Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lokondo v Commissioner of Police [2017] NSWCATAP 137 Hearing dates: 19 May 2017 Date of orders: 19 May 2017 Decision date: 21 June 2017 Jurisdiction: Appeal Panel Before: M. Craig QC, Principal Member Dr J. Lucy, Senior Member Decision: (1) Extend time for appeal to 28 March 2017 (2) Appeal dismissed. Catchwords: ADMINISTRATIVE LAW – licence under Security Industry Act 1987 – revocation of licence - conviction for offence prescribed by regulation – operation of s 26(1A) of the Security Industry Act; STATUTORY INTERPRETATION – Security Industry Regulation 2016, cl 15(1)(c) – extension of offences prescribed for the purpose of s 16 of the Security Industry Act – s 26(1A) required revocation of licence where conviction of a prescribed offence has occurred – whether revocation is required where the offence is prescribed for the purpose of s 16 after a licence has been granted and remains current – whether the statutory provisions have retrospective operation – whether the provision operates to determine future conduct based on past events Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Interpretation Act 1987 (NSW) Poisons and Therapeutic Goods Regulation 2008 Security Industry Act 1997 Security Industry Amendment Act 2002 (NSW) Security Industry Amendment Act 2008 (NSW) Security Industry Regulation 2007 (NSW) Security Industry Regulation 2016 (NSW) Cases Cited: Coleman v Shell Co of Australia Limited (1943) 45 SR (NSW) 27 Commonwealth v SCI Operations Pty Limited (1998) 192 CLR 285; [1998] HCA 20 La Macchia v Minister for Primary Industry [1986] FCA 452; (1986) 72 ALR 23 Maxwell v Murphy (1957) 96 CLR 261 at 267; [1957] HCA 7 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Category: Principal judgment Parties: Basona Bakoy-Bongo Lokondo (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Appellant in person E El-Hage (Respondent) Solicitors: Appellant self represented Crown Solicitor's Office (Respondent) File Number(s): AP 17/14664 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2017] NSWCATAD 49 Date of Decision: 8 February 2017 Before: Emeritus Prof G. Walker, Senior Member File Number(s): 2016/00378825 REASONS FOR DECISION 1. Basona Bakoy-Bongo Lokondo was granted a licence under the Security Industry Act 1997 (the SI Act). His licence was revoked by the Commissioner of Police (the Commissioner). Mr Lokondo applied to the Tribunal for an "administrative review" of that decision. His application was unsuccessful when, on 8 February 2017, the decision of the Commissioner was affirmed by the Tribunal (the Decision). 2. Mr Lokondo appealed from that decision. His appeal was heard on 19 May 2017. At the conclusion of the hearing on that day we ordered that the appeal be dismissed and gave reasons for so doing. 3. As was his entitlement under s 62(2) of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act), the Commissioner has requested that we provide a "written statement of reasons" for our decision. This is that statement. Background 1. The relevant facts are not in issue between the parties. Mr Lokondo was first granted a class 1 licence under s 21 of the SI Act in 2011. On application by him, that licence was subsequently renewed on a yearly basis. The licence was last renewed in June 2016 for the period from 8 July 2016 to 7 July 2017. 2. On 2 November 2016, the Commissioner, by his delegate, gave notice to Mr Lokondo that his licence had been revoked on that day. The provisions of s26(1A) of the SI Act were identified in the notice as the Commissioner's source of power to revoke the licence. That section was said to apply by reasons of the following facts and events. 3. Mr Lokondo was convicted in the Local Court at Blacktown of assault occasioning actually bodily harm, being an offence against s 59(1) of the Crimes Act 1900 (NSW). Upon his conviction, a six months suspended sentence was then imposed. 4. An appeal against the severity of that sentence was taken by Mr Lokondo to the District Court. On 16 June 2009, that Court confirmed Mr Lokondo's conviction but in lieu of the sentence imposed by the Local Court, directed pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that he enter into a bond to be of good behaviour for a period of 12 months. 5. As will be seen, Mr Lokondo's conviction and penalty for the offence just described is relevant to the power exercised by the Commissioner to revoke his licence under the SI Act. That conviction and penalty only became relevant to the Commissioner's power under s 26(1A) by operation of a new regulation under the SI Act that commenced on 1 September 2016, that is, after the licence had been renewed for 12 months from 8 July 2016. It is the operation of the new regulation that gives rise to the controversy in this case. 6. Following receipt of the Commissioner's notice of 2 November 2016, Mr Lokondo sought an internal review of the decision. On 10 November 2016, the Commissioner's decision was affirmed. As a result, Mr Lokondo applied to the Tribunal for review of that decision pursuant to the provisions of the Administrative Decisions Review Act 1997 (NSW). Statutory Context 1. Licences are addressed in Part 2 of the SI Act. Under s 7, it is an offence to carry on security activities, as defined in s 4, without holding a relevant licence. Provision is made for different classes of licence, each of which authorises the holder to carry out a particular activity. 