Tran and Commissioner of Police (NSW)
[2016] AATA 774
•30 September 2016
Tran and Commissioner of Police (NSW) [2016] AATA 774 (30 September 2016)
Division
GENERAL DIVISION
File Number
2015/4960
Re
Hoan Tran
APPLICANT
And
Commissioner of Police (NSW)
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Professor McGrowdie, Senior Member
Dr L Bygrave, MemberDate 30 September 2016 Place Sydney The decision under review, being the decision of a delegate of the Commissioner of Police for New South Wales dated 27 August 2015 refusing Mr Tran’s application for a licence under the Security Industry Act 1997 (NSW), is affirmed.
................[sgd]........................................................
J W Constance
Deputy PresidentCATCHWORDS
PROFESSIONS AND TRADES - licensing - mutual recognition - registration of security licence - whether revocation of a previous licence was a cancellation as a result of disciplinary action - where materially false or misleading information given - decision affirmed.
LEGISLATION
Mutual Recognition Act 1992 (Cth) ss 19, 20, 23
Security Industry Act 1997 (NSW)
CASES
Dib and Commissioner of Police for NSW [2010] AATA 852
Kabir and Commission of Police for NSW [2010] AATA 853
Re Petroulias [2005] 1 Qd R 643
REASONS FOR DECISION
Deputy President J W Constance
Professor McGrowdie, Senior Member
Dr L Bygrave, Member30 September 2016
INTRODUCTION
Mr Tran has applied to the Tribunal for a review of a decision by the Commissioner to refuse his application for a NSW security licence (Class 1A and 1C) under the Mutual Recognition Act 1992 (Cth) on the ground that his licence had previously been revoked in New South Wales.
BACKGROUND
Mr Tran lodged an application for a NSW Class 1A, 1C, 1G and 2B security licence pursuant to the Security Industry Act 1997 (NSW) on 28 March 2012 and was issued with a provisional Class 1A, 1C, 1G and 2B security licence expiring on 15 June 2013.
On 1 November 2012, the provisional licensing scheme in the Security Industry Act was amended to provide that provisional licences that were current on 1 November 2012 were automatically converted to the equivalent subclass of a full licence. Further, provisional Class 1G licences were taken to be, and to have the authority conferred by, a Class 1A licence (see clause 28(1)(g) of Schedule 1 to the Security Industry Act as at 1 November 2012). As a consequence of these changes, Mr Tran was required to complete all the units of competency for a full licence by 1 December 2013.
The Security Licensing and Enforcement Directorate of the New South Wales Police Force wrote to Mr Tran in October 2013 notifying him of these changes to the conditions placed on his security licence.
The Directorate wrote to Mr Tran on 4 November 2013 and 6 March 2014 stating the requirement that he “attain all the units of competency required for [his] licence… with an organisation approved by the Commissioner of Police under section 15 of the Act”. Each of these letters contained the following paragraph:
If you do not submit a copy of your qualification (and the separate document issued by the Approved Organisation listing all the units of competency achieved) or the Statement of Attainment issued by the Approved Organisation recording all the units of competency required for your licence subclass/es to the SLED before 1 July 2014, your licence will be revoked. [Emphasis in original].[1]
[1] Exhibit R1, p. 27-29.
On 30 July 2014, the Directorate wrote to Mr Tran notifying him that “to date, the SLED has not received satisfactory evidence of your attainment of the … units of competency” and stating that the revocation of his licence would become effective on 1 October 2014.
Mr Tran did not complete the required units of competency and his NSW licence was revoked on 1 October 2014.
On 16 June 2015, Mr Tran applied for and was granted a Class 1 security licence in Queensland. This licence expired on 16 June 2016.
On 1 July 2015, Mr Tran applied for a NSW security licence (Class 1A and 1C) under the Mutual Recognition Act. He relied on his Queensland licence as the basis for this application.
