Rimoni v Commissioner of Police, New South Wales Police Service (No. 2)
[2000] NSWADT 97
•07/26/2000
CITATION: Rimoni (No. 2) -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 97 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Fred Rimoni
Commissioner of Police, New South Wales Police ServiceFILE NUMBER: 993096 HEARING DATES: 24/03/2000, 04/05/2000 SUBMISSIONS CLOSED: 05/04/2000 DATE OF DECISION:
07/26/2000BEFORE: Robinson MA - Judicial Member APPLICATION: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED: Security Industry Act 1997 CASES CITED: Bourke v Commissioner of Police, [1998] NSWADT 1
Brandusoiu v Commissioner of Police [1999] NSWADTAP 8
Beahan v Bush Boake Allen Australia Ltd (1999) 93
Allen v Thorn Electrical Industries Ltd [I9681 I QB 487
Potter v Minahan (1908) 7 CLR 277
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Rodway v R (1990) 169 CLR 515
La Macchia v Minister for Primary Industry (1986) 6 AAR
Coleman v Shell Co of Australia Ltd (1943) 45 SR(NSW)REPRESENTATION: APPLICANT
D O'Neill, barrister
RESPONDENT
J Tunks, solicitorORDERS: 1. The reviewable decision is affirmed; 2. The stay that has already been granted by the Tribunal is continued for a period of 28 days from today
1 This case concerns the proper construction of the Security Industry Act 1997 (“the Act”) and the Security Industry Regulations 1998 (“the regulations”) to a person who was formerly or currently licensed under the former statutory regime.
2 The applicant argued that much of the strict regime set out in the Act simply does not apply to those persons, such as the applicant, who held security industry licences under the old regime, and who then applied for a renewal of their licences (or a new licence) under the new regime. The Security (Protection) Industry Act 1985 (“the old Act”) and the Security (Protection) Industry Regulation 1995 were repealed by section 50 of the Act.
3 While the Act and the regulations have been the subject of quite a number of Tribunal decisions, commencing with Bourke v Commissioner of Police, [1998] NSWADT 1 (President O’Connor J), there is no case of which I am aware, or which the parties have been able to refer me to, where the construction questions raised in this application were raised by an applicant and considered by the Tribunal in the form in which they are now put.
- The Facts
4 The facts are not contested at all in this case. At the hearings before the Tribunal, which occurred on 24 March 2000 and 4 May 2000, the respondent tendered one small bundle of documents of relevant material which was exhibited without objection. The applicant is a security guard employed by Chubb Security and held security industry licences for the 3 years prior to the current application under the former legislation. Before the expiration of what was his most recent licence, he applied on about 8 January 1999 for a Class 1A, 1B & 1C licence under the Act. References were supplied and the applicant has never had his then or prior licences suspended, cancelled or revoked in NSW or elsewhere.
5 The respondent conceded at the hearing that there was no issue relating to the applicant’s fitness to hold a security licence in NSW, other than for the sole reason given for the respondent’s “mandatory” refusal, namely, the prior conviction of the applicant. The respondent otherwise regards the applicant as a fit and proper person to hold a licence, agrees he has worked continuously in the industry while licensed, and concedes that he would not, if granted a licence under the new Act, be required to undertake any further training.
6 The applicant was convicted on 9 October 1991 by a Local Court Magistrate at Tuncurry, NSW, of stealing pursuant to section 117 of the Crimes Act 1900. The short title of the offence was “stealing”. He was fined $150 and ordered to pay compensation of $30. Evidence of the conviction was tendered by way of a Certificate of Conviction dated 22 February 2000, issued pursuant to section 178 of the Evidence Act 1995 by the Local Court at Forster. That documents forms part of Exhibit 1.
7 The offence related to a “minor” matter, as described in the written report to the primary decision-maker, in which the applicant’s explanation of the charge was set out. The applicant was in charge of sporting team engaged in a competition the Forster area. He took the blame for a matter which would otherwise have reflected badly on the team in that it would have resulted in the true perpetrators being placed before a court on charges. The charges apparently related to the theft of a letterbox and some potted plants after the consumption of some alcohol. In any event, the applicant did not seek at the Tribunal hearing to argue that the Tribunal should look behind the said conviction. The objective fact of the conviction is the only relevant fact here – Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 at [9], and Bourke’s Case.
