Wieckowski v Commissioner for Fair Trading and Commissioner of Police, NSW Police Force

[2016] NSWCATAD 254

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Wieckowski v Commissioner for Fair Trading and Commissioner of Police, NSW Police Force [2016] NSWCATAD 254
Hearing dates:	11 October 2016
Date of orders:	08 November 2016
Decision date:	08 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	The Applicant’s request for an order staying or otherwise affecting the operation of the decision of the Commissioner for Fair Trading to refuse his application for a tattoo operator’s licence is refused.
Catchwords:	STAY ORDERS – where administrator refused application for licence – meaning of words “staying or otherwise affecting the operation of the decision” – whether power in s 60(2) of the Administrative Decisions Review Act 1997 is positive or merely negative
Legislation Cited:	Administrative Appeals Tribunal Act 1975 (Cth), s 41(2) Administrative Decisions Review Act 1997 (NSW), s 60 Tattoo Parlours Act 2012 Tattoo Parlours Regulation 2013, cl 29
Cases Cited:	AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302 Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232 Leslie William Alexander and Migration Agents Registration Board [1995] AATA 261 Re Nelson and Tax Agents’ Board (Qld) (1993) 30 ALD 317 Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326
Texts Cited:	DC Pearce, Australian Administrative Law, LexisNexis
Category:	Procedural and other rulings
Parties:	David Wieckowski (Applicant) Commissioner for Fair Trading (1st Respondent) Commissioner of Police, NSW Police Force (2nd Respondent)
Representation:	Solicitors: Applicant (self-represented) Crown Solicitor’s Office (1st and 2nd Respondents)
File Number(s):	1610623
Publication restriction:	Nil

reasons for decision

Overview

1. The Commissioner for Fair Trading has refused Mr Wieckowski’s application for a tattoo operator’s licence. He has applied to the Tribunal for a review of that decision but wishes to start work in the meantime. Mr Wieckowski has applied for an order staying or “otherwise affecting the operation” of the decision: Administrative Decisions Review Act1997 (NSW), s 60.

2. There is no evidence as to whether Mr Wieckowski was operating a tattoo parlour before his application was refused, but it makes no difference. Before 1 October 2013 a person did not need a licence to operate a tattoo parlour. From 1 February 2013 a person could apply for a licence under the Tattoo Parlours Act 2012 (NSW). Transitional provisions allowed people who had operated a tattooing business before 1 October 2013, and who lodged an application for an operator’s licence before that date, to continue to operate the business while their application was being determined: Tattoo Parlours Regulation 2013, cl 29(2)(b)(ii). Those transitional provisions do not apply to Mr Wieckowski because he did not apply until 26 February 2016.

3. The question is whether the Tribunal has power to make an order which would have the effect of granting Mr Wieckowski an operator licence pending the determination of his application for review of the Commissioner’s decision. I have decided that the Tribunal does not have that power.

Consideration

4. Section 60 of the Administrative Decisions Review Act gives the Tribunal power to make an order “staying or otherwise affecting the operation” of a decision that is the subject of an administrative review application. Section 60 relevantly provides that:

“(1)     Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2)     On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3)     The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a)  the interests of any persons who may be affected by the determination of the application, and

(b)  any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c)  the public interest.”

5. The first limb of s 60(2) allows the Tribunal to “stay” a decision. The Tribunal cannot stay the decision to refuse Mr Wieckowski’s application because a stay is an order which prevents the coming into force of an order or decision which is yet to come into effect: AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302, 307 [16], 309 [26] (Basten JA), 321 [95]-[96] (Campbell JA).

6. Under the second limb of s 60(2), the Tribunal has power to make an order “otherwise affecting the operation of the decision under review”. For example, if an administrator revoked a licence, the second limb of s 60 “is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence” AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302 at [96] per Campbell. But this is not a case of revocation.

7. Section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) contains similar wording to s 60(2) of the Administrative Decisions Review Act:

The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review. (Emphasis added.)

8. In Leslie William Alexander and Migration Agents Registration Board [1995] AATA 261 (8 September 1995) the applicant applied for registration as a migration agent after the legislation requiring registration came into effect in 1992. Deputy President of the Administrative Appeals Tribunal (AAT) BJ McMahon held at [21] and [22] that:

21. The power is given to enable the Tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing. Here there is no such continuum.

22. Prior to the operative decision, the applicant was not registered under Part 3. After the operative decision, he continued to be unregistered under Part 3. What the applicant really seeks is to have this Tribunal substitute, as a temporary decision, an order granting him registration under Part 3 without investigation of the merits. In my view this Tribunal has no such power.

9. This decision, which is factually similar to the present case, remains the law at the federal level. In my view it involves a correct interpretation and application of the law.

10. The decision has been distinguished on its facts in cases where a deemed approval came into effect after an approval had expired: Re Nelson and Tax Agents’ Board (Qld) (1993) 30 ALD 317; Shi v Migration Institute of Australia Ltd (2003) 134 FCR 326. The Federal Court has also held that the AAT has power to, in effect, order that a person can continue to engage in the relevant activity when the licence, approval or certificate had expired: Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232. Commentators have expressed the view that these and other authorities demonstrate that before an order having a positive effect can be made, it must be clear that the original decision-maker could have continued the licence beyond the expiry date: DC Pearce, Australian Administrative Law, LexisNexis [258.1.3].

11. The Commissioner of Fair Trading submitted that on the proper construction of the s 60(2) the Tribunal only has power to restore the legal status quo prior to the decision being made. That proposition does not accord with the authorities we have cited at the federal level. The status quo prior to the decision being made may be that the licence has expired. But I do agree that because Mr Wieckowski has never had a tattoo operator’s licence and the transitional provisions did not apply to him, the Tribunal has no power to make an order which would have the effect of granting him a temporary operator licence.

Order

12. The Applicant’s request for an order staying or otherwise affecting the operation of the decision of the Commissioner for Fair Trading to refuse his application for a tattoo operator’s licence is refused.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 08 November 2016