On 27 August 2015, the Commissioner notified Mr Tran of his decision to refuse the mutual recognition application on the grounds that “a previous security licence held by [him] in NSW has been revoked” and that he had made statements in his application that were “false or misleading”.
LEGISLATION
Subsection 19(1) of the Mutual Recognition Act provides that:
A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
Section 19(2) sets out the statements/information that “must” be contained in the notice. It provides in part:
The notice must:
……
(d) state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and
(e) state that the person’s registration in any State is not cancelled or currently suspended as result of disciplinary action; and
(f) state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State ……
Subsection 19(5) provides:
The statements and other information in the notice must be verified by statutory declaration.
Subsection 20(1) provides:
A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
Subsection 23(1) states that a local registration authority may refuse a grant of registration if, amongst other grounds:
(a)any of the statements of information in the notice as required by section 19 are materially false or misleading …. .
ISSUES FOR DETERMINATION
The issue before the Tribunal is whether or not Mr Tran is entitled to registration as the holder of a class 1 security licence in New South Wales by virtue of his registration as such in Queensland.
This requires a decision whether or not Mr Tran can comply with the notice requirements set out in paragraph 19(2)(e) of the Mutual Recognition Act, which in turn requires a decision whether or not the revocation of Mr Tran’s New South Wales licence on 1 October 2014 was a cancellation “as a result of disciplinary action”.
EVIDENCE OF MR TRAN
Mr Tran recalled receiving and reading copies of the letters from the NSW Police Force dated October 2013, 4 November 2013, 6 March 2014 and 30 July 2014. Mr Tran stated that, while he had enrolled in a required course sometime after July 2014, he had not completed the relevant units of competency and that his NSW security licence had been revoked as at 1 October 2014.
In his mutual recognition application lodged in New South Wales on 1 July 2015, Mr Tran completed Section 2 which required him to answer “true” or “false” to five statements. Mr Tran agreed that at Section 2.4 he ticked “true” to the statement “No licences I hold or have previously held in any State have been cancelled or are currently suspended as a result of disciplinary action (See Section 6 Notes)”. This statement is explained at Section 6.2 of the application as follows:
Revoked licences – training upgrade
A NSW security licence that was revoked because the licence holder failed to comply with the requirement to complete a required training upgrade is a licence that was “cancelled or suspended as a result of disciplinary action” (See Section 2.4).
If you have had a NSW licence revoked for failing to complete the training upgrade, you are not eligible to be granted a security licence in NSW under mutual recognition principles. Any application received from a person who has had a licence revoked on these grounds will be rejected. [Emphasis added].
In his Application for Review, Mr Tran noted that he understood the term “disciplinary action” in section 2.4 to mean “criminal disciplinary action”. He therefore ticked the “true” box in his mutual recognition application. In evidence, Mr Tran acknowledged that he had signed the mutual recognition application without properly reading and understanding the statement at Section 6.2. It is the Tribunal’s view that Mr Tran did not seek to deliberately mislead or falsely answer the statement at section 2.4 of his application.
THE COMMISSIONER’S ARGUMENT
The Commissioner contends that Mr Tran did not and could not meet the requirements of section 19(2)(e) of the Mutual Recognition Act. Mr Tran could not state that his “registration in any State is not cancelled or suspended as a result of disciplinary action” as his security licence in New South Wales had been revoked because of his failure to complete the required units of competency. It is put that revocation in these circumstances was cancellation “as a result of disciplinary action”.
DISCUSSION
The issues before us have been dealt with previously by the Tribunal in Dib and Commissioner of Police for NSW [2010] AATA 852.
Mr Dib held a security licence under the New South Wales Security Industry Act. It was a requirement of his licence that he upgrade his training in specified areas. This he failed to do in the time allowed. As a result his licence was revoked. Subsequently, Mr Dib applied for and was granted a security licence under the Queensland legislation. He then lodged an application for a licence in New South Wales based on his Queensland licence. In the notice accompanying his application form he stated that his registration had not been cancelled in any State.
