McDonald v SafeWork NSW (No 2)

[2018] NSWCATAD 218

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	McDonald v SafeWork NSW (No 2) [2018] NSWCATAD 218
Hearing dates:	24 July 2018
Date of orders:	18 September 2018
Decision date:	18 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	1. The First Respondent’s decision that the Applicant is not a fit and proper person to hold a security clearance is set aside.  2. In substitution the Tribunal determines that Mr McDonald is to be issued with a security clearance
Catchwords:	ADMINISTRATIVE REVIEW - explosives licensing – security clearance – fit and proper person – criminal convictions - rehabilitation
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Explosives Act 2003 (NSW) Explosives Regulation 2013 (NSW)
Cases Cited:	Australian Broadcasting Tribunal v Bond ; (1990) 170 CLR 321; 1990] HCA 33 Boyle v SafeWork NSW Authority of New South Wales [2015] NSWCATAD 90 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 Loye v Director General, Department of Transport [2000] NSWADT 145 McDonald v SafeWork NSW [2016] NSWCATAD 197 197 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Robertson v Roads and Maritime Services [2015] NSWCATOD 47 Stevens v SafeWork NSW Authority of New South Wales [2014] NSWCATAD 202
Category:	Principal judgment
Parties:	Peter McDonald (Applicant) SafeWork NSW (First Respondent) Commissioner of Police (Second Respondent)
Representation:	Counsel: Ms Lindeman (Respondents)   Solicitors: Peter McDonald (self-represented) Crown Solicitor’s Office (Respondents)
File Number(s):	2017/00363772

REASONS FOR DECISION

1. These proceedings concerned Mr McDonald’s application for a security clearance under the Explosives Act 2003 (NSW) which was refused by SafeWork NSW. The main reason for the refusal was that SafeWork considered that Mr McDonald is not a fit and proper person to be granted security clearance.

2. The main issue in these proceedings is whether, having regard to Mr McDonald’s convictions and the conduct underlying those convictions, he is a fit and proper person to hold a security clearance.

BACKGROUND

3. On 31 May 2013, SafeWork’s predecessor, WorkCover granted Mr McDonald a security clearance and pyrotechnicians licence under the Explosives Act. This security clearance and licence was required for Mr McDonald’s work as a pyrotechnician at Ka-Boom fireworks. The security clearance was to expire on 27 January 2018.

4. On 16 July 2015, Mr McDonald was convicted of “filming a person’s private parts without consent” and “stalk/intimidate intend fear physical harm et cetera (domestic)”. Following these convictions on 4 February 2016, SafeWork decided to cancel Mr McDonald’s security clearance under the Explosives Act on the basis that Mr McDonald was no longer a fit and proper person to hold that clearance.

5. Mr McDonald applied to the Tribunal for external review of the decision. On 22 June 2016, the Tribunal affirmed SafeWork’s decision to cancel Mr McDonald’s security clearance: see McDonald v SafeWork NSW [2016] NSWCATAD 197 197

6. On 3 July 2017, Mr McDonald again applied to SafeWork for security clearance. On 7 July 2017, SafeWork requested the Commissioner of Police to provide a report about Mr McDonald under section 13 (1) of the Explosives Act. The Commissioner’s report dated 22 August 2017 reported that Mr McDonald was not a fit and proper person to hold a security clearance and that it would be contrary to the public interest for Mr McDonald to hold a security clearance.

7. On 5 September 2017, SafeWork notified Mr McDonald that it proposed to refuse his application for a security clearance and invited him to make a submission to SafeWork providing further relevant information. Mr McDonald did not provide further information.

8. On 8 November 2017, SafeWork advised Mr McDonald that his application for security clearance was refused, as SafeWork was not satisfied that he was a fit and proper person to be granted a security clearance as required by clause 12 (1)(b) of the Explosives Regulation 2013.

9. On 29 November 2017, Mr McDonald filed his application for administrative review of SafeWork’s decision in the Tribunal.

10. On 20 February 2018 the Commissioner for Police was joined as a second Respondent to the proceedings as required by section 24A(1)(a) of the Explosives Act.

