application for a New South Wales (NSW) security licence (Class 1AC) under the Mutual Recognition Act 1992 (Cth). The application was refused on the grounds that a previous licence held by him had been revoked in New South Wales and that he had made statements in his application that were “materially false or misleading”.[1]
[1] Exhibit R1 p.12.
BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are made on the basis of the evidence of Mr Mowle. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection.
Since 2010 Mr Mowle has held four licenses under the Security Industry Act 1997 (NSW). Each of the licences was for a period of one year and each of the first three were renewed on an annual basis.
On 15 February 2014 Mr Mowle lodged a renewal application for his New South Wales licence.[2] The licence was renewed for a period of one year to expire on 3 March 2015.
[2] Exhibit R1 p. 35.
On 15 February 2015, Mr Mowle sent an email to the Security Licensing & Enforcement Directorate of the NSW Police providing details of a change of his address to that of his parents, who lived in Armidale, New South Wales.[3] Mr Mowle did this as he was travelling to the Northern Territory to live.
[3] Exhibit R1 p.36.
On 28 February 2015, Mr Mowle made an online application to renew his NSW licence.[4]
[4] Exhibit R1 p.38.
The Commissioner sent a letter to Mr Mowle on 9 March 2015. The letter was addressed to him at his parents’ address in Armidale. The relevant parts of the letter read:
PHOTOGRAPH ADVICE
The Commissioner of Police has approved your application for the issue of a photo-licence as set out below.
The photo-licence card will be issued in the name shown in the Licence Details section below. It must be supported by your proof of identity document (ie the names on both must be identical).
…
To obtain your photo-licence, you need to personally attend any Roads and Maritime Services Registry or agency or a Service NSW centre prior to the final date of acceptance as shown below. After that date a photo-licence will not be issued to you.
…
This photograph advice letter is not a licence and does not give you any authority under the legislation.[5] (Original emphasis.)
The final date of acceptance by a Registry was shown as 9 May 2015.
[5] Exhibit R1 p.39.
Having moved to the Northern Territory, Mr Mowle applied for, and was granted, a Crowd Controller Licence Security Officer Licence under the Northern Territory Private Security Act. The licence was issued on 9 July 2015 with an expiry date of 21 September 2017.[6] At the time Mr Mowle believed that he held a New South Wales licence equivalent to that for which he was applying in the Northern Territory.
[6] Exhibit R1 p.10.
In a letter dated 15 July 2015,[7] addressed to Mr Mowle at the Armidale address, the Director of the Security Licensing & Enforcement Directorate relevantly stated:
[7] ExhibitR1 p.41
NOTIFICATION OF CONDITION IMPOSED ON YOUR SECURITY LICENCE
…
The SLED's records indicate that you were sent a Photograph Advice letter on 9 March 2015 which advised that you had been granted a licence. The Photograph Advice letter stated you needed to attend a Roads and Maritime Services Registry or Service NSW Centre before the final acceptance date (which was 60 days after the date of the letter) in order to have your photograph taken and your licence card produced.
The SLED's records also indicate that the final acceptance date has now passed and you have not yet attended a Roads and Maritime Services Registry or Service NSW Centre. As the final acceptance date has passed, a new Photograph Advice letter must be issued in order for you to be able to have your photograph taken and your licence card produced.
As delegate of the Commissioner, I hereby impose the following condition on your licence under section 21(3)(a) of the Act:
Before 4·30pm on Friday 31 July 2015, you must contact the SLED in one of the following ways and request a new Photograph Advice letter via:
(g)telephone on 1300 362 001, between the hours of 8:30am and 4:30pm Monday to Friday;
(h)fax on 1300 362 066; or
(i)email to [email protected]
If you do not contact the SLED before 4·30pm on Friday 31 July 2015 to request a new Photograph Advice letter, your licence will be revoked and if you wish to subsequently carry on security activities, you will need to apply for a new licence.
On or about 6 August 2015 a delegate of the Commissioner sent a document to Mr Mowle at the Armidale address.[8] The document notified Mr Mowle that “your Class 1A1C Security licence No. 410322571 has been revoked.” I will refer to this notice in detail later in these reasons.
