Joliffe v Commissioner of Police, New South Wales Police Service [2003] NSWADT 159 (2 July 2003)

Last Updated: 5 August 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Joliffe v Commissioner of Police, New South Wales Police Service [2003] NSWADT 159

PARTIES: APPLICANT

Raymond Joliffe

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 033068

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 12/06/2003

DECISION DATE: 02/07/2003

BEFORE: Montgomery S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Industrial Relations Act 1996

Security Industry Act 1997

Security Industry Regulation 1998

Workplace Relations Act 1996

CASES CITED: Gapes v Commercial Bank of Australia [1979] FCA 62; (1979) 38 FLR 431

R v lngrassia (1997) 41 NSWLR 447

Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257

Burgess v Boetefeur (1844) 7 M & G 481

Maxwell v The Queen [1995] HCA 62; (1996) 184 CLR 501

R v Tonks [1963] VR 121

R v Jerome and McMahon [1964] Qd R 595

Richards v The Queen (1993) AC 217

APPLICATION: Jurisdiction

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

J Young, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

C Capper, advocate

ORDERS: Found that the Commercial Surveillance Pty Ltd has been "convicted" of an offence prescribed by clause 11(f) of the Security Industry Regulation 1998.

Reasons for Decision:

1 On 12 March 2003 Mr. Raymond Joliffe lodged an application with the Tribunal for review of a decision dated 10 February 2003 made by a delegate of the Commissioner of Police, New South Wales Police Service ("the Commissioner"). That decision was taken following an internal review of the decision taken on 15 November 2002 to revoke the Master Security Licence held by Mr. Joliffe on behalf of Commercial Surveillance Pty Ltd. The 10 February 2003 decision confirmed the earlier decision.

2 The Commissioner's decision was made under section 26 of the Security Industry Act. The Security Industry Act has recently been amended with section 26(1)(a) being repealed and replaced by section 26(1A).

3 Pursuant to section 16 of the Security Industry Act and clause 11(f) of the Security Industry Regulation, the Commissioner must refuse to grant an application for a licence if the Applicant is convicted within 10 years (or found guilty but no conviction within 5 years) before the application, of a total of at least 5 offences during any period of 2 years, against the Industrial Relations Act 1996 ("the IRA") or under any similar law of any other Australian jurisdiction. In such circumstances the Commissioner was authorised to revoke a licence pursuant to section 26(1)(a) of the Security Industry Act. However, the discretion is removed under the recent amendments and now the Commissioner must revoke the licence in accordance with section 26(1A) of the Security Industry Act.

4 Section 26(1)(a) of the Security Industry Act provided:

"26 Revocation of licence

(1) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of that class, ..."

5 Section 26(1A) of the Security Industry Act now provides:

"26 Revocation of licence

(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."

6 Section 16 of the Security Industry Act relevantly provides:

"16 Restrictions on granting licence--criminal and other related history

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law,"

7 For the purposes of section 16(1)(a) and (b) of the Security Industry Act clause 11 of the Security Industry Regulation 1998 ("Security Industry Regulation") provides:

"11 Offences that disqualify applicants: section 16

For the purposes of section 16(1)(a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(a) Offences relating to firearms or weapons

An offence relating to the possession or use of a firearm, or any other weapon, committed under:

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction),

and being an offence that would disqualify the applicant concerned from holding a licence under the Firearms Act 1996.

(b) Offences relating to prohibited drugs

An offence in respect of a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act 1985) committed under:

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).

(c) Offences involving assault

An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being:

(i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both, or

(ii) in such cases where the applicant concerned has been found guilty but not been convicted of an offence that, in the opinion of the Commissioner, is a serious assault offence.

(d) Offences involving fraud, dishonesty or stealing

An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.

(e) Offences involving robbery

An offence under the law of any Australian or overseas jurisdiction involving robbery (whether armed or otherwise).

(f) Offences involving industrial relations matters

In the case of an application for a master licence only - an offence under the Industrial Relations Act 1996, including the contravention of a State industrial instrument, or under any similar law of any other Australian jurisdiction, but only if a total of at least 5 such offences have been committed by the applicant during any period of 2 years."