Jurisdiction

11. The Tribunal has jurisdiction pursuant to section 24 of the Explosives Act which provides that a person who is aggrieved with the decision under the Explosives Act or the Explosives Regulation is entitled to apply to the Tribunal for administrative review of the decision by way of merits review under section 63 of the Administrative Decisions Review Act 1997.

Relevant Legislation

12. An application for a security clearance may be made pursuant to cl 11 of the Explosives Regulation 2013 (NSW). SafeWork NSW, as the regulatory authority, may approve or refuse applications for security clearances (Explosives Act, ss 4, 11(2)).

13. Clause 12 of the Explosives Regulation provides:

12 Grounds for refusing security clearance

(1) The regulatory authority may grant a security clearance to a person only if it is satisfied that the person:

(a) is 18 years of age or over, and

(b) is a fit and proper person to be granted a security clearance.

Fit and Proper Person

14. The meaning of “fit and proper person” is well settled, following a long line of cases discussing its meaning: see Stevens v SafeWork NSW Authority of New South Wales [2014] NSWCATAD 202 at [49].

15. Significantly, the expression “takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, Toohey and Gaudron JJ at 380. The determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of all the evidence: Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at [20]; Robertson v Roads and Maritime Services [2015] NSWCATOD 47 at [40].

Mr McDonald’s criminal background

16. Mr McDonald’s criminal background was set out by the Tribunal, referring to the Commissioner of Police’s report dated November 2015, in the Tribunal’s decision of June 2016.:see McDonald v SafeWork NSW [2016] NSWCATAD 197 at [4].

17. The Commissioner of Police’s section 13 Report of November 2015 recorded that:

(a) the [Applicant] has been found guilty or convicted of an offence (whether in New South Wales or elsewhere):

• He was convicted on 16 July 2015 at Maitland Local Court of 'Stalk/intimidate intend fear physical etc harm (domestic)' and sentenced to 6 months imprisonment. He then lodged an all grounds and severity appeal against the sentence. On 28 October 2015, the appeal was upheld at Newcastle District Court and the order varied to 7 months imprisonment and released under section 12 of the Crimes (Sentencing Procedure) Act 1999, upon entering into a bond to be of good behaviour for a period of 7 months. Conditions were imposed for the [Applicant] to appear for sentence if called upon to do so, notify the Registrar of the Court of any change of address, supervision NSW Probation Service in relation to psychological counselling and sexual offending;

• He was convicted on 16 July 2015 at Maitland Local Court of 'Film person's private parts without consent', and sentenced to 12 months imprisonment, with a non-parole period of 8 months and released subject to supervision. He then lodged an all grounds and severity appeal against the sentence. On 28 October 2015, the appeal was upheld at Newcastle District Court and the order varied to 12 months imprisonment and released under section 12 of the Crimes (Sentencing Procedure) Act 1999, upon entering into a bond to be of good behaviour for a period of 7 months. Conditions were imposed for the [Applicant] to appear for sentence if called upon to do so, notify the Registrar of the Court of any change of address, supervision by NSW Probation Service in relation to psychological counselling and sexual offending;

(c) the [Applicant] is not a fit and proper person to retain a security clearance:

•   It is evident from the abovementioned convictions and the Facts Sheet the [Applicant] has committed serious offences with a tendency toward violence. This is highlighted by the severity of the penalty imposed in relation to those offences. In an interview with Police, the [Applicant] made admissions to threatening to kill the victim.

•   In addition to the abovementioned offences, in July 2011, the [Applicant] verbally abused Police and acted in a violent manner by slapping a Senior Constable to the left side of his face with an open right hand. He resisted arrest by throwing his arms about. Police responded by spraying him with Oleoresin Capsicum spray and arrested him, fearing they would be further assaulted. Whilst waiting for a caged vehicle to transport him to Maitland Police Station, he started to spit on the side of the Police vehicle. After being warned by Police in relation to his behaviour, he spat on the Police vehicle a further three times. The [Applicant] was intoxicated at the time;

(d) the [Applicant] does have a history of violence or threats of violence, including behaviour referred to in section 13 of the Crimes (Domestic and Personal Violence) Act 2007;

(e) there is an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007 in force with respect to the [Applicant]. Order Date Served: 4 June 2015, Order Expiry Date: 3 June 2017;

(f) the [Applicant] has participated in criminal activity;

(g) it is contrary to the public interest for the [Applicant] to retain a security clearance. Given the [Applicant’s] criminal history and tendency toward violence, I consider that his access to restricted substances and/or worksites may present a risk to the public.

