Kortman and Attorney-General's Department

[2010] AATA 1074

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1074

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )      Nº 2010/2654

GENERAL ADMINISTRATIVE DIVISION        )

Re:               ANDREA KORTMAN

Applicant

And: ATTORNEY-GENERAL’S DEPARTMENT

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date22 December 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

..............................................

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2010/2654

KORTMAN
and
ATTORNEY-GENERAL’S DEPARTMENT

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

WEDNESDAY, 22 DECEMBER 2010

MR MELICAN appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS                 [10.36 am]

MR FRIEDMAN: Well, there is no dispute about the facts in this matter and they are that the applicant, Ms Kortman, applied for an aviation security identification card, which I will refer to as an ASIC. And when she did so the Melbourne Airport which was the issuing body, on 18 May 2010, applied to AusCheck which is a division within the respondent Attorney-General’s Department for a background check on her. The purpose was to determine whether the issuing body was permitted under the Aviation and Transport Security Regulations 2005 to issue Ms Kortman with an ASIC. And in accordance with regulation 7 of the AusCheck Regulations 2007, a delegate of the respondent commissioned a criminal history background check to be conducted in respect of Ms Kortman.

That check revealed there were disclosable outcomes as follows: on a date in July 2004 – and the precise date is not clear because it appears that the list of charges provided by the Australian Federal Police, the photocopy didn’t quite reveal the date in July, but I am satisfied that in July 2004 Ms Kortman appeared at the Broadmeadows Magistrates Court in Victoria on charges of obtain financial advantage and – there was one charge of obtain financial advantage - and three charges of knowingly obtain payment not payable. And the result, as indicated under the heading Counts Result was that on all charges – and the offences were listed as occurring between 12 September 1999 and 2 July 2002, on all charges they were proven without proceeding to a conviction.  Ms Kortman was released on entering a recognisance of $2000 to be of good behaviour for a period of 12 months, and she was ordered to contribute $500 to the court fund, and a reparation order in respect of an amount of $4872.60 was made.

On 9 June 2010 the respondent notified Ms Kortman that the background check indicated that she may have a qualified criminal record as defined by regulation 3 of the AusCheck Regulations and the letter stated that Ms Kortman had the opportunity to correct the information that the respondent had about her.

On 15 June 2010 Ms Kortman requested AusCheck to make a final decision about her background check as soon as possible.  On 17 June 2010 the respondent determined that Ms Kortman had a qualified criminal record as a consequence of the outcomes revealed in the background check that I have already referred to and advised the issuing body to this effect and on the same day the respondent advised Ms Kortman of the decision to inform the issuing body.

The effect of the respondent’s decision, as notified to her on 17 June 2010, is that she was eligible to receive an ASIC with a condition that she must have another background check performed within 12 months.  …

[I]n her application to the tribunal Ms Kortman indicated her view … in respect of the offences dealt with in 2004 she said …:

The alleged offence was in 2004.  I had been overpaid by Centrelink.  I fought this in court and sought a non- conviction.  All moneys are repaid.  I have worked in security for 15 years and volunteer in the community.  I have had my day in court.

So it appears to me that her contention is that she does not have a qualified criminal record because the official record of the outcome of her appearance at Broadmeadows Magistrates Court in July 2004 was all charges proven without conviction, and released entering a recognisance to be of good behaviour for 12 months.  I have had the benefit of reading a comprehensive statement of facts and contentions provided by the respondent and that has been elaborated on, to some extent, by Mr Melican representing the respondent today.  I am satisfied that the statutory criteria for eligibility for ASICs are located in the Aviation Transport Security Regulations 2005. Those regulations are established under the Aviation Transport Security Act 2004 and they provide that:

A person who has an operational need for access to a secure area at an airport is required to hold an ASIC and under the legislative framework issuing bodies have the responsibility for issuing ASICs.

And that is not something that AusCheck issues but AusCheck has a particular function to carry out particular checks on backgrounds.  An issuing body can only issue an ASIC to a person in accordance with regulation 6.28 of the ATS Regulations.  And subregulation 1(d) provides:

That an issuing body cannot issue an ASIC to a person unless the issuing body has received notice from AusCheck that AusCheck has conducted an assessment under the AusCheck scheme to decide if the person has an adverse criminal record or a qualified criminal record.

