Joliffe v Commissioner of Police, New South Wales Police Service

The issues for determination in this appeal 1 This is an appeal against a decision of the Tribunal at first instance disposing of a preliminary matter arising in an application under the Security Industry Act 1997 ('the Act'). The Applicant, who is now the Appellant, Mr Raymond Joliffe, sought review of a decision dated 10 February 2003 by a delegate of the Respondent, the Commissioner of Police, New South Wales. The delegate's decision, reached after an internal review, confirmed an earlier decision of the Respondent, taken on 15 November 2002, to revoke a Master Security Licence held by the Appellant on behalf of a company called Commercial Surveillance Pty Ltd ('Commercial Surveillance'). The Appellant was a shareholder and director of Commercial Surveillance. 2 The Respondent's decision was made under s 26 of the Act. At the time when it was made, this section provided as follows:- 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reason for which the licensee would be required to be refused a licence of that class, … 3 Subsequently, s 26(1)(a) was repealed. We consider that it nonetheless remains the relevant provision so far as these proceedings are concerned. It was replaced by s 26(1A), which provides: 26 Revocation of licence (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. 4 Section 16 of the Act relevantly 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,… 5 The offences prescribed for the purposes of this subsection are defined in clause 11 of the Security Industry Regulation 1998 ('the Regulation'). This provides as follows: 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: (a) Offences relating to firearms or weapons An offence relating to the possession or use of a firearm, or any other weapon, committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction), and being an offence that would disqualify the applicant concerned from holding a licence under the Firearms Act 1996. (b) Offences relating to prohibited drugs An offence in respect of a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act 1985) committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction). (c) Offences involving assault An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being: (i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both, or (ii) in such cases where the applicant concerned has been found guilty but not been convicted of an offence that, in the opinion of the Commissioner, is a serious assault offence. (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. (e) Offences involving robbery An offence under the law of any Australian or overseas jurisdiction involving robbery (whether armed or otherwise). (f) Offences involving industrial relations matters In the case of an application for a master licence only - an offence under the Industrial Relations Act 1996, including the contravention of a State industrial instrument, or under any similar law of any other Australian jurisdiction, but only if a total of at least 5 such offences have been committed by the applicant during any period of 2 years. 6 On 6 August 2002, the Chief Industrial Magistrate made orders under s 178(1) of the Workplace Relations Act 1996 (Cth) against Commercial Surveillance. Having found that this company had committed 24 breaches of the terms of an 'award, order or agreement', as defined for the purposes of that provision, the Magistrate imposed penalties totalling $26,000 and ordered that the company pay court costs of $1,392 and compensation to former employees totalling $110,853. 7 The relevant parts of s 178(1) of the Workplace Relations Act are as follows:- Imposition and recovery of penalties (1) Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction…. (4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is: (a) where the penalty is imposed by the Court: (i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111(1)(e) - $5,000 for a body corporate or $1,000 in other cases; and (iia) if the breach is of a term of a certified agreement and continues for more than one day - the total of: (A) $10,000 for a body corporate or $2,000 in other cases; and (B) $5,000 for a body corporate, or $1,000 in other cases, for each day for which the breach continues; and (iib) if the breach is of a term of a certified agreement but subparagraph (iia) does not apply - $10,000 for a body corporate or $2,000 in other cases; and (ii) in any other case - $10,000 for a body corporate or $2,000 in other cases; and (b) where the penalty is not imposed by the Court - $10,000 for a body corporate or $2,000 in other cases…. (5) A penalty for a breach of a term of an award or order may be sued for and recovered by: (a) an inspector; (b) a party to the award or order; (c) an employer who is a member of an organisation and who is affected by the breach; (ca) a person: (i) whose employment is, or at the time of the breach was, subject to the award; and (ii) who is affected by the breach; (d) an organisation that is affected, or any of whose members are affected, by the breach; or (e) an officer or employee of an organisation that is affected, or any of whose members are affected, by the breach where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation…. (6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment…. (8) A proceeding under this section in relation to a breach of a term of an award, order or agreement shall be commenced not later than 6 years after the commission of the breach…. 