Dare v SafeWork NSW

[2021] NSWCATAD 12

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dare v SafeWork NSW [2021] NSWCATAD 12

Hearing dates:

On the papers

Date of orders:

20 January 2021

Decision date:

20 January 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

(1) Pursuant to Section 50(2) of Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with an oral hearing in this matter.

(2) The decision of SafeWork NSW to cancel Mr Dare’s accreditation as a high risk work licence assessor and to disqualify him from reapplying for a period of 5 years is set aside.

(3) In its place the Tribunal suspends Mr Dare’s accreditation as a high risk work licence assessor from the period from 1 June 2020 until now, with the result that Mr Dare has now served his suspension in full.

(4) SafeWork NSW is to restore Mr Dare’s accreditation documents to him forthwith.

Catchwords:

ADMINISTRATVE LAW – Administrative review – review of decision to cancel and disqualify the accreditation of an assessor of high risk work licences under cl 134 of the Work Health and Safety Regulation 2017 – whether Conditions for conducting high risk work license assessments in NSW breached – decisions set aside and varied

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Independent Commissioner Corruption Act 1988

Privacy and Data Protection Act 2014 (Vic)

Privacy and Personal Information Protection Act 1998

Work Health and Safety Act 2011

Work Health and Safety Regulation 2017

Cases Cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Texts Cited:

None

Category:

Principal judgment

Parties:

Trevor William Dare (Applicant)
SafeWork NSW (Respondent)

Representation:

Solicitors:
Everingham Solomons (Applicant)
Department of Customer Services, Legal (Respondent)

File Number(s):

2020/00191704

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. Trevor William Dare has made an administrative review application to the Tribunal seeking to review an internal review decision made by SafeWork NSW (the Regulator) on 1 June 2020 to cancel his accreditation as a high risk work license (HRWL) assessor under the Work Health and Safety Act 2011 (the Act) and the Work Health and Safety Regulation 2017 (the Regulation). The Regulator also determined to disqualify him from reapplying for accreditation for a period of five years.

2. Mr Dare made his application to the Tribunal on 29 June 2020. It was listed for directions on 28 July 2020 when the Tribunal made directions for the filing of submissions and evidence, including submissions as to whether the application is suitable to be determined without a hearing on the basis of the materials provided.

3. The parties have now filed all submissions and materials they seek to rely on, and the matter has been referred to me to determine whether the application should be determined without a hearing and, if so, to determine it on its merits.

Material considered by the Tribunal

4. In considering this application I have had regard to the following material and submissions provided by the parties:

1. from the applicant:

1. the application for administrative review filed, in time, by Mr Dare’s solicitors on 26 June 2020;

2. statement of Trevor William Dare dated 18 September 2020 with attachments;

3. Outline of submissions for Mr Dare received 29 September 2020 with attachments;

4. further statement of Trevor William Dare dated 11 November 2020; and,

5. Outline of Submissions In Reply for Mr there dated 9 November 2020; and,

2. from the Regulator:

1. section 58 documents consisting of two volumes with 34 separate tabs;

2. statement of Karen Turner, Manager, Registry and Accreditation, WorkSafe, NSW dated 20 October 2020; and:

3. the Regulator’s submissions.

Should the application be determined without a hearing?

5. Section 50(2) to (4) of Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) provide:

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

6. In this case both parties have indicated their agreement to the application being determined on the papers. Having reviewed all the materials I am satisfied that this is matter than can be determined in the absence of the parties by considering the materials lodged by the parties. I therefore dispense with a hearing.

Factual background

7. From 13 January 2011 Mr Dare has held a license issued in NSW to perform high risk work in the classes DG (dogging), C2 (slew cranes to 20 tons), LF (forklifts) and WP (Boom Type Elevating Work Platforms).

8. To operate slew cranes over 20 tons, up to 60 tons, a C6 license is required.

9. From 2011 onwards Mr Dare says he worked for Terry Gee Training & Assessments Pty Ltd as a trainer for high risk work. It is a registered training organisation (RTO). As a trainer he worked for accredited assessors when they conducted assessments of candidates for high HRWLs. As early as 2011 he discussed with Terry Gee the possibility of becoming an accredited assessor himself.

10. Mr Dare worked for Terry Gee Training & Assessments Pty Ltd at various times throughout 2018. On four days in 2018 he says that, in his role as trainer, he was asked to and did operate slew cranes that exceeded 20 tons, which he was not licensed to operate. This occurred on 22 and 23 February 2018 near Moree with a 25 ton crane, and at Inverell on 10 and 11 May with a 30 ton crane. On both occasions Mr Gee was the assessor. Mr Dare’s unchallenged evidence is that on each occasion he drew the problems with his license to Mr Gee’s attention, who then put pressure on him to operate the cranes concerned as the assessments could not be completed if they were not used. He then proceeded to operate them.

