Pinheiro v WorkCover NSW [2006] NSWADT 306

CITATION: Pinheiro v WorkCover NSW [2006] NSWADT 306

DIVISION: General Division

APPLICANT PARTIES: Joseph Pinherio RESPONDENT Chief Executive Officer, WorkCover Authority

FILE NUMBER: 063142

HEARING DATES: 16/08/2006

SUBMISSIONS CLOSED: 08/16/2006

DATE OF DECISION: 11/01/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Explosives Act - unsupervised handling licence - grant of

MATTER FOR DECISION: Jurisdiction

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 Wallace v Chief Executive Officer, WorkCover Authority [2006] NSWADT 304 YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264

W Russell, Barrister REPRESENTATION: I Mescher, Barrister

ORDERS: The decision of the WorkCover Authority is set aside. ; The matter is remitted to the WorkCover Authority for reconsideration in accordance with these reasons.

Background 1 Mr Pinheiro is a welder/pipefitter and has been employed by Tungsten Engineering at the Kooragang Island Orica Mining Services site in Newcastle for approximately 3.5 years. His duties involve him in the everyday maintenance of the Orica facilities. The Kooragang Island Site has been classified by the State Government as a "Major Hazard Facility" and has deemed that persons working on this site are required to work under an Explosives licence. Tungsten Group's policy is that all employees working at the Kooragang Island site are to hold any and all licences necessary to undertake work at that facility. 2 The Explosives Act 2003 ("the Act"), regulates the handling of security sensitive ammonium nitrate ("SSAN"). Mr Pinheiro's evidence is that he is required to carry out maintenance work in an area where there is SSAN and he therefore seeks an explosives Unsupervised Handling Licence. If Mr Pinheiro is unable to obtain the licence that he is seeking he will be unable to work at the Kooragang Island site. 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 Pinheiro'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 01 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 Pinheiro lodged an application for review of the WorkCover decision in this Tribunal. The matter was heard on 16 August 2006. Mr Pinheiro gave evidence and was extensively 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 a person who handles SSAN requires a licence 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. 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 Pinheiro'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 Pinheiro's application in accordance with section 13(2). If not, whether Mr Pinheiro is a fit and proper person to hold a licence and is otherwise of good character. Whether Mr Pinheiro has a legitimate reason for holding a licence. Whether Mr Pinheiro has the qualification, experience and knowledge necessary to hold a licence. The Section 13 Report 12 This document reads: 'NOTICE OF ASSESSMENT (Under the Explosives Act 2003) CNI Number: 16331980 Admin Event Number: A26111358 Applicant: JOSEPH LAGOA PINHEIRO Date of Birth: 25 September 1958 Date of Assessment: 1 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 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 JOSEPH LAGOA PINHEIRO 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 Pinheiro. 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 Pinheiro'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 and in 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. 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 Pinheiro 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. The assessment is not a recommendation to which clause 30(2) applies. Accordingly, it did not oblige WorkCover to refuse Mr Pinheiro's application. 17 I must therefore consider whether Mr Pinheiro 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 18 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. 19 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." 20 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." 21 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. 22 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 23 It is common ground that Mr Pinheiro has a number of convictions from 1996 relating to breaches of an apprehended violence order and assault. He does not dispute these convictions and expressed his regret in relation to them. 24 The convictions arose out of incidents that related to Mr Pinheiro's ex-wife. At the time of these incidents Mr Pinheiro was separated from his wife and was subject to either an ADVO or an ADVO and bail conditions that prevented him from having contact with her. It is common ground that Mr Pinheiro breached those orders. 