| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : OGBONNA and COMMISSIONER OF POLICE [2014] WASAT 43 MEMBER : MR M SPILLANE (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 7 APRIL 2014 FILE NO/S : VR 184 of 2013 BETWEEN : CELESTINE OGBONNA Applicant
AND
COMMISSIONER OF POLICE
First Respondent
MINISTER FOR POLICE
Second Respondent
Catchwords: Security agent Security agent licence Prohibited person Party to proceedings Legislation: Criminal Code Act Compilation Act 1913 (WA), s 172(2)
Security and Related Activities (Control) Act 1996 (WA), s 7, s 72(1)
Sentencing Act 1995 (WA), s 46
State Administrative Tribunal Act 2004 (WA), s 9, s 27, s 27(1), s 27(2), s 28(1), s 28(2), s 36, s 37, s 38, s 38(1)(c), s 60(2) Result: The Minister for Police is removed as a party
Application for review dismissed
Summary of Tribunal's decision: In September 2013 Mr Celestine Ogbonna applied to the Commissioner of Police for a security agent's licence.
By letter of 23 September 2013 the Commissioner of Police refused Mr Ogbonna's application based on the fact that he was a prohibited person as defined by the Security and Related Activities (Control) Act 1996 (WA).
Mr Ogbonna applied to the Tribunal for a review of that decision and following orders made on 28 November 2013 the matter was determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The two issues to be determined were: 1) whether the Minister for Police should be a party to the proceedings; and
2) whether Mr Ogbonna was a prohibited person for the purposes of the Security and Related Activities (Control) Act 1996 (WA). In respect of the first issue, Mr Ogbonna contended that the Minister for Police was either a party to the proceedings or should be joined as a party to the proceedings. In respect of the second issue, Mr Ogbonna conceded that the Tribunal could not vary or set aside the Commissioner's decision and did not contest that he was a prohibited person for the purposes of the Security and Related Activities (Control) Act 1996 (WA).
In respect of the only issue that was in contention, that is, whether the Minister for Police should be a party to the proceedings, the Tribunal, having considered all of the matters, found that the Minister was not a party to the proceedings, nor was it desirable to join the Minister as a party. The application for review was dismissed.
Category: B
Representation: Counsel:
Applicant : In Person
First Respondent : Senior Constable S Bagley (Acting as Agent)
Second Respondent : Mr J Bennett
Solicitors:
Applicant : N/A
First Respondent : Commissioner of Police
Second Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29
REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 On 9 October 2013, the Tribunal received an application under s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (SRAC Act) from Mr Celestine Ogbonna (applicant) seeking a review of a decision of the Commissioner of Police, dated 23 September 2013, refusing his application for a security agent's licence based on the fact that he was a 'prohibited person', as defined by the SRAC Act. 2 In his application, the applicant also listed the Minister for Police (second respondent or Minister) as the second respondent. 3 On 31 October 2013, the matter came on for initial directions before the Tribunal, and although there was an appearance by both the applicant and the first respondent, there was no appearance by the Minister. The matter was adjourned to further directions on 28 November 2013 at which both the applicant, the first respondent and the Minister were represented. 4 At that directions hearing, counsel for the Minister submitted that the Minister should not be a party and by agreement the matter was listed to final determination on the documents with the following orders: 1. The two issues for determination are: (a) Whether the [second] respondent (Minister for Police) should be a party to the proceedings; and (b) Whether the applicant is a prohibited person for the purposes of the Security and Related Activities (Control) Act 1996, and if he is, whether the Tribunal has any discretion to vary or set aside the respondent's decision in the matter. 2. On or before 13 December 2013 the respondents are to file with the Tribunal and serve on the applicant all documents and submissions they wish to rely on in determining the issues in order 1 above. 3. On or before 10 January 2014 the applicant is to file with the Tribunal and serve on the respondents all documents and submissions he wishes to rely on in determining the issues in order 1 above. 4. Subject to any further order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA). 5 Each of the parties filed submissions in compliance with those orders, all of which have been taken into consideration by the Tribunal.
Facts 6 It was common cause that on 31 August 2012 the applicant was convicted of one count of obstructing police officers pursuant to s 172(2) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code), for which the applicant received a spent conviction, and no punishment was imposed in accordance with s 46 of the Sentencing Act 1995 (WA). 7 Approximately 12 months later, on 5 September 2013, the applicant applied for a security officer's licence under the SRAC Act and by letter of 23 September 2013, was informed of the decision not to grant the applicant the licence sought. That letter stated: You have been identified as having been convicted of a disqualifying offence, namely Obstructing Public Officers. I am satisfied you are a 'prohibited person' within the definition of section 4A of the [Security and Related Activities (Control) Act 1996 (WA)], and therefore you cannot be licensed for a period of five (5) years from the date of your last finding of guilt for a disqualifying offence: (31/8/2012). The Act does not allow me the power to make any alternative decision that will allow you to work in the Security Industry[;] however you are entitled under section 72 of the Act to have my decision reviewed by the State Administrative Tribunal. The focus of the review will be on the convictions recorded against you, to determine if those convictions deem you a prohibited person and for what period of time as defined in the Act. If the State Administrative Tribunal is satisfied that you are a prohibited person, [it is] bound by the Act in the same manner as I am and therefore do not have any power to make any alternative decision that will allow you to work in the Security Industry.
