Mills v WorkCover New South Wales

[2008] NSWADT 113

CITATION:	Mills v WorkCover New South Wales [2008] NSWADT 113
DIVISION:	General Division
PARTIES:	APPLICANT Mark George Mills RESPONDENT WorkCover New South Wales
FILE NUMBER:	073364
HEARING DATES:	28 March 2008
SUBMISSIONS CLOSED:	28 March 2008
DATE OF DECISION:	17 April 2008
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Explosives Act - unsupervised handling licence - refusal
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Explosives Act 2003 Explosives Regulation 2005
CASES CITED:	Clark v WorkCover Authority of NSW [2006] NSWADT 320 YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264
REPRESENTATION:	APPLICANT T O'Donoghue, solicitor RESPONDENT G De Courcey, solicitor
ORDERS:	The determination by WorkCover refusing Mr Mills’ application for an unsupervised handling licence is set aside and a decision substituted granting such a licence to Mr Mills.

REASONS FOR DECISION

1 This is an application for a review of a decision of a WorkCover NSW to refuse Mr Mills’ application under the Explosives Act 2003 for an unsupervised handling licence on the ground that Mr Mills is not a fit and proper person or otherwise of good character for the purpose of holding such a licence.

Background

2 Mr Mills was born on 24 December 1957 and is aged fifty.

3 On 24 August 2006, Mr Mills applied for an unsupervised handling licence under the Explosives Act 2003. Mr Mills has the following criminal convictions in the Local Court, all involving the imposition of fines, together with the payment of compensation or entering into a good behaviour bond:

2 July 1979: malicious injury

8 April 1980: serious affront (breaking bottles and shouting)

28 March 1990: malicious damage

7 January 1992: malicious damage (conviction confirmed on appeal to the District Court on 21 April 1992)

12 August 1993: custody of offensive implement

18 September 1995: “GIC” [Goods in Custody]

16 February 1998: use of offensive language in/near public place/school

21 June 1999: (1) possess prohibited drug, and (2) contravene apprehended domestic violence order

12 July 2004: behave in an offensive manner in/near public place/school

12 October 2004: assault occasioning actual bodily harm (incident in 2003) – T2 (conviction confirmed on appeal to the District Court on 1 March 2005)

29 August 2005: contravene apprehended domestic violence order

4 On 17 October 2006, at the request of WorkCover (pursuant to section 13 of the Explosives Act 2003), a delegate of the New South Wales Commissioner of Police completed a probity assessment on Mr Mills, and concluded that he was not “of good character and repute” for the purpose of being considered for the issue of an explosives licence.

5 By letter dated 24 April 2007, WorkCover informed Mr Mills of this assessment and invited him to make submissions as to why, in spite of his criminal record, he should be regarded as a fit and proper person and otherwise of good character for the purposes of holding a licence. On 14 May 2007, Mr Mills made such a submission with supporting documentation. On 29 June 2007, WorkCover refused Mr Mills’ licence application on the ground that he was not a fit and proper person or otherwise of good character to hold such a licence, as required by clause 30(1)(a)(ii) of the Explosives Regulation 2005.

6 On 19 July 2007, the NSW MP for Newcastle, Jodi McKay, acting on behalf of Mr Mills, requested a review of this decision. Mr Mills confirmed this by letter dated 5 August 2007 attaching further supporting documentation. On 7 November 2007, WorkCover wrote to Mr Mills to advise him that the decision had been confirmed after a review. In arriving at its determination, WorkCover noted:

“1. The applicant has a criminal record spanning some twenty-seven years.

2. The applicant remains the subject of an Apprehended Violence Order (AVO).

3. The criminal offences of Assault Occasioning Actual Bodily Harm and Contravene AVO dealt with in 2005 are considered recent conduct.

4. There is no clear evidence that the applicant has overcome his problems with substance addiction.”

7 On 7 December 2007, Mr Mills lodged an application with the Tribunal for a review of this decision.

The Relevant Legislation

8 Section 11(2) of the Explosives Act 2003 states that the regulatory authority (defined in section 4(1) as WorkCover) may approve or refuse applications for licences in accordance with the Act and regulations. Clause 30(1)(a) of the Explosives Regulation 2005 states the general requirements for obtaining a licence under the Act, and provides that before a licence is granted, the regulatory authority must be satisfied, relevantly, that the applicant “(ii) is a fit and proper person to hold the licence and is otherwise of good character”.

