Milner v Commissioner of Police, NSW Police Force

Reasons for decision

1. The applicant, Mr Tim Milner, applied to this tribunal on 8 November 2016 for a review of a decision made by a delegate of the respondent Commissioner of Police on 9 September 2016 to revoke the applicant's class 1E, 2B, 2C and MA licences pursuant to s 26(1A) of the Security Industry Act 1997 (the SI Act). On 27 September 2016 the applicant sought an internal review of the decision, and on 7 October 2016 a delegate of the Commissioner affirmed the revocation.
2. On 22 September 2010, the applicant relevantly was convicted of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 for assaulting a taxicab driver during a late night trip. The court made an order under s 9 of the Crimes (Sentencing Procedure) Act 1999 that the applicant enter into a good behaviour bond for a period of 18 months.
3. On 3 January 2014, the applicant lodged an application for the grant of a class 1E (Monitoring Centre Operator), class 2B (Security Seller) and class 2C (Security Equipment Specialist) licence under the SI Act. He was subsequently granted a class 1E, 2B and 2C licence for a period of one year. The licence was renewed on or about 28 April 2015 and on 28 April 2016, on each occasion for a period of one year. The applicant was also granted a class MA, Master security licence (Self Employed) in 2015. That licence was renewed on or about 24 June 2016, for a period of one year.
4. The respondent's decision to revoke the applicant's licences was made pursuant to s 26(1A) of the Act, read together with s 16. The former section provides that "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". The impetus for the revocation of the licence was the enactment of the Security Industry Regulation 2016, which came into force on 1 September 2016 and extended the offences and penalties that disqualify applicants from being granted licences. In the notification of revocation of licence, the delegate gave this explanation: The Security Industry Regulation 2016 came into effect on 1 September 2016. It should be noted that clause 15(1)(c) has been amended to include good behaviour bond and community service orders in addition to any term of imprisonment and a penalty of $200 or more. As you have been convicted of "Assault Occasioning Actual Bodily Harm" and then discharged under the provisions of section 9 of the Crimes (Sentencing Procedure) Act 1999 on the condition that you enter into a good behaviour bond for a period of 18 months, or conviction of a prescribed offence, prevents you from holding a security licence for 10 years from the date of your conviction.
5. Following the applicant's seeking review of the decision in this tribunal, the tribunal granted a stay of the decision on 17 November 2016. The matter was listed for hearing on 1 February 2017 but was adjourned to permit the applicant to prepare written submissions, which were then filed on 8 February 2017. In them the applicant submitted inter alia that the amendments to the regulations did not apply to the applicant, and that therefore his licence should not have been revoked. He had an accrued right which continued in existence.
6. The law, he submitted, had a long-standing disdain for retrospective operation of legislation, a policy that was reflected in s 30(1) of the Interpretation Act 1987, which provides that the amendment or repeal of an Act or statutory rule "does not:…(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule…." The applicant had acquired a privilege upon the granting of the licences to him, and unless a contrary intention were revealed in the legislation, it should not be construed as affecting his accrued or acquired rights.
7. Meanwhile, on 1 February 2017, I had decided Lokondo v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 49, a case that dealt with the same point of law, again in the context of a licence cancellation under the SI Act, and decided it against the applicant in that case. When the present matter came on for hearing on 13 February 2017, counsel for the applicant applied to have the question of law referred to the Supreme Court under s 54 of the Civil and Administrative Tribunal Act 2013 (CAT Act). Under that provision, the tribunal may refer a question of law only if the President has consented in writing to the referral. Counsel submitted that the point of law was central to the matter and that referral to the Supreme Court could provide an authoritative interpretation. There were several other pending cases that would be affected, and a decision by the court would resolve all of them. The present case was an appropriate vehicle for obtaining a resolution of the question.
8. A timetable for the filing of submissions addressed to the President in relation to the s 54 referral process was set and the matter was adjourned to 3 March 2017 for further directions. In the meantime, the President directed that in such cases the member hearing the substantive matter should consider the submissions for both sides, and if minded to recommend referral, should prepare reasons in support of that recommendation for the President's consideration. Section 54 does not require the President's consent for refusal to refer a question of law.
9. At the hearing on 3 March 2017, the name of the respondent as shown in the initial application was amended pursuant to s 53 of the CAT Act to read "Commissioner of Police, New South Wales Police Force".

Applicable legislation

1. Section 54 of the CAT Act reads as follows: 54 References of questions of law to Supreme Court (1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court. (2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred. (3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so. (4) If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not: (a) to give a decision in the proceedings to which the question is relevant while the reference is pending, or (b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question. (5) Subsection (4) extends to the Tribunal when constituted as an Appeal Panel that is determining an internal appeal from a decision of the Tribunal in proceedings before which a question of law has been referred by the Tribunal at first instance to the Supreme Court under this section.
2. Clause 15(1) of the Security Industry Regulation 2016 provides that "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:" (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 includes any term of imprisonment (whether or not suspended), a good behaviour bond, a community service order or a penalty of $200 or more, or both, or (ii) in any cases where the applicant concerned has been found guilty but not been convicted - an offence that, in the opinion of the Commissioner, is a serious assault offence.

