BARON and CHIEF DANGEROUS GOODS OFFICER, DEPARTMENT OF MINES AND PETROLEUM
[2010] WASAT 72
•21 MAY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: DANGEROUS GOODS SAFETY ACT 2004 (WA)
CITATION: BARON and CHIEF DANGEROUS GOODS OFFICER, DEPARTMENT OF MINES AND PETROLEUM [2010] WASAT 72
MEMBER: MR T CAREY (MEMBER)
HEARD: 24 MARCH 2010
DELIVERED : 21 MAY 2010
FILE NO/S: CC 104 of 2010
BETWEEN: MICHAEL BARON
Applicant
AND
CHIEF DANGEROUS GOODS OFFICER, DEPARTMENT OF MINES AND PETROLEUM
Respondent
Catchwords:
Refusal of dangerous goods security card under Dangerous Goods Safety (Explosives) Regulations 2007 (WA) based on criminal record Nature of Chief Officer's discretion where objection by Commissioner of Police Risk that explosives might be used for criminal purposes Exercise of discretion
Legislation:
Dangerous Goods Safety Act 2004 (WA), s 19(4), s 67(2)
Dangerous Goods Safety (Explosives) Regulations 2007 (WA), reg 17(1), reg 17(3), reg 18, reg 19, reg 19(4), reg 19(4)(a), reg 19(4)(b), reg 19(5), reg 19(6), reg 20, reg 20(2), reg 20(3), reg 20(4), reg 29(3)
Firearms Act 1973 (WA) s 11(3)(a)
Interpretation Act 1984 (WA), s 18
State Administrative Tribunal Act 2004 (WA), s 27(2), s 29(1)
Result:
Application upheld
Chief Officer's decision set aside
Chief Officer to issue dangerous goods security card and reinstate shotfirer's licence
Category: B
Representation:
Counsel:
Applicant: Ms J Cass
Respondent: Ms R King
Solicitors:
Applicant: S C Nigam & Co
Respondent: State Solicitor for Western Australia
Case(s) referred to in decision(s):
F and Ors v National Crime Authority (1998) 83 FCR 99
Smith v The Queen [2007] WASCA 163
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant was refused his application for a dangerous goods security card on the basis of his criminal history. The dangerous goods security card entitles the holder of the card to access explosives, which the applicant requires in his occupation as a shotfirer. In consequence of the card being refused, the respondent also cancelled the applicant's shotfirer's licence.
The respondent contended that the applicant's convictions gave rise to a concern regarding his suitability to have access to explosives which was sufficient in the exercise of what he regarded to be a very wide discretion to refuse the application. Even if the more limited statutory prescription which governed the ability of the Commissioner of Police to object was the applicable test, requiring the existence of a risk that the applicant might use explosives for criminal purposes, the applicant's criminal record meant that he failed that test.
The Tribunal construed the legislative provisions dealing with the issue of the cards in question. It found that the respondent's discretion, in a case where there was an objection by the Commissioner of Police, was confined to a consideration of whether the objection was properly raised that is, whether the applicant's access to explosives constituted the risk of misuse referred to. It also elaborated on how the statutory test was to be applied, including the level and nature of the risk which must be identified before the discretion to refuse the card should be exercised.
The Tribunal considered the applicant's criminal history, which included threats to kill and with intent to cause a detriment and aggravated stalking (the conduct occurring in 2007), unlawful damage and obstructing public officers (2006) and breaches of community based orders. Taking into account the circumstances of the offences, their age, steps taken to deal with the underlying causes of the behaviour by way of psychological counselling, and the applicant's clean record in terms of use of explosives to which he had access for a number of years, it was not satisfied that the convictions indicated such a public safety risk, nor that the applicant exhibits the degree of criminality required, in order for risk of use of explosives for criminal purposes to be established.
The Tribunal ordered that the respondent issue the applicant with a dangerous goods security card and reinstate his shotfirer's licence.
Introduction
The applicant, Mr Baron, seeks review under s 67(2) of the Dangerous Goods Safety Act 2004 (WA) (DGS Act) of a decision of the Chief Dangerous Goods Officer of the Department of Mines and Petroleum (Chief Officer/respondent) made on 17 December 2009 not to issue him with a dangerous goods security card (DGS card). A DGS card signifies a person's security clearance for the purposes of the Dangerous Goods Safety (Explosives) Regulations 2007 (WA) (DGS(E) Regulations) authorising access to explosives or security risk substances.
