JOHN STEVENS and SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT

[2009] AATA 146

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 146

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4099

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN STEVENS

Applicant

And SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT  

Respondent

DECISION

Tribunal  M J Carstairs, Senior Member

Date 9 March 2009

Place Brisbane

Decision The Tribunal affirms the decision under review. 

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

Senior Member

CATCHWORDS

CIVIL AVIATION – requirements for issuing an Aviation Security Identification Card –   background check – meaning of “a qualified criminal record” – review of advice to issuing body that applicant has  “qualified criminal record” – decision under review affirmed

AusCheck Act 2007 (Cth), s 3

AusCheck Regulations 2007 (Cth), regs 3, 12

Aviation Transport Security Regulations 2005 (Cth), regs 6.01, 6.28, 6.32, 8.03

REASONS FOR DECISION

9 March 2009  M J Carstairs, Senior Member     

1.      John Stevens is the holder of a pilot’s licence, mostly used for recreational purposes.  In 2008, Mr Stevens applied for a renewal of his Aviation Security Identification Card (ASIC).  Mr Stevens was told that his ASIC could only be issued subject to a condition, because he has “a qualified criminal record”[1].   

[1]         Aviation Transport Security Regulations 2005, sub-reg 6.01(3).

2. Mr Stevens has asked this Tribunal to review that decision; a review right provided for in reg 12 of the AusCheck Regulations 2007 (the AusCheck Regulations). This enables a person, about whom an “unfavourable criminal history advice” [2] has been forwarded to an “issuing body”, to have the giving of that advice reviewed.

[2]        AusCheck Regulations 2007, reg 3.

3.      In that regard, it is helpful to have some background to the statutory scheme by which this happens.

THE STATUTORY SCHEME

4.      The statutory scheme involves a checking service known as AusCheck; a background check carried out by the Attorney-General’s Department, which was intended to ensure enhanced security at aviation and maritime facilities.  The AusCheck Act 2007 (the Act) made provision for the Department to provide background checks on people at the request of an “issuing body” such as, in Mr Stevens’ case, the Civil Aviation Safety Authority (CASA).  In 2008, CASA asked the Attorney-General’s Department to carry out a check on Mr Stevens.

5.      The Explanatory Memorandum stipulates that the AusCheck scheme was intended to improve consistency in the checks carried out, in accordance with criteria set out in the Aviation Transport Security Regulations 2005 (the Regulations).  Information about an individual is checked against the criteria to determine the person’s suitability to access secure areas of air and sea ports. The objects clause to the Act provides that the Act enables a regulatory framework for coordinating and conducting certain criminal, security and other background checking[3].  A stated purpose was to ensure an accurate database of card-holders in the event of a security incident. 

[3]        AusCheck Act 2007, s 3.

6.      Background checks are carried out with the full knowledge of the individual.  Having conducted the check, the respondent reports the results to the “issuing body”.  The “issuing body” must then decide whether to issue an ASIC to an eligible individual.  In that respect, the advice from Attorney-General’s is in the nature of a recommendation.  It is the “issuing body” that issues the ASIC, not the respondent.  With respect to issuing the ASIC, there are separate review rights under the Regulations[4].

[4]        Aviation Transport Security Regulations 2005, reg 8.03.

MR STEVENS’ AUSCHECK RESULTS

7.      Mr Stevens acknowledges that he has a criminal history and does not dispute that its details have been recorded accurately.  He had past offences that fell into two of the identified categories of concern, called “aviation-security-relevant offences”, as set out in the Regulations at sub-regulation 6.01(1) - namely offences “involving dishonesty”, and offences “involving violence or threat of violence.”  Under sub-regulation 6.01(3) of the Regulations, a person will have a “qualified criminal record” where they:

§  have at least two convictions of this kind;

§  have received no sentence of imprisonment for such offences; and

§  have no relevant convictions in the 12 months prior to the AusCheck.  

I was satisfied of those matters on the evidence before me. The only available conclusion in view of the police records was that Mr Stevens had a “qualified criminal record” within the meaning of the Regulations.

8.      In that regard, it can be said that within the scheme, having a “qualified criminal record” is of less concern than having an “adverse criminal record”.  A person with an adverse criminal record will have had sentences of imprisonment imposed (for relevant offences), or will have recent offences.  Although at the lower end of the scale, having a “qualified criminal record” is a matter that must be taken into account, nevertheless, when advising about the issuing of ASIC’s.

9.      When Mr Stevens originally received the letter of advice from the Attorney-General’s Department he disputed whether his convictions, some of which occurred about 20 years ago, ought to be taken into account when issuing him with an ASIC.  He raised several other grounds in the course of the review, including that the criminal offences were minor (as reflected in the fact that no Court had imposed a sentence of imprisonment) and that the offences had nothing to do with aviation, or what would ordinarily be thought of as “security” issues. 

10.       I understood his position, as expressed at the hearing, to be that he had now accepted that, under the legislation, he does have the defined “qualified criminal record”.However, he remains aggrieved that he was not advised when issued with his previous ASIC that he would face repeated checks.  Mr Stevens raised whether it was possible to interpret sub-regulation 6.28(7), which refers to further background checks being conducted within “12 months after the first background check,” as meaning that checks would be limited in time by reference to his previously issued ASIC card.  However, in my view, the sub-regulation cannot be read that way.  To do so would fail to take into account the legislative changes with the introduction of the AusCheck system.  Mr Stevens’ previous ASIC was issued before the enactment of new scheme, including sub-regulation 6.28(7) of the Regulations. 

11.       The repeated checks come about as a consequence of having a “qualified criminal record”.  In that regard, it should be noted that an ASIC lasts only for two years, but in the case of an ASIC issued to a person with a “qualified criminal record”, the expiry must not be later than 12 months after the completion of the relevant background check[5].  In other words, Mr Steven’s checks will be carried out annually.

[5]        Aviation Transport Security Regulations 2005, sub-reg 6.32(2), read with sub-reg 6.28(7).

12.       Mr Stevens’ particular concern is that the system is both burdensome and expensive for people such as him, who are recreational pilots.  He believes that background checks should be less frequent.  While he acknowledges that there is a real need for a security card system, he says that the costs and time involved for him make holding a licence more difficult.  I explained to him that concerns of this kind have to be taken up with those who frame the legislation. The Tribunal’s task is to apply the legislation.   

13.     In that regard, the legislation now provides for a different system of carrying out checks, and for tightened provisions.  There is no discretionary area in this  decision-making regime that might allow the respondent to take into account any matters, other than the record of the person’s criminal history, in order to address the question whether that history brings them within the scope of the terms of the Regulations (including having a “qualified criminal record”).  There is no ground to take into account that Mr Stevens in the past has had ASIC’s issued to him without conditions being imposed on the Card.  Being satisfied of the objective facts revealed by Mr Stevens’ criminal record, and having regard to the law, the decision-maker had no option other than to advise that outcome to the issuing body. 

14. Accordingly, and taking account of the limited nature of the review provided for under reg 12 of the AusCheck Regulations, I would affirm the Secretary’s decision to give an “unfavourable criminal history advice” with respect to Mr Stevens application for an ASIC, to CASA as the issuing body.

DECISION

15.     The Tribunal affirms the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed:....................................[sgd]..........................................
  Emily Clarke, Associate

Date of Hearing  14 January 2009
Date of Decision  9 March 2009     
The Applicant was self-represented         

Solicitor for the Respondent      Ms Irene Sekler