Hotson-Jones and Secretary, Department of Home Affairs

[2019] AATA 121

Hotson-Jones and Secretary, Department of Home Affairs [2019] AATA 121 (13 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/4235

Re:Mark Hotson-Jones

APPLICANT

AndSecretary, Department of Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:13 February 2019

Place:Sydney

The Application by the Respondent for the application brought by Mr Hotston-Jones to be dismissed under section 42(B)(1)(b) as having no prospect of success is granted.

...........................[sgd].............................................

Chris Puplick AM, Senior Member

CATCHWORDS

AUSCHECK  − Aviation Security Identification Card  – notice to issuing Authority of Applicant’s qualified criminal history – notice to issuing body mandated by AusCheck Regulations 13(2)  –  section 42B application on the basis that application has no reasonable prospect of success – substantive application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Airport Transport Security Act 2004 (Cth)

Aviation Transport Security Regulations2005 (Cth)

AusCheck Act 2007 (Cth)

AusCheck Regulations 2017 (Cth)

Crimes Act 1914 (Cth)

Crimes (Aviation) Act 1991 (Cth)

SECONDARY MATERIALS

Aviation Security Identification Card, (Home page) < FOR DECISION

Chris Puplick AM, Senior Member

13 February 2019

APPLICATION FOR DISMISSAL

1. Mr Mark Hotston-Jones (the Applicant) has worked at Sydney Airport.

2. In order to work at the airport employees need to possess an Aviation Identification Security Card (ASIC) issued by an Issuing Authority. To be issued with an ASIC a potential employee must be subject to a security check as provided by legislation. These security checks are undertaken by AusCheck.

3. On 30 July 2018 the Applicant applied to the Tribunal to, in effect, restrain AusCheck from informing the Issuing Authority (Qantas) as to details of the Applicants “qualified criminal history” in relation to the (re-)issue, to him, of an Aviation Identification Security Card (ASIC). At the time, the Applicant held a Red ASIC which allows him to work within the designated security zones of the airport.

4. In response, the Secretary of the Department of Home Affairs (the Respondent) states that the notification from AusCheck to the Issuing Authority is mandated by legislation and is not a discretionary matter. In other words, the Tribunal is not being asked to review a “decision” as required under s. 43 of the Administrative Appeals Tribunal Act 1975 because no “decision” has been made – all relevant actions are merely the result of the actor in question following mandated legislative requirements.

5. As such the Respondent contends that the Applicant cannot succeed in any merits review of the decision in question and thus his application should be dismissed, without further hearing, under the provisions of the Administrative Appeals Tribunal Act 1975 section 42B(1) which reads:

   (1)  The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)  is frivolous, vexatious, misconceived or lacking in substance; or

   (b)  has no reasonable prospect of success; or

   (c)  is otherwise an abuse of the process of the Tribunal.

6. The relevant narrative of this application is set out in the table below.

Narrative

Source

In order to work at an Australian airport a person must hold an ASIC (Aviation Identification Security Card) at levels of Red, Grey or White.

provides details of each level and requirements.

The ASIC scheme is established by Regulations made pursuant to legislation.

Aviation Transport Security Regulations2005 (ATS Regs) made under the Airport Transport Security Act 2004.

A person wishing to apply to work at an airport who needs an ASIC to do so and  may apply to an Issuing Authority for one.

ATS Regs r 6.26.

QANTAS is an Issuing Authority.

Respondent’s Application for Dismissal at [2.1].

The Applicant worked at Sydney airport some 4 years for a number of airlines.

Tribunal Documents at page [7] and oral testimony.

ASICs may be issued by a designated Issuing Authority only if the criteria specified in the ATS Regs are satisfied.

ATS Regs at 6.28(1).

It is incumbent upon an Issuing Authority to seek a criminal history check of any applicant for an ASIC. Failure to do so constitutes an offence.

ATS Regs at 6.28(2).

When a background check is being sought the Issuing Authority must notify the person concerned and provide them with a copy of the AusCheck Privacy Notice.

Respondent’s Statement Pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 at [31].

ASICs are issued for time limited periods (up to 2 years) and may be renewed.

ATS Regs at 6.32.

Background checks are undertaken by AusCheck which is an agency within the Department of Home Affairs.

AusCheck Act 2007 and AusCheck Regulations 2017 – Subregulation (8(1)).

On 22 May 2018 Qantas applied to AusCheck for a background check to be undertaken on the Applicant in relation to the (re-)issue of his ASIC.

Tribunal Documents [10].

On 8 June 2018 the Australian Criminal Intelligence Commission (ACIC) issued to AusCheck a National Police History Check Report which disclosed that the Applicant had certain convictions.

Tribunal Documents [35].

Details of these convictions had not appeared on previous background checks of the Applicant.

Tribunal Documents [38].

Tribunal Documents at [43].

These convictions should have been so released to the Issuing Authority previously.

Tribunal Documents [37]. National Police Checking Service to AusCheck.