11. On 5 June 2018 Mr Dare applied for accreditation as a HRW license assessor in the categories DG, LF and WP.

12. Mr Dare obtained a C6 crane operators license on 1 August 2018 following the issue to him of a notice of satisfactory assessment (NSA) in the operation of a 60 ton slew crane.

13. On 7 and 8 August 2018 he attended an examination day and an induction day for New South Wales assessors in which the conditions of accreditation were reviewed and discussed. He was provided with a copy of the assessor’s code of conduct.

14. On 5 September 2018, the regulator advised Mr Dare that he had been granted accreditation as an HRW license assessor in the categories DG, LF and WP. He subsequently applied for this to be extended to class C2. This was refused on 30 January 2019.

15. On 5 February 2019 Mr Dare applied to WorkSafe Victoria to be authorised as an assessor in Victoria in the HRW classes DG, LF and WP. He was granted full authorisations in the classes DG and LF but was only given a temporary authorisation for the class WP.

16. By the middle of 2019, Mr Dare applied for accreditation as an HRW license assessor for C2 and C6 cranes in both States. On 1 May 2019 he made application to WorkSafe Victoria for additional accreditation in the classes C2 and C6. Despite concerns regarding the veracity of his resume, Mr Dare was granted accreditation as a C2 assessor by WorkSafe Victoria, following a senior management review on 23 August 2019. His application for accreditation as a C6 assessor was refused at that time.

17. On 9 June 2019 Mr Dare wrote to Mr Gee requesting copy notices of assessment (NSAs) that he ‘still needed’ relating to dogging and C2 work he had done on a number of other dates in 2018. He needed them before a meeting with his solicitor. Annexed to his first statement are copies of emails from Mr Gee in reply attaching scanned copies of various NSA’s.

18. On 27 September 2019 Mr Dare applied to the Regulator for accreditation as a HRW license assessor in the additional categories of C2 and C6 cranes. This application was refused as Mr Dare had not passed the necessary exam satisfactorily. The refusal decision included the following passage:

… in your submission, you advise that this matter is urgent due to upcoming work opportunities in Victoria, and Western Australia.

To verify this assertion, SafeWork NSW made enquiries with the Victorian regulator and were advised that there is no record of your application for Victorian accreditation and upcoming attendance at the assessor induction on 18 - 19 February at Geelong.

SafeWork NSW would like to take this opportunity to remind you of your obligations and duties as a New South Wales public official and is serious ramifications of making false and/or misleading claims in your submissions to coerce a favourable result.

This is difficult to reconcile with Mr Dare being accredited as an assessor earlier in 2019 by WorkSafe Victoria.

19. On 15 November 2019, Karen Turner, Manager, Registry and Accreditation, SafeWork NSW, received an email from WorkSafe Victoria, which advised that Mr Dare had recently sat a C6 assessment exam and that he was likely to be accredited as a C6 assessor. It also attached a number of NSA’s he had provided to WorkSafe Victoria. These showed the names, dates of birth and phone numbers of candidates for assessment in NSW. The email explained:

… Mr Dare submitted a number of NSW NSA forms which state that he was operating cranes that require a C6 HRW license to assist Assessor Terry Gee conducting dogging assessments.

The dates on the NSA’s appeared to be prior to Mr Dare holding his C6 HRW license which he obtained in August 2018 in NSW.

When I asked Mr Dare about this, he stated he believed that he did not require a C6 license as they were using the auxiliary hook and his C2 license would be cover him (sic). I told him that this would not be accepted in Victoria and I doubt whether the same (sic) in NSW which he stated was guided by the RTO and that [a Workplace Inspector] had said that this was okay??

In making the decision to authorise Mr Dare in Victoria, we were assessing his experience which we believe he was able to demonstrate enough to be authorised, regardless of the potential unlicensed train operations in New South Wales.

20. Mr Dare denies that that he ever said that the workplace inspector told him it was OK to operate the crane as alleged in the email from WorkSafe, Victoria.

21. On 11 December 2019 Mr Dare’s application for accreditation as a HRW licence assessor in NSW in the classes C2 and C6 was approved. No mention was made of any concerns relating to his unlicensed operation of a crane over 20 tons, or his disclosure of NSW NSA’s to WorkSafe Victoria, when this accreditation was granted. This is so despite the Regulator being aware of those issues and Ms Turner arranging to discuss them with other staff. In her statement Ms Turner explains that the granting of accreditations and investigations into complaints are managed as separate processes by the Regulator.

22. In early 2020 the Regulator commenced an investigation into Mr Dare’s unlicensed operation of cranes over 20 tons while participating as a trainer in assessments performed by Mr Terry Gee and into his use of the NSAs. Mr Gee in an email to the Regulator dated 4 March 2020 said that he had not given the NSAs to Mr Dare and suggested that he had helped himself to them. He wrote:

At no time did I authorise Mr Dare or anybody else to copy any documents in relation to assessments and use them.

