YJ v Chief Executive Officer, WorkCover Authority [2001] FCA 1014 | Case summary

REASONS FOR DECISION Background 1 YJ is a 52 year old truck driver. For some 15 months he has been employed as a driver delivering bulk ammonium nitrate and other products. Initially, this employment was for a sub-contractor, but since 1 May 2006 has been directly employed by the transport company. The job involves driving bulk ammonium nitrate from an Orica plant to a wharf or train siding for transport. YJ told the Tribunal this involves driving very short distances from the plant. He said the ammonium nitrate is used by Orica to make explosives. Due to the nature of his cargo the truck is closely monitored and fitted with a duress alarm. 2 Following the introduction on 1 September 2005 of the Explosives Act 2003, which among other things regulates the transport of ammonium nitrate, YJ was required to obtain an unsupervised handling licence under the Act to continue in his employment. On 3 November 2006 he applied to the regulatory authority, the WorkCover Authority, for an unsupervised handling licence. 3 On 8 March 2006 the WorkCover Authority determined to refuse YJ's application. YJ received the decision on 14 March 2006. In the reasons for decision the WorkCover Authority advised: "Your application for an Unsupervised Handling Licence has been refused on the basis of a report received from the Commissioner of Police under s.13 of the Act, dated 19 December 2005. The report contains a recommendation from the Commissioner that you should not be granted an Unsupervised Handling Licence, made on the basis that you have not been found to be of good character and repute for the purpose of a licence issued under the Act." 4 On 12 April 2006 YJ lodged an application to review the decision in this Tribunal. If unsuccessful in his appeal YJ will be unable to continue in his employment. 5 The appeal was heard on 22 June 2006 when YJ gave evidence and was extensively cross-examined. At the conclusion of the hearing I reserved my decision. The Licencing Scheme 6 The Explosives Act 2003 ('the Act') commenced operation on 1 September 2005. The Act does not contain a statement of its objects. The Act regulates the handling of explosives and explosives precursors, and makes provision in relation to the conveyance of explosives, their negligent handling, and the supply of explosives to minors. The WorkCover Authority is the regulatory authority for the purposes of the Act (s.4). 7 Handling is defined by an inclusive definition in s.3 of the Act: " handling includes the activities of conveying, manufacturing, processing, possessing, using, preparing for use, treating, dispensing, storing, packing, selling, supplying, importing into the State from another country, rendering harmless, abandoning, destroying and disposing." Explosives and explosives precursors are defined as any articles or substances prescribed as such by the regulation (s.3). The Explosives Regulation 2005 ('the Regulation') was made and commenced on 1 September 2005. Relevantly, clause 5 provides that: "Security sensitive dangerous substances are prescribed for the purposes of the Act as an explosive precursor." Security sensitive dangerous substances are defined in clause 3: " security sensitive dangerous substance means any security sensitive ammonium nitrate." This, in turn, is also defined in clause 3: "security sensitive ammonium nitrate means any of the following: (a) ammonium nitrate that is not a dangerous good of Class 1, (b) ammonium nitrate emulsions, suspensions or gels containing greater than 45% ammonium nitrate, (c) ammonium nitrate mixtures containing greater than 45% ammonium nitrate, but does not include ammonium nitrate solutions." 8 The Act by s.6 prohibits the unlicenced handling of explosives or explosives precursors and provides substantial penalties for unlicenced handling. It provides: '(1) A person must not handle an explosive or explosive precursor if: (a) the regulations require the handling to be authorised by a licence under this Act, and (b) the person is not authorised to do so by a licence under this Act. Maximum penalty: (a) in the case of a corporation - 500 penalty units, or (b) in the case of an individual - 250 penalty units or imprisonment for 12 months, or both. (2) Without limiting subsection (1) (a), the regulations may require licensing by reference to the following: (a) the class or type of explosive or explosive precursor, (b) the kind of handling of the explosive or explosive precursor, (c) the circumstances of the handling of the explosive or explosive precursor.' 9 Section 10 provides that licences for the handling of explosives and explosives precursors may be granted. The regulatory authority is empowered to grant or refuse applications for licences (s.11). The provisions of Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 are applied to applications for licences under the Act (s.12). Licences may be granted on condition (s.14), and may be suspended or cancelled in certain defined circumstances associated with breaches of the regulatory regime (s.20 and s.21). 10 Clause 16 of the Regulation sets out the types of licences that the regulatory authority may grant. They include licences to manufacture, import, supply, transport and store explosives and explosives precursors, as well as blasting and pyrotechnican's licences, and unsupervised handling licences. Clause 27 provides: 'An unsupervised handling licence authorises the licensee to handle explosives or explosive precursors but only in circumstances where: (a) the holder of the unsupervised handling licence is under the direction or control (for example, as an employee or contractor) of another person who holds another licence under the Act (the supervising licensee) (not being a blasting explosives learner's licence, a fireworks (single use) licence or an unsupervised handling licence), and (b) the handling of the explosives or explosive precursors is of a type and manner that is authorised under the supervising licensee's licence, (c) the holder of the unsupervised handling licence complies with any conditions that apply to the supervising licensee's licence.' An unsupervised handling licence can only be issued to a natural person (clause 37). 