Sauturaga v Commissioner of Police, NSW Police Force

NCAT Occupational|2018-12-10

Solicitors: Kalpaxis Legal (Applicant) Office of General Counsel, NSW Police Force (Respondent) File Number(s): 2018/00352792

REASONS FOR DECISION

The applicant, Mr Bainivalu Sauturaga, has worked in the security industry for many years. He has held a licence since 2001. His most recent security licence was a Class 1AC licence which was due to expire on 15 September 2018. Prior to the expiry of the licence he lodged a renewal application. On 18 September 2018 the respondent, the Commissioner of Police, NSW Police Force (the Commissioner), revoked Mr Sauturaga's licence because he had been convicted on 5 March 2014 of the offence of "assault occasioning actual bodily harm (DV)" and discharged under the provisions of s 9 of the Crimes (Sentencing Procedure) Act 1999 on the condition that he enter into a good behaviour bond for a period of 18 months. Mr Sauturaga had not appealed against the severity of that sentence.
Mr Sauturaga sought internal review of that decision and the decision to revoke the licence was affirmed on 26 October 2018. He lodged an application for review of that decision with this Tribunal on 16 November 2018.

The legislation

The Security Industry Act 1997 (the Act) establishes a scheme for licensing people to carry on security activities. Section 26(1A) of the Act provides that the Commissioner must revoke a licence where the Commissioner is satisfied that, if the person were applying for a new licence, that application would be required by the Act to be refused. Section 16(1) of the Act sets out a number of mandatory grounds for refusing an application for a licence.
Of relevance to this matter is s 16(1)(a) which provides that the Commissioner must refuse to grant 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 in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law.
Clause 15 of the Security Industries Regulation 2016 (the 2016 Regulation) prescribes certain offences for the purposes of s 16(1)(a). These include in cl 15(1)(c): (c) Offences involving assault An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being an offence in respect of which the penalty imposed includes any term of imprisonment (whether or not suspended), an intensive correction order, a community correction order, a conditional release order, a good behaviour bond, a community service order or a penalty of $200 or more.
The 2016 Regulation replaced the Security Industry Regulation 2007 (the 2007 Regulation) with effect from 1 September 2016. Under cl 18(1)(c) of the 2007 Regulation, in relation to offences involving assault, it was mandatory for the Commissioner to refuse a licence in the following circumstances: 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 is imprisonment, or a fine 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.

The hearing

The matter was listed for "Preliminary hearing" of the issues raised by Mr Sauturaga concerning validity of the relevant clause in the 2016 Regulation. At the hearing, the parties agreed that the hearing should also proceed to deal with the substantive issue in dispute.

The issues

When Mr Sauturaga was convicted of the assault offence in 2014 and given a good behaviour bond, the relevant provision in the 2007 Regulation did not include the words "an intensive correction order, a community correction order, a conditional release order, a good behaviour bond, a community service order" which now appear in the 2016 Regulation. That is, at the time of his conviction, the legislative scheme did not mandatorily require a Class 1AC licence to be revoked upon a person receiving a good behaviour bond as a penalty.
Mr Sauturaga submits that his licence should not now be mandatorily cancelled under cl 15(1)(c) of the 2016 Regulation, primarily because cl15(1)(c) is ultra vires and invalid. The following issues therefore arise for determination: 1. the Tribunal's power to determine the validity of delegated legislation; and 2. if the Tribunal does have such power, whether cl 15(1)(c) of the 2016 Regulation is so inconsistent, unreasonable or repugnant to the purpose or object of the Act that it is invalid or ultra vires.
Mr Sauturaga does not argue that cl 15(1)(c) is invalid because it has retrospective effect. Indeed, the Appeal Panel in Lokondo v Commissioner of Police [2017] NSWCATAP 137 considered that very issue and held at [46] that cl 15(1)(c) does not act retrospectively, "but rather regulates future conduct by reference to events that occurred before those events were identified as constituting a basis for the exercise of the revocation power".
In this matter, Mr Sauturaga also identifies a further issue which is whether the Commissioner has correctly interpreted the phrase "in relation to the class of licence sought" in s 16(1)(a) of the Act.
The final issue is, of course, whether it is the correct or preferable decision that Mr Sauturaga's licence be revoked.

