Maarbani v WorkCover Authority of NSW

NCAT Administrative and Equal Opportunity|2015-03-04

Solicitors: McArdle Legal (Applicant) WorkCover Authority of NSW (Respondent) File Number(s): 1410704

reasons for decision

These proceedings concerned an application for a security clearance under the Explosives Act 2003 (NSW) which was refused by the WorkCover Authority of NSW ("WorkCover"). The main reason for the refusal was that the applicant has been convicted of a number of offences committed in the last five years relating to the storage of explosives and allowing an unlicensed person to have unsupervised access to an explosive.
The main issue in these proceedings is whether, having regard to the applicant's convictions and the conduct underlying those convictions, the applicant is a fit and proper person to hold a security clearance.

RELEVANT LEGISLATION

An application for a security clearance may be made pursuant to cl 11 of the Explosives Regulation 2013 (NSW). WorkCover, as the regulatory authority, may approve or refuse applications for security clearances (Explosives Act, ss 4, 11(2)).
Clause 12 of the Explosives Regulation provides: "12 Grounds for refusing security clearance (1) The regulatory authority may grant a security clearance to a person only if it is satisfied that the person: (a) is 18 years of age or over, and (b) is a fit and proper person to be granted a security clearance."
Subsections (1) to (3) of s 24 of the Explosives Act provide: "24 Review of decisions by Administrative Decisions Tribunal (1) A person who is aggrieved with a decision under this Act or the regulations relating to a licence or security clearance may apply to the Administrative Decisions Tribunal for a review of the decision. (2) For the purposes of this section, an application for the grant of a licence or security clearance is taken to have been refused if the licence or security clearance is not granted within 60 days (or such other period as is prescribed by the regulations) after the application was duly made. (3) An application under subsection (1) must be made within 28 days after the directly aggrieved person is notified of the decision (or in a case of the kind referred to in subsection (2), within 28 days after the expiry of the 60-day period referred to in that subsection)."

JURISDICTION

The applicant's application was made on 11 December 2014. On the administrative review application form, the applicant stated he was notified about the decision on 14 November 2014. This evidence was not challenged. The application was thus made within the 28 day period specified in s 24(3) of the Explosives Act and the Tribunal has jurisdiction to hear the application.

FIT AND PROPER PERSON

The meaning of "fit and proper person" is well settled, following a long line of cases discussing its meaning: see Stevens v WorkCover Authority of New South Wales [2014] NSWCATAD 202 at [49]. I have discussed some of those cases in Boyle v WorkCover Authority of New South Wales [2015] NSWCATAD 90 at [50]-[53] and in Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 at [58]-[59].
Significantly, the expression "takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Toohey and Gaudron JJ at 380. The determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence: Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at [20]; Robertson v Roads and Maritime Services [2015] NSWCATOD 47 at [40].

Character references

The applicant produced references in support of his application, including a reference from a pyrotechnician who described him as a very passionate and knowledgeable fireworks technician, from a business associate who described him as reliable, honest and trustworthy and from the managing director of a fireworks company who described him as decent, hard-working and trustworthy. The writers of those references did not give evidence in these proceedings and the references did not mention the applicant's convictions.
I have given the references only limited weight. I have given greater weight to the evidence concerning the applicant's criminal convictions and the conduct underlying those convictions. This evidence provides a more reliable indication of the applicant's fitness and propriety to hold a security clearance.

Conduct underlying criminal convictions

It is well established that the Tribunal can consider the circumstances in which an offence was committed when determining a person's fitness and propriety. The Appeal Panel of this Tribunal said in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [51]: "Where a statute makes the fact of a conviction the trigger for administrative action, the Tribunal cannot look behind the conviction and examine the circumstances of the offence. But in cases where the issue is a person's character or fitness, there must be an inquiry into the facts which allegedly make the person unfit or of bad character".
In Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474, the Court of Appeal held that a tribunal could "go behind" a conviction in order to make findings as to the underlying conduct and a party was entitled to lead evidence which challenged the facts underlying the conviction. Basten JA said at 482 [32]: "The possibility that the Tribunal may make findings which call into question the outcome in the criminal proceedings, does not necessarily mean that for the practitioner to give evidence inconsistent with such findings would be an abuse of its process."
Accordingly, the Tribunal may consider the applicant's explanation of the circumstances leading to his convictions, even if that is inconsistent with findings made in his criminal trial.
The applicant gave evidence about the circumstances in which the offences were committed. The applicant stated that, in December 2010, he had ordered a delivery of fireworks and had requested that they be delivered to an address in Lakemba. He said the reason for asking for the fireworks to be delivered to the Lakemba address was the time of year (just before Christmas) and because delivery would exceed storage limits "at home."
The applicant explained that he had expected his brother, a licensed pyrotechinican, to pick up the fireworks. He said that he learnt on the morning that the fireworks were to be delivered that his brother could not collect them. The applicant said he could not get to Lakemba from Wollongong in time, so Radwan Dadoun took possession of the fireworks upon delivery.
The applicant stated that this was an isolated event in his career and that Radwan Dadoun had unsupervised access to the fireworks through error rather than through any intention on the applicant's part.
In relation to the storage offences of which the applicant was convicted, he said that the offences occurred in March 2011 at a semi-rural address in Berrima. It appears from the judgment in his criminal matter, that this was his home address. The applicant said that he thought he had verbal consent from WorkCover officer to store fireworks at the property because of bad weather a few days prior to the visit by WorkCover inspectors. According to the applicant, the cancelled displays accounted for 20 of the boxes of fireworks found at that address.
Under cross examination, the applicant agreed that he was aware in 2011 that he was storing goods in breach of Australian Standards. He said he was also aware that this could have an effect on his licence. He agreed that he had stored fireworks in a horse stable but said that they were there only there for half an hour before WorkCover arrived at the property. He acknowledged that the other fireworks, which were stored in a shipping container, were stored unlawfully because WorkCover had not given approval for them to be stored there.
The applicant accepted that the offence of allowing other persons to have unsupervised access to fireworks was a serious matter. He explained that his brother had suggested the goods be delivered to the Lakemba address. He agreed that he knew it was not a residential address and said he did not make enquiries as to the nature of the premises. He later learned that the delivery address was a fruit and vegetable shop. He said, however, that the class of fireworks which was being delivered was not dangerous.
The applicant said that when he learnt his brother could not collect the fireworks, he rang the courier to have the fireworks sent back. He acknowledged that he did not take any other steps to cancel the delivery. He said he was unable to physically go to the location in Lakemba because he was committed to doing other work. He anticipated that the courier driver would not deliver the fireworks if he did not sight the recipient's driver's licence.
It was submitted for the applicant that he was a person of good character and that he had no history of offences other than those disclosed to the Tribunal. The applicant's solicitor, Mr McArdle, submitted that there was no pattern of behaviour but rather one extraordinary lapse. He also submitted that, without trivialising the nature of the convictions, they related to incidents which occurred over four years ago, did not crystallise a risk to the health and safety of others and were unlikely to be repeated.
Mr McArdle pointed out that the holder of a security clearance could only handle explosives or explosive precursors in the course of his or her employment or under immediate supervision (Explosives Regulation, cl 20). He referred to the applicant's evidence that he would not store fireworks at his home. In these circumstances, Mr McArdle submitted, there was no potential for breaches of licence conditions similar to those for which the applicant was convicted.
The respondent's counsel, Ms McEniery, submitted that the convictions were relevantly recent and that they go to the heart of the matter of safety. She said that the offence of allowing unsupervised access was a serious one and that the applicant had arranged a delivery of fireworks which he knew nothing about, without taking adequate steps to retrieve the delivery. She submitted that he had a cavalier attitude to safety.
In relation to the storage offences, Ms McEniery said that the applicant held a licence with conditions and that he was required to be familiar with the Australian standards at the time he committed the offences.

