Security Licence Revoked Due to Assault Conviction Under New Regulations

The Tribunal affirmed the Commissioner's decision to revoke a security licence due to an assault conviction, applying new regulations retroactively.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v Commissioner of Police [2017] NSWCATOD 189 Hearing dates: 1 February 2017 Date of orders: 8 February 2017 Decision date: 08 February 2017 Jurisdiction: Occupational Division Before: Emeritus Prof G Walker, Senior Member Decision: The decision under review is affirmed. Catchwords: [NAME] – licensing – assault conviction -- revocation of [NAME] – application of new regulation to earlier facts Legislation Cited: Civil and Administrative Tribunal Act 2014; Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Interpretation Act 1987; Passenger Transport Act 1990; [NAME] Act 1997; [NAME] 2007; [NAME] 2016. Cases Cited: [NAME] v Laidley Shire Council [2007] HCA 37, (2007) 234 CLR 1; [NAME] v [COMPANY] of [COMPANY] (1943) 43 SR (NSW) 27; Director of Public Prosecutions (Commonwealth) v Keating [2013] HCA 20, (2013) 248 CLR 459; [NAME] v Commissioner of Police, New South Wales Police Service [2007] NSWADT 114; [NAME] v Director-General, Department of Transport [2001] NSWADT 74; [NAME] v Minister for Primary Industry (1986) 72 ALR 23; Maxwell v Murphy (1957) 96 CLR 261; Nazir v Roads and Maritime Services [2016] NSWCATOD 124; New South Wales Food Authority v Nutricia Australia Pty Ltd [2008] NSWCA 252; Polyukhovich v Commonwealth [1991] HCA 32, (1991) 172 CLR 459; Project Blue Sky, Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355; Re a Solicitor's Clerk [1957] 1 WLR 1219; [NAME] v Minister for Immigration and Multicultural Affairs [2000] FCA 197. Texts Cited: [NAME], Statutory Interpretation In Australia, 8th edn. 2014. Category: Principal judgment Parties: [NAME] (Applicant) Commissioner of Police, New South Wales Police Force (Respondent). Representation: Counsel: [redacted]

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2016/00378825

REASONS FOR

DECISION 1. The applicant Mr [NAME] on 11 November 2016 applied to this tribunal for review of a decision made by a delegate of the respondent Commissioner of Police on 2 November 2016 to revoke the applicant's class 1ACE [NAME] under s 26(1A) of the [NAME] Act 1997 ([NAME] Act). On 8 November 2016, the applicant had sought an [NAME] of that decision and on 10 November 2016 a delegate of the Commissioner had affirmed the decision.

2. The applicant's [NAME] issued on 30 June 2016 authorized the applicant to perform the following security activities: * Class 1A - Unarmed guard; * Class 1C - Crowd controller; * Class 1E - Monitoring centre operator. 1. [ADDRESS] on 20 May 2009, the applicant was convicted of the offence of assault occasioning actual bodily harm (domestic violence) under s 59(1) of the Crimes Act 1900 for having struck his wife in the face with his closed fist (exhibit R1, tab 13). He was sentenced to imprisonment for six months, the sentence being suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 on the condition that he enter into a good behaviour bond for a period of six months.

2. Following a severity appeal to Parramatta District Court, on 16 June 2009 his conviction was upheld and he was discharged under s 9 of the same Act on the condition that he enter into a good behaviour bond for a period of 12 months.

3. The Class 1ACE [NAME] issued to him on 30 June 2016 was due to expire on 7 July 2017. On 1 September 2016, the [NAME] 2016 (the 2016 regulation) came into force. Clause 15(1)(c)(i) of that regulation was amended to include good behaviour bonds, in addition to any term of imprisonment and a penalty of $200 or more for offences involving assault of any description. A notification of revocation of [NAME] on the ground of his good behaviour bond was served on him personally on 7 November 2016, and the following day he requested the [NAME]. When that affirmed the decision, he applied for administrative review in this tribunal, which on 6 December 2016 granted a stay of the decision until further order.