Mr Baron had been employed as a shotfirer with a mining company since 2006. On 13 August 2008, Mr Baron applied, by standard form, to the Chief Officer for a DGS card, which had, by then, become a requirement for continuation of his shotfirer's licence.
As required under the DGS(E) Regulations, Mr Baron's application was referred to the Commissioner of Police. The Commissioner of Police has the capacity under the DGS(E) Regulations to object to a person holding a DGS card in certain circumstances. The Commissioner of Police did object in Mr Baron's case, based on his criminal history.
The Chief Officer refused Mr Baron's application for a DGS card in light of the Commissioner of Police's objection. As a result of the refusal of the DGS card, Mr Baron's shotfirer's licence was also taken to be cancelled under the DGS(E) Regulations. Mr Baron seeks review of the Chief Officer's decision in respect of the DGS card application and the cancellation of his shotfirer's licence.
Issues
Based on the written and oral submissions of the parties, it is necessary for me to consider the following issues in determining the application for review:
1)The nature of the discretion vested in the Chief Officer under the DGS(E) Regulations.
2)The nature of the review by the Tribunal, and, in particular, the correct test(s) to be applied in carrying out the review.
3)The application of the test(s) so identified to the facts of Mr Baron's case.
I will consider each issue in turn.
Discretion of the Chief Officer
The DGS(E) Regulations prescribe the process by which a person is to apply for a DGS card, and how such an application is determined. The principal features of that process for the purposes of this application are referred to below, with reference to the relevant provision of the DGS(E) Regulations.
The application must be made to the Chief Officer: Reg 17(1).
The application must be in the approved form, accompanied by relevant documents and the required fee: Reg 17(3).
The application must be referred by the Chief Officer to the Commissioner of Police: Reg 18 DGS(E).
The Commissioner of Police may object to the applicant having a DGS card
… if the Commissioner considers the person ought not to have possession of any explosive or SRS because there is a risk the person
(a)might use it for criminal purposes; or
(b)might supply it to another person who might use it for criminal purposes:
Reg 19(4)
(4)The Commissioner may object to a relevant person having a security card if the Commissioner considers the person ought not to have possession of any explosive or SRS because there is a risk the person
(a)might use it for criminal purposes; or
(b)might supply it to another person who might use it for criminal purposes.
In deciding whether to object, the Commissioner of Police may take into account any of the following matters:
Reg 19(5)
(5)In deciding whether to object under subregulation (4), the Commissioner may take into account any of these matters
(a)any conviction that the relevant person has in this State or elsewhere;
(b)any conviction that a person with whom the relevant person associates has in this State or elsewhere;
(c)any violence restraining order issued under the Restraining Orders Act 1997 against the relevant person;
(d)any order issued outside this State against the relevant person that is substantially similar to a violence restraining order issued under the Restraining Orders Act 1997;
(e)any security assessment (within the meaning given to that term by Part IV of the Australian Security Intelligence Organisation Act 1979 (Commonwealth)) made of the relevant person, or of a person with whom the relevant person associates, that is adverse;
(f)any false or misleading information given by the relevant person in or in respect of his or her application for a security card;
(g)any other matter the Commissioner considers relevant.
Any objection by the Commissioner must be in writing, including the reasons for the objection, and be given to the Chief Officer: Reg 19(6).
The decisionmaking powers of the Chief Officer are set out in reg 20 in the following terms:
…
(2)The Chief Officer must refuse an application if
(a)the Chief Officer is not satisfied the applicant has reached 18 years of age; or
(b)the Chief Officer has not verified the applicant's identity and personal details to the Chief Officer's satisfaction.
(3)The Chief Officer may refuse an application if
(a)the application has been referred to the Commissioner of Police; and
(b)the Commissioner of Police objects under regulation 19 to the applicant having a security card.
(4)Unless subregulation (2) applies, the Chief Officer must grant an application if
(a)the application has been referred to the Commissioner of Police; and
(b)the Commissioner of Police has not objected under regulation 19 to the applicant having a security card.
