2 The applicant was a licensed security guard employed by Sentry Security Services Pty Ltd at Wodonga, New South Wales. He was licensed under the former legislation, now repealed expressly by the new Act. He made an application under the new Act for a Class 1A, 1B and 1C licence on about 8 June 1999 (Exhibit 2). In that application, he disclosed that he had been convicted of an offence he described in his application as a “prohibited drug” offence in 1995 by the Corowa Children’s Court and that his penalty was a 12 months good behaviour order.

3 At the time the applicant made his application under the Act, it appears he held a licence under the former Act that was due to expire on 14 June 1999 (Exhibit 2). The applicant’s application was refused by a delegate of the respondent and the applicant applied for internal review of the decision. On the internal review, the respondent’s delegate decided on 10 August 1999 to refuse the application on the mandatory ground, being the objective fact of the conviction and the operation of section 16(1)(b) of the Act (when read with regulation 11(b) of the regulations) (Exhibit 1). The delegate regarded it as mandatory for the delegate to refuse the licence application. The application to the Tribunal is from this reviewable decision.

4 The Tribunal hearing occurred on 10 March 2000. The applicant was not represented and appeared by way of telephone hook up at his request. The respondent was represented by his legal advocate, Mr JJ Tunks. The respondent tendered a print-out of a NSW Police Service database dated 10 August 1999 setting out the criminal history of the applicant (Exhibit 3). The applicant did not object to this course. Normally, in the absence of a relevant concession by the applicant, better evidence of a conviction should be tendered, such as, for example, a certificate of conviction issued by the relevant Court pursuant to section 178 of the Evidence Act 1995.

5 The applicant did not seek at the Tribunal hearing to argue that the Tribunal should look behind the said conviction. I note that relevant references have been tendered (Exhibit 4) from the applicant’s present employer, Australian Country Spinners Pty Ltd, and his former employer in the security industry that show the applicant to be both a reliable and trustworthy employee. That is not disputed by the respondent. However, the objective fact of the conviction is the only relevant fact in these proceedings – Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 at [9], and Bourke v Commissioner of Police [1998] NSWADT 1.

6 Section 16(1)(a) & (b) of the Act provides:

“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…” (my emphasis)

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: …

(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…”

9 Exhibit 3 shows that the applicant was charged on 16 June 1995 and dealt with by the Corowa Children’s Court on 11 July 1995. As at the time of the security industry licence application, 8 June 1999, the Children’s Court matter had occurred about 4 years prior to that application. The charge is stated to be “possession prohibited drug” (pursuant to, as I am informed by the respondent’s representative, section 10(1) of the Drug Misuse and Trafficking Act 1985) and the sentence is recorded as being that the applicant was released without a conviction entered on the condition that he enter into a $300 self-recognizance to be of good behaviour for 12 months, which I take it, the applicant did. This order was made pursuant to section 33(1)(b) of the Children (Criminal Proceedings) Act 1987 which provides:

“Penalties

(1) If the Children's Court finds a person guilty of an offence to which this Division applies, it shall
do one of the following things: …

(b) it may make an order releasing the person on condition that the person enters into a good
behaviour bond for such period of time, not exceeding 2 years, as it thinks fit,”

11 The respondent filed helpful written submissions on the relevant issues on 10 March 2000 and 13 March 2000.

12 The critical issue is what is the effect of section 12 of the Criminal Records Act 1987 when read with section 16(1)(b) of the Security Industry Act 1997. The two provisions appear to clearly conflict and are said by the respondent to be considered “so repugnant that they cannot possibly stand together” in terms.

The Spent Convictions Legislation

14 The long title of the Act plainly describes its purpose. It provides:

“An Act to limit the effect of a person's conviction for a relatively minor offence if the person completes a period of crime-free behaviour, and to make provision with respect to quashed convictions and pardons.”

“Objects of this Act

3. (1) The primary object of this Act is to implement a scheme to limit the effect of a person's conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person's criminal history.
(2) The Act also provides for the effect of the quashing of a conviction and the pardoning of an offence.” (my emphasis)

17 The word “convictions” is defined in that Act in section 5 which provides:

“Findings and orders treated as convictions for the purposes of this Act

5. The following findings or orders of a court are treated as convictions for the purposes of this Act:

(a) a finding that an offence has been proved without proceeding to a conviction;
(b) a finding that an offence has been proved and the discharging of, or the making of an order releasing, the offender conditionally on entering into a recognizance to be of good behaviour for a specified period or on other conditions determined by the court;
(c) in the case of the Children's Court, an order under section 33 of the Children (Criminal Proceedings) Act 1987, other than an order dismissing a charge.” (my emphasis)

19 Convictions become spent under that Act either immediately in some limited cases, or after the completion of a certain “crime-free” period. Section 8 provides:

“When is a conviction spent?

