Mani v WorkCover Authority of NSW

NCAT Administrative and Equal Opportunity|2014-12-11

Solicitors: Hannaford Cox Connellan & McFarland (Applicant) Crown Solicitors Office (First and Second Respondents) File Number(s): 1410377

REASONS FOR DECISION

These proceedings concern the question of whether the cancellation of the applicant's security clearance is the correct and preferable decision.
The applicant has committed a number of offences and has been subject to a number of apprehended violence orders from 1991 to 2014. The applicant's case is that his violent behaviour was alcohol-related and that, since giving up alcohol in June 2014, he has been rehabilitated and is now a fit and proper person to hold a security clearance.

RELEVANT LEGISLATION

An unsupervised handling licence "is taken... to be a security clearance granted by [WorkCover] under Part 2" of the Explosives Regulation (Explosives Regulation, Sch 3, cl 4(1)). Thus, the applicant's unsupervised handling licence was taken, from 1 September 2013, to be a security clearance.
Under s 13(1) of the Explosives Act 2003 (NSW), WorkCover may request the Commissioner of Police to furnish it with a report in respect of certain matters relating to an applicant for the grant or renewal of a licence or security clearance or the holder of a licence or security clearance. These include "whether the applicant or holder has been found guilty or convicted of an offence (whether in New South Wales or elsewhere) and any available information concerning any such conviction that the Commissioner considers to be relevant to the application or continued holding of the licence or security clearance" (Explosives Act, s 13(1)(a)).
WorkCover may cancel a security clearance under s 21 of the Explosives Act, which provides as follows: "21 Cancellation of licences and security clearances The regulatory authority may cancel a licence or security clearance: (a) if the holder of the licence or security clearance: (i) is convicted of or found guilty of an offence against this Act or the regulations or a provision of a corresponding Act or regulation of the Commonwealth or of another State or Territory relating to explosives, or (ii) breaches a condition of the licence or security clearance, or (iii) surrenders the licence or security clearance to the regulatory authority, or (iv) supplied information which was (to the holder's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or security clearance, or (b) if the regulatory authority is of the opinion that the holder is no longer a fit and proper person to hold, or to continue to hold, the licence or security clearance, or (c) for any other reason prescribed by the regulations."
Section 22 of the Explosives Act also gives WorkCover a power to cancel a security clearance, after issuing a show cause notice and considering the holder's response: "22 Special provision - suspension or cancellation of licences and security clearances where suspicions of violence (1) If the regulatory authority believes that the holder of a licence or security clearance cannot be trusted to handle explosives or explosive precursors because the person has a history of violence or threats of violence (whether or not the person has been convicted of any offence involving violence), the regulatory authority may, by notice in writing served on the holder, require the holder, within the time specified in the notice, to show cause why the licence or security clearance should not be cancelled. (2) The regulatory authority may also, at any time, suspend the licence or security clearance pending determination of the matter under subsection (3). (3) If the regulatory authority is not satisfied with the matters, if any, put to the regulatory authority by the holder of the licence or security clearance, the regulatory authority may cancel the licence or security clearance. (4) If the regulatory authority is satisfied that an apprehended violence order is in force under the Crimes (Domestic and Personal Violence) Act 2007 against the holder of a licence or security clearance (whether or not the person has been served with a notice under subsection (1)), the regulatory authority may suspend the licence or security clearance for any period determined by the regulatory authority. (5) A period must not be determined under subsection (4) that extends beyond the period during which the apprehended violence order remains in force. (6) This section does not limit any powers of the regulatory authority under section 20 or 21 with respect to a licence or security clearance. (7) In this section, violence includes behaviour referred to in section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (Stalking or intimidation with intent to cause fear of physical or mental harm)."
WorkCover is also empowered to cancel a security clearance under cl 14(1) of the Explosives Regulation, "if satisfied that the holder is not a fit and proper person to be granted a security clearance."
Subsections (1) to (4) of s 24 of the Explosives Act provide for review of WorkCover's decisions by this Tribunal as follows: "24 Administrative review of decisions by Civil and Administrative 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 Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 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). (4) Section 48 (Notice of decision and review rights to be given by administrators) of the Administrative Decisions Review Act 1997 is taken to require notification of a decision to be made only to a directly aggrieved person."