11 Applications for licences are to be made in accordance with clause 29. Clause 30 sets out the general requirements for obtaining a licence. Relevantly it provides: '(1) Before a licence is granted, the regulatory authority must be satisfied that: (a) the applicant, and if the applicant is a corporation, at least one person engaged in the management of the corporation: (i) is of or above the age of 18 years, and (ii) is a fit and proper person to hold the licence and is otherwise of good character, and (iii) has the qualifications, experience and knowledge necessary to hold the licence, and (b) … (2) Without limiting any other reason that the regulatory authority may refuse to grant a licence to an applicant, the regulatory authority must refuse to grant a licence if a report relating to the applicant under section 13 of the Act contains a recommendation from the Commissioner of Police that the applicant should not be granted the licence on the basis of criminal or security intelligence or other information available to the Commissioner.' 12 Clause 36 additionally requires that where a licence relates to the handling of security sensitive dangerous substances (which an unsupervised handling licence by definition does) the regulatory authority must be satisfied that the applicant has a legitimate reason for obtaining a licence. Clause 37(2) deals with legitimate reasons. It provides: (2) A legitimate reason for obtaining a licence that authorises a person to handle security sensitive dangerous substances includes obtaining the licence for the purpose of: (a) use in commercial production processes, mining, quarrying. agricultural blasting, construction, civil engineering, seismic work or tunnelling, or (b) the commercial manufacture of fertiliser or explosives, or (c) education, research or analysis, or (d) commercial agricultural use by primary producers, or (e) transporting or supplying security sensitive dangerous substances for any purpose listed above, but does not include obtaining the licence for the purpose of: (f) household domestic use, or (g) use as a fertiliser on outdoor recreation facilities (such as parks, golf courses, sports fields and the like). 13 Section 13 enables the regulatory authority to obtain reports from the Commissioner of Police in relation to licences. It provides: '(1) The regulatory authority may request the Commissioner of Police to furnish the regulatory authority with a report in respect of any one or more of the following matters: (a) whether an applicant for the grant or renewal of a licence or the holder of a licence has been found guilty or convicted of an offence whether in New South Wales or elsewhere, (b) whether the applicant or licence holder is the subject of a firearms prohibition order within the meaning of the Firearms Act 1996, (c) whether the applicant or licence holder is of good character and repute, (d) whether the applicant or licence holder has a history of violence or threats of violence, with violence including behaviour referred to in section 562AB (Stalking or intimidation with intent to cause fear of physical or mental harm) of the Crimes Act 1900, (e) whether there is an apprehended violence order under Part 15A of the Crimes Act 1900 in force with respect to the applicant or licence holder, (f) whether the applicant or licence holder has good reason for holding the licence, (g) whether the applicant or licence holder can be trusted to handle explosives in the manner authorised by the licence without danger to the public safety or the peace, (h) whether the applicant or licence holder has adequate facilities for the safe keeping of explosives, (i) such other matters as the regulatory authority may specify in the request. (2) The Commissioner of Police, on receiving a request made under subsection (1), is to investigate the person to whom the request relates and furnish to the regulatory authority a report in respect of the matter or matters that were the subject of the request. (3) The report of the Commissioner of Police may include any of the following information: (a) information in the Commissioner's possession, (b) information to which the Commissioner ordinarily has access through arrangements with the police service of the Commonwealth or another State or Territory. (4) A reference in this section to an applicant for the grant or renewal of a licence or the holder of a licence includes, if that applicant or holder is a corporation, a reference to each director and manager of the corporation. 14 Section 22 of the Act contains what are identified as special provisions dealing with the suspension or cancellation of licences in defined circumstances associated with concerns that a licenced person has a history of violence or threats of violence. Violence is defined by ss.(7) as including behaviour referred to in s.562AB of the Crimes Act 1900. That section provides: '(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is liable to imprisonment for 5 years, or to a fine of 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.' Where the regulatory authority believes that a licence holder cannot be trusted to handle explosives or explosives precursors because the person has a history of violence or threats of violence (whether convicted or not), the regulatory authority may issue a show cause notice calling on the licence holder to show why the licence should not be cancelled (s.22(1)) and may cancel the licence if not satisfied by the matters put to it by the licence holder (s.22(3)). The regulatory authority may suspend the licence pending that determination (s.22(2)). 