In its decision in relation to Mr Dib’s application the Tribunal said:
20. …… the issue for the Tribunal is whether the revocation of Mr Dib’s NSW licence constitutes a ’cancellation as a result of disciplinary action’. ……
21. The Queensland Court of Appeal decision in Re Petroulias [[2005] 1 Qd R 643] …… while not binding on the Tribunal, in my view correctly sets out the way in which ss 19 and 20 operate. The written notice that the applicant for registration in the second State is required to lodge under s 19 “must” satisfy the requirements of s 19 (2). The requirement for the notice to include the specified statements and information is mandatory. That this is so is reinforced by the requirement in s 19(5) for the applicant to verify the statements and other information by statutory declaration. As de Jersey CJ said in Re Petroulias at [19], if the notice does not accord with s 19(2), the entitlement to registration under s 20 is not enlivened.
……
24. In my view, the ordinary meaning of the word ‘cancelled’ in s 19(2)(e) of the MR Act should be interpreted according to the ordinary meaning of ‘cancel’, meaning to “make void” or “annul”. While the ordinary meaning of the word ‘revoked’ in s 26(1) of the SI Act is subtly broader in that the word ‘revoke’ can mean to withdraw or take back, to revoke also encompasses to make void or annul. In the context of disciplinary action, as in s19(2)(e) of the MR Act, I am satisfied that the meanings of the words ‘cancel and ‘revoke’ are synonymous. ……‘’
25. With regard to the meaning of the words ’disciplinary action’, I also note that in s19(2) the legislative drafting employs the words ‘disciplinary proceedings’ in sub paragraphs (d) and (f) and ‘disciplinary action’ in subparagraph (e), indicating that a distinction is intended by the different word choice. I agree with the Commissioner that the words ‘disciplinary proceedings’ contemplate a process with a view to determining whether a person should be disciplined for his or her conduct. By contrast, the words ‘disciplinary action’ contemplate the action that is taken against a person for the purpose of promoting discipline. I am satisfied that the meaning of the word ‘disciplinary’ in this context includes the revocation of a licence for failure to meet occupational standards, specifically, in this case, failure to undertake additional training required for that occupation with a view to raising standards of conduct.
The Tribunal reached the same conclusion in the matter of Kabir and Commission of Police for NSW [2010] AATA 853.
In Re Petroulias the Supreme Court of Queensland Court of Appeal held that a Victorian solicitor, against whom a number of criminal charges were pending, could not complete the necessary notice and therefore could not crystallise his entitlement to registration in Queensland under the Mutual Recognition Act.
We agree with the reasoning in Dib and Commissioner of Police for NSW set out above and respectfully adopt it.
Mr Tran had his New South Wales security licence revoked on 1 October 2014 by reason of his failure to complete the required units of competency. This was a cancellation “as a result of disciplinary action”. Consequently, Mr Tran cannot make the statement required by section 19(2)(e) of the Mutual Recognition Act and he is unable to give the written notice required by section 19. He is not entitled to registration under section 20 of the Mutual Recognition Act.
While it is not possible for Mr Tran to be granted a security licence in New South Wales under mutual recognition principles, the Tribunal notes that Mr Tran is not prevented from applying for a security licence in this State de novo if he so wishes.
DECISION
The decision under review, being the decision of a delegate of the Commissioner of Police for New South Wales dated 27 August 2015 refusing Mr Tran’s application for a licence under the Security Industry Act 1997 (NSW), will be affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance; Professor McGrowdie, Senior Member and Dr L Bygrave, Member. ....................[sgd]....................................................
Associate
Dated 30 September 2016
Date of hearing 6 June 2016 Date final submissions received 6 June 2016 Applicant In person Counsel for the Respondent Mr H El-Hage Solicitors for the Respondent New South Wales Crown Solicitors
2
2
0