STAR Training Academy Pty Ltd v Commissioner of Police

NCAT Appeal Panel|2021-10-25|Before: Ms J

sioner of Police [2004] NSWADT 34 Texts Cited: None cited Category: Principal judgment Parties: STAR Training Academy Pty Ltd - Appellant Commissioner of Police, NSW Police Force - Respondent Representation: Counsel: Ms J Alderson (Appellant) Mr H El Hage (Respondent)

Solicitors: Piper Alderman (Appellant) Maddocks (Respondent) File Number(s): 2021/278973 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATOD 166 Date of Decision: 20 October 2021 Before: K Ransome, Senior Member File Number(s): 2021/00269061

The ground of appeal.

The appeal proceeded on the basis that the ground of appeal is that set out in paragraph 4 of STAR's submissions on appeal, namely whether the Tribunal erred in finding that the decision of the Commissioner to revoke an approval under s 27A, is not subject to administrative review under s 29(1).
Section 27A is concerned the provision of approved training, assessment and instruction under the SI Act for the purposes of ss 15(1)(d), 17(7), 21A and 23E. It provides: (1) The Commissioner may approve persons or organisations to provide, for the purposes of sections 15 (1) (d), 17 (7), 21A and 23E, training, assessment and instruction that is of a kind approved, and to a standard required, by the Commissioner. (2) The approval of any such person or organisation by the Commissioner: (a) is subject to such conditions with respect to the provision of training, assessment and instruction by the person or organisation as may be imposed by the Commissioner, and (b) may be suspended or revoked at any time by the Commissioner.
Section 29(1) provides a right to seek administrative review of certain decisions by this Tribunal. It provides: (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions: (a) the refusal or failure by the Commissioner to grant a licence to the person, (a1) the refusal or failure of the Commissioner to renew a licence, (b) a condition imposed by the Commissioner on a licence granted to the person, (c) the revocation or suspension of a licence granted to the person.
The issue raised on appeal is therefore one of statutory interpretation concerning whether the revocation of an approval under s 27A gives rise to a right to seek administrative review under s 29(1). The Tribunal decided that it did not and dismissed STAR's administrative review application for lack of jurisdiction. STAR says this is wrong, as a question of law, and that s 29(1) allows it to seek administrative review of the Commissioner's decision to revoke its approval under s 27A(2)(b). The Commissioner argues that the Tribunal correctly interpreted the SI Act, and that section 29(1) does not allow for administrative review of the decision to revoke STAR's approval.

Is leave to appeal required?

Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) is concerned with internal appeals. It relevantly provides- (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
In its notice of appeal STAR did not seek leave to appeal, being of the view that the decision of the Tribunal to dismiss its administrative review application due to a lack of jurisdiction is an "ancillary decision" within the meaning of the NCAT Act, and, that leave was not required. The Commissioner on the other hand submitted that leave to appeal is required because the decision of the Tribunal is an interlocutory decision to which s 80(2)(a) of the NCAT Act applies to require leave to appeal.
The Commissioner did not want to be heard on the issue of whether or not the appeal satisfied the requirements for leave to be granted, if required. STAR submitted that if leave is required it should be granted because of the public importance of the issue of construction.
Both interlocutory decision and ancillary decision are defined in s 4 of the NCAT Act: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceeding. … interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal.
In its order dismissing STAR's administrative review application the Tribunal purported to do so under s 55(1)(b) of the NCAT Act, on the express basis that, "the Tribunal has no jurisdiction to review the decision of the respondent." Section 55(1)(b) allows the Tribunal to summarily dismiss proceedings that the Tribunal considers to be "frivolous or vexatious or otherwise misconceived or lacking in substance." Dismissal for want of jurisdiction indicates that the Tribunal has concluded that it does not have power to hear the application. While the commencement of proceedings for which the Tribunal does not have jurisdiction may, in appropriate circumstances, be frivolous, vexatious, misconceived or lacking in substance, or a mixture of them, dismissal for lack of jurisdiction is made on a fundamentally different basis: the lack of power to hear the application.
In DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 at [31] the Appeal Panel, when confronted with the issue of whether a jurisdictional dismissal is an ancillary or interlocutory decision, said: 31 We are satisfied that the decision is not an interlocutory decision, because it does not fall within any of the paragraphs in the meaning of 'interlocutory decision'. While the decision falls within s 55(1)(b) of the NCAT Act, in our opinion it cannot be defined as a 'summary' decision because it effectively determined to finality the administrative review application of the appellant. 32 Accordingly we find that the decision is an ancillary decision. This means that the appellant does not need leave to appeal on a question of law.
In making that decision, the Appeal Panel noted that in AQO v Minister for Finance and Services [2016] NSWCA 248; (2016) 93 NSWLR 46 Basten JA, in obiter, had addressed the issue of whether a decision is ancillary or interlocutory. His Honour expressed the view that a summary dismissal based on a lack of jurisdiction is interlocutory in nature, but also pointed to a number of complexities affecting the issue found in the NCAT Act. At [127] and [128] Basten JA said: [127] It is true that there is a specific reference to a decision regarding the jurisdiction of the Tribunal in the definition of ancillary decision and it may be inferred that the Appeal Panel thought that the specific reference to jurisdiction determined the issue. However, it appears from the chapeau to the definition of ancillary decision that one must determine that the decision is "other than an interlocutory decision" before coming to specific paragraphs which identify, non-exhaustively, what is meant by the term. If jurisdiction were determined as part of the final determination of a matter by the Tribunal, it might constitute an ancillary decision; however the refusal of a summary dismissal application, albeit based on an alleged absence of jurisdiction, is almost certainly an interlocutory issue, falling within either par (h) or par (i) of the definition of interlocutory decision. [128] A contrary approach might rely upon what appears to be an internal inconsistency in the chapeau to the definition of ancillary decision, which envisages a decision which is "preliminary to" a final determination but is not an interlocutory decision. It is unfortunate that members of the public, in seeking to resolve disputes before a Tribunal which is meant to facilitate the just, quick and cheap resolution of the real issues in proceedings, and which is required to dispense with formality, are faced with such potentially confusing provisions.
This passage was also considered by the Appeal Panel in Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202. The Appeal Panel observed at [25] - [26]: 25 At [128], Basten JA identifies one basis for a contrary approach. Another textual indication that jurisdictional decisions are ancillary decisions is the use of the word "matter" rather than "proceedings" in the definition. That choice of words suggests that an application to NCAT for administrative review does not amount to a "proceeding" unless the Tribunal has jurisdiction to deal with the application. That terminology is also consistent with the Tribunal having a duty to satisfy itself that it has jurisdiction in relation to an application, whether or not a respondent applies for the matter to be dismissed. Interpreted in that light, a decision which concerns whether the Tribunal has jurisdiction to deal with a matter is not dependent on an application having been made for summary dismissal. 26 Despite ostensibly being made under the summary dismissal power, the Tribunal's decision is not a summary dismissal of "proceedings". The Appeal Panel came to the same view in DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 at [25]-[35] and Dubow v Mid-Western Regional Council [2019] NSWCATAP 242 at [11]. The decision also meets the other two requirements in the definition of ancillary decision. It was preliminary to a decision determining "proceedings" and it concerned whether the Tribunal has jurisdiction to deal with a matter. For those reasons, it is an ancillary decision and leave to appeal is not required.
In Dubow v Mid-Western Regional Council [2019] NSWCATAP 242 the Appeal Panel had before it an appeal in which the Tribunal had dismissed administrative review applications "for want of jurisdiction." With respect to the nature of that decision the Appeal Panel found that it was an ancillary decision. The Appeal Panel explained, at [11]: The Tribunal's decision that it does not have power to review the decisions purportedly made under the Iocal Land Services Act is an "ancillary" decision (see the discussion in DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 at [24]-[35]). It concerns whether the Tribunal has jurisdiction to deal with a matter: NCAT Act, s 4. Ms Dubow may appeal from such a decision "as of right on any question of law": NCAT Act, s 80(2)(b). The question of law on which the Tribunal's decision turned was the construction of s 116(3) of the Local Land Services Act and of s 38 of the Impounding Act.
The decision of the Tribunal in the present case is based on a finding that the Tribunal did not have jurisdiction to administratively review the revocation of STAR's approvals. In the light of the weight of the authority and the express wording of the definition of ancillary decision, we are satisfied that the decision of the Tribunal is an ancillary decision. It is a preliminary decision made by the Tribunal under the ADR Act that it did not have jurisdiction to review the revocation of an approval under the SI Act. As it is an ancillary decision, leave is not required to appeal, and STAR may appeal as of right on a question of law.
If that were not the case, this is a matter in which we would have granted leave to appeal if necessary. Like the Appeal Panel in Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202 at [27] we think that leave should be granted because of the "fundamental importance of the principle that the Tribunal must satisfy itself that it has jurisdiction to deal with a matter." We also think that the important and apparently novel question raised by these proceedings, namely whether the revocation of an approval under s 27(1) of the SI Act gives rise to a right to seek administrative review of that decision under s 29(1), is such that leave should be granted: see Collins v Urban [2014] NSWCATAP 17; Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24.

The Security Industry Act 1987.

