COMMERCIAL AGENTS and STOVELD
[2005] WASAT 59
•12 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996
CITATION: COMMERCIAL AGENTS and STOVELD [2005] WASAT 59
MEMBER: DR B DE VILLIERS (MEMBER)
MR T J CAREY (MEMBER)
MR R SCAIFE (SESSIONAL MEMBER)
HEARD: PRIMARY HEARING: 5 APRIL 2005
DIRECTIONS HEARING: 24 FEBRUARY 2005
DELIVERED : 12 APRIL 2005
FILE NO/S: VR 129 of 2005
BETWEEN: COMMERCIAL AGENTS
Applicant
AND
ERICK RICHARD STOVELD
Respondent
Catchwords:
Crowd control - Lawful excuse - Revocation of licence - Failure to undergo urine test
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 35, s 46, s 47, s 51, s 67, s 76, s 80, s 81, s 88
State Administrative Tribunal Act 2004 (WA), s 7, s 11, s 15(1), s 98
Result:
The crowd controller licence of the respondent is revoked pursuant to s 67(2) Security and Related Activities (Control) Act 1996
Category: B
Representation:
Counsel:
Applicant: Sgt S Bagley
Respondent: Self-represented
Solicitors:
Applicant:
Respondent:
Case(s) referred to in decision(s):
Hancock v Birsa (1972) WAR 177 at 181
Case(s) also cited:
Nil
DR B DE VILLIERS (MEMBER), MR T J CAREY (MEMBER), MR R SCAIFE (SESSIONAL MEMBER):
REASONS FOR DECISION
Issue
The applicant alleges there is a proper cause for disciplinary action under s 67(1) of the Security and Related Activities (Control) Act 1996 ("the Act") on the basis that the respondent failed to comply with a provision of the Act (s 67(1a)(e)(i)) by failing to submit himself for a urine test as directed in terms of s 80(1) without having a lawful excuse as provided for in s 81(1)(a). The applicant holds that the Tribunal must revoke the respondent's licence as crowd controller under 67 (2). The respondent contends he had a lawful excuse due to business reasons and the limited notice given. He also objects to the requirement for a urine test by reason of him being the victim of a sexual molestation during childhood.
Applicant and Respondent
The applicant is Commercial Agents represented by Sgt Simon BAGLEY from 297 Hay Street, East Perth, WA 6004.
The respondent is Eric Richard STOVELD, PO Box 445, Margaret River, WA 6285.
Application lodged with State Administrative Tribunal
The application was lodged on 2 February 2005.
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). The SAT has original jurisdiction to hear the matter in terms of s 15(1) SAT Act and s 67(1) of the Act.
The Tribunal was constituted by three persons namely Mrrs B De Villiers, T Carey and R Scaife as is required when a matter dealing with a vocational regulatory body is considered (s 11(4) SAT Act).
Orders Sought
The applicant is seeking an order under s 67(1) to revoke the respondent's crowd controller licence.
Security and Related Activities (Control) Act 1996
The relevant provisions of the Act are as follows:
The long title of the Act sets out the aims of the Act as providing for the licensing of persons engaged in work relating to property protection, investigation or surveillance and crowd control.
Section 35 defines the duties of a "crowd controller" as a person who at a private or public event is responsible for controlling or monitoring the behaviour of persons, screening persons seeking entry, removing persons for behavioural reasons, or any other prescribed function.
Sections 46 and 47 set out the process of applying for a licence and the material required in support of an application. Sections 51 and 88 determine that it is an offence to provide false or misleading information in the application or renewal of a licence and an individual committing such an offence is liable to a fine not exceeding $10 000.
Section 67(1) provides that the Commissioner may allege that there is a proper cause for disciplinary action on the basis that the licensee has met the requirements of s 67(1a). Section 67(1a)(e)(i) provides that disciplinary action may be taken if a licensee has failed to comply with a provision of the Act. Section 67(2) empowers the Tribunal in a proceeding commenced by an allegation under s 67(1) to revoke a licence if it is satisfied that there is a proper cause for disciplinary action.
Section 80 enables the Commissioner or a police officer delegated by him to "at any time" direct the holder of a crowd controller licence to undergo a blood or urine test. Section 80(3) provides that such a direction must be in writing, specify the date, time and place of the test, and indicate the nature of the sample to be given.
Section 81 empowers a licensing officer to revoke a crowd controller licence if the person fails to comply with a direction under s 80 "without a lawful excuse".
Direction hearing and primary hearing
A directions hearing took place on 24 February 2005 at which interim orders were made in regard to the preparation of the application for hearing. The matter was set down for hearing on 5 April 2005.
At the primary hearing Member De Villiers explained to the parties the nature of proceedings as set out above. He invited them to provide the Tribunal with any evidence or information that may be of assistance in making a decision. He confirmed that the Tribunal had received and read the written submissions and attachments that accompanied the submissions. He drew the attention of parties to s 98 SAT Act which determines that it is an offence to give false or misleading information.
He subsequently invited both parties to give evidence, call witnesses, make further submissions and to put questions to each other and/or to witnesses.
The applicant called one witness, a phlebotomist (sample collector) to testify about the taking of the urine samples. The respondent did not call any witnesses.
Applicant submissions
The following is a summary of the submissions made by the applicant:
(a)The Act enables in s 80(1) the Commissioner to direct a crowd controller "at any time" to attend a place for a urine or blood sample to be taken. The purpose of s 80(1) is to test holders of a licence unexpectedly in order to ensure they are not using a substance in breach of the Act. This purpose would be defeated if substantial notice of a test was given. There are concerns by the authorities of possible links between drug abuse and violent behaviour and the police have to be vigilant particularly during busy periods.