8 The said conviction was the sole reason for the refusal to issue the applicant a licence as set out in the reasons for decision of the primary decision-maker, being a delegate of the respondent, dated 7 April 1999, and by the reviewer upon the internal review dated 5 May 1999. It was said that the offence was one of those prescribed offences referred to in section 16(1)(a) of the Act (when read with regulation 11(d) of the regulations) and that it was mandatory for the delegate of the respondent to make the decision to refuse the licence application. The application to the Tribunal is from these reviewable decisions.
9 Section 16(1)(a) of the Act provides:
- “ Restrictions on granting licence-criminal and other related history
(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
- (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law…”
10 Regulation 11(d) of the regulations provides:
- Offences that disqualify applicants: section 16
For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: …
- (d) Offences involving fraud, dishonesty or stealing
11 It is accepted by the parties that the offence here is one to which regulation 11(d) relates.
12 The applicant, through his counsel, argued that under the old Act, the applicant had a right to work in the security industry having been assessed as a fit and proper person to hold such a licence. If the new Act had intended to take away this right then it would have to do so in a clear and unambiguous expression of the will of the NSW Parliament. Beahan v Bush Boake Allen Australia Ltd (1999) 93 IR 1 (Wright J (President), Walton J (VP) and Hungerford J) and Allen v Thorn Electrical Industries Ltd [I9681 I QB 487 at 505 were cited as authorities in support of this proposition. This was characterised by the applicant as an “accrued rights” argument. The principle in the cases cited is that existing legal rights are not to be taken away by statute except by clear words in the statute. Where there is ambiguity in the statute, that should be resolved in favour of those who held the legal rights which were “interfered with” by the statute.
13 The new legislation was said to be ambiguous in that applications are referred to in different ways in the following groups of sections of the Act and the regulation:
- (a) sections 14, 18, 19, which relate to the “grant of a licence”;
(b) sections 5, 16, 17, which relate to “grant an application for a licence”;
(c) section 21, which refers to “grant a licence”;
(d) section 28, which refers to “application for new licence ”; and
(e) regulation 8(1)(d) “application for subsequent licence ” (my emphasis).
14 It is submitted that the correct interpretation of the Act was that applications for “new licences” under the Act (which may also be described as “subsequent licences”) be dealt with under section 28 of the Act in relation to those who have been actively engaged in the industry. It was said that section 28 applied to the applicant here by virtue of the operation of sections 24 & 28; clauses 2 & 3 of Schedule 2 of the Act; and Regulations 8(1)(d) and 30 & 33. In effect, the submission was that once an applicant satisfies the Commissioner that he or she has been actively involved in the industry, the applicant can be taken as having already met the criteria contained in sections 15, 16 & 17 of the Act, and, failing a contravention of sections 25 & 26 of the Act (which relate to suspension & revocation of licences) a new licence should be issued.
15 The applicant submitted that to read the legislation in a way which subjects existing licensees (under the old Act) to the strictness of a mandatory refusal due to the prescribed offences in section16 of the new Act produces a “draconian” outcome bearing in mind that existing licensees are already considered by the respondent to have been fit and proper persons in the relevant sense pursuant to section 10 of the old Act. Reference was made to the observations of President O’Connor J in Bourke’s case where his Honour said:
- “The impact of this scheme [ in respect of mandatory refusals under section 16 of the Act ] as reflected in these appeals … is clearly quite draconian in relation to circumstances where people have had quite minor past convictions.”
16 The applicant argued, as I apprehend it, that if Parliament intended to take away the applicant’s “right” to work than it would have done so with irresistible clearness. Potter v Minahan (1908) 7 CLR 277 at 304 per O’Connor J was cited in support. The principle as stated there, and which has been applied by Australian courts numerous times is:
- “So far from extending the operation of the Act beyond the ordinary meaning of the words which the legislature has used, it is always necessary, in cases such as this where a Statute affects civil rights, to keep in view the principle of construction stated in Maxwell on Statutes , 4th ed., p. 121:
“There are certain objects which the legislature is presumed not to intend; and a construction which would lead to any of them is therefore to be avoided.”
