appellant. ACAT ordered the Commissioner to issue the applicant a licence for the purpose of s 13(1)(a) (class 'A'). The Tribunal refused to grant a class 'D' licence, finding it premature given the...
Key principles
A regulatory licensing provision should be construed, where open to more than one meaning, in a way that least interferes with fundamental common law rights, including the common...
The Commissioner must consider the public interest in light of all relevant factors (including criminal convictions, their nature, timing and the applicant's subsequent history)...
The Tribunal may grant a licence limited by class where the risk profile of the licensed activity differs; the Tribunal here granted a class 'A' licence (sedentary guard roles)...
Issues before the court
Whether the Commissioner correctly refused to grant security licences to the applicant under s 21(1)(a)(iv) of the Security Industry Act 2003 on...
Whether there exists a common law right to work in a chosen vocation that engages the presumption against statutory interference and alters the...
Plain English Summary
ACAT reviewed the Commissioner's refusal to issue security licences to Joshua Quinton because of past convictions. The Tribunal found Quinton had reformed and, applying the principle that statutes should be read to least interfere with fundamental common law rights, concluded he should receive a class 'A' security licence (sedentary guard work) but not a class 'D' licence (crowd controller) given concerns about self-control in confrontational situations. The Commissioner was ordered to issue the class 'A' licence.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,595 words · generated 17/07/2026
What happened
Joshua Quinton applied on 12 October 2009 for class 'A' and class 'D' security licences under the Security Industry Act 2003 (para 1). The Commissioner for Fair Trading refused both licences on 5 January 2010 on public interest grounds because of Quinton's prior criminal convictions (para 6). The applicant appealed to the ACT Civil & Administrative Tribunal (ACAT) under s 37 of the Act (para 8). At hearing, the Tribunal received the applicant's personal statements and character references, the Commissioner's police statements and submissions, and explored the factual circumstances of the convictions together with the applicant's post-offence conduct (paras 9–13).
Cited legislation
2 cited instruments linked from this judgment.
The Tribunal concluded the applicant had matured and was now law‑abiding (para 14). However, the Tribunal considered it premature to grant a class 'D' licence (crowd controller/bouncer) because some of the offences suggested lack of self‑control in confrontational situations (para 15). By contrast, the Tribunal considered class 'A' work (guard/patrol roles), which is more sedentary and less likely to involve intoxicated, provocative patrons, to present a materially different risk profile (paras 17, 27). After considering submissions on statutory construction and the 'public interest' test, the Tribunal ordered the Commissioner to issue the applicant a licence for the purpose of s 13(1)(a), a class 'A' licence (Order; paras 27–28, Order).
Why the court decided this way
Two streams of reasoning drive the decision.
First, the Tribunal performed a fact‑sensitive public interest balancing. It examined the convictions (their nature and timing), the applicant's age at the time and now, his subsequent history, training and references, and the distinctive risk profiles of the two licence classes (para 27). On those facts the Tribunal considered the convictions did not, on balance, make granting a class 'A' licence contrary to the public interest, while they did make granting a class 'D' licence inappropriate at this time (paras 14–18).
Second, and crucially, the Tribunal framed the statutory question within the principle of legality. It posed whether the 'public interest' limb in s 21(1)(a)(iv) should be read against the background of a common law right to work in one's chosen profession, that is, whether there is a prima facie presumption in favour of issuing a licence, absent clear statutory indication to the contrary (paras 20–28). The Tribunal accepted that the right to participate in the market and sell one's labour is a species of the common law right to contract and is a fundamental right attracting the presumption of legality (paras 34–35). The Tribunal therefore treated the applicant's prima facie right to work as a factor to be weighed among other relevant considerations in the public interest inquiry (para 27). Nevertheless, the Tribunal made clear this presumption is not absolute; public safety concerns and the specific regulatory purposes of the Act can outweigh the presumption (paras 4, 27–28).
In sum, the Tribunal applied a fact‑based assessment, informed by a constructional principle that favours interpretations that least interfere with fundamental common law rights, and accordingly ordered issue of the lower‑risk class 'A' licence but refused the higher‑risk class 'D' licence.
