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CIVIL AVIATION - aviation security identification card (ASIC) - adverse criminal record - security controlled airport - discretion to approve the issue of an ASIC - approval subject to conditions - decision under review set aside

Aviation Transport Security Act 2004 (Cth) s 3

Aviation Transport Security Regulations 2005 (Cth) rr 3.03(1), 6.01, 6.27(5), 6.27A(1), 6.29, 6.32(2)

Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353

1. Section 3 of the Aviation Transport Security Act 2004 (Cth) states that the main purpose of the Act "is to establish a regulatory framework to safeguard against unlawful interference with aviation."
2. As part of this regulatory framework certain airports in Australia are classified as security controlled airports and are divided into various zones, one of which is the Airside Security Zone. This is the area where passengers embark and disembark and freight aircraft are loaded and unloaded. Subject to certain exceptions, which are not relevant here, a person in the Airside Security Zone of a security controlled airport must properly display a valid Aviation Security Identification Card ("ASIC").[1]
3. In April 2013 Mr Maksimovic applied to the Respondent Secretary for the issue of an ASIC. This application was refused by the Secretary's delegate. Mr Maksimovic has applied to the Tribunal to review this decision.
4. For the reasons which follow the decision under review will be set aside and it will be decided that the issue of an ASIC to Mr Maksimovic be approved, subject to conditions.

1. Mr Maksimovic initially applied to the Civil Aviation Safety Authority for the issue of an ASIC. The authority is an authorized Issuing Agency under the Act and Regulations. The Authority refused to issue an ASIC to Mr Maksimovic by reason of his criminal record. I will refer to the details of this record later in these reasons.
2. Regulation 6.29(1) of the Regulations provides that if a person is not eligible to be issued an ASIC only because he or she has an adverse criminal record the person may apply to the Secretary, in writing, for approval to issue an ASIC to the person. The Secretary concedes that the only reason Mr Maksimovic is not eligible for the issue of an ASIC is because he has an adverse criminal record. I am satisfied that this is a proper concession.
3. "Adverse criminal record" is defined in regulation 6.01(2) to include conviction of an aviation-security-relevant offence and sentencing to imprisonment. It is not in dispute that Mr Maksimovic has an adverse criminal record for the purposes of this application.

1. The Secretary, and therefore this Tribunal in reviewing a decision of the Secretary's delegate, must decide whether to approve, or refuse to approve, the issuing of the ASIC.[2] Thus it is a matter of discretion to be exercised by the decision-maker.
2. Regulation 6.29(5) provides:

Before approving or refusing to approve the issue of the ASIC to a person who is not eligible to be issued an ASIC only because the person's adverse criminal record prevents him or her being issued with an ASIC, the Secretary must consider:

(a) the nature of the offence the person was convicted of; and

(b) the length of the term of imprisonment imposed on him or her; and

(c) if he or she has served the term, or part of the term - how long it is, and his or her conduct and employment history, since he or she did so; and

(d) if the whole of the sentence was suspended - how long the sentence is, and his or her conduct and employment history, since the sentence was imposed; and

(e) anything else relevant that the Secretary knows about.

1. An approval may be given subject to a condition.[3]

1. The issue for determination in this application is whether the Tribunal should exercise the discretion to approve the issue of an ASIC to Mr Maksimovic. In deciding this issue it will be necessary to consider whether an approval, if to be given, should be made subject to a condition or conditions.

1. Unless otherwise stated, the following findings of fact are based on the evidence of Mr Maksimovic.
2. Mr Maksimovic is 39 years old. He has a degree in Aviation and since 1999 has held a commercial flight crew licence. Between March 1996 and March 2002 Mr Maksimovic attended University studying to obtain his degree. While he was studying he worked as a taxi driver. Also during this time he undertook the necessary training and obtained his pilot's licence. As a student pilot and then as a qualified commercial pilot, Mr Maksimovic had access to secure areas of airports.