The Tribunal’s decision of June 2016

18. The Tribunal in June 2016 affirmed the decision to cancel Mr McDonald’s security clearance. As well as Mr McDonald’s criminal history, the Tribunal had before it an affidavit of Ms Michelle Small senior psychologist employed in Corrective Services. Ms Small’s report stated that in October 2015 she assessed Mr McDonald as falling within the moderate to high risk range of recidivism. Further, Mr McDonald conceded under cross-examination before the Tribunal that he had lied to the Tribunal at the stay hearing prior to the principal hearing. He had given false evidence in regard to his income and the fact that he was working as a mechanic and not relying solely on the security clearance as a source of income.

19. The Tribunal noted that Mr McDonald had shown a disregard for licensing laws - referring to his traffic record and a disregard for Court orders - not complying with Community Service orders.

20. Mr McDonald had provided to the Tribunal a report from a registered psychologist Mrs Cheryle Clothier dated April 2016. Mrs Clothier’s report indicated that at that time Mr McDonald had attended five sessions with her. He had been referred to her for issues related to depressed mood. She noted a history of attention deficit hyperactivity disorder, some self-harming and suicidal ideation, binge drinking of alcohol and some drug use. Mrs Clothier assessed Mr McDonald as severe for depression, mild for anxiety and mild for stress on his first attendance. Mrs Clothier had recommended that Mr McDonald continue therapy for specific treatment related to emotion regulation, particularly low and/or explosive mood; drug and alcohol issues; and ongoing understanding of the implications and illegality of his behaviour.

21. Mr McDonald had also provided to the Tribunal a reference from Mr Milton Skinner his employer both in the mechanical business as well as Ka-Boom Fireworks.

22. The Tribunal in June 2016 was satisfied that Mr McDonald had made significant efforts to change his lifestyle. He had developed some insight into the issues underlying his behaviour and was taking steps to address those issues. The apprehended violence order made by the Local Court in relation to allegations of violent behaviour towards his former partner and a threat to kill her would apply until June 2017. At the time of hearing, Mr McDonald was also still subject to a bond imposed by the court in relation to his offences of filming a person’s private parts without consent and stalking and intimidating with the intention to cause fear of physical harm. He had been sentenced to 12 months imprisonment, which was suspended on a good behaviour bond for the filming private parts conviction. The bond was due to expire on 27 October 2016. The Tribunal understood the sentences to have been imposed on Mr McDonald based on Ms Small’s pre-sentence report which indicated that Mr McDonald was a moderate to high risk, relative to other male sexual offenders.

23. The Tribunal also found that it was significant that Mr McDonald had admitted that he had given false evidence before the Tribunal. He had already told Mrs Clothier about what had happened at the stay hearing. The Tribunal considered that that indicated that Mr McDonald had developed some insight into his behaviour and he had some acceptance of the consequences.

24. At the conclusion of the June 2016 hearing, the Tribunal indicated to Mr McDonald that it would assist any future application if he continued to get assistance from Mrs Clothier or another psychologist. The Tribunal considered that Mr McDonald’s conduct had displayed a disregard for public safety and a tendency to engage in violent behaviour. He had also shown a disregard for licensing laws and court orders. The Tribunal stated that until such time as Mr McDonald was able to show that he had addressed these issues there was a clear risk that he may engage in similar behaviour in the future. If he were to engage in threatening behaviour in the future the effect could be exacerbated if he were to hold a security clearance. The Tribunal also found that Mr McDonald’s history would give rise to a public perception of a risk associated with a security clearance. The Tribunal considered that the risks would diminish over time if Mr McDonald continued to receive psychological assistance and continued with the efforts to change his patterns of behaviour.

Events since Tribunal’s previous hearing in June 2016.

