COMMISSIONER OF POLICE and LAINE

[2011] WASAT 35

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

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

CITATION:   COMMISSIONER OF POLICE and LAINE [2011] WASAT 35

MEMBER:   MR C RAYMOND (SENIOR MEMBER)

HEARD:   18 JANUARY 2011

DELIVERED          :   18 JANUARY 2011 AND EDITED TRANSCRIPT PUBLISHED 2 MARCH 2011

FILE NO/S:   VR 209 of 2010

BETWEEN:   COMMISSIONER OF POLICE

Applicant

AND

LIAM PETER LAINE
Respondent

Catchwords:

Security and Related Activities (Control) Act 1996 (WA) ­ Review of decision to revoke crowd controller licence on ground of provision of alleged non­complying urine sample

Legislation:

Poisons Act 1964 (WA), Sch 8, Appendix A
Security and Related Activities (Control) Act 1996 (WA), s 79B, s 80, s 81, s 81(1)(b), Pt 9
Security and Related Activities (Control) Regulations 1997 (WA), reg 52, reg 52(a), Sch 3
Therapeutic Goods Act 1989 (Cth), s 52A

Result:

Decision under review affirmed

Category:    B

Representation:

Counsel:

Applicant:     Constable Banyard (Acting as Agent)

Respondent:     No Appearance

Solicitors:

Applicant:     Commissioner of Police

Respondent:     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Commissioner of Police referred an application to the Tribunal under s 81 of the Security and Related Activities (Control) Act 1996 (WA) seeking an order affirming his decision to revoke the respondent's crowd controller licence on the grounds that the respondent was alleged to have provided a sample of urine which was found on analysis to be a non­complying sample within the meaning of the Security and Related Activities (Control) Regulations 1997 (WA).

2. The respondent did not participate in the proceedings and the only material furnished in opposition to the application was a letter written by the respondent in an endeavour to show cause why the Commissioner of Police should not revoke the licence. A certificate of an approved analyst established a measureable quantity of codeine, methylamphetamine and amphetamine present in the respondent's urine sample. The Tribunal accepted, as did the Commissioner of Police, that the presence of codeine was explicable by flu and cold tablets which the respondent had disclosed he had taken shortly before providing the sample. However, the Tribunal rejected the respondent's explanation that the presence of methylamphetamine or amphetamine could be due to the use of a Vicks inhaler. The respondent, when providing the sample, had disclosed only that he had used a Ventolin inhaler. Expert evidence from the Commissioner of Police established this could not explain the presence of methylamphetamines or amphetamines. The Tribunal found that these drugs were prescribed drugs under Sch 3 of the Security and Related Activities (Control) Regulations 1997 (WA) so that the sample provided constituted a non­complying sample under reg 52 entitling the Commissioner of Police to revoke the respondent's crowd controller licence.

3. In the absence of any evidence from the respondent, the Tribunal concluded that the correct and preferable decision on review was to affirm the decision of the Commissioner of Police to revoke the respondent's licence.

Introduction

1. On 18 January 2011, I delivered oral reasons for my decision to affirm the decision made by the applicant (Commissioner) to revoke the respondent's crowd controller licence under s 81(1)(b) of the Security and Related Activities (Control) Act 1996 (WA) (Act), and an order to that effect was issued. The written reasons published below have been prepared from the transcript of the oral reasons for decision, delivered immediately after the hearing.

The application

1. The applicant has applied to the Tribunal for an order affirming a decision made by a licensing officer to revoke the respondent's crowd controller licence.  That revocation was communicated in a letter from the Commissioner to the respondent dated 25 October 2010 which is attached to the application.

2. The reason for the revocation, as stated in that letter, is that a decision has been made in accordance with s 81(1)(b) of the Act as the sample of urine given by the respondent for analysis was allegedly found to be a non­complying sample within the meaning of reg 52(a) of the Security and Related Activities (Control) Regulations 1997 (WA) (Regulations).

The proceedings and relevant material

1. The Commissioner has filed a statement of issues, facts and contentions together with the documentation on which the Commissioner relies.  The respondent was directed by the Tribunal to file a statement of issues, facts and contentions and any documents he relied upon, but has failed to do so.  The respondent has also not attended the hearing.