9 Mr Mills requires the licence for, in particular, driving a truck transporting a security sensitive dangerous substance - a low-density form of Ammonium Nitrate called “Nitropril”, which is used as an oxidiser for blasting. Clause 36(1) of the Explosives Regulation 2005 states relevantly:

“(1) Before any licence relating to the handling of security sensitive dangerous substances is granted, the regulatory authority must be satisfied that the applicant has a legitimate reason for obtaining the licence.

(2) A "legitimate reason" for obtaining a licence that authorises a person to handle security sensitive dangerous substances includes obtaining the licence for the purpose of:

(a) use in commercial production processes, mining, quarrying. agricultural blasting, construction, civil engineering, seismic work or tunneling, or

(b) the commercial manufacture of fertiliser or explosives, or

(c) education, research or analysis, or

(d) commercial agricultural use by primary producers, or

(e) transporting or supplying security sensitive dangerous substances for any purpose listed above but does not include obtaining the licence for the purpose of:

(f) household domestic use, or

(g) use as a fertiliser on outdoor recreation facilities (such as parks, golf courses, sports fields and the like).”

Mr Mills’ Evidence

10 Mr Mills said he was born and brought up in Moree, but now lives in Mayfield, an inner suburb of Newcastle. At the age of eight, he was injured in an accident by a truck and spent six to eight months in Moree District Hospital recovering. He left school at the age of fourteen and started work in a bakery in Moree where he worked for four or five years. Then he worked in the Moree abattoirs for six to ten years, before moving to Newcastle, where he worked as an ironworker for BHP for ten years. In the 1990s, before the introduction of the explosives legislation, he worked as a truck driver for about six years, for which he held a dangerous goods bulk licence permitting him to transport Nitropril.

11 Mr Mills said he has aboriginal ancestry. He was brought up in Moree and belonged to the Church of the Salvation Army. (According to a report from Michael N Fox, Psychologist, dated 1 November 2002, Mr Mills told him that his father was an alcoholic but Mr Mills had a close relationship with his mother.) Mr Mills developed a drinking problem as a young adult. This continued until about 2002 when, on about 27 January 2002, he was “bashed on the head and was close to death”. Mr Mills said that at that stage his life “was in the gutter” and he decided to reform.

12 With regard to his criminal history, Mr Mills said most of the incidents involved the use of alcohol. The incident leading to his first conviction in 1979 took place when he was “young and stupid and under the influence of alcohol”. The incident leading to the second conviction in 1980 took place when he was drunk: he was arguing with his girlfriend and threw a bottle on the ground. The next incident, leading to his conviction in 1990, involved him breaking a shop window when he was drunk. Mr Mills could not remember the reason for the 1992 conviction. He said the 1993 conviction arose from his being pulled over by the Police when driving and when he was drunk. He had bought a dildo in order to teach the man who had raped Mr Mills’ wife a lesson. The Police also found a knife in the glove box of his car. This was one of three occasions when he was convicted of drink driving, the last occasion being about 10 years ago.

13 Mr Mills said the “Goods in Custody” conviction in 1995 arose out of the Police finding goods in his house that had been stolen by his stepchildren, who were then teenagers. The incident in 1998 leading to his conviction for using offensive language took place in the main street and nowhere near a school. The 1999 conviction was for possessing marijuana: he and his wife were pulled over by the Police when in his car. His wife took marijuana from her bra and put it in his top pocket. The AVO was in relation to this same wife. (He has been married and divorced three times.)

14 Mr Mills said the July 2004 offensive behaviour conviction related to an incident in which he was arrested for swearing in Moree. He was not near a school at the time. The October 2004 conviction involved an incident in 2003 with his third wife. Mr Mills said “she was into drugs”. He had been round the pubs looking for her. When he found her, she insulted him, “so I smacked her”. He was also drunk at the time. The final conviction in 2005 for contravening an AVO, also involved his third wife. Mr Mills said he moved away from Moree to get away from her, and was in Taree. She phoned him with a view to their getting back together and then drove to Taree to see him. They had a few beers and spent the night together. Then when Mr Mills told her that he was not going back to her, she went into the toilet and phoned the Police on her mobile phone. When the Police arrived, he had a beer in his hand. It was two days before the end of a two year AVO. Mr Mills said he had let his guard down and was too trusting.

