Weiss Corp Pty Ltd v Deparment of Justice and Attorney
[2011] QCAT 492
•18 October 2011
| CITATION: | Weiss Corp Pty Ltd v Department of Justice and Attorney General Licensing Unit [2011] QCAT 492 |
| PARTIES: | Weiss Corp Pty Ltd |
| v | |
| Department of Justice and Attorney General Licensing Unit |
| APPLICATION NUMBER: | GAR265 -11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 18 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application to stay the Department’s decision of 1 September 2011 is dismissed. 2. Application for extension of time is dismissed. |
| CATCHWORDS: | SECURITY PROVIDER – where security firm refused to become a member of security industry association – where licence cancelled – where application for review of decision to cancel licence – where application to stay decision to cancel licence – where application to extend time Queensland Civil and Administrative Tribunal Act 2009, ss 20, 22 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
On 24 February 2011, amendments to the Security Providers Act 1993 made it mandatory for security providers to be current members of an approved security industry association[1]. All licensed security firms were required to be a member of an approved association within 60 days of the commencement date.
[1] Section 13(3)(c) Security Providers Act 1993.
Despite a number of notices and letters, Weiss Corp Pty Ltd decided that it would not become a member of an approved association. After a number of warning letters, the Department cancelled its licence on 1 September 2011.
Weiss Corp Pty Ltd has applied to the tribunal for a review of the Department’s decision on the grounds that:
a)There is no reasonable explanation as to why Weiss Corp Pty Ltd needs to be a member of an approved industry association.
b)There was no consultation with all Queensland security firms before this amendment.
c)Weiss Corp Pty Ltd’s sole involvement in the security industry is the installation of security alarms which are then monitored by a third party.
d)The “decision” is unjust and does not fit the penalty for the crime of not being a member of an approved association.
e)The action is contrary to the Imperial Acts Application Act 1969 and s 109 of the Commonwealth of Australia Constitution Act 1900.
Weiss Corp Pty Ltd has applied for a stay of the Department’s decision on the same grounds. It has also filed an application to extend time. The relief sought in that application is to “suspend the cancellation notice…to allow sufficient time to review the decision.”
I am required to determine the application for a stay and the application to extend time on the basis of material filed in compliance with the tribunal’s order dated 4 October 2011. The application for review was filed within time so it is not clear what time limit Weiss Corp Pty Ltd wants the tribunal to extend. I interpret both applications as having the same purpose; that Weiss Corp Pty Ltd wants the cancellation of its licence stayed pending a final decision of the tribunal.
The tribunal may stay the operation of a reviewable decision if it is desirable, having regard to: the interests of any person whose interest may be affected by the making of the order[2]; any submission by the decision-maker[3]; and the public interest[4].
[2] Section 22(4)(a) Queensland Civil and Administrative Tribunal Act 2009.
[3] Section 22(4)(b) QCAT Act.
[4] Section 22(4)(c) QCAT Act.
If the tribunal does not grant the stay, then Weiss Corp Pty Ltd will not be able to operate within the security industry. It appears that the financial impact of the cancelled licence will be negligible, as Mr Weiss, director of Weiss Corp Pty Ltd, has advised the tribunal that:
a)The revenue from this aspect of the company’s business is less that 0.5% of its total revenue.
b)Weiss Corp Pty Ltd has only seven clients that will be affected by the cancellation of its licence.
The Department opposes the stay. It takes the view that Weiss Corp Pty Ltd has refused to comply with the requirements of the Security Providers Act 1993 despite a number of warnings and that the Department has sufficient grounds to cancel the licence.
Weiss Corp Pty Ltd argues that the public interest is not affected by the grant of a stay. The Department submits that the requirement for membership of an association was introduced to improve the integrity of the private security industry, including the payment of correct wages. An industry that has minimum standards of behaviour, a Code of Conduct and regular reporting requirements is in the public interest. It is not in the public interest to allow security providers to ignore the requirement without good reason. The philosophical objection by Weiss Corp Pty Ltd is not a good reason for allowing it to ignore the provisions of the Security Providers Act 1993.
[10] The tribunal may also consider whether the applicant for a stay has an arguable case. Weiss Corp Pty Ltd has raised a number of constitutional issues but it is not clear to me how these arguments provide a basis for an exemption from the operation of the Act. The tribunal’s power on review is to stand in the shoes of the Department and make the correct and preferable decision[5]. The tribunal does not have the power to decide whether a particular law is valid, nor does it have the power to question the policy behind a change in legislation. As presently framed, that is what Weiss Corp Pty Ltd appears to be asking from the tribunal. I therefore consider Weiss Corp Pty Ltd’s has little prospect of a successful challenge to the Department’s decision.
[5] Section 20 QCAT Act.
[11] The application to stay the Department’s decision should be dismissed. Weiss Corp Pty Ltd’s interests are not adversely affected in any significant way; the Department opposes the stay; and the public interest does not support the grant of a stay.
[12] The application to extend time is misconceived as Weiss Corp Pty Ltd has complied with all relevant time limits and procedural requirements.
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