…
It is necessary to consider the nature of the Chief Officer's discretion under reg 20(3) where, as occurred in this case, the Commissioner of Police has objected under reg 19. This is particularly important in the context of a review by the Tribunal, given that the Tribunal on review has the functions and discretions corresponding to those exercisable by the decisionmaker: s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
When reading reg 20(3) and reg 20(4) together, it can be seen that the ability of the Chief Officer to, in effect, countermand the Commissioner of Police's expression of attitude differs according to whether or not the Commissioner of Police objects. When the Commissioner of Police does not object, the Chief Officer must (subject to the requirements of reg 20(2) regarding an applicant's age and identity being met) grant the application. On the other hand, where the Commissioner of Police does object, the Chief Officer may, but is not bound to, refuse the application.
Before me, the respondent submitted that the Chief Officer's discretion under reg 20(3) is a broad one confined only by the scope and purpose of the legislation under which it is made. The submission went so far as to suggest that the discretion may be wider than the commonly used 'fit and proper person' prescription. Even Mr Baron accepted the discretion was wide, given the lack of any limitation to be found in the subregulation itself.
In my view, the juxtaposition of reg 20(3) and reg 20(4) is critical to the correct construction of the Chief Officer's discretion under reg 20(3). In a case where the Commissioner of Police does not object, that is the end of the matter. The Chief Officer must issue the DGS card, regardless of whether or not he agrees with the objection, and regardless of whether or not there are considerations outside of those which the Commissioner of Police may take into account under reg 19(4), even where any such extraneous factor may have given rise on the mind of the Chief Officer to a concern about the applicant's suitability as a DGC card holder. However, in a case where the Commissioner of Police does object, the Chief Officer retains a discretion whether or not to issue the card.
The fact that the Chief Officer's discretion in the latter case works in favour of an applicant tends to indicate that its exercise is circumscribed by the same considerations which inform the Commissioner of Police in deciding whether or not to object. It suggests that once the Commissioner of Police objects, it is for the Chief Officer to apply his own mind to the facts and circumstances upon which the objection was based in order to determine for himself the question which reg 19(4) poses. It would be a curious result if a discretion favourable to applicants were to operate so as to disallow an application by reference to matters which could not have been brought to bear had no objection been raised. The requirement under reg 19(6) that the Commissioner of Police give written reasons for any objection underlines the primacy of that matter to the Chief Officer's task under reg 29(3).
Given the view I have of the Chief Officer's discretion to refuse an application under reg 20(3), it is necessary to consider the circumstances in which an objection under reg 19(4) of the DGS(E) Regulations ought be raised. The parties contended for different standards to apply.
The respondent submitted that the use of the words 'risk' and 'might' in reg 19(4) DGS(E) Regulations indicates a very low degree of satisfaction is required. Dictionary definitions of 'might' were relied upon, together with the interpretation of the word adopted in the Federal Court decision in F and Ors v National Crime Authority (1998) 83 FCR 99 (F v NCA).
In F v NCA, the Court was concerned with the phrase 'might tend to incriminate' found in a statutory privilege against selfincrimination. It considered that the words 'might', 'may' and 'will' represented an ascending order of threshold. According to O'Loughlin J (at 110):
An answer that 'might' tend to incriminate is at the lowest level meaning that the risk of incrimination need only be a low level possibility to entitle a witness to refuse to answer the question.
The Chief Officer submitted that the nature of the subject matter with which the DGS card is concerned explosives and security risk substances and the words of subregulation 19(4) require a precautionary approach to the grant of a DGS card. The mere possibility that a person might use explosives for a criminal purpose is sufficient to ground an objection. The test in subregulation 19(4) requires a very low degree of satisfaction that there is a risk that a person might do the relevant conduct (relevantly, the use of explosives for a criminal purpose).
It was submitted on behalf of Mr Baron, on the other hand, that there must be a real possibility that the DGS card applicant would engage in the relevant conduct, based on the objective facts and circumstances. It was pointed out that in F v NCA, O'Loughlin J ultimately considered that the practical differences flowing from the use of 'may' as distinct from 'might' were slight.
Mr Baron relied upon a passage from the decision of the Western Australian Court of Appeal in Smith v The Queen [2007] WASCA 163 at [69], in respect of a similar provision concerning the privilege against selfincrimination to that in F v NCA:
The word 'might', in the context of 'might tend to incriminate', within s 68(2)(a), and 'might in fact tend to incriminate', within s 68(2)(b), connotes that, at least, a real possibility exists, based on objective facts and circumstances, that:
(a)the statement which the person is to make, for the purposes of par (a); and
(b)the statement which the person has in fact made, for the purposes of par (b),
may tend to incriminate the person. Compare F v National Crime Authority …
There is no doubt, as submitted by the respondent, and supported by the long title of the DGS Act under which the DGS(E) Regulations are made and the second reading speech for the Bill which became the DGS Act, that the DGS Act and the DGS(E) Regulations are concerned with the safe use of explosives and other dangerous materials. However, it remains necessary to interpret the relevant legislative provisions which limit security clearance by way of the issue of DGS cards in order to ascertain their intention.