Before and after state of the law
Before this decision the applicable rules were:
The Commissioner must be satisfied a licence is in the public interest to grant it (s 21(1)(a)(iv)); s 23 requires consideration of relevant criminal offences and other relevant matters (paras 4–5).
The principle of legality and the presumption against interfering with fundamental common law rights were well established in High Court authority (cited authorities include R & R Fazzolari, Al-Kateb, Daniels, Coco) and in academic texts (paras 29–33).
This Tribunal applied those established interpretive principles to a licensing decision under the Security Industry Act 2003 by explicitly importing the common law right to work, the right to participate in the market and sell labour, into the public interest calculus. The effect is that, in this Tribunal's view, where a regulatory statute is ambiguous or open to constructional choice, the construction which least interferes with the right to work is preferable, and that prima facie right is a weight to be considered (paras 27, 29–35). Practically, the decision illustrates how licensing authorities and reviewing tribunals should assess convictions and rehabilitation within a structured multi‑factorial test while giving some weight to the presumption favouring the applicant's ability to work.
Key passages with plain-English translation
Tribunal finding of rehabilitation: "Arising out of the discussions, the Tribunal formed the view that the Applicant had matured in the last several years and that he was now living in a stable and law abiding manner." (para 14.)
Plain English: The Tribunal believed Quinton had reformed and was now living responsibly. This evidence of rehabilitation mattered in deciding whether the public interest forbade licensing.
Distinction between licence classes: "It was premature to grant ... class 'D' ... given the element of lack of self control in the face of provocation inherent in some of the previous convictions." (para 15.)
Plain English: The Tribunal saw a genuine safety risk in giving the applicant a role likely to involve drunk or aggressive people; past behaviour suggested he might not be suited to that work yet.
Multi‑factor public interest list: The Tribunal listed factors (a)–(j), including convictions, timing, age, subsequent history, training, references and "the Applicant's prima facie right to work". (para 27.)
Plain English: The public interest decision is not a single-factor test; the Tribunal weighed a range of issues, and explicitly included a default presumption in favour of the right to work as part of that balance.
Principle of legality application: The Tribunal relied on High Court authority, especially Fazzolari, for the proposition that statutes should be read to interfere least with fundamental common law rights. (para 30.)
Plain English: When a statute can be read in more than one way, prefer the reading that does not unnecessarily take away basic rights, like the right to earn a living.
What fact patterns trigger this precedent
This decision is directly relevant where:
An administrative regulator refuses a licence principally because of historical criminal convictions and the applicant seeks review.
The regulated activities present materially different risk profiles (e.g., sedentary guarding versus confrontational crowd control).
The applicant can produce evidence of rehabilitation, training and stable post‑offence conduct.
There is scope for statutory constructional choice in interpreting a 'public interest' criterion, so the principle of legality can influence the interpretive approach.
In such fact patterns, tribunals and courts should: (i) undertake a detailed, multi‑factor public interest assessment (conviction nature and timing, rehabilitation evidence, training, reference checks); (ii) distinguish between licence classes by reference to different operational risks; and (iii) consider whether the principle of legality requires placing some weight on a prima facie right to work, though that presumption can be displaced by clear statutory wording or demonstrable public safety risks.
How later courts have treated it
This decision is an ACAT tribunal decision; it applies settled High Court authority (for example, R & R Fazzolari [2009] HCA 12) and follows established statutory‑interpretation principles rather than creating new High Court precedents (para 30). The Tribunal expressly relied on High Court authorities to justify reading the Security Industry Act in a way that gives least interference with fundamental rights (paras 29–31). As an ACAT decision, it is persuasive but not binding on other courts. The judgment itself does not canvass subsequent appellate treatment. To determine how later courts have treated this specific ACAT decision would require a search of subsequent reported decisions citing SEC 3 of 2010; the decision principally illustrates application of familiar principles at tribunal level.
Still-open questions
Scope and weight of the 'prima facie right to work' in statutory licensing:
The Tribunal treated the right as a factor to be weighed. What precise legal status should later courts attribute to that right in regulatory contexts absent explicit statutory language? The Tribunal indicated the presumption operates strongly for fundamental rights but is rebuttable (paras 31–33). The boundaries between 'fundamental' and 'general' common law rights (and the strength of the presumption) may require further judicial calibration.