2. The applicant's statement of issues, facts and contentions and the supporting documentation show that the respondent was served with a notice of drug test on 6 August 2010 requiring him to provide a urine sample pursuant to s 80 of the Act. On 7 August 2010, the respondent provided a urine sample for analysis.

3. Prior to taking the test, the respondent was asked to disclose in writing whether he had consumed or taken any drugs, prescribed or otherwise.  The respondent disclosed in the form which he completed that he had taken two cold and flu tablets the night prior to the drug test.  The form shows that the respondent had also taken what was described as one puff of a Ventolin inhaler at 9 am that day.  The urine sample was provided at 4.30 pm.

4. The urine sample was analysed by the ChemCentre Expert Solutions on 8 September 2010 and it is asserted that the urine sample was found to be a non­complying sample within the meaning of reg 52(a) of the Regulations. The result indicated positive traces of amphetamines and opiates. The presence of opiates, however, is explained, according to the test results, by the use of codeine, which is consistent with the information by the respondent that he was taking cold and flu tablets.

5. On 4 October 2010, the licensing officer posted a notice to the respondent informing him of the intention to revoke his crowd controller licence.  The respondent was afforded an opportunity to respond to the notice.  On 12 October 2010, the respondent sent a letter to Police Licensing Services outlining why he had provided a non­complying urine sample.  The response is detailed and I will not endeavour to quote from it in full.  Reference is made to the medication taken by the respondent.

6. The outcome of the case swings on the presence of methylamphetamine and amphetamine which was disclosed by the testing.  In his response, the respondent refers to using a Vicks inhaler.  The respondent makes specific reference to a number of sources which he has obviously used to provide the detailed response and which indicates a fairly detailed understanding of drugs based on that research.  He states in the response that:

   The use of Vicks inhalants has been shown clinically to result in false positive readings for methamphetamine as per the below studies.

7. The studies listed are the sources to which I have referred.  The respondent also makes references to various cut­off levels used for testing.  Those cut­off levels to which he refers vary from 500 nanograms per millilitre of urine to the use of other cut­offs of 300 nanograms per millilitre.

8. The certificate of approved analyst which is included in the Commissioner's papers shows that the respondent relevantly proved positive for methylamphetamine at a level of approximately 60 nanograms per millilitre and amphetamine of at a level of approximately 20 nanograms per millilitre.  The positive response in respect of amphetamine apparently flows because methylamphetamine and amphetamine are related, as explained by the Commissioner's expert witness referred to below.

9. A number of questions arose because of the issues raised by the respondent.  As a result, evidence was taken from Mr Robert Hanson, who is a toxicologist who has been employed for some 34 years by the ChemCentre, which is the statutory authority appointed for the purposes of chemical analysis of samples.  Mr Hanson holds a BSc for applied chemistry and a graduate diploma in chemistry and, as indicated, he is a toxicologist of some 34 years' experience.

10. Mr Hanson firstly confirmed that methylamphetamine is a drug which is included in the Standard for the Uniform Scheduling of Drugs and Poisons No 23 dated June 2008.

11. That standard is effectively incorporated by the Poisons Act 1964 (WA) (Poisons Act). I will make later reference to the statutory regime and process. Mr Hanson explained that the cut­off level of 300 nanograms for amphetamines as shown in the certificate is applicable because the first level of testing is a robust measure.

12. Mr Hanson went on to explain that the various cut­offs used depend on the sophistication of the laboratory carrying out the tests.  The Australian Standard to which he referred, AS4308 of 2008, has a cut­off of 300 nanograms per millilitre because it is effectively the average accepted for the purpose of the standard which can be expected to be provided by most laboratories.

13. The analysis, however, has two stages.  Once the robust method of screening has been followed to which the cut­off applies, a further level of testing is undertaken using chromatography/mass spectrometry and liquid/chromatography gas mass spectrometry in multiple reaction monitoring.  It is at that sophisticated level of testing that the respondent returned the results to which I have referred of approximately 60 nanograms of methylamphetamine and 20 nanograms of amphetamine per millilitre.