15 Where an apprehended violence order is in force against a licence holder under Part 15A of the Crimes Act 1900, the regulatory authority may suspend the licence for a period, not beyond the expiration of the apprehended violence order (s.22(4) and (5)). 16 The Act also makes specific provision for licences to transport explosives and explosive precursors. The Australian Explosives Code applies to those licensees (clause 82 and 83 of the Regulation) and requires that those transporting security sensitive dangerous substances must have a security plan in place. The requirements of the code go to emergency communications systems, locks, monitoring systems and so forth to ensure the safe transport of the security sensitive dangerous substances. 17 Persons aggrieved by a decision of the regulatory authority may seek a review of the decision in this Tribunal (s.24(1)). The requirements of the Administrative Decision Tribunal Act 1997 for decisions to be subject to internal review before an application for review is made to the Tribunal does not apply to applications for review under the Explosives Act 2003 (s.24(5)). 18 Section 63 of the Administrative Decision Tribunal Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Issues 19 The issues requiring determination in this case are: Whether the report from the Commissioner of Police under s.13 of the Act contains a recommendation that the applicant should not be granted the licence on the basis of criminal or security intelligence or other information available to the Commissioner, and, as a consequence, the regulatory authority was obliged to refuse YJ's application in accordance with.13(2). If not, whether YJ is a fit and proper person to hold a licence and is otherwise of good character (clause 30(a)(ii)); Whether YJ has a legitimate reason for holding a licence. Whether YJ has the qualification, experience and knowledge necessary to hold a licence (clause 30(a)(iii)). The Section 13 Report 20 This document reads: 'NOTICE OF ASSESSMENT (Under the Explosives Act 2003) CNI Number: 15846607 Admin Event Number: A92020395 Applicant: YJ Date of Birth: Date of Assessment: 19 December 2005 Pursuant to Section 13 (1) of the Explosives Act 2003, I have been authorised by the Commissioner of NSW Police to undertake a probity assessment of the above applicant. The application was received by this office on 08 November 2005 in which a request was made by WorkCover NSW in respect of an application for an explosives and security sensitive dangerous substances licence and I report the following: That the applicant: Yes Has been found guilty or convicted of an offence whether in New South Wales or elsewhere. No Is the subject of a firearms prohibition order within the meaning of the Firearms Arms Act 1996 No Is of good character and repute Yes Has a history of violence or threats of violence, with violence including behaviour referred to in section 562AB (Stalking or intimidation with intent to cause fear of physical or mental harm) of the Crimes Act 1900 No There is an apprehended violence order under Part 15A of the Crimes Act 1900 in force with respect to the applicant or licence holder, No Can be trusted to handle explosives in the manner authorised by the licence without danger to the public safety or the peace This probity evaluation is based on a criteria determined by the NSW Commissioner of Police and is presented to WorkCover NSW as a guide for their decision as to the grant or refusal of this licence application. Assessment: On this date YJ is found not to be of good repute for the purpose of being considered for the issue of an explosives and security sensitive dangerous substances licence.' Attached to the assessment was a National Police Certificate outlining discloseable court outcomes and outstanding matters recorded against YJ. 21 The regulatory authority submits that the assessment is a recommendation that the applicant should not be granted the licence on the basis of criminal intelligence available to the Commissioner, and, as a consequence, the regulatory authority was obliged to refuse YJ's application in accordance with clause 30(2). 22 A number of things are obvious about the assessment. First, the assessment makes a finding that YJ is not of "good repute for the purpose of being for the considered for the issue of an explosives and security sensitive dangerous substances licence". It does not disclose the "criteria determined by the NSW Commissioner of Police" upon which the probity evaluation is made. It does not disclose what, if any "criminal or security intelligence or other information," apart from the matters disclosed in or attached to the assessment, was relied on. It is not possible to objectively gauge whether the evaluation was made in accordance with the criteria determined by the NSW Commissioner of Police, and whether the criteria is, itself, correct, appropriate or suited to the task at hand, or whether the evidence justifies the conclusion reached. It is therefore impossible to for an applicant to meet. 23 The impact of a report recommending that an applicant should not be granted a licence on the basis of "criminal or security intelligence or other information available to the Commissioner" is a mandatory refusal of YJ's application for an unsupervised handling licence. In YJ's case such a decision means that he will be unable to continue in his employment and will loose his job. That is a consequence clearly contemplated by the Regulation when it provides that in those circumstances the regulatory authority must refuse a licence application. But, in YJ's case, the form and wording of the Commissioner's recommendation raises very clearly the question of whether it contains such a recommendation. This should be contrasted with the consequences of an adverse report under s.13(1): such a report does not result in a mandatory refusal, although the report will be a factor considered by the Regulatory Authority in making a determination under clause 30(1). It should also be contrasted with the consequences of the Regulatory Authority believing that a licence holder cannot be trusted to handle explosives because of a history of violence. Section 22 provides for the issue of a show cause notice in such circumstances, not a mandatory cancellation. 