Generally speaking, the intention of the draftsman of legislation, and in this case delegated legislation, is to be derived from the ordinary and natural meaning of the words used. Where the words used give rise to an ambiguity or absurdity, then a meaning which better accords with the purpose of the legislation or the particular provision might be adopted, either under the common law concepts of the 'purposive approach' and 'golden rule' or under the provision to similar effect of s 18 of the Interpretation Act 1984 (WA).
In the end, the different approaches urged by the respective parties are largely matters of emphasis. The Chief Officer focuses upon the obvious dangers of explosives and other dangerous goods falling into the wrong hands, and promotes an interpretation of the right of objection which would reduce that possibility to a minimum. Mr Baron emphasises the potential for a significant impact on the livelihood of persons seeking the permission with which the provisions are concerned as indicating that someone should be denied the permission which the DGS card bestows only where the evidence points to a real risk of misuse.
Clearly, a balancing of public risk against individual rights is involved. Although the use of 'risk' and 'might' in the same sentence indicates a relatively low threshold, some discrimination is required to avoid the risk factor overwhelming the outcome to the point where mere theoretical or speculative risks result in refusal to issue a DGS card.
Having considered the arguments of both parties, the terms of the statute and the regulations, the extrinsic material to which the respondent referred and the case law cited by the parties, I am inclined to the view that in order for the Commissioner of Police to object to a particular applicant for a DGS card, and for the Chief Officer to refuse an application where the Commissioner of Police has objected, they must be satisfied that a real, as opposed to a theoretical or fanciful, possibility exists that the applicant would engage in the conduct referred to in reg 19(4)(a) or reg 19(4)(b). Whether this is so is to be ascertained by all relevant facts known about an applicant, bearing in mind both the public interest in keeping explosives away from those with whom they are not to be trusted, and the individual's right to engage in occupations for which he or she is otherwise suited.
In a case such as this, where criminal convictions are relied upon as a basis for a refusal decision, it will be necessary to assess the extent to which the criminal conduct gives rise to the relevant risk. The list of matters which may be taken into account in deciding whether to object to a person having a DGS card in reg 19(5) of the DGS(G) Regulations is instructive. It might be compared with the position, albeit under a regime which is different from the present one in some important respects, under the Firearms Act 1973 (WA) (Firearms Act). There, the Commissioner of Police is deemed to have sufficient ground for forming an opinion that a person is not a fit and proper person to hold a licence under the Firearms Act if satisfied that within a five year period prior to making a licence application:
(i)the person was convicted of an offence involving assault with a weapon;
(ii)the person was convicted of an offence involving violence;
(iii)the person was convicted of any offence against this Act; or
(iv)a violence restraining order was made against the person,
whether in this State or in any other place:
Firearms Act s 11(3)(a)
Whereas the Firearms Act provision expressly refers to convictions involving assault with a weapon and violence, the reg 19(5) list includes any conviction of the person concerned. This tends to support the argument advanced by the respondent that a more general disregard for the law resulting in criminal convictions of any kind may give rise to an adverse risk assessment under reg 19(4). Other matters listed in reg 19(5) any violence restraining order, any adverse security assessment have counterparts in the Firearms Act, and are clearly more safetyspecific. The list also includes the giving of any false or misleading information in or in respect of the application for the DGS card, which is another example of impropriety outside a strict public safety paradigm impacting upon the question of risk.
It is also important to consider the nature of the risk to be assessed under reg 19(4). The risk is that the person might use explosives to which he or she would have access as a DGS card holder for criminal purposes (or might supply them to another person who might do so). In my view, this is suggestive of a degree of heightened criminality which might permit illegal use of explosives, for which support by way of a solid evidentiary basis must be provided. The Chief Officer submitted that the link between what he described as 'anti‑social conduct' and explosives is strong, but provided no evidence to support such a link. In my view, the submission begs the very question to be answered, namely, whether the past criminal conduct gives rise to a risk of the criminal misuse of explosives.