The SI Act does not contain an objects clause or a statement of statutory purposes. The long title of the SI Act says that it is: An Act to provide for the licensing and regulation of persons in the security industry; to repeal the Security (Protection) Industry Act 1985; and for related purposes.
The SI Act consists of five parts: Part 1 - Preliminary; Part 2 - Licences; Part 3 - Miscellaneous offences relating to licences; Part 3A - Visitor permits; Part 3B - Enforcement; and Part 4 - Miscellaneous provisions. It will be necessary to spend some time examining the provisions of the SI Act, and the history of some amendments to it, in order to properly understand the context of the Act in which the provisions of s 29(1) concerning administrative review are to be construed by the Tribunal.
Part 2, Division 1 - Preliminary. Section 3 contains a number of definitions which are central to an understanding of the operation of the SI Act. These include - approved means approved by the Commissioner from time to time. licence means a licence in force under this Act. licensee means the holder of a licence. master licensee means the holder of a master licence. security activity is defined in section 4.
Section 4 provides what activities, whether undertaken in employment or in the course of conducting a business, are to be regarded as security activities for the purposes of the Act. That definition is then used then used as a key criteria when providing for the licensing and regulation of security activities. Among the security activities referred to in s 4(1) are: (j) providing training or instruction in relation to any security activity referred to in this section, (k) assessing another person's training, instruction or competencies in relation to any security activity referred to in this section. These, together with other amendments to the meaning of security activity and substantial amendments to other licensing provisions, were introduced by the Security Industry Amendment Act 2005 (NSW) commencing 1 September 2007.
Part 2, Division 2 - Requirement for a licence. Section 7 prohibits the provision of persons to carry on security activities unless the provider is the holder of a master licence authorising the provision of that number of persons to carry on security activities. Persons must not carry out a security activity unless they hold a class 1 or class 2 licence that enables them to carry on that activity. Part 2, Division 2 also specifies licence classes. Section 10 provides for master licences to be issued in named classes, MA to ME, which specify the number of persons who may carry on security activities on any one day. The persons who actually undertaking the security activities, rather than providing persons to do so, hold class 1 or 2 licences.
Part 2, Division 3 - Licensing procedures and criteria. This division contains a number of important mechanical provisions essential to the licensing and regulation of the security industry. These include a provision stipulating how to apply for the grant of licence (s 14) and provisions setting out essential suitability criteria (s 15), provisions relating to the criminal and related history of applicants (s 16) and dealing with potential conflicts of interest that might prevent police officers being granted a licence (s 16A). Among the general criteria which s 15(1) says an applicant for a licence must satisfy is that he or she is: (a) is a fit and proper person to hold the class of licence sought by the applicant, or (b) is of or above the age of 18, or (c) has the competencies and experience approved by the Commissioner, or (d) has undertaken and completed the training, assessment and instruction that is approved for the class of licence sought by the applicant, or (e) is competent to carry on the security activity to which the proposed licence relates, or (f) is an Australian citizen or a permanent Australian resident, or holds a visa that entitles the applicant to work in Australia (other than a student visa or a working holiday visa).
Before the commencement of the amendments introduced by the Security Industry Amendment Act 2017 on 9 May 2017, s 15 contained the following subsections, which were repealed by the 2017 amendment Act: (2) For the purposes of subsection (1) (d), the requisite training, assessment and instruction for a class of licence is training, assessment and instruction in relation to the carrying on of security activities under a licence of that class: (a) that is of a kind approved, and to a standard required, by the Commissioner, and (b) is provided by such persons or organisations as are approved by the Commissioner for the purposes of this section. (2A) The Commissioner may impose conditions with respect to the provision of training, assessment and instruction by any person or organisation approved by the Commissioner for the purposes of this section. (2B) A person or organisation approved by the Commissioner for the purposes of this section must comply with any conditions imposed by the Commissioner under subsection (2A). Maximum penalty: (a) in the case of a corporation - 100 penalty units, or (b) in the case of an individual - 50 penalty units.
Section 15 was introduced into the SI Act by the Security Industry Amendment Act 2012 (NSW) which commenced on 2 November 2012.
The transitional provisions consequent upon the introduction of the Security Industry Amendment Act 2017 provided that an approval of, or an approval of a person to provide, training assessment and instructions under s 15(2) made before the repeal, is taken to be approved under s 27A. The effect of this was the approvals STAR had received in respect to approved training, assessment and instruction on 12 December 2014, were taken to be given under s 27A from the time of the Act's introduction.
Section 17 deals with applications for the renewal of licences. Subsection (4) says the Commissioner must refuse a renewal application, if the Commissioner is satisfied that a refusal would be required, were the applicant seeking a new licence. Subsection (7) provides: (7) Without limiting section 21(3), the Commissioner may grant an application for renewal of a licence on the condition that the applicant undertake and complete to the satisfaction of the Commissioner such approved training, assessment and instruction as may be required by the Commissioner to ensure the licensee has continuing knowledge and competency in relation to the security activity authorised by the licence.
Section 21 provides that the Commissioner, after considering applications and renewal applications, may "grant a licence" or "refuse to grant a licence', and that any licence granted is subject "to such conditions as may be imposed by the Commissioner." It is a condition of every class 1 or 2 licence that the licensee undertake approved training, assessment and instruction as required by the Commissioner, "in relation to the security activity authorised by the licence": s 21A.
The form of licence must comply with section 22 and contain the licensee's name, the license class or subclass, and a recent photograph of the licensee and the licensee's signature. The Commissioner has a discretion in this regard with respect to master licensees as the licensee may be a corporation. Sections 23 to 23B specify special conditions of master licences, with respect to the carrying of firearms by uniformed guards and with respect to the storage of such firearms. Section 23E provides for conditions relating to further approved training, assessment or instruction to be imposed with respect to class 1 licences: A class 1 licence that is granted on application by a person who has not, during the 3 years immediately before the application, been authorised by a class 1 licence to carry on the security activity to which the proposed licence relates is subject to the condition that the person undertake and complete, to the satisfaction of the Commissioner, such approved training, assessment or instruction as may be required by the Commissioner, within 6 months (or such longer period as the Commissioner allows) of the grant of the licence.
Section 25 says the Commissioner may suspend a licence for not more than 60 days, if satisfied that there may be grounds for revoking the licence. This can be done without giving the licensee an opportunity to be heard. The Commissioner has power to extend the suspension by not more than a further 60 days. When suspended, a licensee cannot carry out any security activity.
Section 27 is concerned with the revocation of licences. It provides: (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. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it. (3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. Note - Section 31 requires the licensee to immediately surrender the licence if the licence is revoked. (4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect. (5) For the purposes of subsection (1A), the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the licensee that: (a) is relevant to the activities carried on under the class of licence held by the licensee, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the licensee continues to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the licensee continues to hold the licence. (6) The Commissioner is not, under this or any other Act or law, required to give any reasons for revoking a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (5).
Section 27 allows the holder of a class 1 or 2 licence to apply for a variation of the kind of security activity authorised by the licence. An application for variation is to be treated in the same way as an application for a licence.
Section 27A then deals with approved training, assessment and instruction. It is worth setting it out again: (1) The Commissioner may approve persons or organisations to provide, for the purposes of sections 15 (1) (d), 17 (7), 21A and 23E, training, assessment and instruction that is of a kind approved, and to a standard required, by the Commissioner. (2) The approval of any such person or organisation by the Commissioner: (a) is subject to such conditions with respect to the provision of training, assessment and instruction by the person or organisation as may be imposed by the Commissioner, and (b) may be suspended or revoked at any time by the Commissioner. (3) A person or organisation approved by the Commissioner under this section must comply with any conditions imposed by the Commissioner under subsection (2). Maximum penalty: (a) in the case of a corporation - 100 penalty units, or (b) in the case of an individual - 50 penalty units.
Section 27A was introduced to the SI Act by the Security Industry Amendment Act 2017, which commenced on 9 May 2017. At the same time sections 15(2), 17(7), 21A(1) and 23E were amended so as to require training, assessment and instruction to be approved. The former subsections (2) to (2B) of s 15 were repealed.
Part 2, Division 4 - Review of licensing decisions. This contains s 29(1) which provides the right to seek administrative review from the Tribunal with respect to certain decisions made by the Commissioner. It is quoted in full at [15] above.
Part 3 - Miscellaneous offences relating to licences. This Part contains provisions which supplement and reinforce the licensing provisions. For example, s 29B provides that class 1 and class 2 licence holders may not carry out security activities unless employed by a master licensee. Section 39, on the other hand, prohibits master licensees from providing unlicensed persons to undertake security activities. Licensees are prohibited from delegating security activities to people who are not licensed to undertake that security activity: see s 38. Among the other provisions are those relating to the wearing of licences (s 36) and surrendering them upon suspension (s 31).
Part 3A - Visitor Permits. The provisions of this Part enable the Commissioner to declare special events (s 39) and for interstate licence holders to apply for a permit carry out activities at such an event (s 39D). The Commissioner may grant or refuse to a permit authorising the permit holder to carry on security activities specified in the permit (s 39E) in accordance with specified criteria, and subject to conditions. It is an offence to breach any condition of a visitors permit (s 39F). The Commissioner has a discretion to revoke a visitor permit in accordance with s 39G for specified conduct.
Part 3B - Enforcement. This Part contains three Divisions: Power relating to entry and search of premises; powers relating to information and obtaining records, and a general division containing s 39R which relates to the production of records. This contains a provision that provides that self-incrimination is not a ground for not answering questions or not producing records, subject to certain conditions.
Part 4 contains miscellaneous provisions.

