Martin v General, Manager, WorkCover Authority

[2002] NSWADT 37

CITATION:	Martin -v- General, Manager, WorkCover Authority [2002] NSWADT 37
DIVISION:	General Division
PARTIES:	APPLICANT Daniel Martin RESPONDENT General Manager, WorkCover Authority
FILE NUMBER:	013309
HEARING DATES:	06/03/2002
SUBMISSIONS CLOSED:	03/06/2002
DATE OF DECISION:	03/18/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Dangerous Goods Act - Explosives Users Permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Dangerous Goods (General) Regulation 1999 Dangerous Goods Act 1975 Interpretation Act 1987
CASES CITED:	Mills v Meeking (1990) 91 ALR 16 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25
REPRESENTATION:	APPLICANT C McElroy, solicitor RESPONDENT S Thompson, solicitor
ORDERS:	1. The decision of the respondent is set aside; 2. In substitution for that decision the respondent is to provide the applicant with a replacement Explosives User’s Permit card

Introduction
1 This application concerns a decision by a delegate of the General Manager, WorkCover Authority, (Workcover) refusing an application by Mr Martin for a replacement Explosives User's Permit card. Mr Martin says he lost his card in January 2001. He applied for a replacement card pursuant to Clause 12 of the Dangerous Goods (General) Regulation 1999 (the Regulation). WorkCover agreed that despite the fact that Mr Martin has lost his card, the permit itself is still in force.

Jurisdiction
2 The Tribunal has jurisdiction to determine this matter pursuant to s 29 of the Dangerous Goods Act 1975 and s 38 of the Administrative Decisions Act 1997 (ADT Act).

Issue
3 The issue to be to be determined in these proceedings is whether the respondent made the correct and preferable decision in refusing Mr Martin's application for a replacement Explosives User's Permit card. Under s 63 of the ADT Act the Tribunal can affirm, vary or set aside this decision.

Relevant legislation
4 The decision was made pursuant to Clause 12 of the Regulation. That provision states that:

(1) The WorkCover Authority may, on being satisfied that a licence or permit has been lost, stolen, destroyed or defaced, issue a substitute to the holder.
(2) The substitute licence or permit is to be in same terms as, and has the same force and effect as, the one it replaces.
Evidence
5 Oral evidence was given by Mr Martin and Mr Tuziak, an officer of Workcover. Documentary evidence was also tendered. As I have decided this matter on the basis of facts which are not in dispute I do not need to recite that evidence or make findings of fact in relation to all the matters about which evidence was given.

6 In response to Mr Martin’s request for a replacement card, an officer of Workcover wrote to him on 25 June 2001. That letter stated that a condition of issue of learner's permits and certificates of competency for powdermen is that applicants are subject to criminal records check in the areas of firearms, drugs, violence and AVO's for the last 10 years. The letter went on to say that "As a result of these checks I regret to advise you that your application has been refused. Should you wish to challenge this decision, please show this letter at your local police station and discuss with them the reasons why you have failed criminal records check."

Respondent's submissions
7 In their Statement of Reasons the respondent said that:

WorkCover's routine procedure when processing an application for an explosives users permit, or an application for the replacement of such a permit was to seek the response of the New South Wales Police Service, via the Firearms Registry. On 20 March 2001 WorkCover faxed a request to the Firearms Registry. . . The reason for WorkCover's routine procedure. . . is that clause 73(1) of the Regulation provides that WorkCover is to be satisfied that the holder of an explosives users permit is competent or trustworthy in the performance of, or is fit to perform, any work authorised by permit.
8 WorkCover submitted that because of the use of the word “may”, the correct interpretation of clause 12 of the Regulation is that Workcover may have regard to matters in addition to the fact that the licence or permit has been lost, stolen, destroyed or defaced in determining whether to issue a replacement card. The additional matters may include Mr Martin's competence, trustworthiness or fitness within the meaning of Clause 73(1) of the Regulation. Clause 73states that:
(1) If it appears to the WorkCover Authority that the holder of an explosives user's permit is incompetent or untrustworthy in the performance of, or is unfit to perform, any work authorised by the permit, it may:
(a) by order in writing direct the holder to cease doing the work and refrain from doing it for such period (not exceeding 10 days) as may be specified in the order, or
(b) by notice in writing served on the holder, require the holder to show cause why the permit should not be suspended or cancelled, or take action under both paragraphs.
(2) A holder of an explosives user's permit who has been served with an order under subclause (1) (a) must comply with the direction set out in it.
Contravention of this subclause is an offence and is punishable in accordance with clause 340.
(3) The WorkCover Authority may, if not satisfied with the matters (if any) put to it by a permit holder in response to a show cause notice:
(a) suspend the permit for a period not exceeding 12 months, or
(b) cancel the permit.
(4) If the WorkCover Authority is satisfied that a person who has been served with a show cause notice has a history of violence or threats of violence (whether or not the person has been convicted of an offence involving violence), it may, at any time, suspend the person's explosives user's permit pending determination of the matter.
(5) If the WorkCover Authority is satisfied that an apprehended violence order is in force under Part 15A of the Crimes Act 1900 against the holder of an explosives user's permit (whether or not the person has been served with a show cause notice), it may, at any time, suspend the permit for a period determined by the Authority (being a period that ends on or before the end of the period during which the order remains in force).
(6) The WorkCover Authority may, at any time, suspend for any period or cancel a learner's permit.
(7) A person whose explosives user's permit or learner's permit is suspended or cancelled must, within 7 days of being notified of the suspension or cancellation, return the permit to the WorkCover Authority.
Reasons and decision
9 When interpreting Clause 12, the respondent submitted that s 33 of the Interpretation Act 1987 means that a "purposive" approach should be applied to statutory interpretation. Section 33 provides that:
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
10 This provision requires a court or Tribunal to take into account the purpose of the legislation even if the meaning of the provision is clear. The court or Tribunal should consider the purpose of the legislation to determine whether there is more than one possible construction. If there is, then the construction which is consistent with the purpose of the legislation should be preferred. ( Mills v Meeking (1990) 91 ALR 16 at 30-31.)