8 The preliminary issue to be determined by the Tribunal at first instance was whether, by virtue of these findings and the imposition of penalties by the Chief Industrial Magistrate, Commercial Surveillance had been 'convicted' of an 'offence' within the scope of subclause 11(f) of the Regulation. The decision, reached by Mr S Montgomery, Judicial Member, was that the finding of a breach falling within s 178(1) did constitute a 'conviction' for an 'offence' within this subclause: see Joliffe v Commissioner of Police, New South Wales Police Service [2003] NSWADT 159. 9 In reaching this decision, the Tribunal accepted two propositions put by Mr Capper, counsel for the Respondent. These can be summarised as follows. 10 One was that the Workplace Relations Act, a statute of the Commonwealth, fell within the phrase 'the Industrial Relations Act 1996,… or any similar law of any other Australian jurisdiction' in subclause 11(f) of the Regulation. This was because its objects, set out in s 3, had significant similarities to those set out in s 3 of the Industrial Relations Act. Both statutes sought to regulate employment and industrial relations issues within their respective jurisdictions. 11 In the present appeal, this first proposition, stated and endorsed in the Tribunal's judgment at [22 - 24] and [32], was not challenged. 12 The second proposition relied on by Mr Capper was that either or both of the terms 'convicted' and 'found guilty', as used in the present context (that is, in s 16(1)(a) and (b) of the Act), should not be restricted to the imposition of convictions in criminal proceedings, but should be interpreted sufficiently broadly to include a finding of guilt and the imposition of a penalty under s 178(1) of the Workplace Relations Act. This followed principally from a number of authoritative statements of principle to the effect that the words 'convict' and 'conviction' do not have constant meanings of universal application and should, if the context so indicates, be given a broad meaning so as to include any determination of guilt. 13 In discussing this proposition, at [27], the Tribunal quoted the passage from Mr Capper in which these statements of principle were set out. This passage is as follows:- In the decision of R v lngrassia (1997) 41 NSWLR 447 at 450, Gleeson CJ echoed the comments of Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 when he stated that 'It is contrary to common law principle that a person who has not been convicted of an offence should be punished by order of a Court.' In the decision of Cobiac v Liddy, McTieman J states that 'I take the view that the word "conviction" in s30 of that Act [Acts Interpretation Act} should receive ample meaning. Without attempting an exhaustive interpretation, the word "conviction " may mean a mere determination of guilt or a finding of guilt plus a judgment on the finding.' In the decision of Burgess v Boetefeur (1844) 7 M & G 481 at p 501 (135 ER 193 at 202), Tindall CJ stated that 'The word "conviction" is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court.' In Maxwell v The Queen (1996) 184 CLR 501 at 507, Dawson and McHugh JJ said: 'The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury, or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgement of the Court, ordinarily in the form of a sentence, following upon the verdict or plea: Burgess v Boetefeur (1844) 7 Man & G 481 at 504, 135 ER 193 at 202; R v Tonks [1963] VR 121 at 127-8; R v Jerome and McMahon [1964] Qd R 595 at 604 and Richards v The Queen [1993] AC 217 at 226-7.' 14 At [33], indicating its acceptance of this second proposition of Mr Capper, the Tribunal said that the Chief Industrial Magistrate's decision relating to Commercial Surveillance 'involved a determination of guilt or a finding of guilt plus a judgment on the finding' and that this determination satisfied 'the grounds set out' in s 16 of the Act and subclause 11(f) of the Regulation. 15 It would appear that Mr Capper may also have suggested an alternative to this second proposition. This was to the following effect: that if the decision of the Chief Industrial Magistrate did not, in the strict sense, cause Commercial Surveillance to be 'convicted' within the meaning of s 16(1)(a) of the Act, this company was nonetheless 'found guilty (but with no conviction recorded)' within the meaning of s 16(1)(b). This would produce the same outcome so far as the Appellant's licence under the Act was concerned. 