McDonald v SafeWork NSW

NCAT Administrative and Equal Opportunity|2016-06-22

REASONS FOR DECISION

This is an application for review of the decision of SafeWork NSW ("SafeWork") to cancel the Applicant's security clearance ("the Security Clearance") under the Explosives Act 2003 ("the Act"). The decision was made on the basis that the Applicant is not a fit and proper person to hold a security clearance under the Act.

Background

The Applicant was granted the Security Clearance and a pyrotechnician licence in May 2013. The security clearance was to expire in January 2018.

Applicable legislation

Section 6(1) of the Act provides that a person must not handle an explosive or explosive precursor if the regulations require the handling to be authorised by a licence under the Act, and the person is not authorised to do so by a licence under the Act.
Section 6A provides that a natural person must not handle any explosive or explosive precursor if the regulations require the person to hold a security clearance that is in force when handling the explosive or explosive precursor, and the person does not hold a security clearance to handle the explosive or explosive precursor concerned.
SafeWork is the regulatory authority which grants licences and security clearances. It may approve or refuse an application for a licence or a security clearance. Section 10A of the Act provides that a natural person is not eligible for a licence unless the person has been granted a security clearance that is in force.
Section 13 of the Act provides that SafeWork, as the regulatory authority, may request the Commissioner to furnish a report in relation to an applicant for the grant or renewal of a licence or security clearance or the holder of a licence or security clearance.
Section 21of the Act provides that: 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 Act provides that: 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).
Clause 20 of the Explosives Regulation 2013 provides that a security clearance holder may handle unsupervised explosives and explosive precursors in the same manner as the clearance-holder's employer where the employer holds an explosives licence and the handling occurs in the course of the clearance-holder's employment. That clause states: 20 Authority conferred by licence extends to other relevant persons (1) A licence is taken to authorise any person to handle explosives or explosive precursors in the same way as the licence holder is authorised to handle them by the licence, but only if the person: (a) is a natural person, and (b) handles the explosives or explosive precursors in the course of his or her employment by the licence holder or under the immediate supervision of a person employed or engaged by the licence holder to supervise the person, and (c) holds a security clearance that is in force or is acting under the immediate supervision of a person who holds a security clearance that is in force. (2) This clause is subject to any restrictions or further requirements specified in the licence or in this Regulation. (3) In this clause: "employment" includes an engagement or other arrangement, whether or not constituting a contract of employment.
The Tribunal's jurisdiction is pursuant to section 24 of the Act which provides that a person who is aggrieved by a decision in relation to a security clearance or a licence under the Act may apply to the Tribunal for administrative review under the ADR Act. Section 63 of the ADR Act provides that the Tribunal "is to decide what the correct and preferable decision is having regard to the material then before it". For that purpose, the Tribunal may exercise all of the functions that are conferred or imposed on the decision maker. SafeWork is the decision maker for the purposes of these proceedings.

General principles regarding fitness and propriety

The phrase "fit and proper person" is well known and has been considered on numerous occasions in connection with a range of legislation. I discussed this issue most recently in my decision in Ogilvie v Independent Liquor and Gaming Authority [2016] NSWCATAD 195. I set out a number of authorities from paragraph [28]. In the process I adopted a discussion by Judicial Member Molony in AJO v Director-General Department of Transport [2012] NSWADT 101.
Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380, Chief Justice Mason explained that: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).
In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are: -.the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; -. the Applicant's reputation in the community; and -. the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.
In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] drew attention to the role public interest considerations play in the assessment of fitness and propriety. The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. .... The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this. [the omitted comments of Kirby P are as follows: "... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."]
The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."
As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393: A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts." In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained: "... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person."
In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: "... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation." That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character: "... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the question was whether or not a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279." Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
Fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. Where a person has been convicted of offences, the decision maker must consider the circumstances of those convictions. In the matter of Christopher Alfred Clearihan v the Registrar of Motor Vehicle Dealers In the Australian Capital Territory [1994] ACTSC 101; (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision to affirm the refusal to issue a motor vehicle dealer licence on the basis that the appellant was not of "good fame and character". The Chief Justice said at paragraph [21]: "21. ... what is relevant on the assessment of character will vary according to the purpose of the legislation. The Tribunal recognized that it was not so much the convictions as the facts upon which the convictions were based that provided the clue to the appellant's character."
The Chief Justice said at paragraph [23]: "23. ... It is a matter of common experience that a person's character is capable of development over time. At the one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession, different considerations apply according to the nature of the trade or profession. ..."