11 There is not more than one possible construction of Clause 12. That Clause gives WorkCover a discretion to issue a substitute licence or permit if satisfied that it has been lost, stolen, destroyed or defaced. The purpose of the legislation is discussed below.

12 It is a fundamental principle of law that when exercising discretionary power, a decision maker must take into account relevant considerations, which he or she is bound to take into account, and must not take into account irrelevant considerations. The leading Australian case in this area is Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25. Justice Mason summarised the principles applicable to this case at p 39:

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
13 I understood WorkCover’s submission to be that since the discretion in Clause 12 is unconfined, it may take into account considerations which are consistent with the subject-matter, scope and purpose of the statute. I agree that this is a correct statement of the law, however my view is that the subject-matter, scope and purpose of the statute preclude WorkCover from taking into account the competence, trustworthiness or fitness of the applicant to perform the work authorised by the permit.

14 The subject-matter of Clause 12 is the replacement of permits or licences that have been lost, stolen, destroyed or defaced. The subject matter of Clause 73 is the suspension or cancellation of permits for alleged incompetence, untrustworthiness or unfitness. The purpose of each Clause is also different. The purpose of Clause 12 is to ensure that permits or licences which have been lost, stolen, destroyed or defaced can be easily and quickly replaced, without prejudicing an applicant’s ability to continue working. The purpose of Clause 73 is to ensure, as far as possible, that only competent, trustworthy and fit people are permitted to continue operating. The fact that there is detailed provision for the suspension or cancellation of permits and licences in Clause 73 (and in s 28 and 28A of the Dangerous Goods Act 1975) means that there is an implied limitation on the considerations WorkCover can take into account in exercising its discretion under Clause 12. It can only take into account matters relevant to a satisfaction that a permit or licence has been lost, stolen, destroyed or defaced. Because Clause 12 has a separate subject matter and purpose from Clause 73, WorkCover cannot take into account matters relevant to the exercise of a discretion under Clause 73 when making a decision under Clause 12.

15 The construction of Clause 12 submitted by Workcover is not consistent with the subject-matter, scope and purpose of the statute because it allows WorkCover to by pass the detailed procedures relating to suspension and cancellation of permits provided elsewhere in the legislation. If WorkCover had any doubts about Mr Martin’s competence, trusworthiness or fitness to hold a permit, then it should have made a decision to suspend or cancel his permit under either s 28 or 28A of the Dangerous Goods Act or Clause 73 of the Regulation. These provisions contain procedures which ensure that applicants are afforded natural justice, in particular that they know the substance of what is being alleged against them and they are given an opportunity to respond to any concerns of Workcover before a final decision is made.

16 Mr Martin was not applying for the issue or renewal of his permit, he was merely applying for a replacement card. This makes it even more clear that matters relevant to his competence, trustworthiness and fitness to retain a permit are irrelevant to any consideration of whether his card should be replaced.

17 In the circumstances of this case, Clause 12 allows WorkCover to provide a replacement card where the card in question has been lost, stolen, destroyed or defaced. I am satisfied on the basis of the evidence that Mr Martin lost his card and that the correct decision is to replace it.

Orders
18 The decision of the respondent is set aside. In substitution for that decision the respondent is to provide the applicant with a replacement Explosives User’s Permit card.