CITATION: Cosgrove v Chief Executive Officer, WorkCover New South Wales [2007] NSWADT 13 DIVISION: General Division APPLICANT PARTIES: Darren Cosgrove RESPONDENT Chief Executive Officer, WorkCover New South Wales FILE NUMBER: 063280 HEARING DATES: 6/11/2006 SUBMISSIONS CLOSED: 6 November 2006 EXTEMPORE DECISION DATE: 6 November 2006 DATE OF DECISION: 10 January 2007 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 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 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 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Sobey v Commercial Agents Board [1979] 22 SASR 70 Wallace v Chief Executive Officer, WorkCover Authority [2006] NSWADT 304 YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264 APPLICANT In person REPRESENTATION: RESPONDENT I Mescher, Barrister ORDERS: The WorkCover determination to refuse Mr Cosgrove's application is affirmed REASONS FOR DECISION Background 1 Mr Cosgrove applied for an explosives Unsupervised Handling Licence for use in relation to his employment with Hilti Australia. In his employment he deals with impact tool products and has been advised that he requires this licence in order to retain his employment. 2 In June 2006 WorkCover New South Wales ("WorkCover") determined to refuse Mr Cosgrove's application. 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. 3 Mr Cosgrove lodged an application for review of the WorkCover decision in this Tribunal. The matter was heard on 6 November 2006. It is common ground that Mr Cosgrove has a number of convictions. On 16 March 2005 he was convicted in Camden Local Court of the following offences: (a) using offensive weapon to prevent lawful detention; (b) assaulting officer in execution of duty; (c) resisting officer in execution of duty (x2); (d) common assault; (e) maliciously destroying or damaging property; (f) contravening ADVO. 4 The court imposed a sentence requiring Mr Cosgrove to be subject to a good behaviour bond for a period of 12 months; that he report to the Probation Office, and that he obey directions regarding drug and alcohol rehabilitation. 5 In August 2004, an apprehended domestic violence order was made against Mr Cosgrove in favour of his partner. The order was for a period of 2 years and one of its conditions was that Mr Cosgrove not approach his partner within 12 hours of consuming any alcohol or drugs. This order expired on 26 August 2006. 6 Mr Cosgrove gave limited evidence at the hearing and conceded that a further AVO had been taken out against him since the WorkCover decision was made and that he is still subject to that AVO. 7 At the conclusion of the hearing I determined to affirm the WorkCover decision and gave brief reasons for my decision. WorkCover has requested written reasons and these reasons are provided in response to that request. Relevant Legislation 8 Section 6 of the Explosives Act 2003 ("the Act") provides that a person must not handle an explosive or explosive precursor if the Explosives Regulation 2005 ("the Regulation") requires the handling to be authorised by a licence, and the person is not authorised to do so by a licence under the Act. Clause 15(1) of the Regulation requires the handling of an "explosive" or "explosive precursor" to be authorised by a licence under the Act. 9 The Act recognises the particularly high risks associated with explosives and the potential for the misuse of explosives. It is intended to address the particular public safety issues related to explosives and explosive precursors and concern about the safe-keeping of dangerous goods. 10 Mr Cosgrove applied for an unsupervised handling licence pursuant to clause 16(1) of the Regulation. Upon the grant of such a licence, a licensee is authorised to handle explosives or explosive precursors but only in the circumstances specified in clause 27 of the Regulation. 11 Section 3 of the Act defines an "explosive" or "explosive precursor" to mean any article or substance prescribed by the Regulations as an explosive or explosive precursor for the purposes of this Act. 12 "Security sensitive dangerous substances" are prescribed for the purposes of the Act as an explosive precursor: Clause 5 of the Regulation. Clause 3 of the Regulation defines a "security sensitive dangerous substance" to mean any security sensitive ammonium nitrate. "Security sensitive ammonium nitrate" is defined to mean certain types of ammonium nitrate. 13 Clause 4 of the Regulation prescribes as explosives (a) dangerous goods of Class 1 within the meaning of the ADG Code; (b) goods too dangerous to be transported (within the meaning of the ADG Code) that can produce an explosive or pyrotechnic effect; (c) articles or substances that when manufactured, mixed or assembled can produce an explosive or pyrotechnic effect. "ADG Code" is defined in Clause 3 as the Australian Code for the Transport of Dangerous Goods by Road and Rail as published by the Australian Government. 14 Section 10(1) of the Act provides that licences authorising the carrying out of an activity that constitutes handling an explosive or explosive precursor may be granted and otherwise dealt with in accordance with Part 3 of the Act. WorkCover is the regulatory authority which is authorised to grant licences in accordance with the Act and the Regulations: section 11(2) of the Act. 15 WorkCover is empowered to request the Commissioner of Police to furnish a report in respect of any one or more of a range of matters referred to in section 13(1) Act. Upon receiving such a request, the Commissioner must investigate the person to which the request relates and furnish a report to WorkCover in respect of the matter or matters that were the subject of the request. 