25. Just prior to the Tribunal’s previous hearing in June 2016 the section 12 bond for the intimidation offence had ended on 27 May 2016. Since the June 2016 hearing, Mr McDonald’s section 12 bond for the filming of a person’s private parts offence ended on 27 October 2016.

26. On 27 November 2016 the police observed Mr McDonald to be intoxicated, aggressive and showing signs of drug use in public. He was asked to move on from an area. The Tribunal notes that he was not charged with any offence.

27. The apprehended violence order made by the Local Court expired in June 2017.

28. Mr McDonald had committed additional speeding offences on 21 November 2016, 5 March 2017 and 3 November 2017.

The Hearing of 24 July 2018

Mr McDonald’s Case

29. At the hearing on 24 July 2018, Mr McDonald provided a new report from Mrs Cheryle Clothier, psychologist, dated 6 July 2018 and a character reference dated 22 May 2018 from Mr Dallas Schmitzer, whom he knew from work.

30. Mr McDonald gave evidence at the hearing and he was cross-examined.

Mr McDonald’s evidence

31. Mr McDonald told the Tribunal that a lot had changed since the last hearing. He had been ‘fixing up’ his difficulties. He had still committed some driving offences, but he was working on this. He had not realised how important it was not to break the road rules. He told the Tribunal that as a motor mechanic he might drive 40 cars a week. Sometimes the P plates had fallen off when he had put the plates on a car. He was now judging his speed by the speedometer and not just the feel of the car.

32. He now works full-time at Skinner Mechanical, Monday to Friday. He does the fireworks work under supervision on weekends.

33. He has been running the workshop since his boss has gone into semi-retirement. He had been inspected by WorkCover a number of times. There had been no problems. These days all he does is work and go home.

34. He knew he had a past, but he was trying to get it all back operating again.

35. He would really like to be able to teach others how to use fireworks properly. He really enjoys this.

36. He noted that at first, he had not thought of therapy, but he had been obliged to undertake it for court purposes. He thinks it has helped him a lot. His youngest boy is turning two in a couple of weeks. He is looking to go to counselling with his son who has been really naughty. He does not sleep. Mr McDonald stated “I love him. He’s awesome.”

37. He knew that he should not have lied under oath at the stay hearing prior to the previous hearing. It had cost him a lot and he is not going to lie again.

38. Under cross-examination he was taken through his previous driving offences. He disagreed with the facts sheet in relation to the driving in a manner furious offence on 18 March 2010. He did not know that the police were behind him. That is why he did not pull over. When he realised he then panicked and drove around the corner. He could not remember if it was an orange or red light. He had not caused several vehicles to brake. He agreed that he had driven very fast.

39. Mr McDonald agreed that only a few weeks later on 27 March 2010 he had had further driving offences.

40. There had then been a break in his driving offences because he was disqualified from driving for a period. He was then caught driving while disqualified on 11 March 2011. He agreed that in October 2013 he had been apprehended for failure to display P plates and again in October 2014. He did not remember the October 2016 speeding offence. He agreed that three weeks prior to lodging the current Tribunal application he had been stopped for speeding. He then lost his licence for three months and was disqualified from driving between 14 November 2017 and 13 February 2018. He had committed no offences since regaining his licence in February 2018 – a period of five months. The number of failure to display P plate signs was because he is a mechanic and he drives 40 cars a week and sometimes the P plates don’t stay on the car.

41. He agreed that he had failed to comply with his Community Service order in 2010 and in 2011.

42. Mr McDonald told the Tribunal that the period between 2010 to 2011 was a bad time for him. He didn’t care. He wasn’t worried about finishing anything.

43. The assault on a police officer was also a time at which he didn’t care about anything. He did not accept that he had slapped the police officer. He accepted that he was intoxicated and that any touch against a police officer can be assault. He denied resisting arrest. He accepted that he had done the wrong things and that he had been violent in the police officer incident.

44. He denied being violent towards his previous partner. He did not agree that their relationship had become abusive and violent towards the end of 2011. His previous partner damaged his vehicle and the police had put an AVO on her. He had not sent a photo to his previous partner of them having sex. He did show her one. He did not threaten to put it on Facebook. He denied telling his previous partner that if she told his new girlfriend about their continuing relationship that he would kill her. He agreed that he had sent a text to his previous partner saying that he would kill her on 25 January 2015.