FIT AND PROPER PERSON

The respondents submitted that the Tribunal should affirm WorkCover's decision to cancel the applicant's security clearance on the ground that he is no longer a fit and proper person to hold, or to continue to hold, the security clearance pursuant to s 21(b) of the Explosives Act and/or that he "is not a fit and proper person to be granted a security clearance" pursuant to cl 14(1) of the Explosives Regulation. It was not submitted that there was any relevant difference in the application of these two provisions in the circumstances of this case.
The meaning of the expression "fit and proper person" has been the subject of a significant amount of case law and is now relatively settled. Judicial Member Molony provided a useful summary of the authorities on the meaning of the expression in YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264 at [34]-[47], which I adopt. As the applicant acknowledged, the applicant's fitness and propriety to hold a security clearance under the Explosives Act is to be determined having regard to "the legislative recognition of the particularly high risks associated with explosives and the potential for their misuse" (Stevens v WorkCover Authority of New South Wales [2014] NSWCATAD 202 at [5]).

Incidents prior to 2009

The applicant submitted that incidents which occurred prior to 2009 are not relevant for the purposes of these proceedings. The applicant said that WorkCover did not regard these incidents as serious when, despite an adverse report from the Commissioner of Police under s 13 of the Explosives Act, it granted the applicant an unsupervised handling licence in 2009. He submitted that, as at 28 September 2009 when that licence was granted, WorkCover was satisfied that he was a fit and proper person.
As the applicant accepts, the Tribunal's function is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material (Administrative Decisions Review Act, s 63(1)). Factual material concerning the applicant's conduct prior to 2009, including material about convictions and apprehended violence orders, is relevant to the determination of whether he is a fit and proper person to hold an authority under the explosives legislation. Whether or not the Commissioner of Police regarded him as a fit and proper person in 2009 has no bearing on the relevance of that material.
Accordingly, in assessing the applicant's fitness and propriety to hold a security clearance, I have considered the evidence of the applicant's conduct up to 28 September 2009, as well as conduct since that time.