The Tribunal's construction of s 29(1) of the SI Act.

The Tribunal's decision is reported: STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATOD 166.
STAR put a series of submissions to the Tribunal which argued that, read in context, s 27A extends to provide a right to seek administrative review under s 29(1) of a decision by the Commissioner to revoke the approval of an organisation to provide approved training, assessment and instruction. In support of this STAR's arguments included that, properly construed, s 29(1) gives an aggrieved persons a right to seek administrative review of a revocation of an approval under s 27A. Additionally, STAR argued that an approval from the Commissioner under s 27A constitutes a condition imposed upon its master licence, which carries with it a right to seek review.
In finding that the Tribunal did not have jurisdiction to review a decision to revoke STAR's approval to provide training, assessment and instruction, the Tribunal found that s 29(1) related to decisions affecting licences, not approvals under s 27A. The Tribunal rejected the contention that the revocation of an approval under s 27A amounted to the imposition of a condition on a licence. The Tribunal rejected STAR's contention that its master licence and its approval are effectively one and the same, such that the effect of revoking an approval is, in reality, the revocation of its master licence. The Tribunal explained at [33] - [34]: 33 I agree with the Commissioner that an approval under s 27A is separate and distinct from a licence. The powers of the Commissioner in relation to an approval, including imposing conditions upon the approval and revoking that approval are all contained within s 27A. There is also no requirement that an approval be in the form prescribed by s 22 in relation to licences. Section 27A is a power separate to and independent of the power under s 21 to grant a licence. In my view the previous approval power contained in the now repealed s 15(2), even though it was included in the section relating to general suitability criteria for a licence, was also distinct and separate to the licence itself. The fact that the approval referred to STAR's master licence was in my view purely for the purposes of identification and I note that the licence also referred to STAR's ACN in the same way. 34 The master licence granted to STAR permits it to carry out a range of security activities as defined in s 4(1) of the Security Industry Act. The Act makes very clear, however, that in order to carry out the activities relating to training, a further approval is required from the Commissioner. It is important to note that the Commissioner's approval is not in fact required by a licensee to undertake all types of training but only in relation to courses which may be described as being of a higher level. The Commissioner points out that even absent the approval STAR is able to run certain courses and to engage in the other security activities permitted by its class of licence.

How should the construction of s 29(1) of the SI Act be approached?

