Security agents ­ Revocation of licence ­ Application for review of revocation decision ­ Lengthy delay until review proceedings dealt with ­ Licences would have expired by effluxion of time ­ Declaration sought that decision should not have been made ­ Whether proceedings serve any practical or legal purpose ­ Whether proceedings lacking in substance

Security and Related Activities (Control) Act 1996 (WA), s 49, s 49(3), s 55, s 60, s 67

State Administrative Tribunal Act 2004 (WA), s 27(2), s 29, s 29(1), s 29(5), s 27(2), s 47, s 47(1), s 47(1)(a), s 91, s 167

1 In July 2003 a number of licences held by Mr Dunbar under the Security and Related Activities (Control) Act 1996 (WA) were revoked. The grounds for revocation were that Mr Dunbar was facing two separate charges of assault occasioning bodily harm in the District Court, and had an earlier criminal record. In 2003, Mr Dunbar appealed against the revocation to the Court of Petty Sessions, but that appeal was not finally determined until December 2005, by which time Mr Dunbar had been convicted in the District Court of one of the charges against him, and acquitted of the other.

2 His appeal against the revocation was dismissed by a magistrate. That decision was overturned by the Supreme Court on the basis that the magistrate lacked jurisdiction to deal with the matter, because the matter should have been transferred to the State Administrative Tribunal when the Tribunal was created and given power to deal with reviews under the Security and Related Activities (Control) Act 1996. Accordingly, in August 2006, the matter was brought before the Tribunal. However, in May 2006, the licences would have expired, having been last renewed in May 2003 for a three year period. Mr Dunbar had not applied for renewal and does not propose to do so. He wanted the matter dealt with nevertheless, because he wished to clear his name.

3 The Commissioner of Police submitted that the Tribunal should dismiss the application because the licences had expired so that there was no practical point to the matter proceeding. The Tribunal reviewed its powers in relation to the licences and concluded that the proceedings would achieve no practical ends and any declaration it might make would have no consequences or practical effect. Accordingly it concluded that the proceedings lacked substance and should be dismissed.

4 On 7 August 2006, Michael Raymond Dunbar applied to the Tribunal for a review of a decision of Mr ME Clarkson, a licensing officer, made on 8 July 2003 to revoke licences held by Mr Dunbar under the Security and Related Activities (Control) Act 1996 (WA) (SRA Act). Mr Dunbar held a crowd control agent licence 00497, security agent licence 00497, crowd control officer licence 00497 and security officer licence 00497.

5 The decision by the licensing officer to revoke the applicant's licences was based on the fact that two charges of assault occasioning bodily harm had been laid against him, and based on his previous criminal record.

6 The lengthy delay between the decision to revoke the licences, and the institution of an application for review in this Tribunal, is explained by the long history of earlier proceedings for review of the decision, and in relation to the charges faced by Mr Dunbar at the time the licences were revoked.

7 The applicant initially appealed to the Perth Court of Petty Sessions against the licensing officer's decision in July 2003. He also applied to the Perth Court of Petty Sessions for a stay of the decision to revoke the licences until his two outstanding charge of assault occasioning bodily harm were heard in the District Court. The stay application was heard by a magistrate on 31 July 2003, but was refused.

8 On 5 November 2004, Mr Dunbar was convicted by a jury of the offence of the assault occasioning bodily harm and was fined $2000. On 10 February 2005, he was acquitted of the other charge of assault occasioning bodily harm.

9 The appeal to the Court of Petty Sessions was heard before His Honour Mr Nicholls SM on 25 July 2005. The decision was reserved. Subsequently, Mr Nicholls SM became ill, and with the consent of the parties, the Chief Magistrate ordered that the matter would be considered by another magistrate on the basis of the transcript of the original hearing on 25 July 2005 and agreed documents. On 16 December 2005, Her Honour Ms Lane SM dismissed the appeal, affirming the licensing officer's decision to revoke the applicant's licences.