Applicable legislation 1. Section 16 of the [NAME] Act provides in pertinent part that "(1) The Commissioner must refuse to grant an application for a [NAME] if the Commissioner is satisfied that the applicant: [redacted]

2. Section 26(1A) of the Act provides that "The Commissioner must revoke a [NAME] where the Commissioner is satisfied that, if the [NAME] were applying for a new [NAME], the application would be required by this Act to be refused".

3. Clause 15(1) of the 2016 regulation provides that "For the purposes of section 16(1)(a) and (b) of the Act, the following offences are prescribed offences:… 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…."

4. The issue in this case is whether ss 26(1A) and 16 of the [NAME] Act, read with [NAME](1)(c) of the 2016 regulation, make revocation of the applicant's license mandatory by reason of his conviction for an offence involving assault and his being made subject to a good behaviour bond.

Applicant's submissions 1. At the hearing the applicant adopted his written submissions filed on 1 February 2017, which opened with the question, "How could some are (sic) permitted to use a new legislation to decide retroactively on situations that had been legal before the new regulation came into force without others questioning the legality of their action?" He then went on to submit inter alia that the legislation did not specifically seek to catch past situations. "It is vital to note that both the clause 18(1)(b) [of the repealed 2007 regulation] and section 26(1A) of the Act 'do not operate to require the Commissioner to revoke a [NAME] that is in force on the commencement of the amendment'".

2. He contended that the respondent accepts the proposition that statutes cannot in principle operate retrospectively, but that s 30(1) of the Interpretation Act 1987 could not apply because [NAME](1)(c) of the 2016 regulation does not operate retroactively. "We have to make it clear here that we are not asserting that the regulation has retro acted to disadvantage us". He had previously noted that the courts had often avoided interpreting legislation so as to operate retrospectively: see Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459, and Polyukhovich v Commonwealth (1991) 172 CLR 501. As he had earlier submitted, he did not understand why the Commissioner had chosen the retroactive procedure in breach of the principle that regulations in principle have a prospective effect. "We are not attacking the law, but, a decision and its motive, a decision that misuses the power to act… And the Respondent was unable to prove to us beyond reasonable doubt, since there is rights in stake, that he has not acted retroactively". If a statute is not allowed to operate retrospectively and violate people's rights and obligations, the Commissioner needed to be able to show where he gets the power to act in the way that he did.

3. General principles of law intended to shape the working of all deciders did not need to be incorporated in a statute in order to be applied. An administrative authority could not by his own capricious will or blatant ignorance of legal principles, i.e. non-retroactivity of law, violate the results of the principles that the dynamic of society had brought about. "Our main contention is that, a retro-active act of police, even in case of discretionary power, here is '…Commissioner is satisfied that if the [NAME] were applying for a new [NAME]', can't violate in principle, the principle according to which laws and regulations have a prospective power. [NAME], Cours de droit administratif, 7th edn 2001 supports the above view when arguing that, [NAME] in the justice system are called to be cognizant of the general principles of law when dealing with issues". When the past behaviour of persons is assessed in decision-making, that is a retrospective decision. "We are of opinion that, when the Parliament often avoids retroact[tive] legislations, for any other person to act in a contrary way, we need to see express and clear authorization to do so. The Commissioner has failed to provide us with such an evidence".

4. In Re a Solicitor's Clerk [1957] 1 WLR 1219, cited by the respondent, the logic is the same as that in ss 16 and 26 of the S I Act. If his application to renew his [NAME] had been refused because of his criminal background, and there was thus no case of retroactive decision-making, he would not be attacking the decision. [NAME] v Commissioner of Police, New South Wales Police Service [2007] NSWADT 114 nor Solicitor's Clerk supports the retroactive operation of the decision to revoke his [NAME] beyond a reasonable doubt. "The standard of evidence has to be heightened because of the danger for me of losing my livelihood". Clause 18(1)(b) of the repealed 2007 regulation expressly stated that the provisions relating to revocation did not operate to require the Commissioner to revoke a [NAME] that is in force. 5. "To revoke a [NAME] in a mandatory situation, it is vital to prove the case beyond doubt in showing clearly within the paragraphs of the legislation where you have been allowed to act in a retroactive way…. [NAME] in some situations, lawfully obtained a right or benefit, he or she naturally expects it to last as he or she is legally authorized. To alter this substantive benefit for some reason, because of legal changes, beyond the power of the [NAME], has often raised the issue of procedural fairness". An administrative decision has the obligation to respect the general principles of procedural and substantive fairness, including that of non-retroactive operation. It is possible to catch the past only when the "Mother Act of 1997" has contemplated it and those cases are clear in the law. The respondent had not been able to show express authorization for the retroactive revocation of licences. When the [NAME] pointed out that this tribunal is subject to the same mandatory provisions as the Commissioner, that could be viewed as "intellectual arrogance", because the Commissioner is forgetting that the good administration of justice is about considering the facts and circumstances of each individual case. "The fact that the Commissioner has acted beyond the power delegated to him or her, and has failed to prove the rationality and/or the reasonableness of his or her action beyond reasonable doubt, action that has the potential to cause harm to my livelihood, I have no shame of saying that he or she has abused his or her power". The applicant was merely requesting that the principle of fairness should remain part of the Australian way of administering the nation, because the state of the law hinges upon it.