45. He now knew it was terribly wrong to take photos of his previous partner naked. He said he had never laid a hand on his previous partner. The relationship was verbally violent but not physically so. If there had been pushing - he had forgotten about it. He feels like he has grown up now and he understands more.

31. Mr McDonald agreed that taking photos of his previous partner without her consent had been a significant breach of trust and it was dishonest. He agreed he had lied at the previous stay hearing about his earnings and that he had only volunteered the correct information after he was asked questions about it.

32. In relation to the therapy that he had undertaken, he could not remember how frequently he had seen Mrs Clothier. Initially it was more regularly. As the problems became less, he went onto a medical plan for 15 consultations for a year. He had seen Ms Clothier 3 to 4 times after the last Tribunal, spaced out. He had seen his GP on a couple of occasions to get repeats of medication but once things started to settle, he had ceased taking alcohol and drugs. Then he did not need the medication. He had had his last drink three weeks ago. It was probably a couple of beers. He said Mrs Clothier knew about his previous offences and the alleged violence and strangulation. He worked on strategies with her. He now thinks about things before he does them and he talks to his girlfriend. He said that he was very stressed at the hearing but that he just tries to think about things before he responds. He stops and thinks about consequences before he reacts. This stops him from being aggressive. He could not recall when the last time was that he had been aggressive. He said that he has a few drinks every few weeks - maybe more at a birthday or celebration. He agreed that he becomes more aggressive when he is drunk. He does not think that drinking is a risk for him now. He no longer experiences depression. It is more that he experiences stress from work and trying to manage the children.

33. He said that while his current partner was pregnant they had difficulties, but things have changed now.

34. He said that his boss Mr Skinner knows everything about his past. He hoped to buy the boss’s business later in life.

35. He told the Tribunal that he had not had any major offences for the last three years.

Character reference dated 22 May 2018 from Mr Dallas Schmitzer

51. Mr McDonald provided a reference from Dallas Schmitzer dated 22 May 2018. The reference was addressed “to whom it may concern”. It stated that Mr Schmitzer had known Mr McDonald for 10 years as a mechanic and their friendship formed over the years. Mr Schmitzer stated that Peter is an intelligent, honest and motivated individual. As a senior mechanic, he works well in a team environment and would be more than capable of managing a small group of people. He also believes that developing quality relationships with customers is an integral part of day-to-day business. Mr Schmitzer stated that he had always known Peter to be honest, trustworthy and reliable and we would not hesitate to attest to Peter’s character and work ethic.

52. The reference did not refer to Mr McDonald’s history or his explosives security clearance.

53. At the hearing Mr McDonald told the Tribunal that he knew Mr Schmitzer through the workshop. They go on motorbike rides together. Mr Schmitzer knows everything about his history.

Report of Mrs Clothier dated Friday, 6 July 2018

54. Mrs Clothier provided a report addressed “To whom it may concern” stating that she had seen Mr McDonald since November 2015. She referred to her previous report and its recommendations concerning his emotion regulation; drug and alcohol issues; and gaining an understanding of implications and illegality of the behaviours that brought him before the courts.

55. He attended regularly to address these matters. Early on he was able to understand the seriousness of what had occurred, not least of all because it had a serious impact on his employment. He has shown good insight into his issues and was diligent in attending therapy. They used Dialectical Behaviour Therapy (stress management, emotion regulation and distress tolerance) and Mr McDonald has a solid grounding in strategies now.

56. They had used Motivational Interviewing Stages of Change in relation to drug and alcohol use. Mr McDonald had reached maintenance stage by early 2017. He was supported by his GP through medication. Following on from this, therapy was no longer necessary. Mr McDonald re-presented on 11 May 2018 and had attended three sessions prior to Mrs Clothier writing the letter. Mr McDonald was prompt and neatly dressed. All aspects of his behaviour, thoughts and emotions were appropriate. Mrs Clothier conducted a risk assessment and Mr McDonald reported no suicidal ideation or self-harm since 2015. Mr McDonald completed the DASS21 again on 11 May 2018 and scored in the normal range for depression, anxiety and stress symptoms.

