STAR Training Academy Pty Ltd v Commissioner of Police

Judgment (6 paragraphs)

[1]

REASONS FOR DECISION

On 12 December 2014 the Commissioner of Police (the Commissioner) approved STAR Training Academy Pty Ltd (STAR) to provide training, assessment and instruction for various purposes under the Security Industry Act 1997 (the Security Industry Act). On 10 September 2021 the Commissioner revoked that approval on the basis that STAR had not complied with its conditions of approval. STAR has made an application to the Tribunal for administrative review of the revocation decision under the Administrative Decisions Review Act 1997 (the ADR Act). STAR has asked that the decision to revoke its approval be stayed pending the outcome of the review.
The Commissioner has made an application seeking dismissal of the stay application and dismissal of the review application on the basis that the decision to revoke STAR's approval is not an administratively reviewable decision.
On 23 September 2021 I dismissed both the stay application and the review application under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 as the Tribunal has no jurisdiction to review the decision of the Commissioner made on 10 September 2021. These are my reasons for making that order.

[2]

Background

STAR is a Registered Training Organisation which has operated since 2006 in NSW and the ACT. According to the company's director, Javaid Malik, STAR has 27 full-time and part-time employees. STAR is accredited with a number of vocational educational and training regulatory authorities to conduct training relevant to a variety of occupations. Of relevance to this application, STAR conducts security training courses in NSW. According to Mr Malik this work accounts for some 80% of the company's income.

Does the Tribunal have jurisdiction to review the decision to revoke the approval?