Both STAR and the Commissioner agreed that in ascertaining the meaning of s 29(1) one cannot have regard only to the literal meaning the statutory language. STAR does not dispute that the revocation of an approval under s 27(2)(b) is not a "decision" within the literal meaning of s 29(1). Rather, STAR submits that such a finding is the result of the proper construction of the section in context. The Tribunal's failure to interpret s 29(1), accordingly, is said to raise a question of law, being, did the Tribunal err in finding that the decision of the Commissioner to revoke the approvals under s 27A of the SI Act is not a decision from which a person may apply to the Civil and Administrative Tribunal for administrative review, within the meaning of s 29(1). The Commissioner acknowledges the existence of the question as properly raised but says the Tribunal did not err in its decision.
When ascertaining the meaning of a statutory provision, the statutory context must be considered from the outset in order to understand the meaning of the statutory language: Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298 at [77]; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57]; and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]. In R v A2 [2019] HCA 35 Keifel CJ and Keane J explained, at [32-33] (references omitted): 32. The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. 33. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
That is not to say that the text itself is to be ignored. Any interpretation of a statutory provision must begin with and end with consideration of the statutory text: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39].
Section 33 of the Interpretation Act 1987 (NSW) provides that in interpreting the provision of an Act 'a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object'. As is the case with the SI Act, if the purpose(s) of the Act is not expressly stated, it needs to be inferred from the Act as a whole, including its legislative history: see Saraswati v The Queen [1991] HCA 21 per McHugh J.
In construing a statutory text regard may be had to extrinsic materials. In CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408, Brennan CJ, Dawson, Toohey and Gummow JJ observed at [88] that: 88. It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
Section 34 of the Interpretation Act 1987 (NSW) is the equivalent provision in New South Wales to s 15AB of the Acts Interpretation Act 1901 (Cth). Section 34(1) provides: (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material - (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision - (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
Section 34(2) of the Interpretation Act provides a number of examples of the sort of material that may be used in construing a statutory provision. It includes relevant reports, explanatory notes and memorandum, Parliamentary speeches on the second reading and relevant treaties. Subsection (3) provides: (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to - (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and (b) the need to avoid prolonging legal or other proceedings without compensating advantage.
Recently, in Secretary, New South Wales Department of Communities & Justice; Re 'K;' and 'M' [2021] NSWSC 1314 Sakar J summarised the operation of s 34 that Act thus: Pursuant to section 34 of the Interpretation Act 1987 (NSW) ("Interpretation Act"), extrinsic material can be referred to only in situations of ambiguity, obscurity, manifest absurdity or unreasonableness, and it cannot be used to depart from a meaning determined without the extrinsic material. Ambiguity here "is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful" (Repatriation Commission v Vietnam Veterans' Association of Australia (NSW Branch) Inc (2000) 48 NSWLR 548 at [116] per Spigelman CJ; Handley JA agreeing).
With respect to the interaction between the common law position and s 34 of the Interpretation Act Bell P explained in Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 20 that, at [41]: Although s 34(1) of the Interpretation Act 1987 (NSW), which is in virtually identical terms to s 15AB of the Acts Interpretation Act 1901 (Cth), would appear to constrain the use of extrinsic materials such as explanatory memoranda and second reading speeches in the identification of statutory purpose and only permit recourse to them either to confirm the "ordinary meaning" of a statutory provision or in cases of ambiguity or obscurity or where giving effect to the ordinary meaning would lead "to a result that is manifestly absurd or is unreasonable", the modern common law of statutory interpretation permits recourse to such extrinsic materials in the absence of ambiguity and has, perhaps somewhat surprisingly, been held to authorise such use even in circumstances where that use would not be permitted under the Acts Interpretation Act and, by parity of reasoning, the Interpretation Act: see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 112; [1997] HCA 53; Consolidated Media at [39], quoted in [28] above; and see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co) at [8.160], [8.200].