6. As Toohey J pointed out in [NAME] at 107, legislation that is procedural in character that affects vested rights adversely is to be construed as prospective. The new regulation (the applicant continued) is a procedural one. "Is there any vendetta? I have already paid the price for conjugal violence; is it fair to be punished twice for the same offence? Does the legal system create space for double jeopardy?"

7. In his oral submissions at the hearing, [NAME] reiterated most of the points summarized above and pointed out that the issue was one of interpretation. The Act did not exclude the rules of reason, justice and fairness. The respondent should prove beyond a reasonable doubt that he has the power to act in the way in which he did, but his argument was patchy. Under the 2007 regulation, the offences had to have been committed before the amendment took effect. The Commissioner had no power to revoke an existing [NAME].

8. There was no evidence that it was in the public interest to revoke his [NAME]. The respondent must act within the law. If the act is to be viewed as retroactive, it should so state clearly. The applicant had not been expecting the law to change suddenly. He had been subjected to double punishment.

9. The respondent has a discretion as to revocation and should consider all the surrounding circumstances. The good administration of the law required it. When exercising a discretionary power, the general principles of law, and the merits of each case had to be considered. There should be rationality in decision-making, but there was not, and the respondent gave excessive weight to the new regulation. It was unfair to act in the way in which the respondent had, and he had failed to consider the legitimate expectations principle. [NAME] has a retrospective operation, it does not act in a vacuum; the respondent had simply relied on the law. The regulation was mandatory, but that was a procedural rule and the respondent could not avoid the substantive law.

Consideration 1. The facts of the case are not in dispute. The applicant [NAME], aged 50, is a naturalized Australian citizen of French origin (exhibit R2, pp 4, 36). He successfully applied for a Class 1ACE [NAME] under the [NAME] Act in 2011, that [NAME] being renewed in June 2013, May 2015 and June 2016 for a period of a year in each case. The last renewal application, dated 4 June 2016, led to his [NAME] being renewed from 8 July 2016 to 7 July 2017.

2. Previously, on 20 May 2009, the applicant had been convicted in the [ADDRESS] of assault occasioning actual bodily harm (domestic violence) under s 59(1) of the Crimes Act and had received a suspended sentence of six months' imprisonment. A severity appeal to the District Court led to his conviction being confirmed and the substitution of a discharge under s 9 of the CSP Act, conditionally on his entering into a 12 month good behaviour bond.

3. On the basis of that conviction, a delegate of the Commissioner on 7 November 2016 revoked the applicant's [NAME], pointing out that "clause 15(1)(c) has been amended to include good behaviour bonds and community service orders in addition to any term of imprisonment and a penalty of $200 or more". As he had entered into a good behaviour bond in relation to that offence, "your conviction of a prescribed disqualifying offence prevents you from holding a security [NAME] for 10 years from the date of your conviction" (exhibit R1, p 21). On the following day the applicant sought an [NAME] of the decision, which resulted in the decision's being affirmed.