15 Mr Mills said he realises alcohol has caused the problems in his life, and has now abstained from alcohol for about three years. He never used drugs - only alcohol. Since giving up alcohol, he has divorced his wife (the decree absolute is dated 15 July 2005) and found a new girlfriend, whom he loves, and they have an eleven month old son. Mr Mills agreed with the assessment of Dr AM Nicholas, Clinical & Forensic Psychologist (report dated 13 February 2008), that he has reformed and rehabilitated. He is alcohol free, has “taken great steps in the past three years” and “changed 100 percent”, has discovered “a brand new world”, and has something to live for. Now he wants to work, live life to the full and be happy. He tries to avoid conflict.

16 Mr Mills provided two references from Gae Stevens of Brontie’s Transport Pty Ltd. This is a business owned by Mr Mills’ brother, Wayne Mills (‘Wayne’), and his long-term de facto partner, Ms Stevens. They have one truck and an unsupervised handling licence. Mr Mills has worked for them for about nineteen months on a casual basis. He started working an average of six to twelve hours a month, but this varied according to when ships docked and needed unloading. For the last five to six weeks, he has been employed by Don Skinner of “Don Skinner Earthmoving and Bulk Haulage”, for whom he is now working on a full-time casual basis, sometimes working on most days, and for more than forty hours per week. Essentially, he is doing the same job as that for Brontie’s except that it is more hours.

17 Mr Mills said he is a reformed person and “will not backslide”. He has the qualifications, knowledge and experience for the unsupervised handling licence. When he was driving trucks in the 1990s, he had a licence for transporting dangerous goods, and was carting Nitropril as well as other chemicals such as cyanide and arsenic, and never had any problems doing so. Mr Mills agreed that he was abusing alcohol in the 1990s, although he said his boss never knew. He has also been carting Nitropril for the past nineteen months without any problem.

18 Mr Mills said that he is honest. Last week when he found a wallet containing $250 belonging to another driver, he returned it to the driver. His employers trust him, he has the respect of other drivers and he has self-respect. He will do the right thing and will not touch alcohol. Mr Mills’ relationship with his girlfriend has been on-going for three years. He stopped drinking about a month after the relationship started in January 2005. His girlfriend will not agree to marry him at the moment because he has been married three times before and divorced. They are not living together, although they do spend nights together. Mr Mills lives in a bed-sitter in Mayfield in inner Newcastle. His mail goes to his girlfriend’s address because it is more secure.

19 Mr Mills said after his son was born, he obtained a Family Court order for 50/50 access between him and his girlfriend. He wanted “to make things legal” when he and his girlfriend were on good terms so that the child would not get hurt in the future if there was a problem with their relationship. Mr Mills said he has a “good and stable relationship” with his girlfriend. His aim is that eventually they will marry and live together. Meanwhile, he is working hard “to lay good foundations” for his son.

20 In cross-examination, Mr Mills was asked about his current Environment Protection Authority (‘EPA’) (now the Department of Environment and Climate Change) licence for driving dangerous goods. This is a class 2, 3, 4, 5, 6, 8 and 9 dangerous goods bulk driver licence, valid until 15 August 2009. Mr Mills acknowledged that this does not include class 1, which covers explosives.

21 Mr Mills acknowledged that he requires an unsupervised handling licence issued under the Explosives Act 2003 to transport Nitropril. He was told by his boss, by Australia Post and by WorkCover (by telephone) that if he applied for the issue of such a licence and got a receipt for submitting the application at the Post Office, he could continue transporting Nitropril until such time as his application was determined. When it was pointed out to Mr Mills that this advice was incorrect and that he had to hold an unsupervised handling licence before transporting Nitropril, it was clear that he had not been aware of this and he apologised for his honest mistake. He believes that with his reformed life he should be granted an unsupervised handling licence.

22 Mr Mills was asked about a report from his general practitioner, Dr A Yeh, dated 6 December 2007. This states that Mr Mills “is currently cleared for any substance dependency for three years, including alcohol”. Mr Mills confirmed that he has had blood tests over the past three years for different investigations. Mr Mills was also asked about a report from Teresa Firth, of Kirkwood House, dated 6 October 2004, addressed to Lawrence Moss of Narrabri. This report confirms Mr Mills’ attendance at and successful completion of a two week outpatient drug and alcohol rehabilitation program in September 2004. Mr Mills said this report might have been sought by Mr Moss, his then solicitor, in connection with a court appearance.

23 Mr Mills was also asked about a report dated 8 June 2004 from Orana Haven Aboriginal Corporation Drug and Alcohol Rehabilitation Centre, where Mr Mills was a “resident client” from 30 April to 8 June 2004. Mr Mills said he referred himself and his wife to the Centre. He wanted her off drugs and he was just as bad with alcohol. (The report states that she was asked to leave after two weeks.)