2. By s 14, a person may apply to the Commissioner for the grant of a licence. Relevantly, s 16(1)(a) requires that the Commissioner refuse the grant of an application for a licence in circumstances described in that section. Relevantly, the section 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 in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, …". (Emphasis added) 1. In June 2016 when Mr Lokondo's licence was renewed, the applicable regulation was the Security Industry Regulation 2007 (NSW) (the 2007 Regulation). Clause 18 of the 2007 Regulation identified those offences that were prescribed for the purpose of s 16. Relevantly, cl 18(1)(c) prescribed the following offences: "(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 is imprisonment or a fine of $200 or more, or both, or (ii) in any cases [sic] where the applicant concerned has been found guilty but not been convicted – an offence that, in the opinion of the Commissioner, is a serious assault offence." 1. It will immediately be apparent that Mr Lokondo's conviction for assault together with the penalty ultimately imposed upon him did not engage the provisions of cl 18(1)(c) of the 2007 Regulation when, in June 2016, the licence was renewed by the Commissioner. At that time, the Commissioner was not required to refuse the application for renewal of his licence because the offence with which he had been convicted in 2009 was not then an "offence prescribed by the Regulations" within the meaning of s 16(1)(a) of the SI Act. 2. As the Commissioner observed, the operation of cl 18(1)(c) was curious because it prescribed offences by reference to outcomes reflecting "either end of the spectrum of the range of possibilities following a conviction". An assault offence was prescribed if, on the one hand, a fine was imposed or, on the other, a custodial sentence was imposed. The clause did not address the not uncommon circumstance that a conviction for assault is entered but a non-custodial order made, either in the form of a requirement to enter a good behaviour bond or in the form of a community service order. 3. That apparent lacuna was addressed when the Security Industry Regulation 2016 (NSW) (the 2016 Regulation) took effect on 1 September 2016. The 2016 Regulation repealed the 2007 Regulation. Clause 18 of the 2007 Regulation was replaced by cl 15 of the 2016 Regulation. Clause 15(1)(c) relevantly provides: "15 Offences and civil penalties that disqualify applicants (1) Prescribed offences: section 16(1)(a) and (b) 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: … (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 includes any term of imprisonment (whether or not suspended), a good behaviour bond, a community service order or a penalty of $200 or more, or both, or (ii) in any cases where the applicant concerned has been found guilty but not been convicted – an offence that, in the opinion of the Commissioner – is a serious assault offence." 1. Clearly, that new clause was apt to render Mr Lokondo's 2009 conviction and penalty a prescribed offence for the purpose of s 16(1)(a) of the SI Act. Had that clause been operative when Mr Lokondo's licence renewal application was being considered in June 2016, s 16(1)(a) would have mandated the refusal of the application. 2. Section 26 of the SI Act gives power to the Commissioner to revoke a licence. Subsection (1A), inserted into that section by the Security Industry Amendment Act 2002 (NSW), 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." (Emphasis added.) The hearing at first instance 1. Mr Lokondo's application to the Tribunal was brought pursuant to s 29 of the SI Act. Subsection (1) of that section enabled him to apply to the Tribunal for review under the Administrative Decisions Review Act following the Commissioner's decision to revoke his licence: s 29(1)(c). 2. As was the position before us, Mr Lokondo was self-represented before the Senior Member. The case that he sought to make was essentially one of statutory construction. As summarised by the Member at [28] of his Reasons, the arguments advanced by Mr Lokondo rested on four propositions: "(i) Clause 15 should not be interpreted as applying to facts arising before its commencement date of 1 September 2016 because, as it contains no express language giving it retroactive effect, it offends the presumption that legislation has only a prospective operation. (ii) Alternatively, the Commissioner had to show beyond a reasonable doubt that the clause does not have retrospective operation, but has failed to do so. (iii) If cl 15(1)(c) has retrospective effect, the respondent has not shown where he obtains the power to make a retrospective decision. (iv) In any event the Commissioner's power to revoke a licence is discretionary and must be exercised in light of other relevant principles such as procedural and substantive fairness and the public interest. The Commissioner had not done so but had relied exclusively on the amended Regulation." The decision