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. Applicable legislation 6The Explosives Act, which came into operation on 1 September 2005, regulates the handling of explosives and explosive precursors and provides a scheme in relation to the transportation 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) and is responsible for issuing licences and security clearances (s 11). 7The licensing scheme under the Act was comprehensively described and summarized by Molony JM in YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264, [6] - [18], and that review was approved and adopted by Montgomery JM in Wallace v Chief Executive Officer, WorkCover Authority [2006] NSWADT 304, [6]. It is not necessary to repeat that review here, but the effect of certain subsequent amendments to the Act and regulation in 2013 should be noted. 8The amendments inserted new sections 6A and 10A, which clarified the role of the security clearance as a prerequisite to obtaining a licence to handle explosives and precursors and to make it consistent with the then recent remaking of the regulation. Other consequential amendments emphasized the role of the security clearance, which is issued by WorkCover and is based on the report of the Commissioner of Police under s 13 of the Act. 9Under s 10A, a natural person is not eligible for a licence authorizing the handling of an explosive or precursor unless the person has been granted a security clearance that is in force: s 10A(1). "Handling" is broadly defined in s 3(1) as including "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". 10A security clearance may be granted by WorkCover (s 11(1), s 4), which may request the Commissioner to furnish a report in respect of various matters: s 13. WorkCover may cancel a person's security clearance if of the opinion that "the holder is no longer a fit and proper person to hold, or to continue to hold, a licence or security clearance": s 21(b). WorkCover may also cancel or suspend a security clearance where it considers that the person "cannot be trusted to handle explosives or explosive precursors because the person has a history of violence or threats of violence (whether or not the person has been convicted of any offence involving violence): s 22(1). 11If WorkCover is "satisfied that an apprehended violence order is in force under the Crimes (Domestic and Personal Violence) Act 2007 (CDPV Act) against the holder of a licence or security clearance (whether or not the person has been served with a notice under subsection (1)) it may suspend the licence or security clearance": s 22(4). Section 22(7) states that "in this section, violence includes behaviour referred to in section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (Stalking or intimidation with intent to cause fear of physical or mental harm)". 12The applicant previously held an unsupervised handling licence, but cl 4(1) of schedule 3 to the 2013 regulation states that an unsupervised handling licence "is taken... to be a security clearance granted by [WorkCover] under Part 2" of the 2013 regulation. Subject to certain exceptions, a natural person is required to hold a security clearance that is in force to handle any explosive or explosive precursor: cl 9. 13Clause 14 empowers WorkCover to cancel a security clearance: 14 Cancellation of security clearance (1) The regulatory authority may, by notice in writing to the holder of a security clearance, cancel the security clearance if satisfied that the holder is not a fit and proper person to be granted a security clearance. (2) The cancellation takes effect on the date on which notice of the cancellation is given to the holder of the security clearance or a later date specified in the notice. (3) The regulatory authority may direct the holder of a cancelled security clearance to return the security clearance to the regulatory authority within a specified period. (4) The holder of a cancelled security clearance must not fail to return a security clearance to the regulatory authority in accordance with a direction given by the regulatory authority, unless the holder has a reasonable excuse. Maximum penalty: 50 penalty units. (5) A security clearance is taken to be cancelled when a new security clearance is granted to the same person. 14Section 6A of the Act, together with cl 9 of the 2013 regulation, makes it an offence for a natural person to handle any explosive or precursor without an applicable security clearance (subject to certain exceptions in cl 10). Section 6 of the Act, read with cl 17, makes it an offence for a person to handle any explosive or precursor in the absence of a licence authorizing the handling of the relevant explosive or precursor. The granting of a security clearance, however, entitles a natural person employed by a licensee to handle explosives or precursors, with or without supervision by the licensee, provided that the natural person has a security clearance: cl 20. 15Section 63 of the Administrative Decisions Review Act 1997 requires this tribunal in proceedings of this nature to make the correct and preferable decision in the light of the law and the evidence before it. The issue in this case is thus whether the correct and preferable decision is to affirm, vary or set aside the cancellation of the applicant's security clearance and, specifically, whether the applicant is a "fit and proper" person to hold such a clearance for the purposes of cl 14 or s 21 or both. 16Hearings in this tribunal are de novo, in the sense that the tribunal is to consider the matter from the start, which includes taking into account new evidence that is brought before it. It is well established that the tribunal is not restricted to considering the material that was before the respondent at the time it made its decision, 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] AATA 179; (1979) 46 FLR 409. The evidence 17The respondents called no oral evidence but relied on the documents filed by the Commissioner (exhibit R1) and by WorkCover (exhibit R2). 