1. In 1997 Mr Maksimovic was convicted of offences of cultivating cannabis, theft of electricity and trafficking cannabis. In respect of the first and second of these offences the Court made a community based order for 12 months whereby Mr Maksimovic was to perform 200 hours of unpaid community work and to pay $4559 in compensation for stolen electricity. On the trafficking charge he was sentenced to six months imprisonment which was fully suspended.
2. In 2006 Mr Maksimovic was convicted of two offences:
   • aid, abet, counsel or procure the importation of a prohibited import (cocaine);
   • attempt to possess prohibited imports (cocaine).

On the first count he was sentenced to six years imprisonment commencing 3 November 2006. On the second count Mr Maksimovic was sentenced to five years imprisonment commencing 3 November 2008, thus giving a head sentence of seven years. The non-parole period was set at four years.

1. Mr Maksimovic was released from prison in June 2010. His parole period ended on 8 June 2013.

1. Immediately upon his release from prison Mr Maksimovic returned to work as a taxi driver and commenced his own furniture removal business. He has continued working in both these occupations.
2. In November 2010 Mr Maksimovic commenced part-time employment as a courier driver with Tasfast Airfreight Pty Ltd, a company operating an airfreight service between Moorabbin Airport in Melbourne and three airports in Tasmania. When Mr Maksimovic commenced work his duties were to collect and distribute freight from and to customers in Melbourne. The freight was loaded onto and unloaded from aircraft at Moorabbin Airport. As Mr Maksimovic assisted in the loading and unloading of aircraft he entered the airside secure area of the airport on a daily basis during the working week. As he did not hold an ASIC his employer repeatedly issued him with a Visitor's Permit which entitled him to enter the secure area.
3. Approximately six months after Mr Maksimovic commenced working for the company its Operations Manager, Mr Trupec, was informed by the Australian Federal Police that Mr Maksimovic did not hold an ASIC and that he had a criminal record.
4. Mr Trupec gave evidence. On the basis of that evidence I am satisfied of the facts set out in the following three paragraphs.
5. Mr Trupec interviewed Mr Maksimovic for the position of driver in November 2010. He was impressed by Mr Maksimovic's keenness to work in the aviation industry. Mr Trupec did not request a police records check in respect of Mr Maksimovic and Mr Maksimovic did not disclose his criminal record or that he had served a term of imprisonment. He was on parole at the time of the interview.
6. Mr Trupec advised Mr Maksimovic of the visit from the Australian Federal Police. The following day Mr Maksimovic informed Mr Trupec that he did not hold an ASIC and informed him of the details of his criminal record and imprisonment. Notwithstanding the additional information received by the company it was decided to continue to employ Mr Maksimovic as a driver. He was no longer permitted to go into the airside secure area to load and unload freight.
7. Mr Trupec regards Mr Maksimovic as a hard-working and valuable employee. Should Mr Maksimovic hold an ASIC he will have the opportunity to gain promotion to the position of supervisor and later that of commercial pilot. The latter position would require him to undertake further flying training which would be provided by the company. If Mr Maksimovic does not hold an ASIC he will be able to continue as a driver.

1. The power to exercise a discretion is not unfettered. Of relevance in this application is the principle that a discretion given by statute "must be exercised in accordance with the language by which it is conferred and to achieve the purposes for which the power has been granted." [5]
2. In the introduction to these reasons I quoted the stated main purpose of the Act as being "to establish a regulatory framework to safeguard against unlawful interference with aviation."[6] In considering how to exercise the discretion to approve the issue of an ASIC to Mr Maksimovic I must take the purpose of the Act into account together with the considerations set out in regulation 6.29(5).