16 The principal ground of appeal urged before us was that the Tribunal erred in law in accepting the second of the two propositions submitted by Mr Capper. It adopted an incorrect view of the scope of s 16 of the Act and subclause 11(f) of the Regulation, and of the nature of findings made and penalties imposed under s 178(1) of the Workplace Relations Act. In consequence, its decision should be set aside. The Appellant's submissions 17 In arguing that the Tribunal's decision was erroneous in law, Mr Young, counsel for the Appellant, placed primary emphasis on the judgments of a Full Bench of the Federal Court in Gapes v Commercial Bank of Australia (1979) 38 FLR 431. The issue in that case was whether an appeal could be brought against an acquittal in proceedings, instigated under s 119 of the Conciliation and Arbitration Act 1904 (Cth), for the imposition of a penalty for the breach of a term of an industrial award. This raised the question whether such proceedings were properly to be characterised as proceedings in respect of a criminal offence. It was common ground that, if they were proceedings within this category, no appeal could lie. 18 A five-member Full Bench sat in the case, as judicial opinions had been divided in prior decisions on the matter. The unanimous decision of the Court was that these proceedings were not criminal proceedings. In so holding, the Court departed from the decision (then relatively recent) of a Full Bench of the Australian Industrial Court in Vehicle Builders' Employees' Federation of Australia v General Motors Holdens Pty Ltd (1977) 32 FLR 100. 19 As Mr Young pointed out, s 178 of the Workplace Relations Act 1996, the relevant provision in these proceedings, is based upon s 119 of the Conciliation and Arbitration Act. In the judgment of J B Sweeney J in Gapes, at 442-443, the legislative history of s 119, its principal features and some of its provisions are set out. 20 It can be seen from this brief description that each of the subsections of s 178 of the present Act that are reproduced at [7] above had an equivalent provision in s 119. In other respects also, the two sections resemble each other. 21 Mr Young argued that these resemblances between the two provisions include a number of the features of s 119 on which the Court in Gapes explicitly relied in reaching its decision. We cite four examples in the ensuing paragraphs of this judgment, together with relevant dicta from the judgments in Gapes. 22 First, at 436, Smithers ACJ made the following comments about s 119. In Mr Young's submission, they are also applicable to s 178 of the Workplace Relations Act: It speaks of the case in which a person bound by an award has committed a breach or a non-observance thereof and empowers the court to impose a penalty in respect of that breach or non-observance. It says nothing expressly to characterize the relevant conduct as civil or criminal. And a legislative intention to characterize particular conduct as criminal should be found only where such an intention is made clear expressly or by implication. 23 Secondly, at 433, Smithers ACJ noted that a penalty could be imposed under s 119 for a breach of an award even though the breach was not wilful. He then said: There are various provisions of the Act which support the view that in enacting s 119 Parliament did not intend to enact that the mere breach of an award is a criminal offence…. It is not difficult to understand that there might have been reluctance to characterize a mere breach of an award as a criminal offence. Awards are detailed documents frequently containing complicated provisions. They often raise most difficult questions of construction not only for parties but for courts. That a party honestly misconstruing a provision should be at risk of a criminal conviction might well have been regarded unfavourably by legislators. 24 In Mr Young's submission, these observations are also directly applicable to s 178 of the Workplace Relations Act. 25 Thirdly, Smithers ACJ, at 433, placed emphasis on the fact that s 119 formed part of an Act in which other sections (for example, s 122) expressly created criminal offences. Both he and J B Sweeney J (at 443) described s 119 as being in distinct contrast to those other sections. 26 As Mr Young pointed out, the Workplace Relations Act also contains a number of provisions expressly creating criminal offences. They are chiefly located in Part XI of the Act (ss 299 - 339), which is headed 'Offences'. Section 178 is within a part of the Act headed 'Part VIII - Compliance'. This is in turn within Division 1, which has the heading 'Penalties and other remedies for contravention of awards and orders'. 27 Fourth and finally, at 437-438 (see too the judgment of J B Sweeney J at 443), Smithers ACJ stated that at the foot of these other sections in the Conciliation and Arbitration Act which clearly created criminal offences, the word 'penalty' appeared, followed by the amount of the penalty expressed in money. This form of words invoked s 41 of the Acts Interpretation Act 1901 (Cth), as it then was, so as to indicate that any contravention of the section should be an offence against the Conciliation and Arbitration Act, punishable upon conviction by a penalty not exceeding the amount indicated. But this form of words was not used in s 119. 28 The same pattern appears, as Mr Young pointed out, in the Workplace Relations Act. In the criminal offence provisions in Part XI, the maximum penalty by way of fine, imprisonment or other measure is set out at the foot of each section or subsection creating an offence, preceded by the word 'penalty'. This is not the case with s 178(1). 29 Mr Young referred us to a number of other cases in which Gapes was cited and applied. We need only refer to three of these. 