Granularity of licence‑class distinctions:
The decision turned on the operational distinctions between classes 'A' and 'D' licences. How fine‑grained must a regulator be in assessing role‑specific risks, and what evidence suffices to justify class‑based exclusions? The Tribunal relied in part on common knowledge about bouncers facing provocation (para 15). Later decisions may require more structured evidence of differential risk.
Rehabilitation evidence:
The Tribunal found rehabilitation on the material before it (para 14). There remains room for guidance on what objective evidence of rehabilitation (e.g., time elapsed, employment history, program participation) is necessary, especially where offences are of varying seriousness.
Interaction between international instruments and domestic statutory interpretation:
The Tribunal referred to Article 6(1) of the International Covenant on Economic, Social and Cultural Rights as contextual support (para 30), but acknowledged treaties are not domestic law. How persuasive should such instruments be in licensing decisions remains an open, factual and legal question.
Precedential weight of tribunal decisions applying the principle of legality:
ACAT applied High Court authority. The extent to which other tribunals and lower courts will adopt the same approach in varying regulatory schemes will evolve with subsequent decisions.
Conclusion: This ACAT decision applies established interpretive principles to a licensing refusal and provides a clear, practical template for balancing convictions and rehabilitation evidence with the public interest, while emphasising that a prima facie right to work is an important but rebuttable factor in that balancing exercise (see paras 27, 30, 34).
Catchwords
OCCUPATIONAL DISCIPLINE - licensing - Security Guard - review of decision to refuse application for licence - criminal offences- public interest - presumption of right to work-**
Judgment (78 paragraphs)
[1]
The Applicant possessed the requisite qualifications for both categories of licence, having recently undergone the relevant training courses.
[2]
Section 21 of the Act provides relevantly that:
[3]
'the Commissioner for Fair Trading must not issue or vary a license unless:
[4]
(iv) it is otherwise in the public interest to license the applicant
[5]
The 'public interest' test is in part defined in section 23 which requires that consideration must be given to:
(a) relevant criminal offences: and
(b) 'any other relevant matter'
[6]
On 5 January 2010 the Respondent refused to grant the licence on the basis of the Applicant's prior history of criminal convictions. The Respondent took the Applicant's view that it was not in the public interest to issue the licences
[7]
The Applicant's criminal record was in evidence and showed the following convictions:
[8]
On 27 January 2010 the Applicant exercised his right of appeal to the Tribunal under section 37 of the Act to review the decision. In his letter of appeal the Applicant said the following and annexed various personal references:
[9]
Whilst I understand the decision made by the Delegate, I would like to appeal this decision based on the following:
[10]
I have made a conscious effort to relocate myself from negative influences in my life. This has involved a move from Wagga to Canberra in which I have focused on my music career as a DJ. I have also cut ties with individuals who have had less than positive impact on my lifestyle.
[11]
I have dedicated the last three years of my life to making sure I make responsible decisions including ensuring that I have regular income through using my own initiative in the music industry. I have developed many business contacts that have also helped me progress.
[12]
Whilst I believe that the Delegate is justified in considering my previous actions in refusing my application, I believe the decisions I have made over the past few years have greatly increased my ability to maintain a security licence with a professional approach.
[13]
I deeply regret some of my actions in the past and believe that I have changed the way I view my life and how I can be a successful individual.
[14]
I have also surrounded myself with positive people who have helped me develop a clearer outlook on both my lifestyle and career.
[15]
Please see attached character references as an example.
[16]
The matter was listed for directions before the Tribunal on 5 March 2010 at which time procedural orders were made for the Applicant to file and serve any evidence he relied upon. The Applicant filed the following statement together with further character references:
[17]
I am writing this letter to support my application to have a review of the decision regarding my application for a security licence. I would like to address the reasons given for not granting myself the licence.
[18]
Firstly I would like to say that I have moved away from Wagga to Canberra and with the support from my girlfriend I have been able to change the negative parts of my life and move forward in a very positive manner. I see myself as a role model for my brother and sister and want them to see me as a successful person with a job and who is respected by the people who know me. This is probably the most important aspect for me of getting a security licence so I can work and gain the respect of my family and my colleagues through working hard and being reliable.