at first instance 1. Having distilled the essential propositions advanced by Mr Lokondo, the Member identified at [29] the "crucial and primary question" from those propositions as being whether cl 15(1)(c) of the 2016 Regulation, when read together with ss 16(1)(a) and 26(1A) of the SI Act, has retrospective operation. He concluded that it did not. In the result, he determined at [50] that "the conditions for the operation of s 26(1A) have been satisfied", with the consequence that "the correct and preferable decision" is that Mr Lokondo's security industry licence must be revoked. The Commissioner's decision to that effect was therefore affirmed. The Appeal An extension of time is required 1. Mr Lokondo's Notice of Appeal was filed on 28 March 2017. It is an appeal brought pursuant to s 80 of the Tribunal Act, as the decision of the Member is a "general decision" within the meaning of s 29 of the Act and is therefore an "internally appealable decision" within the meaning of s 32(4). 2. However, the appeal was not lodged within the 28 day period fixed by r25(4)(c) of the Civil and Administrative Tribunal Rules 2014. That period expired on 8 March 2016, being 28 days from the date upon which the Member provided his Reasons. As the time stipulated was exceeded by only 20 days and, importantly, as the Commissioner does not oppose an extension of time, pursuant to s 41 of the Tribunal Act we proposed to extend the time for lodging the appeal to 28 March 2017. The hearing of the appeal 1. Although expressed in terms that appear to differ from those reflected in the Decision, the substance of Mr Lokondo's submissions before us were to the same effect as those advanced before the Member. They rested upon the first three of the four propositions identified by the Member as having been advanced by Mr Lokondo, being those propositions that we have earlier quoted at [19]. Before us, Mr Lokondo did not contend, as he appeared to have done before the Member, that the Commissioner retained a discretion when exercising the power under s 26(1A) of the SI Act. Nonetheless, he adverted to the notions of "fairness" and "the public interest" as factors militating against the provisions of that section being given retrospective effect. 2. The primary case of the Commissioner before us was consistent with that advanced before the Member. As summarised in the Reasons at [26], that case involves the following syllogism: "(i) The Commissioner must revoke a licence where the licensee, if he were applying for a new licence, would have to be refused a licence (s 26(1A)); (ii) a licence [application] must be refused if within the previous 10 years the applicant has been convicted of an offence prescribed by the regulations (s 16(1)(a)); (iii) the offences prescribed by the regulations include an assault of any description for which the penalty imposed includes a good behaviour bond (cl 15(1)(c)); (iv) the applicant has been convicted within the previous 10 years of an assault for which the penalty imposed included a good behaviour bond; (v) therefore, the Commissioner was required to revoke the applicant's licence (s 26(1A))." Section 26(1A) requires revocation of the licence 1. At a level of principle, the operation of the statutory provisions in question, as they relate to the revocation of a licence under s 26(1A), are correctly and usefully summarised by reference to the syllogism quoted in the preceding paragraph. Applied to the undisputed facts pertaining to Mr Lokondo's conviction for assault in 2009, on its face s 26(1A) founded the Commissioner's power to revoke Mr Lokondo's then current licence on 2 November 2016. 2. Mr Lokondo's challenge is to contend that such a result only follows if cl15(1)(c) of the 2016 Regulation is read with ss 16(1)(a) and 26(1A) as having a retrospective operation. He contends that to do so would not only offend the general principle that legislation should not be construed as operating retrospectively but also that such a result is gainsaid by both provisions of the SI Act itself and provisions of the regulations made under that Act. Retrospective operation: distinguished from future operation based upon past events 1. The general principle of interpretation at common law is that a statute (including subordinate legislation) will be assumed not to have retrospective operation (Maxwell v Murphy (1957) 96 CLR 261 at 267; [1957] HCA 7). That same principle is reflected in s 30(1)(c) of the Interpretation Act 1987 (NSW). The principle is subject to any statutory provision to the contrary (Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 156). Likewise, the operation of s 30(1)(c) of the Interpretation Act is, by force of s 5(2) of that Act, subject to any "contrary intention…in the Act or instrument concerned." 2. When determining the effect of amending legislation, care must be taken to distinguish between legislation having a prior effect on past events and legislation providing for future action based on past events. The need for this distinction to be made has long been recognised. It is a distinction discussed in Coleman v Shell Co of Australia Limited (1943) 45 SR (NSW) 27 where Jordan CJ said at [31]: "…as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it will be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities." 