RANSLEY and COMMISSIONER OF POLICE
[2014] WASAT 132
•13 OCTOBER 2014
RANSLEY and COMMISSIONER OF POLICE [2014] WASAT 132
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 132 | |
| SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) | |||
| Case No: | VR:151/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) | 13/10/14 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application upheld The respondent's decision is revoked | ||
| B | |||
| PDF Version |
| Parties: | HENRY NORLAND RANSLEY COMMISSIONER OF POLICE |
Catchwords: | Licences under Security and Related Activities (Control) Act 1996 (WA) Revocation of licence Prohibited person Disqualifying offence Jurisdiction Laws of other States and Territories |
Legislation: | Criminal Code 1913 (WA), s 1, s 409 Criminal Code Act 1995 (Cth), s 135.2, s 135.2(1) Security and Related Activities (Control) Act 1996 (WA), s 4A, s 4B, s 67A(1)(b), s 72(1) Security and Related Activities (Control) Regulations 1997 (WA), reg 24, reg 24(b), reg 25, Sch 2 State Administrative Tribunal Act 2004 (WA), s 27(2), s 27(3), s 29(3), s 60(2) |
Case References: | Grannall v C Geo Kellaway & Sons Pty Ltd (1955) 93 CLR 36 |
Orders | On the application determined on the documents by Deputy President, Judge Sharp it is on 13 October 2014 ordered that:,1. The applicant's application is upheld. ,2. The decision of the Commissioner of Police to revoke the applicant's licence under the Security and Related Activities (Control) Act 1996 (WA) is set aside. ,3. The applicant is not a prohibited person for the purposes of s 4A of the Security and Related Activities (Control) Act 1996 (WA). |
Summary | Mr Ransley, the applicant, held a licence issued under the Security and Related Activities (Control) Act 1996 (WA) until he was convicted of an offence under the Commonwealth Criminal Code. The Commissioner of Police then revoked his licence because the Commissioner considered him to be a 'prohibited person'. ,The applicant applied to the Tribunal for a review of the Commissioner's decision.,The Tribunal considered the elements of the relevant offence and the provisions of, in particular, reg 24 of the Security and Related Activities (Control) Regulations 1997 (WA). Regulation 24 sets out what are 'disqualifying offences'. The Tribunal concluded that, even though the elements of the offence of which the applicant was convicted would also have constituted an offence under the Western Australian Criminal Code, the conviction under the Commonwealth Criminal Code did not result in the applicant becoming a prohibited person.,The Tribunal accordingly revoked the Commissioner's decision and ordered that the applicant is not a prohibited person within the meaning of the 1996 Act. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : RANSLEY and COMMISSIONER OF POLICE [2014] WASAT 132 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 13 OCTOBER 2014 FILE NO/S : VR 151 of 2014 BETWEEN : HENRY NORLAND RANSLEY
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Licences under Security and Related Activities (Control) Act 1996 (WA) Revocation of licence Prohibited person Disqualifying offence Jurisdiction Laws of other States and Territories
Legislation:
Criminal Code 1913 (WA), s 1, s 409
Criminal Code Act 1995 (Cth), s 135.2, s 135.2(1)
Security and Related Activities (Control) Act 1996 (WA), s 4A, s 4B, s 67A(1)(b), s 72(1)
Security and Related Activities (Control) Regulations 1997 (WA), reg 24, reg 24(b), reg 25, Sch 2
State Administrative Tribunal Act 2004 (WA), s 27(2), s 27(3), s 29(3), s 60(2)
Result:
Application upheld
The respondent's decision is revoked
Summary of Tribunal's decision:
Mr Ransley, the applicant, held a licence issued under the Security and Related Activities (Control) Act 1996 (WA) until he was convicted of an offence under the Commonwealth Criminal Code. The Commissioner of Police then revoked his licence because the Commissioner considered him to be a 'prohibited person'.
The applicant applied to the Tribunal for a review of the Commissioner's decision.
The Tribunal considered the elements of the relevant offence and the provisions of, in particular, reg 24 of the Security and Related Activities (Control) Regulations 1997 (WA). Regulation 24 sets out what are 'disqualifying offences'. The Tribunal concluded that, even though the elements of the offence of which the applicant was convicted would also have constituted an offence under the Western Australian Criminal Code, the conviction under the Commonwealth Criminal Code did not result in the applicant becoming a prohibited person.