24 Mr Mills was asked about his work for Mr Skinner. He acknowledged that he had not told Mr Skinner about his criminal history or the lack of a class 1 EPA licence. He did, however, tell the foreman that he was going through the process of obtaining an unsupervised handling licence.

25 With regard to Mr Mills’ personal referees, he said Jade Natoli is a friend whom he first met some years ago through another friend. Hayden Ferguson is a friend who Mr Mills sees two or three times a week and who lives in the same area.

26 Mr Mills confirmed that he has a Maritime Security Identification Card. Mr De Courcey, for WorkCover, explained that because Mr Mills does not have a conviction for a maritime security relevant offence, he is not regarded as having an adverse criminal record for the purposes of obtaining such a card.

Ms Stevens’ Evidence

27 As noted above, Gae Stevens is Wayne Mills’ partner, who provided references for Mr Mills dated 10 July 2007 and 11 December 2007. She said she is a Director and the Secretary of Brontie’s Transport Pty Ltd. She and Wayne own a truck with which they contract mainly to cart aluminium (about 90 percent of their work), but they also subcontract with Toll Resources NSW to cart Nitropril when this is delivered by ship by Orica to Kooragang Wharf. Brontie’s has one employee - Wayne, who carts most of the aluminium, and one casual driver, who was Mr Mills until he went to work for Mr Skinner. Mr Mills used to cart most of the Nitropril. Mr Mills might still do some casual work for Brontie’s if he is not otherwise working for Mr Skinner. Previously, Mr Mills was averaging about twenty hours per fortnight, but this varied according to whether a ship needed unloading at the wharf.

28 Ms Stevens said when the new explosives legislation was introduced, Toll Resources told all their subcontractors that they must obtain an unsupervised handing licence. However, they were told, either by Toll or perhaps by Orica, that they could still carry Nitropril if they had applied for such a licence and had a receipt confirming they had done so. Thus, because Mr Mills had applied and had obtained a receipt, they believed that he could continue to drive unsupervised until his application had been determined. They were just acting on what they had been told. Ms Stevens said Wayne has already obtained a licence and can cart explosives. She did not know whether Mr Mills’ EPA licence permitted him to carry explosives.

Mr Carroll’s Evidence

29 Michael Carroll is the Manager of the Licensing Team of the Occupational Health and Safety Division of WorkCover, who was involved in the internal review decision dated 7 November 2007. He provided an affidavit dated 11 February 2008. Mr Carroll stated that he now understands that Mr Mills is not the subject of an AVO. However, WorkCover’s decision to confirm the original decision remains unchanged.

30 Mr Carroll said an unsupervised handling licence is a stand-alone licence enabling a person to have access to certain dangerous goods including Ammonium Nitrate. It also underpins other more specific licenses. He has no knowledge of any provision permitting a person who does not hold such a licence to handle such dangerous goods.

31 In cross-examination, Mr Carroll said he is sufficiently close to the industry to know whether there is any confusion in the industry over the issuing of such licences, and he would be surprised if there is such confusion. There would be no confusion among the personnel in the Licensing Branch that he manages, and he would be dismayed if wrong information is given out.

Mr Mills’ Submissions

32 Mr O’Donoghue, for Mr Mills, submitted that WorkCover has drawn false conclusions from the evidence. However, he acknowledged that the requirements of the Explosives Act 2003 are far more stringent than those for a Maritime Security Identification Licence.

33 Mr O’Donoghue said there is no doubt that, until the last three years, Mr Mills was not a fit and proper person to hold an unsupervised handling licence. However, since that time there have been enormous changes in Mr Mills, as is apparent from the evidence of Dr Nicholas and the other psychologists and rehabilitation providers. The evidence shows that Mr Mills has reformed and is a fit and proper person in terms of knowledge, experience, abilities and competence, which he has demonstrated. With regard to his character, he has returned to the fundamental beliefs he learned from his parents and his church. Mr O’Donoghue submitted there is ample evidence that Mr Mills has turned his life around and that the changes will be long lasting. He now deserves an opportunity to progress with his life.

34 Mr O’Donoghue said that most of the offences are in respect of incidents that took place some years ago, and the weight that should be accorded to these should be minimal. At the relevant times, Mr Mills was living in a remote locality and belonged to a disadvantaged group, being part Aboriginal. He was also disadvantaged by receiving an inadequate education and by his having speech difficulties. There was an error of fact made in the decision, in that the AVO had expired and was not current at the time of the decision, as WorkCover have now acknowledged.