24 In Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117 the Full Court of the Federal Court (French, North and Merkel JJ) considered the opinion of a Medical Officer of the Commonwealth with respect to whether the son of an immigration applicant, who suffered from an intellectual disability, satisfied the criteria for the grant of a visa set out in the Migration Regulations (Cth). Regulation 2.25A provided: " (1) In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(a), 4005(b), 4005(c), 4006A(1)(a), 4006A(1)(b), 4006A(1)(c), 4007(1) (a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless: … (3) The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in sub regulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion." In considering a challenge to the medical officer's opinion the Court said [at 66]: "The delegate is only entitled and obliged to take that opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, … [67] … If … the opinion on the face of it did not address the criterion and the delegate would have erred in taking it as correct." This decision has been followed in Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014 and Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626. 25 Reasoning analogous to that undertaken by the Full Court of the Federal Court in Seligman is applicable with respect to whether a report from the Commissioner of Police contains a recommendation to which clause 30(2) of the Regulation applies. To be a recommendation which requires the regulatory authority to refuse to grant a licence there must be: - be in a report to under s.13; - which contains a recommendation from the Commissioner of Police that the applicant should not be granted a licence; and - that recommendation must be made on the basis of criminal or security intelligence or other information available to the Commissioner. 26 The Notice of Assessment addresses the matters referred to in s.13(1) (a), (b), (c), (d), (e) and (g). I accept that despite it's misdescription it is a report under s.13. The report, however, does not contain a recommendation, but a finding that YJ is not of good repute for the purpose of being considered for the issue of an explosives and security sensitive dangerous substances licence. While repute is clearly a matter upon which the Commissioner can report under ss.1(c) - and about which the Commissioner had already made a report earlier in the document - such a finding is plainly not a recommendation. Further, even if it were a recommendation, it does not purport to be made on the basis of criminal or security intelligence or other information. Indeed, the document indicates that the assessment is made on the basis of criteria determined by the NSW Commissioner of Police and is presented to WorkCover NSW as a guide for their decision as to the grant or refusal of the licence application. 27 Two points need to be made about this. First, the criteria is undisclosed and one cannot be satisfied that the assessment is made on the basis of criminal or security intelligence or other information. Secondly, because the assessment is provided to the regulatory authority as a guide for decision making, it is, once again, plainly not a recommendation. The assessment therefore is not a recommendation to which clause 30(2) applies as, on its face, it is not a recommendation within the meaning of the clause. 28 Even if the "finding" could be classified as a recommendation it is my view that it is not, on a proper reading of clause 30(2) a recommendation made "on the basis of criminal or security intelligence or other information available to the Commissioner." The finding is very clearly based on an assessment of whether YJ is of good repute. There is no claim made by the Commissioner's delegate that it is based on criminal or security intelligence or other information available to the Commissioner. 29 As a result it did not oblige the WorkCover Authority to refuse YJ's application. 30 There is a dissonance, if not more, between the operation of clause 30(1) and s.13(1) when the report has the effect stipulated in clause 30(2) of requiring that the licence application be refused. Section 13 contemplates the Commissioner of Police disclosing to the authority information of the sort set out in sub sections (1) (a) to (h) with respect to an Applicant. The authority is then able to use the information so provided in assessing whether applicant satisfies the eligibility requirements for the type of licence applied for. The authority's decision in respect of those issues can then be the subject of review in this Tribunal, where an applicant is able to challenge the conclusions drawn by the authority and, if appropriate, the Commissioner's s.13 report. Assessments of repute, character and trustworthiness are however matters of judgement that, in my view, require more than a simple yes or no answer, to enable a consideration of whether the judgement is correct and preferable. For example an assessment of whether a person is of good repute, requires the assessor to consider how "reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt" (Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37). The fact of criminal convictions is not determinative of the issue, although they are an important consideration: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at 402. A simple assertion that a person is not of good repute, without more, is therefore of little assistance. 