MALE and COMMERCIAL AGENTS
[2005] WASAT 66
•14 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996
CITATION: MALE and COMMERCIAL AGENTS [2005] WASAT 66
MEMBER: DR B DE VILLIERS (MEMBER)
MR T J CAREY (MEMBER)
BRIG A G WARNER (SENIOR SESSIONAL MEMBER)
HEARD: PRIMARY HEARING: 14 APRIL 2005
DIRECTIONS HEARINGS: 25 FEBRUARY 2005 & 10 MARCH 2005
DELIVERED : 14 APRIL 2005
FILE NO/S: VR 136 of 2005
BETWEEN: BENJAMIN JAMES MALE
Applicant
AND
COMMERCIAL AGENTS
Respondent
Catchwords:
Crowd control - Review of decision - Lawful excuse - Revocation of licence - Failure to undergo urine test
Legislation:
Security and Related Activities (Control) Act 1996, s 35, s 46, s 47, s 67, s 72, s 80, s 81(1)
State Administrative Tribunal Act 2004, s 27, s 29, s 51(1), s 67(1), s 98
Result:
The application is treated as an application for a review of a decision
under s 72(1) of the Act
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Sgt S Bagley
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Hancock v Birsa (1972) WAR 177 at 181
Case(s) also cited:
Nil
DR B DE VILLIERS (MEMBER), MR T J CAREY (MEMBER), BRIG A G WARNER (SENIOR SESSIONAL MEMBER):
REASONS FOR DECISION
Issue
The applicant seeks a review of a decision of the licensing officer made under s 81(1) of the Security and Related Activities (Control) Act 1996 (unless otherwise specified any reference to sections of an Act refers to the Security and Related Activities (Control) Act 1996) to revoke his licence as crowd controller due to the failure of the applicant to attend a drug test without a lawful excuse. The application for review is under s 72(1). The applicant contends he had a lawful excuse not to attend the test due to "unforeseen circumstances", he had overslept, limited notice was given and it was the first time that he fails to comply with such an instruction. The respondent contends that there is a proper basis to revoke the licence due to the failure of the applicant to comply with a directive to attend a urine test in terms of s 80(1) without having a lawful excuse as provided for in s 81(1)(a). The respondent holds that the application for review must be dismissed.
Applicant and Respondent
The applicant is Benjamin James MALE of 16 Collier Avenue, Balcatta, WA 6021.
The respondent is Commercial Agents represented by Sgt Simon BAGLEY of 297 Hay Street, East Perth, WA 6004.
Application lodged with State Administrative Tribunal
The application was lodged on 3 February 2005.
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 (SAT Act). The SAT has review jurisdiction to deal with the matter in terms of s 25 SAT Act and s 72(1).
The Tribunal was constituted by three persons namely Mrrs B De Villiers, T Carey and A Warner as required when a matter dealing with a vocational regulatory body is considered (s 11(4) SAT Act).
Section 72(1) enables an aggrieved person to seek a review of a reviewable decision. A "reviewable decision" includes a decision to revoke a licence (s 72(2)(d).
The Tribunal has in accordance with s 29(1) SAT Act the same jurisdiction, functions and discretions as those of the decision‑maker – in this case the licensing officer. The Tribunal may also in terms of s 27(1) SAT Act take into account any additional or new information that was not at the disposal of the decision-maker at the time when the decision was made. The review hearing is therefore "de novo" and is not confined to the matters and information that were before the decision-maker at the time of the decision. The Tribunal is also not limited to the statement of reasons given by the decision-maker (s 27(3) SAT Act).
The powers of Tribunal according to s 29(3) SAT Act is to –
(a)Affirm the decision;
(b)Vary the decision; or
(c)Set aside the decision, and
to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the decision-maker (s 29(5) SAT Act).
Order sought
The applicant is seeking an order to set aside the decision of the licensing officer to revoke his crowd controller licence.
Security and Related Activities (Control) Act 1996
The relevant provisions of the Act are as follows:
The long title of the Act sets out the aims of the Act as providing for the licensing of persons engaged in work relating to property protection, investigation or surveillance and crowd control.
Section 35 defines the duties of a "crowd controller" as a person who at a private or public event is responsible for controlling or monitoring the behaviour of persons, screening persons seeking entry, removing persons for behavioural reasons, or any other prescribed function.
Sections 46 and 47 set out the process of applying for a licence and the material required in support of an application. Sections 51 and 88 determine that it is an offence to provide false or misleading information in the application or renewal of a licence and an individual committing such an offence is liable to a fine not exceeding $10 000.
Section 72(1) provides that any person aggrieved by a reviewable decision of a licensing officer may apply to the SAT for a review of the decision. The decision to revoke a licence is a reviewable decision (s 72(2)(d).
Section 80(1) enables the Commissioner or a police officer delegated by him to "at any time" direct the holder of a crowd controller licence to undergo a blood or urine test. Section 80(3) provides that such a direction must be in writing, specify the date, time and place of the test, and indicate the nature of the sample to be given.
Section 81 empowers a licensing officer to revoke a crowd controller licence if the person fails to comply with a direction under s 80 "without a lawful excuse".
Direction hearing and primary hearing
A directions hearing took place on 25 February 2005 at which interim orders were made in regard to providing the applicant with additional time to make a submission. A further directions hearing took place on 15 March 2005 at which the matter was listed for hearing.