18In his oral evidence the applicant adopted his signed statement dated 13 October 2014 (exhibit A1) in which he stated that he had been in a relationship with his wife Julie Stevens for 26 years, and they had been married for 22 years. They have three adult children. 19On Saturday, 23 November 2013 he had been attending a party at a friend's house in Aberdeen. Mrs Stevens came to collect him and drive him home, as was their usual arrangement. They left the party at approximately 8 pm and in the course of the drive home had begun to argue. He did not recall what the argument was about but conceded that he had consumed a certain quantity of alcoholic beverages. 20He recalled that because of an accident on the road they had to stop. When the police allowed them to proceed, he went to put his hand around the back of the driver's seat, as he often does when they are driving. When doing so he accidentally "clipped" his wife on the cheek with his hand. He had not intended to make contact with Mrs Stevens's face and the occurrence was a pure accident. He admitted that he had pleaded guilty to the resulting assault charge in the Local Court, as he wanted the matter dealt with and did agree that he "did clip her face" as he put his hand around the back of the seat, but the contact was not intentional. 21Without his explosives licence and clearance he had been unable to work in his usual position at Daracon. He had been compelled to take extended leave from that employment pending the decision in the present matter, and had managed to obtain only some casual labouring work locally in the meantime. He had held the unsupervised handling licence and the security clearance for five years and required it to return to his usual employment. He is 51 years of age and believes it would be difficult for him to find another full-time secure position in the Muswellbrook area. 22In his oral evidence Mr Stevens said that over the five years in which he had held a licence and clearance, he had not been the subject of any disciplinary action in relation to his work. He had not attended the Local Court hearing on the assault charge in December 2013 because the mine was very busy at the time and his employers had wanted him to be there. He had been unable to get the day off. He had not signed a statement for the police but had filled out some kind of declaration and had been fined. 23He denied having punched Mrs Stevens but said he had simply put his hand around the back of the seat, as he often did because their car is very small. As he is big, if he were to hit someone intentionally it would really hurt. If he had known he was pleading guilty to hitting her he would have made a point of attending court. He had thought the matter would somehow just go away. 24Asked about the police report of event No. E 38336965 (part exhibit R1), he said he did not recall threatening to throw a beer bottle at his wife and said that none of the apprehended violence orders (AVOs) had related to physical assaults and he had never touched her in that way at all. All of the complaints related to verbal episodes. He could not recall the domestic violence episode in 2004 referred to in that report, although he did remember that an AVO had been issued, probably in relation to a verbal altercation. He had attended court but had not been charged, but was just made subject to the AVO. 25 When he denied the statement that he had grabbed his wife by the throat, it was pointed out to him that a witness had attested to that action. He asked who the witness was and then conceded that it could have been his eldest daughter. She had declined to give police enough details to support a prosecution of the applicant but, he said, she was not afraid of him and would have given a statement if she had wished. He did not know how Mrs Stevens had sustained a scratch and swelling to her right cheek (nor, it seems, did she). 26The applicant was then asked about event No E 426821 in August 1994 in which he was alleged to have punched Mrs Stevens in the face a number of times, resulting in her being treated at Muswellbrook hospital. He said that he had forgotten that incident but that his wife had only been checked over at the hospital and had not been admitted. 27In re-examination Mr Stevens said he had obtained his licence five years ago, on 25 September 2009. At the time of making the application he had been required to authorize a police records search. 28In her evidence in chief, Mrs Julie Maree Stevens adopted her statutory declaration of 14 October 2014 (exhibit A3) in which she said that on 23 November 2013 she had been working at Mount Providence Aged Care in Muswellbrook. She finished work at about 7 pm and drove to Aberdeen to collect the applicant from the house of his friend, Al Squires, where he had spent the afternoon. 29Shortly after she collected the applicant, and as they were driving back on the New England Highway to Muswellbrook, he had mentioned a female acquaintance. That had made her angry and an argument began in which they were both yelling and swearing at each other and he had made offensive remarks. While they were arguing, they came upon an accident scene where police were attending. Her husband had wanted her to drive on, but she told him that she could not because of the accident. 