Britten and Secretary, Attorney-General's Department

[2008] AATA 735

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 735

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2372

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFREY BRITTEN

Applicant

And SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date22 August 2008  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............Signed.................

Deputy President

CATCHWORDS

CIVIL AVIATION – requirements for issuing an Aviation Security Identification Card – issuing body needs to apply to the Secretary of the Attorney General’s Department for a background check – review of the decision of the Secretary to advise the issuer that the applicant has a qualified criminal record – applicant has been convicted twice or more of aviation-security-relevant offences – decision under review affirmed

WORDS AND PHRASES – “convicted twice or more”

AusCheck Act 2007 (Cth)

AusCheck Regulations 2007 (Cth)

Aviation Transport Security Act 2004 (Cth)

Aviation Transport Security Regulations 2005 (Cth) – regs 6.01, 6.28,

REASONS FOR DECISION

22 August 2008 Deputy President P E Hack SC    

1.The Aviation Transport Security Act 2004 (Cth) imposes certain security clearance requirements on those who seek to work in civil aviation related activities. One of those requirements is that the person obtains an Aviation Security Identification Card (ASIC). The applicant, Mr Jeffrey Britten, is one such person, however he has fallen foul of the security clearance requirements because it is said that he has what the legislation describes as a “qualified criminal record”. Mr Britten seeks a review of the decision of the respondent, the Secretary of the Attorney-General’s Department, to advise his employer that he has such a record.

2.The statutory setting needs to be briefly noticed. Only an “issuing body” may issue an ASIC and it may only do so if the requirements of reg 6.28 of the Aviation Transport Security Regulations 2005 (Cth) are satisfied. Before issuing an ASIC an issuing body must apply to the Secretary for a background check, that is, as assessment under the scheme created by the AusCheck Act 2007 (Cth). Where, as occurred in the present case, an issuing body is told by the Secretary that a person has a qualified criminal record, the ASIC issued by the issuing body must be made subject to a condition that a further background check be conducted within 12 months of the first.

3.By virtue of reg 6.01(3) of the Aviation Transport Security Regulations a person has a qualified criminal record if the person:

“(a)has been convicted twice or more of aviation‑security‑relevant offences; and

(b)did not receive a sentence of imprisonment for any of those convictions; and

(c)did not receive any of those convictions within the 12 months ending on the date when the relevant background check was conducted.”

4.The expression “aviation-security-relevant offence” is defined in reg 6.01(1) of the Aviation Transport Security Regulations as meaning, so far as is presently relevant:

“4 An offence constituted by the production, possession, supply, import or export of a substance that is:
           (a)      a narcotic substance within the meaning of the Customs                    Act 1901; or
           (b)      a drug, within the meaning of:

(i)        regulation 10 of the Customs (Prohibited Exports) Regulations 1958; or

(ii)       regulation 5 of the Customs (Prohibited Imports)   Regulations 1956.”

5.Finally it is necessary to notice that “conviction” has the meaning given by s 85ZM(1) of the Crimes Act 1914 (Cth) which defines the term in this way:

“(1)For the purposes of this Part, a person shall be taken to have been convicted of an offence if:

(a)the person has been convicted, whether summarily or on indictment, of the offence;

(b)the person has been charged with, and found guilty of, the offence but discharged without conviction; or

(c)the person has not been found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence.”

6.Mr Britten appeared in the Magistrates’ Court at Townsville on 29 September 2003 and pleaded guilty to three offences – possession of a dangerous drug[1], production of a dangerous drug[2] and possession of things used for the commission of a crime[3]. He was fined $2,000, the court using the power in s 49 of the Penalties and Sentences Act 1992 (Qld) to impose a single fine. Mr Britten says, and the Secretary does not dispute, that these matters arose out of essentially the same course of conduct. He grew cannabis, i.e. he produced a dangerous drug; he was in possession of some of it, i.e. he was in possession of a dangerous drug; and he had a watering can used to cultivate the plants, i.e. possession of a thing used in the commission of a crime.

[1] Presumably an offence against s 9 of the Drugs Misuse Act 1986 (Qld).

[2]        Presumably an offence against s 8 of the same Act.

[3]        Presumably an offence against s 10 of the same Act.

7.The offences of possession and production undoubtedly come within the definition of an “aviation-security-relevant offence”. The issue is whether Mr Britten “has been convicted twice or more of aviation-security-relevant offences”. The Secretary took the view that he had been and that Mr Britten had a “qualified criminal record”.

8.The Secretary’s advice to the issuing body that Mr Britten had a qualified criminal record constituted an “unfavourable criminal history advice” as that expression is used in the AusCheck Regulations 2007 (Cth) and, in accordance with reg 12 of those Regulations, Mr Britten seeks a review of the decision to provide that advice.

9.The argument for Mr Britten is that he has not been convicted twice but that he has three convictions arising out of a single criminal act. He says:

“I have only been convicted ONCE of these three offences, all related to the same criminal act, not TWICE, which would be the minimum required to verify a pattern of criminality and a qualified criminal record.”

Mr Britten points out, correctly, that the regulation does not use the expression “two or more offences” but focuses upon the fact of a conviction.

10.Whilst I have a great deal of sympathy for the position that Mr Britten finds himself in I am unable to agree with his argument. Whilst the language of the regulation is certainly unattractive and could have been expressed with greater clarity, Mr Britten has been convicted twice of aviation-security-relevant offences. Each occasion that Mr Britten was found guilty, or a plea of guilty was accepted, by a court was a conviction. It is not to the point that the convictions all arose out of the same set of facts or were dealt with on a single occasion. The conviction is constituted by the finding or plea of guilty not the occasion of the appearance in the court.

11.Mr Britten also focuses upon the use of the expression “pattern of criminality”, an expression used in correspondence to him from the Department. The expression has no basis in the legislation and ought not to have been used as it is likely only to encourage an erroneous view about the requirements of the legislation as it has here.

12.It follows that I would affirm the decision under review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ....................Signed.................................................
  Jacqueline Woods, Associate

Date of Hearing  Hearing on the papers
Date of Decision  22 August 2008
Solicitor for the Respondent     Australian Government Solicitor