Character reference dated 24 November 2017 from Milton Skinner

57. Mr McDonald provided a reference dated 24 November 2017 from Mr Milton Skinner his employer at Ka-Boom fireworks and Skinner’s Mechanical. The reference stated:

“I first meet (sic) Peter 10 years ago when he came to my workshop Skinner’s Mechanical and asked if there was any work going.

I gave Peter a start as a labour to see how he would go. Well to this day is still employed at Skinner’s Mechanical and also in my other business Ka-Boom Fireworks.

Peter is now managing my mechanic repair shop as I have sem(i) retired and assist with displays with our other licence pyrotechnicians

Peter is also due for long service in February 2018.

During this time Peter has completed his motor mechanic apprenticeship along with his motor vehicle pink/blue slips and gas rego inspection certificates.

Peter had also been trained and obtained his explosives/Pyrotechnicians licence to enable him to use aerial shells up to 150 mm – 75 mm salutes – ground display items – string and indoor fireworks.

Several years ago, Peter lost his Pyrotechnic license due to AVO that was taken out by his girlfriend at the time. This relationship was a very difficult one. Peter has only matured with age and is another loving relationship with a young lady who has been the best thing for him.

They also have a child together. All bonds and AVO have all been served. I personal find Peter to be an honest and trustworthy gentleman.”

Mr McDonald’s submissions

58. Mr McDonald told the Tribunal that he knew he had a past and that his behaviour in the past had been terribly wrong. He is now starting to understand things. He has had no serious offences for the last three years. Drinking is not a problem for him now. He has hopes to buy the boss’s business.

Summary of the Respondent’s submissions

59. The Respondent submitted that the Tribunal should affirm SafeWork’s decision to refuse Mr McDonald a security clearance because the Tribunal would not be satisfied that Mr McDonald is a fit and proper person to be granted security clearance. This was in light of uncontested evidence of Mr McDonald’s:

1. propensity towards violence demonstrated by his violent conduct towards a former partner, is assault on a police officer, and his intimidatory behaviour towards a former partner, including making death threats;

2. disregard for public safety demonstrated through his conviction for dangerous driving and his numerous speeding offences;

3. disrespect for the law demonstrated by his breach of community service orders on 15 occasions and by his numerous contraventions of his driver licence conditions; and

4. dishonesty - demonstrated by his lying under oath.

60. The Respondent also submitted that there was a failure of Mr McDonald to demonstrate rehabilitation.

61. The Respondent submitted that these characteristics are of particular significance in the context of an assessment of fitness and propriety for the purposes of the Explosives Act. The explosives licensing regime seeks to cure the significant risk of harm posed by the handling of explosives and explosive precursors. There was cogent evidence of these characteristics. In the absence of any meaningful evidence of rehabilitation, the Respondent submitted that the Tribunal could not be satisfied that Mr McDonald was a fit and proper person to be granted a security clearance.

Consideration

62. The Respondents’ submissions were based on five factors concerning Mr McDonald:

1. His propensity towards violence;

2. His disregard for public safety evidenced by his driving offences;

3. His disrespect for the law evidenced by his failure to comply with the community service order and comply with the conditions of his licence;

4. His dishonesty in lying under oath; and

5. His failure to demonstrate rehabilitation from these matters.

Propensity towards violence

63. The Tribunal accepts the Respondent’s contention that Mr McDonald’s past behaviour to his partner and a police officer demonstrate a propensity to resort to intimidation and violence.

64. In his evidence Mr McDonald denied aspects of the allegations about violence. He conceded that consuming alcohol could cause him to be aggressive. He also said that he no longer has an alcohol or drug problem. He also said that he now thinks of consequences before he reacts. Mrs Clothier corroborated this in her report of 6 July 2018.

65. However, the Tribunal notes that there is a police report of Mr McDonald on 27 November 2016 being drunk and aggressive in public, possibly having used drugs. He came to the attention of police and was moved on. He was not charged with any offence. Mr McDonald contested the police description of what had occurred.