30A short time afterwards a police officer waved them through, and as she began driving slowly past the accident scene, she felt a firm contact with the left-hand side of her head around her ear she immediately yelled out words to the effect that "he just hit me". The police officer who had waved them through then spoke to them briefly and advised them to go to the police station. 31She could not say that Scott had actually meant to contact her. She was not hurt but rather stunned, and looking back she could see that she was already angry with him because of the argument they were having. Over the next few days they had a short separation, and during that time she attended at the police station and made her complaint. 32Shortly after making the complaint to the police, she began to regret it and sought to have the charges dropped. She was informed, however, that as it was a domestic violence allegation, that could not be done. Looking back, she believed that he intended to put his arm around the back of the seat, but as it was dark at the time he may have misjudged. 33She has remained living with the applicant and does not fear him. She relies on him for his substantial contribution to the household and regretted that her complaint made in anger had jeopardized his employment. 34In cross-examination the witness said that the applicant had been charged with assault for the 2013 incident, but she had not wanted to go ahead with it. She had been truthful with the police, but although she had said he had punched her, they had been arguing and she could have been mistaken. Because of the position of the seats, he has to swing his arm around to put his hand on the back of the seat. As regards the reference to his fist, she said she had been focused on the accident and they were arguing. Everything was going so quickly, and she wanted to get him home. It might have looked as though he had hit her with his first. She denied that she had altered her story in order to help him. 35The applicant tendered a letter (exhibit A2) from Mr Ian Renfrey, drill and blast superintendent at Ravensworth open cut mine. Mr Renfrey stated that he intended his letter to be a character reference for the applicant. He had known the applicant for a period of five years and in that time the applicant had worked on the blasting bench at Ravensworth open cut mine as a stemming truck operator. 36During that time he had found Mr Stevens to be hard-working, with a sound knowledge of his work area. He was well received with all the blasting crew and was part of the team. During his time at Ravensworth he had no safety issues or incidents. Respondent's submissions 37In his written submissions on behalf of the respondents, Mr El-Hage set out the law relating to what is meant by a "fit and proper" person, a matter that does not appear to be in significant dispute between the parties. 38He then pointed out that the decision-maker is required to refuse the grant of a security clearance if it receives a recommendation from the Commissioner that the applicant should not be granted a clearance: cl 12(2) and s 13 of the Act. The inclusion of a requirement for mandatory refusal in such circumstances indicated that the Legislature considers that a person's involvement in criminal activity is a strong factor weighing against the grant of a clearance. WorkCover is also empowered to suspend or cancel, or both, a security clearance granted to a person in circumstances where the person has a history of violence or threats of violence: s 22. The grant of such a power, it was submitted, showed a legislative intention that a person with a history of violent behaviour should not possess a security clearance (see also s 22(7)). 39The holder of a clearance is entitled to handle a wide array of powerful, dangerous and hazardous goods, as well as security sensitive substances (although subject to holding the appropriate licence): cll 4 and 5. Thus, if the clearance holder also has a licence, the person will be authorized to engage in the activities authorized by the licence: cl 18(1). If the clearance holder is employed by a licensee, as opposed to holding his or her own licence, the holder will be authorized to engage in the activities that the employer's license authorizes: cl 20(1). In such a case the clearance holder will be entitled to handle explosives or precursors, with or without supervision by the licensee: cl 20. 40The applicant's criminal history, his tendency to engage in violent behaviour and his disregard for the law generally counted strongly against a finding that he is a fit and proper person, the submissions continued. Between June 2009 and December 2013, the applicant was subject to multiple AVOs in response to his domestic violence against his wife. The most recent AVO was issued on 16 December 2013 following event No. E37825068 and remains current until 15 December 2014. At that time the applicant was also convicted of common assault against his wife, having pleaded guilty to striking her left cheek. 41These incidents had occurred over a period of 20 years, from 1994 onwards and were not isolated or out of character occurrences. The applicant's traffic record, with violations extending back to 1995, also reflected his disregard of the law. He could not be trusted to handle explosives or precursors generally, let alone without supervision, as he would otherwise be entitled to do under the legislation as it now stands. The evidence presented by the applicant did not deal with the majority of the matters raised above. His claim that he will suffer hardship if he does not have a security clearance cannot be given weight, as it is well established that possible hardship resulting from a decision to cancel a licence or the like is not relevant to determining whether the applicant is a fit and proper person: McMicking v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 95. The applicant is not a fit and proper person to hold a security clearance under the Act and WorkCover's decision should be affirmed. 