10 By originating motion dated 24 March 2006 to the Supreme Court, the applicant sought to set aside the decision of Ms Lane SM. That application was successful on the basis that the magistrate lacked jurisdiction to hear and determine the appeal because the jurisdiction had been transferred to the State Administrative Tribunal by reason of the operation of s 167 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

11 On 5 August 2006, the applicant applied to the Tribunal for a review of the licensing officer's decision to revoke his licences. The respondent contends, however, because the licences expired by the effluxion of time on 19 May 2006, and no application for renewal of them was made prior to that date, an order setting aside the decision to revoke the licences would have no practical effect. On that basis, the respondent contends that the proceedings should be struck out as lacking in substance pursuant to s 47(1)(a) of the SAT Act.

12 The applicant has not applied for renewal of his licence, and the Tribunal was advised that he has no immediate intention of seeking to regain employment in the security industry. He is, however, concerned that the licensing officer's conclusion, namely that the safety and welfare of members of the public is or may be at risk from the continuance in force of Mr Dunbar's licences, remains a matter of record. He expresses concern that, were he to make application again for a licence, the earlier decision by the licensing officer would be relied upon by the Commissioner, with the likelihood that a licence would be refused.

13 In light of the respondent's contention that the application is now lacking in substance, Mr Dunbar amended his application to claim, as an alternative to an order setting aside the earlier decision, a declaration pursuant to s 91 of the SAT Act that the licensing officer ought not to have made the decision to revoke the applicant's licences on the information before him.

14 The parties have agreed that the question of whether or not the proceedings should be dismissed under s 47 of the SAT Act on the basis that they are lacking in substance, should be determined as a preliminary issue. It is to that issue that these reasons are directed.

15 Section 60 of the SRA Act provides that a licence shall be issued or renewed for a period of three years. The applicant's licences were first issued on 19 May 1997, and were subsequently renewed, most recently on 19 May 2003. Accordingly the three year period provided for under s 60 expired on 19 May 2006.

16 Under s 67 of the SRA Act, as it stood in 2003, a licensing officer was empowered to revoke licences by notice "if in the opinion of the licensing officer the safety or welfare of members of the public is or may be at risk from the continuance in force of a licence".

17 Section 55 of the SRA Act provides that "a licensing officer is not to renew a licence if in his or her opinion there are sufficient grounds to make an allegation under s 67(1) or for the exercise of the power to revoke the licence under s 67(3) or s 81(1)".

18 Section 49 of the SRA Act describes how and when to apply for renewal of a licence. It requires that an application for renewal be made in an approved form, lodged in a prescribed manner and accompanied by a prescribed fee. An application for a renewal of a licence is to be made no later than 28 days before the day on which the licence is due to expire (s 49(3)).

19 This application falls within the Tribunal's review jurisdiction. The purpose of a review by the Tribunal is to produce the correct and preferable decision at the time of the decision upon the review (SAT Act s 27(2)). When dealing with a matter in the exercise of its review jurisdiction, the Tribunal has "functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision". As I observed in Dulzurah Pty Ltd and Fisheries Department of Western Australia [2005] WASAT 144 at [29], nothing in s 29, or any other provision of the SAT Act, places the Tribunal in the shoes of the decision-maker for any purpose other than dealing with the decision under review. It is not open to the Tribunal to exercise some other discretion vested in the decision-maker where a decision in the exercise of that discretion is not the subject of the review. That is clearly so where there are pre-conditions to the exercise of the other discretion such as the requirements for renewal prescribed by s 49 of the SRA Act - see Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513 at [45] - [55].

20 It is not open in these proceedings, for the Tribunal to issue a new licence to Mr Dunbar, nor to renew the expired licences.

21 This case can be distinguished from the facts in Cuddles Group Pty Ltd and Director General, Department for Community Development [2006] WASAT 114 where the Tribunal extended the operation of a licence until determination of the application for review, despite the fact that the licence had expired. The distinction lies in the fact that the decision there under review was a decision not to renew a licence, the renewal of which was a statutory entitlement in the absence of the decision-maker's decision not to renew. The power to extend the licence until the matter was finally determined was clearly a power available to the decision-maker in making the decision whether or not to renew, and thus came clearly within the powers conferred upon the Tribunal by s 29(1) of the SAT Act. In this case, the process of renewal involves an application and an exercise of discretion which would have occurred in April and May 2006. The decision under review is a decision in relation to revocation made in July 2003. The two are distinctly different discretionary decisions.

