COMMISSIONER OF POLICE and CORBETT - [2012] WASAT 117

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)

CITATION: COMMISSIONER OF POLICE and CORBETT [2012] WASAT 117

MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)

HEARD: 21 MARCH 2012

DELIVERED : 5 JUNE 2012

FILE NO/S: VR 191 of 2011

BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
BENJIMAN ROBERT CORBETT
Respondent

Catchwords:

Noncomplying sample Delivered 'promptly' Revocation of a crowd controller's licence

Legislation:

Health Act 1911 (WA)
Poisons Act 1964 (WA), s 22A
Security and Related Activities (Control) Act 1996 (WA), s 9A, s 46(1), s 46(2), s 80, s 81, s 83, s 92, s 94, Pt 9
Security and Related Activities (Control) Regulations 1997 (WA), reg 46(1), reg 46(2), reg 47(2), reg 48(1), reg 48(2), reg 48(2)(a), reg 50, reg 51(1), reg 50(1a), reg 53
State Administrative Tribunal Act 2004 (WA), s 9, s 14, s 17(1), s 27, s 27(1), s 29(3)(c)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Senior Constable S Bagley (Acting as Agent)
Respondent: Self-represented

Solicitors:

Applicant: Commissioner of Police
Respondent: Self-represented

Case(s) referred to in decision(s):

Commissioner for Railways (NSW) v Young (1962) 106 CLR 535

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Commissioner of Police's delegate made a decision to revoke Mr Benjiman Robert Corbett's crowd controller's licence upon the basis of an analysts' certificate, which asserted that the sample of urine taken from Mr Corbett contained a measurable quantity of cannabis. The Commissioner of Police's delegate purported to exercise the power conferred on the Commissioner of Police by s 81(1)(b) of the Security and Related Activities (Control) Act 1996 (WA). The Tribunal found, on the evidence before it, that the sample taken from Mr Corbett had not been 'taken' and 'dealt with' in accordance with the Security and Related Activities (Control) Regulations 1997 (WA) made pursuant to s 83 of the Security and Related Activities (Control) Act because:
a)In the course of taking the sample from Mr Corbett, the Commissioner of Police's delegate had not complied with the regulatory sampling and testing requirements of sealing and identifying the sample in the package before delivery of the same for analysis.
b)The Commissioner of Police's delegate failed to 'deliver promptly' the sample to the Chemistry Centre in Bentley and, instead, stored the sample, along with a number of other samples, in a refrigerator at the Licensing Enforcement Services Office for nine days before delivery of the sample to the Chemistry Centre in Bentley without any explanation or justification.
The Tribunal held that, as a matter of statutory construction, a noncomplying sample for the purposes of the exercise of the revocation power conferred by s 81(1)(b) of the Security and Related Activities (Control) Act is a sample that is 'taken' and 'dealt with' in accordance with the Regulations, and particularly Pt 7 thereof that returns a measurable quantity of a prohibited drug as provided for by the Security and Related Activities (Control) Regulations.
If a sample is not taken or dealt with in accordance with Pt 7 of the Regulations, the sample cannot meet the definition of 'noncomplying sample', so as to empower the Commissioner of Police to revoke a crowd controller's licence pursuant to s 81(1)(b) of the Security and Related Activities (Control) Act. The Tribunal also concluded that s 81(2c) of the Security and Related Activities (Control) Act compelled the Commissioner of Police to apply to the Tribunal in respect of his decision to revoke a crowd controller's licence pursuant to s 81(1)(b) of the Security and Related Activities (Control) Act. As a consequence, the Tribunal was implicitly required to review the Commissioner of Police's delegate's decision and was required to determine the same in accordance with s 27 of the State Administrative Tribunal Act 2004 (WA), and with s 9 of the State Administrative Tribunal Act objectives in mind.
The review could not be affected by a failure of Mr Corbett to attend the hearing or directions hearings.
The Tribunal dismissed the application made by the Commissioner of Police to affirm his delegate's decision. Instead, the Tribunal exercised the power conferred on the Tribunal by s 29(3)(c) of the State Administrative Tribunal Act to set the decision aside and to substitute the Tribunal's decision that the Commissioner of Police restore Mr Corbett's crowd controller's licence forthwith on the same terms and conditions as existed as at the date of the purported revocation.

The application

On 18 October 2011, the Commissioner of Police (applicant) filed an application in the State Administrative Tribunal (Tribunal) pursuant to s 81(2) of the Security and Related Activities (Control) Act 1996 (WA) (SRAC Act). The application, in its terms, seeks an order by the Tribunal to:
… affirm the decision of the Licensing Officer to revoke the Crowd Controller's Licence on issue to the respondent.
The grounds of the application are:
The licence holder has supplied a non complying sample of urine for analysis within the meaning of regulation 52(a) of the Security and Regulated Activities (Control) Regulation 1997. Initially the urine sample is presumptively screened by an Enzyme Linked ImmunoSorbent Assay (ELISA), and if any traces of any prescribed drugs are detected, the sample undergoes further tests. In the respondent's case positive traces of Cannabinoids were detected in the sample. Subsequently a confirmatory analysis detected positive traces of Carboxytetrahydrocannabinol in the respondent's system. The respondent also declared that he had used cannabis roughly a month before taking the test. [Tribunal's emphasis]

The issue

Whether the sample of urine taken from Mr Benjiman Robert Corbett (respondent) was 'taken and dealt with in accordance with Regulations referred to in section 83' and is therefore a 'noncomplying sample' as referred to in s 81(1)(b) of the SRAC Act, is the issue for determination in this application.