Violent and unlawful conduct

As the respondents submitted, the applicant has a history of engaging in violent behaviour and contravening the law, dating back to 1991. The applicant has had interim and final apprehended violence orders made against him in 1991, 2000, 2002, 2004 and 2014. He was convicted of culpable driving in 1993, assault occasioning actual bodily harm in 2004, two contraventions of an apprehended violence order in 2014 and two counts of stalking/intimidating intending fear or physical harm in 2014. The respondents submitted that s 22 of the Explosives Act strongly suggests that a person's violent tendencies count against the grant of a security clearance, relying upon Stevens v WorkCover Authority of New South Wales [2014] NSWCATAD 202 at [60]. They also said that the applicant's past conduct establishes that he has violent tendencies.
In oral evidence, the applicant repeatedly denied that he was a violent person or that he had tendencies to act violently. However, the applicant generally did not present as a reliable witness. As the respondents submitted, he was evasive in answering questions and often changed his answers. In addition, he tended to deny matters which he perceived to be unfavourable to his case, even where the evidence in support of those matters was overwhelming. For example, the applicant initially told the Tribunal he could not remember whether he had been drinking alcohol on 28 June 2014, the date on which he threw a bowl of food against the wall, then admitted that he had been after Mr El Hage took him to a paragraph of his affidavit in which he said he had been drinking on that day. The police reported a similar pattern of denial then admission in the facts sheet concerning the incident on 28 June 2014. The applicant's only explanation to the Tribunal for his denial that he had been drinking to the police was that "I was in a mess."
Some of the circumstances surrounding the applicant's convictions and apprehended violence orders are indicative of a tendency to lose control following consumption of alcohol, a lack of regard for others' safety and an inability to manage anger effectively.
During his cross examination of the applicant, Mr El-Hage asked the applicant about his conviction in 1993 for culpable driving. The applicant initially said he could not remember the circumstances leading to the conviction, then admitted that his driving caused a death. He then said "[t]here was two people died in that accident" and agreed with Mr El-Hage that he had been drinking alcohol prior to the accident. The applicant told the Tribunal that, during his fifteen month prison sentence, he resolved that he did not want anything to do with alcohol and that he would rehabilitate himself. He said that after his imprisonment he never drank and drove.
Mr El-Hage put to the applicant that, since he had been released from prison he had in fact driven after or whilst drinking alcohol, and referred to Mr Slarke's evidence. In an affidavit tendered by the applicant, Mr Slarke stated that, prior to 28 June 2014, the applicant "used to 'grab a beer' … to drink on the drive home from work" and that the "bottles would often end up on the floor of the car." The applicant denied that this was the case.
I accept Mr Slarke's evidence that the applicant was in the habit, prior to 28 June 2014, of drinking beer on the way home from work in his car. It was the applicant who tendered Mr Slarke's evidence. The applicant's denials that he was in the habit of drinking and driving were not persuasive in light of his evasiveness in the witness box, his tendency to change his evidence, his frequent lack of recollection of events which were unfavourable to his case and his denial that he had been drinking on other occasions when he clearly had. The applicant appeared to answer questions in order to put his case in the best way possible, at one point suggesting that whether or not he was in a good frame of mind affected the substance of the answer he gave.
I also take into account the nature of the applicant's conduct in relation to the offence of assault occasioning bodily harm in 2004. The police facts sheet relating to the 2004 incident states that he dragged his former wife into their home by her hair, grabbed her by her clothing and threw her into the wall, causing the wall to crack. According to the police facts sheet, he then punched her in the mouth, causing her lip to bleed. Following this, the police facts sheet states that he took a 15 or 20 centimetre knife from the kitchen and stood over his former wife, moving the knife towards her chest in a stabbing motion and saying "I'm going to kill you."
In cross examination, the applicant did not accept that these events happened and denied having pleaded guilty to this offence, repeatedly saying that it did not make him a violent person. After further questioning, the applicant said he was unsure whether he had pleaded guilty and admitted that the incident may have happened in the way described.
I accept that the police facts sheet accurately describes the applicant's conduct in 2004, when he assaulted his then wife. The only evidence to suggest he did not engage in this conduct is his equivocal denials, which gave way to an admission that he may have acted in that way.
The applicant did not deny the occurrence of the incidents which occurred in 2014. These incidents reflect an inability to control anger and a tendency to behave in an intimidating manner. The applicant's lack of control is apparent from the fact that he behaved aggressively in front of and towards his daughter. His conduct also manifests a disregard of the law, in that he breached the conditions of his apprehended violence order on two separate occasions.
The evidence establishes that the applicant has a concerning history of domestic violence and lack of respect for the law. His behaviour has been, on a number of occasions, intimidating and aggressive towards others. The driving offence, relating to an incident in which he killed two people whilst intoxicated, is also very serious.