22 The applicant contends that "time cannot run against the licence whilst it is revoked". It is submitted that, because the licence had a further 34 months to run when it was revoked, the applicant would be entitled to a further 34 months operation of his licences if the Tribunal were to set aside the licensing officer's decision.

23 There is no statutory basis for that contention. It ignores s 29(5) of the SAT Act which provides that a decision that the Tribunal substitutes for the decision-maker's decision is to be regarded, unless the enabling Act states otherwise or the Tribunal orders otherwise, as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect. That provision is inconsistent with the proposition that the term of the licence is suspended and recommences from the date of the decision on review. It does not assist the applicant that s 29(5) contemplates a power for the Tribunal to order that the decision should have effect from some time other than when the reviewable decision would have had effect. In the circumstances of this case, it would be pointless for the Tribunal to make an order that the revocation be set aside as from the date of the decision on review, because on that date, no current licence exists upon which the order could have effect.

24 I do not accept the applicant's submission that the period of the licence is suspended between the date of the decision to revoke and the finalisation of the review of that decision.

25 The applicant makes an alternative claim that, if the period of the licences has expired, and they cannot be renewed or replaced by new licences, he should nevertheless be entitled to a declaration under s 91 of the SAT Act. The applicant is concerned that there remains a finding against his character which, if any future application for a licence were to be made, would stand as evidence "which the Commissioner can rely on to find the applicant is not of good character and is (not) a fit and proper person to hold the licences applied for".

26 That submission does not accurately described the process which would be undertaken on a fresh application for licences. The licensing officer's decision was contained in the letter posted to the applicant in July 2003 which explained the grounds as follows:

"The decision was made on the following, but not exclusive grounds; -

• Dunbar's criminal record;
• allegation and criminal charge that he assaulted and caused bodily harm to a person whilst on duty on 17 November 2002;
• allegation of assault and cause bodily harm on 28 June 2003."

27 At the time the decision was made, the assault matters were the subject of charges, but had not been determined. Circumstances have now changed. In relation to the assault on 17 November 2002, Mr Dunbar has been convicted and fined $2000. In relation to the assault on 28 June 2003, he has been acquitted. A proper decision on any further application for a licence would require consideration in light of developments since 8 July 2003. It is not the case, therefore, that the Commissioner could rely on the same grounds as were relied upon on 8 July 2003. Most obviously, the fact of acquittal of the charge related to the alleged assault on 28 June 2003 is unlikely to play any part in any exercise of discretion in relation to new licences.

28 Given that the licences have expired, the respondent is correct in its submission that a decision by the Tribunal on this matter would have no direct legal effect. If a declaration were made, that would not relieve the applicant of the obligation of applying for new licences if he wished to re-enter the security industry. In that event, the licensing officer must again consider the matter afresh and take into account all relevant circumstances. Although, no doubt, weight would be given to any decision the Tribunal may have made, the Commissioner would be at liberty to grant or refuse the applications as he sees fit. If the applications were refused a further application to the Tribunal for review of that decision would be required. In those circumstances, only marginal, benefit would accrue to the applicant by obtaining a declaration. The most that might be said is that the Tribunal's processes might achieve some vindication of the applicant's reputation.

29 The function of the Tribunal in its review jurisdiction is to reach and correct preferable administrative decisions. While that function may sometimes incidentally affect or vindicate reputations or individual interests, that can never be the sole purpose of the proceedings. In my view, it is not appropriate for the power to make a declaration conferred by s 91 of the SAT Act to be used where the substantive remedy in the Tribunal's review jurisdiction is lacking in substance. Because the licences the subject of the order are no longer in existence, not by reason of the revocation, but by the effluxion of time, the principal relief sought in the application is lacking in substance.

30 In the circumstances, I am of the view that the proceedings should be dismissed under s 47(1) on the basis that they are lacking in substance.

I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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