4. This tribunal's predecessor, the Administrative Decisions Tribunal, explained the legislative scheme of the [NAME] legislation in [NAME] at [11]: The [NAME] Act, 1997 established a scheme for licensing people to carry on security activities. Within the Act there are several provisions that allow the Commissioner to revoke a license. The Act was designed with the clear intention of providing the community with confidence in a professional [NAME], where competence, integrity and accountability are provided and maintained to a high standard. The legislation was enacted to exclude from the industry persons convicted of prescribed offences. In this regard, criminal record checks are undertaken on a regular basis after licences are issued to maintain strict licensing requirements by identifying persons who fail to meet the criteria and revoking their licenses.

1. Licences are dealt with in part 2 of the [NAME] Act. Under s 7, it is an offence to engage in security activities (as defined by s 4) without holding the relevant [NAME]. There are different classes of [NAME], namely a master [NAME] and various forms of class 1 and class 2 licences, each of which authorizes the [NAME] to carry out a particular activity: see ss 9 to 12. Pursuant to s 14, [NAME] may apply to the Commissioner for the grant of a [NAME].

2. Section 26 deals with the revocation of licences. Section 26(1A) provides that "The Commissioner must revoke a [NAME] where the Commissioner is satisfied that, if the [NAME] were applying for a new [NAME], the application would be required by this Act to be refused". The mandatory refusals referred to are dealt with by s 16. In pertinent part s 16(1)(a) requires the Commissioner to refuse to grant an application for a [NAME] if satisfied that the applicant has, within the period of 10 years before the application for the [NAME], been convicted in New South Wales or elsewhere of an offence prescribed by the regulations.

3. As was noted above, [NAME](1)(c) of the 2016 regulation provides that offences disqualifying applicants from holding a [NAME] include an offence involving assault of any description, in respect of which the penalty imposed includes a good behaviour bond. The 2016 regulation came into force on 1 September 2016 (see cl 2), that is, after the Commissioner had decided to renew the applicant's license in 2016. It replaced the [NAME] 2007, in which the provision corresponding to [NAME](1)(c) was cl 18(1)(c). Clause 18 did not include the circumstance where the applicant was given a good behaviour bond or community service order, an apparent lacuna that was rectified by the 2016 regulation.

4. The Commissioner's primary case is thus straightforward and can be expressed as a kind of algorithm as follows:

1. The Commissioner must revoke a [NAME] where the [NAME], if he were applying for a new [NAME], would have to be refused a [NAME] (s 26(1A); 2. a [NAME] 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)); 3. the offences prescribed by the regulations include an assault of any description for which the penalty imposed includes a good behaviour bond ([NAME](1)(c)); 4. the applicant had been convicted within the previous 10 years of an assault for which the penalty imposed included a good behaviour bond; 5. therefore the Commissioner was required to revoke the applicant's license (s 26(1A).

1. The applicant's submissions were detailed and wide-ranging. They did not, however, make it completely clear whether the applicant was arguing that [NAME] had a retrospective operation or not. At one point in his written submissions he contended that it did not operate retroactively (see para 11 above), partly because it did not explicitly say so, while at another point he argued that it did have retrospective operation (see para 18 above). In his oral submissions at the hearing, when specifically asked whether his case was that [NAME] did, or did not, have retrospective effect, he replied that it did have a retrospective operation but that it could not be applied in a vacuum. As I understand his position, he was basically submitting that the regulation should be interpreted as not having retrospective effect, but that if it did, it should be interpreted in light of other legal principles such as procedural and substantive fairness, public interest and legitimate expectations.

2. The applicant's case thus seems to rest essentially on four propositions:

1. 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.

2. Alternatively, the Commissioner had to show beyond a reasonable doubt that the clause does not have retrospective operation, but has failed to do so.

3. If [NAME](1)(c) has retrospective effect, the respondent has not shown where he obtains the power to make a retrospective decision.

4. In any event the Commissioner's power to revoke a [NAME] 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.

1. The crucial and primary question, therefore, is whether [NAME](1)(a) has a retrospective operation or not. If it has, the applicant's first four propositions require examination. If not, some of those propositions cease to be relevant.