35 Mr O’Donoghue said Mr Mills is an honest, reliable and trustworthy person. He was open and forthright in giving evidence, for which there is ample supporting evidence in the psychologists’ reports and his references. With regard to his continuing to transport Nitropril, Mr Mills was acting on the honest but mistaken belief that he could continue doing so while his application for a licence was being finalised. This mistaken belief could be as a result of some confusion in the trucking industry. Mr Mills will now seek proper advice about his licence and will not cart dangerous substances without doing so.

36 Mr O’Donoghue said Mr Mills had transported Nitropril and other dangerous chemicals in the 1990s, when licensing was less stringent, and has never had any problems. He has also honestly but mistakenly transported Nitropril for the past nineteen months without problems. He has a legitimate reason for the licence for the purposes of his employment, and no connections with terrorism.

37 Mr O’Donoghue said the fact that Mr Mills lives separately from his girlfriend is of no significance. Such arrangements are not uncommon. They may in the future live together. Mr Mills is devoted to his girlfriend and their child, and is concerned to ensure he supports them financially, emotionally and otherwise. He has ample contact with his son, and is living in Mayfield, which is convenient for his employment.

WorkCover’s Submissions

38 Mr De Courcey, for WorkCover, noted that a person must have a need for an unsupervised handling licence. It is apparent from Ms Stevens’ evidence that Mr Mills is not now in a position to need the licence for much of his work. He is only likely to work for Brontie’s sporadically in the future.

39 With regard to Mr Mills’ reformed character, Mr De Courcey noted that Mr Mills’ relationship with his girlfriend is not a ‘live-in’ one. Given the Family Court order in respect of their son, it could be inferred that there have already been problems with the relationship, for example over financial arrangements. Normally, the courts only deal with applications for custody/access orders where there is a need.

40 Mr De Courcey noted that Mr Mills’ new position is full-time casual and that he has been carting Nitropril without a licence. WorkCover finds this incredible, given that Mr Mills’ application for a licence has been refused. And it also appears that he has not told his new employer, Mr Skinner, of his criminal history and that he is transporting Nitropril without an EPA class 1 licence and without an unsupervised handling licence.

41 Mr De Courcey said WorkCover’s decision is based on the New South Wales Police report and WorkCover’s assessment of Mr Mills’ criminal history over a lengthy period, which shows a pattern of behaviour including violence. Even though Mr Mills says he is reformed, WorkCover needs to be comfortably satisfied that he would not re-offend or return to drinking alcohol.

42 The fact that Mr Mills has been granted a Maritime Security Identification Licence should have no relevance to the assessments made by the New South Wales Police and WorkCover in relation to his carting dangerous substances. WorkCover has no issue with Mr Mills’ qualifications or experience. He has not been issued with a class 1 EPA licence, issued under different legislation, because he has not satisfied the fit and proper person test.

43 With regard to the psychological reports, Mr De Courcey noted that some of the reports are dated from 2004, for example that of T Firth, dated 16 October 2004, and of Orana Drug and Rehabilitation Centre, dated 8 June 2004, and there have been no updates. The reports do not reveal whether Mr Mills has acknowledged his non-acceptable behaviour, for example towards his former wife. Ms Natoli and Mr Ferguson, who provided references, appear to be friends who are unaware of Mr Mills’ application for an unsupervised handling licence.

44 Mr De Courcey noted that the relevant facts in YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264 (‘the YJ case’) and Clark v WorkCover Authority of NSW [2006] NSWADT 320 (‘the Clark case’) are similar to those in the current matter, involving AVOs etc. However, these cases involved a limited number of criminal events. Mr Mills’ history is longer, encompassing charges over a longer period of twenty-seven years. The evidence of the Police report speaks for itself.

45 Mr De Courcey concluded by submitting that Mr Mills lacks insight into his previous behaviour, and said WorkCover has no confidence that Mr Mills will not relapse and still undertake the transporting of dangerous substances, as he did in the 1990s.

Discussion

46 The principal issue. For me to determine in relation to Mr Mills’ application for an unsupervised handling licence is whether, pursuant to clause 30(1)(a) of the Explosives Regulation 2005, Mr Mills “(ii) is a fit and proper person to hold the licence and is otherwise of good character”. I note also, pursuant to clause 36(1), Mr Mills must have a legitimate reason for obtaining the licence.