Outline of submissions

The parties agree that on a literal interpretation s 29(1) of the SI Act does not provide a right to seek an administrative review in the Tribunal of a decision by the Commissioner to revoke an approval of an organisation to provide approved training, assessment and instruction. The words "approved," or "approvals" do not appear in s 29(1). On its face, s 29(1) applies, among other things, to revocations of licences under the SI Act, not to revocations of approvals.
STAR points to a number of factors that it says support its construction of s 27A. First, STAR submits that a decision to revoke an approval under s 27A is "functionally synonymous" with a decision to "revoke a licence," to which 29(1)(c) applies to give a right to administrative review. Both, STAR argues, take away the rights of persons under the SI Act to carry on "security activities" as defined in s 4. In the case of a training organisation such as STAR, the revocation of an approval has the same impact as a revocation of the licence. STAR argued that the Commissioner's interpretation allowed the Commissioner to avoid administrative review of his decision, by adopting the device of revoking an approval to provide approved training, assessment and instruction, rather than revoking the organisation's master licence. The Commissioner said, in response, that there is no reason to conflate a revocation of an approval under s 27A with a revocation of a licence under s 26. Licences and approvals under the SI Act have different meanings and purposes. The Commissioner submits that they are different things and operate in different ways.
Secondly, STAR said that the Commissioner's interpretation is contrary to the legislative intention underlying s 29(1), which provides a wide scope for review of decisions made by the Commissioner under that section. STAR submits that 'no decision of the Commissioner is expressly shielded from review by the Tribunal," relying in part on the fact that s 29(1) does not specify the sections of the SI Act under which reviewable decisions are made. It argued that the powers of the Commissioner under the Act are wide ranging and have the potential "to threaten the livelihood of individuals." STAR submitted that, under the legislative scheme, "the Act balances these powers" by the safeguards provided in s 29(1) that allow for independent review. Thus, STAR submitted, there is no basis to narrowly construe the terms of s 29(1).
The Commissioner, on the other hand, says that, read in the context, there is no basis for construing s 29(1) as applying to approvals or for reading the word "licence" in that section as including approvals. The suggestion that it is incongruous for there to be no right to seek administrative review of a decision of approvals under s 27A. when decisions under s 21, 25 and 26 relate only to licences, is rejected by the Commissioner.
Thirdly, STAR submitted that prior to the commencement of the Security Industry Amendment Act 2017 it had a right under the SI Act, as it then stood, to seek administrative review of the decision to revoke its approval to provide approved training, assessment and instruction. The Commissioner takes issue with this, saying that there was no such right.
Fourthly, STAR points to the location of s 27A in Division 3 of Part 2 of the SI Act, Licensing Procedures and Criteria, together with other provisions which enable the Commissioner to grant, revoke, and suspend licences and to impose conditions on licences: all matters that it is agreed give rise to a right to seek administrative review under s 29(1). STAR submits that the purpose of the amendments made by the Security Industry Amendment Act 2017 was to - … make it clear that the Commissioner may approve persons and organisations to deliver training - but the Commissioner's ability to 'approve' organisations was extended to when the licence was in force, rather than only at the application stage (as the powers were prior to 2017).
STAR then referred to the Explanatory Note that accompanied the Security Industry Amendment Bill 2017 to explain that s 27A - … makes it clear that the Commissioner may approve persons or organisations to provide training, assessment and instruction not only for the purposes of the requirements relating to an application for a licence but also in connection with the licence conditions under the principal Act that require the undertaking of training, assessment and instruction by a licensee while the licence is in force. Schedule 1 [2], [3], [6], [7] and [9] are consequential amendments.
STAR submitted that there is nothing in s 27A that supports a construction that it was intended to oust the Tribunal's administrative review under s 29(1). STAR relies on a number of quotes from the Parliamentary debates, where comments were made about fresh powers being given to the Commissioner to revoke or suspend "licences" without notice, and the importance Parliament attaches to recourse to protective mechanisms, such as administrative review.
Next, STAR argued that the conclusion reached by the Tribunal gave rise to a "number of serious anomalies." Foremost amongst these was that a decision of the Commissioner may have the most serious consequence on a licensee, but not be administratively reviewable, while less serious decisions carry a right to review. No example was given. This, STAR argued, was a ground for rejecting the conclusions reached by the Tribunal.
STAR relied on the observations of Campbell JA in Preston v Commissioner of Fair Trading [2011] NCWCA 40, with whom Tobias and Young JJA agreed. In that case the Court of Appeal had to consider whether a decision to impose a reprimand on licensees under the Home Building Act 1989 (NSW) (the HBA) was a decision to "impose a penalty" under that Act. If it was, then the former Administrative Decisions Tribunal had review jurisdiction under the then Administrative Decisions Tribunal's Act 1997 (NSW), now the ADR Act. In the course of a consideration of anomalies arising from the construction advanced by the Commissioner of Fair Trading (which the Court did not accept) His Honour said, at [142] - There is a further anomaly, if the Commissioner's construction is right, because the form of section 83B(3) introduced in 2001 permitted review of the decision to cancel or suspend a contractor licence, but the power of the Director-General under section 62 to cancel or suspend existed in relation to an "authority" . Thus, if "penalty" in section 83B(3)(a) did not cover the cancellation or suspension of one of the types of authority that was not a contractor licence, there would be no avenue at all under which a person who held an authority that was not a contractor licence could seek an independent review of the Director-General's decision to cancel or suspend his authority, or disqualify him from participation in the industry. In my view that is a very serious anomaly.
STAR said that the Tribunal should construe s 29(1) so as to avoid it working a manifest injustice. STAR said that interpreting the section so that it provides for a right of administrative review, from decisions revoking an approval to provide approved training, assessment and instruction, would prevent such injustice and be consistent with the statutory context.
The Commissioner rejected the suggestion that it would be incongruous for there to be no right to seek administrative review of a decision under s 27A, when decisions under ss 21, 25 and 26 relating to licences can be readily reviewed. The Commissioner submitted that it is common for an Act to enable administrative review of some, but not all, decisions made under it. The Commissioner noted that the Tribunal had instanced Taylor v Commissioner of Police [2006] NSWADT 48, [6]-[7] and Uzelac v Commissioner of Police [2004] NSWADT 34 at, [25] - [26] as examples of this.
With respect to Preston, the Commissioner observed that the true issue in that case, namely whether the issue of a reprimand amounted to the imposition of a "penalty" and gave rise to a right to seek administrative review, had been resolved by the Court of Appeal by reference to the text of the Act alone. The text and context of the SI Act, the Commissioner said, are "completely different."
Finally, STAR advanced an alternate argument, that the revocation of its approval "is tantamount" to the imposition of a condition on STAR's licence pursuant to s 21(3) of the SI Act; namely, a condition "imposed" by the Commissioner, by the SI Act or prescribed by the regulations. If that is correct, it would be a reviewable decision under s 29(1).
As to the meaning of "condition", STAR referred to the recent decision of the Appeal Panel in Commissioner of Police v Fakhouri [2021] NSWCATAP 226 at [498] in considering whether the Tribunal exceeded its statutory power under s 21(3) by providing in a condition that "the Commissioner may summarily revoke his security licence" if the condition was breached. The Appeal Panel said at [51]: The term "condition" is not defined by the Security Industry Act or the Security Industry Regulation. In other statutory contexts that term has been taken to mean the specification of acts that the licence holder is required to do or to abstain from doing: Television Corporation Ltd v The Commonwealth of Australia at 70; an obligation imposed on the licence holder: Boyle v WorkCover Authority of New South Wales [2015] NSWCATAD 90 at [40]. Those meanings are consistent with the types of conditions imposed on, and prescribed for, holders of licences granted under the Security Industry Act, for example: (a) on Class 1F licence holders: not to carry a firearm unless wearing a "recognisable security guard's uniform": s 23A of the Security Industry Act; (b) on Class 1 licence holders: to undertake and complete such approved training, assessment or instruction as required by the Commissioner: s 23E of the Security Industry Act; (c) on all licence holders: at the Commissioner's request, to consent to having "his or her fingerprints or palm prints or both taken": s 24 of the Security Industry Regulation.
STAR's licence is a master licence. The Commissioner argued that pursuant to s 21(3) a licence is subject to: (a) to such conditions as may be imposed by the Commissioner (whether at the time the licence is granted or renewed or at any later time), and (b) to such other conditions as are imposed by this Act or prescribed by the regulations.
Both the SI Act and the Security Industry Regulation 2016 (NSW) (the SI Regulation) include specific provisions that impose conditions on various classes of licences. For example, ss 23(1) and (2) impose conditions applicable to every master licence as to the special conditions for master licences set out in Part 3 of the SI Regulation. When imposing such conditions both the SI Act and the SI Regulation use the words, "It is a condition of a master licence that …"
The Commissioner noted that those words are not used with respect to an approval (or revocation) under s 27A and submitted that this is deliberate and a strong indication that an approval under that section does not amount to a condition imposed on a licence. The Commissioner also noted that there are separate penalties that apply to breaching a conditional licence under s 30 and to breaching a condition with respect to the provision of training, assessment and instruction by a licensee under s 27A.
The Commissioner also noted that Part 3A of the SI Act provides for the granting and revocation of visitor permits, but there is no provision for administrative review of those decisions. This, the Commissioner submitted, pointed to an approval under s 27A not being the only form of permission which did not carry with it a right to administrative review.

