Cowdrey and Cobham Flight Operations and Services (Australia)

[2005] AATA 1100

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1100

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/326

GENERAL ADMINISTRATIVE DIVISION		)
Re		JUSTIN TERRENCE COWDREY

Applicant

And COBHAM FLIGHT OPERATIONS AND SERVICES (AUSTRALIA)

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date4 November 2005

PlacePerth

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that an application be made under reg 6.29(1) of the Aviation Transport Security Regulations 2005 to the Secretary of the Department of Transport and Regional Services for approval to issue an Aviation Security Identification Card to the applicant.

.(sgd) S D Hotop.

Deputy President

CATCHWORDS

TRANSPORT – aviation transport security – applicant applied for aviation security identification card (ASIC) – applicant has adverse criminal record – issuing body refused to issue ASIC to applicant – issuing body did not apply to Secretary of Department of Transport and Regional Services (DOTARS) for approval to issue ASIC to applicant – issuing body not authorised to issue ASIC to applicant – application should be made to Secretary of DOTARS for approval to issue ASIC to applicant – decision under review set aside

Aviation Transport Security Regulations 2005 reg 6.01, reg 6.26, reg 6.27, reg 6.28 and reg 6.29

REASONS FOR DECISION

4 November 2005 Deputy President S D Hotop         

Introduction

1.      Justin Terrence Cowdrey had received from Surveillance Australia Pty Ltd an offer of employment as a Visual Observer at Broome Airport, Western Australia, but that offer was subsequently withdrawn because his application for the issue of an Aviation Security Identification Card (“ASIC”) (which he required for the purpose of frequent access to a “secure area” at the airport) was refused on 19 August 2005 by an “issuing body” under the Aviation Transport Security Regulations 2005 (“ATSR”). Mr Cowdrey has appealed to this Tribunal against that decision.

The Issue

2. The basis of the decision, dated 19 August 2005, to refuse to issue an ASIC to Mr Cowdrey was that he is not eligible to be issued with an ASIC by an “issuing body” because he has an “adverse criminal record”, as defined in the ATSR.

3. There is no dispute that Mr Cowdrey does have an “adverse criminal record” and that he is, for that reason, not eligible to be issued with an ASIC by an “issuing body”. The ATSR, however, authorise an “issuing body”, in such circumstances, to apply to the Secretary of the Department of Transport and Regional Services (“DOTARS”) for approval to issue an ASIC to the relevant person. The respondent (the relevant “issuing body”) has, however, declined to do so.

4.      The issue for the Tribunal’s determination is whether the correct or preferable decision in this case is a decision to refuse to issue an ASIC to Mr Cowdrey, or, alternatively, a decision that an application be made to the Secretary of DOTARS for approval to issue an ASIC to Mr Cowdrey.

5.      For the reasons which follow, the Tribunal has determined that, in the circumstances of this case, it is appropriate that an application be made to the Secretary of DOTARS for approval to issue an ASIC to Mr Cowdrey.

The Legislative Framework

6. Part 6 (comprising regs 6.01 – 6.59) of the ATSR, which is headed “Security Identification”, deals with, among other matters, the issue of ASICs.

7. Regulation 6.26 provides for the making of an application to an “issuing body” for the issue of an ASIC. Such an application may be made by a “person who has an operational need for frequent access to a secure area at an airport”. Pursuant to reg 6.27 (notes 1 and 2), an ASIC is presently required to enter the “security restricted area” of certain airports (including Broome Airport) and will, from 1 January 2006, be required to enter the “secure area” of all airports.

8.      Regulation 6.28 provides that, subject to subregs (3) and (4) and regs 6.29 and 6.31, an “issuing body” may issue an ASIC to a person “if and only if” the conditions specified in paras (a) – (f) are satisfied.  The relevant condition for present purposes is that specified in para (d) as follows:

“… he or she does not have an adverse criminal record”.

The phrase “adverse criminal record” is defined in subreg (5) and includes conviction of an “aviation-security-relevant offence” and the imposition of a sentence of imprisonment for a specified period. The expression “aviation-security-relevant offence” is defined in reg 6.01 to mean:

“an offence of a kind mentioned in the following table against a law of the Commonwealth, or of a State or Territory, or of any other country or part of a country:

Item Kind of offence  

1        An offence involving dishonesty

2        An offence involving violence or a threat of violence

3An offence involving intentional damage to property or a threat of damage to property

4An 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

5An offence, of a kind dealt with in Part II of the Crimes Act 1914, against the Government of:

(a)the Commonwealth or a State or Territory; or

(b)a country or part of a country other than Australia

6An offence against Part 2 of the Crimes (Aviation) Act 1991

7An offence against Part 5.3 of the Criminal Code

8An offence constituted by the production, possession, supply, import or export of explosives or explosive devices”.

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The word “sentence” is defined in reg 6.01 to include “a suspended sentence”.

9.      Regulation 6.29 provides:

“(1)If a person is not eligible to be issued an ASIC only because of paragraph 6.28(1)(d) or (f), an issuing body may apply to the Secretary, in writing, for approval to issue an ASIC to the person.

Note Paragraph 6.28(1) (d) otherwise prevents the issue of an ASIC to somebody who has been convicted of certain offences.  Paragraph 6.28(1) (f) otherwise prevents the issue of an ASIC to a person who has become disqualified (under regulation 6.48) from holding an ASIC by repeatedly contravening the display requirements.

(2)     If the Secretary needs more information to deal with an application, the Secretary may ask the issuing body, in writing, to provide the information.