Flowing from the above discussion, I will consider Mr Baron's criminal record in order to determine whether it represents a risk of the reg 19(4) kind. Without wishing to set out an exhaustive list of considerations which might be relevant in other matters, I will do so having regard to both the existence of any indicators of a capacity to compromise the public safety arising from his past conduct, and any other evidence of a generally unsatisfactory disposition which would justify refusing him permission to access explosives in the course of his employment.
Nature of Tribunal review
Given the construction I have placed on the provisions relevant to the exercise by the Chief Officer of his discretion as described, the task for the Tribunal on review of a decision of the Chief Officer refusing to issue a DGS card is relatively straightforward. It is to consider whether or not the Chief Officer, in light of the objective facts and circumstances, should have concluded that allowing Mr Baron access to explosives would give rise to the risk referred to in reg 19(4). If I find that the Chief Officer should have so concluded, then the decision should be affirmed. If I arrive at the contrary view, the decision must be set aside, the DGS card granted, and Mr Baron's shotfirer's licence restored.
Application of test to Mr Baron's criminal history
The criminal history
The letter from the Commissioner of Police to the Chief Officer comprising the former's notice of objection provided the following reasons for the objection, commencing with a recitation of Mr Baron's criminal history:
•16/JUL/1993: Stealing ‑ $70
•24/JAN/1994: Stealing ‑ $100
Resist Arrest ‑ $100
Assault Public Officer ‑ $200
•14/JUL/1995: Disorderly Creating a Disturbance ‑ $100
•22/MAY/2008: Threaten to Kill (2 counts) – Community Based Order: 12 months (supervision)
Threat with Intent to Cause a Detriment – Community Based Order: 12 months (supervision)
Stealing – Community Based Order: 12 months (supervision)
Criminal Damage by Fire – Plea of Guilty: In full satisfaction of indictment
Aggravated Stalking With Intent to Intimidate ‑ $750
•01/JUL/2008: Unlawful Damage ‑ $300
Obstructing Public Officers ‑ $400
•29/DEC/2008: Breach of Community Based Order (Order of 22/MAY/2008) – Community Based Order to continue, $650 for breach
The applicant has shown offending behaviour of a petty criminal, antisocial and violent nature over a 15 year period. A significant gap between offending has been noted however the serious nature of the applicant's most recent offences is of a significant concern due to the nature of the matters.
It would be my position when considering these factors holistically, at this point in time there is an intrinsic risk to the community. That being if Mr Baron was to remain or be licensed within the inquiry in which he had access to Dangerous Goods and or Explosives.
In determining whether the relevant test under reg 19(4) is satisfied, it is necessary to consider the various offences, including the circumstances of their commission.
One of the listed convictions is accepted to have been in error, namely, that of criminal damage by fire. It would appear that a charge against Mr Baron in respect of such an offence was withdrawn by the prosecution. In addition to his criminal convictions, Mr Baron committed a number of traffic offences between 1993 and 1996, including two of driving without a driver's licence and driving under the influence of alcohol. He was convicted again of driving under the influence on 2 February 2006.
The convictions spanning the years 1993 1995 are conceded by the Chief Officer to be of limited relevance.
The convictions recorded for 1 July 2008 arose from an incident at a hotel on 1 July 2006. According to the statement of material facts relating to the incident, Mr Baron became enraged upon realising that the front exit door was closed and locked and there were no fire exit signs attached. He believed that the door should be opened for safety reasons. He proceeded to remonstrate with security staff and tried to unlock the door. On failing to open the door, he kicked the lower glass panel of the door, smashing it. On being requested by management of the hotel to leave, Mr Baron continued to remonstrate with security and management. On the police arriving, Mr Baron refused a request to accompany them to the police station and began to insult the officers. Upon being informed he was under arrest and that he was coming to the station, Mr Baron began to run away but was apprehended by another officer. Mr Baron shaped up to fight the officer but was restrained and escorted to the police vehicle. He continued to struggle violently whilst yelling obscenities at police, when he was placed in handcuffs. During processing at the station, he threw his boots in the direction of police, flooded the holding cell with tap water and had to be contained within a padded cell for his safety.
Mr Baron was also convicted on 1 July 2008 for breach of bail undertaking on 22 August 2006, for which he received no punishment.
