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

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stevens v WorkCover Authority of New South Wales [2014] NSWCATAD 202 Hearing dates: 10 November 2014 Decision date: 21 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: G Walker, Senior Member Decision: Decision under review set aside. Catchwords: EXPLOSIVES - security clearance -statutory interpretation Legislation Cited: Administrative Decisions Review Act 1997; Explosives Act 2003; Explosives Regulation 2013. Category: Principal judgment Parties: Scott Stevens (Applicant) WorkCover Authority New South Wales (First Respondent) Commissioner of Police, New South Wales Police Force (Second Respondent) Representation: Curtis Gant Irving (Applicant) Crown Solicitor's Office (Respondents) File Number(s): 1410378

reasons for decision 1The applicant Scott Stevens on 18 July 2014 applied to this tribunal for review of a decision by the first respondent, WorkCover Authority of New South Wales, cancelling his security clearance (previously called an "unsupervised handling licence") under the Explosives Act 2003. 2Before his licence was cancelled, Mr Stevens had been employed as a truck driver at Ravensworth open cut coal mine. He needed a clearance because he was working in a blasting area where granulated "nitro" explosive was inserted in vertical shot holes. He was not licensed as a shotfirer and did not handle the explosive, but unloaded gravel into a conveyor which deposited the gravel on top of the charge in the shot hole in readiness for detonation. 3On 9 April 2014, by letter addressed to the applicant, WorkCover cancelled the applicant's security clearance on the basis of cl 12(2) of the Explosives Regulation 2013 and directed him to return the clearance within 21 days. When the licence was not returned as directed, WorkCover contacted Mr Stevens, who informed them that he had not received the letter. A second letter to a similar effect as the first, but this time relying on cl 14(1) of the regulation, was sent to the applicant at his then current address on 5 June 2014. 4On 6 June 2014, the applicant applied for an internal review of the decision, stating that he needed the clearance in order to keep his employment at the mine. On 4 July 2014 the reviewing officer confirmed the cancellation decision under cl 14(1) and also under s 21(b) of the Act. 5The basis for the cancellation decision was a report by the Commissioner of Police dated 23 December 2013 under s 13 of the Act which concluded that the applicant was not a fit and proper person to be granted a security clearance, and particularly given that a clearance would not be granted by reason of cl 12(2) because of the Commissioner's recommendation.