Power in relation to validity of delegated legislation

In Doyle v Commissioner of Police [1999] NSWADT 84, in considering an argument as to the validity of a clause in an earlier Regulation made under the Act, President O'Connor DCJ, after referring to relevant authorities, held that the Administrative Decisions Tribunal (ADT) could make findings relating to the validity of the delegated legislation relating to a reviewable decision but stated at [35]: My conclusion is that this Tribunal should only proceed to examine closely the validity of subordinate legislation where a compelling case can be demonstrated by the applicant rather than one that is merely arguable… This Tribunal should not become the forum for the pursuit of objections that are merely arguable. These should be left to judicial review proceedings.
The ADT and this Tribunal have gone on, in appropriate matters, to examine the validity of legislative provisions.
The Commissioner referred to the recent judgment of the Court Appeal in Attorney-General for New South Wales v Gatsby [2018] NSWCA 254 in which the Court held that this Tribunal, although in some circumstances it exercises judicial power, is not a "court of a State" within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution. The Commissioner states that Mr Sauturaga's submission that cl 15(1)(c) of the 2016 Regulation is invalid amounts to an application for a declaration that the clause is beyond legislative power. As such, he should have commenced proceedings in the Supreme Court, not the Tribunal.
Mr Sauturaga points out, quite rightly, that Gatsby was concerned with whether the Tribunal could exercise Federal jurisdiction as a "court of a State" to determine matters between "residents of different States". In this matter, the Tribunal is not being asked to exercise Federal jurisdiction in the capacity of a "court of a State". Mr Sauturagu submits that the views set out by the High Court in Re Toohey; Ex parte Northern Land Council (1981) CLR 170, as referred to by President O'Connor in Doyle, remain applicable to the power of the Tribunal to determine the validity of legislative provisions.
In Re Toohey the High Court held that the Aboriginal Land Commissioner had power to decide on the validity of a particular regulation so he could determine whether an Aboriginal land claim in an area near Darwin came within the relevant legislation. In that case it was argued that the relevant legislation was invalid because it was made for the ulterior purpose of ensuring a significant area of land could not be the subject of a land claim.
The applicant referred to President O'Connor's decision in Bourke & Ors v NSW Commissioner of Police [1998] ADT in which he stated that the mandatory refusal provisions in the security industry legislation are "quite draconian" and "harsh". The scheme can operate to exclude people currently engaged in steady employment in the industry in circumstances where they have been found guilty of a quite minor conviction in the past but have had several years of good conduct.
There is no doubt that the 2016 Regulation means that people who had previously not been within the purview of the earlier similar regulation are now caught by its provisions. In Mr Sauturaga's case it would appear that, but for the inclusion in cl 15(1)(c) of the 2016 Regulation of a good behaviour bond in the list of penalties for an offence involving assault, his licence would have not been revoked and indeed would most likely have been renewed by the Commissioner.
Prior to the 2016 Regulation coming into force it was possible for a person who had received a good behaviour bond for an offence involving assault to appeal to a higher court for no conviction to be recorded. Where such an appeal was successful, cl 18(1)(c)(ii) of the 2007 Regulation meant that refusal was mandatory if the Commissioner, and the Tribunal, was of the opinion the offence was "a serious assault offence". That is, refusal was not mandatory unless the Commissioner or Tribunal was of the opinion the offence was a serious assault. The applicant states that the opportunity for Mr Sauturaga (and others like him) to argue that his offence did not involve a serious assault has now been lost as a result of the 2016 Regulation.
The applicant submits that cl 15(1)(c) leads to manifest arbitrariness or partiality such that it could not be within scope of what Parliament intended when authorising such subordinate legislation to be made. He argues that the 2016 Regulation goes beyond what is proportionate to give effect to the purpose of the Act. Therefore, he submits, cl 15(1)(c) goes beyond the scope and purpose of the Act and is ultra vires. The applicant argues that in light of the above circumstances there is a compelling case for the Tribunal to examine the validity of cl 15(1)(c).
The Commissioner submits that the applicant has failed to demonstrate that there is a compelling case which would necessitate the Tribunal examining the validity of the 2016 Regulation. Even if the applicant's case is arguable, it does not meet the high threshold of "compelling".
I am not convinced that the applicant has established that there is a compelling case to consider whether the 2016 Regulation is invalid. The fact that the legislation involves the mandatory refusal of a licence does not in and of itself give rise to a compelling case to consider invalidity. Sub-section 16(1)(a) of the Act clearly contemplates a scheme of prescribed offences which would result in mandatory disqualification form holding a security licence. As the respondent points out, President O'Connor in Doyle was also dealing with provisions concerning the mandatory refusal of a licence. He was of the opinion that the relevant regulation was not "so vague or uncertain as to be incapable of interpretation" and therefore found no compelling circumstances present to justify examining validity.
The fact that Mr Sauturaga, at the time of his conviction, did not seek to have the conviction set aside, is not a relevant matter in establishing whether there is a compelling case to consider validity of the 2016 Regulation.
Both parties referred to the leading cases on invalidity which, without traversing those cases in detail, establish that subordinate legislation may be invalid on the basis that it is inconsistent with the Act, extends the operation of the Act or is unreasonable. There is nothing in the material submitted by the applicant which establishes that there is a compelling case - to the extent that invalidity is more than merely arguable - to justify examining the validity of the Regulation.
Indeed, in Lokondo, the Appeal Panel noted that cl 15(1)(c) of the 2016 Regulation addressed an apparent lacuna in the 2007 Regulation. The Appeal Panel noted cl 18(1)(c) of the 2007 Regulation prescribed offences by reference to outcomes reflecting "either end of the spectrum of the range of possibilities following a conviction". An assault offence was prescribed if, on the one hand, a fine was imposed or, on the other, a custodial sentence was imposed. The clause did not address the not uncommon circumstance that a conviction for assault is entered but a non-custodial order made, either in the form of a requirement to enter a good behaviour bond or in the form of a community service order. This was the apparent lacuna addressed in the 2016 Regulation.
The applicant has submitted that, if I determine there is no compelling case to examine validity of the Regulation, I should adjourn to enable him to seek judicial review to have the matter authoritatively decided. The Commissioner submits that it is not appropriate to follow that course.
For the reasons outlined above I do not consider there is a compelling case to examine the validity of the legislation. I also do not consider it appropriate to adjourn the matter to allow Mr Sauturaga to seek judicial review. Mr Sauturaga chose to commence action in the Tribunal and the most efficient exercise of the Tribunal's powers is to deal with the case to finality.