16 The Commissioner was asked to report as to whether Mr Cosgrove has been found guilty or convicted of an offence; whether Mr Cosgrove is the subject of a firearms prohibition; whether Mr Cosgrove is of good character and repute; whether Mr Cosgrove has a history of violence or threats of violence; whether there is an apprehended violence order in force with respect to Mr Cosgrove and whether Mr Cosgrove can be trusted to handle explosives in the manner authorised by the licence without danger to the public safety or the peace. 17 The Commissioner's report is in evidence as an annexure to the Statement of Mr Michael Carroll. This document reads: 'NOTICE OF ASSESSMENT (Under the Explosives Act 2003) CNI Number: 2228738 Admin Event Number: A26984276 Applicant: DARREN NORMAN COSGROVE Date of Birth: 08 August 1961 Date of Assessment: 06 June 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 05 April 2006 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 No 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 Yes 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 DARREN NORMAN COSGROVE 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.' 18 In June 2006 WorkCover determined to refuse Mr Cosgrove's application. In the reasons for decision WorkCover advised: "Your application for an Unsupervised Handling Licence has been refused on the following grounds: (i) The report from the Commissioner of Police under section 13 of the Act, dated 06 June 2006 contains a recommendation from the Commissioner that you should not be granted an Unsupervised Handling Licence 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. Sub-clause 30(2) of the Regulation requires that your application must be refused on that basis. (i) WorkCover is not satisfied that you are a fit and proper person to hold the licence and are otherwise of good character as provided for in sub-clause 30(1) of the Regulation." 19 At the hearing, WorkCover abandoned its argument that it was obliged to refuse Mr Cosgrove's application in accordance with clause 30(2) of the Regulation. This was done in light of the decision of Judicial Member Molony in YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264 and my decision in Wallace v Chief Executive Officer, WorkCover Authority [2006] NSWADT 304. In each of those matters we concluded that the assessment was a Report under section 13 but that the Section 13 Report did not contain a recommendation to which clause 30(2) of the Regulation applies. Accordingly, WorkCover was not obliged to refuse Mr Cosgrove's application on the basis of the Commissioner's Report. 20 I must therefore consider whether Mr Cosgrove is a fit and proper person to hold a licence and is otherwise of good character; whether he has a legitimate reason for holding a licence and whether he has the qualification, experience and knowledge necessary to hold a licence. Fit and proper and otherwise of Good Character 21 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. 22 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." 23 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." 24 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 a person has been convicted, and the circumstances, must be considered before inferring that the person would have acquired a bad reputation as a result a conviction. 25 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 person's reputation in the community. WorkCover's case 26 WorkCover relies on the evidence of Mr Cosgrove's convictions and submits that the evidence shows that Mr Cosgrove has exhibited recent violent behaviour towards property and people, particularly the police, and that he has a recent drug and alcohol addiction. WorkCover contends that Mr Cosgrove should not be granted a licence on this basis. Is Mr Cosgrove Fit and Proper and of Good Character 27 Mr Cosgrove has had drug problems since he was 17 years old. These have mainly consisted of cannabis but also amphetamines, cocaine and heroine. Since 2002, he has also had a 'speed' addiction. 28 On 26 August 2004, an AVO was made against Mr Cosgrove in favour of his partner. The order was for a period of 2 years. Mr Cosgrove's convictions arose out of an incident that took place following a bout of drinking alcohol which commenced on 19 October 2004, ran all day and re-commenced on the following morning. On the afternoon of 10 October 2004, Mr Cosgrove became insulting and abusive towards his partner. The police were called and Mr Cosgrove became insulting and abusive towards them. A struggle ensued between Mr Cosgrove and the police during which he became violent. 29 Mr Cosgrove has indicated that he is again the subject of an AVO in favour of his partner. 30 In the absence of evidence to the contrary I agree with the WorkCover submission that Mr Cosgrove is not a fit and proper person nor is he of good character and repute for the purpose of handling explosives or explosive precursors. Legitimate Reason 31 The evidence with respect to whether Mr Cosgrove has a legitimate reason for obtaining the licence is scant. He suggests that he needs it for his employment but there is insufficient information on which I could be satisfied that this is a legitimate reason to hold an unsupervised handling licence under clause 36(2)(a) of the Regulations. Qualifications, Knowledge and Experience 32 There is no evidence with respect to whether Mr Cosgrove has the qualifications, experience and knowledge necessary to hold the licence. I could not be satisfied that he satisfies this requirement. 33 It follows in my view, that the decision taken by WorkCover is the correct and preferable one. It should therefore be affirmed. Orders The WorkCover determination to refuse Mr Cosgrove's application is affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.