The proceedings in the Tribunal

The application was listed for an initial directions hearing on 27 October 2011. On that date, the applicant's representative handed the Tribunal an original declaration of service. The declaration was sworn by the senior legal officer representing the applicant, and she deposed to the fact that on 18 October 2011 she did:
… serve an application upon the respondent by post to:
Unit 2, 309 Harborne Street GLENDALOUGH WA 6016.
The service address referred to is the address provided by the respondent to the applicant and retained in the applicant's records. The respondent did not appear in the Tribunal on 27 October 2011, when the matter was called. The directions hearing was adjourned to 3 November 2011. The respondent did not appear in the Tribunal on 3 November 2011, when the matter was called. The second directions hearing was adjourned to 10 November 2011, so as to allow the applicant to file and serve submissions. These submissions were filed in the Tribunal on 9 November 2011.
The respondent did not appear in the Tribunal on 10 November 2011, when the matter was called. On that day the Tribunal queried the applicant's representative as to whether the applicant intended to call further evidence, or intended for the matter to be determined solely on the basis of the documents then before the Tribunal. The applicant's representative indicated that the applicant intended the matter to be determined by the Tribunal upon the papers then before the Tribunal. The Tribunal made an order to that effect.
In December 2011, and at the request of the Tribunal, the Tribunal's Chief Executive Officer wrote to the parties identifying a number of issues requiring consideration by the parties, including the delegation of the applicant's powers conferred by s 80 and s 81(1)(b) of the SRAC Act, the compliance with the Security and Related Activities Control Regulations 1997 (WA) (Regulations) in taking and dealing with a sample, and proof of compliance with the Regulations. The letter enclosed a notice of directions hearing listed on 15 December 2011 to provide the parties with an opportunity to address the Tribunal on those issues.
On 15 December 2011, following submissions made by the applicant's representative, the Tribunal ordered that by 6 February 2012 the applicant may file and serve additional documents and witness statements upon which he intended to rely. The Tribunal ordered that the respondent was entitled to file and serve any documents and witness statements upon which he intended to rely by 13 February 2012. The respondent did not appear at the directions hearing on 15 December 2011. The application was listed for a further hearing on 20 February 2012.
On the written application of the applicant's representative dated 3 February 2012, the Tribunal ordered that the time for compliance with the orders made on 15 December 2011 be extended, the hearing of the application on 13 February 2012 be vacated and the proceedings be listed for final hearing on 21 March 2012.
On 21 March 2012, the respondent appeared (for the first time in the proceedings) by telephone from Victoria, where he was then residing. The respondent informed the Tribunal that he had received notice of the hearing; he opposed the order sought by the applicant; he intended to return to Western Australia to reside; and that he gave a urine sample to the applicant and was given a part of that sample for his own testing, which he did not undertake. He also stated that he was not able to provide the Tribunal with any documents or information that might be relevant, largely on account of him not being legally represented and not understanding the legal issues.
At the conclusion of the final hearing, the Tribunal ordered that by 4 April 2012, the parties were at liberty to file and serve on each other any additional written submissions in support of their respective positions, and the applicant was at liberty to file any additional documents in support of its position. No submissions were filed by the respondent. The applicant filed additional written submissions (in the form of a statement of further issues, facts and contentions) and additional documents. The Tribunal reserved its decision on 4 April 2012.