23. The emails from Mr Gee to Mr Dare dated 9 June 2018 attaching scanned copies of the NSA’s, demonstrate that Mr Gee gave Mr Dare copies of the NSA’s he requested. I think it clear that the NSAs were voluntarily provided to Mr Dare. I am not persuaded that he had them without Mr Gee’s consent.

24. On 11 March 2019, the Regulator wrote to Mr Dare enclosing a notice of proposal to cancel his accreditation and seeking his submissions in response. The breaches outlined were in summary,

1. that by providing the NSA’s to WorkSafe Victoria in support of his accreditation application he had breached conditions of his accreditation in NSW, by breaching the privacy of NSW license holders; and

2. he had undertaken unlicensed work when operating cranes over 20 tons.

25. On 21 April 2020 Mr Dare’s solicitors responded in some detail.

26. On 1 May 2020 Mr Dare was advised that his accreditation was cancelled, and he was disqualified from reapplying for five years. That decision was made by Ms Turner.

27. On 4 May 2020 Mr Dare’s solicitors sought an internal review of the decision.

28. On 1 June 2020, the decision was affirmed on internal review. The reasons for decision on internal review were provided in a letter written by the Manager of the Governance and Appeals Unit, not the internal reviewer. The reasons consisted of two short paragraphs which read:

1. The legislative requirements in relation to the requirement to hold a license to perform high risk work of particular types is clear and does not support a failure to follow any requirement because they were working in remote or rural community (sic) or the person is assisting another person, specifically in assessor or that the person is relying upon the guidance of another person.

2. The requirements of privacy are clearly communicated and made aware to NSW SafeWork Accredited Assessors. In this instance the applicant did utilise people’s personal and private information for a purpose not intended which does support a serious contravention of the agreement and conditions between the applicant and the regulator being SafeWork NSW.

29. Mr Dare then applied to the Tribunal seeking external review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

Relevant legislation and conditions

30. The objects of the Act are set out in section 3, which provides:

(1)  The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—

(a)  protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

(b)  providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and

(c)  encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and

(d)  promoting the provision of advice, information, education and training in relation to work health and safety, and

(e)  securing compliance with this Act through effective and appropriate compliance and enforcement measures, and

(f)  ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and

(g)  providing a framework for continuous improvement and progressively higher standards of work health and safety, and

(h)  maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2)  In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.

31. Part 2 of the Act achieves this by, inter alia, imposing health and safety duties on those conducting businesses and others in the workplace, including workers, which seek to ensure the health and safety of all involved in the workplace and the minimisation of risk. Section 17 provides:

A duty imposed on a person to ensure health and safety requires the person—

(a)  to eliminate risks to health and safety, so far as is reasonably practicable, and

(b)  if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

Specific duties are assigned to officers (s 27), workers (s 28), and other persons in the workplace (s 29).

32. Part 4 of the Act sets out a scheme of authorisations which requires that certain workplaces, plant, substances, and work be authorised in accordance with the Regulation and that specified persons hold necessary qualifications. Section 43(1) which is relevant in Mr Dare’s case, provides:

(1) A person must not carry out work at a workplace if—

(a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised, and

(b) the person, or the person on whose behalf the work is carried out, is not authorised in accordance with the regulations.

Maximum penalty—

(a) in the case of an individual—230 penalty units, or

(b) in the case of a body corporate—1,155 penalty units.

People who hold authorities are required to comply with the conditions of their authorities. Section 45 provides:

A person must comply with the conditions of any authorisation given to that person under the regulations.

Maximum penalty—

(a) in the case of an individual—230 penalty units, or

(b) in the case of a body corporate—1,155 penalty units.

33. Section 276 of the Act contains a wide regulation making power. It relevantly provides:

(1) The Governor may make regulations in relation to—

(a) any matter relating to work health and safety, and

(b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act.

(2) Without limiting subsection (1), the regulations may make provision for or in relation to matters set out in Schedule 3.

(3) The regulations may—

(a) be of general or limited application, or

(b) differ according to differences in time, place or circumstance, or

(c) leave any matter or thing to be, from time to time, determined, applied or approved by the regulator, an inspector or any other prescribed person or body of persons, or

(d) apply, adopt or incorporate any matter contained in any document formulated, issued or published by a person or body whether—

(i) with or without modification, or

(ii) as in force at a particular time or as in force or remade from time to time, or

(e) prescribe exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed, or

(f) allow the regulator to provide exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed or, if the regulations allow, on the terms and conditions (if any) determined by the regulator, or

(g) prescribe fees for doing any act or providing any service for the purposes of this Act, or

(g1) the waiver, reduction, postponement or refund by the regulator of fees payable or paid under this Act or the regulations, or

(h) prescribe a penalty for any contravention of the regulations not exceeding an amount equal to the monetary value of 345 penalty units.

