Johnson and Secretary, Department of Transport and Regional Services

[2006] AATA 573

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 573

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/85

GENERAL ADMINISTRATIVE DIVISION		)
Re		KEVIN JOHNSON

Applicant

And SECRETARY, DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date30 June 2006

PlaceBrisbane

Decision The decision under review is affirmed.

.................[Sgd].............................

BJ McCABE      
  SENIOR MEMBER

CATCHWORDS

AVIATION – airline services – aviation security identity card – applicant has several criminal convictions – convictions over a prolonged period of time – offences involved dishonesty – applicant should not be issued with an aviation security identity card

Aviation Transport Security Regulations 2005 Reg 6.01, 6.28, 6.29

REASONS FOR DECISION

30 June 2006

introduction

Senior Member B J McCabe

1.      Mr Kevin Johnson requires an Aviation Security Identity Card (an ASIC) in order to work in a secure area at Brisbane airport. He has several criminal convictions and he has spent time in gaol. The Secretary declined to issue an ASIC in light of the convictions even though the applicant had been successfully working in the area (albeit before it was reclassified as a secure area) under temporary arrangements for five years. Mr Johnson has asked the Tribunal to reconsider the Secretary’s decision.

2.      The decision to issue an ASIC is ordinarily made under regulation 6.28 of the Aviation Transport Security Regulations 2005 (the ATSR). Regulation 6.29 creates a residual discretion to issue an ASIC where the applicant is unable to satisfy the criteria in reg. 6.28 relating to an adverse criminal record. The Tribunal’s decision in this case addresses the exercise of the discretion in reg. 6.29.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The applicant also provided a letter of support from his local member of federal parliament.

4.      The applicant provided details of a number of referees. I contacted Mr Tom Card and Mr Alan Large (two of the referees) during the course of the hearing by telephone to discuss the applicant’s character.

5.      Mr Johnson represented himself at the hearing. Ms Bowskill of counsel represented the Secretary.

the facts

6.      Mr Johnson was employed as a component technician with Jetcare at Brisbane airport for approximately five years until December 2005. Jetcare is a contractor to Virgin Blue. The contractor undertakes maintenance work on Virgin Blue’s fleet of 737 aircraft.

7.      By all accounts, Mr Johnson was a reliable and efficient employee of Jetcare. His job required attention to detail. It was important and responsible work. Mr Card, a former supervisor, said the applicant was a good worker. Mr Card said he had no reason to distrust the applicant. Mr Large, who also worked at Jetcare and became friendly with the applicant, spoke highly of the applicant’s skills and character. Mr Johnson said he wanted to make a career in the aviation industry and was prepared to work hard and honestly to that end.

8.      The Jetcare facility was not within the secure area of Brisbane airport when Mr Johnson started work there. That changed in 2003 when the facility was reclassified. Mr Johnson was told he would require an ASIC in a letter from Brisbane Airport Corporation (BAC) dated 16 April 2003. But BAC declined to authorise the issue of an ASIC. Mr Johnson was able to make do with a temporary visitor’s pass that was renewed regularly. That temporary arrangement was approved by the Secretary.

9.      The temporary arrangement became untenable once the new regulations came into force. The requirement to obtain an ASIC was also contained in a new Australian Workplace Agreement presented to the applicant for his consideration. It was at that point that Mr Johnson’s criminal record became an issue.

10.     Mr Johnson has four separate sets of convictions. In 1981, he was sentenced to five years imprisonment after being convicted of demanding money by oral threats. In 1986, he was convicted of possessing a dangerous drug for a specified purpose. He also faced two charges of resisting arrest. He was sentenced to three months in gaol on the resisting arrest charges and four months in gaol (with three years probation) on the drug charges. He breached his probation order in 1991 and was sentenced to six months gaol. His most recent conviction is in 1998. He was sentenced to three and a half years in prison after he was convicted of stealing as a servant. Mr Johnson maintains he was wrongly convicted on the 1998 charges because he was not a servant at the time of the offence. I note the trial judge’s sentencing remarks suggest the offence was a serious one that involved a degree of planning.

11.     The offences in 1981, 1986 and 1998 are all aviation security relevant offences within the meaning of reg. 6.01. It follows that Mr Johnson has an adverse criminal record for the purposes of reg. 6.28. In those circumstances, the issuing body under that regulation (in this case, BAC) is not entitled to issue an ASIC. The application must be dealt with by the Secretary under reg. 6.29.

12. Virgin Blue made the application to the Secretary on 25 October 2004. After seeking further information, the Secretary’s delegate decided not to issue the ASIC. The reasons are set out in the Secretary’s letter dated 8 December 2005 addressed to Virgin Blue. The reasons are amplified in the s 37 statement (document T 2, p 19 ff). I note the respondent’s delegate says it had particular regard to the number and nature of the offences (the most recent offence was “premeditated and of a serious nature”), the length of the term of imprisonment and the fact that there were significant intervals between each of the previous convictions. The delegate also referred to the applicant’s work history and noted the lack of a strong recommendation from BAC. Indeed, the delegate noted BAC had previously observed in a letter dated 15 February 2001 that the applicant was “not the sort of person we would want working airside.”

application the regulations

13.     I have already explained that the Secretary’s discretion to approve the issue of an ASIC notwithstanding an adverse criminal record is to be found in reg. 6.29. In the course of exercising the discretion, reg. 6.29(5) requires that the Secretary consider:

(a)    the nature of the offence the person was convicted of; and

(b)    the length of the term of imprisonment imposed on him or her; and

(c)    if he or she has served the term, or part of the term — how long it is, and his or her conduct and employment history, since he or she did so; and

(d)    if the whole of the sentence was suspended — how long the sentence is, and his or her conduct and employment history, since the sentence was imposed; and

(e)    anything else relevant that the Secretary knows about.

14.     The Tribunal is required to consider the same matters on review.

15.     In this case, I accept the applicant’s conviction in 1998 was in respect of a serious and premeditated offence of dishonesty. The seriousness of the offence is reflected in the substantial term of imprisonment imposed. The element of dishonesty is obviously a matter of concern when the applicant is asking to be trusted to work in a secure area.

16.     The fact there are two other aviation security relevant offences must also be taken into account. The Secretary’s delegate noted the applicant – who is 43 - has been sentenced to a total of nine and a half years in prison in respect of his various offences. I am satisfied the nature of the offences and the length of time in prison count heavily against the applicant.

17.     The fact there are long intervals between offences is also problematic. The pattern suggests the respondent cannot take any comfort from the fact that the applicant’s last offence was in 1998.

18.     The applicant does have a good work history – particularly over the five years he worked at Jetcare. I note the favourable references from Mr Large and Mr Card in particular. I also note the applicant insists he wishes to work and make a career in the aviation industry. I think he is sincere in that claim. Those things all count in his favour.

19.     After taking all of these matters into consideration, I do not think the applicant should be issued an ASIC. I might have taken a different view if there had been only one aviation security relevant offence, but here there are three, and at least two of them are particularly serious – and there are lengthy intervals between them.

20.     The parties did not discuss whether the imposition of conditions on an ASIC would make any difference to the risk. I do not think this is a case where the imposition of conditions would assist.

conclusion

21.     The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  1 June 2006
Date of Decision  30 June 2006
The applicant represented himself.
The respondent was represented by Ms Bowskill, of Counsel.