[8] Exhibit R1 p.42.
I accept Mr Mowle’s evidence that he did not receive either of the letters or the notice and that his parents have informed him that neither letter nor the notice was received by them.
In December 2016 Mr Mowle returned to live in New South Wales. On 1 June 2017 he lodged with the Commissioner an application for a New South Wales Security Licence under the Mutual Recognition Act 1992. The licence applied for was 1A (Unarmed Guard) and 1C (Crowd Controller). He relied on his Northern Territory licence as the basis of his application for the equivalent New South Wales licence. He believed that at the time he held an equivalent licence in the Northern Territory.
In the NSW application Mr Mowle made the following statements:
·I hold an equivalent class of licence in another State;
·No licences I hold or have previously held in any State have been cancelled or are currently suspended as a result of disciplinary action.[9]
[9] Exhibit R1 p.45.
On 29 June 2017 a delegate of the Commissioner issued a Notification of Refusal addressed to Mr Mowle at the address shown on his application. The Notice provided in part:
Pursuant to section 23 of the Mutual Recognition Act 1992 (Cth) (MR Act) notice is hereby given that your application for grant of a Class 1AC New South Wales (NSW) security licence under the MR Act has been refused.
REASON(S) FOR REFUSAL (Provided under sections 27, 28 and 29 of the Administrative Appeals Tribunal Act 1975 (Cth):
On 8 June 2017, the Security Licensing & Enforcement Directorate (SLED) received an application from you for grant of a Class 1AC NSW security licence under the MR Act.
In section 2.4 of the application you answered 'True' to the following statement:
“No licences I hold or have previously held in any State have been cancelled or are currently suspended as a result of disciplinary action.”
In section 5.1 of your application, you signed a Statutory Declaration and Consent that:
“I, Jason Alan Peter Mowle declare that the statements and other information provided in this application are true and correct.”
Records held by the SLED indicate that a previous NSW security licence held by you was revoked on 6 August 2015 as a result of disciplinary action. Specifically, you breached a condition of your licence by failing to attend the NSW Roads and Maritime Services to have your photograph taken.
GROUNDS FOR REFUSAL
I AM SATISFIED THAT A PREVIOUS SECURITY LICENCE HELD BY YOU IN NSW HAS BEEN REVOKED.
Section 19(2)(e) of the MR Act provides that a person who lodges a written notice with the local registration authority of the second State for the equivalent occupation, must state that their registration in any State is not cancelled or currently suspended as a result of disciplinary action.
I AM SATISFIED THAT INFORMATION PROVIDED BY YOU IN YOUR CURRENT APPLICATION IS FALSE OR MISLEADING.
Section 23 of the MR Act allows the Commissioner of Police to refuse to grant of registration, if any of the statements or information in the notice as required by section 19 are materially false or misleading.
I am satisfied that the revocation of your NSW security licence prohibits you from being eligible for a licence under Mutual Recognition principles.
Accordingly, as a Delegate of the Commissioner, I have refused your application.[10] (Original emphasis.)
[10] Exhibit R1 pp.12-13.
LEGISLATION
Subsection 19(1) of the Mutual Recognition Act provides that:
A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, 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 the notice. It provides in part:
The notice must:
……
(e)state that the person’s registration in any State is not cancelled or currently suspended as result of disciplinary action ……
Subsection 19(5) provides:
The statements and other information in the notice must be verified by statutory declaration.
Subsection 23(1)(a) states:
(2)A local registration authority may refuse the grant of registration if:
(a)any of the statements of information in the notice as required by section 19 are materially false or misleading …..
ISSUES FOR DETERMINATION
The question before the Tribunal is whether or not Mr Mowle is entitled to registration as the holder of a Class 1A1C security licence in New South Wales by virtue of his registration as the holder of an equivalent licence in the Northern Territory.
In deciding this question the following four issues arise for determination.
(1)At the time of his application for a NSW licence on 1 June 2017, had a licence previously held by him been cancelled?
(2)If so, was the cancellation “as a result of disciplinary action”?