The evidence before the Tribunal

Prior to 15 December 2011, the applicant relied upon the following documentation:
a)Copy of a certificate issued under the provisions of s 92 of the SRAC Act signed by Mr Graeme Hicks, Licensing Officer, on behalf of the Commissioner of Police dated 4 October 2011 (s 92 certificate).
b)Copy of a letter addressed to the respondent at Unit 2, No 309 Harborne Street, Glendalough in Western Australia and signed by Mr Graeme Hicks, Licensing Officer, Police Licensing Services, dated 8 September 2011. This letter is referenced 'Intention to Revoke your Licence' (notice of intention to revoke). The letter bears an endorsement that the author, Mr Hicks, delivered a copy of the letter to 'the last recorded address of the above mentioned licence holder' on 8 September 2011 at 11 am.
c)Copy of a letter addressed to the respondent at Unit 2, No 309 Harborne Street, Glendalough in Western Australia signed by G Hicks, Licensing Officer, and dated 4 October 2011. The letter is referenced 'Notice of Revocation of Licence' (notice of revocation).
d)Copy of a 'Notice of Drug Test', dated 22 June 2011, addressed to the respondent and bearing a reference 'CC Number 38389' (notice of drug test).
e)Copy of a document titled 'West Australian Police Services Form to Accompany Blood/Urine Sample' (accompanying form).
f)Copy of a document titled 'Questions to be Asked Prior to Drug Test' (questionnaire).
g)Copy of a 'Certificate of Approved Analyst' (Dr Ngo) dated 26 July 2011 (first analysis certificate).
Documents a) g) were attached to the application. The applicant's submissions filed on 9 November 2011 did not attach any further documents concerning the facts and circumstances of the taking of and dealing with the respondent's urine sample.
The applicant relied upon the following additional documents filed subsequently to the original application. On 17 February 2012, the applicant filed the following additional documents:
a)Further copy of the notice of drug test.
b)Copy of a statutory declaration by Senior Constable Jodie Keevers made on 13 February 2012 (Keevers declaration).
c)Copy of a written delegation of powers and authority conferred by s 80 of the SRAC Act made and signed by Mr Karl O'Callaghan, the applicant, dated 30 December 2008 and expressed to be a delegation made pursuant to s 9A of the SRAC Act (s 80 SRAC Act delegation).
d)Copy of a certificate of sample collection issued and signed by Senior Constable Bernie Rowan and dated 20 December 2011, made in respect of 'Police Reference Number [CASU1591]' (sample collection certificate).
e)Copy of an approval of sample collectors made 6 May 2011 pursuant to the SRAC Act and the Regulations, and signed by Mr Kim Snowball, the Chief Executive Officer of the Western Australian Department of Health, pursuant to s 46(1) of the SRAC Act (approval of sample collectors).
f)Further copy of the first analysis certificate.
g)Copy of a certificate issued by Mr Peter Millington, the Chief Executive Officer of the Chemistry Centre, identifying the analysts approved pursuant to s 46(2) of the SRAC Act dated 30 January 2012 (first certificate of approved analysts).
h)A copy of a certificate issued and signed by Dr Robert Hansson on 24 March 2011, concerning urine sampling equipment contained in package serial number 'CASU 1591', which certificate appears on an envelope (envelope front).
i)Copy of the rear side of the envelope referred to in h) above, bearing a signature by Dr Hansson across the closure thereto (envelope back).
j)Copy of a certificate issued by Mr Millington dated 30 January 2012, pursuant to reg 50(1a) of the Regulations concerning approved testing equipment (first equipment certificate).
k)Copy of a declaration made and signed by Mr Hicks dated 13 February 2012 (Hicks declaration).
l)Copy of a written delegation of powers and authority conferred by s 81 of the SRAC Act made and signed by Mr Karl O'Callaghan, the applicant, dated 30 December 2008 and expressed to be a delegation made pursuant to s 9A of the SRAC Act (s 81 SRAC Act delegation).
m)Further copy of the notice of intention.
n)Further copy of notice of revocation.
These documents were attached to a submission filed by the applicant on 17 February 2012.
On 4 April 2012, the applicant filed a further statement of facts, issues and contentions and the following further documents:
a)Copy of a certificate of approved analysis dated 21 March 2012 by Dr Hansson (second analysis certificate);
b)Copy of an amended certificate issued by Mr Peter Millington, the Chief Executive Officer of the Chemistry Centre, identifying the analysts approved pursuant to s 46(2) of the SRAC Act dated 30 January 2012 (second certificate of approved analysts).
c)Copy of a certificate issued by the Commissioner of Public Health dated 23 March 1979 certifying Dr Hansson as being 'registered as an Analyst' under the provisions of the Health Act 1911 (WA) (Hansson certificate).
d)Copy of an amended certificate issued by Mr Millington, the Chief Executive Officer of the Chemistry Centre, dated 30 January 2012 pursuant to reg 50(1a) of the Regulations concerning approved testing equipment (second equipment certificate).

Statutory framework

The testing and revocation powers

The SRAC Act is intended by the legislature to provide for the licensing of:
persons engaged in work relating to
…
•Crowd control
… and for related purposes.
The powers and functions of the applicant (as opposed to a licensing officer) are identified in the SRAC Act and the Regulations and include:
•giving a crowd controller licensee a direction pursuant to s 80(1) of the SRAC Act to attend at a place and give a sample of urine for analysis;
•before revoking a crowd controller's licence pursuant to s 81(1)(b) of the SRAC Act, giving the crowd controller licensee a notice of the applicant's intention to revoke as required by s 81(2a)(a) of the SRAC Act;
•before revoking a crowd controller's licence pursuant to s 81(1)(b) of the SRAC Act, having regard to any response made pursuant to s 81(2a)(b) of the SRAC Act;
•revoking a crowd controller's licence pursuant to the power conferred by s 81(1)(b) of the SRAC Act; and
•referring any revocation of a crowd controller's licence made pursuant to s 81(1)(b) of the SRAC Act to the Tribunal pursuant to s 81(2c) of the SRAC Act.

Delegation of the testing and revocation power

Section 9A(1) of the SRAC Act provides that the applicant may delegate the applicant's powers or duties conferred by the SRAC Act, including the powers conferred by s 80 of the SRAC Act, to a police officer 'who is specified, or is of a rank specified, in the delegation', or an officer of the department of the public service principally assisting the Minister in the administration of the SRAC Act. Section 9A(2) of the SRAC Act empowers the applicant to 'delegate any power or duty of the Commissioner under section … 81' to an officer of the department of the public service principally assisting the Minister in the administration of the SRAC Act. Section 9A(3) of the SRAC Act provides that the delegation must be in writing and 'signed by the Commissioner'. Where a delegation of a power or function has occurred, the delegate will be taken to have acted within the delegation in the absence of proof to the contrary (see s 9A(5) of the SRAC Act).

