Tan v Commissioner of Police, New South Wales Police Service

[2003] NSWADT 224

CITATION:	Tan v Commissioner of Police, New South Wales Police Service [2003] NSWADT 224
DIVISION:	General Division
PARTIES:	APPLICANT Cindy Gay Tan RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	033143
HEARING DATES:	13/08/2003
SUBMISSIONS CLOSED:	08/13/2003
DATE OF DECISION:	09/22/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Police Service Act 1990 Security Industry Act 1997 Security Industry Amendment Act 2002 Security Industry Regulation 1998
CASES CITED:	Maxwell v Murphy (1957) 96 CLR 261 Winsor v Boaden (1953) 90 CLR 345 Joliffe v The Commissioner of Police [2003] NSWADT 159 Re Costello and Secretary, Dept of Transport (1979) 2 ALD 934 Esber v Commonwealth (1992) 174 CLR 430
REPRESENTATION:	APPLICANT In person RESPONDENT M Buchanan, solicitor
ORDERS:	ORDERS MADE 13/08/2003; 1 The decision by the Commissioner to revoke Ms Tan's Class 1ABC security licence is affirmed.

1 The Applicant, Cindy Gay Tan, has applied for review of the decision dated 14 February 2003 by the Commissioner of Police, New South Wales Police Service (“the Commissioner”) to revoke her Class 1ABC security licence issued on 8 February 2001.

2 The history and facts of the matter are not in dispute. On 14 November 2001 Ms. Tan was charged with Larceny. The matter proceeded to Nowra Local Court on 14 August 2002 where Ms. Tan was found guilty and fined $250. On appeal to the District Court on 29 November 2002 the offence was found proved but dismissed under section 10 of the Crimes (Sentencing Procedures) Act 1999 without proceeding to a conviction. Ms. Tan was placed on a good behaviour bond for 12 months. It is common ground that the Commissioner’s decision to revoke her licence (“the Commissioner’s original decision”) was taken following the District Court’s finding.

3 The Commissioner’s original decision was taken on 14 February 2003. That decision was served on Ms. Tan on 7 March 2003. By letter dated 25 March 2003 solicitors acting for Ms. Tan sought a review of that decision and provided material in support of that application. The internal review was finalised on 6 May 2003 and the decision (“the internal review decision”) was taken to affirm the Commissioner’s original decision. The internal review decision was based on the view that section 26(1A) of the Security Industry Act 1997 (“the Act”) required that the Commissioner revoke Ms. Tan's licence.

4 The question for the Tribunal is whether the applicable legislation is section 26(1A) of the Act or section 26(1)(a) which was in place prior to the commencement of section 26(1A). Section 26(1A) was inserted by Schedule 1 [9] of the Security Industry Amendment Act 2002. The Date of commencement of section 26(1A) was 31 January 2003.

Relevant Legislation

5 Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:

“63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In deter mining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

6 The Commissioner’s power to revoke a licence is governed by section 26 of the Act. Prior to 31 January 2003 section 26 of the Act provided:

“26 Revocation of licence

(1) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of that class, or

(b) if the licensee:

(i) supplied information that was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(d) for any other reason prescribed by the regulations.

(2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it.

(3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.

Note. Section 31 requires the licensee to immediately surrender the licence if the licence is revoked.

(4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.

7 Under the amendments which commenced from 31 January 2003 section 26 of the Act provided:

“26 Revocation of licence

(1) A licence may be revoked:

(a) (Repealed)

(b) if the licensee:

(i) supplied information that was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(d) for any other reason prescribed by the regulations.

(1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.

(2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it.

(3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.

Note. Section 31 requires the licensee to immediately surrender the licence if the licence is revoked.

(4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.”

8 Section 26(1A) of the Act was therefore in place at the time of the Commissioner’s original decision and at the time of the internal review decision.

9 Section 16 of the Act provides:

“16 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, or

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court 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, or

(c) has, within the period of 10 years before the application for the licence was made, been removed or dismissed from the Police Service of New South Wales or from the Police Force of any other jurisdiction (whether in Australia or overseas).

(2) However, if the applicant concerned has been so removed from the Police Service of New South Wales by the Commissioner under section 181D of the Police Service Act 1990 on grounds other than the applicant’s integrity as a police officer, the removal of the applicant in those circumstances is a discretionary ground for refusing the granting of the application for a licence.

(3) The Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct.