(3)If so, should the discretion to refuse a grant of registration provided by subsection 23(1) be exercised?
(4)Is Mr Mowle able to rely upon the licence issued to him under the Northern Territory Private Security Act to entitle him to the issue of a licence under the Security Industry Act (NSW)?
THE COMMISSIONER’S ARGUMENT
The Commissioner contends that Mr Mowle “did not and could not meet the requirements of s.19(2)(e) of the MR Act on the basis that he could not state that his ‘registration in any State is not cancelled or suspended as a result of disciplinary action’. This is because his security licence in NSW had been revoked ….
……
The respondent contends that, by virtue of s.33 of the Mutual Recognition Act, as the applicant’s NSW Licence was cancelled on disciplinary grounds at a time when he also held the NT Licence, then his NT licence is affected in the same way and that, accordingly, the applicant has no first-State licence on which he can rely to seek registration under the MR Act”.[11]
[11] Respondent’s Statement of Issues filed 28 August 2017 paras 23 and 27.
At the hearing Counsel for the Commissioner argued that the effect of the letter of 9 March 2015 was that Mr Mowle’s licence was “indefinitely suspended” until the status quo changed. It was argued further that the effect of the letter of 15 July 2015 was to grant a renewal of the licence and at the same time impose the stated condition upon it.
DISCUSSION
Issue 1: At the time of his application for a NSW licence on 1 June 2017, had a licence previously held by him been cancelled?
I accept Mr Mowle’s evidence that prior to his application of 1 June 2017 he had always applied for, and been granted, an annual licence. Copies of his applications dated 19 August 2010, 1 December 2011 and 27 February 2013[12] confirm this. Each of the application forms provided under the NSW Act requires the applicant to indicate the term of licence applied for, giving the option of one year or five years. In each case Mr Mowle indicated that he sought a licence for one year and paid the fee applicable to a licence for that period.
[12] Exhibit R1 pp.15, 23 and 33 respectively.
Further, a screenshot of records held by the Commissioner in respect of Mr Mowle’s online request to renew his licence made on 15 February 2014 shows that the duration of the renewal was one year.[13]
[13] Exhibit R1 p.35.
Mr Mowle applied for a renewal of his NSW licence on 28 February 2015.[14] I accept his evidence that he applied for a renewal for one year. The Commissioner’s records show that the renewal start date for the licence applied for was 4 March 2015 and the renewal duration was one year.[15]
[14] Exhibit R1 p.38.
[15] Exhibit R1 p.38.
When the Commissioner wrote to Mr Mowle on 9 March 2015 he advised Mr Mowle that he had approved his application for the issue of a photo-licence. The advice clearly stated that the letter of advice was not a licence and that a licence would only be issued if, by 9 May 2015, Mr Mowle personally attended one of the specified registries, produced a proof of identity document and had his photograph taken.[16] The letter warned Mr Mowle that a photo-licence would not be issued to him after the final date of acceptance. The relevant terms of this advice letter are set out in full in paragraph 7 above.
[16] Exhibit R1 p.39.
The next correspondence from the Police Force to Mr Mowle was the letter of 15 July 2015 written by the Director of the Security Licensing & Enforcement Directorate. The relevant terms of this letter are set out in paragraph 9 of these reasons.
By this letter the Director purported to impose a condition on Mr Mowle’s licence requiring him to request a new photographic advice letter. The Director stated that he was acting under subsection 21(3)(a) of the Security IndustryAct1997. However, on 15 July 2015, when the Director sought to impose the condition, Mr Mowle did not hold a licence under the Act – his last NSW licence had expired on 3 March 2015. As the Commissioner correctly pointed out in his letter of 9 March 2015, as at that date Mr Mowle did not have any authority under the legislation. The licence was not to be issued until Mr Mowle fulfilled the conditions set out.
I have reached the conclusion that Mr Mowle’s NSW licence had expired on 3 March 2015 and was not renewed having considered the various provisions of the Security Industry Act in the context of the Act as a whole.
Subsection 7(2) makes it an offence to carry on a security activity without a class 1 or class 2 licence (subject to an exception not relevant to these proceedings).