Issue 1: Whether the second respondent (Minister for Police) should be a party to the proceedings 8 Only the applicant and the second respondent filed submissions in respect of this issue. 9 The applicant contended that the Minister was a party to the proceedings pursuant to s 36 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which will be discussed below and, further, that the second respondent fitted the description of a person in s 38(1)(c) of the SAT Act which states: The Tribunal may order that a person be joined as a party to a proceedings if the Tribunal considers that for any reason it is desirable that the person be joined as a party. 10 The applicant submitted that the Minster for Police, as Minister for the Crown, has Ministerial responsibility to administer the SRAC Act, and that the licensing officer, in refusing to issue the security licence, performed a Ministerial act. He further submitted that the Minister was vicariously liable for the decision of the licensing officer. 11 The applicant also made submissions as to the jurisdiction of the State Administrative Tribunal within the framework of the Australian judicial system, and contended that the addition of the Minister as second respondent would not prejudice the Tribunal's main objective outlined in s 9 of the SAT Act and there was no reason why the second respondent should not be a party to the proceedings. 12 Submissions on behalf of the Minister dealt with the statutory framework of the SAT Act, in particular, s 36 and s 38, including relevant case law.
Consideration 13 Sections 36, 37 and 38 of the SAT Act are relevant and for completeness they are set out in full: 36. Who are parties to proceedings (1) A person is a party to a proceeding before the Tribunal if the person is (a) the applicant; or (b) a person joined under section 38 as a party to the proceeding; or (c) a person intervening in the proceeding; or (d) specified by this Act or the enabling Act to be a party to the proceeding. (2) If the proceeding is in the Tribunal's original jurisdiction, anyone else in respect of whom a decision of the Tribunal is sought is also a party. (3) In a proceeding dealing with a decision of a vocational regulatory body or a matter brought before the Tribunal by a vocational regulatory body or by another person under a vocational Act, a person affected by or the subject of the decision or matter is also a party. (4) If the proceeding is in the Tribunal's review jurisdiction, the decisionmaker is also a party. (5) In a proceeding to which a decisionmaker is a party, the official description rather than the personal name of the decisionmaker is to be used so far as is practicable. 37. Intervening in proceeding (1) The Attorney General may, on behalf of the State, intervene in a proceeding of the Tribunal at any time. (2) The Commissioner referred to in the Fair Trading Act 2010 section 6 may, on behalf of the State, intervene at any time in a proceeding if the Minister responsible for the administration of that Act is responsible for the administration of the enabling Act. (3) The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit. 38. Joining person as party to proceeding (1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that (2) The Tribunal may make an order under subsection (1) on the application of any person or on its own initiative. 14 Section 36 is the natural starting point as it stipulates who are parties to proceedings. 15 In the present case, pursuant to s 36(1)(a) and s 36(3), the applicant is clearly a party to the proceedings. 16 Furthermore, pursuant to s 36(4), the first respondent, namely, the Commissioner of Police, is also a party to the proceedings. 17 Although the applicant contends that the Minister is a party pursuant to s 36, the Tribunal does not accept that contention as correct. 18 The Minister is not the applicant as per s 36(1)(a) and is not specified in either the SAT Act or the SRAC Act (being the enabling Act) as a party pursuant to s 36(1)(d) of the SAT Act. 19 Neither has the Minister sought to intervene under s 37 in order to qualify under s 36(1)(c). 20 In respect of s 36(3) the Minister is not a person affected by, or the subject of, the decision of the Tribunal, and the Minister is not the decisionmaker (s 36(4)). 21 Section 36(5) is not relevant, leaving only s 36(1)(b) which refers to a person joined under s 38 as a party to the proceeding. 22 The Tribunal accepts that it may order that a person be joined as a party if the Tribunal considers that: 23 No cogent reason has been put before the Tribunal by the applicant as to why the Minister ought to be bound, or needs to have the benefit of the decision, or how the Minister's interests are affected or, indeed why, for any other reason it is desirable for the Minister to be joined as a party. 24 The Minister does not wish to be joined, as it is clear from paragraphs 14, 15 and 16 of the second respondent's submissions, which state: 14. In respect of s 38(1)(a), the Second Respondent cannot be 'bound' by the decision of the Tribunal. Further, it is difficult to see how the decision of the Tribunal could be of 'benefit' to the Second Respondent given she has had no involvement in the Decision. The purpose of these proceedings is merely to review the Decision of the First Respondent. The decision of the First Respondent will be affirmed, varied or overturned. The rights of the Applicant will be affected by a decision of the Tribunal, namely whether or not he is entitled to a licence. The Second Respondent is not thereby bound by or given the benefit of some decision of the Tribunal. See Medical Board of Western Australia and Vujcich [2008] WASAT 113 [37]. 