The cluster of convictions recorded on 22 May 2008 arose from a series of events which occurred between 22 April 2007 and 25 April 2007. Mr Baron sent a series of text messages to the mobile phone of his former partner (victim). Mr Baron had been in a relationship with the victim for approximately 10 years. According to Mr Baron, the relationship ended amicably, and about six months after the relationship ended, he moved from Kununurra (where the couple had been living) to Melbourne, before returning after about three months. He resided a short distance from the victim and became aware that she was in a new relationship. Over the period of four days in April 2007, he sent a number of messages, described by the respondent as varying 'from being generally insulting and offensive to threatening to harm the victim and her new boyfriend, to what appears to be threatening self harm', a description with which, having regard to the texts themselves, is accurate. Of the threatening texts, two comprised threats to kill the victim. The abusive messages escalated during the four day period, until 25 April 2007, when 12 messages were sent. Fearing for her safety, the victim left her premises and stayed at a friend's house. She also obtained a violence restraining order against Mr Baron.
On 25 April 2007, prior to the victim's departure, Mr Baron went to her house, where he located the victim in her rear yard. As the victim went inside to collect compact discs belonging to Mr Baron, he picked up a mobile telephone on a table in the rear yard which belonged to the victim's current partner. On leaving the premises he destroyed the mobile telephone and threw it in a nearby yard. He admitted to the police that he knew the mobile telephone belonged to the victim's new boyfriend and that he wanted to destroy it.
The four concurrent Community Based Orders (CBO) that Mr Baron received required that he perform 100 hours community work over a 12 month period. On 29 December 2008, Mr Baron was convicted on four charges of having breached the CBO.
On 16 April 2009, Mr Baron applied to the District Court to cancel the CBO. At that stage he had completed 12 hours only of community service work, and was concerned that he would be unable to complete the 100 hours required due to his changed work schedule. The Judge ordered that the CBO continue and extended its duration by six months.
On 12 August 2009, Mr Baron was 'breached' again for completing only 36 hours community work. On 2 March 2010 he was resentenced in respect of the offences by way of a total fine of $4,250.
The details which I have summarised in relation to Mr Baron's convictions rely heavily upon the relevant statements of material facts which were tendered into evidence without objection. There are aspects of the circumstances of some of the offences upon which either Mr Baron or the Chief Officer relies to support their respective positions. I will refer briefly to the matters relied upon by Mr Baron first, followed by aspects upon which the Chief Officer relies.
According to Mr Baron, the offences in the hotel on 1 July 2006 occurred when he became upset upon arrival of the police at the hotel that the police ignored his concerns relating to the blockage of the fire exit. Mr Baron also indicated that the offences occurred at an emotionally difficult time for him following the then recent termination of his longterm relationship.
In relation to the events in April 2007, Mr Baron said that on returning from Melbourne to Kununurra, he became upset when he learnt his former partner had had a number of relationships since theirs had finished and heard that she had a new boyfriend. It was submitted that the period of offending was relatively short; there were no actual acts of violence towards the victims; the stalking and threat to kill charges were the result of text messages sent by Mr Baron to the victim, creating a measure of distance between them; and the offending did not involve the use of any kind of weapon, much less explosives. Further, Mr Baron, appreciating that his behaviour was inappropriate, presented for psychological counselling on 10 May 2007, 17 May 2007 and 7 November 2007. A report of the psychologist tendered to the court hearing Mr Baron's criminal charges indicated that, at least by the third consultation, Mr Baron had followed self‑care strategies recommended at his initial counselling session such as curtailing his alcohol intake, and that he appeared to be coping and of a stable mental state.
With reference to his conviction for breach of the CBO on 29 December 2008, Mr Baron said that immediately after the CBO was made, he obtained advice from the Community Justice Service as a result of which he thought it was open to complete all of the hours by working full time in the last few weeks. In fact, the terms of the CBO required completion of the required hours throughout the 12 month period.
Mr Baron's explanation for his later CBO breaches was that he had by then relocated to Perth, and he found it difficult to complete all of the hours required due to his work commitments and the availability of work during his time off. He also referred to his proactivity in making the application to the District Court; the fact that he made significant attempts to complete the order, having completed 36 hours work; and that he was breached at a relatively early stage.
According to the Chief Officer, Mr Baron's offending in 2006 and 2007, at a time when he was a mature adult in his early thirties, revealed opportunistic, impulsive, and strongly anti‑social and violent tendencies. It was said that his most recent convictions reflect his earlier ones, albeit at a more serious level of offending.