2. There is indeed a common law presumption that in the absence of a clearly expressed intention to the contrary, an Act will be presumed not to have retrospective operation (I discussed some of the legal and jurisprudential issues raised by retrospectivity in Walker, The Rule of Law: Foundation of Constitutional Democracy (1988), pp 315-322). Dixon CJ gave this commonly-accepted statement of the presumption: The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events: Maxwell v Murphy (1957) 96 CLR 261, 267 per Dixon CJ.

1. The greater any unfairness or injustice flowing from a retrospective application, the less likely it is that a court will consider that the Parliament intended the Act to apply retrospectively: New South Wales Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456 per Spigelman CJ.

2. There is a critical distinction, however, between legislation having a prior effect on past events and legislation prescribing future consequences for past events. The former class is retrospective, the latter is not. In [NAME] v [COMPANY] (1943) 45 SR (NSW) 27, 31, Jordan CJ explained the difference in these terms: [A]s 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 would 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. The principle may be seen at work in the commonly-cited case Re a Solicitor's Clerk [1957] 1 WLR 1219. A clerk was convicted in 1953 of larceny, but no order could be made under the Solicitors Act 1941 (UK) as it then stood prohibiting him from being employed as a solicitor's clerk because he had not stolen from his employer or his employer's client. The Act was later amended to allow such an order to be made in the case of any larceny conviction. The court held that no retrospectivity was involved because the Act had only a future operation, even if the conduct on which it depended had taken place in the past. Although the prohibition was based on a conviction that had occurred before the Act's commencement, it operated in the future only.

2. Similarly, in [NAME] v Minister for Primary Industry (1986) 72 ALR 23 the [NAME] of a fisherman's [NAME] was convicted of an offence that at the time of conviction could not result in the cancellation of his [NAME]. The relevant Act had subsequently been amended to permit cancellation for such convictions. Citing Re a Solicitor's Clerk, the full Federal Court upheld the validity of a cancellation based on the conviction recorded before the Act was amended. French J (as his Honour then was) explained that "The fact that the power to cancel a [NAME] under s 9(3A) is conditioned 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" (at [33]).

3. Again, [NAME] v Minister for Immigration and Multicultural Affairs [2000] FCA 197 held that a regulation removing the right of illegal immigrants to apply for certain visas only removed future rights and had no operation on past conduct or events.

4. In the present case, [NAME](1)(c) widens the range of offences that create a liability to mandatory [NAME] refusal, but does so only for the future. It does not, for example, restrict or qualify the scope of the applicant's license for the period before the commencement date of the 2017 regulation, nor does it subject the applicant to any penalty or disadvantage for having engaged in security work before that date. It deals purely with the future consequences of his having been required to enter into a bond in respect of an assault offence.

5. The applicant submitted that he had a vested right in the continuance of his [NAME] for the full year for which it was granted and a legitimate expectation that it would be allowed to run its full course. The Commissioner's action in revoking it had taken away his livelihood and, further, had subjected him to a double punishment or a kind of double jeopardy.

6. As the High Court pointed out in [NAME] v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1, [111, "'Retrospectivity' is a word that is not always used with a constant meaning". But there is no presumption that interference with existing rights is not intended. Quoting from a leading text on statutory interpretation ([NAME], Statutory Interpretation in Australia, 8th edn. p 399), the court said "All legislation impinges on existing rights and obligations. Conduct that could formerly be engaged in will have to be modified to fit in with the new law" (at [113], emphasis supplied). It cannot therefore be said that legislation having that effect is retrospective because that is what all legislation does.

7. Legislation operates retrospectively only if it provides that rights and obligations are changed with effect prior to the commencement of the legislation. No-one has any general protection against future changes in legislation. [NAME]'s vital business plans or personal projects may be upset or dashed by reason of a change in government policy that is embodied in a new or amended Act or regulation or, indeed, by a change in a principle of common law or equity.

8. The applicant's related submission that he is being punished twice for his assault offence, or exposed to a kind of double jeopardy, does not take his case further. A standard feature of virtually all regulatory legislation is that conviction for a criminal offence, or one of a particular class of criminal offences, can trigger [NAME] cancellation, as for example under s 39G(1)(c) of the Passenger Transport Act 1990. Administrative action of that kind is not intended as a punishment, but as a means of protecting the public against inappropriate conduct by [NAME]. 9. [NAME] refusals, cancellations and other orders serve the public interest by establishing a disciplinary structure for an occupation that not only directly protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose conduct does not meet the required standards will not be permitted to practise: Nazir v Roads and Maritime Services [2016] NSWCATOD 124, [43].