CONSIDERATION

The conduct underlying the convictions was serious and indicative of the applicant's disregard for his obligations under the explosives legislation.
The applicant arranged for fireworks to be delivered to an address which was unknown to him. Whilst his evidence in these proceedings is that his brother nominated that address, I note that, in the criminal proceedings, Mr Dadoun gave evidence that he had organised the delivery to the Lakemba address through a third party. The magistrate found that the applicant had selected the location of the delivery site on the advice of Mr Dadoun, knowing that Mr Dadoun was not licensed to handle the fireworks. Whether it was the applicant's brother or Mr Dadoun who nominated the address for delivery, the applicant took no steps to ascertain the nature of the premises, and took insufficient steps to ensure that a licensed person would be at that address to collect the fireworks upon delivery. His conduct in this respect was reckless and demonstrated a neglect of safety considerations. I do not accept his evidence that the category of fireworks being delivered was "not dangerous," which is contrary to the magistrate's sentencing remarks that the fireworks were "potentially dangerous when in the hands of unqualified persons, and can be used in situations that are inherently dangerous."
The applicant gave no evidence that he had taken any steps in the days immediately prior to the delivery date to check that his brother was still in a position to collect the fireworks. Upon learning that his brother would not do so, he endeavoured unsuccessfully to cancel the delivery by telephoning the courier company. His oral explanation for not coming to collect the fireworks himself suggested that he had chosen not to do so, due to the long distance he would have to drive and his other work commitments. I find that this was the case. The applicant did not sufficiently prioritise his obligations under the explosives legislation, subordinating them to the demands of running his business.
The storage offences are also indicative of the applicant's lack of commitment to complying with his obligations under the explosives legislation. He gave evidence that he was aware that he knew he was required to comply with the Australian Standards, but did not do so. Storage of fireworks in an open, unlocked and unsecured horse stable, was a clear breach of his obligations. It is of no assistance to him to say, as he said in these proceedings, that this occurred only shortly before the WorkCover inspector arrived at the property. The circumstance that certain fireworks displays were cancelled may explain the excess of fireworks in the applicant's possession, but it does not explain why he decided to store them in a shipping container in which he was not authorised to store explosives, or why he chose to store them in a horse stable.
The applicant did not express remorse for his conduct in the statement he filed with the Tribunal, and did not display sufficient understanding of the seriousness of his breaches of the explosives legislation in his oral evidence. Instead, he sought to explain his conduct in relation to the unsupervised access to fireworks as an isolated incident which he was unable to control. The explanations he gave for committing the offences of which he was convicted are not truly exculpatory. I am not satisfied that the applicant has demonstrated insight into the seriousness of his conduct or any subsequent reform: McBride v Walton [1994] NSWCA 199.
The applicant gave evidence that he had read and familiarised himself with a number of documents, including the respondent's security clearance conditions, certain relevant Australian Standards and the Australian Explosives Code. Whilst a knowledge of the relevant regulatory scheme is helpful, it does not overcome the evidence that the applicant has disregarded his obligations under the explosives legislation in the past or establish that he is likely to comply with those obligations in the future.
The applicant's fitness and propriety to hold a security clearance are to be assessed in light of the nature of the explosives industry, and the public policy objectives leading the legislature to regulate the industry: Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41]. Safety is a paramount objective in the regulation of the explosives industry.
In these circumstances, I am not satisfied that the applicant is a fit and proper person to hold a security clearance. Accordingly, I affirm the respondent's decision. 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: 18 June 2015

Explosives Regulation 2013(NSW)

Explosives Regulation 2005(NSW)

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)