(4) The Commissioner must refuse to grant an application for a master licence if the Commissioner is of the opinion that the applicant (or, if the applicant is a corporation, any person who is a director or who is concerned in the management of the corporation) has, within the period of 5 years before the application was made, been declared bankrupt.

A reference in subsection (1), (2) or (3) to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant.”

10 Clause 11 of the Security Industry Regulation 1998 (“the Regulation”) prescribes offences for the purposes of section 16 of the Act. Clause 11(d) of the Regulation provides:

“11. 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

An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.”

11 Ms. Tan submits that it is ultimately a question of construction as to whether section 26(1)(a) or section 26(1A) applies in the circumstances. Should section 26(1A) apply then the Commissioner must revoke Ms. Tan's licence. Should section 26(1)(a) apply then Ms. Tan may proceed to argue whether in the circumstances her licence should not be revoked. Under the former section 26, the Commissioner, and therefore the Tribunal, had power to exercise discretion on the merits.

12 Ms. Tan further submits that in this application her substantive right of holding a security licence is clearly in issue. She argues that unless the contrary intention is clearly shown, a statute shall not be construed as taking away or altering the incidents of accrued rights the title to which consists in facts or events which have occurred before its enactment: Maxwell v Murphy (1957) 96 CLR 261 at 266-268 and 285.

13 A statute which does affect such accrued rights is not to be construed as taking away or as altering the incidents of any wider category of such rights to any greater extent than the statutory language clearly requires: Winsor v Boaden (1953) 90 CLR 345 per Dixon C.J. at 347. The legislature must make it abundantly clear before an amendment applies retrospectively.

14 Ms. Tan concedes that the presumption against retrospectivity applies only to substantive rights. Where the rights are defined by reference to the past events the presumption against retrospectivity does not apply to "the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy": Maxwell v Murphy per Dixon CJ at p.267. With respect to the application of the presumption against retrospectivity Dixon CJ made a distinction between substantive rights and procedural issues. The Chief Justice stated at 268:

"The rule applicable to cases of this sort is that, when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act": Wright v. Hale (1860) 6 H & N 227, at p 232 (158 ER 94, at p. 96).

15 It is submitted on behalf of Ms. Tan that it was not the intention of parliament for section 26(1A) to apply retrospectively. Consequently the Tribunal is bound to consider the matter by applying section 26(l)(a) and use its discretion as to whether on the merits the Commissioner's decision should be set aside.

The Commissioner’s Submissions

16 The Commissioner answered Ms. Tan’s submissions as follows:

“ First submission :

The Commissioner of Police concedes that the original decision to revoke the Applicant's licence was erroneous to the extent that it was based on section 26(1A). At that stage section 26(1)(a) should have been relied on as section 26(1A) was not in force at that time. However the Commissioner of Police respectfully submits that section 26(1)(a) should not be applied now.

The Applicant requested an internal review, which was conducted on 6 May 2003. At the time of the internal review section 26(1A) was in force and was relied on by the Security Registry in affirming the decision to revoke the Applicant's licence.

The Applicant then requested an external review of the internal review and as such this matter is now before the Tribunal. The respondent submits that the purpose of the review is to review the internal review decision and not the original decision to revoke. Further it is submitted that section 26(1A) was in force at the time of the internal review and as such the Applicant's licence was revoked on a mandatory basis. The respondent submits that the Tribunal must look at the applicable law at the time of reviewing the decision, not what the applicable law was at the time the original decision was made.

Section 63 of the Administrative Decisions Tribunal Act 1997 provides that the Tribunal is to decide the correct and preferable decision having regard to the material then before it, including the following:

a) any relevant factual material

b) any applicable written or unwritten law.

Accordingly, the Tribunal must apply section 26(1A) and not section 26 (1)(a) when reviewing the decision to revoke the Applicant's licence. In the matter of Joliffe v The Commissioner of Police [2003] NSWADT 159 the Tribunal looked briefly at the application of section 26. The matter involved the decision to revoke a licence based on section 26 (1)(a). By the time the matter reached the Internal review stage the Security Industry Act 1997 had been amended to repeal section 26(1)(a) and section 26(1A) was in force. The Tribunal (at 35) said the following:
' ...I note that it appears that the original decision by the Commissioner's delegate was made prior to the amendments to section 26 of the Security Industry Act while the internal review was undertaken after the amendments. For that reason, no decision on the internal review could have been taken under section 26(1)(a) of the Security Industry Act. If the Commissioners delegate purported to exercise a discretion under section 26(1)(a) then that was incorrect. The correct and preferable decision must be one under section 26(1A) of the Security Industry Act".
The respondent therefore submits that section 26(1A) applies in this matter.