At the commencement of the primary hearing the respondent requested the Tribunal for the matter to be treated as an application under s 72 rather than an application under s 67(1) as originally stated. The reason for the request was that the crowd controller licence had already been revoked and that the applicant was seeking an application for review of the decision by the licensing officer. With the consent of the applicant an order was made for the matter to be treated as an application under s 72(1).
Member De Villiers consequently explained to the parties the nature of review proceedings as set out above. He invited them to provide the Tribunal with any evidence or information that may be of assistance in making a decision. He confirmed that the Tribunal had received and read the written submissions and attachments that accompanied the submissions. He drew the attention of parties to s 98 SAT Act, which determines that it, is an offence to give false or misleading information.
He subsequently invited both parties to give evidence, call witnesses, make further submissions and to put questions to each other and/or to witnesses. No witnesses were called.
Applicant submissions
The following is a summary of the submissions made by the applicant:
(a)He could not attend the test due to unforeseen circumstances. The nature of the circumstances was that he had been working late and overslept on the morning when the test was scheduled to be conducted.
(b)It is unreasonable to expect him to attend a test at 9 am on a Monday morning after he had been working for four nights from midnight to about 3 am. His "body clock" is set at night time and the police should keep that into account when setting a time for a test.
(c) He expressed his willingness to submit to a test at one of the directions hearings but the police said it would not be random if tests were arranged by appointment.
(d)He is "truly sorry" for what happened and does not believe it is justified for his licence to be revoked for having missed one test.
(e)This is his sole source of income and his first offence of this nature.
Respondent submissions
The following is a summary of the submissions made by the respondent:
(a)The Act enables the Commissioner to direct a crowd controller "at any time" to attend a place for a urine or blood sample to be taken (s 80(1)). The purpose of the sub‑section is to test crowd controllers unexpectedly in order to ensure they are not using a substance in contravention of the Act. This purpose of the Act would be defeated if substantial notice of a test was given. In this matter two days notice was given and that is deemed to be adequate and reasonable.
(b)The excuse offered by the applicant that he had overslept does not constitute a lawful excuse. The applicant made no attempt to contact the police on the day of the test or to arrange for a test to be conducted later on the same day.
(c)The applicant failed to attend a test as directed in accordance with s 80 without any lawful excuse and as a consequence disciplinary action by the revocation of his crown controller licence was warranted.
Consideration
The Tribunal's consideration of the application to review the licensing officer's decision to revoke the applicant's crowd controller licence is not confined to the matters that were before the licensing officer when the decision was made (s 27(1) SAT Act). The purpose of the review is to produce a correct and preferable decision (s 27(2) SAT Act). In the same way that the applicant had to satisfy the licensing officer that he did not act in contravention of the Act by failing to attend the urine test, he now has to satisfy the Tribunal. For all practical and legal purposes the Tribunal is therefore placed in the shoes of the licensing officer and we have to rely on the Act to determine if the application for review must succeed.
In considering the application, the Tribunal has taken into account the written and oral evidence and submissions made by the parties.
The Act enables the Commissioner to "at any time direct" the holder of a crowd controller licence to undergo a blood or urine test (s 80(1)). Although the power to make such a direction seems at face value to be unlimited, s 81(1)(a) anticipates that where a person has a "lawful excuse" he will not be required to comply with such directive. The question in this matter is therefore if the excuse offered by the applicant was "lawful".
We note the evidence by the applicant that short notice was given for him to attend the test. However it appears from the evidence that two days notice was given and that the applicant made no effort to contact the police to arrange for another time to attend the test. The giving of two days notice does not seem unreasonable taking into account the objectives of the Act.
The meaning attached to "lawful" depends on the circumstances of each case. In general one would approach "lawful" as a reason that is supported by law. As the Oxford Dictionary (Moore, B., (ed.) 2004) puts it: "conforming with or recognised by law". The test for lawful excuse is described by Burt J in Hancock v Birsa (1972) WAR 177 at 181 as whether in the "judgment of the court" a person's actions were " excusable in all the circumstances of the case" bearing in mind the nature of the offence and the possible punishment.
The Tribunal notes the explanation by the applicant of him working late hours but we are not satisfied that the applicant had a lawful excuse to explain his failure to attend the test. The applicant could not offer an acceptable reason why he did not contact the police to arrange for the test to be conducted later on the same day.
The Act anticipates that a crowd controller may for a "lawful reason" be unable to attend a test as directed by a notice under s 80. However applying the test as set down in Hancock above, we conclude that if all the circumstances are taken into account, including the nature of the offence, the public interest and the consequences of a breach of the Act, no lawful excuse has been given by the applicant.
The non-compliance by the applicant with the direction by the delegated officer was serious and justifies the revocation of the crowd controller licence.
Finding
The Tribunal finds that the applicant failed to comply with a direction given under s 80(1) without a lawful excuse. The Tribunal is therefore satisfied that the revocation of his licence under s 81 must be upheld.
Orders
The application is treated as an application for a review of a decision under s 72 of the Act.
The application for review is dismissed.
I certify that this and the preceding seven pages comprise the reasons for judgment of the State Administrative Tribunal.
__________________
Bertus de Villiers - Member
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