66. Mrs Clothier’s report of July 2018 stated that Mr McDonald has a solid grounding in strategies now in relation to stress management, emotion regulation and distress tolerance. Therapy has been no longer necessary in relation to drug and alcohol use. A risk assessment for suicidal ideation or self-harm since 2015 showed that Mr McDonald reported none of this since 2015. He scored in the normal range for depression, anxiety and stress symptoms on 11 May 2018.

67. The Tribunal notes that neither Mr Schmitzer’s nor Mr Skinner’s reference addresses the issue of Mr McDonald’s “propensity towards violence.”

Disregard for public safety

68. Mr McDonald’s driving record as set out in the Tribunal’s previous decision is poor. Since the Tribunal’s decision in June 2016, Mr McDonald has been subject to further speeding offences on 21 November 2016; 5 March 2017 and 3 November 2017. Mr McDonald was disqualified from driving between November to February 2018. The Tribunal accepts that he has had no further speeding offences since the end of this suspension in February 2018 - a period of approximately five months. Mr McDonald told the Tribunal he was working on this. He now looks at the speedometer. He had not realised how important it was to comply with road rules.

Disrespect for the law

69. The Respondents referred to Mr McDonald’s lack of compliance with his community service order and with licence conditions such as displaying P plates, as evidence of this disrespect. Mr McDonald acknowledged these failures and said that at that time he didn’t care. He was now fixing up these difficulties. The Tribunal notes that there are no new instances of these matters before the Tribunal.

Dishonesty

70. Mr McDonald said he would not lie again because of his experience and how much his previous lying under oath had cost him.

71. Neither Mr Schmitzer’s nor Mr Skinner’s references deal with the issue of this particular dishonesty before the Tribunal.

72. Mr Skinner does refer to Mr McDonald as having matured with age. He also states that Mr McDonald is an honest and trustworthy gentleman. The Tribunal accepts that for the purposes of Mr McDonald’s employment by Mr Skinner, that Mr McDonald enjoys Mr Skinner’s confidence.

73. In the absence of further evidence from Mr Schmitzer and Mr Skinner, it is however, impossible for the Tribunal to know either Mr Schmitzer’s or Mr Skinner’s fully informed view about Mr McDonald’s character in the light of his previous dishonesty to the Tribunal.

74. The Tribunal also notes that Mr Skinner has an interest in Mr McDonald obtaining his security clearance for an explosives licence. In these circumstances, the Tribunal gives limited weight to Mr Skinner’s reference.

75. The Tribunal has previously given little weight to references that do not state an understanding of the criminal matters that the person had been convicted of: see Loye v Director General, Department of Transport [2000] NSWADT 145 at 42 and 44. The Tribunal gives little weight to Mr Schmitzer ’s reference.

76. Mrs Clothier refers in her report of 6 July 2018 to Mr McDonald gaining an understanding of implications and illegality of the behaviour which brought him before the courts. She stated that he attended regularly to address these and the other matters. Early on he was able to understand the seriousness of what had occurred, not least of all because it had had a serious impact on his employment. However, Mrs Clothier does not directly address the issue of Mr McDonald and his honesty.

77. The Tribunal had the opportunity to observe Mr McDonald at the hearing. He represented himself. The Tribunal considered that Mr McDonald sought to be candid, reflective and calm in the giving of his evidence. He made concessions about his past very wrong behaviours, including his dishonesty before the Tribunal. The Tribunal was satisfied that Mr McDonald was honest in his evidence before the Tribunal.

Evidence of rehabilitation

78. Mr McDonald told the Tribunal that a lot had changed, and he is fixing up things and trying to get it all back operating. He said he had taken steps to fix up his driving. However, the Tribunal notes that since the last hearing he has had three driving offences. This is in the context of a reduced opportunity for driving offences because of the suspension of Mr McDonald’s drivers’ licence between November 2017 and February 2018.

79. Mr Skinner’s reference confirmed that Mr McDonald is now running the mechanical workshop in which he works. This provides some reassurance about Mr McDonald’s development of a sense of responsibility from someone observing him closely. Mr McDonald stated that he no longer has drug and alcohol issues and that he now works and goes home. He thought that therapy helped him a lot and he saw how he would apply it in future in dealing with issues with his children. He told the Tribunal that he realises he must watch the speedometer on a car. He accepted that he had done some terribly wrong things. He feels that he is grown up now and understands more.