Consideration.

The only sensible way in which we can see STAR's desired construction being achieved is to read the word licence in s 29(1)(c) as including an approval, but reading words into a section that are not there should be approached cautiously. It involves a judgment of matters of degree, against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature": Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 at [38].
We do not accept STAR's contention that prior to the repeal of ss 15(2) to (2B) in May 2017, STAR would have necessarily been able to seek administrative review under s 29(1), if the Commissioner purported to revoke an approval. Section 29(1) at that time was in its current form. In our view many of the same difficulties that confront STAR now, would have confronted it then.
The location of s 27A in Part 2, Division 3 is, in our view, STAR's strongest contextual point when arguing that decisions under that section carry a right to seek administrative review under s 29(1). All the decisions that give rise to a right to seek administrative review under that section are to be found in Part 2, Division 3. Why then, would not the location of s 27A in the Division indicate a legislative intention for decisions made under that section to be amenable to administrative review?
While this argument clearly raises an issue for consideration, it is only one of a number of contextual considerations to be taken into account. Others, such the consistent use of the word "approved" in the context of training and trainers for licensees; the apparent statutory purpose of s 27A, and its accompanying amendments, in providing for focused and ongoing training of licensees; and the stand-alone nature of s 27A, point to it being separate and apart from the other provisions Part 2, Division 3. As such, its location in Part 2, Division 3 is not a decisive contextual indicator.
When s 27A and its accompanying amendments to the SI Act were introduced in 2017, it would have been open to the Parliament to provide for the administrative review of decisions made under that section by amending s 29(1) so that it would apply to approvals under s 27A. Section 29(1) was then in its current form.
STAR points to the clear comments made by Campbell JA in Preston (quoted above at [71]) as to the desirability of the HBA providing for a review mechanism for all categories of licence holder and the potential for a serious anomaly arising from the absence of such a category. Such an anomaly, he said, would have to be considered, if it existed, when construing the Act. However, His Honour also pointed out that, at [133] that: … an anomaly must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction: ACQ Pty Ltd v Cook (2008) NSWCA 161; (2008) 72 NSWLR 318 at [127] per Campbell JA (with whom Beazley and Giles JJA agreed)
It is to be noted that in Preston the Court was not confronted by the number of contextual inconsistencies between the natural meaning of the provision of the Act and the proposed meaning of the word "penalty," that exist here on STAR's construction. Here, there are several inconsistencies, such as the one-off nature of s 27A, the use of the word "approved" and others discussed above. These point to the meaning of s 29(1) pressed by STAR being at odds with the context of the Act and unable to be read as an harmonious whole.
In our view, the case for there being a real anomaly here is a weak one. The reality, as submitted by the Commissioner, is that there are many examples of statutes where the Parliament has seen fit to grant administrative review rights in respect of some decisions made under an Act but not to others. While the idea that there should be review available of all administrative decision may be desirable, the reality is that the Parliament has power to legislate that not all such decisions are reviewable and the purpose of legislation must be derived from what the legislation says, and not from any preconceived assumption about the desired or desirable reach or operation of the relevant provisions: Certain Lloyd's Underwriters v Cross [2012] HCA 56 at [26]. It is not for the Tribunal to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [28]. In the SI Act, for example, there is also no review of the Commissioner's decisions relating to visitor permits. The absence from the SI Act of a provision giving a right to seek administrative review of decisions under s 27A is consistent with an intention to restrict the availability of administrative review to licence holders affected by decisions of the Commissioner only, and not to holders of other permissions such as visitor permits or approvals under s 27A.
Apart from s 27A, the provisions of Part 2, Division 3 of the SI Act - Licensing procedures and criteria - all apply to licences whereas it, on its face, s 27A does not. There are separate sections in the Division dealing with various facets of the regulation of licences, such as making an application for a licence, restrictions on licences, renewal of licences, granting of licences and renewals, conditions affecting various licences, variation, revocation and suspension of licences, Further, the requirement for a licence and the prohibition against unlicensed persons undertaking security activities is found in s 4, in Part 2, Division 2 of the SI Act.
In contrast, s 27A relates to approvals for the provision of approved training, assessment and instruction only. It contains no reference to licences. It provides by subsection (2)(a) that approvals are subject to such conditions "with respect to the provision of training, assessment and instruction by the person or organisation as may be imposed by the Commissioner." It also provides in subsection 2(b) that the Commissioner may revoke or suspend an approval at any time. Section 27A requires, by subsection (3), that persons or organisations so approved comply with any conditions imposed by the Commissioner and imposes significant monetary penalties for non-compliance. There is no provision relating to the form of an approval. In contrast Part 2, Division 3 contains separate sections dealing with these and other issues as they relate to licences, including much more specific conditions.
Section 27A therefore relates to a different subject matter (approvals) to all the other sections in Part 2, Division 3 of the SI Act. It is a self-contained provision which alone requires and regulates approvals to provide approved training, assessment and instruction. Unlike licences, approvals do not have a term and do not have to be renewed: see ss 17 (renewals) and 24 (terms). The Commissioner's power to suspend an approval under s 27A is a general one, whereas the power to suspend a licence under s 25 is conditioned on the Commissioner's belief that there may be grounds for revoking the licence.