Subsection 17(1) provides:
An application for the renewal of a licence may be lodged with the Commissioner by the holder of the licence no earlier than 8 weeks before the licence ceases (otherwise than by revocation) to be in force (its expiry). (Original emphasis.)
Subsection 18(3) provides:
The Commissioner:
(a)may require an applicant for a licence or for the renewal of a licence to provide the Commissioner with a photograph of the applicant or consent to having his or her photograph taken by an authorised officer in order to confirm the applicant’s identity, and
(b)must refuse to grant or renew the licence unless the applicant has provided a photograph or been photographed in accordance with any such requirement. (Emphasis added.)
Read together, subsections 17(1) and 18(3) make it clear that when an existing licence expires the “renewed” licence does not come into effect upon that expiry until any requirements of the Commissioner have been met. Under subsection 18(3) the Commissioner may require the applicant for the renewal of a licence to provide a photograph; this the Commissioner required of Mr Mowle in the letter of 9 March 2015. Subsection 18(3) prevented the Commissioner from renewing Mr Mowle’s licence until that requirement had been met.
As Mr Mowle never supplied the photograph as requested it follows that the licence he held up to 3 March 2015 was never renewed and after that date there was no licence in existence which could be revoked by the Commissioner. The purported revocation of Mr Mowle’s licence referred to in the notice of 6 August 2015 was a nullity.
Nothing turns on the use of the word “cancelled” in the application form[17] and the word “revoked” in the Notification of Revocation of Licence[18] issued to Mr Mowle. I agree with what the Tribunal said in Dib and Commissioner of Police for NSW:
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.[19]
[17] Exhibit R1 p.45.
[18] Exhibit R1 p.42.
[19] [2010] AATA 852 at para.24.
On this basis I am satisfied that on 1 June 2017, when Mr Mowle applied for a NSW licence under the Mutual Recognition Act 1992, no licence previously held by him had been cancelled. His statement to this effect was correct.
Issue 2: Was the cancellation “as a result of disciplinary action”?
As I have decided that there was no cancellation of a licence held by Mr Mowle this issue does not arise. However, in case I am wrong on the first issue I will consider the second.
The Tribunal considered the meaning of the words “disciplinary action” as they appear in the Security Industry Act in Dib and Commissioner of Police for NSW.[20]
[20] [2010] AATA 852.
The Tribunal said, in part:
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.[21]
[21] At para. 25.
The Oxford English Dictionary defines “disciplinary” to include:
Relating to or concerned with discipline; esp. that promotes or enforces disciplined behaviour or orderly observance of rules; that corrects, reprimands, or chastises.

“Discipline” is defined to include:
Punishment (esp. physical punishment) imposed with the intention of controlling or correcting future behaviour; castigation for a misdemeanour or transgression, usually with the implication of being salutary to the recipient; chastisement.
I respectfully agree with what the Tribunal said in Dib and Commissioner of Police for NSW. In that case the Tribunal was considering action taken against a licence holder who failed to meet occupational standards.
The situation in which Mr Mowle finds himself is significantly different from that considered by the Tribunal in Mr Dib’s application. Assuming that Mr Mowle did hold some form of licence in August 2015, it was cancelled or revoked because he did not meet a requirement that he contact the Security Licensing & Enforcement Directorate to request a photographic advice letter by a specified date. As the Commissioner had made clear in his letter of 9 March 2017, all this letter did was to enable Mr Mowle to attend a Registry to have a photo-licence issued to him. Had Mr Mowle been aware of the correspondence from the Commissioner at the time he could have exercised a choice whether or not to proceed to obtain his licence. He could simply have decided not to obtain a second photographic advice, in which case he would not be able to have a licence issued to him. He would have been aware that his right to request such a letter would be revoked after 31 July 2015.
In my view there was no “disciplinary action” taken against Mr Mowle. There was no wrongdoing on his part nor was there any action designed to correct his behaviour or to reprimand him. He simply failed to avail himself of the opportunity to obtain a letter which would enable him to obtain a photo-licence if he met certain conditions.