The 'taking' of and 'dealing with' the sample

Part 9 of the SRAC Act is concerned with random drug sampling. Section 80 of the SRAC Act provides.
(1)The Commissioner may at any time direct a licensee to attend at a place and there give a sample of his or her blood or urine for analysis.
(2)The purpose of an analysis is to determine the presence or level of any prescribed drug in any form in the blood or urine of the licensee.
(3)A direction under this section must
(a)be in writing given to the licensee;
(b)specify the day on which and time and place at which the licensee is to attend; and
(c)indicate what sample or samples are to be given.
(4)Where a direction is given under this section, any sample is to be taken and dealt with in accordance with regulations referred to in section 83.
Section 80(4) of the SRAC Act directs that the sample is to be taken and dealt with in accordance with the Regulations referred to in s 83 of the SRAC Act. Section 83 of the SRAC Act provides that the Regulations that may be made pursuant to s 94 of the SRAC Act may provide for, relevantly:
(a)prescribing drugs for which a person may be required to be tested pursuant to a direction under section 80;
(b)prescribing any test to be carried out for the purposes of section 81(1)(b);
(c)prescribing the amount of a prescribed drug in any form in a given quantity of blood or urine in a sample that is to render the sample a non-complying sample for the purposes of section 81(1)(b);
(d)regulating the manner of taking and dealing with samples of blood and urine and their analysis;
…
(f)providing for the authorisation of persons as analysts for the purposes of this Part;
(g)providing for certificate evidence in any proceedings as to the taking and analysis of any sample and the authority of any analyst to carry out an analysis.

Part 7 of the Regulations establishes the prescriptive requirements to be met by the applicant, or his delegate, when 'taking and dealing with a sample' which he has directed a crowd controller licensee to provide pursuant to s 80 of the SRAC Act. Relevantly and in the case of a urine sample:
•The technologist (being the person who is to compile and certify the sampling equipment) and the sample collector are to be approved by the Chief Executive Officer as defined by the Health Act 1911 (WA) (Health Act) pursuant to reg 46(1) of the Regulations.
•The analyst is to be approved by the Chief Executive Officer of the Chemistry Centre pursuant to reg 46(2) of the Regulations.
•The sampling equipment is to be prepared in accordance with reg 48(1) of the Regulations and certified by an approved technologist as having been so prepared, as provided for by reg 48(2).
•The sampling equipment to be used is prescribed by reg 47(2) of the Regulations.
•The sample is to be collected in a sterile urine collecting container as provided for by reg 50(1) and reg 48(2)(a) of the Regulations.
•The sample collector must not use sampling equipment contained in a package that is not sealed and not intact as provided for by reg 48(2)(b) of the Regulations.
•The sample collector may withdraw from the sterile collecting container so much as is necessary to enable testing by means of the 'approved testing equipment' as provided for by reg 50(1a) of the Regulations.
•Where the 'approved testing equipment' indicates that the urine might be a noncomplying sample, or where no urine is tested, then:
the sample collector must pour as much of the urine into two specimen jars as necessary to enable analysis of the urine to be made, and securely tighten the cap on each specimen jar (reg 50(2)(a) of the Regulations);
the sample collector and a police officer or employee must each complete and sign the relevant parts of the approved form (being the approved form referred to in reg 48(1) and reg 50(2)(b) of the Regulations);
the sample collector must seal each of the specimen jars in a separate package and seal the same by fixing the signed approved form over the opening of the package (reg 50(2)(c) of the Regulations);
the sample collector and police officer or employee (who signed the approved form) must each sign their name over the sealed portion or flap of that package (presumably in the case of each package containing each of the two specimen jars) as required by reg 50(2)(d) of the Regulations;
the sample collector must give one of the urine samples (that is, one of the sealed specimen jars inside the sealed package) to the person who provided the sample and one urine sample to the police officer or employee who signed the approved form (reg 50(2)(e) of the Regulations);
the police officer or employee who received the urine sample from the sample collector must then cause that sample to be delivered promptly to the Chief Executive Officer of the Chemistry Centre for analysis (reg 51(1) of the Regulations); and
the Chief Executive Officer of the Chemistry Centre must cause a sample, delivered in accordance with reg 50(1) of the Regulations (that is, promptly), to be analysed by an analyst to determine whether any drugs referred to in Sch 3 of the Regulations are present in the sample, and, if so, to what extent, and then a copy of the results of the analysis must be provided to the licensee.
The power to revoke a crowd controller's licence, conferred by s 81(1)(b) of the SRAC Act, can only be exercised if the sample given by the licensee, following a direction given under s 80 of the SRAC Act, is a noncomplying sample within the meaning of s 80(4) of the SRAC Act and the Regulations. The sample must meet the conditions imposed by s 80(4) of the SRAC Act. Unless the sample meets the conditions imposed by s 80(4) of the SRAC Act, the results of the sample cannot support an exercise of the statutory power to revoke the crowd controller's licence by the applicant or his delegate, conferred by s 81(1)(b) of the SRAC Act. The condition imposed by s 80(4) of the SRAC Act is that the sample is to be 'taken and dealt with in accordance with the Regulations referred to in s 83' of the SRAC Act.
If the manner in which the sample was 'taken' from the licensee does not accord with the Regulations, then the results of the sample cannot, as a matter of statutory construction, support an exercise of the s 81(1)(b) of the SRAC Act power to revoke the crowd controller's licence. If the manner in which the sample was 'dealt with' does not accord with the Regulations, then the results of the sample cannot, as a matter of statutory construction, support an exercise of the power of s 81(1)(b) of the SRAC Act to revoke the crowd controller's licence.
The Regulations concerning the manner of taking and dealing with the licensee's sample are prescriptive, and the purpose of the legislative scheme is to establish the identity and integrity of the sample through the sampling and testing process and the accuracy of the result, so as to:
a)Avoid contamination of any samples.
b)Ensure that the results of any sample test relates to the licensee who gave the sample.
c)Ensure that the tests and the testing equipment used are scientifically appropriate to achieve the analysis required by the SRAC Act and Regulations.
d)Ensure that the analysts operating the equipment and assessing the results are sufficiently expert and proficient, so that the results of the tests and assessment of the results can be relied upon to determine whether or not the sample is a noncomplying sample.
Without statutory regulation and prescription, evidence going to prove each step in the process from the taking of the sample to the ultimate analysis and results and the relevance of each step, would be required to be given in the Tribunal proceedings to prove the fact that the sample contained a prohibited drug (Commissioner for Railways (NSW) v Young (1962) 106 CLR 535). The steps needed to establish the efficacy of the sample test results are, in effect, codified by the Regulations made pursuant to the power conferred by s 83(b), s 83(d), s 83(e) and s 83(f) of the SRAC Act. The factual question of what is a noncomplying sample is also prescribed by the Regulations made pursuant to s 83(a) and s 83(c) of the SRAC Act.