8 The preliminary issue in these proceedings is whether Commercial Surveillance Pty Ltd has been "convicted" of an offence prescribed by clause 11(f) of the Security Industry Regulation 1998. If that is the case, the provisions of section 26(1A) of the Security Industry Act would prohibit the Commissioner from granting him a licence should he be applying for one.

9 The Tribunal has jurisdiction to deal with this matter pursuant to section 38 of the Administrative Decisions Tribunal Act 1997 by virtue of the conferral of jurisdiction contained within section 29(1)(c) of the Security Industry Act.

10 The parties have agreed that the Tribunal should deal with the preliminary issue pursuant to section 76 of the ADT Act. This means that the matter is determined "on the papers", following the receipt of written submissions from the parties, without an oral hearing.

Background

11 Mr. Joliffe was issued with a Master Security Licence on behalf of Commercial Surveillance Pty Ltd on the 30 November 1998. On 25 November 2002, he was served with a Notification of Revocation of that licence. One of the grounds relied upon was that Commercial Surveillance Pty Ltd was "convicted" of 24 breaches of section 178(1) of the Workplace Relations Act 1996 (Cth).

12 On 6 August 2002, the Chief Industrial Magistrate made orders pursuant to section 178(1) of the Workplace Relations Act 1996 as follows:

· Penalties totalling $26,000

· Court costs totalling $1,392

· Compensation to former employees totalling $110,853.88

13 On 23 August 2002, Mr. John Christie, manager of the Office of Workplace Services, Northern Area Office, sent a letter to Mr. Phillip Holton of the Security Industry Register stating, inter alia, "I understand that this employer is the holder of a master licence and that a master licence holder must be disqualified if convicted of industrial relations offences."

14 It is common ground that Mr. Joliffe was not personally convicted of any offences. For the purpose of these proceedings, any relevant "conviction" is therefore that of Commercial Surveillance Pty Ltd on whose behalf Mr. Joliffe holds the licence.

15 On 15 November 2002, Ms Jennifer Dolbel, Delegate of the Commissioner, revoked Mr. Joliffe's Master Licence on the following grounds:

· That Commercial Surveillance Pty Limited had orders made against it by the Chief Industrial Magistrate on the 6 August 2002;

· That section 26(1)(a) of the Security Industry Act 1997 provides that the Commissioner may revoke a licence for any reason for which the licensee would be required to be refused a licence of that class;

· That section 26(1)(b)(ii) of the Security Industry Act 1997 provides that the Commissioner may revoke a licence if the licensee contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention;

· For the purpose of section 26(l)(b)(ii) of the Security Industry Act 1997, clause 11(1) of the Security Industry Regulation 1998 refers to an offence under the Industrial Relations Act 1996 which includes the contravention of a state industrial instrument, or under an similar law of any other Australian jurisdiction, but only if a total of at least 5 such offences have been committed by the applicant during any period of 2 years.

16 Mr. Joliffe sought an internal review of Ms Dolbel's decision. This review was carried out by a delegate of the Commissioner, and was finalised on 10 February 2003. The Commissioner's delegate confirmed the decision of the 15 November 2002. On 12 March 2003 Mr. Raymond Joliffe lodged an application with the Tribunal for review of a decision dated 10 February 2003.

17 Mr. Young, Counsel for Mr. Joliffe, argues that the reviewer's conclusion that clause 11 of the Security Industry Regulation applies to section 26(1)(b)(ii) of the Security Industry Act is not correct. He argues that clause 11 of the Security Industry Regulation specifically refers to section 16(1)(a) and (b) of the Security Industry Act. Further, Revocation of Licence is specifically provided for by section 26 of the Security Industry Act. Whereas, section 16 applies only to Restrictions on Granting a Licence. He submitted that the revocation by the Commissioner in Mr. Joliffe's case is not supported by the legislation specifically addressing the question of revocation i.e. section 26 of the Security Industry Act.

18 In the internal review, it is suggested that clause 11(f) of the Security Industry Regulation applies to section 26 of the Security Industry Act. However, Mr. Young argued that clause 11(f) of the Security Industry Regulation clearly restricts its operation to section 16 of the Security Industry Act which specifically relates to the power of the Commissioner to refuse to grant a licence.

