Wallace v Chief Executive Officer, WorkCover Authority [2006] NSWADT 304

CITATION: Wallace v Chief Executive Officer, WorkCover Authority [2006] NSWADT 304

DIVISION: General Division

APPLICANT PARTIES: Shane Wallace RESPONDENT WorkCover Authority

FILE NUMBER: 063148

HEARING DATES: 14/06/2006

SUBMISSIONS CLOSED: 06/14/2006

DATE OF DECISION: 10/26/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Explosives Act - unsupervised handling licence - grant of

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Explosives Act 2003 Explosives Regulation 2005

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 CASES CITED: Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Melbourne v The Queen [1999] 198 CLR 1 Sobey v Commercial Agents Board [1979] 22 SASR 70 YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264

In Person REPRESENTATION: I Mescher, counsel

ORDERS: The decision of the WorkCover Authority is set aside. In its place the decision is made that Mr Wallace's application for an Unsupervised Handling Licence is granted.

REASONS FOR DECISION Background 1 Mr Wallace has been employed as Laboratory Assistant for the past three years. His job requires that he handle ammonium nitrate in an Orica Australia plant laboratory. 2 Following the introduction on 1 September 2005 of the Explosives Act 2003 ("the Act"), which among other things regulates the handling of ammonium nitrate, Mr Wallace was required to obtain an unsupervised handling licence under the Act to continue in his employment. In November 2005 he applied to the regulatory authority, the WorkCover Authority ("WorkCover"), for an unsupervised handling licence. Along with that application was an application to NSW Police for a National Probity Assessment. 3 In March 2006 WorkCover determined to refuse Mr Wallace's application. In the reasons for decision WorkCover advised: "Your application for an Unsupervised Handling Licence has been refused on the basis of a report received from the Commissioner of Police under section 13 of the Act, dated 02 February 2006. 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 been found not to be of good character and repute for the purpose of the issue of a licence under the Act." 4 Persons aggrieved by a decision of the regulatory authority may seek a review of the decision in this Tribunal pursuant to section 24(1) of the Act. Section 24(5) of the Act removes 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. 5 Mr Wallace lodged an application for review of the WorkCover decision in this Tribunal. Mr Wallace will be unable to continue in his employment if his application is unsuccessful. The appeal was heard on 14 June 2006. Mr Wallace gave evidence and was extensively cross-examined. Mr Paul Burley, who has been Mr Wallace's immediate laboratory supervisor for the past 3 years, also attended the hearing, gave evidence in support of Mr Wallace's application, and was cross-examined. At the conclusion of the hearing I reserved my decision. The Licensing Scheme 6 The Act and the Explosives Regulation 2005 ("the Regulations") regulate the handling of explosives and explosives precursors. WorkCover is the regulatory authority for the purposes of the Act. Judicial Member Molony undertook what I consider to be -an accurate, detailed review of the Act in his decision in the matter of YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264. I do not propose to undertake a similar review in this matter. 7 It is common ground that Mr Wallace requires a licence for the work that he undertakes and that WorkCover is empowered to grant or refuse applications for licences. Applications for licences are to be made in accordance with clause 29 of the Regulations. Clause 30 of the Regulations 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.' 8 Clause 36 of the Regulations requires that the regulatory authority must be satisfied that an applicant for an unsupervised handling licence has a legitimate reason for obtaining a licence. WorkCover does not dispute that Mr Wallace has the qualifications, experience and knowledge necessary to hold the licence or that he has a legitimate reason for obtaining a licence. 9 Section 13 enables the regulatory authority to obtain reports from the Commissioner of Police in relation to licences. WorkCover sought such a report with respect to Mr Wallace's application. 10 Section 63 of the Administrative Decision Tribunal Act 1997 provides 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 11 The issues requiring determination in this case are: Whether the report from the Commissioner of Police under section 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 whether, as a consequence, WorkCover was obliged to refuse Mr Wallace's application in accordance with section 13(2). If not, whether Mr Wallace is a fit and proper person to hold a licence and is otherwise of good character (clause 30(a)(ii)). The Section 13 Report 12 This document reads: 'NOTICE OF ASSESSMENT (Under the Explosives Act 2003) CNI Number: 14301242 Admin Event Number: A25881315 Applicant: SHANE TROY WALLACE Date of Birth: 23 December 1970 Date of Assessment: 2 February 2006 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 1900in 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 SHANE TROY WALLACE 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.' 