31 In contrast to s.13(1), clause 31(2) of the Regulation provides that the authority, "must refuse to grant a licence if a report relating to the applicant under section 13 of the Act contains a recommendation from the Commissioner of Police that the applicant should not be granted the licence on the basis of criminal or security intelligence or other information available to the Commissioner." If the report contains such a recommendation the authority, and this Tribunal when reviewing a decision, must refuse the licence application. The existence of the recommendation triggers the mandatory refusal. There is no requirement that the basis of criminal or security intelligence or other information be disclosed, and it therefore cannot be challenged. In this sense, if one accepts the authority's submission that the matters disclosed in relation to YJ are matters of criminal intelligence and the report contains a recommendation under clause 30(2), there is a conflict or at least a tension between the operation s.13 in the context of the Act and clause 31(2). 32 A further consequence of that submission would be that licence applicant's such as YJ are effectively deprived of their right, granted by s.24 to seek a review of the assessment of their fitness and character by the regulatory authority, because a negative assessment as to repute and character resulting in an adverse recommendation by the Commissioner must result in a mandatory refusal. These consideration point to a conflict between the provisions of clause 30(1)(a)(ii) and clause 30(2) if the regulatory authority's view of what constitutes a recommendation under s. 30(2) is accepted, because the Commissioner's report and recommendation on the issue of character and repute is, in effect, taking the place of the regulatory authority's assessment of fitness and character in circumstances where regulatory authority's assessment is established by the Regulation as determinative of those issues. Because I have found that there was no recommendation to which clause 30(2) applies in this case, it is not necessary to resolve that conflict. Fit and proper and otherwise of Good Character 33 In addressing this issue I propose to: - consider the meaning of these terms; - then to review the evidence as it applies to the issues; and, - finally to consider whether YJ is fit and proper and of good character to hold an unsupervised handling licence. 34 The Law - 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. 35 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: '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." 36 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) 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." 37 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." 38 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 is 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 because, 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 licenced 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). 39 In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry: 'Whether a person is 'fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.' In LJ v Commissioner of Police [2003] NSWADT 230 at [27] Judicial Member Montgomery found that: A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe. 40 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." 41 The importance that criminal convictions play in the assessment was highlighted by then President of the Victorian Civil and Administrative Tribunal, Kellam J, in Raymond Robbins v Business Licensing Authority (2000) VCAT 457, a case involving an applicant for a licence to sell motor cars. His Honour said: "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. The Act has established a system which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or salesperson. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor nature such as, some minor failure to keep proper books or records or of trading outside hours which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars." 42 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] 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." 43 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 was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW (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. 44 A person's character is not fixed and is capable of change and rehabilitation. In Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision of the ACT AAT to affirm the refusal by the Registrar to issue a motor vehicle dealer licence on the basis that the appellant was not of "good fame and character". Chief Justice Miles said (at 30 -31): "It is a matter of common experience that a person's character is capable of development over time. At 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." 45 In contrast to character, reputation as Waddell J explained in Re T at 389: "…is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence , 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore , a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 et seq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character. 46 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 can not 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. 