Pearce v Commissioner for Fair Trading (Occupational Discipline) - [2013] ACAT 82

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PEARCE v COMMISSIONER FOR FAIR TRADING (Occupational Discipline) [2013] ACAT 82

OR 13/41
Catchwords: OCCUPATIONAL DISCIPLINE – SECURITY INDUSTRY – conviction for an offence involving dishonesty - penalty of a fine of $500 imposed – holding of security licence for several years notwithstanding disclosure of conviction - refusal to renew security licence after change of law –tribunal must make decision in accordance with law - decision is fair if made fairly –the meaning of the word “must” in relation to the exercise of a function – conviction is for an offence involving dishonesty in stated circumstances within 10 year period before application for licence – Commissioner required to refuse to issue licence – tribunal required to confirm decision
Legislation:ACT Civil and Administrative Tribunal Act 2008, ss.6 and 68
Criminal Code 2002, s.313
Legislation Act 2001, ss.6 and 146
Security Industry Act 2003, ss. 21, 37 and Schedule 1, Item 2

Tribunal: Ms L. Crebbin - General President

Date of Orders: 2 December 2013
Date of Reasons for Decision: 2 December 2013

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL OR 13/41

RE:KRISTY PEARCE

Applicant

AND: COMMISSIONER FOR FAIR TRADING
Respondent
ORDER

Tribunal : Ms L. Crebbin, General President

Date : 2 December 2013

1. The decision of the Respondent to refuse to renew the applicant’s Class 1A and Class 1C security employee licence is confirmed.

………………………………..