The Tribunal accordingly revoked the Commissioner's decision and ordered that the applicant is not a prohibited person within the meaning of the 1996 Act.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Senior Constable S Bagley (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Commissioner of Police Office of General Counsel
Case(s) referred to in decision(s):
Grannall v C Geo Kellaway & Sons Pty Ltd (1955) 93 CLR 36
Background
1 This matter comes before the Tribunal by way of an application dated 18 August 2014 under s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (ControlAct).
2 The applicant held a licence issued under the Control Act until August 2014, when the applicant was found guilty under s 135.2(1) of the Criminal Code Act 1995 (Cth) (Commonwealth CriminalCode) of the offence of obtaining a financial advantage from a Commonwealth entity when he knew or believed he was not eligible to receive it. The Commonwealth entity was Centrelink. The respondent (Commissioner) by notice dated 12 August 2014 revoked the applicant's licence because in his opinion this offence is a 'disqualifying offence' and that the applicant is therefore a 'prohibited person', as these terms are defined in the Control Act.
3 The applicant seeks a review by the Tribunal of the Commissioner's decision.
4 In his application, the applicant does not dispute any of the facts relied upon by the Commissioner. The basis of his application is the financial hardship that he will suffer as a result of his licence being revoked.
The proceedings in the Tribunal
5 This matter was first listed for directions on 3 September 2014, when I indicated to both parties that my view was that there would not be a hearing in this proceeding. Instead, the Tribunal's decision would be made entirely on the basis of the application, the documents provided by the Commissioner and any further submissions that the parties may wish to make. The matter was then adjourned to a further directions hearing on 17 September 2014.
6 The Commissioner on 4 September 2014 filed submissions on whether the applicant's conviction under s 135.2(1) of the Commonwealth Criminal Code made him a 'prohibited person' under the Control Act.
7 At the directions hearing on 17 September 2014, I provided a brief oral summary of the scheme of the Act and outlined the overall content of the Commissioner's submissions. I asked the applicant if he wished to file any submissions in response, but he declined to do so. I then asked the applicant whether he wished a further adjournment to obtain representation for the purposes of making responsive submissions in this matter. The applicant again declined.
8 I then ordered that the matter should be decided on the basis of the documents already filed, in accordance with s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The legislative scheme
9 Section 27(3) of the SAT Act provides that, in review proceedings, the reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit theTribunal in conducting a proceeding for the review of a decision.
10 The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: SAT Act s 27(2).
11 On determining the review, the Tribunal must either affirm the Commissioner's decision, vary that decision, substitute its own decision or send the matter back to the Commissioner for reconsideration: SAT Act s 29(3).
12 Section 67A(1)(b) of the Control Act provides that if the Commissioner is satisfied that a licensee is a 'prohibited person', then the Commissioner must by notice to the licensee revoke a licence issued under the Control Act.
13 Section 4A of the Control Act relevantly defines a 'prohibited person' as follows:
(1) In this Act, a person is a prohibited person
(a) if there has been a finding of guilt in relation to a disqualifying offence committed by the person; and
(b) during the disqualifying period prescribed in respect of the offence.
(2) Subsection (1) applies to a person in respect of a finding of guilt made on, or after, 1 January 1996.
(3) A disqualifying period may be prescribed to apply in respect of
(a) all disqualifying offences; or
(b) a particular kind of disqualifying offence, or particular kinds of disqualifying offences; or
(c) disqualifying offences of a particular class or description, including offences described by reference to the type of finding of guilt that applies in relation to the offences.
15 Disqualifying offences are prescribed by reg 24 of the Regulations:
The following offences are prescribed as being disqualifying offences for the purposes of the definition of disqualifying offence in section 3
(a) an offence described in Schedule 2;
(b) an offence under the laws of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence described in Schedule 2.
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and
(ab) the person knows or believes that he or she is not eligible to receive that financial advantage; and
(b) the other person is a Commonwealth entity.
- Penalty: Imprisonment for 12 months.
18 The offence of 'fraud' under s 409 of the Criminal Code 1913 (WA) (WA Criminal Code) is relevantly defined as follows:
(1) Any person who, with intent to defraud, by deceit or any fraudulent means
(a) obtains property from any person; or
- …
(c) gains a benefit, pecuniary or otherwise, for any person; or
…
is guilty of a crime and is liable
(g) if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or
(h) in any other case, to imprisonment for 7 years.
