JONES and COMMISSIONER OF POLICE
[2006] WASAT 205
•26 JULY 2006
JONES and COMMISSIONER OF POLICE [2006] WASAT 205
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 205 | |
| SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) | |||
| Case No: | VR:67/2006 | 18 JULY 2006 | |
| Coram: | DR B DE VILLIERS (MEMBER) MS M ANGUS (SESSIONAL MEMBER) MR J N HARPER (SESSIONAL MEMBER) | 26/07/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | The application succeeds Orders made | ||
| B | |||
| PDF Version |
| Parties: | LINDEN ROBERT JONES COMMISSIONER OF POLICE |
Catchwords: | Security activities Crowd control Non-complying substance Discretion Danger to the public |
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) |
Case References: | Nil Nil |
Orders | 1. The application for review succeeds.,2. The decision of the licensing officer to revoke the crowd control licence (CC18026) of Mr Jones is set aside. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : JONES and COMMISSIONER OF POLICE [2006] WASAT 205 MEMBER : DR B DE VILLIERS (MEMBER)
- MS M ANGUS (SESSIONAL MEMBER)
MR J N HARPER (SESSIONAL MEMBER)
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Security activities - Crowd control - Non-complying substance - Discretion - Danger to the public
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)
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Result:
The application succeeds
Orders made
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Sergeant Weir (as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Western Australia Police
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 Mr Jones is seeking a review of a decision of the Commissioner of Police to revoke his crowd control licence. The Commissioner decided to revoke the licence on grounds that Mr Jones returned a urine test that was positive of the steroid Stanozolol. Stanozolol is a non-complying substance under the Security and Related Activities (Control) Act 1996 (WA). Mr Jones explained that the presence of the Stanozolol can be attributed to medical treatment he is undergoing. His evidence was supported by Dr Durston, the medical practitioner under whose care he is. The treatment is being applied on a temporary basis. Dr Hansson, who was called as witness by the Commissioner, explained why steroids could hold a danger to the public but he agreed that if the Stanozolol is prescribed under medical supervision and on a temporary basis, it ought not bring about side effects such as aggression.
2 The Tribunal upheld the review and set aside the decision to revoke the licence.
Issue
3 This is an application pursuant to s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (Act) whereby Mr Jones seeks review of the decision by the Commissioner of Police (the Commissioner) to revoke his crowd controller licence (CC18026) due to the detection in his urine of the anabolic steroid Stanozolol. The Commissioner contends that Stanozolol can cause Mr Jones to become aggressive in situations where he exercises his duties as crowd controller. (Stanozolol is a non-complying substance under the Act).
4 The Commissioner therefore gave notice of its intention to revoke the licence pursuant to s 81 of the Act.
5 Mr Jones lodged an interim application to stay the revocation of the licence. The interim application was successful. Mr Jones contended that his use of Stanozolol is under strict medical supervision and is only a temporary treatment until he recovered from his injuries. He indicated that the treatment ought to be discontinued within three to six months.
6 The key question for the Tribunal to consider is whether the presence of Stanozolol in the urine of Mr Jones was at such level that his licence should be revoked due to the danger he might hold for the public. The medical practitioners who gave evidence, were in agreement that
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- Stanozolol can be lawfully prescribed, it can be administered under medical supervision, it can be utilised for the treatment as undergone by Mr Jones, and if used under medically supervised conditions, it ought not cause an increase in risk of violent, or aggressive behaviour.
7 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
8 Mr Jones was required to give a sample of urine on 28 November 2005 pursuant to s 80(1) of the Act. He tested positive for a non-complying substance called Stanozolol. Mr Jones declared at the time of the testing that he was undergoing medical treatment, and that he was under supervision of a medical practitioner. His evidence was confirmed by Dr Durston, who is the general medical practitioner who has been treating Mr Jones for the past 24 months.
9 Upon receiving the test, the licensing officer notified Mr Jones on 16 January 2006 of the intended revocation of his licence and gave Mr Jones 21 days to respond. After having considered Mr Jones' response, the licensing officer revoked the licence. The decision was stayed by the Tribunal, pending the outcome of the review hearing.
10 A review hearing was held on 30 May 2006 and a further hearing was subsequently held on 18 July 2006, to enable the two medical practitioners to give evidence. Dr Durston who gave evidence for Mr Jones is a general medical practitioner and Dr Hansson who gave evidence for the Commissioner is Principal Chemist, Forensic Toxicology of WA.
11 Mr Jones submitted a medical certificate from Dr Durston dated 31 January 2006, in which the reasons for the treatment are set out. In his evidence, Dr Durston confirmed that the treatment was for ongoing injuries experienced by Mr Jones, but he added that Mr Jones requested a form of steroid treatment to boost his body building and weight lifting capacity. Dr Durston gave evidence that Mr Jones had initially requested that another type of steroid be prescribed, but that he (Dr Durston) suggested Stanozolol since its side-effects are less detrimental than other steroids. Dr Durston contended that the prescribed treatment of Stanozolol would not lead to aggressive behaviour, and that there is no
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- medical evidence to suggest the opposite – particularly not in the dose as prescribed to Mr Jones, and if it is applied as a temporary measure.
12 The licensing officer, Mr Clarkson, submitted the certificate of Dr Durston to Dr Robert Hansson, who remarked in an email dated 16 February 2006 that Stanozolol is a prohibited substance, and that the use thereof may lead to "overly aggressive behaviour", and it therefore constitutes a potential risk to members of the public. Dr Hansson conceded during his evidence that he is not aware of research or medical reports that indicate aggressive behaviour as one of the side effects of Stanozolol if it is properly administered, but he nevertheless cautioned that no steroid can be regarded as completely without risk of side effects such as aggressive behaviour. He agreed however that Stanozolol, if administered under medical supervision, is a less harmful drug, but he contended that if it is abused it might lead to aggressive behaviour. He conceded that if Stanozolol is used under proper medical supervision it should not be problematic.