47 In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that: "…evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation." However evidence of prior convictions is cogent evidence going to reputation, but, at 402: "In each case, the nature of the crime of which the person has been convicted, and the circumstances, must be considered before inferring that as a result he would have acquired a bad reputation. For instance, the conviction might have been for an offence, or in circumstances, which did not detract from the general good estimate of his character held by persons who knew him. Further, it might appear unlikely from the nature of the offence, and the circumstances, that the conviction would become known to those with whom the person had a reputation. It might be shown that knowledge of the conviction had not come to such persons." 48 The Facts - The discloseable court outcomes outlined in the National Police Certificate attached to the Notice of Assessment were: Convictions recorded at the Camden Local Court on 29 April 1994 for possession of a prohibited drug, cultivating a prohibited drug, self administering a prohibited drug and possessing equipment for the administration of a prohibited drug, for which YJ was fined $150.00, $300.00, $100.00 and $100.00 respectively. Convictions recorded at the Raymond Terrace Local Court on 11 August 2003 of maliciously destroying or damaging property to a value of less than $2,000.00 for which he was fined $300.00 plus $61.00 costs. There were also convictions of common assault, for which the Court placed YJ on a 2 year bond to be of good behaviour under s.9 of the Crimes (Sentencing Procedure) Act 1999, with supervision by the Probation Services and subject to the condition that he strictly comply with the current apprehended violence order. At the same time the Court made an apprehended violence order which prohibited YJ from approaching his former partner, from stalking her and approaching her premises. 49 The drug convictions in 1994 related to YJ's cultivation and use of marijuana. YJ told the Tribunal that the drug convictions in 1994 related to him being found growing 14 marijuana plants in a hot house. At that time he was using marijuana one or twice a fortnight. He has not touched it for six or seven years. He said it had helped him with stress. When asked if he gets stressed now, he said that he does not get stressed but does get anxious. 50 The 2003 convictions all relate to an episode that occurred on the breakdown of YJ's relationship with his then partner of some 13 years. He agrees he damaged the Department of Housing they shared and assaulted her in the course of that event. He pleaded guilty to all of these offences. 51 The WorkCover Authority submits that as a result of these convictions and the events giving rise to them YJ is neither fit nor proper, nor is he of good repute and character. 52 The events surrounding the assault and malicious damage convictions occurred on 28 November 2002. YJ's and his then partner's relationship was strained, both because she had discovered he had had an affair with another resident of the house (who he says she summarily ejected as a result) and because of ongoing tensions between them. At the time, according to YJ, they had been living in the house in Raymond Terrace for four and half years. The house was leased from the Department of Housing in his then partner's name only. 53 Not surprisingly there are two versions of the events of night of 28 November 2002 which led to YJ being charged with these offences. His partner's version paints a worse picture of these events than YJ's. The fact sheet relied on by the Police in the Local Court at Raymond Terrace closely resembles her version. YJ was extensively and rigorously cross-examined about these events during the course of the hearing. His evidence was substantially the same as what he told Police when interviewed by them, at length, on 11 January 2003. There were some differences between what he told the Tribunal and what is contained in that record of interview, but when these were put to him he conceded that the record of interview was correct. The WorkCover Authority submitted that I should view these concessions as reflecting poorly on his credibility, and reject his evidence. 54 YJ told Police that approximately a week before the events of 28 November 2002 his then partner had gone to Sydney following her discovery of his infidelity with another resident, who had been sharing their house. He knew their relationship was in trouble as a result. His partner told Police that by the time she left for Sydney the relationship was over, but did say that she had sent YJ a text message to the effect that she was going to Sydney and asking him to keep an eye on the house and feed the dogs. 55 On 28 November 2002 YJ arrived home from work, and found a note from his then partner indicating she was back and had gone out to dinner. Guessing that she had gone to a local hotel, he went to see her. He told Police he intended to apologise to her for his conduct, and discuss marriage. At the hotel he found her with an aboriginal man they both knew. He purchased a beer and joined them. He told Police they were snuggling. He felt jittery. They clearly were not interested in him so he left. 56 He returned home, removed his TV and stereo from the house and locked them in the shed. He explained to Police that he was not going to pay for things which others could enjoy. After a while he returned to the Hotel and once again observed his partner and her male companion. He told Police he had, "many double OP rums with beer chasers." She and her partner ignored him: they were "laughing and joking and snuggling in their own happy little way." In the end he gave up and returned home. 57 When he arrived there he took a phone call from a friend of his partner's who wanted to talk about the state of his relationship with his partner. He could not explain what was happening to her. He told Police that "through total frustration I kicked the wall twice and put my fist through the wall, above the telephone in the lounge room." He had been intending to hit the phone but missed. This is the malicious damage for which he was subsequently