Second submission:

In looking at whether section 26(1A) applies retrospectively the Applicant refers to the following rules of construction:

1. Unless the contrary intention is clearly shown, a statute shall not be construed as taking away or altering the incidents of accrued rights the title to which consists in facts or events which have occurred before its enactment - Maxwell v Murphy (1957) 96 CLR 261 at 266-268 and 285.

2. A statute which, if it does take affect such accrued rights shall not be construed as taking away any wider category of such rights or as altering the incidents thereof to any greater extent the statutory language clearly requires.

Firstly the respondent submits that the above rules of construction involve "rights". Section 21(2) of the Security Industry Act 1997 provides that a licence confers no right of property and is incapable of being transferred, assigned or mortgaged, charged or otherwise encumbered. The Security Industry Act does not confer a right on an individual to obtain a licence. Section 14 of the Act provides that a person may apply to the Commissioner for the grant of a licence. The Act states a number of mandatory and discretionary reasons for which the Commissioner must or may refuse a licence. No section of the Act provides a person with a "right" to obtain a licence. In other words there is no section which states the Commissioner must provide a licence to an applicant if they satisfy the certain criteria. There is no right as such.

Secondly, the applicant submits that it was not the intention of parliament for section 26(1A) to apply retrospectively. The respondent disagrees. The long title to the Security Amendment Bill 2002 states " An Act to amend the Security Industry Act to make further provision for the licensing and regulation of persons in the security industry...". I would submit that the use of the word "further" clearly shows that the amendments to the legislation are to be used in addition to the provisions already in place.

The applicant submits that The Second Reading Speech does not evince such an intention, however I would submit that the words used clearly indicate that the Act is to apply retrospectively. I refer your attention to the heading Mandatory Revocation of Licence for all reasons a licence must be refused. The speech indicates that section 16 provides that the Commissioner must refuse a licence in certain circumstances but notes that there is no similar requirement in relation to the revocation of existing licences. This is described as inequitable and anti competitive for persons seeking to enter the security, and is unfair on the licence holder who, at the time of re-application following expiry of the licence term, must be refused a new licence under the provisions of section 16. It is noted that this represented a risk to public safety. Parliament then indicated their clear intention to amend section 26 to render it consistent with section 16 and make it mandatory that the Commissioner revoke a licence for any reason for which a person would be refused a licence.

It would be a nonsense to say that a person could obtain a security licence and then commit an offence which would disqualify them from obtaining a licence if they were applying for one and allow them to keep that licence until it expired. The respondent would submit that that is exactly the reason why a discretion always existed for the Commissioner to revoke a licence. The legislation changed to a mandatory revocation and the reasons behind this are clearly stated in the Second Reading Speech. This clearly shows an intention that the amendment applies to people such as the applicant who already held a licence. It would not make sense otherwise.

The respondent submits that section 26(1A) applies retrospectively.

Section 26(1) provides that The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.

The Applicant was found guilty but not convicted of a prescribed offence in the last 5 years and therefore her licence would be required to be refused if she applied for a licence. Accordingly, the respondent submits that the Commissioner of Police made the correct and preferable decision in revoking the Applicant's licence.”

17 Ms. Tan has submitted, and the Commissioner has conceded, that section 26(1A) of the Act came into force on 28 February 2003. This does not appear to be correct. As I have noted above, section 26(1A) was inserted by Schedule 1 [9] of the Security Industry Amendment Act 2002. The Date of commencement of section 26(1A) was 31 January 2003. The Commissioner’s original decision was taken on 14 February 2003 i.e. after the commencement of section 26(1A).

18 The issue must therefore be limited to whether it was intended that section 26(1A) apply to existing licensees. In my view, arguments presented with respect to retrospectivity of the amendments can only relate to that issue. Some indication of Parliament’s intention can be gleaned from the Second Reading Speech of Mr Gaudry, on behalf of Mr Iemma, on the introduction of the Security Industry Amendment Bill into the NSW Legislative Assembly on 12 November 2002. In relation to section 26(1A) Mr Gaudry stated:

“Mandatory Revocation of Licence For All Reasons A Licence Must Be Refused

Currently, section 16 of the Security Industry Act provides that the Commissioner must refuse to grant an application for a licence if he is satisfied that the applicant, has been convicted in the preceding 10 years or been found guilty (but with no conviction being recorded) in the previous 5 years, of a prescribed offence, or has been removed or dismissed from a Police Force in the preceding 10 years.

