Hinds and Commissioner Of Police
[2008] WASAT 220
•17 SEPTEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: HINDS and COMMISSIONER OF POLICE [2008] WASAT 220
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 12 SEPTEMBER 2008
DELIVERED : 17 SEPTEMBER 2008
FILE NO/S: VR 147 of 2008
BETWEEN: DONNA MARGARET HINDS
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Security activities - Revocation of crowd control licence due to presence of noncomplying substance in urine Discretion to revoke licence - Balance of interests - Weighing of evidence of random urine test and privately arranged urine test
Legislation:
Security and Related Activities (Control) Act 1996 (WA). s 72(1), s 80(1), s 81, s 81(1), s 81(1)(b)
State Administrative Tribunal Act 2004 (WA), s 29(3)
Result:
The application is dismissed and the decision to revoke the licence affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Sergeant Bagley (as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Western Australian Police
Case(s) referred to in decision(s):
Pennicott and Commercial Agent [2005] WASAT 85
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Ms Hinds sought a review of a decision by the Commissioner of Police to revoke her crowd controller licence. The Commissioner justified its decision on grounds that Ms Hinds had tested positive for a prohibited substance, cannabis. According to the Commissioner the use of drugs in the security industry is a matter of concern and the potential risks that it holds to members of the public justifies the revocation of the license.
Ms Hinds admitted that she had used cannabis previously but contended she has now changed her life and has stopped using it. She presented a privately arranged test that she had undergone to show that there were no prohibited substances in her urine. Ms Hinds also contended that since she had been in the presence of other people who smoked cannabis, her urine might have tested positive for the drug.
The Tribunal found that the interest of the public demands that a high standard be set in regard to the non-licensing of persons who test positive for drug use in the security industry. Crowd controllers often work in volatile situations and if they themselves are under the influence of drugs or their behaviour affected by drugs, the risk to the public increases. The Tribunal attributed more weight to the unscheduled urine test that was undertaken by the Commissioner that showed cannabis use, than to the privately scheduled test that was arranged by Ms Hinds. The Tribunal also rejected the contention by Ms Hinds that her result may have been caused by other people smoking cannabis in her presence. The Tribunal concluded that the application should be dismissed and the decision of the Commissioner of Police to revoke the licence should be affirmed.
Issue
This is an application pursuant to s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (Act) whereby Ms Hinds seeks review of the decision by the Commissioner of Police (Commissioner) to revoke her crowd controller licence (CC29171) due to the detection in her urine of cannabis. The Commissioner contends that cannabis is a prohibited drug that may cause a user to be aggressive. Cannabis is a noncomplying substance under the Act.
The Commissioner therefore revoked the licence pursuant to s 81 of the Act.
The question for the Tribunal to consider is whether the presence of cannabis in the urine of Ms Hinds is in itself sufficient reason for the licence to have been revoked or whether the personal circumstances of Ms Hinds and her desire to make corrections to her life could be taken into account. The Tribunal is also called upon to consider if Ms Hinds' test could have been influenced by her being in the presence of other people who smoked cannabis.
The Tribunal can affirm the decision, revoke it, set it aside and substitute it with another decision. The Tribunal can also refer the decision back to the Commissioner to reconsider (s 29(3) of the State Administrative Tribunal Act 2004 (WA)).
Facts
Ms Hinds was required to give a sample of urine on 19 April 2008 pursuant to s 80(1) of the Act. She attended the test and told the person who administered the proceeding that '3 4 months ago I used to smoke it. I hang around a lot of people who smoke it.' She tested positive for the substance cannabis. She had 50 ng/ml in her urine. Ms Hinds said in evidence that the last time she recalls having smoked cannabis was at end of February 2008 or early March 2008.
Upon receiving the test, the licensing officer notified Ms Hinds on 7 June 2008 of the intention to revoke her licence and gave Ms Hinds 21 days to respond. After having considered Ms Hinds' response dated 19 June 2008, the licensing officer revoked the licence. Ms Hinds explained in her letter that she had been using cannabis but that she no longer does. She was, however, in surroundings where people use cannabis and that may have impacted on the test. She has, since the test, taken drug counselling and was keen to retain her licence.
She lodged an application with the Tribunal on 31 July 2008 and the first directions hearing took place on 14 August 2008 at which time the matter was set down for a hearing.
In her application before the Tribunal, Ms Hinds explained that she would like to return to her previous employment, that she is no longer a user of cannabis, that she needs the license to provide for her and her children and that she is willing to submit at any time for blood or urine tests. She also enclosed a letter dated 18 June 2008 from a drug counselling service. According to the letter Ms Hinds had indicated that she had stopped using drugs in March 2008. Ms Hinds also admitted herself for a drug test to Western Diagnostic on 19 June 2008 and the test did not indicate any traces of a prohibited drug.
In its reply to the application, the Commissioner contended that Parliament intended to rid the security industry of persons who either use drugs or who are involved in the drug industry. The reason for such a strict approach is that a high incidence of violence often accompanies the use of drugs. Crowd controllers are also placed in control of persons who are vulnerable and who may be under the influence of alcohol or drugs. If a crowd controller's behaviour is also affected by drugs, a dangerous situation can arise. A crowd controller must be able to handle such testing circumstances and not themselves be under the influence of a prohibited substance.