19 Mr. Young also referred to the Commissioner's delegate's statement that "I am satisfied that Commercial Surveillance Pty Limited was convicted of 24 breaches of section 178(1) of the Workplace Relations Act 1996". He argued that the penalties imposed by the Chief Industrial Magistrate on the 6 August 2002 are clearly not convictions and therefore section 26 of the Security Industry Act cannot be relied upon to revoke Mr. Joliffe's Master Licence.

20 Mr. Young further argued that if clause 11(f) of the Security Industry Regulation did apply to revocation pursuant to section 26 of the Security Industry Act, before clause 11(f) applies the licensee must have committed a criminal offence in the nature of those prescribed in clause 11 of the Security Industry Regulation, eg. possession or use of firearms, drug peddling, robbery etc. Commercial Surveillance Pty Limited was dealt with pursuant to section 178(1) of the Workplace Relations Act 1996 ("WRA"). Section 178 of the WRA is applied in relation to the imposition and recovery of penalties for, inter alia, breaches of awards and agreements. There are maximum monetary penalties and powers of recovery provided for under the section. The WRA distinguishes between actions that may be brought in the court, penalties that may be sued for and recovered under the Act and prosecutions for offences against the Act. Mr. Young submitted that a breach of an award is not a criminal offence. He argued that section 178 of the WRA is based on section 119 of the Conciliation and Arbitration Act 1904 contained in Part VI of that Act under the heading "Part VI - The Enforcement of Orders and Awards".

21 Mr. Young referred to the Federal Court of Australia, Industrial Division decision in the case of Gapes v Commercial Bank of Australia [1979] FCA 62; (1979) 38 FLR 431 as authority for the view that proceedings in which the imposition of a penalty for the breach of a term of an award made pursuant to section 4 of the Conciliation and Arbitration Act 1904 is sought pursuant to s119 of that Act are civil in nature. It is his submission therefore, that Commercial Surveillance Pty Limited was not convicted of an offence by the Chief Industrial Magistrate on 6 August 2002.

22 In contrast, Mr. Capper referred to the objects of the IRA and the WRA. section 3 of the IRA provides:

"3 Objects

The objects of this Act are as follows:

(a) to provide a framework for the conduct of industrial relations that is fair and just,

(b) to promote efficiency and productivity in the economy of the State,

(c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level,

(d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies,

(e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments,

(f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value,

(g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality,

(h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations."

23 Similarly, section 3 of the WRA provides:

"Principal object of this Act

The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

(a) encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and

(aa) protecting the competitive position of young people in the labour market, promoting youth employment, youth skills and community standards and assisting in reducing youth unemployment; and

(b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and

(c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and

(d) providing the means:

(i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and

(ii) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment; and

(e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; and

(f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and

(h) enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate and within specified limits, by arbitration; and

(i) assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and

(j) respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and

(k) assisting in giving effect to Australia's international obligations in relation to labour standards."

24 Accordingly, the Commissioner submits that for the purposes of clause 11(f) of the Security Industry Regulation the WRA is a "similar law of another Australian jurisdiction" to the IRA. Both of these Acts attempt (on both state and federal levels) to regulate the employment of persons and the various industrial relations issues arising as a result. Mr. Capper submitted that it is noteworthy that the WRA repealed the Industrial Relations Act 1988 (Cth). He submits that the Commissioner must revoke a licensee's licence if he is satisfied that the licensee:

(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law

25 As a result of the breaches of the WRA, the Chief Industrial Magistrate found the offences proven and made orders under section 178(1) of the WRA including penalties totalling $26,000, Court Costs of $1,392 and Compensation to former employees totalling $110,853. Accordingly Mr. Capper submits that the Applicant has within the past 5 years been found guilty of at 1east five offences (within a two years period) under a similar law to the IRA (i.e. the WRA) thus 26(lA) of the Security Industry Act requires the Commissioner to revoke the Applicant's licence.

26 Mr. Capper also submits that the findings of the Chief Industrial Magistrate constitute a conviction for the purposes of the Security Industry Act.

