Stott and NSW Police Service
[2005] AATA 1009
•12 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1009
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/145
GENERAL ADMINISTRATIVE DIVISION ) Re TANIA STOTT Applicant
And
NSW POLICE SERVICE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date 12 October 2005
Place Canberra
Decision 1. The Tribunal has jurisdiction to review the decision of the Commissioner made 16 May 2005 refusing Ms Stott’s application for a Master Licence under the Security Act 1997 (NSW).
2. The parties may seek further directions as to costs if necessary.
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CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – decision not to grant Master Security Licence in accordance with the Mutual Recognition Act – decision set aside by decision maker after application to Tribunal – s 26 of the Administrative Appeals Tribunal Act confers jurisdiction - whether the licence application was made by a company – “occupation” for which Applicant registered in NSW equivalent to that in ACT - Tribunal has jurisdiction
Mutual Recognition Act 1992 (Cth) ss 4,16(2),17(1),18
Security Industry Act 1997 (NSW) s 4
Security Industry Act 2003 (ACT) s 7
Administrative Appeals Tribunal Act 1975 (Cth) s 26
REASONS FOR DECISION
12 October 2005 J.W. Constance, Senior Member
INTRODUCTION
1. Ms Stott is seeking a review of a decision of the Commissioner which she claims was made under the Mutual Recognition Act 1992 (Cth). The Commissioner argues that the decision was not made under this Act and that the Tribunal does not have jurisdiction to review the decision.
2. For the reasons which follow I am satisfied that the Tribunal does have jurisdiction.
FACTS
3. On 28 August 2004 Ms Stott applied to the Commissioner for a Master Licence under the Security Industry Act 1997 (NSW).[1] Ms Stott clearly stated in a statutory declaration which formed part of her application that she was relying upon the mutual recognition principle set out in the Mutual Recognition Act.
[1] S. 37 document T3.
4. It was also abundantly clear from the application that Ms Stott was operating a business under the business/trading name of ACT Security Network. Appropriately the space for notification of a company name was left blank.
5. The Commissioner refused the application on a ground which is not relevant to the application before me. Ms Stott has applied for a review of this decision under the Mutual Recognition Act.
STATUTORY BACKGROUND
6. Subsection 17(1) of the Mutual Recognition Act provides:
“The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a)to be registered in the second State for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in the second State.”
In the same Act “occupation” is defined as:
“…an occupation, trade or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification...”.[2]
[2] Section 4.
7. Section 4 of the NSW Security Industry Act provides:
“For the purposes of this Act, a person carries on a ‘security activity’ if the person carries on any one or more of the following activities in the course of conducting a business or in the course of the person’s employment:
(a)acting as a bodyguard, crowd controller or bouncer,
(b)patrolling, protecting, watching or guarding any property (including cash in transit),
(c)installing, maintaining, repairing or servicing security equipment,
(d)providing advice in relation to security equipment or security methods or principles,
(e)an activity, or class of activities, that is connected with security or the protection of persons or property and that is prescribed by the regulations for the purposes of this section,
(f)providing training or instruction in relation to any activity referred to in paragraphs (a)-(e),
(g)employing or providing persons to carry on any activity referred to in paragraphs (a)-(f).”
Subsection 7(1) of the ACT Act commences:
“For this Act, a person carries on a security activity if, as part of a business or the person’s employment, the person does 1 or more of the following…”.
The section then mirrors subparagraphs (a) to (g) of the NSW section.
REASONING
8. The Commissioner argues on three separate grounds that the Tribunal does not have jurisdiction to review the decision refusing Ms Stott’s application.
These are:
1.the decision has been set aside by the Commissioner so there is nothing to review;
2.in any event, this is an application by a company and the Mutual Recognition Act does not apply to companies;
3.the occupation for which Ms Stott claims registration in NSW is not equivalent to that in respect of which she is registered in the ACT.
Has the decision been set aside so that the Tribunal does not have jurisdiction to review it?
9. This argument ignores section 26 of the Administrative Appeals Tribunal Act 1975 (Cth). This section provides that after a decision is made it cannot be altered without express statutory authorisation or with the consent of the parties and the Tribunal. As the action of the Commissioner said to “set aside“ his earlier decision took place after the application to the Tribunal was made, and as the requirements of section 26 have not been met, this argument has no merit.
Has the application being considered been made by a company?
10. It is clear that the relevant Part of the Mutual Recognition Act applies to individuals and not to companies.[3] The Commissioner argues that the application being considered was made by ACT Security Pty Limited and not by Ms Stott. No explanation has been forthcoming as to how the Commissioner could possibly have reached this conclusion, although this argument was put in a Statement pursuant to Section 37 filed in the Tribunal and signed by the Commissioner’s representative from the NSW Police Service Legal Services Division.[4] “ACT Security Pty Limited” does not appear in the application and it is clear that “ACT Security Network” (which does appear) is a business name under which Ms Stott was operating her business in the Australian Capital Territory.
[3] Section 18.
[4] S.37 document T2.
11. Like the previous argument, this argument has no merit and I am surprised that it was relied upon.
Is the occupation for which Ms Stott is registered in the ACT an “equivalent occupation” to that for which she sought registration in NSW?
12. The relevant Part of the Mutual Recognition Act “deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.” [5] “State” includes the Australian Capital Territory.[6]
[5] Subsection 16(2).
[6] Section 4.
13. The Commissioner argues that the provision of security services by way of the employment of others is not an “occupation” as defined in the Mutual Recognition Act. I do not accept this argument. The definition of “occupation” is very broad and includes the word “calling”. There is nothing in the definition to suggest that simply because a person runs a business which employs others to assist in the work of the business that the work being carried out is not the occupation of the owner of the business. I also find support for the interpretation I believe is correct in the fact that both the NSW Act and the ACT Act define “security activity” to include the employment or provision of people to carry on any of the other activities included in the definition of “security activity”. [7]
[7] NSW s.4, ACT s.7.
14. The second part of the Commissioner’s argument was that even if Ms Stott was involved in an occupation, the occupation in respect of which she had been granted a Master Licence under the ACT Security Act was not equivalent to that in respect of which she applied for a Master Licence under the NSW Act. I reject this argument for the reason that the definition of “security activity” is almost identical in both Acts. I am satisfied that Ms Stott was seeking the registration in NSW of the equivalent occupation (ie. a provider of security services) to that which she was already registered in the ACT.
DECISION
15. The Tribunal has jurisdiction to review the decision of the Commissioner made 16 May 2005 refusing Ms Stott’s application for a Master Licence under the Security Act 1997 (NSW).
16. The parties may seek further directions as to costs if necessary.
-END OF REASONS FOR DECISION-
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member
Signed: .............................................................................
Associate (Melanie Wade)
Date/s of Hearing 10 & 25 August 2005
Date of Decision 12 October 2005
Representative for the Applicant Daniel WillingSolicitor for the Respondent NSW Police Legal Services
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