Applicant's submissions

1. In his written submissions the applicant related that he had been employed in the security industry for a number of years before his licence was revoked by the New South Wales Police. The revocation came as a consequence of a change in legislation which would now render him ineligible for a security licence, if he were to apply afresh. He submitted, however, that the legislation was not retrospective and that the applicant would still be entitled to use his licence until its expiration.
2. However, the applicant submitted, Lokondo had held that the legislation could have retrospective application. He noted that the applicant in that case was not legally represented. In the circumstances the applicant submitted that the following question (incorporating some suggestions by the respondent) should be referred to the court: Is the Commissioner of Police required to revoke, pursuant to s 26(1A) of the Security Industry Act 1997 and as a result of the commencement of cl 15(1)(c) Security Industry Regulation 2016, a licence issued during the currency of the Security Industry Regulation 2007, to a person who had, prior to the commencement of the Security Industry Regulation 2016, been convicted of an offence prescribed by the regulations in relation to the class of licence and sentenced to a good behaviour bond under s 9 Crimes (Sentencing Procedure) Act 1999?

Consideration

1. There is a wide range of circumstances in which the power to refer may be exercised. In particular, it is not confined to those cases where "there is no existing authoritative statement on the particular question of law": Urban Consolidation and Development Pty Ltd v Commissioner of State Revenue [2010] VCAT 2124 at [15] - [16]. Situations where the outcome of a number of other pending cases may turn on the answer to the question of law, as is true in the present instance, may be appropriate for referral. A party may also take the view that ultimately the question is likely to find its way to the Supreme Court in any event.
2. It is accepted that the court expects referrals to be accompanied by a statement of agreed facts and that the question of law referred must be formulated with precision and care.
3. The question of the appropriateness of referring a question of law to the Supreme Court has received some attention from the tribunal and its predecessor, the Administrative Decisions Tribunal. Legal Services Commissioner v Bryden [2009] NSWADT 76 dealt with s 79A of the Administrative Decisions Tribunal Act 1997, which for present purposes is very similar to s 54. In it the tribunal said: The Tribunal has a very clear view about its duty and its role in the judicial process and, in particular, the role of the Tribunal in exercising power in this Division. The Tribunal is clearly of the opinion that the proper process is through this Tribunal. After all, that is the job of this Tribunal…. Whether a regulation is ultra vires or not is to be determined in accordance with law, precedent and statutory interpretation. This Tribunal is as well-placed as anyone to determine matters of public importance. Indeed, such matters are often determined in this and other Divisions of this Tribunal. A good example is Watt v Forests NSW [2007] NSWADT 197 (at [22]).
4. "Indeed", it continued, "[the Division's] constituted members are of long standing and seniority and we are of the view that it is in the interests of justice that the proceedings continue before us and questions of law not be referred pursuant to Section 79A" (at [25]).
5. As the respondent pointed out, the applicant's submissions do not suggest that Lokondo was wrong or is attended by material doubt. No appeal has been lodged against that decision. Further, the tribunal has previously determined similar questions of law in other matters, including Cavaleri v Director-General, Department of Trade and Investment, Regional Infrastructure and Services [2014] NSWCATAP 13, which dealt with the statutory interpretation issues raised by the effect of a statutory change on existing rights, liabilities, claims or proceedings. The retrospective effect of amending legislation, the tribunal has noted, is a complex and difficult area of statutory interpretation: Duncan v Commissioner of Fair Trading [2008] NSWADT 121, [17] - [35].
6. Experience shows that the law is generally averse to determining hypothetical questions, as where a question is referred to the court at the outset of the hearing before any evidence is taken. That consideration, however, will be of less importance in a case such as the present one when there is no dispute about the facts.
7. On the other hand, of the four licenses held by the applicant, three are due to expire on 27 April 2016. The fourth expires on 23 June 2017. Even if the court decided to hear and expedite the matter, and the applicant were successful in the Supreme Court proceedings, little would have been gained by the referral of the question of law as the licences would soon expire by the time the proceedings were concluded.
8. Experience has also shown that procedures that fragment the hearing and disposition of proceedings have generally been found to produce difficulty and delay rather than speed and efficiency. There have been many instances in which procedures of that kind have produced unfortunate results, as it is difficult to anticipate exactly what will be necessary for an efficient referral of a question. It is also to be borne in mind that referral of the question of law to the Supreme Court would be removing the matter into a costs jurisdiction.
9. It is therefore incumbent on the tribunal to consider all available options before exercising the power in s 54. Thus, in accordance with s 38(5)(c) of the CAT Act, if the matter proceeds in the normal way the applicant will have a full opportunity in the substantive proceedings before the tribunal to be heard and make submissions in relation to the question of law. If he wishes to challenge the tribunal's decision, he may initiate an internal appeal as of right on a question of law to the Appeal Panel under s 80(2)(b).
10. On balance, therefore, I conclude that the better course of action is to avoid fragmenting the proceedings and for the application to remain in the tribunal and proceed in the ordinary way. The applicant's motion under s 54 is therefore denied.
11. Section 54 does not require the President's consent for refusal of a referral application, and accordingly there will be no recommendation made to him.
12. In the ordinary course of things, the substantive application would now be listed for hearing before me at a convenient date in the future. In view of the fact that only a month ago I decided Lokondo, a case very similar to the present one, against an applicant whose situation was not unlike Mr Milner's, and while of course each case is decided on its own facts and applicable law, I think it would be preferable for the matter to be heard by a different member. Another member might take a different view of the law, and at the first instance level the tribunal is not bound by its own decisions, though comity plays a part. At all events the applicant would be less likely to have the perception that he was facing a fait accompli. I will therefore be asking the registrar to refer the question of the composition of the tribunal for the substantive hearing to the Divisional Head.

Orders 1. The application for referral of a question of law to the Supreme Court under s 54 of the CAT Act is refused. 2. The question of the composition of the tribunal for the hearing on the merits is to be referred to the Divisional Head. 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 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. Decision last updated: 14 March 2017