And subsection (2):

The person does not have an adverse criminal record.

And I note that “adverse criminal record” is defined in subregulation 6.01, subsection (2) of the ATS Regulations and “qualified criminal record” defined in subregulation 6.01(3) of the ATS Regulations.  And 6.01(3) provides that:

A person has a qualified criminal record if the person; (a) has been convicted twice or more of aviation security relevant offences and, (b) did not receive a sentence of imprisonment for any of those convictions and, (c) did not receive any of those convictions within the 12 months ending on the date when the relevant background was conducted.

And I note that “aviation security relevant offence” is defined in subregulation 6.01 subsection (1) of the ATS Regulations and refers specifically to an offence involving dishonesty:

Consequently a person who has a qualified criminal record is eligible to be issued with an ASIC but only on the condition that the person must have a further background check conducted within 12 months after the first background check.  If the person does not have an adverse criminal record or a qualified criminal record that person may be issued with an ASIC valid for two years after the day on which the relevant background checks were completed.

So the issue I need to decide involves consideration of what is an offence involving dishonesty.  And it has been submitted to me that the offence must be one which entails or includes dishonesty as a necessary circumstance and I note that the phrase “offence involving dishonesty” is not defined in the ATS Regulations and neither is the word “dishonesty”.  It … [is] submitted to me that there are no reported cases dealing in any detail with the meaning of “offence involving dishonesty” in the regulations.  There is a detailed explanation contained within the statement of facts and contentions of the meaning of “dishonesty” and also the meaning of “involving dishonesty” and the relevant case law is set out in the statement of facts and contentions. 

The respondent in its statement of facts and contentions submitted that it is necessary to consider the terms of the offences of which Ms Kortman was found guilty in order to determine whether the offences of their nature were offences involving dishonesty within the meaning of subregulation 6.01 subsection (1). 

…  [I]n respect of the actual offences that were dealt with in July 2004, those offences were “obtain financial advantage and knowingly obtain payment not payable”.  So the question is whether, in spite of the charges being proven but no conviction being recorded in the Magistrates Court, whether that should affect a finding that Ms Kortman had been convicted of those offences within the meaning of regulation 6.01 subsection (3) of the ATS Regulations.  I note that regulation 6.01 subsection (1) of the regulations 30 provides that “conviction” has a meaning given by subsection 85ZM subsection (1) of the Crimes Act and subsection (1)(b) provides that:

A person shall be taken to have been convicted of an offence if the person has been charged with and found guilty of the offence but discharged without conviction.

Consequently, for the purpose of regulation 6.01 subsection (3) of the ATS Regulations, Ms Kortman was convicted in July 2004 of obtaining financial advantage and knowingly obtain payment not payable. Section 135.2 of the … [Criminal] Code has been amended twice since it was inserted into the Criminal Code 1995 on 24 May 2001 and was amended by [A]ct… number 141 of 2002. Those amendments took place on 16 January 2003 and there was a further amendment on 28 September 2004, which leaves a provision in the form which it currently exists.

The notation on the extract from the Australian Federal Police of the court appearance in July 2004 states that the offences were committed between 12 September 1999 and 2 July 2002. Accordingly, it is apparent that Ms Kortman is likely to have been charged and prosecuted under section 135.2 of the Criminal Code as it existed when first enacted. At the time, section 135.2 subsection (1) provided that obtaining financial advantage, a person is guilty of an offence if the person obtains a financial advantage for himself or herself from the Commonwealth – from a Commonwealth entity knowing or believing that he or she is not eligible to receive that financial advantage and there’s a penalty of imprisonment for 12 months.

For a person to be convicted under that provision, the prosecution must prove that the person obtained a financial advantage, intended to obtain the Financial advantage and it was obtained from a Commonwealth entity - and intended that the financial advantage be obtained from a Commonwealth entity and the person knew or believed that he or she is not eligible to receive that advantage. There is no provision for dishonesty to be a specific element of the offence. I accept the submission by the respondent that section 135.2 is, nevertheless, an offence involving dishonesty for the purpose of regulation 6.01 of the ATS Regulations because section 135.2 creates an offence which of its nature necessarily involved dishonesty. So I accept that … [an] offence … such as the one committed by Ms Kortman, is an offence involving dishonesty and is therefore an aviation security relevant offence within the meaning of the ATS Regulations.