(4) The Minister is not to recommend the making of a regulation containing provisions that confer jurisdiction of the Civil and Administrative Tribunal to exercise functions unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions.

34. Schedule 3 of the Act contains further provisions concerning the regulation making power under the Act. Clause 7 of the schedule relevantly provides that the power includes:

(1) Matters relating to authorisations (including licences, registrations and permits) and qualifications, and experience for the purposes of Part 4 or the regulations including providing for—

(a) applications for the grant, issue, renewal, variation, suspension and cancellation of authorisations, including the minimum age to be eligible for an authorisation, and

(b) the evidence and information to be provided in relation to applications including the provision of statutory declarations, and

(c) exemptions, and

(d) variations of authorisations by the regulator whether on application or otherwise, and

(e) authorisation of persons as trainers and assessors, and

(f) examination of applicants for authorisations, and

(g) conditions of authorisations, and

(h) fees for applications for the grant, issue, renewal and variation of authorisations.

(2) The recognition of authorisations under corresponding WHS laws and exceptions to recognition.

(3) The sharing of information with corresponding regulators relating to the grant, issue, renewal, variation, suspension or cancellation of authorisations.

35. Clause 14(d) of Schedule 2 provides a regulation making power with respect to reviews including –

(d) conferring jurisdiction on the Civil and Administrative Tribunal to conduct administrative reviews under the Administrative Decisions Review Act 1997.

36. The Regulation then contains provisions further regulating various matters under the Act including provisions relating to assessors and decisions which can be reviewed under the ADR Act.

37. Division 2 of Part 4.5 of the Regulation is concerned with assessors for high risk work licenses. Persons who are not accredited assessors are prohibited from conducting competency assessments and issuing NSAs (clause 113). Accredited assessors are required to conduct assessments in accordance with the conditions of accreditation and only with respect to the class of work for which they are accredited (clause 114).

38. Provisions relating to the accreditation of assessors are found in Subdivision 2. When deciding an application for accreditation, clause 118 relevantly instructs:

(1) Subject to subclause (3), the regulator must grant an accreditation if satisfied about the matters referred to in subclause (2).

(2) The regulator must be satisfied that—

(a) the applicant—

(i) is qualified to conduct the competency assessment to which the application relates, and

(ii) is able to conduct the competency assessment to which the application relates competently, and

(iii) is able to ensure compliance with any conditions that will apply to the accreditation, or

(b) the applicant holds a current equivalent accreditation under a corresponding WHS law.

(3) The regulator must refuse to grant an accreditation if satisfied that—

(a) the applicant is disqualified under a corresponding WHS law from holding an equivalent accreditation, or

(b) the applicant, in making the application, has—

(i) given information that is false or misleading in a material particular, or

(ii) failed to give any material information that should have been given.

(4) If the regulator decides to grant the accreditation, it must notify the applicant within 14 days after making the decision.

(5) …

39. Clause 119 sets out considerations to which the Regulator must have regard when considering an accreditation application:

For the purposes of clause 118(2)(a)(ii) and (iii), the regulator must have regard to all relevant matters, including the following—

(a) any offence under the Act or this Regulation or under a corresponding WHS law of which the applicant has been convicted or found guilty,

(b) any enforceable undertaking the applicant has entered into under the Act or a corresponding WHS law,

(c) in relation to any equivalent accreditation applied for or held by the applicant under the Act or this Regulation or under a corresponding WHS law—

(i) any refusal to grant the accreditation, and

(ii) any condition imposed on the accreditation, if granted, and

(iii) any suspension or cancellation of the accreditation, if granted, including any disqualification from applying for any accreditation,

(d) the applicant’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.

40. Clause 121 is concerned with the conditions of accreditation. It provides:

(1) The regulator may impose any conditions it considers appropriate on an accreditation.

(2) Without limiting subclause (1), the regulator may impose conditions—

(a) relating to the competency assessments and assessment activities that may be carried out, and

(b) relating to the circumstances in which competency assessments or assessment activities may be carried out, and

(c) requiring the accredited assessor to keep specified information, and

(d) requiring the accredited assessor to give specified information to the regulator.

41. The Regulator has published a document entitled, ‘Conditions for conducting high risk work license assessments in NSW under the Work Health and Safety Regulation 2011’ (the conditions), effective 1 January 2013. This sets out conditions and requirements for accredited HRWL assessors. These include, at page 6, that an assessor must:

1. Comply with the conditions including the code of conduct.

2. Professionally represent the Regulator and promote its initiatives in a positive manner.

3. Maintain ethical and professional conduct at all times.

4. Comply with the Act and the Regulation.

42. Section 4 of the conditions contains a code of conduct for RTO’s and assessors. It opens by stating that assessors are ‘public officials’ for the purposes of the Independent Commissioner Corruption Act 1988 (the ICAC Act) when conducting assessments. It states:

Public officials have an obligation to the community to conduct business diligently, efficiently, honestly, impartially and with integrity. Public officials must act in a manner to maintain public confidence and trust. Unethical or improper behaviour or any form of corruption is not acceptable.