30 In Transport Workers' Union of Australia, New South Wales Branch v Australian Document Exchange Pty Ltd trading as Grace Couriers [2000] NSWIRComm 74, a preliminary issue to be resolved was whether proceedings under 129(1) and s 301(2) and (3) of the Industrial Relations Act 1996 of New South Wales were proceedings for a civil penalty or for a criminal offence. Under s 129(1) of this Act, employers were required to keep certain records relating to employees. Subsection (6) of the section stated that a person who contravened the section was 'guilty of an offence'. At the foot of the section appeared the words 'Maximum penalty: 20 penalty units'. Section 301 was headed 'Offences'. Subsections (2) and (3) stated respectively that a person must not deliberately hinder or obstruct an authorised industrial officer exercising specified powers, and must not, without lawful excuse, fail to comply with a requirement of such an officer. At the foot of the section appeared the words 'Maximum penalty: 100 penalty units'. 31 In the New South Wales Industrial Commission, Marks J conducted a lengthy review of the authorities. At [40], referring to the judgment of Murphy J in Li Chia Hsing v Rankin (1978) 141 CLR 182, he noted that the concept of 'civil offences' was 'well entrenched in the law'. At [41], he quoted a passage from the judgment of Mahoney JA in Evans v Button (1988) 81 ALR 61 describing the difficulties, frequently acknowledged in the case law, that can arise in determining whether proceedings for contravention of a law are criminal or civil proceedings. Marks J noted, at [49], that the greatest degree of controversy regarding this issue had in recent times occurred in proceedings concerning customs laws, taxation and industrial law. 32 At [52 - 59], he described the facts and decision in Gapes. He indicated at [58] that he found a number of observations by Smithers ACJ (including those outlined above) to be of assistance to him. 33 At [65 - 66], Marks J pointed out that the provisions regarding penalty at the foot of ss 129 and 301 brought into operation s 54(1) of the Interpretation Act 1987 of New South Wales. This is to the same effect as was s 41 of the Acts Interpretation Act 1901 (Cth) (outlined above at [27]). 34 At [80], Marks J listed nine aspects of ss 129 and 301 to which, as he understood the law, he was required to have regard in making his decision. Mr Young drew our attention to no. 5 in this list. We consider nos. 6 and 8 to be relevant also for present purposes. These three factors set out by Marks J are as follows:- 5. Both sections are directed to offences which may be distinguished from breaches or non-observance of the terms of industrial instruments which may more appropriately be characterised as proceedings for a penalty for breach of a term of a contract between private individuals. 6. The Act distinguished between proceedings for a breach of a term of an order or industrial instrument and an offence against the Act itself. Sections 129 and 301 fall into this latter category. 8. The language used in each of ss 129 and 301 is more indicative of an intention to create a criminal offence rather than any other kind of offence. This includes also the use of the word "penalty". I include, obviously, the use of the word "offence" in s129(6) and the ability to have regard to the use of that word as a heading to s 301. 35 At [81], Marks J held that 'the interpretation of the relevant provisions of the Act yields the result that ss 129 and 301 create criminal offences'. 36 In Transport Workers' Union of Australia, New South Wales Branch v TNT Australia Ltd trading as TNT Express [2000] NSWIRComm 105, decided about one month later, the same preliminary issue, relating to the same provisions, was determined to the same effect by Marks J. He reproduced verbatim the relevant passage from his earlier judgment. 37 In Inspector John Christie v Raymond Maxwell Joliffe (Unreported, Newcastle Local Court, 7 October 2003, Magistrate G A Miller, Chief Industrial Magistrate), the same complaints as had been brought against Commercial Surveillance were brought against the Appellant in person. The proceedings were dismissed, on the ground that only Commercial Surveillance, and not the Appellant, was the employer under the industrial award that had been contravened. In his judgment, given on 7 October, 2003 Magistrate Miller discussed in the following terms the nature of proceedings under s.178 of the Workplace Relations Act 1996 (Cth): … although the proceedings may be described as quasi criminal in nature, in fact they are civil proceedings for the imposition of a penalty and therefore do not attract criminal responsibilities as set out in the [Commonwealth] Criminal Code…. Furthermore, the difficulty here for the complainant is that the defendant Jolliffe has not been charged under the provisions of the Criminal Code. Furthermore, he has not been charged with a criminal offence; s.178 and its predecessor s.119 long being recognised as civil breaches and not a criminal act. 38 Mr Young referred us also to the annotations to s 178 of the Workplace Relations Act in Butterworths' Federal Industrial Law, Vol 1 at 3340.4. A case noted there, to which he did not expressly refer, is Re Transport Workers' Union of Australia and Glynburn Contractors (Salisbury) Pty Ltd (1990) 34 IR 138. This case concerned proceedings under s 178 of the Industrial Relations Act 1988 (Cth), which was the predecessor to s 178 of the Workplace Relations Act and subject to some immaterial amendments and additions was in the same terms. 