Ms L. Crebbin

General President
REASONS FOR DECISION

Ms Kristy Pearce held licences to work as a security employee for approximately
9 years – from September/October 2004 to September 2013. Her licences allowed her to work as a patrol guard and as a crowd controller. She worked consistently in the security industry after obtaining her first licence. Each licence was issued to her for a period of 12 months. Each 12 months she was required to make an application to have her licence renewed.
Security licences are issued by the Commissioner for Fair Trading (the Commissioner) under the Security Industry Act 2003 (the Act). The Act was substantially changed in September 2012 to make it consistent with similar laws that operate in other jurisdictions. This was something that had been agreed between all governments through the Council of Australian Governments (COAG). The amendments were passed by the ACT Legislative Assembly in September 2011 but the changes did not come into effect until 12 months later on 27 September 2012.
The changes made to the Act introduced additional suitability requirements and included new provisions that exclude or stop people holding security licences if they are convicted of certain offences.
On 26 April 2006, Ms Pearce was convicted by the ACT Magistrates Court on one charge of receiving stolen property. The sentence imposed by the Court required her to be subject to what was then commonly known as a good behaviour bond for
12 months. She was also required to pay a penalty of $500. The police Statement of Facts showed that the offence related to property that Ms Pearce purchased in January 2006 from an unidentified person. The purchase took place behind a group of local shops after trading hours. Ms Pearce admitted that at the time, she believed the property to be stolen.
Ms Pearce disclosed the conviction each time she made an application to renew her employee security licence after April 2006. It should be noted that an application to renew an existing licence under the Act is simply an application for a licence. The suitability and eligibility requirements have to be considered afresh each time an application is made.
A licence was issued to Ms Pearce each year after the conviction from September 2006 up to and including 4 September 2012, notwithstanding the conviction. The Commissioner wrote to Ms Pearce on 26 October 2012 telling her that her next application to renew her licence would be refused because of the changes to the law that started on 27 September 2012.
The last licence issued to Ms Pearce expired on 4 September 2013. Ms Pearce submitted an application to renew the licence on about 28 August 2013. Once again, she disclosed the 2006 conviction. This time, as foreshadowed, the Commissioner refused to issue Ms Pearce with a licence (the decision). The decision was made on 14 October 2013.
On 4 November 2013 Ms Pearce lodged an application with the ACT Civil and Administrative Tribunal (the tribunal), asking the tribunal to review the decision. On 6 November 2013, the tribunal directed the Commissioner to give Ms Pearce and it a copy of all documents in his possession relating to the decision (the documents). The documents were provided on 27 November 2013. They included Ms Pearce’s application for renewal of her licence, the Commissioner’s letter refusing the application and a more detailed statement of reasons, a Police Certificate dated 11 September 2013 confirming the 2006 conviction and penalty, an AFP Statement of Facts relating to the offence, and the Commissioner’s letter of 26 October 2012 to Ms Pearce referred to above.
The documents also included two references from businesses that employed
Ms Pearce. One reference was provided by a company that employed Ms Pearce on a casual basis from 2006 until her licence expired in 2013. The reference described Ms Pearce as a very reliable and trustworthy employee who was very professional. The reference said that the employer had been very happy with her work ethics in the time that she had been employed.
The documents made it clear that the tribunal would have to confirm the decision made by the Commissioner. A more detailed explanation of why that is the case is set out below.
At a directions hearing held on 2 December 2013, Ms Pearce confirmed the information set out in the documents and referred to above. The tribunal told
Ms Pearce that it would be unable to set aside the Commissioner’s decision and could not make an order that she be issued with a security licence, because the law did not give the tribunal the power to do that in the circumstances relevant to her application. Ms Pearce indicated that this was consistent with advice given to her by two lawyers.
The tribunal decided that in the circumstances, her application should be dismissed without proceeding to a full hearing. Ms Pearce acknowledged that this was an appropriate approach.
Ms Pearce was able to lodge an application with the tribunal asking that the decision be reviewed because of the combined effect of section 37(a) and Item 2 of
Schedule 1 of the Act. Any applicant for a licence whose application is refused can make an application for review.
When the tribunal reviews decisions under the Act it applies the same law and exercises the same functions as the original decision maker.[1] The tribunal can consider information available to it at the time of the hearing and is not limited to considering only the information that was available to the decision-maker. Depending on the circumstances of the matter, the tribunal may decide to confirm an original decision or vary a decision or set aside a decision and make a different one.[2]
[1] Section 68(2), ACT Civil and Administrative Tribunal Act 2008 (ACAT Act)
[2] Section 68(3), ACAT Act
However, in all cases the tribunal must make its decision in accordance with the law regardless of whether the outcome seems unfair, or unjust. It is true that the tribunal’s objects say that the tribunal must ensure that the decisions it makes are fair,[3] but this does not meant that the government has given tribunal members the right to ignore its laws. A tribunal member cannot make whatever decision seems right, or fair, or just, to her or him. A member must apply the relevant law to the facts of the case that she or he is hearing and make a decision that is in accordance with the relevant law. A decision will be fair in this context, if it is made fairly; that is that it is made in a way that ensures that the principles of procedural fairness have been followed.
[3] Section 6(d), ACAT Act
The applicable law in this case is found in section 21 of the Act. The full text of the section is set out at the end of these reasons but the relevant parts can be summarised as follows:
i.Section 21(2)(a) says that the Commissioner for Fair Trading must not issue a licence if within the period of 10 years before the application for a licence is made, the applicant has been convicted of an offence of the type mentioned in subsection (3). (emphasis added)
ii.The offences mentioned in subsection (3)(a) include an offence involving dishonesty ‘if stated circumstances’ apply;
iii.Subsection (5) provides that the stated circumstances for an offence for which an applicant has been convicted exist when the person has been given a penalty of imprisonment and/or a fine of $500 or more.
Section 146 of the Legislation Act 2001 says the use of the word ‘must’ in an Act in relation to a function indicates that the function is required to be exercised; that is, there is no choice but to exercise the function. Section 146 is a determinative provision - the definition of ‘must’ has to be applied unless there is something that expressly displaces it, or there is something that manifests a contrary intention[4].
[4] Section 6, Legislation Act 2001
In this case, the Commissioner is exercising a function that can be described as ‘not issuing’ or refusing to issue a licence. Section 21(2)(a) of the Act says that he must not issue a licence in certain circumstances. There is nothing in the Act that expressly displaces the operation of section 146 of the Legislation Act 2001 or that manifests an intention that section 146 should not apply. The Commissioner (and this tribunal) is required to refuse any application for a licence if the relevant circumstances apply in relation to the application. There is no discretion; refusal is mandatory.
The Act does not contain a definition of dishonesty. The documents provided to the tribunal show that Ms Pearce was convicted of an offence against section 313 of the Criminal Code 2002 (the Code). That section is in part 3.2 of the Code dealing with ‘Theft and related offences’. Section 313(1) provides that:
A person commits an offence (receiving) if the person dishonestly
receives stolen property, knowing or believing the property to be
stolen.
Dishonesty is an element of the offence. It is an offence that is correctly described as ‘involving dishonesty’. It is clear from the documents provided to the tribunal (and Ms Pearce accepts) that she was convicted of this offence and that she received a penalty that included a fine of $500. The offence is therefore an offence involving dishonesty to which the ‘stated circumstances’ apply. The conviction occurred on 26 April 2006 – this is within 10 years of the date Ms Pearce applied for a licence; namely 28 August 2013.
It follows from section 21(2)(a) that the Commissioner was required to refuse to issue a licence to Ms Pearce and this tribunal, standing in the shoes of the Commissioner, must confirm that decision.
This outcome may seem unfair given that Ms Pearce has been issued licences and has worked in the security industry for 7 years since her conviction, has disclosed her conviction to the Commissioner in her previous applications and has been, by all accounts, a valued and trusted employee. She told the tribunal that security work is all that she knows and all that she has wanted to do since finishing school. She obtained her licence as soon as she could when she turned 18. These are not factors however that I can take into account.
Absent any change to the current law (or further conviction), the Commissioner will be able to consider whether a licence should be issued to Ms Pearce if she makes an application after 26 April 2016. After that date, the Commissioner will have a discretion to issue a licence taking into account Ms Pearce’s suitability and her eligibility under the Act.