80. He says he now thinks about things and the consequences before he reacts. He talks with his partner.

81. Mrs Clothier’s report of July 2018 states that Mr McDonald had worked on strategies with her.

82. At the same time, it has now been some time since Mr McDonald has had a traffic offence. He also acknowledged the importance of complying with road rules and that his strategy now was to watch the speedometer. The Tribunal accepts that Mr McDonald has been given the responsibility of running Skinner Mechanical’s workshop. He told the Tribunal he had passed WorkCover inspections. He aspires to teach others how to handle fireworks and to buy the boss’s businesses. He has worked in the fireworks business under supervision for some time.

83. The Respondent submitted that Mr McDonald’s “jovial” presentation demonstrated that he was not serious about his responsibilities. On the other hand, Mr McDonald had told the Tribunal hearing he was very stressed. Mr McDonald maintained his composure when cross-examined and challenged about his past wrong doing. The Tribunal assesses Mr McDonald’s “jovial presentation” as being a coping strategy. The Tribunal considers it to be in Mr McDonald’s favour that he demonstrated calm under pressure.

84. Mr McDonald was adjudged as not fit and proper to hold a security clearance in June 2016. Since that time Mr McDonald has made significant changes to his attitudes and behaviour. He has had no new offences involving violence. He continues to seek professional assistance for life management strategies. He has ceased reliance upon alcohol and drugs. Mr McDonald told the Tribunal that he spends his time at work where he has been promoted to manager of the workshop and home as a partner and parent.

85. There is no burden of proof as such in administrative review matters. The Tribunal is required to reach the correct and preferable decision.

86. Mr McDonald’s fitness and propriety to hold a security clearance are to be assessed in light of the nature of the explosives industry, and the public policy objectives leading the legislature to regulate the industry: Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41]. Safety is a paramount objective in the regulation of the explosives industry.

87. The Tribunal is satisfied that Mr McDonald no longer shows a propensity towards violence. He was reflective upon the reasons for his previous failures to comply with and show respect for law and regulation. The Tribunal considers that he was candid in acknowledging that he had not previously realised how important it was to comply with the law in relation to his driving offences. He has demonstrated more responsible behaviours, undertaking the responsibility of managing a mechanical workshop and complying with “WorkCover” requirements. Mr McDonald has continued to seek professional assistance with his rehabilitation from past behaviours.

Conclusion

88. Clause 12 of the Explosives Regulation 2013 sets out necessary elements for the granting of a security clearance:

12 (1) The regulatory authority may grant a security clearance to a person only if it is satisfied that the person:

(a) is 18 years of age or over, and

(b) is a fit and proper person to be granted a security clearance.

(2) The regulatory authority must refuse to grant security clearance to a person if a report obtained in relation to the person under section 13 of the Act contains a recommendation from the Commissioner of Police that the person should not be granted a security clearance or licence on the basis of criminal or security intelligence or other information available to the Commissioner.

89. The Respondent’s letter of 8 November 2017 advising Mr McDonald of the decision to refuse him a security clearance is expressed to have been made under clause 12 (1) (b) of the Explosives Regulation 2013.

90. The Tribunal is satisfied that Mr McDonald is both over 18 years of age and that he is a fit and proper person to be granted a security clearance.

91. Section 63 (3) of the Administrative Decisions Review Act provides that in determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

92. (a) to affirm the administratively reviewable decision, or

93. (b) to vary the administratively reviewable decision, or

94. (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

95. (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Decision

96. In these circumstances, the Tribunal considers that the correct and preferable decision in light of all the evidence is that Mr McDonald is a fit and proper person to hold a security clearance.

Orders

97. Accordingly, the Tribunal makes the following orders:

1. The First Respondent’s decision that the Applicant is not a fit and proper person to hold a security clearance is set aside.

2. In substitution the Tribunal determines that Mr McDonald is to be issued with a security clearance

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 September 2018