… [T]he respondent determined that that conviction related to an offence … against either section 215 of the Social Security (Administration) Act 1999 or section 1347 of the Social Security Act 1991. Given the dates of the offences, it would appear that Ms Kortman was prosecuted for an offence against section 1347 of the Social Security Act as it was immediately prior to being repealed on 20 March 2000 or section 215 of the Social Security (Administration) Act 1999, a provision inserted into the Administration Act almost identical to section 1347 on the same day that it was repealed from the Social Security Act. Section 1347 of the Social Security Act provided that:

A person must not knowingly obtain payment in a social security payment or payment of an instalment of a social security payment for which a person is not eligible or which is not payable at all or only payable in part.

I was referred to … several decisions, one of which was Hue Thi Le v Gary Wayne Shute (2000) ACTSC 56 at paragraph 29; and Finnan v Catrupi (2002) NSWSC 569. In the latter case, Mathews AJ stated, quote – this is at paragraph 41:

It is sufficient in my view for the prosecution to prove that the appellant, in fact, obtained payments which were payable only in part, knowing that at least part of those payments were not payable.

Section 215 of the Administration Act provided that:

A person must not knowingly obtain payment of:

(a) payment of a Social Security payment under the Social Security law, or
(b) payment of an instalment of a Social Security payment 5 under the Social Security law which is,

(c) not payable at all, or

(d) only payable in part.

Then section 215 was amended by Act Number 137 of 2001, which came into effect on 1 October 2001. There was a provision under subsection 4, paragraph 2 of Act 137, which stated that:

If any act or omission is alleged to have taken place between two dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

I accept the submission by the respondent that the cases related to section 1347 and/or section 215 suggest that the prosecution of a person for an offence against both provisions will not succeed unless a prosecutor proves beyond reasonable doubt that the defendant obtained the payment while knowing that he or she is not entitled to the payment; and that committing an offence of this kind would be contrary to normally received standards of honest conduct because it would be described by ordinary people as being at variance with straightforward or honourable dealings.

Therefore, I accept the submission that each of the three commissions of an offence against either section 1347 or [section] 215 is an offence involving dishonesty within the meaning of regulation 6.01 of the ATS Regulations, and is therefore an aviation-security-relevant offence.

So in determining whether Ms Kortman has a qualified criminal record, I find that she had been convicted twice or more of aviation security relevant offences and did not receive a sentence of imprisonment for any of those convictions, and did not receive any of those convictions within the 12 months ending on the date when the background check was conducted.  And I note that regulation 9 of the AusCheck Regulations requires AusCheck [to give to an] … issuing body advice about whether or not the background check discloses that the person has an adverse criminal record or a qualified criminal record, and there is no discretion for AusCheck about the advice to be given to an issuing body about the outcome of a background check once AusCheck has determined that a person has an adverse criminal record or qualified criminal record.

So for all those reasons, I find that an offence against section 135.2 of the Criminal Code is an offence involving dishonesty, and is therefore an aviation security relevant offence. An offence against section 1347 of the Social Security Act or [section] 215 of the Social Security (Administration) Act is an offence involving dishonesty, and is therefore an aviation security relevant offence. I find that Ms Kortman was convicted of an offence against section 135.2 of the Criminal Code and three counts of an offence against either section 215 of the Administration Act or section 1347 of the Social Security Act; and she was not sentenced to imprisonment in respect of any of those offences.  Therefore, I find that she has a qualified criminal record within the meaning of regulation 6.01(3) of the ATS Regulations, and there is no discretion exercisable by the respondent whether or not to inform an issuing body of the result of a background check.

…

After hearing further submissions from Mr Melican, I find that for the reasons I have already stated, Ms Kortman has a qualified criminal record for the purposes of her application for an ASIC… .  [T]he … decision under review … is … the decision by the respondent to provide an unfavourable criminal history to the issuing body. 

I … affirm that decision for the reasons I have previously given. 

…

END OF EXTRACT