[19]
Through my current employment I have learned that it is very important that I am reliable and willing to work. This has really helped me in understand how some of my previous actions have impacted other people.
[20]
I would like now to look at the convictions listed by the delegate;
[21]
The police certificate you provided from the AFP indicates that you have convictions against you which are relevant offences under the Act, specifically;
[22]
Obtain money by deception (19 July 2007)
Obtain money by deception (19 July 2007)
Resist officer in execution of his duty ( 21 September 2006)
Destroy or damage property (21 September 2006)
[23]
I believe that the time that has elapsed since the above offences should be given considered. There has been almost three years since the last offence and almost four years since the other offence listed.
[24]
I would like to say that I in no way trying to defend my behaviour and regret them very much however I also think it is important to consider the nature of the offences as they seem to sound much worse in writing than they actually were. Firstly the obtain money by deception was for not paying for petrol on two occasions. Resist officer and damage property were in fact at the same time and was after trying to help a someone who had been bashed and was knocked out - his drunk friend grabbed me and then the police grabbed us both. I was upset and didn't behave properly and the police locked me in the police wagon where I kicked the back door open (this was the damage property).
[25]
I would now like to address what was considered by the delegate in his decision not to grant a license - the following was listed:
[26]
the convictions against you relating to obtain money by deception and destroy or damage property are relevant to the security activity that you wish to be licensed for;
the New South Wales Police fact sheet provided by the Wagga local court indicates that you were involved in the commission of the offences;
the above charges appear to relate to recent events; and
you did not supply any further information that you believe supported your suitability to work in the security industry as requested in a telephone conversation of 23 October 2009.
[27]
Point 1 -I agree that the convictions could be considered relevant but would like to stress that they could be considered of a minor nature when taken in context with circumstances (referred to above).
[28]
Point 2 -I agree with point 2 that the fact sheet states I was involved in the offences.
[29]
Point 3 -I think this point can be argued as the offences listed at the top of this letter were a considerable time ago when put in perspective. Since they occurred I have relocated to Canberra, stopped socialising with previous negative influences, been in a job for close to 10 months, committed myself in a football team and moved in with my long term girlfriend (who has been a very positive influence for me).
[30]
Point 4 -I will or have provided further information as follows:
[31]
a reference from my football coach
a reference from my partner
a reference from my employer
a reference from my friend,
[32]
The Respondent filed and served a list of authorities relied upon and the police statement of fact in relation to each of the convictions set out above.
[33]
The matter was listed for hearing on 27 May 2010 at which time the Applicant appeared in person and Ms Soper, solicitor appeared, for the Respondent. The Tribunal noted the terms of the Applicant's submissions and references. The Tribunal noted that the references did not expressly indicate knowledge of the details of the Applicant's prior offences.
[34]
A discussion occurred concerning the circumstances of each offence, the Applicant's work history and the evidence which may support the Applicant's assertion that he had reformed his behaviour since the last of the offences for which he had been convicted.
[35]
Arising out of the discussions, the Tribunal formed the view that the Applicant had matured in the last several years and that he was now living in a stable and law abiding manner.
[36]
However, the Tribunal also formed the view that it was premature to grant the Applicant a class 'D' licence to be employed as a 'bouncer' given the element of lack of self control in the face of provocation inherent in some of the previous convictions. The Tribunal is aware from its own experience, and treats as common general knowledge, the fact that bouncers at licensed premises late at night are frequently the subject of provocation by intoxicated patrons.
[37]
This does not mean that it will never be appropriate to grant the Applicant a class 'D' licence. Should the Applicant continue in his present lifestyle then the Respondent may see fit to grant a class 'D' licence in the next few years.
[38]
Different considerations apply in the case of the class 'A' licence. Employees working under these licences would rarely face intoxicated and provocative people. The role carried out by a class 'A' licence holder is more sedentary involving watching, reporting and checking on people entering buildings etc.
[39]
During the hearing the Tribunal raised with the Respondent the possibility of the grant of a class 'A' licence but the Respondent maintained its objections.