………………………………..

Ms L. Crebbin, General President

Security Industry Act 2003 - Extract
Division 3.5 Suitability and prerequisites for issuing licences

General suitability criteria
(1)The commissioner for fair trading must not issue or vary a licence unless—
(a)satisfied—
(i)about the applicant’s identity; and
(ii)that the applicant is eligible to hold the licence; and
NoteEligibility for employee, trainer and employee temporary visitor licences is dealt with in s 24.
(iii)for a licence other than a temporary visitor licence—that the applicant has satisfactorily completed a training course, or has experience or other training that is equivalent, or substantially equivalent, to completion of a training course, prescribed by regulation for the licence applied for; and
(iv)for an application for an employee licence to do 1 or more of the things mentioned in section 13 (1) (a), (b), (c), (d), (e), (f) or (h)—that an employee organisation has given the applicant the information prescribed by regulation in relation to workplace rights and responsibilities (workplace information); and
(v)that the applicant satisfies any condition prescribed by regulation for the licence; and
(vi)that it is otherwise in the public interest to issue a licence to the applicant; and
(vii)for a master temporary visitor licence—that the applicant holds a full licence (however described) under the law of a State to employ or provide a person to carry on the activity authorised under the licence; and
(viii)for an employee temporary visitor licence—that the applicant holds a full licence (however described) under the law of a State to do the activity authorised under the licence; and
(b)the applicant—
(i)if the applicant is an individual—is an adult; and
(ii)if competency standards are prescribed under the regulations—has satisfied the standards.
(2)Also, the commissioner for fair trading must not issue or vary a licence if—
(a)within the 10 years before the day the application is made, the applicant has been convicted of 1 or more of the offences mentioned in subsection (3), in the ACT or elsewhere; or
(b)within the 5 years before the day the application is made, the applicant has been found guilty (but not convicted) of 1 or more of the offences mentioned in subsection (3), in the ACT or elsewhere.
(3)The offences are as follows:
(a)if the stated circumstances apply—an offence involving assault, violence against a person, dishonesty or theft;
(b)if the stated circumstances apply—an offence relating to the possession, storage or use of a firearm or other weapon;
(c)if the stated circumstances apply—an offence, other than for possession, involving a controlled drug, controlled plant or controlled precursor within the meaning of the Criminal Code 2002;
(d)an offence involving robbery;
(e)an offence against the Criminal Code Act 1995 (Cwlth), schedule, part 5.3 (Terrorism);
(f)an offence committed outside the ACT involving terrorism that is an offence against a law of the place where the offence is committed.
(4)This section is subject to section 26 (Temporary licences).
(5)In this section:
applicant—
(a)for an application for a master licence or master temporary visitor licence—includes a close associate of the applicant; and
(b)if the applicant is a corporation—includes each executive officer of the corporation; and
(c)if the applicant is a partnership—includes each partner.
close associate—see section 22.
executive officer, of a corporation, means a person, by whatever name called and whether or not the person is a director of the corporation, who is concerned with, or takes part in, the corporation’s management.
stated circumstances, for an offence for which an applicant has been convicted, means that—
(a)a penalty is imposed on the applicant for the offence; and
(b)the penalty is imprisonment, a fine of $500 or more, or both.

PUBLICATION DETAILS

FILE NUMBER:	OR 13/41
PARTIES, APPLICANT:	Kristy Pearce
PARTIES, RESPONDENT:	Commissioner for Fair Trading
SOLICITORS FOR RESPONDENT	Ms Soper
TRIBUNAL MEMBERS:	Ms L. Crebbin
DATES OF HEARING:	2 December 2013
PLACE OF HEARING:	ACAT Canberra

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

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