Applicant's rehabilitation and non-consumption of alcohol

The focus of the applicant's submissions was that the incidents in 2014 were caused by him drinking alcohol to excess, and that he has now rehabilitated himself. Factors which the applicant relied upon to establish such rehabilitation were that he had not drunk alcohol since 28 June 2014, that he had been admitted to a rehabilitation facility at a hospital for treatment of depression and alcohol-related problems, that he had successfully completed a three month residential drug and alcohol program and that there had been no repetition of the earlier incidents in 2014.
The applicant's evidence is that he has not consumed alcohol since 28 June 2014 and his wife also gave evidence that she had not seen him drink or behave in a way to make her think he had been drinking since he came home from the rehabilitation program. The applicant pointed to the evidence of his wife about the change in him since he stopped drinking alcohol and the evidence of Mr Slarke that the applicant has realised the effect that alcoholism has on his family and friends.
I accept the applicant's evidence, which was not seriously challenged, that he has not drunk alcohol since 28 June 2014.
Mr El-Hage submitted for the respondents that the applicant's most recent convictions and the 2014 apprehended violence order indicate that the applicant continues to possess a violent streak and a willingness to disregard and violate the law. He said that the more recent convictions count against any suggestion that the applicant has reformed or that the Tribunal can have confidence that the applicant will not engage in similar violent conduct in the future.
Mr El-Hage also submitted that the evidence of the applicant's wife and of Mr Slarke did not assist the applicant in any material way and, as such, should be given little weight. The main reason for this was that their references did not address all the applicant's past convictions and prior apprehended violence orders (relying upon Gomes v Roads and Maritime Services [2014] NSWCATOD 130 at [62]-[63], a case which applies the reasoning in Loye v Director General, Department of Transport [2000] NSWADT 145).
The circumstance that Mr Slarke and the applicant's wife did not refer to all of the applicant's past convictions and prior apprehended violence orders does not significantly affect the weight to be given to their evidence. In Loye v Director General, Department of Transport [2000] NSWADT 145, in the context of considering evidence concerning Mr Loye's reputation, Judicial Member Rice gave evidence from referees who did not attest to knowledge of Mr Loye's criminal convictions "some weight" (at [41]), but gave "less weight to that evidence because it does not show that the person expressing the view is aware of Mr Loye's criminal history." As was later observed by another member of the Administrative Decisions Tribunal, consistently with Loye's case, there may be "a need for caution in attributing weight to testimonials that do not specifically address the issues with which the Tribunal is concerned" (Assi v Roads & Maritime Services [2013] NSWADT 159 at [31]). However, this does not mean that written evidence which does not refer to an applicant's criminal history is to be given little weight in every circumstance.
There are a number of reasons why the weight to be given to Mr Slarke's evidence is not significantly affected by his lack of reference to the applicant's criminal and violent history. It may be inferred that Mr Slarke was aware of significant parts of that history, as his evidence was that he had known the applicant since 1990, initially as a lodger in his house, and that the applicant had lived with him for six years after his first marriage broke down (from around 2004). Mr Slarke was the protected person under interim and final apprehended violence orders against the applicant in 1991 as well as in 2014. Further, Mr Slarke's evidence was not focused upon the applicant's reputation generally, as in Loye's case, but upon changes he had observed in the applicant since 28 June 2014. His affidavit demonstrates an understanding of the applicant's alcoholism prior to that time.
The evidence of the applicant's wife is also in a different category from the evidence of reputation in Loye's case. The applicant and his wife married in 2010 and it is not clear whether she is aware of the full extent of his prior criminal and violent history. Even if she is not, she was the subject of the applicant's domestic violence and was the protected person under an apprehended violence order in 2014. According to a police facts sheet in June 2014, the police had been called to the applicant's address six time since the apprehended violence order came into existence. The applicant's wife acknowledges that the applicant was prone to anger prior to attending a rehabilitation program, and that "he sometimes drank way too much." Her affidavit is concerned with the change in the applicant's behaviour since this time, rather than with his reputation. She acknowledges in her affidavit that the applicant still has "bad days" but says that, since he has undergone rehabilitation, "there have been nearly all good days and the bad days are not really very bad at all."
In these circumstances, the approach taken in Loye's case to the weighting of Mr Slarke's evidence and the evidence of the applicant's wife is not warranted.
The evidence of Mr Slarke and the applicant's wife is supportive of the applicant's case that he undergone some form of rehabilitation since June 2014. His wife gave evidence that he becomes angry less than he previously did and is more willing to talk, that he is "a much nicer person to live with" and that he spends more time with the children. I accept this evidence. Both Mr Slarke and the applicant's wife testified to the applicant understanding that "he was the problem" and not them. Mr Slarke indicated that the applicant took personal responsibility for the things he had done and realized the effect his alcoholism had on others. Mr Slarke stated that the applicant now appears to be more considerate of others.