27 This submission is based on the argument that that the words "convict" and "conviction" are not words of constant meaning with universal application. Further Mr. Capper submits that proceedings need not be criminal in nature for a conviction to occur. He relied on several authorities for those arguments. His submissions were in the following terms:

"In the decision of R v lngrassia (1997) 41 NSWLR 447 at 450, Gleeson CJ echoed the comments of Windeyer J in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 when he stated that

"It is contrary to common law principle that a person who has not been convicted of an offence should be punished by order of a Court "

In the decision of Cobiac and Liddy, McTieman J states that

"I take the view that the word "conviction" in s30 of that Act [Acts Interpretation Act} should receive ample meaning. Without attempting an exhaustive interpretation, the word "conviction " may mean a mere determination of guilt or a finding of guilt plus a judgment on the finding"

In the decision of Burgess v Boetefeur (1844) 7 M & G 481 at p 501 (135 ER 193 at 202), Tindall CJ stated that

"The word 'conviction' is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court"

In Maxwell v The Queen [1995] HCA 62; (1996) 184 CLR 501 at 507, Dawson and McHugh JJ said:

"The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury, or a pleas of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgement of the Court, ordinarily in the form of a sentence, following upon the verdict or plea ". Burgess v Boetefeur (1844) 7 Man & G 481 at 504, 135 ER 193 at 202; R v Tonks [1963] VR 121 at 127-8; R v Jerome and McMahon [1964] Qd R 595 at 604 and Richards v The Queen (1993) AC 217 at 226-7."

28 Accordingly, he argued, we must look to the context in which the word conviction is used and the legislative intent that flows from its context. In that regard, section 178(1) of the WRA relevantly provides:

Imposition and recovery of penalties

(1) Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction.

(2) Subject to subsection (3), where:

(a) 2 or more breaches of a term of an award, order or agreement are committed by the same organisation or person; and

(b) the breaches arose out of a course of conduct by the organisation or person;

the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term.

(3) Subsection (2) does not apply in relation to:

(a) a breach of a term of an award, order or agreement that is committed by an organisation or person after a court has imposed a penalty on the organisation or person for an earlier breach of the term; or

(b) a breach of a term of an award or order that is taken to have been committed by a person under a provision included in an award or order under paragraph 111(1)(e).

(4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is:

(a) where the penalty is imposed by the Court:

(i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111(1)(e) - $5,000 for a body corporate or $1,000 in other cases; and

(iia) if the breach is of a term of a certified agreement and continues for more than one day - the total of:

(A) $10,000 for a body corporate or $2,000 in other cases; and

(B) $5,000 for a body corporate, or $1,000 in other cases, for each day for which the breach continues; and

(iib) if the breach is of a term of a certified agreement but subparagraph (iia) does not apply - $10,000 for a body corporate or $2,000 in other cases; and

(ii) in any other case - $10,000 for a body corporate or $2,000 in other cases; and

(b) where the penalty is not imposed by the Court - $10,000 for a body corporate or $2,000 in other cases.

(4A) A certified agreement may provide that subparagraph (4)(a)(iia) applies to specified breaches of the agreement as if sub-subparagraph (4)(a)(iia)(B) referred to a specified amount that is greater or less than $5,000 for a body corporate, or $1,000 in other cases. If such an agreement so provides, paragraph (4)(a) has effect accordingly.

(5) A penalty for a breach of a term of an award or order may be sued for and recovered by:

(a) an inspector;

(b) a party to the award or order;

(c) an employer who is a member of an organisation and who is affected by the breach;

(ca) a person:

(i) whose employment is, or at the time of the breach was, subject to the award; and

(ii) who is affected by the breach;

(d) an organisation that is affected, or any of whose members are affected, by the breach; or

(e) an officer or employee of an organisation that is affected, or any of whose members are affected, by the breach where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation.

(5A) A penalty for a breach of a term of a certified agreement may be sued for and recovered by:

(a) an inspector; or

(b) an employee whose employment is subject to the agreement; or

(c) a person or organisation that is bound by the agreement; or

(d) an organisation:

(i) that has at least one member whose employment is subject to the agreement; and

(ii) that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement; or

(e) an officer or employee of an organisation mentioned in paragraph (c) or (d), where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation.

(6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment.

(6A) Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an award, order or agreement, to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund.

(6B) Without limiting the generality of subsection (6A), the court concerned may order that the employer pay to the superannuation fund referred to in subsection (6A), or another superannuation fund, an amount equal to the amount (in this subsection called the unpaid amount ) that the employer failed to pay together with such additional amount as, in the opinion of the court, represents the return that would have accrued in respect of the unpaid amount had it been duly paid by the employer.