[40]
The Tribunal indicated at the time that it was not convinced that it was not in the public interest to issue the Applicant a class 'A' licence.
[41]
In the course of the discussions the Tribunal raised for consideration the second limb of the 'public interest' test in section 21(1)(a)(iv) of the Act and whether it should:
(a) be construed against the background of the Applicant's common law right to work in his chosen profession, subject to holding the requisite qualifications and subject to there being no bar at law to that course of action; or
(b) be taken to include consideration of the Applicant's existing common law right to work in his chosen profession, subject to holding the requisite qualifications and subject to there being no bar at law to that course of action; i.e. whether it is in the public interest for the Tribunal to acknowledge and place some weight upon this fundamental common law right.
[42]
If either of these propositions applied then the practical effect would be a prima facie presumption in favour of issuing a license to an applicant unless the relevant disqualifying public interest considerations outweigh that prima facie presumption.
[43]
The Respondent contended that there was no such common law right and no such presumption in favour of the Applicant. The Tribunal asked the parties to file and serve submissions on the point after which it was agreed that the Tribunal would proceed to a decision in writing without further oral hearing.
[44]
The Respondent filed its very thorough and helpful submissions the full text of which are worth reciting and are set out as an appendix to these reasons.
[45]
The Tribunal has carefully considered these submissions and notes the Respondent's view that the nature of the offences and the fact that the last such offence was only three years ago, should result in a denial of even a class 'A' license irrespective of any prima facie presumption. This is a matter of judgement of the Applicant's personality and maturity upon which the Respondent and the Tribunal have formed different views.
[46]
In forming its view concerning the class 'A' licence the Tribunal has not ignored the fact and nature of the convictions and has taken these into account in assessing the public interest. In fact these considerations were decision in the Tribunal's decision to refuse the class 'D' license.
[47]
Whether or not the Applicant can actually find work with a class 'A' licence is not a matter of immediate concern to the Tribunal although there is some evidence that such work is available to him.
[48]
In coming to its view in relation to the class 'A' license the Tribunal has taken into account:
(a) the fact of the convictions;
(b) the nature of the offences;
(c) the timing of the offences;
(d) the age of the Applicant at the time of the offences and now;
(e) the subsequent history of the Applicant;
(f) the fact that the Applicant has successfully undertaken the relevant training program for the licence;
(g) what the Applicant and his partner had to say about their current life style;
(h) the Applicant's aspirations for his future;
(i) the references (albeit acknowledging that some of the referees made no reference to the offences); and
(j) the Applicant's prima facie right to work in his chosen profession subject to possessing relevant qualifications and subject to any law to the contrary.
[49]
The Respondent has submitted that the taking into account of factor (j), is contrary to law. Counter factually, even if the Tribunal did not take into account factor (j) the consideration of the other factors would lead to the same outcome, namely the issue of a class 'A' licence. But the Tribunal does not resile from the fact that it did in fact take into account factor (j) and that factor (j) formed part of the reason for the final decision. For this reason and in deference to the thorough and useful submissions by the Respondent on the point, the Tribunal will outline its reasons for adopting factor (j).
[50]
The Respondent acknowledged by reference to various authorities the principle of statutory interpretation that requires a statute to be construed against the background of the common law and to adopt the construction that is reasonably open on the wording of the statute that does the least violence to existing fundamental common law rights, having regard to the legislative intention underlying the statutory scheme. There are many other authorities to this effect besides those cited by the Respondent. See for example (Pearce and Geddes Statutory Interpretation in Australia 6th ed pp182-190.)
[51]
The most recent such pronouncement from the High Court appears to be R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty Limited v Parramatta City Council[2009] HCA 12 where French CJ had the following to say in relation to the statutory power of a council to compulsorily acquire land for public purposes:
[52]
"5...In accordance with established principles of statutory interpretation the preferable construction is that which authorises the least interference with private property rights...
[53]
43. The terminology of "presumption" is linked to that of "legislative intention". As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. It operates in the United Kingdom as a manifestation of a "principle of legality" and has been described in Australia as an aspect of the rule of law [55].