- “One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares…, either in express terms or by implication; or, in other words, beyond the immediate scope and object of the Statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.””
17 The applicant asserts it would have been a simple matter, by use of appropriate words, for Parliament to have taken the applicant’s rights away with irresistible clearness. It did not do this. It chose not to because it was not taking away the relevant right.
18 It was said strong support is derived for this proposition from certain comments of the Minister introducing the Bill of the Act in the Legislative Assembly in1997 (Hansard 19 November 1997, pp2088 – 2090).
19 It was said that the Minister would not have expressed his concern for the fairness of pre-training checks if he was simultaneously contemplating that the legislation could deprive of their livelihood applicants who had already satisfied the Commissioner they were fit and proper and who had worked in the Industry for as many as 8 or 9 years. To read the legislation in a way which subjects existing licensees to section16 imparts to the legislation a degree of retrospectivity in that it renders null and void the Commissioner’s prior assessment of the existing licensee as fit and proper. It is not applying the Act retrospectively to apply S. 16 to an application for a first time applicant. Pearce & Geddes’ book Statutory Interpretation in Australia, Fourth Edition, 1996, was also cited at paragraphs 10.4 & 10.5.
- The Proper Construction of the Act
20 The central issue in this application is what is the proper construction of the Act. Broadly, the Act creates an entirely new scheme for the licensing of security industry persons. In addition to the fact of the repeal of the old Act and regulations (with effect from 1 July 1998), two provisions of the Act make it plain, in my view, that existing licensees under the old Act must fall within the terms of the new Act.
21 First, the definition of a “licence” contained in section 3(1) of the Act provides that a licence “means a licence in force under this Act”. Second, in schedule 2 of the Act, which contains savings and transitional provisions, clauses 2 & 3 relevantly provide:
- 2. Definitions
In this Part:
existing licence means a licence:
- (a) that was issued under the former Act, and
(b) that was in force immediately before the repeal of the former Act by this Act.
“former Act” means the Security (Protection) Industry Act 1985.
(1) Subject to the regulations, an existing licence:
- (a) is taken to be a licence of the corresponding kind (as determined by the Commissioner) granted under this Act, and
(b) continues, unless it is sooner surrendered by the holder or suspended or revoked under this Act, in force for the unexpired portion of its term, and
(c) cannot be renewed.”
22 There is a note attached to clause 3 which provides that “all existing licences will terminate during the year following the repeal of the former Act because they are annual licences”. However, the note does not form part of the Act, and, in any event, this fact is self-evident here in respect of the applicant. His current licence under the old Act (which has been continued by the operation of stays from time to time directed by the Tribunal) was due to expire on 18 January 1999 (Exhibit 1).
23 The fact that existing licences under the old or former Act “cannot” be renewed is, in my view, fatal to the applicant’s case in so far as it was based on any alleged accrued rights, however formulated. Those “rights”, if they can be so characterised, ceased or will cease upon expiration of the licence under the old Act. The only “right” being taken away by the new Act is the right to have a licence or a renewal of a licence considered under the old Act. That is the necessary consequence of the enactment of the new Act and the repeal of the old. The terms of the Act make it plain that, apart from some savings and transitional provisions, it only applies to “new” licences, however that expression is variously expressed under the Act.
24 Ordinarily, in administrative law terms, it would constitute a denial of procedural fairness for an authority to seek to refuse to renew an existing licence without first according the applicant the opportunity of being heard as to the reasons or possible reasons why the relevant authority might not consent to renew such a licence before any decision is made. That was the holding of the High Court in FAI Insurances Ltd v Winneke (1982) 151 CLR 342. In that case, which concerned the regular renewal of a workers compensation insurer in Victoria, the Court considered that a renewal applicant has, as a starting point, a “legitimate expectation” that the licence will be renewed (for example, at 362, per Mason J). However, it is trite law that the requirements of procedural fairness may be modified or even extinguished by statute. If there was any such legitimate or reasonable expectation here of the applicant, it was removed by what I consider to be the plain words and necessary consequence of the Act which imposed a more strict regime of security industry licensing.
