Gregory Chapman and Secretary, Attorney-General's Department

[2013] AATA 20

[2013] AATA  20

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4306
Re	Gregory Chapman
APPLICANT
And	Secretary, Attorney-General's Department
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	17 January 2013
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

MARITIME SECURITY – Issue of a Maritime Security Identity Card – Criminal record – Armed robbery – Failure to satisfy the criteria – Decision Affirmed.

LEGISLATION

Maritime Transport and Offshore Facilities Security Regulations 2003 regs 6.1, 6.07, 6.08.

AusCheck Regulations 2007 reg 12.

REASONS FOR DECISION

Senior Member Bernard J McCabe

17 January 2013

1. This case arises out of a decision that the applicant was not eligible to be issued with a maritime security identity card (an MSIC) because of his criminal record.

2. Individuals working in maritime security zones must carry a valid MSIC issued pursuant to Division 6.1A of the Maritime Transport and Offshore Facilities Security Regulations 2003 (the regulations). A person who fails to carry a valid MSIC in a maritime security zone is guilty of an offence: reg 6.07J. The MISC’s are issued by organisations known as issuing bodies, who may be private firms operating in the maritime industry that have been approved under reg 6.07O. An individual seeking work on the waterfront would apply to an issuing body for an MSIC. Division 6.1A explains the process the issuing body must follow in dealing with the application.

3. As part of the process, the issuing body may commission a background check on the applicant (reg 6.08BA) in order to satisfy itself the applicant meets the criteria for issue of an MSIC under reg 6.08C. Regulation 6.08CA requires that the issuing body use the Auscheck facility to this end. The Auscheck facility is a service provided by the Attorney-General’s department pursuant to the AusCheck Regulations 2007.

4. The AusCheck facility includes a check on an applicant’s criminal record. There are a number of offences which are referred to as maritime security relevant offences in Schedule One to the Maritime Transport and Offshore Facilities Security Regulations. One of the offences mentioned in Schedule One (at item 2.17) is armed robbery where the individual is sentenced to imprisonment.

5. The AusCheck inquiry disclosed the applicant has two convictions for armed robbery: one in 1977 and one in 1988. He was sentenced to five years in prison on the first occasion and six years on the second occasion. He was informed of this by the respondent and he has not produced any evidence to suggest the report was inaccurate – in other words, he has not disputed he was convicted of the two offences.

6. On the strength of that information, the respondent determined there was an adverse criminal record within the meaning of reg 6.08A. It advised the issuing body of that fact. As a result, the issuing body was not able to issue an MSIC because the applicant was unable to satisfy the criteria in reg. 6.08C(1)(e). The respondent also issued a disqualifying notice under reg 6.07K which prohibits the applicant from entering a maritime security zone.

7. An applicant who is the subject of unfavourable criminal history advice is entitled to ask the Tribunal to review the decision to provide the advice: AusCheck regulations, reg 12. That has occurred here.

8. I cannot see any basis (nor was any suggested to me in the material provided for the purpose of the hearing on the papers) why the advice provided by the respondent should not have been provided. The legislative scheme clearly intends that individuals in the applicant’s position be excluded from sensitive maritime facilities because of the security implications. While the Secretary does have the power to approve the issue of an MSIC in certain circumstances notwithstanding an adverse criminal record, the applicant does not appear to have asked for that to be done in this case. In any event, there is no decision to that effect before me.

   CONCLUSION

9. The decision under review must be affirmed.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard McCabe.

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Associate

Dated  17 January 2013

Hearing on the papers.