25 WorkCover also points to other matters, which it considers relevant to these proceedings. Firstly, it points to the fact that in 1995 Mr Pinheiro was admitted to hospital after threatening self-harm. Secondly, Mr Mescher, counsel for WorkCover, cross-examined Mr Pinheiro with respect to a 2001 domestic incident with his then partner and which Mr Mescher contends involved a heated argument. Thirdly, Mr Mescher cross-examined Mr Pinheiro with respect to a 2005 incident in which it is alleged that Mr Pinheiro was spying on his then partner. 26 Mr Pinheiro concedes that he was admitted to hospital in 1995 as alleged. He said that he was treated for depression and this is no longer an issue. With respect to the alleged 2001 domestic incident, Mr Pinheiro concedes a heated verbal disagreement occurred but denies that there was any violence involved. He denied the allegation that he was spying on his then partner in the alleged 2005 incident. 27 Mr Pinheiro's evidence in relation to his convictions is that he was not coping well with the separation from his wife and children. He expressed remorse for his behaviour and is sorry for what he did. He says he now has a very positive relationship with his ex-wife and maintains an ongoing relationship with his children. He points to a reference that his ex-wife provided in support of his application. He has moved to the Hunter region where he has been in stable employment for two years and has the support of his employer in regard to this application. He also points to a number of other character references dating back to 1994. For the most part, these are general references and not specific to these proceedings. 28 WorkCover submits that Mr Pinheiro's history of violence (even though the convictions occurred many years ago) leads to the conclusion that, for the purpose of handling security sensitive ammonium nitrate, Mr Pinheiro would not be suitable, and, in that context, is neither a fit and proper person nor is he of good character and repute. Mr Mescher submits that little weight can be given to Mr Pinheiro's references because of their age and general nature. 29 WorkCover also submits that there has not been any material placed before the Tribunal showing that Mr Pinheiro has a "legitimate reason" for obtaining the licence. 30 Additionally, it is submitted, that no material has been produced showing that Mr Pinheiro has the qualifications, experience and knowledge necessary to hold the licence as required by clause 30(1)(a)(iii) of the Regulations. 31 Mr Mescher submits that the evidence shows that, on the balance of probabilities, Mr Pinheiro should not be granted a licence. Is Mr Pinheiro Fit and Proper and of Good Character? 32 With the exception of the alleged 2005 incident WorkCover conceded that the areas of concern in Mr Pinheiro's history are dated. Mr Pinheiro has denied that there is any substance to the allegations in regard to the more recent incidents to which WorkCover has referred. There is no evidence to support those allegations. Mr Pinheiro's evidence in regard to the incidents that lead to his convictions suggests that the events occurred at a difficult time in his life and that he has moved on to a more stable situation. While he disputes some aspects of the events, he does not deny the offences and it is my view that he genuinely regrets them. There is no evidence that prior to that period he had come to the attention of the police. 33 Having had the opportunity to see and assess Mr Pinheiro as he gave evidence, and of reviewing all the documentary evidence, I have formed the view that I do not agree with the assessment of repute made by the Commissioner of Police. I do not agree that Mr Pinheiro's convictions mean in the circumstances that he is not of good repute. I am satisfied that Mr Pinheiro is fit and proper and of good character to hold an unsupervised handling licence. Legitimate Reason 34 The evidence with respect to whether Mr Pinheiro has a legitimate reason for obtaining the licence is in the form of a letter from Mr Chris Rees, the Senior Contracts Manager with Tungsten Group Pty Ltd. It is clear from his letter that the classification of the site where Mr Pinheiro works requires that persons working on the site work under an explosives licence. WorkCover has not disputed that to be the case. I am 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 35 The evidence with respect to whether Mr Pinheiro has the qualifications, experience and knowledge necessary to hold the licence is very limited. He stated that he has been given training by Orica but provided no details of the extent of the training. 36 Mr Mescher submitted that if I was otherwise satisfied that Mr Pinheiro met the criteria to be issued with such a licence, I should set aside WorkCover's decision and remit it to be made again in accordance with my findings. This will enable the question of Mr Pinheiro's qualification, experience and knowledge to be satisfied. I propose to follow that course. Orders 37 The decision of the WorkCover Authority is set aside. The matter is remitted to the WorkCover Authority for reconsideration in accordance with these reasons.