42In his oral submissions Mr El-Hage reiterated the above points and added that in this case the s 13 report from the Commissioner was not related to an application for a clearance. If it had been, the application could not have been granted, by reason of cl 12(2). WorkCover was specifically empowered to suspend or cancel a security clearance where a person has a history of violence or threats of violence, whether resulting in a conviction or not, and may suspend the clearance if an AVO is in force. The section defines violence broadly, and expressly mentions the CDPV Act. The specific reference to the AVO legislation showed the importance that the legislation attached to domestic violence issues in this context. The power in s 22 displays an intention to make a history of violence a significant factor in decisions to suspend or cancel a security clearance. 43The applicant's first AVO was issued on 7 September 1994 in relation to an assault. The applicant did not deny that he had struck his wife and that she had received hospital treatment as a result, although in his evidence in chief he had said all the AVO episodes were purely verbal. Similarly, he was unable to explain the scratch that his wife had sustained to her cheek at the time of the AVO proceedings in May 2009. 44His traffic record comprised 10 speeding and 2 seatbelt offences from 1995 onwards. This ongoing list of violations worked against him, as it showed a disregard for the law in relation to driving. His oral evidence was unimpressive, as his answers were not very responsive and at times inconsistent, with admissions being followed by denials or vice versa. There was a lack of evidence to show the requisite rectitude of character, and the reference that he tendered could not be regarded as a character reference as it displayed no awareness of his conviction or his series of violent episodes. 45His wife's evidence contradicted what she had told the police at the time of the incidents in question and it was apparent that she was attempting to alter her story in order to help him. He was not a fit and proper person to hold a security clearance. Consideration 46The key issue in this case is whether Mr Stevens is a fit and proper person to hold a security clearance under the Explosives Act. If the tribunal finds that he is not (in terms of cl 14(1)), or is no longer (the wording used in s 21(b)), it is empowered to cancel his security clearance. As the use of the word "may" in both provisions indicates, the power is discretionary, unlike the duty to refuse a security clearance under cl 12(2) where the Commissioner has recommended against the grant of a clearance on the basis of criminal or security intelligence or other information available to the Commissioner. 47The difference in treatment between an application for a clearance under cl 12[2) and the cancellation of a clearance under cl 14(1) and s 21(b), that is, mandatory refusal in the former case and a discretion to cancel or not cancel in the latter case, is not necessarily anomalous. An existing holder whose clearance is being considered for cancellation has to a greater or lesser extent a history as a licensee, to which the deciding authority can have regard when deciding whether or not to cancel a clearance. If the holder has an unblemished history, WorkCover could decide not to cancel the clearance despite having information that would warrant doing so. 48 An applicant for a new security clearance, however, has no record with WorkCover that might be used to temper its decision. Clause 12(2) does not, therefore, necessarily evince a legislative intention to restrict or limit the scope of the discretion in cl 14(1) and s 21(b). There is no difficulty in reconciling the two sets of provisions and they can stand together without strain. A narrow reading of the discretionary power is therefore unnecessary. 49 The meaning of the phrase "fit and proper person" has been reasonably well settled by a long series of cases beginning with Hughes and Vale Pty Ltd v New South Wales [1955] HCA 28; (1955) 93 CLR 127. That line of authority is summarized in Gomes v Roads and Maritime Services [2014] NSWCATOD 130, [53] - [57]. Scahill SM there pointed out that Hughes and Vale had identified three components to fitness and propriety: "honesty, knowledge and ability". A further useful survey of the authorities can be found in AJO v Director-General, Department of Transport [2012] NSWADT 101, [24] - [35]. 50In any case the starting point for the application of the concept in a particular situation is that the interpretation must be consistent with the language and purpose of all the provisions of the Act at hand: Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184, [17]. 51 In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J, referring to the phrase "fit and proper", said: In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of the 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. 52The phrase was also discussed by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63], where his Honour said: 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". 