Stevens v WorkCover Authority of New South Wales [2014] NSWCATAD 202 | Case summary

Consideration 46The key issue in this case is whether Mr Stevens is a fit and proper person to hold a security clearance under the Explosives Act. If the tribunal finds that he is not (in terms of cl 14(1)), or is no longer (the wording used in s 21(b)), it is empowered to cancel his security clearance. As the use of the word "may" in both provisions indicates, the power is discretionary, unlike the duty to refuse a security clearance under cl 12(2) where the Commissioner has recommended against the grant of a clearance on the basis of criminal or security intelligence or other information available to the Commissioner. 47The difference in treatment between an application for a clearance under cl 12[2) and the cancellation of a clearance under cl 14(1) and s 21(b), that is, mandatory refusal in the former case and a discretion to cancel or not cancel in the latter case, is not necessarily anomalous. An existing holder whose clearance is being considered for cancellation has to a greater or lesser extent a history as a licensee, to which the deciding authority can have regard when deciding whether or not to cancel a clearance. If the holder has an unblemished history, WorkCover could decide not to cancel the clearance despite having information that would warrant doing so. 48 An applicant for a new security clearance, however, has no record with WorkCover that might be used to temper its decision. Clause 12(2) does not, therefore, necessarily evince a legislative intention to restrict or limit the scope of the discretion in cl 14(1) and s 21(b). There is no difficulty in reconciling the two sets of provisions and they can stand together without strain. A narrow reading of the discretionary power is therefore unnecessary. 49 The meaning of the phrase "fit and proper person" has been reasonably well settled by a long series of cases beginning with Hughes and Vale Pty Ltd v New South Wales [1955] HCA 28; (1955) 93 CLR 127. That line of authority is summarized in Gomes v Roads and Maritime Services [2014] NSWCATOD 130, [53] - [57]. Scahill SM there pointed out that Hughes and Vale had identified three components to fitness and propriety: "honesty, knowledge and ability". A further useful survey of the authorities can be found in AJO v Director-General, Department of Transport [2012] NSWADT 101, [24] - [35]. 50In any case the starting point for the application of the concept in a particular situation is that the interpretation must be consistent with the language and purpose of all the provisions of the Act at hand: Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184, [17]. 51 In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J, referring to the phrase "fit and proper", said: In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of the 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. 52The phrase was also discussed by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63], where his Honour said: 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". 53In the same case, Toohey and Gaudron JJ observed: 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....[D]epending 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" (at 380). 54The attestation that Mr Stevens is a fit and proper person must be positive, and not simply a failure of the case against him to establish the contrary (Gomes at [57]). 55 Fitness and propriety must thus be determined in light of the role the applicant is to undertake. The tribunal is to consider the evidence before it about the applicant's honesty, knowledge and ability as it relates to the specific function he or she is to perform. Here, that assessment must take account of the legislative recognition of the particularly high risks associated with explosives and the potential for their misuse. The legislation is intended to deal with the particular public safety issues related to explosives and precursors, and concern about the safe-keeping of dangerous goods: Cosgrove v Chief Executive Officer, WorkCover New South Wales [2007] NSWADT 13, [9]. 56In the present case it should be borne in mind, as Mr El-Hage pointed out, that while the applicant was previously employed at Ravensworth mine as a stemming truck operator, a security clearance would authorize him to perform, with or without supervision, any of the wide range of functions coming under the definition of "handling" in s3 in the course of his employment, other than activities requiring a special licence or permit, such as shotfiring. The explanatory note to the 2013 regulation draws special attention to that change in the statutory scheme. Possible unsupervised roles could thus include, for example, transporting and supplying explosives or precursors or both. The assessment is not, therefore, limited to considering whether the applicant is a fit and proper person to work as a truck operator on a mine site. 57The main evidentiary basis for the respondent's case is the Commissioner's report under s 13 of the Act dated 23 December 2013. That report sets out under the heading "Notice of Offences" a record of the applicant's conviction that Muswellbrook Local Court on 16 December 2013 on a charge of common assault (domestic violence), resulting in a fine of $200. 58 The Commissioner's conclusions on a number of other matters are set out in tabular form. They note that he is not the subject of a firearms prohibition order but has a history of violence or threats of violence including domestic violence and is currently subject to an AVO. There is no information indicating participation in any criminal activity. The Commissioner considers that it is contrary to the public interest for the applicant to hold a security clearance and finds him to be not a fit and proper person for the purpose of holding a licence issued under the Explosives Act. 59As the Commissioner can be taken to have been aware of the applicant's previous AVOs when granting him a security clearance in 2009, it would appear that the decisive factor in the police assessment was the 2013 assault conviction. That course was plainly open to the Commissioner. As Kellam J observed in Raymond Robbins v Business Licensing Authority [2000] VCAT 457, a motor dealer licence case, The nature, the number and the date of the convictions is relevant to the issue of whether or not the applicant is a fit and proper person to be permitted to deal with the public in a motor car sales capacity.... In the circumstances of this case the conduct of the applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of matters of honesty, integrity and reliability of a motor car trader. 60In that case the applicant had been convicted on 11 counts of theft arising directly from the sale of motor vehicles - hence the tribunal's conclusion that the convictions and the applicant's behaviour went to the heart of the qualities required by a motor dealer. That is not the case here, but the 2013 assault conviction and resulting AVO, together with the two previous AVOs and associated interim orders, combine to form a record of violence extending over 20 years that constitutes a serious factor in assessing his fitness and propriety. As was noted above, s 22 shows that the legislation expressly treats domestic violence as a serious consideration in decision-making under the Act. 61The AVOs issued against the applicant include specific prohibitions on assaulting, molesting, harassing, or threatening the protected person or stalking that person or engaging in any other conduct that intimidates her (part exhibit R1). As Ms Fairbairn pointed out, however, by s 36 of the CDPV Act, every AVO is taken to specify those forms of conduct. 