15. So far as s 38(1)(b) is concerned, given the Second Respondent's noninvolvement in the Decision, her interests cannot be said to be affected by the proceeding. Nothing the Tribunal determines has the effect of giving or taking away any legal rights of the Second Respondent. The Second Respondent has no other direct or indirect interest in the proceedings. In these circumstances, there is no basis for adding the Second Respondent to these proceedings as a person whose interests are affected by the proceeding. See Medical Board of Western Australia and Vujcich [2008] WASAT 113 [38]; FMG Pilbara Pty Ltd and Minister for Indgenous [sic] Affairs [2012] WASAT 31 [19]. 16. Finally, there does not appear to be any other reason why it is desirable to add the Second Respondent as a party to these proceedings pursuant to s 38(1)(c). There is no need for the Second Respondent to be represented in these proceedings and the joining of the Second Respondent will not add anything useful to the proceedings. 25 The applicant may wish the Minister be joined as a party to the proceedings, but, if he does, he carries the onus of showing why such a course of action is desirable. 26 At paragraphs 14 to 16 of his submissions, the applicant stated: 14. There seems to be no reason/s why the Second Respondent should not be a party to these proceedings pursuant to s38(1)(c). For instance, there are provisions, for amendment of Acts and Regulations, where a law is found to be inadequate, unjustified or discriminatory under s 81 of the Equal [O]pportunity Act 1984 (WA), which stipulates: 15. Further, some legal professionals have criticized the discriminatory nature of s 25(2)(b) of the Security and Related Activities (Control) Regulations 1996 (WA). The Honourable Mr Peter Abetz has also spoken for change, which the Second Respondent (Minister for Police) has chosen to ignore. The Second Respondent successfully introduced the police pursuit laws in 2012 which was good and has recognised what is defined as irregularities with the WA gun laws under the Firearms Act 1973 (WA) and plan[s] to amend this. 16. Also I would like to say, joining the Second Respondent to the present proceedings would not in any way [frustrate] the Tribunal['s] main objective in conducting review proceedings. Primarily because legislative provisions, pursuant to s 38(1)(c) of the State Administrative Tribunal Act 2004 (WA) allows such. 27 It may be that the applicant believes the provisions of the SRAC Act are discriminatory and need to be amended. 28 However, if that is the case, it is a matter for Parliament and not this Tribunal. 29 As for the applicant's contention set out earlier that the Minister has Ministerial responsibility for the SRAC Act, that may well be the case, but it does not make the Minister part of the process of the SRAC Act and the Tribunal does not accept that in refusing to issue the security licence the licensing officer performed a Ministerial Act or that the Minister is vicariously liable for the decisions of the licensing officer. 30 Those contentions were merely stated by the applicant and not supported in any other way. 31 Section 7 of the SRAC Act states: 32 Those provisions make it clear that the licensing officer is appointed by the Commissioner, and the licensing officer's decision to refuse to issue the security licence applied for is to be taken to be within his or her authority unless the contrary is shown, which it has not been. 33 In particular circumstances government policy may be relevant and the Tribunal may consider it, and that is specifically dealt with at s 28(1) and s 28(2) of the SAT Act which state: (1) The Minister responsible for the administration of the enabling Act may certify in writing that there was, at the time of the reviewable decision, a statement of policy that had been published in the Gazette under a written law and applied to decisions of that kind. (2) If a certificate is given under subsection (1) and the decisionmaker states in the material provided to the Tribunal under section 24 that the decisionmaker had regard to the statement of policy in making the decision, the Tribunal in conducting the proceeding must have regard to the statement of policy as in effect at the time of the review. 34 However, even in those circumstances, the Minister does not become a party to the proceeding. 35 In this review, the Tribunal is bound by the provisions of both the SRAC Act and the SAT Act, and in the present case, the Tribunal is not satisfied that the Minister can either be bound by the decision of the Tribunal, or that her interests will be affected by the proceeding. 36 Furthermore, none of the Tribunal's objectives under s 9 of the SAT Act would appear to be advanced by joining the Minister as a party. 37 The Tribunal therefore finds that the Minister is not a proper party to these proceedings, nor is it desirable, pursuant to s 38(1)(c) of the SAT Act, to join the Minister as a party.