The convictions on the record were two counts of “Assault Passenger Onboard Aircraft” (dated 6 February 2001: for which the Applicant was fined a combined sum of $1000) and one count of common assault (dated 20 March 2012: for which the Applicant was placed on a 12 month good behaviour bond.

Tribunal Documents at [47].

The offences are defined as being “aviation-security-related-offences” (ASRO).

ATS Regs 6.01 (1) Note (5).

Any person who has been convicted of two or more ASROs is taken to have a “qualified criminal record” – provided neither offence resulted in a term of imprisonment nor were committed in the last 12 months.

ATS Regs at 6.01 subreg (3).

A person who has a “qualified criminal record” may be issued with an ASIC on two conditions: that the card is valid for no more than 12 months and that the Issuing Authority agrees to issue the ASIC.

ATS Regs at 6.32(4) and Respondent’s Application for Dismissal at [18].

Where AusCheck has made a finding that a person has an “unfavourable criminal history” they must notify the person accordingly and give them a chance to make representations on the subject.

AusCheck Regulations 2017 subsections 12(1) and 12(2).

Where AusCheck has made a finding that a person has an “unfavourable criminal history” they must notify the Issuing Authority accordingly.

 “The Secretary must advise the issuing body whether or not the individual has an unfavourable criminal history.”

AusCheck Regulations 13(2).

On 14 June 2018 the Applicant wrote to ACIC to enquire whether the 2001 conviction had become a “spent conviction” under the provisions of the Crimes Act 1914 (Cth) sections 85ZM(3) and 85ZL and if so, whether that prohibited ACIC from making any such disclosure to the Issuing Authority (s. 85ZV)

Tribunal Documents at [55].

The Applicant does not dispute that the two convictions were recorded, although he maintains that the circumstances leading to the convictions rendered the convictions unsound.

Applicant’s statement in Application for Review of Decision (30 July 2018), Tribunal Documents at [7].

Oral evidence 08/02/2019.

AusCheck initially expressed an opinion to the effect that it believed that the 2001 charges should be regarded as “spent.”

“We believe the 2 charges on 6/2/2001 dealt with in St James Local Court should be spent as there is more than a 10 year gap between them and the next offence. Also, these charges did not appear on previous AusCheck.” Tribunal Documents at [38].

A review of this conviction however,  reveals that it was a conviction under the Crimes (Aviation) Act 1991 which is specifically excluded from the operations of the spent conviction provisions scheme for purposes related to the checking or issuing of an ASIC.

Tribunal Documents at [41].

Respondent’s Application for Dismissal at [29].

On 30 July 2018 the Applicant applied to the Tribunal to, in effect, restrain AusCheck from informing the Issuing Authority (Qantas) as to details of his “qualified criminal history”

Tribunal Documents at [3]-[8].

On 16 November 2018 the Respondent applied to the Tribunal for the matter to be dismissed under section 42B(1) of the Administrative Appeals Tribunal Act 1975 on the basis that the application is misconceived, lacking in substance or has no prospect of success in a full merits hearing.

Respondent’s Application for Dismissal at [1].

An interlocutory hearing was held on 8 February 2019 to determine the dismissal application filed by the respondent.

CONSIDERATIONS

1. The Applicant has provided the Tribunal with details of the background events leading up to his three convictions: however these are not relevant because the fact of the conviction is the only matter which the Tribunal can take into account, no matter how sympathetic or otherwise,  it might find itself in relation to the Applicant’s pleadings.

2. Similarly the Applicant’s submissions in relation to the effect of convictions, now some 17 years old, which would, in most instances (given the nature of the offences) have by now, become spent convictions also resonate with the Tribunal. However, and unfortunately for the Applicant, the legislation under which he was charged is specifically excluded from the general operation of the spent convictions regime, and thus remains on foot. As such it must be taken into account in any determination of whether or not the Applicant has a “qualified criminal history.”

3. It is to be regretted that the AusCheck report of 14 June 2018 (Tribunal Documents at [35]) suggested a view contrary to this clear position and, it is equally unfortunate for the Applicant that previous background checks going back over several years failed to disclose this information previously. The Tribunal is unable to say how this serious and regrettable administrative oversight occurred.

4. On the other hand the requirement that AusCheck notify the Issuing Authority of the fact of the convictions, in the form which is prescribed under the relevant Regulations, cannot be set aside – it is mandatory and there is nothing the Tribunal can do to restrain its operation.

5. Under these circumstances there is no possibility that the Tribunal can issue the sort of order which the Applicant seeks, nor can (or should) it do anything to interfere with AusCheck fulfilling its mandated statutory obligations.

   DECISION

6. The Application by the Respondent for the application brought by Mr Hotston-Jones to be dismissed under section 42(B)(1)(b) as having no prospect of success is granted.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..............................[sgd]..........................................

Associate

Dated: 13 February 2019

Date(s) of hearing:	8 February 2019
Applicant:	By phone
Solicitors for the Respondent:	Mr J Millea, Secretary, Department of Home Affairs, by phone