Issue 3: Should the discretion to refuse a grant of registration provided by subsection 23(1) be exercised?
As I have decided the first two questions in the negative, this issue does not arise.
Issue 4: Is Mr Mowle able to rely upon the licence issued to him under the Northern Territory Private Security Act to entitle him to the issue of a licence under the Security Industry Act (NSW)?
It was argued on behalf of the Commissioner that as Mr Mowle’s NSW licence was cancelled on disciplinary grounds on 6 August 2015 his Northern Territory licence was therefore cancelled at the same time. Counsel relied upon section 33 of the Mutual Recognition Act 1992 (Cth) in support of this proposition.
Subsection 33(1) of the Mutual Recognition Act provides:
(1)If a person’s registration in an occupation in a State:
(c)is cancelled or suspended; or
(d)is subject to a condition;
on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person’s registration in the equivalent occupation in another State is affected in the same way.
As I have decided that the purported revocation/cancellation of Mr Mowle’s NSW licence in August 2015 was of no effect or, alternatively, the cancellation was not on disciplinary grounds, section 33 does not apply in this application.
However the decision I have reached does raise another issue in relation to the decision to refuse Mr Mowle’s application for a NSW licence.
On the basis that Mr Mowle did not hold a NSW licence after 3 March 2015 (when his last NSW licence expired and was not renewed), the question then arises as to the validity of his Northern Territory licence. The latter licence was granted after 3 March 2015 on the basis that he held a current NSW licence. In turn his application for a NSW licence, which is now before the Tribunal, relies on his holding a valid Northern Territory licence when he made his application for a NSW licence on 1 June 2017.
However it is not within the jurisdiction of this Tribunal to make a decision as to the validity of Mr Mowle’s Northern Territory licence. A copy of this licence is in evidence and shows that it was in force from 9 July 2015 until 21 September 2017.[22]
[22] Exhibit R1 p.49.
Part 4 of the Northern Territory Private Security Act provides for the cancellation and suspension of licences issued under the Act.
Subsection 26(1) of the Act provides:
Each of the following is a ground for the suspension or cancellation of a licence or the refusal to renew a licence:
(a)the licence was obtained on the basis of incorrect or misleading information;
(b)the licensee has contravened a condition of the licence;
(c)the licensee has committed an offence against this Act;
(d)the licensee, or another person required to be an appropriate person for the grant of the licence, is no, or is no longer, an appropriate person.
Section 27 sets out the procedure for cancellation and suspension of licences. It requires the Director-General to issue a show cause notice to a licence holder setting out the grounds for proposed cancellation or suspension and giving him/her the opportunity to make submissions in opposition to the proposed action. After receiving submissions (if any) the Director-General then has a discretion to cancel or suspend the licence.
As no action has been taken to cancel or suspend Mr Mowle’s Northern Territory licence he was entitled to rely on this licence when he applied for his NSW licence on 1 June 2017. His statement in his application that he held “an equivalent class of licence in another State” was correct.[23]
[23] Exhibit R1 p.45.
In accordance with section 20 of the Mutual Recognition Act Mr Mowle was entitled to be registered as the holder of a Class 1AC security licence in New South Wales on 8 June 2017, being the date on which his application for the grant of such a licence was received by the Commissioner.[24]
[24] Exhibit R1 p.12.
CONCLUSION
The reviewable decision made 29 June 2017, being the decision of the Commissioner of Police for New South Wales to refuse Mr Mowle’s application for grant of a Class 1AC New South Wales security licence under the Mutual Recognition Act 1992 (Cth), will be set aside.
The matter will be remitted to the Commissioner of Police for reconsideration in accordance with these reasons for decision.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate
Dated: 17 November 2017

Date(s) of hearing: 6 November 2017

Applicant: By telephone

Counsel for the Respondent: A Douglas-Baker

Solicitors for the Respondent: E Leung, New South Wales Crown Solicitor's Office

Date(s) of hearing:	6 November 2017
Applicant:	By telephone
Counsel for the Respondent:	A Douglas-Baker
Solicitors for the Respondent:	E Leung, New South Wales Crown Solicitor's Office