Proof of compliance with the regulatory sampling and testing scheme

Proof of the facts, going to the issue of compliance with the regulatory sampling and testing scheme, is also provided for by reg 53 of the Regulations, made pursuant to s 83(g) of the SRAC Act. Whilst the applicant is not compelled to prove compliance with the prescriptive regulatory scheme in the manner allowed by reg 53 of the Regulations so as to establish the efficacy of the sample test results in any particular case, if he does not do so, then he must establish the efficacy of the sample test results with relevant evidence from the relevant lay and expert witnesses concerned.
At the commencement of the application, the respondent had not produced all of the certificates he could have relied upon pursuant to reg 53 of the Regulations, nor did he intend, at that time, to prove any facts concerning the efficacy of the sample test results by direct evidence. Finally, by 4 April 2012, the applicant had produced all of the certificates referred to in reg 53 of the Regulations that he could provide.

The effect of established non-compliance with the regulatory sampling and testing scheme

One of the facts established by the certificate evidence produced by the applicant tends to establish that the regulatory sampling and testing scheme was not complied with. This raises the issue whether the applicant must comply with the regulatory sampling and testing scheme in order to exercise the power to revoke a crowd controller's licence pursuant to s 81(1)(b) of the SRAC Act.
The Tribunal's view is that, as stated above, as a matter of statutory construction, the applicant is not free to exercise the power to revoke a crowd controller's licence conferred by s 81(1)(b) of the SRAC Act unless the sample meets the definition of a noncomplying sample referred to in the Regulations, which requires that the noncomplying sample was 'taken and dealt with' as prescribed by the Regulations. The revocation of a vocational licence has the effect of limiting a person's vocational sphere, which limitation may have a substantial impact upon a licensee's livelihood. The Tribunal's construction of the SRAC Act and Regulations is consistent with the need to ensure the efficacy of the sample in issue before the revocation of a vocational licence can lawfully occur.

Relevance of other evidence to establish that the sample contained prohibited drugs

The applicant relied on statements allegedly made by the respondent that he had taken cannabis a month prior to the sample being taken. For the reasons referred to above, as a matter of construction, such statements are not relevant to establishing that a licensee's sample was a noncomplying sample. Therefore, such evidence cannot support a valid exercise of the statutory power of revocation conferred by s 81(1)(b) of the SRAC Act. Finally, and for the reasons referred to below, the Tribunal is not satisfied that the respondent made the statements relied upon by the applicant, or any statements concerning an admission that he had taken any prohibited drugs or any drugs at all.
The applicant also sought to rely upon evidence that the noncompliance with the regulatory sampling and testing scheme in this matter had no negative impact on the efficacy of the test result achieved in this case. It is the fact of compliance with the regulatory sampling and testing scheme which is relevant. For the reasons referred to above, the Tribunal considers that such evidence is not relevant. In any event, for the reasons referred to below, the Tribunal is not satisfied of the fact based upon the evidence produced.

The identification of the prescribed drug

Schedule 3 of the Regulations identifies the drugs which, if detected in a measurable quantity in the prescribed urine sample, will render the sample noncomplying for the purpose of s 81(1)(b) of the SRAC Act. The drugs are identified by reference to any drug declared from time to time under s 22A of the Poisons Act 1964 (WA) (Poisons Act) to be a specified drug or any drug included in Sch 8 or Sch 9 of the Poisons Act. The applicant asserts that, in this matter, Sch 8 of the Poisons Act is relevant. Relevantly for these proceedings, Sch 8 of the Poisons Act, as at the date of the sample (22 June 2011), refers to:
All substances listed in Schedule 8 to the SUSMP, subject to the following modification
The following substance is added to Schedule 8 to the SUSMP
•11NOR9CARBOXY TETRAHYDROCANNABINOL when used for analytical chemical analysis.
In this matter there is no question that the drug in issue is a prohibited drug '11NOR9CARBOXY TETRAHYDROCANNABINOL'.

