Pike v Commissioner of Police, NSW Police Service [1999] NSWADT 5 (1 March 1999)

Last Updated: 24 March 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Pike -v- Commissioner of Police, NSW Police Service [1999] NSWADT 5

REVISION DATE:

DIVISION: General

APPLICANT:

Wayne Richard Pike

RESPONDENT:

Commissioner of Police, NSW Police Service

FILE NUMBERS: 983033

HEARING DATES: 13/01/99

SUBMISSIONS CLOSED: 13/01/1999

DECISION DATE: 01/03/1999

JUDICIAL MEMBER: K P O'Connor DCJ President

LAY MEMBER:

LAY MEMBER:

APPLICANT KEYWORDS: Review of refusal of licence

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Security Industry Act 1997

APPLICANT REPRESENTATIVE: G Thomas, Harrison the Lawyers

RESPONDENT REPRESENTATIVE: G Doherty, Commissioner of Police

ORDERS: 1. Application dismissed.

DECISION:

1 The applicant, Wayne Richard Pike, has applied for review under s.29 of the Security Industry Act 1997 (`the Act') for review of a decision of the Commissioner of Police to refuse his application for a licence under that Act. The licence application was refused pursuant to s.16 of the Act, as amplified by cl.11 of the Security Industry Regulation 1998 (`the Regulation').

2 The applicant did not contest the evidence of the Commissioner that he had a criminal history which fell within the parameters of cl.11, i.e. two convictions imposed at the Downing Centre Local Court on 28 February 1992, one for supplying a prohibited drug (cannabis leaf), the other having goods in custody suspected of being stolen. He was fined $500 in respect of the first offence, and $200 in respect of the second. Under the scheme the Commissioner is obliged to refuse an application if the applicant has been convicted of any offence in the last ten years which falls into prescribed categories. The first offence fell into the prescribed category of "an offence in respect of a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act 1985)"; and the second into the prescribed category of "an offence ... involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is ... imprisonment for 3 months or more": see Regulation cl. 11(d).

3 In Bourke & ors v Commissioner of Police (17 December 1998, General Division) I dealt with the question of whether the Tribunal could exercise any independent discretion in a case where the primary decision-maker had made a decision on a mandatory ground. Having regard to the statutory scheme, and applying the decision of the Court of Appeal in Commissioner of Police v Wilson (29 July 1994, unreported), I concluded that it was not open to the Tribunal to exercise any independent discretion. I considered that the Tribunal's role on review was limited to satisfying itself that the objective facts on which the Commissioner relied in making his decision were made out.

4 In this case the applicant does not contest the `objective facts' on which the Commissioner relied, i.e. the criminal history and their classification within the prescribed categories mentioned.

5 Nonetheless the applicant, through his solicitor, sought to argue that he was not affected by the new scheme on the basis that the Act did not seek to interfere with the rights of existing licence-holders. In Bourke, above, I rejected a submission that the Act should be construed so as not to apply to existing licence-holders on re-application in relation to past convictions, a submission drawing on the general principle that laws should be assumed not to be intended to operate retrospectively.

6 In this case a similar argument was put forward but on the basis that provisions in the Act not considered in Bourke protected the applicant. The applicant's solicitor referred to Schedule 2 of the Act made pursuant to s.51 of the Act and headed `Savings and Transitional Provisions'.

7 Clause 1 of Part 1 of the Schedule provides:

(1) The regulations may contain provisions of a savings or transitional nature consequent on the commencement of the Act.

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to this Act or a later date.

(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of publication."

8 It was argued that sub-cl.(3), above, imposed a duty on the Commissioner not to impose liabilities on any person (subject to the exceptions mentioned) in respect of anything omitted or done before the date of publication.

9 It was argued that it was not the intention of Parliament to disadvantage a person in the situation of the applicant who had been prevented under the old scheme from holding a licence for 5 years following his convictions in 1992, had obtained a licence under that scheme in September 1997 and had now had his application for 1998-99 rejected on the basis of the ten year reach of the new scheme.

10 The applicant's solicitor also referred to clause 3(1) of Part 2 of Schedule 2 which provides:

"3. Saving of existing licences

(1) Subject to the regulations, an existing licence:

a) is taken to be a licence of the corresponding kind (as determined by the Commissioner) granted under this Act, and

b) continues, unless it is sooner surrendered by the holder or suspended or revoked under this Act, in force for the unexpired portion of its term, and

c) cannot be renewed.

This provision is followed by an official explanatory note, as follows:

" Note.

All existing licences will terminate during the year following the repeal of the former Act because they are annual licences."

11 The applicant's solicitor submitted that the above provision supported his argument as to the intended operation of the Act in relation to people in his client's situation.

12 Schedule 2, clearly in my view, does not have the effect suggested. Neither the Act itself nor the regulations made under the Act contain any provisions which purport to preserve the position of licence-holders under the old scheme or protect them from the requirements of the new scheme. Clause 1(3) of Part 1 of Schedule 2 seeks to constrain any attempt to make a regulation retroactive. No regulation relevant to this case has been identified which is expressed to operate retroactively.

13 Clause 3 of Part 2 of Schedule 2 does not assist the applicant. To the contrary, it serves to reinforce the point apparent from the main provisions of the Act, that the Act is designed to establish a new scheme, one stricter than the old scheme as to the pre-conditions for obtaining a licence. The clause expressly states that old licences are not capable of renewal, a point reinforced by the official explanatory note.

14 The application is dismissed.