Interpretation of the phrase "in relation to the class of licence sought"

As set out above, s 16(1)(a) provides that the Commissioner must refuse to grant a licence if the Commissioner is satisfied that the applicant has, within the relevant period, been convicted of an offence prescribed by the regulations in relation to the class of licence sought. The applicant submits that the phrase "in relation to the class of licence sought" was inserted into the legislation by the Parliament for a purpose and referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where the High Court stated that "a court construing a statutory provision must strive to give meaning to every word of the provision".
The applicant submits that the phrase "in relation to" suggests the conviction for the prescribed offence must somehow be connected with, or related in a particular way to, or be in the context of the class of licence. He gives the example of a person who is convicted of a prohibited drug offence whilst employed in the responsible service of alcohol and who subsequently applies for a Class 1AC security licence and states there is a sufficient nexus or connection so that the prescribed offence is "in relation to" the licence sought.
Mr Sauturaga's conviction arose in the context of a domestic dispute. He states that it was a single, isolated incident which has never been repeated. As the offence did not occur in connection with the class of licence sought in that it was not in the context of the performance of duties similar to or related to the Class 1AC security licence sought, he submits his circumstances do not come within s 16(1)(a) of the Act but fall to be considered under other provisions which do not involve mandatory refusal.
The applicant's argument is essentially that there must be some kind of nexus or connection between the offence and the type of licence sought for the offence to be disqualifying. The Commissioner submits that such a construction does not reflect the plain and ordinary meaning of the words of the section.
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 the High Court stated at [47]: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
I agree with the submissions of the Commissioner that, on a plain reading of the text, the phrase "in relation to the class of licence sought" is referable to the words that immediately precede it, that is, "prescribed by the regulations". A decision-maker must therefore decide whether the regulations prescribe the offence of which the applicant has been convicted for the purposes of an application for this particular class of security licence. It is the conviction for the prescribed offence, so long as that offence is prescribed for the class of licence sought, which triggers disqualification. This does not involve any assessment of whether the offence is somehow connected to or related to the type of licence sought. To interpret the provision in that way would be to introduce an element of uncertainty and discretion which is clearly not intended in a scheme which establishes mandatory disqualification in certain circumstances.

Conclusion

Mr Sauturaga has provided evidence of his good character and reputation which I accept and he has the support of his family. While I am satisfied that his conviction arose out of particular circumstances and is extremely unlikely to be repeated, these are not matters I can take into the account. The wording of the Act and 2016 Regulation are such that the Commissioner, and the Tribunal on review, has no discretion in this matter. Mr Sauturaga has been convicted of an offence involving assault for which he received a good behaviour bond. That is an offence prescribed by cl 15(1)(c) of the 2016 Regulation. The licence must therefore be revoked.

Orders 1. The stay order made on 22 November 2018 is revoked. 2. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 15 July 2019

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (5)

Cited By (2)