(7) An order shall not be made under subsection (6) or (6A) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.

(8) A proceeding under this section in relation to a breach of a term of an award, order or agreement shall be commenced not later than 6 years after the commission of the breach.

(9) In this section (in its application to an order made under section 127B):

employee includes an independent contractor.

employer includes a person engaging an independent contractor.

29 Mr. Capper submits that there is no provision within this section, or for that matter throughout the WRA for a "conviction" to be entered against a person found to have breached that Act. Likewise, section 357 of the IRA does not provide for a "conviction" in the criminal sense of the word. Section 357 of the IRA provides:

357 Civil penalty for breach of industrial instruments

(1) If an industrial court is satisfied that a person has contravened a provision of an industrial instrument, it may order the person to pay a pecuniary penalty not exceeding $10,000 ("a civil penalty").

Note: Section 21 of the Interpretation Act 1987 provides that the expression "contravene" in an Act includes a failure to comply.

(2) Proceedings for a civil penalty may be instituted:

(a) by an inspector or any other person authorised by this Act to institute proceedings for offences, or

(b) by an employer bound by the industrial instrument concerned, or

(c) by an industrial organisation concerned in the industry to which the proceedings relate.

(3) Proceedings for a civil penalty may be instituted within 6 years after the contravention.

(4) To avoid doubt, the rules of evidence apply to proceedings for a civil penalty.

(5) Evidence given in proceedings for the recovery of money under Part 2 is not admissible in proceedings for a civil penalty.

(6) In any proceedings for a civil penalty, the industrial court may award costs to either party and assess the amount of those costs. Costs cannot be awarded against the prosecutor except in the circumstances in which costs can be awarded against the prosecutor in criminal proceedings.

(7) The following provisions apply to contraventions of industrial instruments and to proceedings for a civil penalty for such a contravention in the same way as they apply to criminal proceedings for an offence against this Act:

(a) Sections 400-403.

(b) The provisions of any Act relating to the recovery of penalties imposed for an offence.

(c) Any provision of this or any other Act relating to criminal proceedings that is applied to this section by the regulations (whether with or without modification).

30 Accordingly, Mr. Capper submits that a "conviction", in the context of clause 11(f) of the Security Industry Regulation means a finding of guilt and the imposition of a penalty.

31 Mr. Capper further submits that Commercial Surveillance Pty Ltd has been "convicted" of at lease five offences within a two years period under a similar law to the IRA (i.e. the WRA ). Section 26(1A) of the Security Industry Act requires the Commissioner to revoke the licence in those circumstances, and not issue a further licence until 10 years has expired from the date of the conviction.

Reasons and Decision

32 I do not accept that the legislation should be given the narrow interpretation urged by Mr. Young. I do not agree that proceedings need not be criminal in nature for a conviction to occur for the purposes of the Security Industry Act. I agree generally with the submissions presented on behalf of the Commissioner and I adopt the reasoning presented by Mr. Capper. It serves little purpose to repeat the argument here.

33 In essence, it is my view that the decision of the Chief Industrial Magistrate involved a determination of guilt or a finding of guilt plus a judgment on the finding. It is also my view that this determination satisfies the grounds set out in section 16 of the Security Industry Act and clause 11(f) of the Security Industry Regulation.

34 It follows, in my view, that the answer to the question posed for preliminary determination is that Commercial Surveillance Pty Ltd has been "convicted" of an offence prescribed by clause 11(f) of the Security Industry Regulation 1998.

35 Given that this decision only deals with a preliminary question, I do not need to determine any other issues. However, I note that it appears that the original decision by the Commissioner's delegate was made prior to the amendments to section 26 of the Security Industry Act while the internal review was undertaken after the amendments. For that reason, no decision on the internal review could have been taken under section 26(1)(a) of the Security Industry Act. If the Commissioner's delegate purported to exercise a discretion under section 26(1)(a) then that was incorrect. The correct and preferable decision must be one under section 26(1A) of the Security Industry Act.

Findings

Found that the Commercial Surveillance Pty Ltd has been "convicted" of an offence prescribed by clause 11(f) of the Security Industry Regulation 1998.