25 The applicant submitted that, as a matter of proper construction, the overall intention of the Act was that the most strict provisions, namely, sections 14 to 20 inclusive of the Act, only applied to new, first-time licence applications under the Act. In my view, while I initially considered that argument had some attraction to it, I consider there is no basis for that submission. On a reading of the Act as a whole, and having regard to its stated purpose and objects (as is required by section 33 of the Interpretation Act 1987) it is apparent to me that there is no concept in the Act of renewals of licences in so far as that concept could relate to the applicant as the holder of a licence under the old Act and as a licence applicant under the new Act. Every person who first applies under the new Act is a first-time applicant under it. The savings and transitional provisions do not relevantly apply to the applicant here.
26 The applicant’s submitted that all that a licence applicant in the position of the applicant here had to satisfy under the new Act was section 28 (which provides that in making an application for a new licence, the applicant must demonstrate, to the satisfaction of the Commissioner, that the applicant has been actively involved in the security industry during the term of the previous licence) and, as it was said in oral submissions by the applicant’s counsel, there should also exist no disentitling revocation or suspension issues under sections 25 or 26 of the Act. Upon satisfaction of these facts, it is said, an applicant is then entitled to be granted a licence under the Act. That argument must be rejected on a proper construction of the Act. The expression “new licence” in section 28 of the Act, which is not defined, plainly refers to the renewal of licences already granted under the Act. It cannot apply to the applicant here at present. It may apply to him at some point in the future, provided he is first granted a licence under the Act.
27 This construction of the Act is also fatal to the applicant’s case on retrospectivity. As the only right removed by the new Act was a right for an applicant to be heard in respect of licence renewals under the old Act, the new Act cannot be said to operate retrospectively at all in the relevant sense. I consider that there is no ambiguity in the terms of the Act here. The principle in Potter v Minahan quoted above does not apply (see also Rodway v R (1990) 169 CLR 515). Nor does section 30(1)(c) of the Interpretation Act 1987 apply here. That section provides that the amendment or repeal of an Act does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the former Act.
28 I note that in one Tribunal case, the question of retrospectivity of the Act was considered, although it does not appear to have been argued. In Kumsuz v Commissioner of Police, unreported, 23 March 1999, Judicial Member MB Smith stated, at [14]:
- “I would not regard the new security industry legislation as operating retrospectively in the sense that it would raise the presumption of construction against interference with accrued rights. In my opinion, the new licensing requirements reflected in section 16 operate only prospectively, notwithstanding that they “rely upon conduct that occurred before the power existed” (c.f. La Macchia v Minister for Primary Industry (1986) 6 AAR 160 per Toohey J at 163, and French J at 169; Coleman v Shell Co of Australia Ltd (1943) 45 SR(NSW) 27 at 31). Moreover, as the President has pointed out in Bourke’s Case : “the general subject matter of the legislation is intended to capture convictions that pre-date the operation of ten years in one instance and five years in another instance.””
29 I respectfully agree with these observations.
30 Both the applicant and the respondent relied on various passages from the relevant Minister’s second reading speech in support of their respective contentions. In my view, there is support there for both parties’ contentions. However, as I find that there is no relevant ambiguity in the Act, I cannot rely upon the use of such extrinsic material in the interpretation of the Act – section 34 of the Interpretation Act 1987. In any event, were I to consider that material, I would have found it of no assistance to me in the present case.
31 I determine that the reviewable decision is affirmed.
As noted earlier, the Tribunal has granted a stay of the decision which would operate until the determination by the Tribunal of the application. As the applicant’s counsel has indicated his intention to seek to agitate the applicant’s construction argument in the Supreme Court of New South Wales or elsewhere, I consider it is appropriate in the circumstances to now extend the stay that has already been granted for a period of 28 days from today, and I so direct
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