Consideration
Section 81(1)(b) of the Act empowers the licensing officer to revoke the licence of a crowd controller if a sample of urine is found to contain a noncomplying sample of a substance such as cannabis. It is not disputed that the noncomplying substance cannabis was present in her urine, but Ms Hinds contends that she does not use it any more and that she has since submitted herself to a privately conducted test at which there was no cannabis or any other prohibited drug in her urine.
Sergeant Bagley explained that the risk of drugs such as cannabis in the security industry is that users may become aggressive when they are exposed to volatile situations. According to Sgt Bagley it also reflects on Ms Hinds' character that she uses drugs or used to hang out with persons involved in the use of drugs.
Although the Tribunal sympathises with the personal circumstances in which Ms Hinds found herself at the time, the Tribunal must also take into account the interests of the public and the possible risks that they are exposed to if a crowd controller is affected by drugs. Crowd controllers are aware, as part of their training, that they are not allowed to use drugs. Hence the regime of unscheduled urine and blood testing. Crowd controllers also know the serious consequences that may flow from a positive detection of drugs in their urine or blood. Ms Hinds therefore used cannabis in the full knowledge that if she was tested, she might have her licence revoked. She accepted that risk and now there have been consequences.
Discretion of Tribunal
The Tribunal has the discretion as to whether the licence should be revoked hence the use of the word 'may' in s 81(1) of the Act. Had Parliament intended for a licence to be automatically revoked if a person tested positive for the use of a noncomplying substance, the Act would have made it clear. But in its current wording, the licensing officer at first instance and the Tribunal at review have a discretion to take into account all the information provided to us.
Ms Hinds essentially has a clean record and has not had any previous noncomplying tests. She has submitted to another privately arranged test to demonstrate that there were no traces of drugs in her urine. The value of that test is, as far as the Tribunal is concerned, less since she knew she would go for it and therefore could have refrained from using drugs prior the test. The Tribunal attaches more weight value to the test conducted by the Commissioner, since that was unplanned as is intended by the Act. If drug tests were done on the basis of prior arrangement, it would defeat the purpose of the Act.
The Commissioner contends that Parliament enacted a very strict regime against the use of certain drugs in the security industry. It is in the interest of the public that drugs that may cause persons to act in an aggressive way or could negatively impact on the discharge of their duties in any other way, should be banned from the security industry. The question is not necessarily whether every person who uses cannabis acts in exactly the same way, but whether there is a general risk to the public that a person may become more aggressive if cannabis is used.
The Tribunal accepts the evidence of Dr Hansson who was called by the Commissioner to give evidence. Dr Hansson is the chemist at WA Chemistry Centre and is often called by the Commissioner as an expert. Dr Hansson provided a 2001 internet article by Norchem Laboratories in which it was concluded that even in 'extreme testing conditions' the passive inhalation of marijuana smoke is not high enough to cause a 'positive result at current cut-offs.' Dr Hansson also disputed the contention of Ms Hinds that the last time she had smoked cannabis was in March 2008 three months before the urine test. According to his evidence the test is 'definitely not consistent with any form of use 3 to 4 months ago.'
The Tribunal prefers the evidence of Dr Hansson to that of Ms Hinds. Ms Hinds was vague as to the last time she used cannabis and she could not refute the evidence provided by Dr Hansson. Her sole explanation for the reading is that she was in the presence of other cannabis users, and this explanation was discredited by Dr Hansson.
The Tribunal has further concerns about the credibility of the evidence given by Ms Hinds. At first she said to the person who conducted the urine test that she had been with people in November/December 2007 who had been using cannabis. When the Tribunal questioned her, she admitted to having used cannabis in February/March 2008. Little weight can be attached to her denial of cannabis use. One would expect that if she was serious about rehabilitation, she would have reported to the rehabilitation centre immediately after she quit smoking cannabis in other words in March 2008.
The Tribunal concludes that it is in the interest of the public that a cautionary approach is taken and that Ms Hinds, who admits to having a background in drug use, should be debarred from being a crowd controller for the time being. That does not mean she cannot again apply in future to be licensed.
In the matter of Pennicott and Commercial Agent [2005] WASAT 85, the Tribunal emphasised that 'The question for us is whether the circumstances which the applicant has described are such as to override the legislative intention that generally speaking, the consequence for a holder of a crowd controller's licence of failing a blood or urine test by detection of a proscribed drug in a sample is revocation of the licence'. [24] In this matter the explanation offered by Ms Hinds of her family circumstances is outweighed by the public interest.
The Tribunal has to balance all considerations to come to a correct and preferable decision. We note that the public interest is multifaceted on the one hand public interest acknowledges that Ms Hinds may have stopped using drugs and that she faces tough personal conditions, while on the other hand, the safety, well-being and security of patrons must be taken care of.
The application should therefore be dismissed and the decision to revoke the licence be affirmed. Ms Hinds did not have a lawful excuse for the cannabis traces in her urine.
Orders
1.The application for review of the decision to revoke the crowd control licence of Ms Hinds is dismissed.
2.The decision of the licensing officer to revoke the crowd control licence (CC29171) of Ms Hinds is affirmed.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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