47 Legitimate reason. Dealing first with whether Mr Mills has a legitimate reason for obtaining the licence, I am satisfied from the evidence that he does have such a reason, being for the purpose of transporting dangerous substances. While he is now working on a full-time casual basis for Mr Skinner, that work may involve the transporting of dangerous substances such as Nitropril, and he may still be asked to undertake further casual work driving for Brontie’s Transport Pty Ltd, the company owned by his brother, Wayne, and Ms Stevens, when he is available and they have a need. This could involve transporting Nitropril.

48 Fit and proper person. With regard to whether Mr Mills is a fit and proper person and otherwise of good character, I note Judicial Member Molony’s discussion in the YJ case, at paragraph 34 to paragraph 47 and the Clark case, at paragraph 16 to paragraph 29, which in my view, provide an excellent overview of the law. In the former passage, the Judicial Member stated:

“34. The Law - Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.

35. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:

‘The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’
Toohey and Gaudron JJ said at 380:
‘The expression "fit and proper person", standing alone, carries no precise meaning. It 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’
36. A person’s fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales(No. 2) (1955) 93 CLR 127 the High Court said (at 156-7):
‘The expression ‘fit and proper’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty, knowledge and ability … When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.’
37. In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:
‘In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence … but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work which the licence entails.’
38. Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability is the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused because, despite there being no evidence that he was dishonest or of bad repute, evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).

39. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:

‘Whether a person is ‘fit and proper’ to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.’
In LJ v Commissioner of Police [2003] NSWADT 230 at [27] Judicial Member Montgomery found that:
‘A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.’
40. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to ‘give wide scope for judgement and allow broad bases for rejection.’

41. The importance that criminal convictions play in the assessment was highlighted by then President of the Victorian Civil and Administrative Tribunal, Kellam J, in Raymond Robbins v Business Licensing Authority (2000) VCAT 457, a case involving an applicant for a licence to sell motor cars. His Honour said:

‘The nature, the number and the date of the convictions is relevant to the issue of whether or not the applicant is a fit and proper person to be permitted to deal with the public in a motor car sales capacity … In the circumstances of this case the conduct of the applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of matters of honesty, integrity and reliability of a motor car trader. The Act has established a system, which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or salesperson. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor nature such as, some minor failure to keep proper books or records or of trading outside hours, which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars.’
42. As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person’s likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:
‘A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts.’
In Melbourne v The Queen [1999] 198 CLR 1 at 15 McHugh J explained:
‘… character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person.’
43. In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:
‘… the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation.’
That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the applicant was a man of good character:
‘… whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279.’
Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake.

44. A person’s character is not fixed and is capable of change and rehabilitation. In Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision of the ACT AAT to affirm the refusal by the Registrar to issue a motor vehicle dealer licence on the basis that the appellant was not of “good fame and character”. Chief Justice Miles said (at 30 - 31):

‘It is a matter of common experience that a person’s character is capable of development over time. At one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession.’
45. In contrast to character, reputation as Waddell J explained in Re T at 389:
‘… is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation, which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence , 3rd edition, volume 5, page 486 et seq, paragraphs 1615, 1616; page 479 et seq, paragraph 1610. As is pointed out by Wigmore , a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: page 472 et seq, paragraph 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.’
46. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:
‘'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.’
47. In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that:
‘… evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation.’
However evidence of prior convictions is cogent evidence going to reputation, but, at 402:
‘In each case, the nature of the crime of which the person has been convicted, and the circumstances, must be considered before inferring that as a result he would have acquired a bad reputation. For instance, the conviction might have been for an offence, or in circumstances, which did not detract from the general good estimate of his character held by persons who knew him. Further, it might appear unlikely from the nature of the offence, and the circumstances, that the conviction would become known to those with whom the person had a reputation. It might be shown that knowledge of the conviction had not come to such persons.’
49 The Facts. The convictions disclosed in the Certificate prepared by the New South Wales Police dated 28 September 2006 in relation to Mr Mills are set out in paragraph 3 above. All convictions were in the Local Court and involved Mr Mills being ordered to pay fines and/or compensation, or to enter into a good behaviour bond. The first conviction is dated 2 July 1979; the last conviction is dated 29 August 2005. Mr Mills gave evidence about the incidents leading to these convictions and, on the basis of that evidence, which I found to be open and forthright, I am satisfied that most of the incidents took place when Mr Mills was under the influence of alcohol. The conviction on 12 October 2004 was in relation to an incident in 2003. Mr Mills has provided a reasonable explanation of the events in early 2005 that led to his conviction for breach of the AVO on 29 August 2005.