The material before the Tribunal

The Respondents rely on the Applicant's criminal record and an affidavit of Michele Small. Ms Small is a Senior Psychologist employed in Corrective Services. Her main role is to undertake the risk assessment of offenders. In this regard she makes recommendations regarding an offender's risk, and recommending appropriate interventions and treatment to reduce the risk of reoffending. She completed an assessment in respect of the Applicant in October 2015. This involved a paper review of available information including Static-99 assessment. She did not consult the Applicant as part of that assessment.
On the basis of the material that was available to her she assessed the Applicant in falling within the moderate-high risk range of recidivism.
The Applicant relies on his own evidence. He attended the hearing, gave evidence and was cross-examined. He also relies on a number of references and a report from Cheryle Clothier, a Registered Psychologist.
The Applicant does not dispute his convictions that are referred to in the Commissioner's report or that he has a long history of traffic and other offences and a poor record of compliance with Community Service Orders. He did seek to provide some context in which the most recent incidents had occurred and disputed some of the allegations that had been made against him. He said that he entered a guilty plea to those offences on legal advice.
His evidence is that he has changed his lifestyle since those offences. He said that he was in a bad relationship with the victim of the offences and that relationship was ended. He said that there have been no issues of violence since that relationship ended. He has been in a new, stable relationship for about two years. He has obtained psychological help and finds that it has assisted him in dealing with his emotions.
Under cross-examination he conceded that he had lied to the Tribunal at the stay hearing. He said that he gave false evidence in regard to his income and the fact that he was working as a mechanic and not relying solely on the Security Clearance as a source of income.
Ms Clothier's report is dated 11 April 2016. She indicates that at that time the Applicant had attended five sessions with her. He had been referred to her for issues related to depressed mood. She noted a history of Attention Deficit Hyperactivity Disorder, some self-harming and suicidal ideation, binge-drinking of alcohol and some drug use. She assessed him as severe for depression, mild for anxiety and mild for stress on his first attendance. Ms Clothier noted that: He reported alcohol and occasional drug use has caused problems in his life, most noticeably involving difficulties in interpersonal relationships. His reported personality style involves a degree of adventurousness, risk-taking and a tendency to be rather impulsive.
This is consistent with the Applicant's evidence before the Tribunal.
Ms Clothier recommended that he continue therapy for specific treatment related to emotion regulation, particularly low and/or explosive mood; drug and alcohol issues; and ongoing understanding of the implications and illegality of his behaviour.
The Applicant indicated that he intends to follow that recommendation.

Discussion

I have considered the material provided by each of the parties. On the basis of that material I am satisfied that there is a sound basis for the conclusion that the Applicant is not a fit and proper person to hold the Security Clearance.
However, I am also satisfied that the Applicant has made significant efforts to change his life style. It is clear that he has developed some insight into the issues underlying his behaviour and is taking steps to address those issues.
I note that the Local Court made an apprehended violence order in respect of the Applicant, which applies until June 2017. This is in relation to allegations of violent behaviour towards his former partner and a threat to kill her.
The Applicant is also still subject to a bond imposed by the Court in relation to his offences of filming a person's private parts without consent and stalking and intimidating with the intention to cause fear of physical harm. The Applicant was sentenced to 12 months imprisonment, but suspended on a good behaviour bond for the filming private parts conviction. That bond is due to expire on 27 October 2016. The sentences imposed on the Applicant were based on Ms Small's pre-sentence report which indicated that the Applicant was a moderate-high risk relative to other male sexual offenders.
The apprehended violence order and the bond provide some indication as to how long the Court considered that some form of supervision was warranted. This reflects the seriousness of the offences.
A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. Issues of character may play a determinative role in deciding whether a person is fit and proper. In my view the fact that the Applicant threatened violence is significant in terms of restricting his access to explosives. His most recent offences cast doubt on the question of whether he "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work" in which the Security Clearance would allow him to engage.
Nevertheless, as was noted in Clearihan, a person's character is capable of development over time - people are capable of reform. In this matter, the Applicant has demonstrated an intention to reform and is taking steps to do so. However, in my view more time is needed to allow that process to develop.
In Hughes and Vale the High Court noted that consideration of fitness requires consideration of honesty, knowledge and ability. In this regard it is significant that the Applicant gave false evidence in the stay hearing. This shows that the process of character development is far from complete. This also cast doubt on the issue of his moral integrity and rectitude of character.
However, in my view it is also significant that the Applicant admitted that he had given false evidence. He also stated that he had already told Ms Clothier what had happened at the stay hearing. This indicates that he has developed some insight into his behaviour and has some acceptance of the consequences..
At the conclusion of the hearing I indicated to the Applicant that it would assist any future application if he continues to get assistance from Ms Clothier or another psychologist. He expressed his intention to do that.
I also indicated that I agree with the submissions that Mr Coles made on behalf of the Respondents in regard to the operation of the Act.
It is clear that the Act requires that the holder of a security clearance be a fit and proper person to hold that security clearance. The authorities that have considered the issue indicate that the requirement of fitness and propriety is related to a particular purpose. In this case, it is necessary that the Applicant is fit for this particular work i.e. the use of explosives.
The Applicant's most recent convictions suggest a propensity towards violence. A threat of violence by a person with access to explosives adds extra weight to that threat. The knowledge that the person who makes the threat has access to explosives can significantly increase the impact on the person who is the subject of the threat.
I agree with the Respondents that the Applicant's conduct has displayed a disregard for public safety and a tendency to engage in violent behaviour. He has also shown a disregard for licencing laws and Court orders. Until such time as he is able to show that he has addressed these issues there is a clear risk that he may engage in similar behaviour in the future. If he were to engage in threatening behaviour in the future the effect could be exacerbated if he were to hold a security clearance. I also agree with the Respondents that the Applicant's history would give rise to a public perception of a risk associated with a security clearance.
In the circumstances I am not satisfied that the Applicant is a fit and proper person to hold a security clearance.
For these reason, it is my view that the Applicant should not be given a security clearance at this time. However, it is likely that these risks will diminish over time if he continues to receive psychological assistance and continues with the efforts to change his patterns of behaviour.
In the circumstances, the correct and preferable decision is to affirm the decision of SafeWork NSW to cancel the Applicant's security clearance.

Order The decision of SafeWork NSW to cancel the Applicant's security clearance is affirmed. 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: 31 August 2016

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (1)

Cases Cited (10)

Cited By (1)