It is to be greatly commended that the applicant has stopped drinking alcohol and taken steps to behave in a more positive and constructive way to others, including his family and friends. The circumstance that he is more open to dealing with problems through discussion rather than violence is also positive. However, the evidence of Mr Slarke and the applicant's wife to the effect that the applicant takes a greater responsibility for what he has done is contradicted, to some degree, by the applicant's own evidence. Although he stated in his affidavit that he has let down his family and friends, he maintains in that affidavit that the incidents in 2014 were "out of character for me." He was not forthcoming in his affidavit or his oral evidence about earlier incidents in which he was violent or about the incident of culpable driving. He was unable to explain why apprehended violence orders had been taken out against him in 1991 preventing him from assaulting, harassing, intimidating or threatening Mr Slarke and also said that the events in 1993 leading to another apprehended violence order were "out of character." He described his April 2014 contravention of a provisional apprehended violence order in his internal review application of May 2014 as a "one off aberration" then contravened an apprehended violence order again in June 2014. In these circumstances, I am not persuaded by the applicant's evidence that he fully accepts responsibility for his past actions.
The applicant annexed to his affidavit a report from his general practitioner and a report from a psychologist. Neither report purported to comply with NCAT Procedural Direction 3: Expert Witnesses. The question of whether the general practitioner and/or psychologist were treating doctors or health professionals within cl 7 of NCAT Procedural Direction 3: Expert Witnesses was not canvassed. The applicant's counsel, Mr Mescher, said that the applicant relied upon the reports "as evidence of the applicant's psychological profile" at the time they were written, and not as expert reports. Mr Mescher said that the psychological report was admissible simply to show that the applicant attended a session with a psychologist and she made some observations about his condition. The reports were admitted on this basis.
In the applicant's submissions, filed after the admission of the reports on the basis set out above, the applicant submitted that the psychological evidence is that the applicant appeared "realistic about his goals with good insight into his substance abuse" and that his depression scale was "still at a normative mean level and not remarkable."
The weight I give to the psychologist's evidence is diminished by the circumstances that its author has not agreed to be bound by any expert code, has not agreed to be subject to an overriding duty to the tribunal to give evidence impartially, has not provided a curriculum vitae and has not been made available for cross examination. I also accept the respondents' submission that the psychologist's report is based, to some degree, upon the applicant's self-reporting. Insofar as the report may be used as evidence of the applicant's psychological profile, it is of limited assistance. It shows that he is not deeply depressed, but that he is "within the depression scale." The respondents did not submit that the applicant was deeply depressed. The report shows that the applicant has sought psychological help on at least two occasions, which supports his case about rehabilitation. It otherwise does not take his case much further.
I am not satisfied that the applicant is fully rehabilitated, or that there is sufficient evidence to conclude that his rehabilitation will be enduring. After killing two people in a drink driving accident in 1993, the applicant continued to drink and drive, notwithstanding his own claims to have been determined to rehabilitate himself at the time. As recently as May 2014, in an internal review application made to WorkCover, the applicant implicitly claimed to be rehabilitated when he said he had not drunk alcohol since attending court in April 2014, that he had "attended both psychological counselling and drug & alcohol rehabilitation" and that "both services have stated that they are happy with my progress and that I do not need to enter ongoing treatment." However, the following month he became heavily intoxicated and committed a further offence. It has only been a relatively short time since his 2014 convictions and his renunciation of alcohol and, particularly in light of his previous failures to maintain self-reform, it is too soon to be confident of the applicant's ongoing rehabilitation (see Saadieh v Director General, Department of Transport [1999] NSWADT 68 at [21] and Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 at [133]).
The applicant's history of apprehended violence orders and the offence he committed of assault occasioning actual bodily harm tell strongly against the applicant's fitness and propriety to hold a security clearance. I accept the respondents' submission that s 22 of the Explosives Act indicates a legislative intention that a person's violent tendencies count against the grant of a security clearance.
Having regard to "the legislative recognition of the particularly high risks associated with explosives and the potential for their misuse," I am not satisfied that the applicant is a fit and proper person to hold, or to continue to hold, a security clearance. Accordingly, I affirm WorkCover's decision to cancel his security clearance under s 21(b) of the Explosives Act. 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: 23 June 2015

Explosives Regulation 2013(NSW)

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Judgment (8 paragraphs)

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