The nature of the offences of which Mr Maksimovic was convicted

1. Mr Maksimovic has an "adverse criminal record" because he has been convicted of several "aviation-security-relevant offences". "Aviation-security relevant offence" is defined in regulation 6.01 to mean an offence of a kind specified in a table set out in the definition. The offences specified include:
   • an offence involving dishonesty;
   • an offence constituted by the production, possession, supply, import or export of a specified narcotic substance or a specified drug.
2. As the Secretary correctly points out, Mr Maksimovic has been convicted of five aviation-security-related offences over a period of 10 years which relate to two separate sets of conduct.
3. The 1997 convictions arose from Mr Maksimovic's involvement in the hydroponic production of cannabis and the stealing of the electricity required for that purpose. The offences involved both dishonesty and the production, possession and supply of a narcotic substance. These were serious offences.
4. The 2006 convictions for offences committed by Mr Maksimovic in 2005 when he was 30 years old, again involved drugs. Mr Maksimovic was convicted of procuring the importation of 790 grams of cocaine into Australia. The importation was by air freight. He was the sole organizer in Australia of the importation and would have been the sole beneficiary of the undertaking had it proceeded as planned. In addition Mr Maksimovic attempted to involve an innocent person in the offences committed by him by attempting to have the drugs delivered to that person.[7]
5. It is well-known that illegal drugs are imported into this country through airports. Mr Maksimovic's involvement in the illegal drug trade on two separate occasions over a 10 year period is a matter of serious concern in deciding whether the discretion should be exercised in Mr Maksimovic's favour.

1. Mr Maksimovic was sentenced to imprisonment for five years on one count and six years on the second, with one year to be served cumulatively. The head sentence was therefore seven years. The non-parole period was four years. He served this sentence.
2. In imposing the sentence the Sentencing Judge said, in part:

... I also have to ensure and ensure in circumstances where you get no mitigation for a plea of guilty or remorse or even acknowledgement of wrong doing, I have to ensure in that background that the sentence adequately reflects the community denunciation and principles of general and specific deterrence which all loom very heavily in this sort of case...

This is a mid range case in terms of the volume of the drugs. It is well above the threshold for trafficable quantity of two grams but it is far short of the two kilogram threshold for commercial quantity. However, it is enough to gain on your part a significant amount of money if you were to have been selling it, either on the street or amongst colleagues or associates. I take account of all those considerations and your role in the enterprise. [8]

1. A four year non-parole sentence is a substantial term of imprisonment and reflects the seriousness of the offence committed by Mr Maksimovic.

The length of time since Mr Maksimovic served his term of imprisonment and his conduct and employment history since he served that term

1. It is now three years and eight months since Mr Maksimovic was released from prison. It is eight months since he completed his period of parole. It is to Mr Maksimovic's credit that he returned to employment immediately upon his release from prison and that he continues to be employed in three different jobs, one of which is self-employed.
2. Mr Trupec spoke very highly of Mr Maksimovic's ability and work ethic and I take into account that Tasfast Pty Ltd valued Mr Maksimovic sufficiently as an employee to continue to employ him after learning of his criminal record. I have taken into account also the various references in evidence which refer positively to Mr Maksimovic's work ethic.
3. I am satisfied that since his release from prison Mr Maksimovic has worked to re-establish himself as a productive member of society.
4. It was argued on behalf of the Secretary that the term of the sentence imposed on Mr Maksimovic only came to an end in June 2013 when he completed the period of parole and that as a consequence the period which has elapsed since that time is short. I accept this proposition. However as regulation 6.29(5)(c) refers to a person having served "the term, or part of the term" (emphasis added), it is appropriate to consider also the period which has elapsed since Mr Maksimovic was released on parole. As refereed to earlier, I have done so.

The length of any suspended sentence and conduct and employment history since

1. In 1997 Mr Maksimovic was sentenced to imprisonment for six months on the charge of trafficking of cannabis. This sentence was fully suspended.
2. Following this suspended term Mr Maksimovic studied and obtained his degree in Aviation. He also worked as a taxi driver. However in 2005 Mr Maksimovic committed further serious drug-related offences which led to his incarceration.

1. I have taken into account that should Mr Maksimovic be issued with an ASIC he will have increased opportunity for advancement in his employment, including the chance of promotion to commercial pilot. However I have only considered this having decided that the imposition of conditions on any ASIC issued to him will reasonably ensure that aviation is not unlawfully interfered with. At the same time it will give Mr Maksimovic the opportunity to continue to advance his career and contribute as a productive member of society to the full extent of his capabilities.
2. Regulation 6.32(2) provides in part that the expiry of an ASIC issued to a person must not be later than two years after the last day of the month in which the background check was completed. The background check conducted on Mr Maksimovic for the purposes of his application now before the Tribunal was conducted on 5 March 2013.[9] This means that an ASIC issued to Mr Maksimovic in response to his present application must expire no later than 31 March 2015, just over 13 months hence. Mr Maksimovic's situation will be subject to review no later than that date should he wish to continue to hold an ASIC.