(b)The local police officer went out of his way to find alternative time on the Saturday 27 November 2004 for the respondent to undergo the test. This was confirmed in evidence by Ms Small, the phlebotomist, who had been available the entire day to take the samples until 6 or 7 pm.
(c)Some other members of the respondent's staff submitted to the test as did his business partner. The test usually takes about 10‑15 minutes to complete.
(d)The respondent failed to attend a test as directed in accordance with s 80 without any lawful excuse and as a consequence disciplinary action by the revocation of his crown controller licence was warranted. He would be able to continue his business as he would retain his other two licences being security officer and crowd control agent licences.
Respondent Submission
The following is a summary of the submissions made by the respondent:
(a)The work undertaken in security is the sole income of the respondent. He manages a successful security company in Margaret River and is held in high regard by all those who he does business with. He had submitted himself to a similar test in March 2003 and the result was negative. The experience of providing a sample was however very embarrassing.
(b)It was a serious error of judgement to have refused to submit to the test and he realises in hindsight that it was the wrong thing to do. He never contemplated the consequences could be as serious as losing his licence and he was naïve in his actions. He has been in business for approximately 8 years. He holds a crowd control agent licence, security officer licence and crowd controller licence.
(c)He was never consulted about the content of the Act, he never voted for it nor supported it, the Act has a "lot of holes" in it and there are many things in the Act that he does not agree with.
(d)He functions within the framework of the law. The law is "basically common sense".
(e)The notice was served at an inappropriate time (at 10.15 pm on 26 November 2004) and location (at a public function). The way in which the notice was served caused him serious embarrassment. It was unreasonable for the police to require him to undergo the test the next day, Saturday 27 November 2004. It was "schoolies" weekend which is the second busiest time of the year for his business. He had a "duty of care" towards his clients and the "schoolies" and as a consequence he could not attend to other matters. He had 4 venues to tend to and had to travel between these to ensure staff were properly supervised. In his experience the test would take at least an hour to complete and he did not have such time available. Overall the police acted in an unreasonable way by not taking into account his contractual obligations and business considerations.
(f)Due to a childhood experience when he was abused, he found it unacceptable for a urine test to be conducted in the way it was by a person being present while urine is passed. He would not have objected to a blood test.
(g)"Lawful excuse" was open to a number of different interpretations but should encompass his reasons for not attending the test. Regardless, he accepted that he was wrong and submitted an apology. Given that this is his sole income and in the light of his track record he deserves another chance.
(h)Letters of reference were tendered in regard to the character and business credentials of the respondent.
Consideration
The Tribunal has original jurisdiction to consider a matter brought to it in terms of s 76(1). The Tribunal deals with the matter in accordance with the SAT Act (s 15) and the enabling Act. The applicant therefore must satisfy the Tribunal (s 67(2)) that there is a proper cause for disciplinary action in that the respondent failed to comply with a provision of the Act.
In considering the application the Tribunal has taken into account the written and oral evidence and submissions made by the parties. The Tribunal has also taken account of the letters of reference submitted by the respondent. From the letters it would seem that he is held in high regard by those whom he does business with.
The Act enables the Commissioner to "at any time direct" the holder of a crowd controller licence to undergo a blood or urine test (s 80(1)). Although the power to make such a direction seems at face value to be unlimited, s 81(1)(a) anticipates that where a person has a "lawful excuse" he will not be required to comply with such directive. The question in this matter is therefore if the excuse offered by the respondent was "lawful".
The meaning attached to "lawful" depends on the circumstances of each case. In general one would approach "lawful" as a reason that is supported by law. As the Oxford Dictionary (Moore, B., (ed.) 2004) puts it: "conforming with or recognised by law". The test for lawful excuse is described by Burt J in Hancock v Birsa (1972) WAR 177 at 181 as whether in the "judgment of the court" a person's actions were "excusable in all the circumstances of the case" bearing in mind the nature of the offence and the possible punishment.
The Tribunal notes the explanation offered by the respondent for his non-compliance with the direction to undergo a urine test, but we are not satisfied that the respondent could not have attended the test regardless of his busy program. From the respondent's evidence it appears that in addition to his busy program, he has several reservations about the merits of Act, the obligation to undergo urine drug testing and the way in which the police exercised their powers in terms of s 80 of the Act. Some of the comments made by the respondent in regard to the Act bordered on the irresponsible for a licence holder subject to regulation by the Act.
The Act anticipates that a crowd controller may for a "lawful reason" be unable to attend a test as directed by a notice under s 80. However applying the test as set down in Hancock (supra) above, we have concluded that if all the circumstances are taken into account, including the nature of the offence, the public interest and the consequences of a breach of the Act, no lawful excuse has been given by the respondent. The non‑compliance by the respondent with the direction by the delegated officer was serious and justifies disciplinary action of the nature requested by the applicant.
Finding
The Tribunal finds that the respondent failed to comply with a direction given under s 80(1) without a lawful excuse. The Tribunal is therefore satisfied that a proper cause exists for disciplinary action in the form of a revocation of the respondent's crowd controller licence.
Order
The crowd controller licence of the respondent is revoked pursuant to s 67(2) Security and Related Activities (Control) Act 1996.
I certify that this and the preceding seven pages comprise the reasons for decision of the State Administrative Tribunal.
Dr B De Villiers
Member
0
2