1. In Commonwealth v SCI Operations Pty Limited (1998) 192 CLR 285; [1998] HCA 20 McHugh and Gummow JJ approved the distinction drawn by Jordan CJ in Coleman v Shell Co of Australia Limited. Their Honour's rephrased the distinction at [57] by referring to it as a distinction "between a statute which provides that as at a past date the law should be taken to have been that which it was not, and the creation by statute of further particular rights or liabilities with respect to past matters or transactions." 2. Section 26(1A) of the SI Act, read with s 16(1)(a) and cl 15(1)(c) of the 2016 Regulation, falls into the second category of legislation identified in those cases. The provisions empower future action by the Commissioner based upon past events. Although cl 15(1)(c) expanded the range of circumstances that enlivened the mandatory requirement imposed upon the Commissioner by s 26(1A) of the SI Act, when compared to the more limited circumstances that applied under cl 18(1)(c) of the 2007 Regulation, reliance upon those expanded circumstances to revoke the licence had effect only from the date of the decision to revoke. Those provisions, when read together, had no effect upon the validity of the licence or any lawful action taken in reliance upon it prior to the Commissioner's right of revocation being exercised. 3. The operation of the principle that we have discussed is exemplified in decided cases to which the Member referred at [33]-[35]. One such case was the decision of the Full Court of the Federal Court of Australia in La Macchia v Minister for Primary Industry [1986] FCA 452; (1986) 72 ALR 23. There, the holder of a fisherman's licence had been convicted of an offence that, at the time of conviction, did not provide a ground for cancellation of that licence. After that conviction, the Act under which the licence was issued was amended to authorise cancellation of the licence by the Minister, based upon conviction for an offence of the kind for which the appellant in that case had been convicted. Relying upon the amendment, the Minister cancelled the appellant's licence. The Court upheld the Minister's decision. In the course of his judgment, Toohey J (Bowen CJ agreeing) said at 26-27: "The Commission of an offence, whether before or after 31 August 1985, is a circumstance warranting the giving of a notice under sub-s (3A). The order does not have retrospective effect simply because it relies upon conduct that occurred before the power existed: see Re a Solicitor's Clerk [1957] 1 WLR 1219 at 1222 … ." 1. In the same case, French J (as his Honour then was) said at 33: "The fact that the power to cancel a licence under s 9A(3A) is conditional upon a class of past events, does not mean that the inclusion in that class of events which predated the law, renders its operation retrospective." 1. The principles of statutory construction that we have discussed and the cases illustrating the application of those principles speak against the retrospective operation of cl 15(1)(c) of the 2016 Regulation, when read with ss 16(1)(a) and 26(1A) of the SI Act. However, it is necessary to consider the effect, if any, of the statutory and regulatory provisions upon which Mr Lokondo relies in order to determine whether a different result should ensue. The savings provisions in Sch 2 to the SI Act 1. We have earlier stated that s 26(1A) was inserted into the SI Act by the amending Act of 2002 which commenced on 31 January 2003. That amending Act also inserted a new Pt 3 in Sch 2 to the SI Act, being the Schedule that contains savings provisions. Effect is given to that Schedule by s 51 of the SI Act. 2. Part 3 of Sch 2 is headed "Provisions consequent on enactment of Security Industry Amendment Act 2002". Clause 8(1) of that Schedule, being the first provision in the new Pt 3, relevantly provides: "(1) Sections 15(1)(e) and 26(1A), inserted by the Security Industry Amendment Act 2002, do not operate to require the Commissioner to revoke a licence that is in force on the commencement of those provisions." 1. Mr Lokondo relies upon that clause as being a provision that operates against affording retrospective operation to cl 15(1)(c) of the 2016 Regulation when read with ss 16(1)(a) and 26(1A) of the SI Act. He submits that the express reference to s 26(1A) in cl 8(1) excludes the operation of that section to a licence, such as his, because it is a licence "that is in force". 2. We do not accept that submission as being correct. It ignores the concluding words of cl 8(1), indicating that the clause intends to exclude the operation of the newly enacted provisions upon a licence that was current when the amending Act took effect. The provision has no enduring operation in respect of a licence granted or renewed at any time after 31 January 2003. Clause 47A of the 2007 Regulation 1. The SI Act was further amended by the Security Industry Amendment Act 2008 (NSW). By Sch 2 to that Act, cl 18(1)(b) of the 2007 Regulation was amended so that it would apply to an applicant for a licence who was found guilty or convicted of an offence under the Poisons and Therapeutic Goods Regulation 2008 and who was either sentenced to imprisonment or fined $500 or more for that offence. 