charged and pleaded guilty to and for which he was convicted and fined. There does not seem to be any dispute about this. 58 He then went to bed. Sometime later his partner returned home. YJ told the Police that he believed she had slept with the man he saw her with before returning home. 59 Here the versions of events begin to differ. They agree that YJ was in bed. Little benefit can be had from narrating the details of the two versions here. They share common themes in that according to both YJ assaulted her in the ensuring fracas. They have differing views as to the precise actions each took in the course of the assault: as whether threats were made to "snuff" her, as to the degree of pressure YJ applied when he had his hands on her throat, and about what was said by each of them. There is agreement that YJ made repeated comments about her having a black boyfriend and derogatory comments about how she would be treated by the "black fellas." They agree that the fight ended when she went next door, but not with her car keys and bag, which YJ took from her. 60 When Police arrived they found her sitting on the front porch of the neighbour's property. They spoke with YJ who told them, "It was because she was with a black fella." Police inspected the house and found damage to the walls: YJ admitted he had caused it. She told Police she wanted YJ out of the house and wanted an apprehended violence order. She made no allegation of an assault. Police supervised his exit. He agrees that he then drove his car despite being intoxicated. He admitted this to Police in his record of interview. 61 The next day YJ's then partner attended the Police Station and made allegations of assault. At that time Constable Davies reported that she had a number of bruises and scratches on her arms and hand, a swelling to her left elbow, bruising to her neck and red marks on her back. She was seen by a Doctor that day. In a Police statement the Doctor said she said she had been assaulted and complained of a sore neck throat. An examination revealed "a bruise to the left triceps". 62 No matter whose version of the events of that night one accepts, there can be no doubt that YJ was guilty of a serious and frightening, drunken assault on his partner. He has always admitted that and never sought to resile from it. 63 There is one particularly worrying aspect of his partner's allegations which YJ has always denied that I wish to deal with. She alleges that when she first arrived home and found in YJ in bed he was holding a large, bayonet type knife. She does not allege that the knife was used in the assaults, or otherwise brandished by YJ. When this was put to him in cross-examination, he vehemently denied it. This allegation was never put to YJ by Police when he was interviewed. There was no charge relating to an assault with a weapon. Given those circumstances and having heard from YJ, I accept his denials. 64 YJ agreed that a condition of his bond was that he be supervised by the Probation Service. He said that he understood this was put in place to ensure the protection of his new partner. YJ said that after two visits the Probations Service advised him that his attendance was no longer required. In her statement filed with the Tribunal she said of this (without correction): "I spoke to the parole officer and told him I new her and YJ for 2 years and lived with them for 12 months I also told him YJ has a good nature and at the time I was living with YJ and his x he never rasied his voice at her all assault her at any time I lived there. After speaking to the porole officer he said he will come to the house and check on things I said he was welcome to do so at any time because I had no problem with that he do not feel that YJ need any more supervision YJ received a letter to verify the decision YJ and I still share accommodation at the same address we have no had any problems involving with the police all any other party YJ is a good nature and has never been abusive at any time toward me at any time I have known him". 65 YJ's bond has now expired as has the apprehended violence order. There is no suggestion that he has come to the attention of the authorities since the events of 28 November 2002, and no suggestion that he has been involved in any other acts of violence at any time. 66 YJ produced 14 references from friends and employers. The Dangerous Goods Manager NSW for YJ's employer gave him a positive report, and advised that the company had not "experienced any security related or behavioural issues with YJ." YJ said he had not discussed his criminal record with the Manager. A number of YJ's references were old and pre-dated the events of 28 November 2002. Of the recent references, YJ said that the authors were aware of those events and his subsequent convictions. The references paint a picture of a man who is well regarded by those he socialises with, and who is regarded as honest, upright and trustworthy. 67 It was put to YJ that he is racist, as evidenced by his derogatory comments about the aboriginal man his partner was with. He denied this saying that he was upset, hurt and angry at the time. He knows the gentleman concerned and has spoken with him since. 68 Is YJ Fit and Proper and of Good Character - As mentioned above the WorkCover Authority submitted that I should reject YJ's evidence because it lacks credibility, as he initially denied matters relating to the assaults and then conceded them. 69 My view is that these concessions reflect credibly on YJ. He was being asked about matters that occurred nearly four years ago, which were clearly traumatic for him and about which he remains obviously upset and regretful. When the inconsistencies were put to him, he accepted that his recollection when he was interviewed by Police was fresher, and made appropriate concessions. 