Assessors are warned that they may have obligations under the Privacy and Personal Information Protection Act 1998 (the PIPP Act).

43. Condition 12 on page 11 of the conditions states:

The applicant’s personal details and assessment records must be kept confidential at all times and must not be disclosed by the RTO or assessor to any person other than their affiliated RTO and/or authorised WorkCover officers.

Note: information collected is covered by the PIPP Act and may be available to other state government agencies for the purpose of confirming the applicant’s details.

44. Condition 30 on page 13 of the conditions states:

All NSA/AS books allocated to an assessor or must remain under the control of and assessor and not be given to other persons. An NSA/AS book must not be left unattended and must be stored in a secure location at all times.

45. Subdivision 5 of Part 4.5 of the Regulation is concerned with the suspension and cancellation of accreditation. Clauses 133 to 135 provide:

133 Regulator may suspend or cancel accreditation

(1) The regulator may, under this Division—

(a) suspend or cancel an accreditation, and

(b) if suspending an accreditation, vary the conditions of the accreditation, including by imposing different or additional conditions.

(2) If the regulator cancels an accreditation, the regulator may disqualify the accredited assessor from applying for a further accreditation for a specified period.

Note—

A decision to suspend or cancel an accreditation, to vary the conditions of an accreditation or to disqualify an accredited assessor from applying for a further accreditation is a reviewable decision (see clause 676).

134 Suspension or cancellation of accreditation

(1) The regulator may suspend or cancel an accreditation if satisfied about 1 or more of the following—

(a) the accredited assessor is no longer qualified to conduct the competency assessment specified in the assessor’s accreditation document,

(b) the accredited assessor is not able to conduct the competency assessment to which the accreditation relates competently,

(c) the accredited assessor has failed to comply with a condition imposed on the accreditation under clause 121,

(d) the accredited assessor, in the application for the grant or renewal of accreditation or on request by the regulator for additional information—

(i) gave information that was false or misleading in a material particular, or

(ii) failed to give any material information that should have been given in that application or on that request.

(2) In subclause (1)(a), qualified has the same meaning in relation to an accredited assessor as it has in clause 118 in relation to an applicant for accreditation.

135 Matters to be taken into account

(1) In making a decision under clause 133, the regulator must have regard to—

(a) any submissions made by the accredited assessor under clause 136, and

(b) any advice received from a corresponding regulator.

(2) For the purposes of clause 134(1)(b) and (c), the regulator must have regard to all relevant matters, including the following—

(a) any offence under the Act or this Regulation or under a corresponding WHS law, of which the accredited assessor has been convicted or found guilty,

(b) any enforceable undertaking the accredited assessor has entered into under the Act or a corresponding WHS law,

(c) in relation to any equivalent accreditation applied for or held by the accredited assessor under the Act or this Regulation or under a corresponding WHS law—

(i) any refusal to grant the accreditation, and

(ii) any condition imposed on the accreditation, if granted, and

(iii) any suspension or cancellation of the accreditation, if granted, including any disqualification from applying for any accreditation,

(d) any suspension of a high risk work licence held by the accredited assessor under the Act or this Regulation or under a corresponding WHS law,

(e) the accredited assessor’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.

46. Part 11.5 of the Regulation is concerned with the review of decisions made under the regulation. Clause 676 sets out what decisions made under the regulations are reviewable and who may review them. This includes a decision to suspend and cancel an accreditation under clause 133, and a decision to disqualify an assessor from applying for a further accreditation, under the same clause. In each case the assessor concerned may seek a review. Division 2 of Part 11.5 then sets out an internal review mechanism whereby an internal review of such a decision can be sought within 28 days of the decision (clause 678). The person who made the initial decision cannot conduct the internal review (clause 679). The internal reviewer may seek additional information from the applicant which the applicant is bound to provide (clause 680(3) and (4)). If an internal review decision is not made within 21 days, the reviewable decision is taken to be confirmed (clause 680(6)). Within 21 days the reviewer should provide the applicant with the decision on internal review and reasons for that decision (clause 681). An eligible person may apply to the Tribunal for external review under the ADR Act within 28 days (clause 683).

47. It is to be noted that the provisions of the Act and the Regulation do not seek to expressly modify or repeal any provisions of the ADR Act in their application to reviews of decisions made under the Regulation.

48. Clause 676 of the Regulation together with section 9 of the ADR Act and section 30 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) combine to give the Tribunal jurisdiction to hear and determine Mr Dare’s application for administrative review.