62The applicant's traffic infringement record, comprising 10 speeding and 2 seatbelt violations over 22 years, suggests a somewhat casual attitude to complying with the law. In addition, his oral evidence at the hearing was less than impressive and did nothing to mitigate the gravity of his acts of domestic violence. Nor did he express remorse or contrition for his past behaviour. In all, the evidence adduced by the respondents constitutes a substantial prima facie case for cancelling the applicant's security clearance. 63In the exercise of the discretion, however, there are matters that must be considered in the applicant's favour. His conviction for common assault led to the imposition of a fine of $200, a significant penalty but one that suggests that the learned magistrate viewed the offence as being towards the lower end of the scale of culpability. The two prior AVOs did not result in the laying of charges. 64Further, the applicant's position contrasts with that of the licensee in Raymond Robbins, who had incurred 11 convictions for crimes of dishonesty actually committed in the course of the work that the licence authorized him to perform, that of a motor dealer. Similarly, in Gomes the applicant taxi driver had an extensive customer complaint history, involving repeated instances of similar kinds of objectionable conduct despite warnings and retraining programs. As in Raymond Robbins, the cancellation decision was affirmed. In the present case, however, none of the acts making up his criminal history relate directly to the exercise of his security clearance in the mining industry. 65Mr Stevens has worked under the security clearance for five years with no disciplinary breaches. There have been no complaints or instances of unsafe or improper behaviour at work, nor any breaches of security. In that regard, as his employer's reference confirms, his record is unblemished. 66His traffic record consists of 10 speeding and two seatbelt contraventions in 22 years. All but one of the speeding infringements were for exceeding the speed limit by not more than 10 km/h, while the tenth involved a speed of not more than 20 km/h over the limit. The two seatbelt offences occurred in or before 2005. In all, an unimpressive record, but for a driver who covers some 40,000 km per year it could not be regarded as grossly so. None of the offences involved alcohol or negligent or dangerous driving, and as far as the respondent knew at the hearing, there was nothing to suggest that any of them involved truck driving. His licence has never been cancelled or suspended, although he has incurred penalties that carried a default of suspension. As the applicant was granted his security clearance in 2009, it may be presumed that the Commissioner was aware of his traffic record to that date, as well as of the AVOs except the one issued in 2013, but did not consider them sufficient reason to refuse a clearance. 67The respondents contend that the applicant submitted no character references, in the sense of letters expressing awareness of his criminal history, and the tribunal had noted in Gomes at [62] - [63] that less weight is given to references that make no mention of the subject's adverse history. That is correct, although Mr Renfrey describes his letter of 7 November 2014 (exhibit A2) as a character reference. It can, however, be read as a favourable appraisal of the applicant's character attributes insofar as they have been apparent in his work at the mine. Bond is authority for the proposition that the concept of who is "a fit and proper person" takes its meaning in part from the activities to be engaged in. As the tribunal noted in Sobey, the focus is on whether the person has a sufficient degree of personal rectitude that he or she can be trusted to engage in the activities in question without prejudice to the public interest or public safety. 68 Mr Stevens has been without his clearance for some months now and does not appear to have enjoyed the experience. That could reinforce his incentive to take his legal obligations more seriously in the future. Although the possibility of future misconduct cannot be entirely ruled out, the totality of the evidence makes it appear unlikely that restoration of his clearance would create any discernible risk to co-workers, to public safety or the public interest. 69 It is also relevant that the applicant appears to be in an enduring domestic arrangement that, although tempestuous and on occasion violent, has remained relatively stable over a long period. Despite the violent episodes, Mrs Stevens has remained in the relationship for 26 years. She is in gainful employment and their children are now adults. She said in her evidence that she does not fear her husband. On balance, the relationship is likely to be a stabilizing influence on the applicant. 70The applicant has found it difficult to obtain full-time employment in the Muswellbrook area since losing his clearance, particularly given his age, and believes he faces financial hardship as a result. As Gomes (at [64]) and other cases have stated, however, financial hardship to the licence holder as a result of cancellation is not relevant to determining the correct and preferable decision in such cases. 71The applicant cannot be regarded as a man of exemplary character and would be quite unsuitable for certain types of employment. As was noted above, the authorities make it clear that the question whether a person is "fit and proper" is to be answered by reference to the nature of the work in which he or she would be entitled to engage. 72The evidence shows, in my view, that for the purposes of the kind of work that a security clearance under the Explosives Act would authorize Mr Stevens to perform, he presents no danger to co-workers or the public and in all other significant respects as well is a fit and proper person to hold a security clearance within the meaning of s 21(b) and cl 14. I so find. 73That conclusion is subject to a caveat, however. It may well be that New South Wales was established in part as the land of the second chance, but there are definite limits to the allowances that may be made for human frailty, especially where public safety and security are concerned, as well as the welfare of those in a domestic relationship with the person in question. If there is any repetition of conduct showing a disregard for law, including conduct of the kind that led the Commissioner to recommend cancellation of the security clearance in this case, the applicant should expect that prompt and decisive action would result. A future tribunal would be likely to take a strict view of any ensuing review application. 74The decision under review is set aside. I should add that I do not think the security clearance should be reinstated until after the expiration of the current AVO on 15 December 2014.

Stevens v WorkCover Authority of New South Wales

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