[54]
44. In its application to property rights this long-standing interpretive principle is consistent with international developments in the recognition of human rights since World War II. Although not specifically protected by the International Covenant on Civil and Political Rights, or the International Covenant on Economic, Social and Cultural Rights, the right to property was recognised in the Universal Declaration of Human Rights and in various other international instruments [56]. Discrimination, based on race, in relation to the enjoyment of property rights is prohibited by Art 5 of the International Convention on the Elimination of all Forms of Racial Discrimination 1965[57].
[55]
As indicated by French CJ the presumption against the invasion of fundamental common law rights is now generally subsumed within the rubric of 'the principle of legality' along with other presumptions (Spigelman CJ Opening Address to the NSW Bar Association 2005 79(12) ALJ 769). The 'principle of legality' has been adopted by Gleeson CJ in Al-Kateb v Godwin[2004] HCA 37; (2004) 219 CLR 562 at [19] and by Kirby J in Daniels Corporation v ACCC(2002) 213 CLR 553 at 582:
[56]
The principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary the courts therefore presume that even the most general words were intended to bed subject to the basic rights of the individual...
[57]
The presumption operates strongly in relation to 'fundamental common law rights' but only weakly in relation to general common law doctrines (Coco v Q[1994] HCA 15; (1994) 179 CLR 427 at 437; Bropho v W.A.(1990) 170 CLR 1 at 17; Malika Holdings v Stretton(2001) 204 CLR 290 at 28; Gifford v Strang Patrick Stevedoring P/L(2003) 204 CLR 290).
[58]
The presumption against invading fundamental common law rights applies to all species of vested fundamental rights recognised by the common law and not just to rights related to real or personal property. See for example Pearce and Geddes at p189-90 where a list of relevant cases is set out. It includes the right at common law to participate in the market place i.e. the right of freedom to enter contracts whether for the sale or purchase of goods or services (including a person's own labour).
[59]
The right to participate in the market and for a person to sell their labour and skills in their chosen vocation is a fundamental right. The status of this right is expressly recognised in Article 6(1) of the UN International Covenant on Economic, Social and Cultural Rights which was signed by Australia in 1972 and ratified in 1980 and in the common law of the US and India. Without the right to participate in the market in this way a citizen may be:
(a) deprived of his or her capacity to earn income for the support of the person and his/her dependents
(b) forced to accept employment substantially beneath his/her capacity with a consequential diminution in income;
(c) denied the capacity to develop a career with the attendant issues of personal satisfaction
(d) generally marginalised in society.
[60]
The fundamental nature of the right is also affirmed in the common law doctrine that prevents contracts in restraint of trade as being contrary to the public interest (see Sappideen, O'Grady and Warburton, Macken's Law of Employment at [4.155]).
"The law treats unreasonable restraint as unenforceable because it is contrary to the public welfare that a man should unreasonably be prevented from earning his living in whichever lawful way he chooses and that the public should unreasonable be deprived of the services of a man prepared to engage in employment...
[63]
In construing the Act it is necessary to have regard to the context of the Act as a step prior to the identification of any ambiguity or uncertain in the Act (CIC Insurance Ltd v Blacktown Football Club Ltd 1997 187 CLR 384 at 408). The context includes the nature of the Act, its legislative precursors and the mischief that the Act was aimed at.
[64]
This is particularly important in the context of regulatory statutes such as the Security Industries Act 2003. Regulatory statutes are those that purport to regulate the right or manner in which citizens may carry out hitherto lawful conduct. Regulatory statutes do not create the right to engage in the conduct in question, rather a regulatory statute operates upon the existing right to engage in lawful conduct to modify that right in some way.
[65]
If the existing right to engage in particular conduct derives solely from an earlier statute then there are principles of statutory interpretation that apply to resolve conflicts between statutes. The present presumption applies only where the existing right to engage in the conduct in question derives from the common law and requires a conservative construction of the regulatory statute so as to achieve the least violence to the existing fundamental rights that is consistent with the wording of the statute and the statutory scheme.
[66]
In the present case the Respondent denies that there is or was any pre-existing right at common law for a citizen to engage in their chosen vocation (subject to possessing requisite qualifications and any lawful bar). On this premise the Respondent then denies the operation of the presumption referred to above.