The facts

As at 4 October 2011, the respondent was the holder of two licences issued pursuant to the SRAC Act. The s 92 certificate refers to both licences as SG/CC38389. The Tribunal has inferred that the security officer licence bears the prefix SG, and the crowd controller licence bears the prefix CC. Each of the licences are valid until 20 December 2013.
Based upon the Hansson certificate and the second certificate of approved analyst, the Tribunal is satisfied that Dr Hansson was approved by the equivalent of the Chief Executive Officer under the Health Act as a technologist at the relevant time. Upon the basis of the sample collection certificate and the approval of sample collectors, the Tribunal is satisfied that Senior Constable Rowan was approved by the Chief Executive Officer under the Health Act as a sample collector at the relevant time. The Tribunal is satisfied that Dr Ngo and Dr Hansson have both been appointed as approved analysts by the Chief Executive Officer of the Chemistry Centre since '11 August 2011' (see second certificate of approved analyst). The first certificate of approved analysts identifies Dr Ngo and Dr Hansson as approved analysts, but that certificate does not expressly state that Dr Ngo and/or Dr Hansson were approved analysts as at the date on which the delivered sample was tested and analysed that is, an unspecified date between 1 July 2011 and 26 July 2011. Nor does such a statement arise by implication from the terms of that certificate. This issue was raised by the Tribunal with the applicant's representative at the hearing on 21 March 2012. The second certificate of approved analysts provided to the Tribunal on 4 April 2012 expressly states that Dr Ngo and Dr Hansson had been approved analysts 'since 11 August 2010'. Both of the first and second certificates of approved analysts postdate the events. However, the certification of the approval of an analyst is not required to have been undertaken contemporaneously with the approval of the analyst, or the testing of the sample in question. The issue is whether, as at the date of testing and analysis, the analyst was approved as required by the Regulations. The Tribunal is satisfied that between 1 July 2011 and 26 July 2011, both Dr Ngo and Dr Hansson were approved analysts for the purposes of the Regulations.
The envelope front, the terms of Dr Hansson's certification that the relevant testing equipment was contained in that envelope, Dr Hansson's signature on the envelope back and the sample collection certificate, satisfies the Tribunal that Dr Hansson, as an approved technologist, prepared the relevant sampling equipment in compliance with reg 48(2) and reg 47(2) of the Regulations, and that Senior Constable Rowan collected the sample using that equipment as prescribed by the Regulations.
At 6.30 pm on 22 June 2011, the respondent acknowledged that he had received the notice of drug test. The notice of drug test contains the following statements:
a)The notice of drug test was issued in accordance with the SRAC Act.
b)The person who issued the notice of drug test is a police officer.
c)The police officer who issued the notice of drug test exercised a power, said to have been delegated pursuant to 'Section 80(5) of the Security and Related Activities (Control) Act 1996', to make the direction to the respondent to undergo a drug test.
d)The notice of drug test directed 'Ben Corbet[t]':
i)to attend at Suite 26, Level 2, Burswood Dome on 22 June 2011 at 7 pm; and
ii)to provide a sample of his urine at the appointed site as directed by the sample collector, 'pursuant to Pt 7' of the Regulations.
As at the date of the notice of drug test, Senior Constable Keevers was attached to the Licensing Enforcement Division, and she issued the notice of drug test as the applicant's delegate pursuant to the s 80 SRAC Act delegation. The notice of drug test incorrectly states that she acted pursuant to a delegation made in accordance with s 80(5) of the SRAC Act (s 80(5) of the SRAC Act was repealed in 2008).
The questionnaire refers to an 'interview' conducted immediately after the drug test 'requirement' was given, and prior to the drug sample being taken at 7.43 pm on 22 June 2011. The Tribunal infers that the 'requirement' is a reference to the direction issued for the applicant by Senior Constable Keevers in the notice of drug test. The statement contained in the accompanying form indicates that the respondent was given the 'requirement' at 7.41 pm on 22 June 2011, and the sample was then taken five minutes later at 7.46 pm on 22 June 2011.
The Tribunal infers that the questionnaire appears on the back of the accompanying form. The questionnaire identifies four questions and allows for a 'yes' or 'no' response and the details, presumably in the case of a 'yes' response. The information contained in the questionnaire appears as follows:
Are you taking any illegal drugs?
The 'yes' and 'no' responses are both circled and 'no' is also crossed. The handwritten annotation 'Cannabis' appears next to the typed words 'Name of Drug'. A handwritten tick and an initial appear near the annotation 'Cannabis'. No details are noted in the section allocated for 'Daily dosage'. Next to the words 'Last Time taken' there is a handwritten annotation of 'a month or so ago'.
The second question is:
Are you taking any prescription drugs?
The 'yes' and 'no' responses are both circled and 'no' is also crossed. In the section allocated next to 'Name of Medication' is a handwritten annotation of 'Antibiotics'. Next to the 'Daily dosage' it is noted in handwriting 'As directed'. Next to the words 'Last Time taken' is a handwritten annotation '1 1/2 weeks ago'.
The third question is:
Are you using any over the counter or chemist medication?
The 'no' response is circled.
The final question is:
Are you using any body supplements or vitamin pills?
The 'yes' response is circled. 'Name of Medication' is noted in handwriting as 'Diet Supplement' and the 'Daily dosage' is noted as 'As directed'. The 'Last Time taken' is noted as '22/06/11 pm: took x 2'.
The questionnaire does not disclose, on its face, whether those exact questions were, in fact, asked and, most significantly, whether the handwritten annotations to the questionnaire were made by the respondent or were adopted by him as his answers. There is no provision for the interviewee to sign or consider the answers noted on the questionnaire. The questionnaire contains a statement that:
INTERVIEW CONDUCTED IMMEDIATELY AFTER DRUG TEST REQUIREMENT GIVEN AND PRIOR TO DRUG SAMPLE BEING OBTAINED[.]
The completion of an interview or a questionnaire is not a regulatory requirement.
The Tribunal is not satisfied that the respondent gave those answers or made any statements to the applicant's delegate concerning the induction of cannabis or any other drug. There was no indication that the respondent gave or adopted the written answers. Senior Constable Keevers did not give any written or oral evidence to establish that she received the answers from the respondent and recorded them accurately. One of the reasons why such evidence was not produced may be that, in the course of debate with the applicant's representative, the Tribunal member had raised the issue of whether such information could ever be relevant to establish that a sample was a noncomplying sample as a matter of statutory construction. As stated above, the Tribunal considers that such information is not relevant to establish that a sample is a noncomplying sample for the purposes of exercising the power to revoke a crowd controller's licence pursuant to s 81(1)(b) of the SRAC Act.
The accompanying form is a letter of authority addressed to the Chief Executive Officer of the 'Chem Centre WA', South Wing, Building 500, Curtin University of Technology, Bentley, WA, 6102. That form contains the following statements:
a)A blood sample/urine sample is contained in a sealed package.
b)The blood sample/urine sample in the sealed package accompanies the accompanying form.
c)The blood sample/urine sample accompanying the form is provided to the Chief Executive Officer of the Chemistry Centre for analysis of drug concentration.
d)The details of the drug sample/urine sample are:
•package serial no. 1591;
•the name of the subject is 'Ben Corbet[t]';
•the date of birth of the named subject is '4/9/90';
•the address (presumably of the subject from whom the sample was taken) is 'U2/309 Harborne Street, Glendalough';
•the 'DOCTOR TAKING' the sample is Bernie Rowan;
•the requirement (presumably to provide a sample) was given at 7.41 pm on 22 June 2011;
•the sample was taken at 7.46 pm on 22 June 2011; and
•next to the words 'DETAILS OF DRUGS RECENTLY TAKEN' appears '(as supplied by Licence holder)' and the words 'See Over', being a reference to the questionnaire.