(3)Within 30 days after receiving an application (or, if the Secretary has asked for information under subregulation (2), after receiving the information), the Secretary must:

(a)approve, or refuse to approve, in writing, the issuing of the ASIC; and

(b)notify the body in writing of the decision and, if the decision is a refusal, the reasons for the decision.

Note Section 27A of the Administrative Appeals Tribunal Act 1975 requires a person who makes a reviewable decision to give a person whose interests are affected by the decision notice of the making of the decision and of the person’s right to have the notice (sic) reviewed.

(4)If the Secretary has not approved, or refused to approve, the issue of the ASIC within the period allowed by subregulation (3), the Secretary is taken to have refused to approve the issue of the ASIC.

(5)Before approving or refusing to approve the issue of the ASIC to a person who is not eligible to be issued an ASIC only because of paragraph 6.28(1) (d), the Secretary must consider:

(a)the nature of the offence the person was convicted of; and

(b)the length of the term of imprisonment imposed on him or her; and

(c)if he or she has served the term, or part of the term – how long it is, and his or her conduct and employment history, since he or she did so; and

(d)if the whole of the sentence was suspended – how long the sentence is, and his or her conduct and employment history, since the sentence was imposed; and

(e)anything else relevant that the Secretary knows about.

(6)The Secretary may give an approval subject to a condition, but must notify the issuing body in writing what the condition is.”

Analysis and Findings

10.     It is an undisputed fact that Mr Cowdrey has a criminal record which comprises 2 convictions of assault occasioning bodily harm.  The first conviction occurred in the District Court of Western Australia at Broome on 8 April 1998 and resulted in a sentence of imprisonment for 9 months.  An appeal against that sentence was, however, allowed by the Supreme Court of Western Australia on 11 August 1998 and a fine of $2,000.00 was substituted.  The second conviction occurred in the Broome Court of Petty Sessions on 21 June 1999 and resulted in a sentence of imprisonment for 1 year, suspended for 18 months.

11. The Tribunal finds that the offence of assault occasioning bodily harm is an “aviation-security-relevant offence” (as defined in reg 6.01 of the ATSR) on the basis that it is an “offence involving violence”. The Tribunal also finds that, by reason of his conviction of that offence on 21 June 1999 and the suspended sentence of imprisonment for 1 year that was imposed upon him, Mr Cowdrey has an “adverse criminal record” (as defined in reg 6.28(5) of the ATSR) within the meaning, and for the purposes, of reg 6.28(1) (d) of the ATSR.

12. It follows from the latter finding that Mr Cowdrey is not eligible to be issued with an ASIC by an “issuing body” because an essential precondition of the issue of an ASIC to him is not satisfied, namely, the precondition that he “not have an adverse criminal record” (reg 6.28(1)(d)). Accordingly, the “issuing body” in this case was not authorised by reg 6.28(1) of the ATSR to issue an ASIC to Mr Cowdrey.

13. In those circumstances, however, the “issuing body” was authorised by reg 6.29(1) of the ATSR to apply to the Secretary of DOTARS, in writing, for approval to issue an ASIC to Mr Cowdrey. It chose not to do so in this case.

14. At the hearing before the Tribunal, Mr Cowdrey gave evidence regarding his family background, the circumstances of his committing the offence of assault occasioning bodily harm of which he was convicted on 21 June 1999, and his conduct and employment history since that conviction (for which he received a suspended sentence of imprisonment for 1 year). Mr Cowdrey’s evidence (which was uncontradicted) was that, since June 1999, he has had no further convictions (including traffic offences and infringement notices) and has been gainfully employed for most of that time, first as a Customer Services Officer with Centrelink (4½ years), then as an office manager with Grunts Labour Hire (12 months), and finally as an office registrar in the Broome office of the Department of Immigration and Multicultural and Indigenous Affairs, until he resigned to take up the position of Visual Observer with Surveillance Australia Pty Ltd which was offered to him on 8 July 2005. That offer, however, was (as mentioned in paragraph 1 above) subsequently withdrawn following the relevant decision of the “issuing body” to refuse to issue an ASIC to him. The Tribunal notes that Mr Cowdrey was required to obtain a security clearance from the Australian Customs Service before commencing employment with Surveillance Australia Pty Ltd, and that, on 18 August 2005, he was granted a “Protected level security clearance” by the Australian Customs Service. The Tribunal further notes in passing that the Australian Customs Service is an “issuing body” for the purposes of the ATSR (see reg 6.12).

15. In the Tribunal’s opinion, having regard to the material before it, the present case is an appropriate case for the exercise of the discretion, conferred by reg 6.29(1) of the ATSR, to apply to the Secretary of DOTARS for approval to issue an ASIC. No good reason to refuse to exercise that discretion in this case was given to the Tribunal by the respondent and, having regard to the material before the Tribunal, there is, in the Tribunal’s opinion, no good reason not to exercise that discretion in this case. On the contrary, in the Tribunal’s opinion the circumstances of the present case make it an appropriate case for the exercise of that discretion.

Decision

16. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that an application be made under reg 6.29(1) of the ATSR to the Secretary of DOTARS for approval to issue an ASIC to Mr Cowdrey.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of DEPUTY PRESIDENT S D HOTOP

Signed:         .June Rainey
  Associate

Date of Hearing  2 November 2005
Date of Decision  4 November 2005
Advocate for the Applicant       Mr James Cowdrey   
Advocate for the Respondent   Mr Scott Work