70 YJ conceded that he had some "rough edges" but sought to paint a picture whereby the events of 28 November 2002 should be seen as an aberration: once off behaviour which does not reflect well on him, and that does not reflect his normal self. On the other hand the WorkCover Authority submitted that those events reflected badly on YJ's fitness and propriety. It was submitted that the assaults were serious and that they showed that YJ is prejudiced towards women and aboriginals, and that confrontations involving aboriginals and women can trigger him to violence. With respect to the drug convictions, while greatly not relied on by the WorkCover Authority, it was submitted that they reflect adversely on YJ. 71 In passing I note that the WorkCover Authority in its written submissions, when addressing the issue of YJ's character, argued that YJ was not of good character and repute. While character and repute can be seen as different sides of a coin, the authorities establish that they are different things, and need to be assessed differently. The scheme established by the Explosives Act 2003 requires that the WorkCover Authority be satisfied that an applicant for a licence be of fit and proper and of good character. Good repute is not specified by clause 30 of the Regulation as a matter which the authority must be satisfied of. Repute is, however, a matter which can be taken into account in determining whether a person is fit and proper and of good character, and is one of the matters which the Commissioner of Police can report on under s13. 72 Having had the opportunity to see and assess YJ as he gave evidence, and of reviewing all the documentary evidence, I have formed the view that the events of 28 November 2002, serious as they were, represent an anomaly in YJ's character and life. They were a one of event, made at a time of extreme emotional turmoil for YJ on the breakdown of a long term relationship. That is not to excuse them, but to put them in context. At 52 years of age he has no other record of being involved in violence, destruction of property, or drunken driving. He does have twelve year old convictions for marijuana related offences but told me, and I accept, that he has not used marijuana for six to seven years. In the three and half years which have passed since the events of 28 November 2002 YJ has abided by the conditions of his bond. There is no suggestion that he has again threatened his former partner, the gentleman she was with, or any other person. He has got on with his life and, as his references show, is well respected within the community in which he lives and by his employers. 73 In this regard I disagree with the assessment of repute made by the Commissioner of Police. The overwhelming evidence before me is that, despite knowing of the events of 28 November 2006, those with whom YJ associates regard him well. I accept this. I do not agree that his convictions mean in the circumstances that he is not of good repute. 74 I am satisfied that the events of 28 November 2002 were a one off event at a time of emotional crisis for YJ. They represent an isolated act. YJ has clearly learned from them. I do not share the WorkCover Authority's concern that they show a man who is easily triggered to violence. Similarly, I do not accept the authority's submission that the events show a man who is motivated by racism. While YJ's comments to his partner and Police regarding the aboriginal man he found her with need to be condemned, I accept that the factors motivating him that night were related to the breakdown of his relationship, not racist hatred. When put in the context of the circumstances and having regard to YJ's age, background and work, they are not exceptional or a cause for concern that he poses a risk of racially motivated violence. 75 YJ is applying for an unsupervised handling licence to enable him to drive a truck transporting ammonium nitrate for short distances. Despite the terminology, clause 27 of the Regulation makes it clear that holders of such licences are to be under the direction or control of a supervising licensee. Further, the supervising licensee is required to ensure that the ammonium nitrate is transported in accordance with a security plan which addresses the security and monitoring of the transport. The work YJ does, is and will be closely monitored and supervised. That is the context in which the assessment of fitness, propriety and character is to be made. 76 In that context I am satisfied that YJ is fit and proper and of good character to hold an unsupervised handling licence. Legitimate Reason 77 The evidence before me is that the ammonium nitrate transported by YJ is used by Orica to make explosives. That transport is a legitimate reason to hold an unsupervised handling licence under clause 36(2)(b) of the Regulation. Qualifications, Knowledge and Experience 78 Mr Mescher for the WorkCover Authority submitted that there was before me no evidence as to what qualifications, experience and knowledge the authority has determined is necessary to hold an unsupervised handling licence in YJ's case. He was not in a position to enlighten me on this. 79 As a consequence he submitted that, if I was otherwise satisfied that YJ met the criteria to be issued with such a licence (which I am); I should set aside the decision of the WorkCover Authority and remit it to the authority to be made again in accordance with my findings. This will enable the question of YJ's qualification, experience and knowledge to be satisfied. I propose to follow that course. Orders 80 In the light of the above the decision of the WorkCover Authority made 8 March 2006 is set aside and the matter remitted to the WorkCover Authority for reconsideration in accordance with these reasons.

YJ v Chief Executive Officer, WorkCover Authority

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