These matters illustrate why, by virtue of its subject matter and the fact that it is the only provision of the SI Act requiring and regulating such approvals, s 27A does not sit easily within Part 2, Division 3 - Licensing procedures and criteria. Section 27A is a distinctly different, stand-alone provision, relating to approved training.
The Commissioner did not purport to revoke or suspend STAR's master licence. An effect of the approval being revoked was simply that STAR is no longer approved to carry on the security activities specified in ss 4(1)(j) and (k) of the definition of security activity in the SI Act, namely those associated with providing approved training, assessment and instruction in for the purposes of sections 15 (1) (d), 17 (7), 21A and 23E.
This is so because STAR's approval to provide such training has been revoked in accordance with that section. The revocation of the approval does not prevent STAR from undertaking other security activities as defined in s 4, or from delivering security and other training relating to matters that do not fall within the definition of security activity. There is also agreement that STAR offers security training for matters that do not fall within the definition of security activity, such as the use of handcuffs. However, the Tribunal Member noted evidence that approved training in NSW, "accounts for some 80% of the company's income."
This leads to STAR's argument that the revocation of its approval is "functionally synonymous," with and has the same effect as revoking its master licence. This reflects what STAR says is its financial reality, that it cannot continue trading viably without being approved to deliver approved training, assessment and instruction. Insofar as STAR's individual circumstances are concerned, they do not form part of the statutory context to which regard may be had when construing the Act and are irrelevant in construing the section. One must first determine the true legal meaning of s 29(1), before asking whether it applies to give a specified person a right to seek administrative review. We reject Star's construction of s 29(1). As we have already discussed, read in the context of the Act itself s 27A is a stand-alone provision. The evident purpose for the introduction of that section was to make provision for approved training, instruction and assessment to be delivered for the purposes of ss15(1)(d), 17 (7), 21A and 23E to be delivered by approved training providers, who would necessarily be master licence holders. This included training on ongoing basis for licence holders. The clear and essential difference between s 27A and ss 15(2) to (2B), which it replaced, is that the approved training under s 27A was defined as being for the purposes of ss 15 (1) (d), 17 (7), 21A and 23E. Those subsections were amended at the same time to introduce the concept of approved training, and to authorise the imposition by the Commissioner of conditions requiring licensees to undertake approved training to maintain their knowledge and competency: see for example ss 17(7) and 21A. The purpose of s 27A is different to that of the rest of Part 2, Division 3, which is concerned with the regulation of licences, rather than the provision of approved training to licensees by approved trainers.
The Security Industry Amendment Bill 2017 can be consulted under section 34(1)(a) of the Interpretation Act, to confirm the meaning conveyed by the text of section 29(1) of the SI Act. That note said the amendment: … makes it clear that the Commissioner may approve persons or organisations to provide training, assessment and instruction relating to the application for a license but also in connection with the license conditions under the principal Act that require the undertaking of training, assessment and instructions by a licensee while the licenses in force …
This reinforces our conclusion that the purpose underlying the introduction of section 27A and its related amendments to the SI Act, was to provide that approved trainers deliver training for licensees, including continuing training to keep license holders up-to-date. It reaffirms our view as to the nature of that section and s 29(1), which we share with the Tribunal member below. It does not indicate a legislative intention that revocation of approvals under s 27A be reviewable.
Having considered the provisions of s 29(1) in the context of the SI Act as a whole, we agree with the Member's conclusion that an approval is not a licence, and that the decision by the Commissioner to revoke STAR's approval to provide training, assessment and instruction under s 27A does not give rise to a right to seek administrative review on the merits in the Tribunal. We see no reason to give s 29(1) other than its clear literal meaning, which restricts the right to seek administrative review to specified decisions relating to licences.
Finally, we turn to STAR's alternative argument that the revocation of the approval under s 27A is tantamount to the imposition of a condition on STAR's licence pursuant to s 21(3) of the SI Act. This submission is plainly wrong. The Commissioner did not impose anything when it made the decision, rather it revoked STAR's approval as a trainer under s 27A. The Commissioner's power to both approve and revoke such approvals is found in s 27A, not s 21(3), The approval itself was subject to conditions imposed under s 27A(2)(b), such as that STAR continue to hold a master licence, not conditions imposed under s 21(3).
In respect of the question of law raised by the appellant: Did the Tribunal err in finding that the decision of the Commissioner to revoke the approvals under s 27A of the SI Act is not a decision from which a person may apply to the Civil and Administrative Tribunal for administrative review, within the meaning of s 29(1)? Our answer is no.
In the light of the above, STAR's appeal failed.
At the hearing, the respondent indicated that, if successful, he sought costs in reliance on written and brief oral submissions. On that basis, we made directions for that application to be resolved.

Orders

We made the following orders: 1. The appeal is dismissed. 2. Any submissions and evidence in response to the respondent's costs application are to be lodged with the Appeal Registry and given to the respondent within 14 days. 3. Any submissions in reply are to be given to the Appeal Panel and the appellant within 7 days thereafter. 4. Submissions on the application for costs are not to exceed five pages in length.

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: 18 November 2021

Security Industry Amendment Act 2012(NSW)

Security Industry Amendment Act 2005(NSW)

Administrative Decisions Tribunal's Act 1997(NSW)

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