53In the same case, Toohey and Gaudron JJ observed: 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....[D]epending 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" (at 380). 54The attestation that Mr Stevens is a fit and proper person must be positive, and not simply a failure of the case against him to establish the contrary (Gomes at [57]). 55 Fitness and propriety must thus be determined in light of the role the applicant is to undertake. The tribunal is to consider the evidence before it about the applicant's honesty, knowledge and ability as it relates to the specific function he or she is to perform. Here, that assessment must take account of the legislative recognition of the particularly high risks associated with explosives and the potential for their misuse. The legislation is intended to deal with the particular public safety issues related to explosives and precursors, and concern about the safe-keeping of dangerous goods: Cosgrove v Chief Executive Officer, WorkCover New South Wales [2007] NSWADT 13, [9]. 56In the present case it should be borne in mind, as Mr El-Hage pointed out, that while the applicant was previously employed at Ravensworth mine as a stemming truck operator, a security clearance would authorize him to perform, with or without supervision, any of the wide range of functions coming under the definition of "handling" in s3 in the course of his employment, other than activities requiring a special licence or permit, such as shotfiring. The explanatory note to the 2013 regulation draws special attention to that change in the statutory scheme. Possible unsupervised roles could thus include, for example, transporting and supplying explosives or precursors or both. The assessment is not, therefore, limited to considering whether the applicant is a fit and proper person to work as a truck operator on a mine site. 57The main evidentiary basis for the respondent's case is the Commissioner's report under s 13 of the Act dated 23 December 2013. That report sets out under the heading "Notice of Offences" a record of the applicant's conviction that Muswellbrook Local Court on 16 December 2013 on a charge of common assault (domestic violence), resulting in a fine of $200. 58 The Commissioner's conclusions on a number of other matters are set out in tabular form. They note that he is not the subject of a firearms prohibition order but has a history of violence or threats of violence including domestic violence and is currently subject to an AVO. There is no information indicating participation in any criminal activity. The Commissioner considers that it is contrary to the public interest for the applicant to hold a security clearance and finds him to be not a fit and proper person for the purpose of holding a licence issued under the Explosives Act. 59As the Commissioner can be taken to have been aware of the applicant's previous AVOs when granting him a security clearance in 2009, it would appear that the decisive factor in the police assessment was the 2013 assault conviction. That course was plainly open to the Commissioner. As Kellam J observed in Raymond Robbins v Business Licensing Authority [2000] VCAT 457, a motor dealer licence case, 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. 60In that case the applicant had been convicted on 11 counts of theft arising directly from the sale of motor vehicles - hence the tribunal's conclusion that the convictions and the applicant's behaviour went to the heart of the qualities required by a motor dealer. That is not the case here, but the 2013 assault conviction and resulting AVO, together with the two previous AVOs and associated interim orders, combine to form a record of violence extending over 20 years that constitutes a serious factor in assessing his fitness and propriety. As was noted above, s 22 shows that the legislation expressly treats domestic violence as a serious consideration in decision-making under the Act. 61The AVOs issued against the applicant include specific prohibitions on assaulting, molesting, harassing, or threatening the protected person or stalking that person or engaging in any other conduct that intimidates her (part exhibit R1). As Ms Fairbairn pointed out, however, by s 36 of the CDPV Act, every AVO is taken to specify those forms of conduct. 62The applicant's traffic infringement record, comprising 10 speeding and 2 seatbelt violations over 22 years, suggests a somewhat casual attitude to complying with the law. In addition, his oral evidence at the hearing was less than impressive and did nothing to mitigate the gravity of his acts of domestic violence. Nor did he express remorse or contrition for his past behaviour. In all, the evidence adduced by the respondents constitutes a substantial prima facie case for cancelling the applicant's security clearance. 63In the exercise of the discretion, however, there are matters that must be considered in the applicant's favour. His conviction for common assault led to the imposition of a fine of $200, a significant penalty but one that suggests that the learned magistrate viewed the offence as being towards the lower end of the scale of culpability. The two prior AVOs did not result in the laying of charges. 64Further, the applicant's position contrasts with that of the licensee in Raymond Robbins, who had incurred 11 convictions for crimes of dishonesty actually committed in the course of the work that the licence authorized him to perform, that of a motor dealer. Similarly, in Gomes the applicant taxi driver had an extensive customer complaint history, involving repeated instances of similar kinds of objectionable conduct despite warnings and retraining programs. As in Raymond Robbins, the cancellation decision was affirmed. In the present case, however, none of the acts making up his criminal history relate directly to the exercise of his security clearance in the mining industry. 