50 Mr Mills’ evidence is that following the incident involving the breach of the AVO, he was divorced from his former wife, and the documentary evidence shows that the decree absolute is dated 15 July 2005. Prior to this incident, Mr Mills had already taken steps to address his alcohol addiction. He attended an inpatient drug and alcohol rehabilitation program run by the Orana Haven Aboriginal Corporation in Gongolon from 30 April 2004 to 8 June 2004, with good results (report by Rodney Robbins, Acting Manager, dated 8 June 2004). He also successfully completed a two week outpatient drug and alcohol rehabilitation program at Kirkwood House in September 2004 (report of T Firth, Psychologist, of Kirkwood House, dated 6 October 2004). Mr Mills said he had realised that alcohol had caused the problems in his life and took steps to address this.

51 From 3 July 2006, Mr Mills was a client of WorkDirections, a leading ‘Job Network’ member offering professional employment services. In a letter dated 3 August 2007, Jann Collins, Team Leader, WorkDirections in Newcastle, provided a reference for Mr Mills speaking of him as “a person of responsibility and integrity”, referring to employer feedback commenting on his “commitment, punctuality and courtesy”, and stating that “he will be a credit to any employer he deals with”.

52 Dr A Yeh, Mr Mills’ general practitioner, in a report dated 6 December 2007, certified that Mr Mills “is currently cleared for any substance dependency for three years, including alcohol” and recommended him for an unsupervised handling licence. In his report dated 13 February 2008, Dr AM Nicholas, Clinical and Forensic Psychologist, after two attendances by Mr Mills - on 1 and 4 February 2008, and after reviewing relevant documentation, stated his opinion that Mr Mills “is totally reformed [of alcohol dependence and abuse] by reason of his commitment to his baby son, to his family and to the responsibility of his work”. Dr Nicholas referred to Mr Mills “acceptance of responsibility” and to “evidence of current psychosocial stability”. He also noted evidence that Mr Mills “approaches his life with a clear sense of purpose and distinct conviction, with a well articulated sense of who he is and what his goals are”. Dr Nicholas concluded:

“it is considered from a psychological perspective that Mark Mills is a suitable person to hold an Unsupervised Handling Licence of Explosives under the New South Wales Explosives Act of 2003.”
53 Mr Mills gave evidence at the hearing of his being “alcohol free”, and that he has discovered “a brand new world”. I am satisfied from Mr Mills’ evidence and from the above documentary evidence that he is genuinely committed to remaining alcohol free over the long term.

54 I note that Mr Mills is from disadvantaged background and has suffered medical problems since being injured by a truck in an accident when he was aged eight, and also following a serous assault in January 2002 (report of Michael Fox, Psychologist, dated 1 November 2002). He has been married and divorced on three occasions, and the evidence suggests that alcohol abuse has been a major factor in the breakdown of such relationships. Mr Mills’ evidence is that he is now in a loving and stable relationship with his girlfriend, with whom he has an eleven month old son. Mr Mills said that while his girlfriend has at this stage refused to marry him because of his three prior failed marriages, he hopes in due course that they will marry and live together. Currently, he lives separately in a bed-sitter in Mayfield, near his place of work, but they spend nights together, he sees his son regularly, and his post is sent to his girlfriend’s address because its delivery there is more secure.

55 Mr Mills said he has obtained a Family Court order for him and his girlfriend to have 50/50 shared access to their son. While Mr De Courcey said the existence of such an order suggested that there may have already been problems with Mr Mills’ relationship with his girlfriend, Mr Mills explanation that he wanted “to make things legal” between them while they were on good terms in case of future problems and to avoid any possibility of hurt for the child, is a reasonable one given his history of past relationships. I accept his evidence that he loves his girlfriend and their child, and is working hard to lay the foundations for their future.

56 Mr Mills has worked for Bronte’s Transport for about 19 months on a casual basis and, for about the past five weeks, has been working for Mr Skinner, in both cases driving a truck carrying dangerous substances. Mr Mills has an EPA licence, but this does not permit him to transport explosives. With regard to his application for an unsupervised handling licence, I accept that he has been transporting Nitropril under the honest but mistaken belief that he could do so having applied for such a licence, and in the period before the licence is finally determined. It was clear from Ms Stevens’ evidence that she was also of this belief. Mr Mills’ evidence is that he also has prior experience of transporting dangerous substances such as Nitropril in the 1990s. He says he has never had a problem in transporting such substances, and there is no evidence to the contrary.