The accompanying form is signed by Senior Constable Keevers as the 'Witnessing Officer'. The Tribunal is satisfied that the sample was taken by Senior Constable Rowan in compliance with reg 50 of the Regulations, as certified by him on 20 December 2011. The Tribunal finds that the reference to the respondent as 'Ben Corbet[t]' in the accompanying form is not a material omission and that, in fact, the respondent did provide a urine sample to the applicant. On 21 March 2012, the respondent confirmed that he gave the applicant a urine sample and that he did receive a portion of that urine sample from the applicant for him to have tested if he had wished. He did not have that sample tested. The Tribunal is satisfied that reg 50(2)(a) of the Regulations was complied with.
The copy of the envelope back does not indicate that the accompanying form was fixed over the opening of the package (that is, the envelope back). The copy of the envelope back does not indicate that Senior Constable Rowan and Senior Constable Keevers signed their names over the sealed portion of the flap of the package (that is, the envelope back), as required by reg 50(2)(b), reg 50(2)(c) and reg 50(2)(d) of the Regulations.
The respondent's representative stated from the parties' table on 21 March 2012 that, in his experience and based on his own observations, the samples are often kept in an isolated refrigerator at the Licensing Enforcement Services Office in East Perth, and from there they are transported to the Chemistry Centre in Bentley. There was no other evidence given about any procedures adopted when samples are collectively held in this refrigerator.
This noncompliance brings into doubt that the sample delivered to the Chemistry Centre is that of the respondent and is, in the Tribunal's view, a material noncompliance with the sampling and testing scheme.
Regulation 51(1) of the Regulations requires the sample to be 'delivered promptly' to the Chief Executive Officer of the Chemistry Centre for analysis. The applicant concedes in his submission made on 4 April 2012 that the sample was not delivered 'promptly' as required by the Regulations.
In the Tribunal's view, the failure to handle the sample in accordance with the Regulations on these two bases results in a conclusion that the sample relied upon by the applicant was not 'dealt with' in accordance with the Regulations, and cannot give rise to a valid exercise of the power to revoke, conferred by s 81(1)(b) of the SRAC Act in this matter.
The Tribunal does not accept the evidence of the applicant's representative that the effect of the delay in delivery of the sample for testing was to reduce the amount of detectable cannabis in the sample and was favourable to the respondent. First, as stated, such evidence is not relevant, as only compliance with the Regulations is relevant as a matter of statutory construction. Secondly, the evidence is, by nature, expert evidence and so, if it had been relevant, would need to be established by a statement of opinion by a suitably qualified expert rather than the hearsay statement of a nonexpert witness.
By reason of these material instances of noncompliance with the Regulations, the applicant's decision to revoke the respondent's crowd controller's licence cannot be affirmed by the Tribunal, but instead, should be set aside and the respondent's crowd controller's licence should be reinstated.
The first approved analysis certificate refers to 'Laboratory Reference No. 11F0024001' and 'Police Reference No. CASU1591'. The first approved analysis certificate appears to be signed by Dr Ngo, an approved analyst within the meaning of reg 46(2) of the Regulations. On 21 March 2012, Dr Hansson signed the second analysis certificate, wherein he certifies that he had reviewed the file and the first analysis certificate signed by Dr Ngo and was satisfied that the received sample had undergone approved tests using approved equipment. The first and second analysis certificates each contain the following relevant statements:
a)The urine sample in a sealed envelope marked: 'CASU1591 Ben Corbet[t]' was received at the Chemistry Centre from Senior Constable Rowan No 10756 on 1 July 2011.
b)That received sample was presumptively screened by Enzyme Linked ImmunoSorbent Assay (ELISA) and the results are as follows:
•amphetamines indicated by ELISA (with a cut off level of 300 nanograms per millilitre (ng/ml));
•benzodiazepines not detected by ELISA (with a cut of 200 ng/ml);
•cannabinoids detected by a positive result by ELISA (cut off level 50 ng/m)l;
•opiates not detected by ELISA (cut off level 300 ng/ml).
c)The received sample was subject to confirmation analysis by Gas Chromatography/Mass Spectrometry (GC/MS) and Liquid Chromatography/Mass Spectrometry (LCMS) in Multiple Reaction Monitoring (MRM) with the following relevant result:
•CARBOXYTETRAHYDROCANNABINOL Approx 297 ng/ml.
The first equipment certificate does not expressly, or by necessary implication, certify that the equipment referred to was approved by the Chief Executive Officer of the Chemistry Centre for the period between 1 July 2011 and 26 July 2011. However, the second equipment certificate expressly states that the relevant equipment had been approved by the Chief Executive Officer of the Chemistry Centre 'since 20 October 2008'. Again, both of the first and second equipment certificates post-date the events. However, the certification of the approval of the testing equipment is not required to have been undertaken contemporaneously with the events of the analysis. On the basis of the second equipment certificate, the Tribunal is satisfied that the testing equipment was approved for the purposes of reg 50(1a) of the Regulations between 1 July 2011 and 26 July 2011.
At the relevant time, Mr Hicks was the licensing co-ordinator of the police licensing service and was delegated the power to revoke a crowd controller's licence pursuant to s 81 of the SRAC Act, by reason of the s 9A delegation made by the applicant on 30 December 2008. The Tribunal is satisfied that Mr Hicks was delegated the power to revoke by the s 9A delegation. It appears Mr Hicks relied solely upon the first analysis certificate in purporting to exercise the revocation power conferred by s 81(1)(b) of the SRAC Act.