Issue 2: Whether the applicant is a prohibited person for the purposes of the SRAC Act and, if he is, whether the Tribunal has any discretion to vary or set aside the respondent's decision in the matter 38 Only the applicant and the first respondent made submissions in respect of this issue. The applicant simply stated: Finally, the second issue, as to whether the [A]pplicant is a prohibited person for the purposes of the Security and Related Activities (Control) Act 1996 (WA) is not being contested by the Applicant. The Applicant had at the first directions hearing of the matter on 31 October 2013 accepted the fact that the State Administrative Tribunal lacks the jurisdiction either to vary or set aside the Respondents' decision. 39 The Tribunal acknowledges the applicant is not contesting the decision under review and accepts that the Tribunal has no jurisdiction to vary or set aside the respondent's decision. However, the Tribunal (perhaps mistakenly) did not understand that to be the applicant's position from the outset, as, if it had, the matter may have been dealt with more summarily. 40 However, the question is now before the Tribunal and the Tribunal is required to determine it. As stated by the Tribunal in previous cases, including Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29 at [45], even where there are consent orders, the Tribunal 'has and must exercise an independent responsibility and judgment' in relation to the determination because the proceedings 'involve the application of public law and the exercise of a statutory discretion to produce the correct and preferable decision'. 41 In the present case, the Tribunal has, pursuant to s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the decisionmaker, in this case, the licensing officer appointed under s 7 of the SRAC Act and pursuant to s 27 of the SAT Act, the purpose of the review is to produce the correct and preferable decision. 42 At paragraphs 7 to 18 of its submissions, the first respondent succinctly set out the pathway under the SRAC Act by which the matter is to be determined. It stated, referring throughout to the SRAC Act: 7. Section 72(1) of the Act provides that any person aggrieved by a reviewable decision of a licensing officer may apply to the State Administrative Tribunal for a review of the decision. 8. Section 72(2) defines a reviewable decision, and relevantly subsection (a) elates to a decision to refuse to issue a licence. 9. Section 52(1)(ca) of the Act states that a licensing officer is not to issue a licence, unless the officer is satisfied that the applicant is not a prohibited person. 10. Section 4A(1) of the Act relevantly provides that a person is a prohibited person Finding of guilt 11. Section 4B of the Act identifies that a reference to a 'finding of guilt' includes a reference to a court convicting the person of the offence, if there has been no formal finding of guilt before conviction. 12. The reference to a conviction includes a reference to a spent conviction (s 4B(2)(b)). 13. The applicant was convicted at Trial of 'Obstructing Public Officers' and was given a spent conviction. Disqualifying Offence 14. Section 3 of the Act defines a disqualifying offence as an offence of a kind prescribed as being a disqualifying offence. 15. The Security and Related Activities (Control Regulations 1997 (WA), by reg 24, prescribe that an offence described in schedule 2 constitutes a disqualifying offence. 16. Schedule 2 Division 1 lists offences under the Criminal Code 1913 that are deemed disqualifying offences. Section 172 'Obstructing Public Officer's' is therefore a Schedule 2 Division 1 disqualifying offence. Disqualifying Period 17. For the purposes of section 4A, Regulation 25(2) clarifies the meaning of 'disqualifying period' and states that in respect of a disqualifying offence committed by a person is 18. As the applicant obtained a spent conviction, the disqualifying period is reduced from 10 years to a period of 5 years (as stated in the refusal letter). The applicant therefore cannot be licensed to work in the industry for a period of 5 years from the date the finding of guilt was made (31 August 2012). 43 The Tribunal accepts the pathway set out above as being correct and as the Tribunal has the same jurisdiction, functions and discretions as those of the decision-maker, the Tribunal agrees that the only decision open to the Tribunal on the agreed facts of the present case is the same as made by the original decisionmaker, namely, to treat the applicant as a prohibited person for the purposes of the SRAC Act. 44 It is clear that the applicant, having been convicted of the offence outlined, is a prohibited person and must serve the disqualifying period of five years from the date of conviction. 45 The Tribunal will therefore affirm the decision of the licensing officer dated 23 December 2013 and the application for review will be dismissed.
Orders 46 The Tribunal makes the following orders: 1. The Minister for Police is not a proper party to these proceedings and is to be removed as a party. 2. The Tribunal refuses to join the Minister for Police as a party pursuant to s 38 of the State Administrative Tribunal Act 2004 (WA). 3. The decision of the first respondent dated 23 December 2013 refusing the applicant's application for a security agent's licence is affirmed. 4. The application for review is dismissed. |