2. Clause 47A of the 2007 Regulation was also amended in 2008, again in 2009 and finally in 2012. In the form that it took before being repealed in 2016, the clause provided: 47A Offences and civil penalties that disqualify applicants (1) Clause 18 (1)(b), to the extent that its application is varied by the Security Industry Amendment Act 2008, extends to an offence of which a person is convicted or found guilty before the commencement of the amendment. (2) Despite subclause (1), clause 18(1)(b), as so varied, and section 26(1A) of the Act do not operate to require the Commissioner to revoke a licence that is in force on the commencement of the amendment. (3) Clauses 16(6) and 18, to the extent that their application is varied by an amendment made by the Security Industry Amendment Regulation 2012, do not extend to an offence of which a person is convicted or found guilty or to a pecuniary penalty imposed in respect of a contravention that occurred before the commencement of the amendment. 1. The effect of cl 47A(1) was to require that the amended version of cl 18(1)(b) be applied as though it was in existence, in its amended form, at the commencement of the 2007 Regulation. Clause 47A(3) sought to achieve the opposite result in respect of changes made by the Security Industry Amendment Regulation 2012 by limiting the operation of those amendments to the time at which they took effect rather than being back dated to the commencement of the 2007 Regulation. 2. Mr Lokondo relies upon cl 47A(2), his submission being similar to that made in respect of cl 8(1) of Sch 2 to the SI Act. He submits that cl 47A(2) operates so as not to require revocation of a licence under s 26(1A) in respect of a licence "that is in force". 3. Again, we cannot accept that submission as being correct. Essentially, our reasons for so concluding are the same as those expressed when rejecting the submission founded upon cl 8(1) of Sch 2 to the SI Act. The only licence that is immune from the operation of s 26(1A) is, by reason of the amendment to cl 18(1)(b) of the 2007 Regulation, a licence that was "in force" when the amending Act of 2008 commenced. The provision has no effect upon a licence issued in June 2016. 4. There is a further observation of importance to be made arising from the provisions of cl 47A of the 2007 Regulation. Clause 47A(2) provides, in terms, that "despite" the mandatory operation of subclause (1), the amendments effected to cl 18(1)(b) by the amending Act of 2008 do not apply to then current licences. No comparable provision is found in the 2016 Regulation. If the maker of the 2016 Regulation had intended that the expanded prescription of offences for the purpose of s 16(1)(a) of the SI Act should not apply to then current licence holders, it could have so provided in terms similar to those used in cl 47A(2) of the 2007 Regulation. The absence of such a provision adds support to the conclusion that the 2016 Regulation applies to current licences so that the provisions of that Regulation are engaged by the provisions of ss 16(1)(a) and 26(1A) of the SI Act in respect of those licences, whenever granted. The relevance of cl 46 of the 2016 Regulation 1. Mr Lokondo also relies upon the provisions of cl 46 of the 2016 Regulation as preserving the licence granted in June 2016 for its full term without being affected by the operation of cl 15(1)(c) and its application under ss 16(1)(a) and 26(1A) of the SI Act. The clause provides: "46 Savings Any act, matter or thing that, immediately before the repeal of the Security Industry Regulation 2007, had effect under that Regulation is taken to have effect under this Regulation." 1. That clause has no relevance to the operation of s 26(1A) when read with s 16(1)(a) and cl 15(1)(c) of that Regulation. As at 1 September 2016, when the 2007 Regulation was repealed by operation of the 2016 Regulation, there was no "act, matter or thing" that immediately prior to that date had effect relevant to the present issue. The licence that Mr Lokondo then held was issued under the SI Act and operated until such time as its term expired, the licence was cancelled or it was revoked conformably with the Act. Clause 46 did not, either in terms or in its effect, preserve the provisions of cl 18(1)(c) of the 2007 Regulation and exclude the operation of cl 15(1)(c) of the 2016 Regulation. Moreover, the only "act" of present relevance was the act by the Commissioner to revoke Mr Lokondo's licence on 2 November 2016, some two months after the 2016 Regulation commenced. Conclusion on retrospectivity 1. We conclude, as did the Member at [42], that cl 15(1)(c) of the 2016 Regulation, when engaged by ss 16(1)(a) and 26(1A) of the SI Act, was not given retrospective effect when, on 2 November 2016, the Commissioner revoked Mr Lokondo's licence. That revocation did no more than regulate future conduct by reference to events that occurred before those events were identified as constituting a basis for the exercise of the revocation power. The exercise of power in those circumstances does not render the operation of the provisions retrospective. None of the other provisions of either the SI Act or the Regulations relied upon by Mr Lokondo detract from that conclusion. The operation of s 30(1)(c) of the Interpretation Act in context 1. In seeking to advance his argument, Mr Lokondo sought support in s 30(1)(c) of the Interpretation Act. The section relevantly provides: "30 Effect of amendment or repeal of Acts or statutory rules (1) The amendment or repeal of an Act or statutory rule does not: … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule … ." 