The disqualifying offences are prescribed in the Regulation in clause 11 and include:

(a) Offences relating to firearms or weapons

(b) Offences relating to prohibited drugs

(c) Offences involving assault

(d) Offences involving fraud, dishonesty or stealing

(e) Offences involving robbery

(f) Offences involving industrial relations matters - In the case of an application for a master licence only

Under section 16(3-4), the Commissioner must also refuse to grant an application for a licence if:
he is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct; or

he is of the opinion that a master licence applicant (or, if the applicant is a corporation, any person who is a director or who is concerned in the management of the corporation) has, within the period of 5 years before the application was made, been declared bankrupt.

However, despite the Commissioner being required by the legislation to refuse all applications for a security licence which meet these disqualifying provisions, there is no similar requirement in relation to revocation of existing licences.

Section 26 (1)(a) of the Act currently states that a licence may be revoked under these same conditions. This means that the decision is at the discretion of the Commissioner, and is open to being overturned on appeal.

It is necessary that section 26 is amended to render it consistent with section 16 and to make it mandatory that the Commissioner revoke a licence for any reason for which a person would be refused a licence of that class.

The current situation not only represents a risk to public safety, it is inequitable and anti-competitive for persons seeking to enter the security, and is unfair on the licence holder who, at the time of re-application following expiry of the licence term, must be refused a new licence under the provisions of section 16.

It is therefore proposed to amend section 26(1)(a) of the Act to provide that the Commissioner must revoke the licence under the conditions.”

19 It is apparent from this statement that it was intended that the amendments should apply to existing licensees. If that were not the case, the words “it is inequitable and anti-competitive for persons seeking to enter the security” would be meaningless.

20 In the ordinary course of events, the Commissioner’s delegate is bound to have regard to the state of the law applicable at the time the delegate comes to make his or her decision. If the law had changed since the date when the decision under review was made, it is the new law that has to be applied. However, this approach is only applicable where a decision does not involve a consideration of accrued rights or liabilities but is concerned with present entitlements. If the Commissioner’s delegate is concerned with rights or liabilities that are defined by reference to an earlier date, it is the law in force at that date that has to be considered, unless the subsequent amending legislation is expressed to have retrospective effect: Re Costello and Secretary, Dept of Transport (1979) 2 ALD 934 at 939–45.

21 In Esber v Commonwealth (1992) 174 CLR 430 Brennan J. endorsed the views expressed in Re Costello. He stated:

“Where the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time … By contrast, in a judicial proceeding brought to enforce an alleged right accrued at the time when the proceedings were instituted, the question for decision is determined according to the law existing when the proceedings were instituted unless statute otherwise provides.”

22 I agree with the Commissioner’s submission that the Act does not confer a right on an individual to obtain a licence. Section 21(2) of the Act provides that a licence confers no right of property and is incapable of being transferred, assigned or mortgaged, charged or otherwise encumbered. In my view, the Act does not confer any “substantive right of holding a security licence” as Ms. Tan asserts. At its highest, the Act provided Ms. Tan with a right to have her particular circumstances considered by the Commissioner and to have the Commissioner exercise some discretion. In my view, this is not a substantive right of the kind referred to by the Chief Justice in Maxwell v Murphy.

23 It is apparent from the information before the Tribunal that Ms. Tan’s solicitor made submissions to the Commissioner in relation to the internal review and that these submissions were taken into account. The Commissioner’s delegate then made a “fresh determination”. The Commissioner’s delegate who undertook the internal review was not considering an application to enforce an alleged accrued right. In my view, Ms. Tan had no accrued substantive rights that she could seek to have enforced or which would require that the Commissioner act under section 26(1)(a). Therefore the Commissioner could not act under section 26(1)(a) in circumstances where that provision had been repealed.

24 In my view, the Commissioner’s delegate was obliged to apply section 26(1A) of the Act when making the fresh determination. Accordingly, the Commissioner was obligated to revoke Ms. Tan’s licence. The Commissioner’s decision to do so is therefore the correct and preferable decision and should be affirmed.

Orders

1. The decision by the Commissioner to revoke Ms. Tan’s Class IABC security licence is affirmed.