65Mr Stevens has worked under the security clearance for five years with no disciplinary breaches. There have been no complaints or instances of unsafe or improper behaviour at work, nor any breaches of security. In that regard, as his employer's reference confirms, his record is unblemished. 66His traffic record consists of 10 speeding and two seatbelt contraventions in 22 years. All but one of the speeding infringements were for exceeding the speed limit by not more than 10 km/h, while the tenth involved a speed of not more than 20 km/h over the limit. The two seatbelt offences occurred in or before 2005. In all, an unimpressive record, but for a driver who covers some 40,000 km per year it could not be regarded as grossly so. None of the offences involved alcohol or negligent or dangerous driving, and as far as the respondent knew at the hearing, there was nothing to suggest that any of them involved truck driving. His licence has never been cancelled or suspended, although he has incurred penalties that carried a default of suspension. As the applicant was granted his security clearance in 2009, it may be presumed that the Commissioner was aware of his traffic record to that date, as well as of the AVOs except the one issued in 2013, but did not consider them sufficient reason to refuse a clearance. 67The respondents contend that the applicant submitted no character references, in the sense of letters expressing awareness of his criminal history, and the tribunal had noted in Gomes at [62] - [63] that less weight is given to references that make no mention of the subject's adverse history. That is correct, although Mr Renfrey describes his letter of 7 November 2014 (exhibit A2) as a character reference. It can, however, be read as a favourable appraisal of the applicant's character attributes insofar as they have been apparent in his work at the mine. Bond is authority for the proposition that the concept of who is "a fit and proper person" takes its meaning in part from the activities to be engaged in. As the tribunal noted in Sobey, the focus is on whether the person has a sufficient degree of personal rectitude that he or she can be trusted to engage in the activities in question without prejudice to the public interest or public safety. 68 Mr Stevens has been without his clearance for some months now and does not appear to have enjoyed the experience. That could reinforce his incentive to take his legal obligations more seriously in the future. Although the possibility of future misconduct cannot be entirely ruled out, the totality of the evidence makes it appear unlikely that restoration of his clearance would create any discernible risk to co-workers, to public safety or the public interest. 69 It is also relevant that the applicant appears to be in an enduring domestic arrangement that, although tempestuous and on occasion violent, has remained relatively stable over a long period. Despite the violent episodes, Mrs Stevens has remained in the relationship for 26 years. She is in gainful employment and their children are now adults. She said in her evidence that she does not fear her husband. On balance, the relationship is likely to be a stabilizing influence on the applicant. 70The applicant has found it difficult to obtain full-time employment in the Muswellbrook area since losing his clearance, particularly given his age, and believes he faces financial hardship as a result. As Gomes (at [64]) and other cases have stated, however, financial hardship to the licence holder as a result of cancellation is not relevant to determining the correct and preferable decision in such cases. 71The applicant cannot be regarded as a man of exemplary character and would be quite unsuitable for certain types of employment. As was noted above, the authorities make it clear that the question whether a person is "fit and proper" is to be answered by reference to the nature of the work in which he or she would be entitled to engage. 72The evidence shows, in my view, that for the purposes of the kind of work that a security clearance under the Explosives Act would authorize Mr Stevens to perform, he presents no danger to co-workers or the public and in all other significant respects as well is a fit and proper person to hold a security clearance within the meaning of s 21(b) and cl 14. I so find. 73That conclusion is subject to a caveat, however. It may well be that New South Wales was established in part as the land of the second chance, but there are definite limits to the allowances that may be made for human frailty, especially where public safety and security are concerned, as well as the welfare of those in a domestic relationship with the person in question. If there is any repetition of conduct showing a disregard for law, including conduct of the kind that led the Commissioner to recommend cancellation of the security clearance in this case, the applicant should expect that prompt and decisive action would result. A future tribunal would be likely to take a strict view of any ensuing review application. 74The decision under review is set aside. I should add that I do not think the security clearance should be reinstated until after the expiration of the current AVO on 15 December 2014. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 21 November 2014