The Chief Officer submitted that the 2006 offences reflected a lack of respect for private property and of persons in authority and the law generally. The 2007 behaviour towards Mr Baron's former partner was threatening and insulting. It was also intended to cause fear, and succeeded in achieving this objective, as evidenced by the victim taking out a violence restraining order.
Further, according to the Chief Officer's submissions, the breach of bail and breaches of the CBO are indicative of a failure to take proper care in relation to the need to comply with the terms of court orders. They signify Mr Baron's failure to properly prioritise that compliance, indicating a lack of respect for the court and for the punishment imposed for his serious offending.
Are Mr Baron's convictions sufficient to conclude that he presents a risk of the type referred to in Reg 19(4) of the DGS(E) Regulations?
The Chief Officer submitted that Mr Baron does present such a risk, having regard to his criminal history. The Chief Officer urged me to look at the most serious offences, being those committed in April 2007 (and, to a lesser extent, the offences in 2006), and to conclude that an insufficient period has elapsed to allow a conclusion that there was no risk that Mr Baron might use explosives for a criminal purpose. Given his antecedents, the possibility that Mr Baron might use explosives, it was suggested, is certainly not speculative.
Bearing in mind the nature of the risk against which Mr Baron's conduct is to be judged, it is entirely appropriate that the type of investigation into his conduct undertaken by the Commissioner of Police, the Chief Officer, and now this Tribunal should have occurred. There is no doubt, as Mr Baron himself has admitted, that his behaviour at different times has been entirely inappropriate. At least some of the negative descriptions ascribed to that behaviour by the Chief Officer are deserved. This has not been an easy decision to reach given the number and nature of the offences. However, in the end, the correct and preferable decision (see SAT Act s 27(2)) is, in my opinion, clear, on the correct application of the statutory test.
Leaving aside the CBO breaches, Mr Baron's most recent offences occurred three years ago. Although serious, they were linked to his then recent breakdown in a longterm domestic relationship. He acknowledged his wrongdoing, and more importantly, did something about it, by obtaining professional psychological counselling. His threats were abusive and humiliating, but were not accompanied by actual violence, either when Mr Baron physically presented at the victim's residence or at any other time. There is no suggestion that he ever attempted to utilise any explosives or weapon at the time. Indeed, Mr Baron's employment as a shotfirer allowed him access to explosives from 2006 until the refusal decision in December 2009, but there is no suggestion of any misuse of explosives throughout that period. From the perspective of any risk to public safety arising from the 2007 offences, I am unable to find that a real possibility exists that Mr Baron would, in 2010 or thereafter, use explosives to which he has access for criminal purposes. Whilst in no way wishing to condone the behaviour, it seems to me that it is properly to be confined to its time and circumstances.
The offences committed in July 2006 represented an overreaction to the perceived wrongs of figures of authority the security and management staff at the hotel and the police. They were dealt with by the Magistrate by imposing a $700 fine. They do give rise to a question regarding Mr Baron's attitude to authority figures, although there has been no repeat of conduct exhibiting this feature. In addition, Mr Baron's failure to comply with the CBO signifies a regrettable failure to give appropriate attention to compliance with court orders which were the legally sanctioned penalties for his criminal acts. But I am unable to accept either the July 2006 offences or the CBO breaches as proof of a degree of criminality which might induce Mr Baron to do what he has never previously done and use explosives for criminal purposes.
Viewed collectively, Mr Baron's convictions indicate a past capacity to respond to situations in ways which were foolish and without justification. Although it is not possible to rule out entirely a return to such behaviour in the future, the indications are strongly against it. Mr Baron has demonstrated insight into his past wrongdoing, demonstrated most forcefully by his submitting to counselling. He has referred to having strong family and social support. Moreover, his record does not demonstrate any susceptibility to the possible use of explosives for any purpose other than those associated with his employment as a shotfirer.
In all the circumstances, I have come to the conclusion that a resumption of Mr Baron's exposure to explosives would not represent a risk of the type that reg 19 of the DGS(E) Regulations is designed to avoid, and therefore that he should be issued with a dangerous goods security card. That being so, he should also have his shotfirer's licence reinstated.
Orders
The Tribunal orders:
1.The decision of the respondent refusing the applicant's application for a dangerous goods security card is set aside.
2.The respondent shall as soon as practicable issue a dangerous goods security card to the applicant.
3.The respondent shall cause a shotfirer's licence to be reissued to the applicant on the same terms and conditions as his previous shotfirer's licence.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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