49. Section 63 of the ADR Act says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Consideration of factual Issues

50. Having considered all the material before the Tribunal, including the detailed written submissions from the parties, it is apparent that the parties agree on several things. These are that:

1. On 22 and 23 February 2018 and 10 and 11 May 2018 Mr Dare who was then the holder of a C2 HRW license operated cranes greater than 20 tons, which he was not authorised to operate.

2. On 1 August 2018 Mr Dare obtained a C6 crane operator’s license.

3. On 5 February 2019 Mr Dare was advised by the Regulator that he was authorised as a license assessor in HRW classes DG, LF and WP (temporary). Mr Dare was not an authorised assessor before then.

4. On 11 December 2019 Mr Dare was authorised as a license assessor in the additional HRW classes C2 and C6.

5. There is no suggestion that Mr Dare is not qualified to conduct competency assessments in the classes DG, LF, WP, C2 and C6, or that he is not able to conduct such assessments competently.

51. In dispute is:

1. Whether Mr Dare breached the conditions, specifically condition 12 (quoted at paragraph 43 above) by disclosing to WorkSafe Victoria copies of the NSW NSA’s relating to his work for Terry Gee Training & Assessments Pty Ltd in 2018. There is no dispute that he did so for the purpose of proving his experience and competence.

2. Whether the note to condition 12 of the assessable conditions and condition 30 should have alerted Mr Dare to the need to “seek guidance” from the Regulator before disclosing the NSW NSA’s to WorkSafe Victoria.

3. Whether and when Mr Dare was required to report his unlicensed use in 2018 of a slew crane over 20 tons in accordance with the conditions.

4. Whether, considered in the light of an assessor’s status as a public official within the meaning of the ICAC Act, Mr Dare failed to meet the requirement of ‘ethical and professional conduct at all times” and did not display the integrity required of an accredited assessor.

Did Mr Dare breach the condition 12 by disclosing the NSW NSA’s to WorkCover Victoria?

52. Condition 12 provides that assessment records “must not be disclosed by the… assessor or to any person.” It is apparent from reading the plain words of condition 12 and considering its surrounding context that the assessor referred to in condition 12, is the assessor who undertakes a HRWL assessment to which the assessment relates. It does not apply to some other assessor, or person who is not an assessor who comes into possession of an NSA. Consequently, I do not accept that Mr Dare breached condition 12 as it did not apply to him in the circumstances.

53. The evidence points to Mr Dare coming into possession of the NSA’s in June 2019 after he became an accredited assessor. The Regulator says that he should have been aware at that time, by virtue of his assessor training and because of statements in the conditions relating to privacy that care should be used before disclosing the personal information of any candidates for assessment. Mr Dare, on the other hand, says at paragraph 23 of his first statement:

… It was my belief, given the common legislation and requirements, that I was merely providing this documentation between two levels of supervision provided by separate State Governments. Further, it was my recollection that I was provided by Safework New South Wales an assessor handbook that clearly stated I could provide information between two, parable state regulators.

54. Mr Dare has not produced the assessor handbook. I am unable to locate any document in the section 58 documents that indicates an assessor is free to provide NSW documents to another state regulator. Nonetheless, Mr Dare’s explanation is an understandable one for those unfamiliar with the nuances of privacy law.

55. I am not persuaded that Mr Dare breached condition 12 of the conditions by disclosing the NSA’s to WorkCover Victoria for his own purposes. The condition did not apply to him in these circumstances. I am also not persuaded that he disclosed personal information in deliberate disregard of his privacy obligations as a contractor with the Regulator. I agree with the Regulator that the disclosure of the NSA’s to WorkCover Victoria for Mr Dare’s purposes would not be an authorised disclosure under the PIPP Act.

56. Whether the disclosure by Mr Dare amounts to unethical or unprofessional conduct or shows a lack of integrity on his part is discussed below.

Should the note to condition 12 have alerted Mr Dare to potential privacy problems?

57. In submissions the Regulator argues that the note to condition 12 should have alerted Mr Dare –

… to concerns regarding the privacy of the named individuals and that he was subject to ensuring that he did not disclose these details to any other persons than stated.

58. While I agree that condition 12 itself should have alerted Mr Dare to the need for an accredited assessor to keep applicant’s details and assessment records confidential, I do not agree that the note to the condition has that effect. Rather, it points to a likelihood of the information being shared with other state government agencies.

Was Mr Dare required to report his unlicensed use in 2018 of a slew crane over 20 tons?

59. In its submissions the Regulator argued –

Mr Dare was, or what to have been, aware of the provisions of the Conditions concerning alerting SafeWork NSW to any behaviour an assessor considers may be in contravention of the conditions (see page 11 Tab 31 of the SafeWork New South Wales section 58 documents). It is submitted that knowing (sic) assisting with an accreditation assessment utilising a crane Mr Dare was not licensed to operate would constitute an activity required to be reported.