39 The judgment of Lee J, in the Federal Court, in this case contains the following passage at [5]: The summons stated that the proceeding was brought under s. 178 of the Act. It was, therefore, in the nature of a civil proceeding and should have been commenced by application in the ordinary way. (See Federal Court Rules O.4, r.1; Gapes v Commercial Bank of Australia (1979) 38 FLR 431). 40 We will mention four other matters put to us by Mr Young. The first two of them constituted, in his submission, further statutory indications that proceedings for a penalty under s 178(1) of the Workplace Relations Act, and indeed under any other provisions of this Act that were similarly phrased, were to be distinguished from proceedings for a criminal offence under the Act. 41 First, s 412(1) of the Workplace Relations Act 1996 lists the matters in which the Federal Court has jurisdiction under the Act. This list includes, as separate items, matters in relation to which (e) penalties may be sued for and recovered under this Act; or (f) prosecutions may be instituted for offences against this Act. 42 Secondly, in both s 356 and s 357 of the Workplace Relations Act 1996 (Cth) the phrase 'a monetary penalty under this Act (other than a penalty for an offence)' is used. 43 Thirdly, Mr Young cited, in a supplementary written submission, some examples of a breach of a New South Wales industrial award leading to a conviction for a criminal offence. One of these arises from clause 25.1 of the Security Industry Award. This provides that all employees shall be entitled to annual holidays in accordance with the Annual Holidays Act 1944. Under s 11 of this Act, a failure to comply with any provision of the Act is a criminal offence. It follows, Mr Young argued, that it was possible for a breach of an award to lead to a conviction for a criminal offence instead of a civil penalty for contravention of the award. 44 Mr Young furnished us with these examples in response to a question from a member of the Appeal Panel. The question put was whether his primary contention, that is, that the term 'offence' in subclause 11(f) of the Regulation was limited to criminal offences and did not extend to civil penalties, was compatible with the presence of the phrase 'including the contravention of a State industrial instrument' within the subclause. (We note in this connection that in the Industrial Relations Act 1996 of New South Wales, the definition of 'industrial instrument' includes an award.) Mr Young submitted that the examples provided by him showed that there was no necessary contradiction between the inclusion of the phrase within subclause 11(f) and the interpretation of 'offence' urged by him. 45 Finally, Mr Young took us to passages in the Second Reading Speech for the Security Industry Bill 1997, given by the Minister for State Development, the Hon M R Egan, in the Legislative Council (Hansard, Legislative Council 2 December 1997, 2919-2921). This Bill established the present provisions for the licensing of security agents under the Act. Mr Young pointed out that the policy underlying the Bill was to exclude from the security industry those who had a criminal record including offences of a serious nature. This aim of the licensing provisions received strong emphasis from the Minister and was duly implemented in subclauses 11(a) - (e). It would, Mr Young argued, be quite at odds with this policy to include within the scope of subclause 11(f) the imposition of penalties for conduct of a totally different and much less serious kind, namely, the breach, which might be wholly inadvertent, of an industrial order, award or agreement. The Respondent's submissions 46 Ms D Paterson, who appeared for the Respondent, relied principally on the submissions made by Mr Capper at first instance. With respect to the issues raised in this appeal, the main points raised in those submissions were outlined in the judgment at first instance and are repeated in the summary of that judgment appearing at [9 - 15] above. 47 In addition, Ms Paterson argued that the broad policy objectives of the licensing provisions of the Security Industry Bill 1997, as outlined by the Minister in the Second Reading Speech, were not the only objectives contemplated in subclause 11(f). This was because this subclause, in contrast to its predecessors, laid down conditions applying only to the granting of 'master licences', which would authorise the employment of security officers. It was important that master licence holders should not have been guilty of contraventions of industrial law. 48 Ms Paterson pointed out also that ordinary as well as master licences were open to revocation on grounds that did not involve the commission of serious criminal offences, such as becoming a bankrupt or being found not to be a fit and proper person to hold a licence. 