Rowe v Commissioner of Police, New South Wales Police Force [2010] NSWADT 307

CITATION: Rowe v Commissioner of Police, New South Wales Police Force [2010] NSWADT 307

DIVISION: General Division

APPLICANT Adrian Garth Rowe PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Force

FILE NUMBER: 103282

HEARING DATES: 16 November 2010

SUBMISSIONS CLOSED: 16 November 2010

EXTEMPORE DECISION DATE: 16 November 2010

DATE OF DECISION: 22 December 2010

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: Practice and Procedure - Interim Order power - Scope - Merits of application - Administrative Decisions Tribunal Act 1997, s 60

LEGISLATION CITED : Security Industry Regulation 2007

CASES CITED: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53

APPLICANT M Fahd, Belgrave Lawyers REPRESENTATION: RESPONDENT J Tillott, New South Wales Police Force

ORDERS: Application dismissed

REASONS FOR DECISION ORAL REASONS (EDITED) 1 The Tribunal has before it an application for an interim order in the form of a stay. The circumstances are that the applicant applied for renewal of his security industry licence but it was not processed before the date of expiry of the previous licence. Clause 27 of the Security Industry Regulation 2007 keeps the old licence alive for a period; essentially until the decision on the renewal application is taken. 2 The renewal application has now been refused on public interest grounds that rely simply on the fact that the applicant is facing a charge of assault occasioning actual bodily harm. The matter is due to go to trial at the Local Court in February 2011 and it is listed for one day. The applicant has been summonsed to appear on that date. (He was not arrested and bailed.) Whether power to make an interim order to restore an expired licence 3 A jurisdictional issue has arisen and I think I can indicate that there has been inconsistency of thinking around this issue in the Tribunal over the years. The issue is whether it is open to the Tribunal to make an interim order reinstating the licence after it has expired and an application for renewal refused. 4 I understand the position of the administrator. The administrator is saying (here the Commissioner – and we have had administrators in other categories of licensing here who have made the same submissions) that once a licence is expired there is in a sense nothing to stay because the applicant does not have any subsisting licence against which a stay would operate. 5 Now it may be that there is some strength to that submission in a situation where the person has simply let the licence expire and then outside any window period they have lodged a fresh application for the licence. 6 However, it seems to me that the present case is one where an ordinary licensee has proceeded in the normal course to apply for renewal of the licence, and pending any decision the previous licence has remained valid. 7 The Tribunal's jurisdiction in respect of security industry licences, and many of the other occupational licences with which it deals includes authority to review refusal of an application to renew. The Tribunal is entitled to override the administrator, decide that the correct and preferable decision is for the licence to be renewed, and direct the administrator to do that. 8 In my opinion, if the Tribunal can direct ultimately, after a hearing, the renewal of the licence by the issue of a fresh licence it ought to be able to achieve the same end by an interim order power. Section 60 (2) provides: (2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. 9 While s 60(2) primarily refers to the making of 'stay' orders, it also refers as Mr Fahd, the solicitor for the applicant, has pointed out to the making of orders that 'otherwise affect the operation of the decision under review'. 10 In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81, the decision under notice was one made by the Commissioner that revoked the applicants' statutory licences. The decision took effect "upon service" of the notice of revocation. The Tribunal granted a 'stay' of the decision pursuant to s 60. Basten JA said: 16 What the applicants required, in order to continue their licensed operations, was an order reinstating their licences. That cannot be achieved in terms by a "stay", a somewhat imprecise term which is usually understood to refer to a future event, which has not yet taken place: see McBride v Walton (Unrep, NSWCA, 27 August 1993) (Handley JA). … 18 It is arguable that the second limb of s 60, (referring to an order "otherwise affecting the operation of the decision under review") would allow the Tribunal to suspend the operation of a revocation of a licence, or reinstate the licence on a temporary basis. That approach may gain support from the scope for a final decision on a review to operate from the date of the original decision: ADT Act, s 66(2)(b). Arguably that could be done by retrospectively varying the date from which the Commissioner's order was to have effect. Although the Tribunal did not make an order otherwise than in terms of a "stay", the question of statutory construction should be addressed having regard to the scope and effect of the orders available under s 60. Indeed, it was assumed by the applicants that the order in fact made allowed them to continue to operate, as if they held valid licences. 