[67]
The Respondent concedes that a right to work has been recognised in the common law of India and the United States.
[68]
The Respondent notes that Article 6(1) International Covenant on Economic, Social and Cultural Rights explicitly recognises the right to work in a chosen vocation but denies that this Covenant forms any part of domestic law in Australia. Nevertheless, Australia is a signatory to this Covenant which therefore brings into play the principle of statutory interpretation whereby the preferred construction of a statute enacted subsequent to a treaty is that which is consistent with Australia's international obligations (Pearce and Geddes at pp75-79 for authorities; Minister for Immigration and Ethnic Affairs v Teoh(1995) 182 CLR 273 at 287; Al-Kateb v Godwin[2004] HCA 37; (2004) 219 CLR 562).
[69]
Before reverting to authorities, it is convenient to note the obvious point that security officers of various forms, including those covered by class A and D licences under the Act, existed before the Act and before any statutory regulation of their vocation. There is no suggestion that the engagement of people in these vocations prior to the first enactment of a statutory regulation of the vocation was unlawful. If not unlawful then it was lawful. Thus the first regulatory statute was enacted to regulate an existing vocation.
[70]
The right of citizens to sell their labour as security agents is a species of the common right to contract and pre-existed any statutory regulation in the ACT.
[71]
The Respondent's contention that there is no common law right to work in a chosen vocation recognised in Australian at common law is not correct. In addition to the restraint of trade cases referred to above, Pearce and Geddes cite two authorities in support of the principle; Commonwealth v Progress Advertising and Press Agency Co P/L[1910] HCA 28; 1909 10 CLR 457 and Committee of Direction of Fruit Marketing v Collins[1925] ArgusLawRp 53; (1925) 36 CLR 410).
[72]
In Progress Advertising O'Connor J noted the following:
[73]
"In ascertaining what was the real intention of the legislature two well known principles of interpretation must be applied. The first is that, as every citizen is at liberty primâ facie to carry on his business in his own way within the law, it will not be held that the legislature has intended by any Statute to impair that liberty unless it has expressed that intention by plain words or by necessary implication from the language it has used. The second rule is that general words in a Statute will ordinarily be construed with no wider meaning than is necessary to carry into effect its object and purpose."
[74]
'Even if (contrary to my opinion) the words used in the Act were equally consistent with the existence of these powers and with their non-existence, the Legislature "must not be deemed to take away or extinguish the right" of the growers or agents to carry on their business "unless it appear, by express words, or by plain implication, that it was the intention of the Legislature to do so" (Western Counties Railway Co. v. Windsor and Annapolis Railway Co.[16]).'
[75]
'It is a sound rule of construction that the rights of citizens are not to be destroyed or taken away "unless you have plain words which indicate that such was the intention of the Legislature" (cf. In re Cuno; Mansfield v. Mansfield[19]; London and North-Western Railway Co. v. Evans[20]). "Prima facie a trader in a free country in all matters not contrary to law may regulate his own mode of carrying on his trade according to his own discretion and choice" (Mogul Steamship Co. v. McGregor, Gow & Co.[21]). Clearly, the statute has interfered with this right to some extent, and the question is - to what extent? The words "take control of the marketing" point, I think, to supervision of the operations rather than to the conduct of the operations themselves.'
[76]
DATE/S OF HEARING: 14 July 2010 PLACE: CANBERRA
[77]
DATE/S OF DECISION: 14 July 2010 PLACE: CANBERRA
[78]
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
Parties
Applicant/Plaintiff:
R & R Fazzolari Pty Limited
Respondent/Defendant:
Parramatta City Council;
Legislation Cited (2)
Industry Act 2003
Industries Act 2003
Cases Cited (18)
JOSHUA QUINTON & COMMISSIONER FOR FAIR TRADING (Occupational Discipline) [2010] ACAT 50 (14 July 2010)
ACAT ordered the Commissioner to issue the applicant a licence for the purpose of s 13(1)(a) (class 'A'). The Tribunal refused to grant a class 'D' licence, finding it premature given the applicant's prior offences involving lack of self-control (Order; paras 14-18, 27-28).