13 Attached to the assessment was a National Police Certificate outlining discloseable court outcomes and outstanding matters recorded against Mr Wallace. 14 WorkCover 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, WorkCover was obliged to refuse Mr Wallace's application in accordance with clause 30(2). 15 This assessment is in almost identical terms to that considered by Judicial Member Molony in YJ v Chief Executive Officer, WorkCover Authority. In that matter the Judicial Member concluded that the form and wording of the assessment raises question in regard to whether is meets the requirements of the Act. Nevertheless he accepted that despite it's misdescription it is a report under section 13. I agree with that conclusion. The Judicial Member also concluded that the Section 13 Report does not contain a recommendation. 16 In this matter, I have formed the same conclusion with respect to the Section 13 Report. It is my view that the Report contains a finding that Mr Wallace is not of good repute for the purpose of being considered for the issue of an explosives and security sensitive dangerous substances licence. The assessment is presented to WorkCover NSW as a guide for their decision as to the grant or refusal of the licence application. 17 I agree with Judicial Member Molony's reasoning in YJ v Chief Executive Officer, WorkCover Authority, and for the same reasons I am of the view that the assessment is not a recommendation to which clause 30(2) applies. Accordingly, it did not oblige WorkCover to refuse Mr Wallace's application. 18 I must therefore consider whether Mr Wallace is a fit and proper person to hold a licence and is otherwise of good character. Fit and proper and otherwise of Good Character 19 An 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. The expression "fit and proper person" 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: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Toohey and Gaudron JJ at 380. A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127. 20 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." 21 Issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. 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: Australian Broadcasting Tribunal v Bond. 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." 22 Reputation 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: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at 393. Evidence of prior convictions is cogent evidence going to reputation. However, 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. 23 A person's character is not fixed and is capable of change and rehabilitation: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25. Breaches of the law and any propensity to re-offend are of crucial importance: Sobey v Commercial Agents Board [1979] 22 SASR 70 per Walters J. at 75. It is relevant to consider the nature, seriousness and frequency of criminal offences and complaints together with the Applicant's reputation in the community. The Facts 24 It is common ground that Mr Wallace has a number of convictions dating from 1989. Between 1989 and 1992 he was convicted on a number of occasions in relation to of the possession and self administration of a prohibited drug (cannabis). He does not dispute these convictions. In October 1992 he convicted of custody of offensive implement and ordered to pay a fine. He says this related to a screwdriver that he used for maintenance of his bike. In 2000 he was convicted of driving with middle range PCA, disqualified from driving for 12 months and placed on a good behaviour bond. While he disputes some aspects of this charge, he concedes that he was guilty of driving whilst affected by alcohol. 25 In 2001 he was convicted of contravening an ADVO; driving whilst disqualified and of stalking/intimidating with intent to cause fear. In 2003 he was convicted of maliciously destroying or damaging property and of common assault. He disputes these matters and provided a version of events for each of the incidents. His version was generally at odds with the version contained in the statement of facts provided by the police. 