The Tribunal’s jurisdiction

Section 81(2)(c) of the SRAC Act provides that the applicant must refer a revocation of a licence made pursuant to s 81 of the SRAC Act to the Tribunal. Whilst the SRAC Act does not expressly state that the reason or purpose of the referral to the Tribunal is for the Tribunal to review the applicant's decision, it is implicit that that is the purpose of the referral. Section 14 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that a matter in which the Tribunal has jurisdiction comes within the Tribunal's original or review jurisdiction. Section 17(1) of the SAT Act provides that if the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to review the decision in question for the purpose of producing the correct and preferable decision at the time of the decision on review (s 27(1) of the SAT Act). This is so, regardless of whether the application for review is opposed or not. The respondent is compelled to make the application for review pursuant to s 81(2c) of the SRAC Act, and the Tribunal is required to review that decision as directed by s 17 of the SAT Act. Section 9 of the SAT Act provides:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are
(a) to achieve the resolution of questions, complaints or disputes, and make and review decisions, fairly and according to the substantial merits of the case ...
The Tribunal is to conduct the review of the decision in question by way of a 'hearing de novo' and is not confined to matters that were before the original decisionmaker. In conducting the review, the Tribunal may consider any new material, whether or not it existed at the time of the original decision.
By reason of s 29(3)(c)(i) of the SAT Act, the Tribunal may set aside the decision under review and substitute its own decision.

The review and consideration by the Tribunal

The Tribunal has heard from both parties and carefully reviewed each of the documents put before the Tribunal. Ultimately, for the reasons referred to above, the Tribunal is not satisfied that the applicant was entitled to exercise the power conferred by s 81(1)(b) of the SRAC Act to revoke the respondent's crowd controller's licence, because the sample taken from the respondent on 22 June 2012:
a)Was not dealt with in accordance with s 80(4) of the SRAC Act, in that the sample was not delivered promptly after having been taken on 22 June 2011 to the Chemistry Centre. There was a delay of nine days, which was not adequately explained. The Shorter Oxford Dictionary 2012 online definition of 'promptly' is: to act with 'undue delay'. The Macquarie Dictionary 2012 online definition of 'promptly' is: to act 'at once or without delay'.
Whilst the distance between the sampletaking site and the Chemistry Centre is a factor that is to be taken into account when considering if the delivery is without undue delay or without delay, in this case, there is no reason why the sample could not have been delivered the very next day. In the circumstances of this matter, it cannot be said that the sample was delivered 'promptly' for the purposes of reg 51(1) of the Regulations.
b)Was not 'taken' and 'dealt with in accordance with' the Regulations, as the witnessing officer, Senior Constable Keevers and the sample collector, Senior Constable Rowan, did not seal the package containing the sample delivered by Senior Constable Rowan to the Chemistry Centre on 1 July 2011, and did not place their signatures across the closure of the package as prescribed by regulation and referred to above.
Such failures are instances of material noncompliance with the Regulations, such that the sample is not one that can be relied upon for the purpose of s 81(1)(b) of the SRAC Act. The failures bring into doubt the identity of the sample provider and the end result analysis. That fact, together with the fact that the form was not sealed over the package and that the sample was kept in East Perth Licensing Enforcement Services Office until delivery took place, raises real questions about the efficacy of the tested sample and the result in this matter.
For these reasons, the Tribunal is not satisfied that the sample taken from the respondent was a noncomplying sample for the purposes of s 80(4) and s 81(1)(b) of the SRAC Act. The revocation power conferred upon the applicant was not validly exercised.

Order

Pursuant to s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA) and s 81(1)(b) of the Security and Related Activities (Control) Act 1996 (WA), it is ordered that:
1.The applicant's application to affirm its decision to revoke the respondent's crowd controller's licence CC 38389, made on 18 October 2011, is dismissed.
2.The applicant's decision to revoke the respondent's crowd controller's licence CC 38389, made on 4 October 2011, is set aside.
3.The applicant shall reinstate the respondent's crowd controller's licence CC38389 forthwith on the same terms and conditions as existed prior to the applicant's revocation of the same.

I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS NATASHA OWEN-CONWAY, MEMBER