14. Mr Hanson confirmed that there are Vicks inhalers provided in the United States which do contain a legal form of amphetamine and which could result in a false reading, but that would only apply in respect of a Vicks inhaler purchased in the United States.  It appears that the respondent's internet research has disclosed the possibility that a Vicks inhaler could result in a positive reading for methamphetamine.  That, however, is inconsistent with the information disclosed by him at the time of testing which, as indicated, showed that he had used a Ventolin inhaler.

15. Mr Hanson explained that a Ventolin inhaler is used for asthma and could not possibly give rise to any false reading.  In any event, to the extent that there might be some doubt whether the respondent used a Ventolin inhaler or a Vicks inhaler, there is no evidence provided by the respondent which would suggest that he obtained the Vicks inhaler from the United States and somehow managed to import it into Australia.  That possibility is, in the circumstances, too remote to affect a determination on a balance of probabilities whether or not that could be a basis for the respondent returning an incorrect test result.

16. As already indicated, the use of cold and flu tablets is accepted as explaining the presence of codeine in the urine sample.  I turn now to the statutory regime.

The statutory regime

1. Part 9 of the Act deals with drug testing and the power to require a urine sample to be provided. Section 81(1)(b) of the Act provides:

   The Commissioner may, by written notice to a licensee, revoke a licence if ­

   …

   (b)a sample of blood or urine given by the licensee following a direction under section 80 is found on analysis to be a non­complying sample, within the meaning in the regulations, for the purposes of this section.

2. Regulation 52 of the Regulations provides that:

   For the purposes of section 81(1)(b) a blood or urine sample is a non­complying sample if ­

   (a)the sample contains any measurable amount of a drug referred to in Schedule 3 other than testosterone; …

3. A different regime applies in relation to testosterone.

4. Schedule 3 of the Regulations sets out the prescribed drugs, being:

   Any drug, other than testosterone, that is from time to time ­

   (a)declared under section 22A of the Poisons Act 1964 to be a specified drug; or

   (b)included in Schedule 8 or 9 of that Act.

5. Schedule 8 of the Poisons Act relevantly provides that:

   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.

6. Appendix A to the Poisons Act defines the term 'SUSMP' to mean:

   … the current Poisons Standard as defined in the Therapeutic Goods Act 1989 (Commonwealth) section 52A.

7. Section 52A of the Therapeutic Goods Act 1989 (Cth) refers to the current Poison Standards as meaning:

   (a)if no document has been prepared under paragraph 52D(2)(b) ­ the first Poisons Standard; or

   (b)otherwise ­ the document last prepared under that paragraph (including as amended).

8. The first Poison Standard in turn is defined as meaning:

   The latest edition at the commencement of this Part of the document known as the Standard for the Uniform Scheduling of Drugs and Poisons published by the Australian Health Ministers Advisory Council.

9. As the respondent has not raised any issue concerning whether the drugs in question are prescribed drugs under the Poisons Act, I accept the expert evidence of Mr Hanson to the effect that methylamphetamine is a drug which is included in the latest edition of the document, which is now known as the Standard for Uniform Scheduling of Drugs and Poisons.

10. In order to constitute a non­complying sample, reg 52 requires only that the sample contains any measurable amount of a drug referred to in Sch 3. Clearly, the form of measurement which has been used here is a sophisticated measurement, but there is no cut­off prescribed under the legislation. The quantity of methylamphetamine in the respondent's urine is a measurable amount of a drug referred to in Sch 3 of the Regulations. The legislation clearly contemplates that any recorded measure of a prescribed drug, and they being basically illegal drugs, forms a basis for revocation.

11. The provisions in question apply specifically to crowd controllers by virtue of s 79B of the Act, and that is understandable because the activities of crowd controllers place them in nightclubs and other places where it is known drugs are available and are provided to those who frequent those places. It is clearly an unacceptable risk that someone who is a drug user should be licensed as a crowd controller, unless there are circumstances which are peculiar to a particular respondent which demonstrate that, whatever might have occurred in the past, there is little or no risk of that person being involved in inappropriate activities.

Conclusion

1. Neither the Tribunal nor the Commissioner had had the benefit of any evidence from the respondent beyond the letter provided by the respondent, so I am satisfied in these circumstances that the correct and preferable decision remains that which was made by the Commissioner.  The decision under review is affirmed.

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR MEMBER