1. As we understand his submission, Mr Lokondo relies upon that provision to contend that cl 15(1)(c), operating only after his licence was granted in June 2016, affects a right or privilege, with the consequence it cannot found the power of the Commissioner to revoke his current licence. There are difficulties with that submission. 2. Let it be assumed that s 26(1A) of the SI Act when read with s 16(1)(a) of the Act and cl 15(1)(c) of the 2016 Regulation is construed, contrary to the conclusion earlier expressed, as having retrospective operation. Nothing in s 26(1A), its context or the scheme of either the SI Act or the 2016 Regulation can be construed as demonstrating that the holder of a licence, granted prior to commencement of the Regulation, had a right or privilege that precluded the Commissioner from fulfilling the duty to revoke the licence imposed by s 26(1A) on the basis of an offence prescribed by cl 15(1)(c) of that Regulation. 3. Further, the submission by Mr Lokondo, both explicit and implicit from his reliance upon s 30(1)(c) of the Interpretation Act, that the Commissioner could only revoke his licence on a ground or grounds available at the time at which the licence was granted, would not be consistent with the statutory provisions to which we have referred. Those provisions must be construed in the context of "the language and purpose of all the provisions of the [SI Act]" (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]). 4. Division 3 of Pt 2 of the SI Act contains those provisions of the Act that address "[l]icensing procedures and criteria". Some of those provisions identify circumstances in which action can be taken by the Commissioner in respect of a licence, based upon events or circumstances arising after a licence has been granted or renewed. Section 21(3) enables the Commissioner to impose conditions on a licence after that licence has been granted. Section 26(1)(b)(iii) enables the Commissioner to revoke a licence if the licensee contravenes a condition of that licence. Clearly, these provisions identify the power of the Commissioner to limit the operation of or revoke a licence on grounds not available at the time at which the licence is granted. In principle, the interpretation of s 26(1A), read with s 16(1)(a) and cl 15(1)(c), as authorising revocation of a licence, based upon past conduct that became an "offence prescribed by the regulations" only after the licence was granted, is consistent both with the language of the section itself and with the apparent purpose of like provisions in Division 3. 5. Finally, we accept the submission on behalf of the Commissioner that even if the introduction of cl 15(1)(c) in the 2016 Regulation did affect a "right" or "privilege" within the meaning of s 30(1)(c) of the Interpretation Act, s 26(1A) of the SI Act evinces a legislative intention not to preserve any such right or privilege. Under that subsection, the obligation (expressed by the imperative "must") to revoke a licence is imposed where "the Commissioner is satisfied that if the licensee were applying for a new licence, the application would be required by the Act to be refused" (emphasis added). The words of the subsection make clear that the Commissioner is required to consider the question of revocation by reference to the hypothetical circumstance of an application for a new licence having been made, notwithstanding that no such application is, in fact, made and the licence being considered is current and operative at that time. The temporal reference for this hypothetical circumstance is the time at which revocation is being considered, not the time at which application for the current licence was first made. In the present case, the relevant circumstance is the hypothesis of an application for a new licence being made on 2 November 2016, when cl 15(1)(c) of the 2016 Regulation clearly applied and must therefore have been applied by s 16(1)(a) of the SI Act, requiring that such an application be refused. Conclusion 1. For the reasons we have expressed, we find no error of law on the part of the Member in concluding that the Commissioner's decision of 2 November 2016 to revoke Mr Lokondo's licence under the SI Act was the correct and preferable decision. Indeed, the operation of cl 15(1)(c) of the 2016 Regulation, when engaged by ss 16(1)(a) and 26(1A) of the SI Act, necessarily identified that decision as the only legally correct decision that, by reason of Mr Lokondo's 2009 conviction and sentence, could be made. 2. That conclusion resulted in the making of the following orders: 1. Extend time for appeal to 28 March 2017; 2. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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: 21 June 2017