26 While he concedes that he pleaded guilty to these offences, he contends that it was in circumstances of extreme animosity between himself and the police. He asserted that in the circumstances either the police refused to acknowledge his explanations of events or he refused to provide statements to police because of the earlier experience he had in dealing with the police. He concedes that he was guilty of one of the assault offences but denied that he was in fact guilty of the other charges to which he pleaded guilty. When the versions of events contained in the facts sheets were put to him in cross-examination, he vehemently denied them. 27 Mr Wallace's evidence is that since his convictions he has undertaken TAFE training in order to gain employment in his current field and completed a Certificate course in laboratory skills. He has also undertaken numerous training courses related to his work. He has been granted custody of his younger daughter and maintains regular contact with an older daughter. He says that his life revolves around his children. He has had no further problems with the police in the past three years. He has been in stable employment for that period and has the support of his employer in regard to this application. 28 Mr Burley has been Mr Wallace's immediate laboratory supervisor for the past 3 years. He said that he is aware of Mr Wallace's convictions but provided a statement in which he said that he has always found Mr Wallace to be reliable, hard working and honest. He said that in April 2003 Mr Wallace commenced a 6 weeks work training placement program. Mr Wallace received no payment for this 6 week trial but he was prepared to ride a push bike 38 km per day, often in atrocious weather to get to and from work. Mr Burley said that he was so impressed with Mr Wallace's performance during this 6 week trial period that he offered him continued work as a permanent contract technical officer. In the three years since then he has found Mr Wallace to be punctual, polite, honest and to have an excellent work ethic. He said that Mr Wallace has shown a real aptitude for laboratory work and given the chance could make a life time career in this field. Mr Burley said that he feels that during this three year period Mr Wallace has turned his life around becoming a much more responsible individual. 29 Mr Burley attended the hearing and gave evidence in support of Mr Wallace's application. He was cross-examined and maintained his opinions about Mr Wallace. 30 WorkCover submits that Mr Wallace has maintained an antagonistic and paranoid attitude towards the police. This was put to Mr Wallace and he denied the suggestion. He says that he admits one of the assault incidents and is deeply remorseful about it. He contends that he has moved away from the area where he was in conflict with the police and since then has had no further dealings with them. He says that he is bringing up his children to respect the police. 31 WorkCover submits that the evidence shows that, on the balance of probabilities, Mr Wallace should not be granted a licence. It points to the convictions and says that Mr Wallace has been convicted of traffic offences and has exhibited a pattern and history of violent behaviour towards property and people. It contends that as a result of these convictions and the events giving rise to them Mr Wallace is neither fit nor proper, nor is he of good repute and character. Is Mr Wallace Fit and Proper and of Good Character? 32 WorkCover submitted that I should reject Mr Wallace's evidence because it lacks credibility, as he pleaded guilty to the charges and then denied them. In my view, some aspects of his evidence are plausible while others are improbable. It is likely that his recollection has been affected by the antagonistic relationship he had with the police. I note however, that even if I accepted Mr Wallace's denials there can be no doubt that there is a significant period of his life that reflects badly on him. There is no dispute that the convictions have been recorded. I am unable to go behind those convictions. 33 Of greater significance for the purposes of these proceedings is the effort that Mr Wallace has made to turn his life around and become a responsible individual. Having had the opportunity to see and assess Mr Wallace as he gave evidence, and of reviewing all the documentary evidence, I have formed the view that he has adopted a positive approach to his life and is well respected by his employers. I do not agree with the assessment of repute made by the Commissioner of Police. I do not agree that Mr Wallace's convictions mean in the circumstances that he is not of good repute. 34 I do not share WorkCover's concern that Mr Wallace's pattern and history of violent behaviour towards property and people leads to the conclusion that there is cause for concern or that he poses a risk if permitted to continue handling security sensitive ammonium nitrate. The work Mr Wallace 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. 35 In that context I am satisfied that Mr Wallace is fit and proper and of good character to hold an unsupervised handling licence. 36 I am also satisfied that Mr Wallace has a legitimate reason, and that he has sufficient qualifications, experience and knowledge, to hold an unsupervised handling licence. 37 It follows in my view, that Mr Wallace has met the criteria to be issued with such a licence. Accordingly, the decision of WorkCover should be set aside. Orders The decision of the WorkCover Authority is set aside. In its place the decision is made that Mr Wallace's application for an Unsupervised Handling Licence is granted.