57 Mr Mills provided references from Ms Stevens and Mr Skinner, stating that Mr Mills is an honest, reliable and hardworking employee, together with supportive references from two friends, Ms Natoli and Mr Ferguson, who are aware of his criminal history.

58 In the reasons given for its internal review decision, WorkCover referred to four particular matters taken into account in making its determination, set out in paragraph 6 above. The first is that Mr Mills has a criminal record spanning twenty-seven years. While this is correct, in my view, it is important to examine the nature of the convictions and the circumstances in which they occurred. Most of the incidents involved some form of antisocial behaviour. I accept Mr Mills’ evidence that his alcohol abuse was a factor in all the incidents, whether directly or as a consequence of the effect of that abuse on his relationships. I am also satisfied that for the past three years he has not been alcohol dependent and that he is strongly committed to remaining alcohol free. All the evidence indicates that he is rehabilitated. Mr Mills said that the last of the incidents involving criminal violence - that for assault occasioning actual bodily harm - related to an incident in 2003 involving his then wife. This appears to have been a marital dispute, in which Mr Mills says he was provoked, and responded by hitting her.

59 With regard to the second matter taken into account by WorkCover in making its determination, WorkCover now accepts that Mr Mills was not subject to an AVO at the time the decision was made. The third matter, the 2003 assault referred to in the previous paragraph, is, in my view, no longer recent conduct, especially in the changed circumstances following Mr Mills’ rehabilitation. Mr Mills has explained the circumstances of his contravening the AVO in early 2005 (see above at paragraph 14), and, while what occurred does not excuse the breach, his explanation does at least suggest that he was not the instigator of the action that led to the incident involving his former wife, and that the relationship was soon thereafter terminated by divorce.

60 The fourth matter taken into account by WorkCover is Mr Mills’ “substance addiction”. Mr Mills denies that he has ever used drugs and there is no evidence to contradict this. With regard to alcohol abuse, I accept Mr Mills’ evidence, which is supported by the evidence of Dr Yeh and Dr Nicholas, that he is no longer using alcohol and has not done so for a period of three years. In my view, Mr Mills has gained a good insight into his previous antisocial behaviour, and I am comfortably satisfied that the risk of him returning to alcohol, with the possibility of this leading to further criminal behaviour, is very low.

61 The question to be determined, stated above, is whether Mr Mills is a fit and proper person and is otherwise of good character in the light of the nature and purpose of the activities he would undertake as the holder of an unsupervised handling licence. Fitness and propriety concerns honesty, knowledge and ability. Character concerns a person’s inherent moral qualities - their standards, attitudes and the quality of the person in these terms. A person’s character may be capable of rehabilitation. Character should be distinguished from reputation, which is how the person appears in the estimation of other reasonably minded people in the community. The context of the activities the person would undertake requires that account should be taken of the nature of the relevant industry and public policy objectives behind the regulation of the relevant activities. Ultimately, issues of fitness and propriety and good character are matters of judgement for the decision-maker.

62 All the evidence points to Mr Mills being honest, and his referees also point to his being reliable and trustworthy. While Mr Mills made an honest mistake about his licensing status in relation to transporting dangerous substances, the evidence is that in doing so, he relied on others. Otherwise, he has experience of transporting dangerous substances such as Nitropril without incident, including over the past nineteen months, and the references provided by his two recent employers indicates that he acts responsibly in performing his duties.

63 Mr Mills’ evidence also indicates that he takes his responsibilities to his family - his girlfriend and their young son, very seriously. In terms of other aspects of his character, as I have stated, I am satisfied that he now has a good insight into his previous antisocial behaviour, and I am comfortably satisfied that the risk of his returning to alcohol, with the possibility of this leading to further criminal behaviour, is very low. After an alcohol free period of three years, following on from his attending drug and alcohol dependency rehabilitation programs, I accept that Mr Mills has been rehabilitated.

Decision

64 Thus, I am satisfied that Mr Mills is a fit and proper person and otherwise of good character for the purposes of holding an unsupervised handling licence. WorkCover not having raised any other issues in relation to Mr Mills’ qualifications, knowledge and experience for the holding of such a licence, the appropriate decision is for the determination by WorkCover refusing Mr Mills’ application for an unsupervised handling licence to be set aside, and for a decision to be substituted granting such a licence to Mr Mills.