13 Sergeant Wood conducted further investigations and his findings are set out in the internal memorandum, dated 17 February 2006. According to Sergeant Wood, he had spoken to Dr Durston who said that the use of the Stanozolol would be continued for another three months whereafter it is "likely" to be terminated. Dr Durston clarified that the treatment has been applied at intervals for approximately two years, but he added that Mr Jones has also attempted other treatment such as physiotherapy for his problems. According to Dr Durston he had foreshadowed to Mr Jones that, as a crowd controller, he might face problems if he was subject to a urine test, since Stanozolol is a non-complying substance.
14 Sergeant Wood also consulted with Dr Murray Patterson from the Drug and Pharmaceutical Unit of the WA Health Department. Dr Patterson questioned the use of Stanozolol for the type of treatment required by Mr Jones.
Consideration
15 Section 81(1)(b) of the Act empowers the licensing officer to revoke the licence of a crowd controller if the sample of urine is found to contain a non-complying sample of a substance such as Stanozolol. It is not disputed that the non-complying substance Stanozolol was present in his urine, but Mr Jones contends that he was using it for a lawful purpose, as a temporary measure, and under proper medical supervision. This evidence is supported by Dr Durston.
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16 The medical practitioners were in agreement that although the abuse of Stanozolol in the body building industry is rife, and although the use of steroids may cause harmful side effects, Stanozolol may be lawfully prescribed, it may be used for treatment as explained by Dr Durston, and if properly supervised it ought not to lead to aggressive behaviour.
17 Dr Hansson analysed the certificate, dated 10 January 2006, and explained that if Stanozolol is detected in a person's urine, the question whether it is being abused must be answered on the basis of secondary evidence such as the nature of treatment, the dose applied, the period of treatment, supervision by a medical practitioner and behavioural complaints.
18 Dr Durston gave evidence that Mr Jones visits him approximately two to three times per month and that Mr Jones has not complained of serious side effects such as aggressive behaviour. Mr Jones added that he works as a crowd controller two to three nights per week and that he has been doing so during the period of the Stanozolol treatment. He has not suffered any bouts of anger and has not had any complaints or charges against him for aggressive behaviour.
19 Dr Hansson explained that the risk of steroids in the security industry is that users may become aggressive when they are exposed to volatile situations. It is therefore, according to Dr Hansson, a "gamble" to allow a crowd controller to be licensed while under any type of steroid treatment.
Discretion of Tribunal
20 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 non-complying substance, the Act would have been 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.
21 Mr Weir, acting for the Commissioner, referred the Tribunal to the debates in Hansard when the legislation was considered, and drew our attention to the reference in the second reading of the bill of the desire of Parliament to combat the use of certain substances such as steroids, "without the authority of a medical practitioner". This reference highlights the discretion of the Tribunal to take into account all the information of relevance to the application and particularly the reason why Stanozolol is used.
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22 Mr Jones contends that he has a clean record and has not had any previous non-complying tests. He has undergone bona fide medical treatment for ongoing injuries and contends that the process of recovery has taken longer than originally anticipated. He does not dispute that the Stanozolol can be beneficial for weight lifting or body building purposes, but contends that it is being lawfully prescribed, that he uses it under medical supervision and that he has not had any complaints of aggressive behaviour. He further contends that he is not by nature an aggressive person and the use of the Stanozolol has not had a detrimental impact on his behaviour. Dr Durston further indicated that the treatment would probably not be administered for more than a further three to maximum six months.
23 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 should be banned from the security industry. The question is not necessarily whether every person who uses steroids act in exactly the same way, but whether there is a general risk to the public that a person may become more aggressive if Stanozolol is used. The interest of the public demands that a cautionary approach is taken and that Mr Jones who has been on a two year program of Stanozolol treatment, should be debarred from being a crowd controller.
24 Although Dr Hansson set out the risks of steroid use, he conceded that Stanozolol is a safer drug when it comes to the risk of aggressive behaviour, and he could not point to medical evidence or research to support the claim that Stanozolol can lead to an increase in aggressive or violent behaviour if applied under medical supervision. He stressed nevertheless that crowd controllers often work in very volatile situations that require special skills and patience. The use of drugs that can cause an erosion of self-control or an increase in aggression are therefore regarded as a cause for revocation of a licence.
Conclusion
25 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 Mr Jones is entitled to medical treatment, while on the other hand, the safety, and security of patrons must be taken care of.
26 We find that there is insufficient evidence to support the contention that the medically prescribed treatment of Stanozolol administered to
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- Mr Durston on a temporary basis, is such that it may cause him to act in a violent or aggressive way. There is also insufficient evidence to draw a conclusion of an abuse of Stanozolol by Mr Jones or that the public may be at risk given the way in which the medication is prescribed to Mr Jones. The treatment is taking place under regular observation by Dr Durston and is of a temporary nature. Dr Durston indicated that the treatment would not continue for more than another three to six months. Mr Jones has not shown any symptoms of increased aggressive behaviour and no complaints have been received of his behaviour. His demeanour during the hearing, (which in itself is a stressful experience), was calm, rational and well articulated.
27 Section 81 of the Act clothes the Tribunal with the discretion that it "may" revoke a licence if a non-compliant substance is found in a person's urine. Having taking into account the reasons for the presence of the substance Stanozolol in Mr Jones' urine, the Tribunal is satisfied that his crowd controller licence should not be revoked.
Orders
1. The application for review succeeds.
2. The decision of the licensing officer to revoke the crowd control licence (CC18026) of Mr Jones is set aside.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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