49 Put in general terms, Ms Paterson's line of argument, like that of Mr Capper, was (1) that when a person was found guilty and suffered the imposition of a penalty, he or she was 'convicted' within the meaning of s 16(1)(a) of the Act, or alternatively was 'found guilty (but with no conviction recorded)' within the meaning of s 16(1)(b); (2) that there was no clear indication in this section or in subclause 11(f) of the Regulation that the term 'offence' should be interpreted narrowly; and (3) that there were sound policy reasons for giving the terms 'convicted', 'conviction' and 'offence' a broad interpretation. The conclusions of the Appeal Panel 50 Our conclusion in this appeal is that, with some qualifications, the arguments put by Mr Young for the Appellant are correct, and that the appeal must accordingly be allowed on the ground of an error of law in the judgment of the Tribunal at first instance. 51 We accept first of all the proposition that a breach of a term of an award, order or agreement within the scope of s 178(1) of the Workplace Relations Act 1996 (Cth) is not a criminal offence, such as are created within Part XI of this same Act, even though in consequence a penalty may be imposed under the section. It appears to us that the authorities outlined above, notably Gapes v Commercial Bank of Australia (1979) 38 FLR 431 and Re Transport Workers' Union of Australia and Glynburn Contractors (Salisbury) Pty Ltd (1990) 34 IR 138, put this proposition beyond doubt. 52 It is clear from the voluminous case law dealing with the elusive distinction between criminal offences, strictly so-called, and 'civil penalties' that such a ruling can only be applicable to the statutory provisions to which it explicitly relates, and to closely analogous provisions. There exist numerous other provisions under which, as in the case of s 178, attributes generally associated with civil penalty proceedings can be discerned - for example, that the matter is tried in accordance with civil, not criminal procedure (cf the statement that a 'penalty' may be 'sued for and recovered by' the instigating party in s 178(5)) - but which, on a full examination, are found to create criminal offences. Some striking examples within customs and excise legislation were discussed at length by the High Court in the recent case of Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49. 53 The next step in the reasoning urged on behalf of the Appellant shifts attention away from industrial relations legislation to the relevant legislation governing the security industry. The propositions put to us were as follows. First, in interpreting the term 'convicted' in s 16(1)(a) of the Act side by side with the term 'offence', as used both in this section and in subclause 11(f) of the Regulation, only a conviction recorded in proceedings for a criminal offence, as conceived in the judgments in Gapes and Glynburn, should be held to fall within these provisions. Secondly, the same approach should apply in interpreting the term 'conviction' in s 16(1)(b) of the Act side by side with the term 'offence', as used both in this section and in subclause 11(f). 54 In our judgment, the conjunction of these terms - 'convict' (or 'conviction') and 'offence' - should produce this outcome. A traditional interpretation of these terms would undoubtedly do so. We recognise that in some well-recognised fields of law - customs, taxation and, relevantly, industrial relations - the traditional demarcations between criminal and civil proceedings have become blurred. But subject to one matter noted at [56] below, there is no legislative indication within the area of security industry regulation that the traditional meanings of these terms should be bypassed when interpretation of them is required. 55 With reference specifically to s 16(1)(b) of the Act, our understanding of the phrase 'found guilty (but with no conviction recorded)… of an offence' is that it is intended to bring within the section any order made by a court under s 10 of the Crimes (Sentencing Procedure) Act 1999, or under a comparable provision in another State or Territory. Section 10 states that where a court 'finds a person guilty of an offence' it may nonetheless make an order dismissing the charge, or discharging the person on specified conditions, 'without proceeding to conviction'. In contrast to civil penalties, such findings are noted on the person's criminal record (see Criminal Records Act 1991, s 5), which means that, consistently with some comments made by the Minister in the Second Reading Speech, they can be taken into account by the Police Commissioner when considering whether to grant or revoke a licence if they are for an offence prescribed by clause 11 of the Regulation. But they are not 'convictions' for other purposes. This interpretation of s 16(1)(b) is consistent with our primary conclusion as to the meanings of 'conviction' and 'offence'. 56 We have given consideration to whether the conclusion that we have reached is contradicted by the presence of the phrase 'including the contravention of a State industrial instrument' within subclause 11(f) of the Regulation. The submission made on this point by Mr Young (see [43 - 44] above) may be enough to resolve the apparent contradiction. If it is not - that is, if the phrase purports to include contraventions of civil penalty provisions which do not establish criminal offences and do not involve the conviction of offenders - the necessary outcome of our ruling is that the subclause, in this respect, goes further than s 26(1) of the Act authorises. It is this provision in the governing statute that determines what type of offences may be prescribed. In our judgment, it limits the Regulation to prescribing criminal offences, in the traditional sense, for which a conviction may be entered against a proved offender. 