A threshold issue in this matter is whether the Tribunal in fact has jurisdiction to review the decision to revoke STAR's approval to conduct various security training courses. If the Tribunal does not have jurisdiction to review the decision the subject of the substantive review application, it also lacks jurisdiction to make an order staying the effect of that decision (see s 30 of the Civil and Administrative Tribunal Act 2013. The Commissioner has asked that the review application and the stay application be dismissed on the basis that the Tribunal lacks jurisdiction to deal with these applications.
The Tribunal does not have any general jurisdiction to review an administrative decision. Its jurisdiction is governed primarily by the provisions of the Civil and Administrative Tribunal Act 2013 (the CAT Act) and the Administrative Decisions Review Act 1997 (the ADR Act).
Section 30 of the CAT Act provides: 30 Administrative review jurisdiction (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note - See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note - See section 7 of the Administrative Decisions Review Act 1997. (4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note - See section 8 of the Administrative Decisions Review Act 1997. (5) An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction. (6) An administrative review application is an application made to the Tribunal for an administrative review decision.
Section 55 of the ADR Act makes plain that the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". There is no question that the Commissioner is an administrator for the purposes of s 7 as defined in s 8 of the ADR Act.
It is necessary therefore to return to the provisions of the Security Industry Act. It is only if that Act provides for review by the Tribunal of a decision of the Commissioner to revoke an approval of the kind granted to STAR to provide training, assessment and instruction, that the decision will be an administratively reviewable decision.
Section 29 of the Security Industry Act sets out the decisions made under that Act which may be reviewed by the Tribunal as follows: 29 Right to seek administrative review from Civil and Administrative Tribunal (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.
Section 3 defines a licence to mean a licence in force under the Security Industry Act. Those license categories are set out above and include a master license.
STAR holds a MC class master licence which authorises it to provide between 4 and 14 persons on any one day to carry on security activities, each of whom must be the holder of a class 1 or class 2 licence. According to Mr Malik STAR has held a master licence since 2007. STAR's current master licence has not been revoked by the Commissioner and is due to expire on 16 October 2024. Mr Malik also provides evidence that the only security activities which are carried on by STAR are those set out above in relation to training, instruction and assessment. In order to carry out the majority of those activities STAR requires the approval of the Commissioner.
On 12 December 2014 STAR was approved under the then s 15(2)(b) of the Security Industry Act to provide the requisite training, assessment and instruction for class 1A, 1B, 1C, 1D and 1F licences. The approval was subject to certain conditions, one of which was that the holder of the approval must hold a master licence.
At the time, s 15 set out the general suitability criteria about which the Commissioner must be satisfied before granting a security licence. Sub-section 15(1) contained a number of criteria including s 15(1)(d) which required the Commissioner to be satisfied that the applicant for the licence had undertaken and completed the training, assessment and instruction that is approved for the class of licence sought by the applicant. At the time s 15 also contained sub-sections (2), (2A) and (2B): (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.
Amendments were made to the Security Industry Act in 2017 by the Security Industry Amendment Act 2017. Among other things, the amending Act repealed ss 15(2) - (2B) and inserted a new s 27A which provides: 27A Provision of approved training, assessment and instruction (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.
Schedule 2 of the Security Industry Act essentially provides that any previous approval to provide training, assessment and instruction is taken to be an approval under s 27A subject to the same conditions of approval. The approval given to STAR therefore continued as an approval under s 27A. Section 27A was the provision relied upon by the Commissioner in revoking the approval of STAR to provide the requisite training etc.
Lisa Stockley, Assistant Director (Industry Regulation) for the NSW Police Force Security Licensing and Enforcement Directorate in an affidavit dated 23 September 2021 states that the conditions imposed on any approval under s 27A relate to a range of requirements that are put in place to ensure that the security licence course is delivered to a standard required by the Commissioner. She states that the conditions attaching to STAR's approval have always required, among other things, that the organisation continue to hold a master licence.
One argument advanced by STAR is that the approval by the Commissioner operates as a condition imposed on its licence and its revocation is therefore an administratively reviewable decision under s 29(1)(b) of the Security Industry Act. STAR points to various provisions within the Security Industry Act which impose as a condition on a licence a requirement to undertake certain training, for example, s21A and s 23E. As I understand the argument, STAR states that the approval of the Commissioner enabling it to carry out the security activities relating to training is in fact a condition imposed on its licence. STAR states that its licence without the condition is not a licence at all. In support of its argument STAR refers to the fact that the document setting out the approval issued in 2014 includes its master licence number in the approval as evidence that the approval is a condition of the licence.
STAR submits that this view is strengthened by the fact that, when its approval was first issued under what was then ss 15(2)(b) and (2A), s 15 was concerned with suitability criteria for the grant of a licence and a training requirement under s 15(1)(d) was part of those criteria. STAR states that the approval made pursuant to ss 15(2)(b) and (2A) is tied to s 15(1)(d). This approval, it states, operated in the past as a condition to its licence and continues to do so under s 27A. Alternatively, STAR argues that approvals under s 27A are conditions of the kind envisaged by s 21 (a) and (b) and jurisdiction therefore arises under s 29(1)(b).
STAR also submitted that its master licence is dependent on the approval to conduct training and to revoke the approval is to effectively revoke the licence which brings with it a right to seek review under s 29(1)(c). It argues that the licence itself includes the approval as the approval is the key to a licence that allows the licence to operate and permits an entity to conduct relevant training courses. STAR submits that an organisation holding a licence, without holding an approval for a training organisation, is effectively an empty vessel.
STAR further submits that it would be incongruous for a decision concerning the grant, suspension or revocation of a licence to be administratively reviewable under s 29 but for a decision to revoke an approval under s 27A to be immune from review when the impact on the licensee's rights and interests is the same.
I do not agree with STAR's submissions. In my view, s 29 is very clear in that it gives the Tribunal jurisdiction to review certain decisions relating to licences issued under the Security Industry Act. Section 29 only refers to a licence, not to an approval or any other decision which may be made by the Commissioner in relation to the security industry. I agree with the submissions of the Commissioner that an approval under s 27A is not a licence as defined by the Security Industry Act either as a matter of construction or on the facts. Nor is an approval somehow incorporated into the licence in some way or a condition imposed on the licence.
STAR was granted a master license in the exercise of the Commissioner's powers under s 21(1) of the Security Industry Act. That licence was in the form approved by s 22 of that Act. The licence remains in force and has not been suspended or revoked by the Commissioner exercising powers under either s 25 or s 26 of the Security Industry Act. I am advised that the only conditions imposed on that licence are those arising from the Security Industry Act itself and the Security Industry Regulation 2016. There has also been no variation to any conditions imposed upon that licence in accordance with s 21(3). I reject the contention that an approval under s 27A is in any way a condition imposed either under s 21(3) or through some other mechanism arising from s 15 as it was when the approval was first issued in 2014.
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.
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 license.
A further indication that an approval under s 27A is a distinct power and separate to the grant of a licence under s 21 is the fact that there is no general condition imposed upon a licence that an approval under s 27A is required to be held by the holder of the licence. Rather, the reverse is true, it is a condition of an approval under s 27A that the person or organisation approved must continue to hold a master license. The fact that STAR has made a business decision that the only security activity that it will carry out is to train security guards is irrelevant to any consideration of the issues before me. As previously noted, STAR's master license is still in force and it is still able to carry out a range of security activities under that license. That the company has chosen not to do so is not germane to whether this Tribunal has jurisdiction to review the Commissioner's decision to revoke the approval under s 27A.
I also do not agree with the submissions of STAR that it would be incongruous if not all decisions made by the Commissioner under the Security Industry Act were reviewable by the Tribunal. It is not uncommon for an Act to specify only certain decisions are subject to review. For example, while the Tribunal has jurisdiction to review a range of decisions under the Firearms Act 1997, it has no jurisdiction to review a decision of the Commissioner to impose a firearms prohibition order against a disqualified person. The character or nature of a particular decision may well dictate whether or not the legislature provides for administrative review of that decision. In the circumstances of this case, it is clear that the legislature has determined that decisions relating to licences issued under the Security Industry Act are to be reviewed by the Tribunal but that the Tribunal is not given jurisdiction to review a decision relating to an approval under s27A.
I am therefore of the view that the Tribunal lacks jurisdiction to review the decision of the Commissioner to revoke STAR's approval under s 27A. The substantive review application must therefore be dismissed under s 55(b) of the CAT Act as it is misconceived or lacking in substance.
In light of my decision concerning the Tribunal's jurisdiction to review the substantive application, the application for an order staying the operation of the decision must also be dismissed as s 60 of the CAT Act only applies to an "administratively reviewable decision".

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Judgment (6 paragraphs)

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Cited By (4)