1. The risk of our airports being used as a point of entry for the importation of illegal drugs is a major concern in protecting aviation against unlawful interference. In seeking to safeguard aviation against this risk so far as possible it is important that ASIC's not be issued to persons engaged in, or likely to engage in, criminal activity.
2. In view of the seriousness of Mr Maksimovic's convictions of aviation-related-security offences on two separate occasions and the short time which has elapsed since the completion of the supervision associated with parole, I have decided that Mr Maksimovic should not have access to the secure areas of all airports and in particular, he should not have access to the secure areas of international airports.
3. On the evidence before me I am satisfied that giving Mr Maksimovic access to the secure area of Moorabbin airport for the purposes of his employment will not increase the risk of unlawful interference with aviation. It will allow him to take advantage of the opportunity of promotion to supervisor should it be offered to him. It will also permit him to undertake further flying training from this airport should it be offered by his employer as part of training as a commercial pilot or should he wish to undertake further training on his own initiative.
4. In reaching my decision I have noted that an issuing body must not issue an Australia-wide ASIC unless the applicant has an operational need to access more than one airport.[10] Mr Maksimovic has not shown such a need at this stage of his career.
5. I note also the requirements of regulation 6.27A(1):

If an issuing body (other than Customs and Border Protection) intends to issue an airport-specific ASIC to a person, and the issuing body is not the airport operator of that airport, the issuing body must not issue the ASIC unless the issuing body has received the written approval of the airport operator of the airport.

1. During the hearing of this application Counsel for the Secretary informed me that an employer is required to submit regular reports to the relevant authority providing details of the issue of Visitor's Permits which entitle the holder (not being the holder of an ASIC) to access the secure area of a controlled airport. Mr Trupec, the Operations Manager of Tasfast Pty Ltd gave evidence that for the first six months of Mr Maksimovic's employment by the company he thought Mr Maksimovic held an ASIC. Mr Maksimovic gave evidence that during this time his supervisor (an employee of Tasfast Pty Ltd) issued him with a Visitor's Permit on most days he was employed by the company.
2. It is of concern that the need for the issue of an ASIC, an integral part of "the regulatory framework to safeguard against unlawful interference with aviation" in this country was so easily by-passed for so long without either the relevant authority or the company becoming aware of the practice. In addition, on the evidence before me, both the company and the relevant authority only became aware of what was happening because the Australian Federal Police was informed by a third party.

1. The decision of the delegate of the Secretary of the Department of Infrastructure and Transport made 29 April 2013 refusing to approve the issue of an Aviation Security Identification Card to Dejan Maksimovic will be set aside.
2. In substitution for the decision set aside it will be decided that the issue of an Aviation Security Identification Card to Dejan Maksimovic will be approved subject to the following conditions:
   • (v) that the Card be specific to the Moorabbin Airport, Victoria;
   • (vi) that should Mr Maksimovic cease to be employed by Tasfast Airfreight Pty Ltd he shall immediately return the Card to the Civil Aviation Safety Authority, 16 Furzer Street, Phillip, ACT 2606;
   • (vii) within 14 days of the issue of the Card to Mr Maksimovic, he shall apply for an Accredited Australian National Criminal History Check and shall provide the Check to the Secretary, Department of Infrastructure and Regional Development within three working days of its receipt;
   • (viii) at the expiration of five months after the issue of the Card to Mr Maksimovic, he shall apply for an Accredited Australian National Criminal History Check and shall provide the Check to the Secretary, Department of Infrastructure and Regional Development within three working days of its receipt.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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[1] Aviation Transport Security Regulations 2005, reg.3.03(1).

[2] Regulation 6.29(3).

[3] Regulation 6.29(6).

[5] Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353, 371.

[6] Aviation Transport Security Act 2004 (Cth) s 3.

[7] Remarks of Williams J. on sentencing 3 November 2006, exhibit R1 p.72 ff.