60. When Mr Dare operated the cranes he was not licensed to operate he was not an accredited assessor. He was yet to make his first application for accreditation.

61. Page 11 of the conditions forms part of section 4 of that document, the Code of Conduct. A close reading of the entire Code of Conduct reveals that all its provision – save 5 – apply to either RTO’s or assessors. Clause 5 extends to impose understandable obligations, without apparent legislative authority, on associates of assessors prohibiting them from receiving bribes or inducements. Clause 7 provides that an assessor must not make misleading statements in their dealings with the Regulator. Clause 8 requires assessors to notify the Regulator, among other things of “behaviour that they may be aware of which is contrary to the conditions.” The remaining provisions do not impose any potentially relevant obligations on RTO’s or assessors and do not require the disclosure by assessors of behaviour in breach of the Act or Regulation, concerning which they have not been convicted, which occurred before they became accredited assessors.

62. I can find nothing in the Code of Conduct or the conditions generally which impose an obligation on an assessor to notify the Regulator of conduct relating to assessments undertaken by others (such as Mr Gee), whether before they themselves were accredited as assessors or not.

63. I have read each of Mr Dare’s applications for accreditation. While they asked many questions concerning his background and personal circumstances - including relating to prior convictions - they did not contain any questions which required him to volunteer that he had operated a crane, for which he did not hold a license, prior to becoming an accredited assessor.

64. There is nothing in the section 58 documents or other material relied on by the Regulator which demonstrates that Mr Dare as either an assessor, an applicant to be accredited as an assessor, or as a HRW license holder, was under an obligation to disclose his unlicensed operation of a slew crane over 20 tons. If he had been charged and convicted with an offence relating to that unlicensed operation under section 43 of the Act, he would have been obliged to disclose that conviction. But he had not been convicted. I reject the Regulator’s contention that he was obliged to voluntarily disclose his unlicensed operation of the crane, without being asked a question which required him to address that issue. There was no requirement that he simply volunteer his conduct.

60. In the circumstances of this case, Mr Dare was not required to disclose to the Regulator his unlicensed operation of a slew crane over 20 tons before he became an accredited assessor.

61. I think it important to note that when Mr Dare was accredited as a HRWL assessor for C2 and C6 cranes, the Regulator knew that he had previously operated C6 cranes without a license but chose not to consider that in the assessment. In her statement Ms Turner explains that this was done as a matter of fairness as there was a separate investigation under way. I do not understand how, given the provisions of clause 134 of the Regulation, the Regulator was able to simply ignore this knowledge when considering the accreditation application, whatever the justification.

Was Mr Dare’s conduct unethical or unprofessional?

67. This needs to be considered in the light of my findings regarding Mr Dare’s conduct with respect to the disclosure, when he was an assessor, of the NSW NSA’s to WorkCover Victoria, and with respect to his nondisclosure of his unlicensed crane operation before he became an assessor.

68. With respect to the latter, I have found that he was under no obligation to disclose the unlicensed operation. In submissions the Regulator has pointed to the conditions as being the source of such an obligation. The Regulator has not pointed to any legal or moral precept that required Mr Dare to disclose his unlicensed crane operation. It is to be noted that when the matter did come to the attention of the Regulator, Mr Dare admitted his conduct and has not sought to hide or resile from it. I find that he acted with integrity in this regard, and that there is nothing that points to his conduct being unethical or unprofessional.

69. With respect to the breach of privacy Mr Dare does not deny disclosing the NSW NSA’s to WorkCover Victoria. His explanation is that he did so believing he was disclosing the information to another related regulator. He agrees that the purpose was to demonstrate his own professional history.

70. His conduct does not amount to a breach of the assessor condition 12 as he was not the assessor involved in the relevant assessments. It is however a technical breach of the privacy obligations on assessors, which the conditions alerted him to.

71. The disclosure of the personal information of the assessment candidates in the NSAs was not at large. It was made to WorkCover Victoria, which itself is under obligations to respect the privacy of the information concerned under the Privacy and Data Protection Act 2014 (Vic). Therefore, the information remained protected under that regime after the disclosure. In the circumstances I am not persuaded that the disclosure was unethical. It did not breach condition 12. The disclosure was not wrongly motivated or immoral. There was no lack of integrity shown.

72. I am, however, persuaded that given the level of competency expected of assessors and their status as public officers for the purposes of the ICAC Act - which is an acknowledgement of their vulnerability to corruption - that Mr Dare should have been aware that the disclosure of information, concerning which the Regulator had obligations under the PIPP Act, to WorkCover Victoria should not have occurred. While I accept his explanation for the disclosure as a genuine one, I nonetheless think the disclosure unprofessional for an assessor given the clear expectations of competency, attention to detail, and with respect to the protection of confidential information, placed on assessors.

Consideration

73. The reasons for decision given on internal review (quoted at paragraph 28 above) consist of two paragraphs which replied to some of the submissions made by Mr Dare’s solicitor. They do not contain any findings of fact or analysis of the applicable law. There is no application of the law to the facts as found. There is no discussion of an appropriate penalty or justification of the penalty imposed.

74. Mr Dare’s counsel submit that the internal review decision is affected by Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Given that this is an administrative review in which the Tribunal hears and determines the matter afresh, on the evidence before it, that submission is not helpful.

75. The issue that requires consideration at this point are twofold. First, whether in the circumstances as I have found them, the Tribunal should suspend or cancel Mr Dare’s accreditation, and, if so, which? Secondly, if cancelled, should a period of disqualification be imposed?

Can the accreditation be cancelled or suspended?

76. Clause 134 of the Regulation (quoted at paragraph 45 above) is concerned with suspension or cancellation of accreditation. It sets out in paragraphs (a) to (d) five circumstances in which the Regulator may suspend or cancel an accreditation. They are:

1. When the assessor is no longer qualified to conduct assessments – there is no suggestion that this is the case here.

2. When the assessor is not able to conduct assessments competently – there is no suggestion that this is the case here.

3. When the assessor has failed to comply with the conditions – in Mr Dare’s case I have found that his disclosure of NSW NSA’s to WorkCover Victoria on one occasion was unprofessional conduct in breach of the conditions. I am not satisfied that this conduct was unethical or that any other condition was breached as a result of this conduct. His conduct did not demonstrate a lack of integrity.

4. When the assessor in an application for accreditation, or accreditation renewal, gave false or misleading information in a material particular or failed to give material information that should have been given on that request – in Mr Dare’s case I am not satisfied that he gave false information or that he failed to disclose material information that should have been given. As discussed above he was not asked a question which would require him to disclose his unlicensed operation of C6 cranes.

77. Clause 135(2) of the Regulation (quoted at paragraph 45 above) provides that when considering whether an assessor can conduct assessments competently or has breached a condition of accreditation, the regulator may have regard to “all relevant matters” including offences for which the assessor has been convicted or found guilty, and enforceable undertakings entered into by the assessor. In Mr Dare’s case his admitted unlicensed crane operation – before he became an assessor – is not relevant to the issue of whether he has failed to comply with a condition of accreditation. This was so as it occurred before he became an assessor and is not a matter that he was required to disclose in his accreditation applications. There is no issue as to his competence.

78. It follows that I am satisfied on review that it is open to the Tribunal, standing in the shoes of the Regulator, to suspend or cancel Mr Dare’s accreditation.

Penalty

79. In her original decision Ms Turner wrote –

Given the seriousness of the breaches, SafeWork has determined that the appropriate action is to cancel your accreditation as a HRWL assessor and disqualify you from reapplying for accreditation for a period of five years.

80. Ms Turner did not explain why she had reached that conclusion. There is no indication of why she preferred cancellation to suspension, or what was so egregious about Mr Dare’s conduct that it merited a very substantial disqualification period of five years.

81. The internal review decision did not address these issues at all, when it should have. The regulator’s submissions do not contain any submissions addressing why a cancellation and substantial disqualification is appropriate. Indeed, they canvass the possibility of the Tribunal taking a different view as to penalty.

82. Mr Dare’s submissions argue that the penalty given is unwarranted and point to the difficulties he has suffered as a result of his cancellation. It is submitted that the being without his accreditation for more than six months is sufficient penalty, and that his accreditation should be restored to him.

83. In my opinion the unprofessional conduct of Mr Dare in disclosing the personal information in the NSW NSAs to WorkCover Victoria, while a breach of his assessor conditions, is not a breach meriting a severe penalty. For reasons already given no real damage is likely to flow from that disclosure. I therefore accept Mr Dare’s submissions that the penalty already exacted against him is more than sufficient.

84. I will set aside the decision made by the Regulator and in its place suspend Mr Dare’s assessor accreditation for the period 1 June 2020 until now. He has therefore served his entire suspension. The fact that I have suspended Mr Dare’s accreditation, rather than cancelled it, means that his accreditation documents should be restored to him forthwith.

Orders

85. The Tribunal makes the following orders:

1. Pursuant to Section 50(2) of Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with an oral hearing in this matter.

2. The decision of SafeWork NSW to cancel Mr Dare’s accreditation as a high risk work licence assessor and to disqualify him from reapplying for a period of 5 years is set aside.

3. In its place the Tribunal suspends Mr Dare’s accreditation as a high risk work licence assessor from the period from 1 June 2020 until now, with the result that Mr Dare has now served his suspension in full.

4. SafeWork NSW is to restore Mr Dare’s accreditation documents to him forthwith.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 20 January 2021