57 We reach our primary conclusion even though, on the particular question whether it is supported by the policy statements made in the Second Reading Speech, we are inclined to agree with the argument put on behalf of the Respondent. This was that those statements were relevant only to subclauses 11(a) to (e) of the Regulation. In contrast to these, subclause 11(f) lays down conditions applying only to the granting and revocation of 'master licences', which authorise the employment of security officers. 58 We have however taken account of another policy consideration that was not explicitly put before us at the hearing of this appeal. In the material submitted on the Appellant's behalf to the Respondent's delegate for the internal review of the revocation of the licence, it was stated that the breaches of industrial awards by Commercial Surveillance, which took the form of failures to pay amounts due to its employees, were attributable to financial difficulties experienced by this company and to the ill health of the Appellant. On account of legal costs, Commercial Surveillance chose not to defend the proceedings before the Chief Industrial Magistrate. A further factor of relevance is that, as we understand the proceedings, each of the 24 contraventions found against Commercial Surveillance was constituted by a failure to pay an amount owing under the relevant award to an individual employee. 59 Whether or not the breaches by Commercial Surveillance were in fact caused by these problems, what these features of the present case illustrate is that one or more penalties - indeed numerous penalties, if numerous employees are involved - may be imposed under s 178(1) even though the employer found to have contravened the subsection was not at fault to any significant degree. This point was indeed mentioned by Smithers ACJ in Gapes, at 433. Under s 26(1)(a) of the Act, which was in force until recently, if the employer concerned held a master security licence the outcome of the decision under appeal in this case was that the Commissioner would have been required, irrespective of the degree of culpability, to consider revoking the licence. Under s 26(1A), which is now in force, the Commissioner, according to this decision, would have no choice but to revoke it. In our view, this illustrates the potential for unfair and unwarranted hardship in individual cases where the licence-holder was not directly or wilfully involved in the contraventions. 60 We believe that our decision, reversing the decision under appeal, does not give undue scope to master licence holders to engage in contraventions of industrial awards or agreements. This is because, depending on the circumstances, such contraventions may well form the basis for a conclusion that an applicant for, or a holder of, such a licence is not a fit and proper person to hold it. This constitutes a separate ground for rejecting an applicant (see s 15(1)(a) of the Act) or revoking a licence already granted (see ss 15(1)(a), 26(1A)). 61 A striking feature of the reasons for the decision under appeal is that they focused almost exclusively on the possible scope of the terms 'conviction' and 'convict' (as illustrated by its reliance on the passages set out above at [13]). They made only passing reference (at [21]) to Gapes and to the term 'offence'. They therefore did not take full account of the line of authority demarcating 'offences' from 'civil penalties' or of the implications, when construing s 16(1) of the Act, of considering the meaning of 'conviction' and 'convict' in conjunction with 'offence'. 62 To sum up, therefore, we are satisfied that there is clear authority (emerging from a previously confused line of cases) to the effect that proceedings under the particular provision of industrial relations legislation with which we are concerned - s 178 of the Workplace Relations Act 1996 (Cth) - are not proceedings for a criminal 'offence', traditionally so-called, and do not lead to 'convictions', traditionally so-called. The provisions within security industry legislation that are relevant to this case - s 16(1) of the Security Industry Act 1997 and subclause 11(f) of the Regulation made under this Act - use these same two terms in conjunction to define the range of proceedings to which they relate. The meaning of these terms, in this particular context, should not be extended beyond their traditional meanings. It follows that proceedings under s 178 do not fall within s 16(1) of the Act or subclause 11(f) of the Regulation. 63 For these reasons, the appeal must be allowed. 64 The only ground on which the Appellant's Master Security Licence was revoked by the Respondent was that the Chief Industrial Magistrate's determinations that Commercial Surveillance (of which the Appellant was a director) had contravened s 178(1) of Workplace Relations Act 1996 (Cth) brought him within the scope of s 16(1)(a) or (b) of the Act and therefore exposed him to revocation of his Licence under s 26(1)(a). Our decision renders this ground of revocation invalid. The Respondent's decision to revoke the Appellant's Licence must therefore be set aside.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.