11 One way to affect the operation of the decision under review (here refusal of application for licence) is to substitute a renewal decision for the time being. 12 While it may not, conceptually, be possible to 'stay' a decision not to renew a licence, the 'interim order' powers are not confined simply to the making of 'stay' orders. It must follow, I think, from the role of the Tribunal as the substitute administrator (a term commonly used to describe merits review tribunals of the present kind) that it has the power to exercise the authority of the administrator in a manner different to how the administrator has exercised it for the time being. 13 Otherwise the perversity that s 60(2) seeks to address is allowed to occur, that is, a person who depends for their livelihood on the licence is prevented from continuing to pursue their livelihood for a period. That would mean that the effectiveness of the ultimate determination of the application may not be fully secured, or entirely lost. 14 It seems to me having looked at the question again today that one needs to exercise care, I think, in responding to what appears to be at first blush a logical enough submission – i.e., that the tribunal cannot 'stay' a decision to refuse to renew a licence, in a situation where the previous licence has expired. 15 The error that is involved in this submission is to suggest that the administrator is free of any powers of restraint available to the merits review tribunal in the period between the refusal-to-renew decision and the Tribunal's final adjudication of the former licensee's application for review. To adopt that position would frustrate the objects of the ADT legislation, and is not consistent with the way the merits review function is granted at ss 60-66 of the Act. Whether to Make Such an Order in this Case 16 Section 60(3) provides: (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. 17 I accept what Mr Fahd said about the history of his client and his good work record and the possible prospects of success that he has in defending the charge. The Tribunal has been relatively consistent in dealing with applications where the reason for refusal is a charge, in confining its consideration to the objective gravity of the charge. A leading case is a case with more graphic circumstances than this one which has been cited in the submissions, that is Farquharson (Farquharson -v- Director General, Department of Transport [1999] NSWADT 53). 18 That was a case where the licence holder had an impeccable family, social and community history and a long involvement with the licence, which was a hire car licence; he was on bail in that instance pending the hearing of the charge; but the charge, of course, was a very serious one of conspiracy to commit murder. 19 The Tribunal on that occasion was invited to look behind the charges and look at the fact sheets and so on. We declined to do so. We simply had regard to the objective gravity of the charge. 20 The charge against him did not relate to his work circumstances; they had to do with his personal and domestic life. 21 I expressed the view on that occasion that really the Tribunal must have regard, it seems to me, to objective gravity of the charge. It is not open to it, as I see it, especially on a stay application, to get into arguments about the quality or otherwise of the evidence, or issues about lateness of laying charges. 22 Similarly I noted in those reasons and in one of the other cases cited today, that a charge which is objectively grave that arises in circumstances that have to do with the performance of the licence function adds a further level of concern. Then ultimately I ask the question relying on an approach adopted by President Curtis in the ACT Administrative Appeals Tribunal as to whether a member of the public would feel safe in that instance being a passenger in the hire car where the driver was charged with conspiracy to commit murder. 23 I think translating that test to the present circumstances you really have to ask whether a member of the public would feel comfortable having to pass by a security guard who is presently facing a charge of assault occasioning actual bodily harm arising in guarding circumstances. I think the answer must be that they would be concerned and regard that as not in the public interest. 24 So while I have some understanding obviously of the plight that Mr Rowe finds himself in and the possibility based on what Mr Fahd said that he might well be successful in having the charge dismissed, I must look at it from the point of the view of the factors I have mentioned. 25 I accept that my view has implications for the ability of Mr Rowe to find work in the meantime. I am happy enough to proceed with the suggestion that we bring on an expedited hearing but the reality is a lot swings on what happens in February, so we cannot really have a hearing until March or April I suspect.