8. (1) A conviction is spent on completion of the relevant crime-free period, except as provided by this section.
(2) A finding that an offence has been proved without proceeding to a conviction is spent immediately after the finding is made.
(3) An order of the Children's Court dismissing a charge and administering a caution is spent immediately after the caution is administered.
(4) A finding that an offence has been proved and:

(a) the discharging of, or the making of an order releasing, the offender conditionally on entering into a recognizance to be of good behaviour for a specified period or on other conditions determined by the court; or
(b) the releasing of the offender on probation on such conditions as the court may determine, for such period of time as it thinks fit,
is spent on satisfactory completion of the period or satisfactory compliance with the conditions, or both, as the case may require.
(5) A conviction in respect of an offence of a kind which has ceased, by operation of law, to be an offence is spent immediately the offence ceased to be an offence, if the offence is prescribed by the regulations to be an offence to which this subsection applies.
(6) A conviction which is spent is not revived by a subsequent conviction.” (my emphasis)

“What is the crime-free period for orders of the Children's Court?

10. (1) The crime-free period in the case of an order of the Children's Court under section 33 of the Children (Criminal Proceedings) Act 1987 (other than a finding or order referred to in section 8 (2) or (3) of this Act) in respect of a person is any period of not less than 3 consecutive years after the date of the order during which:
(a) the person has not been subject to a control order; and
(b) the person has not been convicted of an offence punishable by imprisonment; and
(c) the person has not been in prison because of a conviction for any offence and has not been unlawfully at large.
(2) The crime-free period may commence before the date of commencement of section 7.”

22 Accordingly, under the Criminal Records Act 1991, as at the time of the applicant making his application under the Security Industry Act 1998, on 8 June 1999, his conviction was spent under the spent convictions legislation. It was spent either immediately on 11 July 1995 pursuant to section 8(2) of the Criminal Records Act 1991, as no conviction was recorded on that day, as the respondent contends, and which I accept, or, it was spent after 3 years, on 11 July 1998, after the relevant crime-free period expired.

23 The significance of a conviction becoming spent is set out in section 12 of the Criminal Records Act 1991 which provides:

What are the consequences of a conviction becoming spent?

12. If a conviction of a person is spent:

(a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction; and
(b) a question concerning the person's criminal history is taken to refer only to any convictions of the person which are not spent; and
(c) in the application to the person of a provision of an Act or statutory instrument:
(i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent; and
(ii) a reference in the provision to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.” (my emphasis)

25 The underlying policy of the spent convictions legislation is Australia is described in the Laws of Australia, (LBC Information Services), Topic 12, Criminal Sentencing, Chapter 12.10, “The Consequences of a Conviction” at [1] which states:

“Aside from the stain of a criminal conviction on a person's character, a criminal conviction, or even a finding of guilt by a court, may potentially disadvantage a person in many aspects of his or her life. These disadvantages range from an inability or difficulty in obtaining or retaining a gun licence or obtaining or maintaining employment in a particular trade or profession, to difficulty in obtaining an Australian passport or visa.
In such circumstances, an offender faces the fundamental problem of the requirement on him or her to disclose prior convictions, which can have a disastrous effect on his or her ability to reintegrate into society. However, this problem has been resolved to a large extent by the enactment of spent convictions legislation [See Australian Law Reform Commission, Spent Convictions, Report 37 (Canberra: AGPS, 1987); Australian Law Reform Commission, Criminal Records, Discussion Paper 25, (Canberra: AGPS, 1985). On 30 June 1990, the Commonwealth Government enacted its Spent Convictions Scheme, which it inserted as Pt VIIC into the Crimes Act 1914 (Cth) as a result of Report 37 and Discussion Paper 25.]. Such legislation aims to counter any discrimination that may be caused to an offender who declares a conviction which is a number of years old. Most of the states and territories have, to a certain extent, overcome the problem by enacting such legislation. However, the legislation varies significantly among the jurisdictions and in all parts of Australia does not give relief to those offenders who have been the subject of a recent conviction or finding of guilt. Such offenders are still required to disclose their convictions until the relevant period as defined in the relevant spent convictions legislation has expired.” (See also ibid at [60] to [62].)

The Repugnancy Argument

28 In Goodwin v Phillips (1908) 7 CLR 1 at 7, per Griffith CJ stated:

“That proposition is only an instance of a more general rule, that is, that where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.”

29 Barton J formulated the principle in the following terms, at 10:

“Before coming to the conclusion that there is a repeal by implication “The Court must,” to use the words of Hardcastle in his work on the Interpretation of Statutes (Craies on Statute Law, 4th ed., p 303) “be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e., the repeal must, if not express, flow from necessary implication.” If, therefore, there is fairly open on the words of the later Act, a construction by adopting which the earlier Act may be saved from repeal, that construction is to be adopted.”