20 Fraud under the WA Criminal Code is one of the offences included in Sch 2 of the Regulations, being an indictable offence under the WA Criminal Code with a maximum penalty exceeding three years' imprisonment.
21 On the other hand, the offence of 'obtaining a financial advantage' under s 135.2 of the Commonwealth Criminal Code is not expressly included in Sch 2 and it is a disqualifying offence only if it is an offence included in reg 24(b) of the Regulations.
Issue to be determined
22 The issue to be determined is, simply, whether the applicant's conviction under s 135.2 of the Commonwealth Criminal Code constitutes a disqualifying offence for the purpose of reg 24(b) of the Regulations.
Commissioner's submissions
23 The Commissioner submits that the Commonwealth offence of 'obtaining a financial advantage' is a disqualifying offence for the purpose of reg 24(b) of the Regulations. The Commissioner contends that, had the applicant been charged under Western Australian law, the elements of the offence would have also constituted an offence of 'fraud' under the WA Criminal Code.
24 The Commissioner says that the elements of the alleged offences are similar, and demonstrate an identical course of conduct by the applicant. The Commissioner notes that the only difference between the offences is that the course of conduct under the Commonwealth Criminal Code must affect a Commonwealth entity, whereas fraud under the WA Criminal Code is more general. The Commissioner considers that when the intent of the relevant provisions is considered, it is the conduct that is particularly relevant and not who the conduct ultimately affects. He urges me to take a robust view and find that 'obtaining a financial benefit' is a 'disqualifying offence' within the meaning of the Control Act.
Decision
25 I accept the Commissioner's contention that the elements of the offence under s 135.2 of the Commonwealth Criminal Code would constitute an offence of fraud under the WA Criminal Code. Even though one element of the Commonwealth offence is that the defrauded person must be a Commonwealth entity, the wider application of the WA Criminal Code to a fraud against any person includes the narrower application of the Commonwealth Criminal Code.
26 The question which remains, however, and one which the Commissioner has not addressed in his submissions, is whether an offence under a Commonwealth law is an offence under the 'laws of another jurisdiction' within the meaning of reg 24(b) of the Regulations. This question arises because of the inclusion in reg 24(b) of the words 'if they had occurred in Western Australia'.
27 Clearly, at least part of the intent of reg 24(b) is to prohibit a person from holding a licence under the Control Act if he or she has been convicted in another State or Territory of an equivalent 'disqualifying offence' for conduct occurring in that other State or Territory.
28 In this case, the applicant's conduct which gave rise to the conviction under the Commonwealth Criminal Code did in fact occur in Western Australia. This suggests to me that the words 'the laws of another jurisdiction' are not a reference to Commonwealth laws and that the entire intent of reg 24(b) is to include relevant convictions under the laws of other States or Territories. Accordingly, when interpreting the words 'an offence under the laws of another jurisdiction' in reg 24(b), and to give meaning to the words 'if they had occurred in Western Australia', I should apply the rule referred to in Grannall v C Geo Kellaway & Sons Pty Ltd (1955) 93 CLR 36 at 52 that all offences are local and territorial.
29 I consider that this is the correct approach. I therefore conclude that the words 'the laws of another jurisdiction' in reg 24(b) of the Regulations refer only to the laws of other States or Territories. It follows that an offence under s 135.2 of the Commonwealth Criminal Code is not a 'disqualifying offence' as defined in the Control Act and I have determined that the Commissioner's decision to revoke the applicant's licence should be set aside.
30 It may be that the restoration of the applicant's licence is temporary only. It will be a simple enough matter to amend the Regulations to expressly include s 135.2 of the Commonwealth Criminal Code in Sch 2. Other provisions of the Commonwealth Criminal Code are already expressly included. Nonetheless, this is a vocational regulatory proceeding and an outcome adverse for the applicant will have an effect on his ability to make a living. The severe consequences for the applicant, should his licence be revoked, give rise to a need for complete clarity in what constitutes grounds for that revocation.
Orders
1. The applicant's application is upheld.
2. The decision of the Commissioner of Police to revoke the applicant's licence under the Security and Related Activities (Control) Act 1996 (WA) is set aside.
3. The applicant is not a prohibited person for the purposes of s 4A of the Security and Related Activities (Control) Act 1996 (WA).
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT