DINGEY and COMMERCIAL AGENTS
[2005] WASAT 99
•29 APRIL 2005
DINGEY and COMMERCIAL AGENTS [2005] WASAT 99
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 99 | |
| SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 | |||
| Case No: | VR:131/2005 | PRIMARY HEARING: 29 APRIL 2005; DIRECTIONS HEARINGS: 10 MARCH 2005, 24 MARCH 2005 AND 19 APRIL 2005 | |
| Coram: | DR B DE VILLIERS (MEMBER) MS M CONNOR (MEMBER) BRIG A G WARNER (SENIOR SESSIONAL MEMBER) | 29/04/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | 1. The application is treated as an application for review of a decision under s 72(1) of the Security and Related Activities (Control) Act 1996 2. The application for review is upheld 3. The notice of revocation of the crowd control licence of the applicant dated 17 January 2005 is set aside 4. The applicant is re-instated as crowd controller | ||
| B | |||
| PDF Version |
| Parties: | EDWARD JOHN DINGEY COMMERCIAL AGENTS |
Catchwords: | Crowd Control Revocation of licence Lawful excuse Failure to undergo urine test |
Legislation: | Security and Related Activities (Control) Act 1996, s 35, s 67(1), s 72(1), s 72(2)(d), s 80, s 80 (1), s 81(1), s 81(1)(a), State Administrative Tribunal Act 2004, s 7, s 11 (4), s 11(8), s 25(1), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5), s 98, |
Case References: | Hancock v Birsa (1972) WAR 177 Holmes v Hatton (1978) 18 SASR 412 Signorotto v Nicholson [1982] VR 413; (1981) 46 LGRA 141 Wong Pooh Yin v Public Prosecutor [1955] Nil |
Orders | The application is treated as an application for review of a decision under s 72(1) of the Security and Related Activities (Control) Act 1996.,The application for review is upheld.,The notice of revocation of the crowd control licence of the applicant dated 17 January 2005 is set aside.,The applicant is re-instated as crowd controller. |
Summary | The applicant seeks a review under s 72(1) of the Security and Related Activities (Control) Act 1996 of the decision by the licensing officer pursuant to s 81(1) to revoke his licence as crowd controller following non-compliance with a directive to attend a urine test (any reference to a section of an Act is, unless otherwise specified, a reference to the said Act).,The applicant contends he had a lawful excuse under s 81(1)(a) for not attending the test due to business commitments. He also holds that he was of the understanding that his explanation for non-attendance had been accepted by the police officers who served the notice. The applicant concludes that the Tribunal should therefore set aside the decision of the licensing officer to revoke his crowd controller licence.,The respondent contends that the licensing officer may under s 81(1) revoke the applicant's crowd controller licence due to his failure to comply with a directive under s 80(1) to submit himself for a urine test without having a lawful excuse as provided for in s 81(1)(a). The licensing officer took into account the explanation offered by the applicant and concluded that it did not constitute a lawful excuse as required by the Act. The respondent holds that the Tribunal should therefore affirm the decision by the licensing officer to revoke the applicant's licence as crowd controller and dismiss the application. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 CITATION : DINGEY and COMMERCIAL AGENTS [2005] WASAT 99 MEMBER : DR B DE VILLIERS (MEMBER)
- MS M CONNOR (MEMBER)
BRIG A G WARNER (SENIOR SESSIONAL MEMBER)
- Applicant
AND
COMMERCIAL AGENTS
Respondent
Catchwords:
Crowd Control - Revocation of licence - Lawful excuse - Failure to undergo urine test
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Legislation:
Security and Related Activities (Control) Act 1996, s 35, s 67(1), s 72(1), s 72(2)(d), s 80, s 80 (1), s 81(1), s 81(1)(a),
State Administrative Tribunal Act 2004, s 7, s 11 (4), s 11(8), s 25(1), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5), s 98,
Result:
1. The application is treated as an application for review of a decision under s 72(1) of the Security and Related Activities (Control) Act 1996
2. The application for review is upheld
3. The notice of revocation of the crowd control licence of the applicant dated 17 January 2005 is set aside
4. The applicant is re-instated as crowd controller
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Sgt S Bagley
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Hancock v Birsa (1972) WAR 177
Holmes v Hatton (1978) 18 SASR 412
Signorotto v Nicholson [1982] VR 413; (1981) 46 LGRA 141
Wong Pooh Yin v Public Prosecutor [1955]
Case(s) also cited:
Nil
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REASONS FOR DECISION
Issue
1 The applicant seeks a review under s 72(1) of the Security and Related Activities (Control) Act 1996 of the decision by the licensing officer pursuant to s 81(1) to revoke his licence as crowd controller following non-compliance with a directive to attend a urine test (any reference to a section of an Act is, unless otherwise specified, a reference to the said Act).
2 The applicant contends he had a lawful excuse under s 81(1)(a) for not attending the test due to business commitments. He also holds that he was of the understanding that his explanation for non-attendance had been accepted by the police officers who served the notice. The applicant concludes that the Tribunal should therefore set aside the decision of the licensing officer to revoke his crowd controller licence.
3 The respondent contends that the licensing officer may under s 81(1) revoke the applicant's crowd controller licence due to his failure to comply with a directive under s 80(1) to submit himself for a urine test without having a lawful excuse as provided for in s 81(1)(a). The licensing officer took into account the explanation offered by the applicant and concluded that it did not constitute a lawful excuse as required by the Act. The respondent holds that the Tribunal should therefore affirm the decision by the licensing officer to revoke the applicant's licence as crowd controller and dismiss the application.
Applicant and Respondent
4 The applicant is Edward John Dingey of PO Box 1499, Margaret River, WA 6285.
5 The respondent is Commercial Agents represented by Sgt Simon BAGLEY of 297 Hay Street, East Perth, WA 6004.
Background
6 The applicant was directed at 10:00 pm on 26 November 2004 to attend the police station of Margaret River at 11:00 am on
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- 27 November 2004 to give a sample of his urine for analysis under s 80(1). The applicant failed to comply with the directive. The excuse of the applicant is that he had a group of clients who had a mountain bike tour booked for 9:00 am on 27 November 2004 and that he had explained the situation to the police officers who served the notice. His recollection is that the police would contact him to arrange an alternative time to be tested.
7 The witnesses called by the respondent gave a different recollection of what was said when the notice was served. According to them the applicant was told that the obligation was on him to contact the police station to make alternative arrangements.
8 The licensing officer, Mark Edward Clarkson, appointed under s 7(1), subsequently wrote to the applicant on 2 December 2004 to advise him of the intention to revoke his crowd controller licence and invited him to respond under s 81(2). The applicant responded in a letter dated 16 December 2004 and explained the events as he recalled them. The licensing officer took the explanation into account and subsequently wrote to the applicant on 17 January 2005 to advise that the licence was revoked.
9 The State Administrative Tribunal received the application from the Commercial Agents on 4 February 2005.
10 A decision was handed down at the closure of the principal hearing with reasons to follow. These are the Reasons.
Application lodged with State Administrative Tribunal
11 The application was lodged with the State Administrative Tribunal ("SAT") on 4 February 2005.
12 The SAT was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). The SAT has review jurisdiction to hear the matter under s 25(1) SAT Act and s 72(1) of the enabling Act.
13 Section 72(1) enables an aggrieved person to seek a review of a reviewable decision. A "reviewable decision" includes a decision to revoke a licence (s 72(2)(d).
14 The Tribunal has in accordance with s 29(1) SAT Act the same jurisdiction, functions and discretions as those of the decision-maker – in this case the licensing officer. The Tribunal may also pursuant to s 27(1)
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- SAT Act take into account any additional or new information that was not at the disposal of the decision–maker at the time when the decision was made. The review hearing is therefore "de novo" and is not confined to the matters and information that were before the decision-maker at the time of the decision. The Tribunal is not limited to the statement of reasons given by the decision–maker (s 27(3) SAT Act). The powers of Tribunal according to s 29(3) SAT Act are to –
(a) Affirm the decision; or
(b) Vary the decision; or
(c) Set aside the decision, and
17 The Tribunal was originally constituted by three persons namely Mssrs. De Villiers, M Spillane and A Warner as is required when a matter dealing with a vocational regulatory body is considered (s 11(4) SAT Act). However the President of the SAT reconstituted the Tribunal pursuant to s 11(8) SAT Act to replace Mr Spillane with Ms Connor.
Amendment of the original application
18 At the commencement of the hearing on 19 April 2005 the respondent requested that the Tribunal treat the matter as a review application under s 72(1) rather than a "disciplinary"–application under s 67(1) as originally stated in the application. The reason for the request was that the decision to withdraw the crowd controller licence had already been made and it was therefore the applicant seeking a review of the decision. This is consistent with the earlier decision by Deputy President Judge Chaney at the directions hearing held on 10 March 2005.
19 After discussion and with the consent of the parties, an order was made for the matter to be treated as an application under s 72(1) and for Mr Dingey to appear as the "applicant" rather than the "respondent" as stated in the original application.
Orders sought
20 The applicant seeks the following orders:
1. The application be amended and treated as an application pursuant to s 72(1) for the Tribunal to review the decision of the licensing officer.
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- 2. The decision of the licensing officer to revoke the crowd controller licence of the applicant be set aside and for the Tribunal to substitute it with its own decision by re–instating the licence under s 29(3)(c) SAT Act.
Security and Related Activities (Control) Act 1996
21 The relevant provisions of the Act are as follows:
22 The long title of the Act sets out the aims of the Act as providing for the licensing of persons engaged in work relating to property protection, investigation or surveillance and crowd control.
23 Section 35 defines the duties of a "crowd controller" as a person who at a private or public event is responsible for controlling or monitoring the behaviour of persons, screening persons seeking entry, removing persons for behavioural reasons, or any other prescribed function.
24 Sections 46 and 47 set out the process of applying for a licence and the material required in support of an application. Sections 51 and 88 determine that it is an offence to provide false or misleading information in the application or renewal of a licence and an individual committing such an offence is liable to a fine not exceeding $10 000.
25 Section 72(1) provides that any person aggrieved by a reviewable decision of a licensing officer may apply to the SAT for a review of the decision. The decision to revoke a licence is a reviewable decision (s 72(2)(d).
26 Section 80(1) enables the Commissioner or a police officer delegated by him to "at any time" direct the holder of a crowd controller licence to undergo a blood or urine test. Section 80(3) provides that such a direction must be in writing, specify the date, time and place of the test, and indicate the nature of the sample to be given.
27 Section 81 provides that the licensing officer "may" revoke a crowd controller licence if the licensee fails to comply with a direction under s 80 "without a lawful excuse".
Direction hearing and primary hearing
28 Directions hearings took place on 10 March 2005, 24 March 2005 and 19 April 2005. At the directions hearing of 24 March 2005 an order was made for the revocation of the respondent's licence to be suspended until the primary hearing or a further order. At the directions hearing of
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- 19 April 2005 it was ordered that the application be treated as a review under s 72(1).
29 At the primary hearing Member De Villiers explained to the parties the nature of proceedings as set out above. He invited them to provide the Tribunal with any evidence or information that may be of assistance in making a decision. He confirmed that the Tribunal had received and read the written submissions and attachments that accompanied the submissions.
30 He drew the attention of parties to s 98 SAT Act which determines that it is an offence to give false or misleading information.
31 He subsequently invited both parties to give evidence, call witnesses, make further submissions and to put questions to each other and to witnesses. The applicant and two witnesses for the respondent appeared via videoconference from Margaret River.
32 The applicant did not call any witnesses. The respondent called two witnesses Senior Constable Kristofer Jon Marsh and Constable First Class Jonathan Jeremy Miller. Both are from the Margaret River police station.
Applicant submissions
33 The applicant filed the following documents:
(a) Letter to Commercial Agents dated 23 March 2005
5 letters of reference dated 11 April 2005 and 13 April 2005
(b) Other correspondence by the applicant was included in the submissions made by the respondent.
34 The following is a summary of the evidence and submissions made by the applicant:
(a) He could not attend the test due to business commitments on the day of the test. He conducts mountain bike tours and had a tour booked to leave Margaret River at 9:00 am on 27 November 2004. He had 7 or 8 people booked. There was no way he could cancel the tour and lose the money. Cancellation would have cost him about $400. It was a relatively new business with him being the owner and operator. It would have constituted "business suicide" by cancelling the tour at such short notice. Saturdays are the
- best days for business and summer was just starting. He had no business partner or employee to send out with the clients on his behalf.
- (b) He explained his unavailability to the police officers when the notice was served on 26 November 2004 and his understanding was that the police officers or somebody else at the police station would get back to him to make alternative arrangements to be tested. He returned the afternoon of 27 November 2004 at approximately 4:00 pm and got home at about 5:00 pm. He started his evening crowd controller shift at 7.30 pm. He did not hear from the police again and assumed they had accepted his excuse. He contacted the Bunbury police station on Monday 29 November 2004 to offer to be tested. He was told that it could not be done in such a way and that he could not arrange for a test. He heard nothing from the police until he received the notice of intended revocation on 15 December 2004.
(c) He has a 20 year record of no offences in the security industry. He understands the rationale of the legislation but he is of the view that he did not breach the Act. He had a lawful excuse for not being able to attend the test.
(d) He provided references of previous clients to attest to his good name and character. Several letters of reference were also tendered in regard to his professionalism, reliability and character.
(e) The decision to revoke his licence should be set aside as he had a lawful excuse under s 81(1)(a) for not attending the test. The fact that he did not call the police station to explain his inability to attend or to arrange an alternative time was due to a misunderstanding.
Respondent submissions
35 The respondent filed the following:
(a) Affidavit by licensing officer Mark Edward Clarkson dated 17 March 2005. The affidavit contained the following attachments:
i. The applicant's crowd controller licence;
ii. Notice of drug test dated 26 November 2004;
- iii. Intention to revoke licence dated 2 December 2004;
iv. Response from Mr Dingey to "intention to revoke licence" dated 16 December 2004;
v. Email correspondence between the licensing officer and Kris Marsh from the Margaret River Police dated 29 December 2004;
vi. Notice of revocation dated 17 January 2005;
vii. Letter from Mr Dingey to explain his non-attendance dated 24 January 2005; and
viii. Application to State Administrative Tribunal dated 2 February 2005.
(a) The Act enables the Commissioner or a police officer delegated by him to direct a crowd controller "at any time" to attend a place for a urine or blood sample to be taken (s 80(1)). The purpose of s 80(1) is to test people unexpectedly to ensure they are not using a substance in breach of the Act. This purpose would be defeated if substantial notice of a test was given or if a crowd controller could rearrange to be tested at a time that suits him. In this matter notice of the test was served by two police officers at 10:00 pm on 26 November 2004 and the applicant had to attend the test at 11:00 am on 27 November 2004. The notice was read out to the applicant. The notice makes it clear that failure to comply "may result in revocation" of the licence. The applicant failed to attend the test and offered no lawful excuse for his non-attendance. An intention to revoke his licence was served on 15 December 2004 to which the applicant replied on 16 December 2005. A letter to revoke his licence was sent on 17 January 2005.
(b) The explanation by the applicant that he had told the officers who served the notice that he would not be available and that as a consequence he was waiting on
- them to make new arrangements, is not accepted. According to the evidence by the officers involved they explained to the applicant that the obligation was upon him to call the police station on the morning of 27 November 2004 to explain the reasons for his non-attendance and to make alternative arrangements to be tested on the same day. The applicant failed to make such arrangements.
- (c) The applicant indicated to the police officers when they served the notice that he is not really interested in retaining his crowd control licence. The applicant has now had a change of heart and wants to retain his licence. However it is not a lawful excuse to rely on work commitments to fail to attend a test.
(d) The applicant failed to attend a test as directed in accordance with s 80 without any lawful excuse and as a consequence the revocation of his crowd controller licence was warranted.
Consideration
37 The Tribunal's consideration of the application is not confined to the matters that were before the licensing officer when the decision was made (s 27(1) SAT Act). The Tribunal can take into account any additional information as the purpose of the review is to produce a correct and preferable decision (s 27(2) SAT Act).
38 In the same way that the applicant had to satisfy the licensing officer that he had a lawful excuse by failing to attend the urine test, he now has to satisfy the Tribunal. For all practical and legal purposes the Tribunal is therefore placed in the shoes of the licensing officer to determine if the application for review must succeed. In considering the application, the Tribunal has taken into account the written and oral evidence and submissions made by the parties. We note the character-references provided on behalf of the applicant.
40 The Act enables the Commissioner to "at any time direct" the holder of a crowd controller licence to undergo a blood or urine test (s80(1). Although the power to make such a direction seems at face value to be unlimited, s 81(1)(a) anticipates that where a person has a "lawful excuse" for failing to comply with the directive, the licensing officer will not be required to revoke his licence. The licensing officer is therefore not
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- obliged to revoke the licence but "may" do so under s 81(1) after the excuse of the licensee has been considered.
41 The Notice of Drug Test dated 26 November 2004 was issued by Jeffery Wolloughby who is delegated by the Commissioner to perform such a function pursuant to s 80(5). A question that arose during evidence was what the correct procedure would be for a person who is given notice to attend a test but who cannot attend at the specific time, to make alternative arrangements. There seemed to be some confusion in this regard on the part of Sgt Bagley appearing for the respondent. The police officers who gave evidence confirmed that they were merely handed the notices to serve and were not authorised to make alternative arrangements for reason of them not being delegated officers. In closing submissions Sgt Bagley confirmed that the police officers were not authorised to make alternative arrangements. However Sgt Bagley also acknowledged that the phlebotomist is not a delegated officer and is therefore equally unauthorised to alter the time that appears on the notice. Sgt Bagley concluded that the day and time as set on the notice cannot be changed by any person except the delegated officer. However the notice does not contain contact details of the delegated officer. In fact there is no indication on the notice that a person who cannot attend the test may call to make alternative arrangements or to explain the reason/s for non–attendance.
42 This leaves the unsatisfactory situation that even if the applicant had called to make alternative arrangements the phlebotomist was not legally authorised to do so nor to consider his excuse for not attending. This procedure may require internal review to ensure that misunderstandings do not arise.
43 However, we note that this is a de novo hearing and that the applicant's reason for non-attendance for the test will determine the outcome of the application. The review is therefore not a review of the actions and decision by the licensing officer.
44 The question therefore is if the excuse offered by the applicant "lawful". The meaning attached to "lawful" depends on the circumstances of each case. In general one would approach "lawful" as a reason that is supported by law. As the Oxford Dictionary (Moore, B., (ed.) 2004) puts it: "conforming with or recognised by law". The test for lawful excuse is described by Burt J. in Hancock v Birsa (1972) WAR 177 at 181 as whether in the "judgment of the court" a person's actions were "excusable
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- in all the circumstances of the case" bearing in mind the nature of the offence and the possible punishment.
45 Butterworths On-Line Encyclopaedic Australian Legal Dictionarydefines lawful excuse as an excuse ‘supported by law’(Signorotto v Nicholson [1982] VR 413; (1981) 46 LGRA 141). ‘Lawful excuse’ is an expression of wider import than lawful authority (Wong Pooh Yin v Public Prosecutor [1955] AC 93). ‘Without lawful excuse’ does not mean ‘for an unlawful purpose’ (Hancock) (supra). As a defence to a charge of carrying a weapon, lawful excuse is judged by considering the purpose or reason for which the weapon is being carried; where the sole purpose is lawful, there will be lawful excuse. (Holmes v Hatton (1978) 18 SASR 412).
46 The question is therefore whether the business commitments of the applicant constituted a "lawful excuse" for not attending the test at the specified time. The Tribunal accepts the explanation by the applicant that he had a bike tour scheduled for the morning of 27 November 2004 and that he could not cancel it at such short notice without suffering financial loss and damage to his business reputation. We also accept that he had no partner or other employees to who he could hand the responsibility to tend to the clients. We accept the explanation by Mr Bagley as to the rationale for giving short notice of the test, but a consequence thereof is that the applicant did not have time to make alternative arrangements.
47 The legislature did not intend for the notice issued under s 80(1) to be complied with slavishly regardless of the economic or personal consequences to or circumstances of a licensee. Nor did the legislature intend for the licensing officer to be required to revoke the licence automatically without taking into account the licensee's explanation. Hence the provision in s 81(1) that the licence "may" be revoked if the licensee fails to attend without a "lawful excuse". The licensing officer therefore has the discretion to determine if, when all circumstances are taken into account, the revocation of the licence must occur.
48 The Tribunal notes that a misunderstanding might have arisen when the notice was served as to who is responsible to contact whom to make alternative arrangements. We also note that during evidence both police officers explained that they were not given a briefing at the police station on how to deal with licensees who could not attend the test. The likelihood of a misunderstanding is exacerbated by the absence on the notice of any guidance as to how a person who cannot attend the test must go about bringing it to the attention of the delegated officer. The notice
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- was served in informal circumstances in a unlit car park adjacent to a busy street. From the evidence it appears that there was potential for a misunderstanding on the part of the applicant to conclude that the excuse he offered to the police would be sufficient without him having to follow it up with another call to the police station. In his evidence Senior Constable Marsh admitted that "yes, I think a misunderstanding was possible."
49 Returning to the merit of the applicant's excuse, the Act anticipates that a crowd controller may for a "lawful reason" be unable to attend a test as directed by a notice under s 80. In applying the test as set down in Hancock above, we conclude that the business obligations of the applicant were such that it constituted a lawful excuse for not attending the test.
Finding
50 We find that the applicant had a lawful excuse under s 80(1)(a) for not attending the drug test and that the decision of the licensing officer to revoke his crowd controller licence be set aside pursuant to s 29(3)(c) SAT Act.
Orders
51 The application is treated as an application for review of a decision under s 72(1) of the Security and Related Activities (Control) Act 1996.
52 The application for review is upheld.
53 The notice of revocation of the crowd control licence of the applicant dated 17 January 2005 is set aside.
54 The applicant is re-instated as crowd controller.
I certify that this and the preceding 12 pages comprise the reasons for decision of the State Administrative Tribunal.
____________________
B De Villiers - Member
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