30 Isaacs J stated at 16:

“The latest expression of the will of Parliament must always prevail. An express repeal of or exemption from an earlier enactment is not more effectual than if it were created by implication. The only difference is in ascertaining the fact and extent of the implied exemption or repeal.”

31 The common law maxim “leges posteriores priores contraries abrogant” (later Acts repeal earlier inconsistent Acts) expresses the said principle. The principle in Goodwin v Phillips has been applied in many cases in Australia (see, for example, in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 213(per, Deane and Gaudron JJ).

32 Ordinarily, when a later Act is intended to repeal or amend an earlier Act, the later Act specifically deals with the earlier Act. There is provision for that in the general law and in Part 4 of the Interpretation Act 1987. However, the Security Industry Act 1997 does not so much as mention spent convictions, the Criminal Records Act 1991 or the position of child offences. It does not discriminate between convictions or proven offences incurred by adults and those incurred by children – Ibrahin v Commissioner of Police [1999] NSWADT 119 at [8], O’Connor DCJ, Accordingly, the matter must be decided upon common law construction principles.

33 In my opinion, the two provisions are clearly in conflict. They relate to the same subject matter, namely, the application of past convictions (or a finding of guilt but with no conviction recorded) over a specified period of time to the application by an administrative decision-maker of the terms of an Act (the Security Industry Act 1997) to a person who has applied for something under it.

34 A decision that a later Act repeals by implication an earlier Act cannot be taken lightly. It must be made only on very strong grounds. It must be presumed where possible that Parliament did not intend to contradict itself. In Saraswati v R (1991) 172 CLR 1at 17, Gaudron J stated:

“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v Attorney-General (Vict.) (1961) 106 CLR 268, per Fullagar J. at p 276, and per Windeyer J. at p 290.”

35 Notwithstanding that there is some conflict between the two provisions, they each have different work to do. The earlier Act here is more general (subject to specified exceptions) and is of ambulatory operation in that section 12 of the Criminal Records Act 1991 is plainly intended by Parliament to operate in future in respect of future legislation and regulations of a kind then unforeseen by Parliament – see: Department of Premier and Cabinet v Hulls (1999) 15 VAR 360 at [40], per Phillips JA, with Tadgell and Batt JJA agreeing. The later Act here is more specific and relates only to security industry licencing.

36 Bearing in mind the principles stated by Gaudron J in Saraswati, rather than this Tribunal making any finding that there is repugnancy here, it is more appropriate for me to find that Parliament intended both provisions should operate and that, to the extent that they overlap, one should be read as subject to the other. I do not regard both provisions as being so inconsistent or repugnant that they cannot possibly stand together.

37 Accordingly, I find that section 12 of the Criminal Records Act 1991 should be read as being subject to section 16(1)(b) of the Security Industry Act 1997.

38 Unfortunately for the applicant, this means that due to the fact of his conviction in 1995, he is not eligible to be granted a security industry licence under the new Act unless he makes a fresh application to the respondent sometime after 11 July 2000.

39 In his submissions, the respondent’s representative took me to the second reading speech of the Minister on the occasion of introducing the Bill of the Act in the Legislative Assembly in 1997 (Hansard 19 November 1997, pp2088 – 2090). In the circumstances, and upon my reading of the new Act, I do not regard that as a necessary exercise. In any event, were I to have considered that material, I would have found it to be of no assistance to me.

40 The respondent further argued that section 13 of the Criminal Records Act 1991 permits the NSW Police Service to store, retrieve and, in some cases, make available information relating to past convictions, including spent convictions, the Tribunal should consider that this fact adds weight to the respondent’s repugnancy argument. The fact that the respondent had access to this criminal history information is, in my view, not relevant to the construction issue.

41 The respondent further argued that, in any event, section 16(1) of the Criminal Records Act 1991 is a complete answer in the event of there being no inconsistency. Section 16(1) provides:

“Proceedings before courts

16. (1) Section 12 does not apply to proceedings before a court (including the giving of evidence) or the making of a decision by a court (including a decision concerning sentencing). …”

43 Under section 63(1) & (2) of the Administrative Decisions Tribunal Act 1997, the Tribunal is to decide what the correct and preferable decision is, and it possesses all of the functions, power, authority and duty of the administrative decision maker in this regard. The effect of the respondent’s submission here is that this power is enlarged by section 16(1) of the Criminal Records Act 1991. I cannot accept that Parliament intended that section to confer such additional power on the Tribunal to that of the original decision maker. In any event, it is not necessary for me to decide upon this argument.

44 I determine that the reviewable decision is affirmed.