10.

I therefore conclude that [NAME](1)(1)(c) does not have retrospective operation. Conditioning future action on past facts does not make a statutory provision retrospective. That conclusion disposes of the applicant's first three basic propositions, including his reliance on s 30(1)(c) of the Interpretation Act, in view of the absence of retrospective effect as understood in the authorities. No right or privilege accrued before the new regulation took effect is affected by the repeal of the 2007 regulation.

11. That provision, in any case, yields to any contrary intention expressed in the Act or instrument (s 5(2)). The mandatory nature of s 26(1A) is such an expression, as is the overall scheme and approach of the Act. Acts are to be construed as a whole: "The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, [69]).

12. Thus, for example, under s 21(3), the Commissioner may impose conditions on a [NAME] after it has been granted. A [NAME] must not contravene a [NAME] condition: s 30. A [NAME] may be revoked if a condition is contravened: s 26(1)(b)(iii). In these provisions the Act expressly authorizes the Commissioner to revoke a [NAME] in circumstances where the [NAME] conditions changed after it was granted; in other words, on grounds that were not available at the time the [NAME] was granted.

13. Further, as [NAME] pointed out, even if it could be said that the Commissioner could revoke a [NAME] only on grounds that were available at the time the [NAME] was granted, s 26(1A) evinces a legislative intention not to preserve any right or privilege of the kind mentioned in s 30(1)(c) of the Interpretation Act. Under s 26(1A), the duty to revoke arises where "the Commissioner is satisfied that, if the [NAME] were applying for a new [NAME], the application would be required by this Act to be refused" (my emphasis). The section thus requires the Commissioner to consider the question of revocation by reference to a hypothetical scenario of the applicant having lodged a new application for a [NAME], that is, by reference to the specific circumstances prevailing at the time the Commissioner is considering the question of revocation, not at the time the [NAME] lodged the actual initial application that resulted in the grant of the [NAME]. In this case, the circumstances prevailing at the time the Commissioner was considering revocation included [NAME](1)(c) of the 2016 regulation.

14. The applicant's fourth line of argument was that the power to revoke a [NAME] is discretionary and that the decision could not be made in a vacuum. It had to take into account all the surrounding circumstances, including general principles of fairness, prospectivity, hardship and the public interest.

15. As regards hardship, he submitted that "In my case, I have lost my casual employment with [NAME] and [NAME] and been mentally affected by the decision and the loss of earnings", especially during the peak November-December period. In his stay application he added that "Since the revocation of the [NAME], I'm finding [it] difficult to pay rent and to feed my family. I'm relying on borrowings from community and my grown children".

16. In [NAME] v Director-General, Department of Transport [2001] NSWADT 74, [47], Hennessy DP stated that hardship to the applicant is not a factor that the tribunal can take into account in determining what is the correct and preferable decision. That decision has been followed in many subsequent cases and its correctness has never been doubted.

17. More importantly, however, on no view could the statutory language be read as allowing the decision-maker any discretion in the matter of [NAME] cancellation where the necessary conditions have been fulfilled. Section 26(1A) states that "The Commissioner must revoke" (my emphasis) a [NAME] when the Commissioner is satisfied that if the [NAME] were applying for a new [NAME], the application would be required to be refused. In turn, s 16 states that "The Commissioner must refuse" (my emphasis) a [NAME] if within the 10 preceding years the applicant has been convicted of an offence prescribed by the regulations, the relevant one in this case being [NAME](1)(c). It would be difficult to devise wording that would more categorically exclude any scope for the exercise of discretion. Matters such as public interest, hardship or substantive fairness are therefore not relevant and cannot be taken into account.

18. Consequently, as the conditions for the operation of s 26(1A) have been satisfied, it necessarily follows that the correct and preferable decision is that the applicant's [NAME] must be revoked.

Orders 1. The decision under review is affirmed.

2. The stay ordered by the tribunal on 6 December 2016 is lifted. 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: 13 April 2023