PENNICOTT and COMMERCIAL AGENTS
[2005] WASAT 85
•28 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1966
CITATION: PENNICOTT and COMMERCIAL AGENTS [2005] WASAT 85
MEMBER: MR T J CAREY (MEMBER)
DR B DE VILLIERS (MEMBER)
BRIG A G WARNER (SENIOR SESSIONAL MEMBER)
HEARD: 14 APRIL 2005
DELIVERED : 28 APRIL 2005
FILE NO/S: VR 140 of 2005
BETWEEN: JASON GORDON PENNICOTT
Applicant
AND
COMMERCIAL AGENTS
Respondent
Catchwords:
Crowd control - Lawful excuse - Revocation of license - Failure to undergo urine test
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 35, s 46, s 47, s 51, s 67, s 76, s 80, s 81, s 88
State Administrative Tribunal Act 2004 (WA), s 7, s 11, s 15(1), s 98
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Sgt S Bagley
Solicitors:
Applicant:
Respondent:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR T J CAREY (MEMBER), DR B DE VILLIERS (MEMBER), BRIG A G WARNER (SENIOR SESSIONAL MEMBER):
REASONS FOR DECISION
Application history
On 4 February 2005, Mark Edward Clarkson, care of Commercial Agents, filed an application under s 67(1) Security and Related Activities (Control) Act 1996 ("Act") against Jason Gordon Pennicott which sought the revocation of the respondent's crowd controller's licence. The ground nominated in the application was that the respondent was not a fit and proper person within the meaning of s 52(c) of the Act, having failed a drug test (cannabis) conducted pursuant to s 80 of the Act.
This is one of a number of matters which have been brought by way of similar applications to the Tribunal by Mr Clarkson. However, it was acknowledged by counsel for the Commercial Agents, Sgt Bagley, that the application was strictly redundant, there having been revocation of Mr Pennicott's licence by a notice dated 13 December 2004, effective on or around 29 December 2004, in accordance with the former s 67(2)(c) of the Act. By that notice, Mr Pennicott was informed of his then right to appeal to a court of petty sessions within 21 days of receipt of the notice. On 1 January 2005, the Tribunal came into existence pursuant to the State Administrative Tribunal Act 2004 ("SAT Act") and the jurisdiction of the court of petty sessions was conferred to the Tribunal.
There appears to have been some difficulty with service of the revocation notice and its antecedent, a notice of intention to revoke. It is not necessary to go into any detail of this, the parties having apparently come to an agreement whereby Mr Pennicott would be able to obtain review of the decision by the Tribunal via the mechanism of the s 67(1) application. That application was the subject of two directions hearings before the Deputy President of the Tribunal, when directions were given for the filing of material and listing for hearing. To avoid doubt, at the hearing on 14 April 2005 orders were made to amend the application to reflect that it was brought under s 72(1) of the Act (review of a decision) with Mr Pennicott as applicant and the Commissioner of Police as respondent, and to extend the time permitted for Mr Pennicott to make such an application.
At the end of the hearing, a further order was made that the application is dismissed, with an indication that written reasons for this decision would be provided shortly. These are those reasons.
Security and Related Activities (Control) Act 1996
The relevant provisions of the Act are as follows:
The long title of the Act sets out the aims of the Act as providing for the licensing of persons engaged in work relating to property protection, investigation or surveillance and crowd control.
Section 35 defines the duties of a "crowd controller" as a person who at a private or public event is responsible for controlling or monitoring the behaviour of persons, screening persons seeking entry, removing persons for behavioural reasons, or any other prescribed function.
Sections 46 and 47 set out the process for applying for a licence and the material required in support of an application.
Section 52 provides for a number of matters as to which a licensing officer must be satisfied before issuing a licence, including (paragraph (c)) that the applicant is of good character and a fit and proper person to hold a licence. Section 72(1) provides that any person aggrieved by a reviewable decision of a licensing officer may apply to the Tribunal for review of the decision. Section 72(2) defines "reviewable decision" to include a decision to revoke a licence.
Section 80 provides for the direction to a licensing officer by the Commissioner of Police for what are commonly referred to as random blood or urine tests (for the purpose of determining the presence or level of any prescribed drug in the blood or urine of the licensee. Section 80(3) provides that such a direction must be in writing, specify the date, time and place of the test, and indicate the nature of the sample to be given.
Section 81 empowers a licensing officer to revoke a crowd controller licence if a sample of blood or urine given by the licensee following a s 80 direction is found on analysis to be a non-complying sample within the meaning of the Regulations. It is common ground between the parties that the urine taken from the applicant was a non-complying sample.
Evidence and submissions
Both parties filed documents supportive of their respective positions. The respondent filed an affidavit sworn by Mr Clarkson which annexed the following documents:
(a)Notice of drug test served on the applicant on 5 September 2004
(b)Certificate of approved analyst, which indicated a level of cannabinoid's in the applicant's urine sample of 90mg/ml, compared with a nominated "cut off" of 50mg/ml.
(c)Intention to revoke licence dated 22 November 2004
(d)Notice of revocation of licence dated 13 December 2004
(e)Declaration from the Managing Director Chemistry Centre (WA) certifying that the analyst was approved for the purposes of the Act.
The applicant filed a written submission. He admitted using cannabis, but said "this is not a true statement of the person I am". He said that a month before the test he had experienced a difficult relationship break up which involved a 4‑year‑old child. He was depressed and experienced sleeping problems and rapid weight loss. He said that he slept on a friend's couch for a month and that he turned to alcohol, regularly drinking himself to sleep.
According to the applicant's statement, during the same month, his father was involved in two armed hold-ups in his businesses in Tasmania, the first of which involving his being beaten up, tied and a gun put to his head, while in the second, his father fought back and he received cuts and bruises. Both incidents, and the fact that the applicant was unable to travel to Tasmania to be with family at that time, contributed to his depressed emotional state. The statement also referred to the applicant being head door-man at both nightclubs in Albany and having trained most of the new crowd controllers who had come through the clubs, and that he was not handling this responsibility and his personal life at all.
In relation to the taking of the cannabis, the applicant said that the Thursday prior to his drug test he was drinking quite heavily with friends at a party and he "had a smoke on a joint that was being passed around". The following morning he felt sick and a fool and wished he could turn back the clock. When he took the test he admitted to the police what he had done the previous Thursday and that he was ashamed.
Since the test, the applicant has moved into his own house and found himself in a new and happier relationship, and he had started to get his life on the right track again. That was until 10 January 2005, when his employer handed him a fax stating that he could no longer work as a crowd controller. He loves the job, which takes a certain type of person and he believes that he has demonstrated he is that type of person.
At the hearing, Mr Pennicott provided some further explanation and background. He said that he had been in the crowd controlling industry for the past six years, initially in Tasmania and during the last two years in Albany. He had done a TAFE course in Tasmania, but did not recall any reference in that course to random drug testing. Indeed, he said that he was unaware prior to his test that random drug testing was the law in Western Australia, and moreover, that he was unaware that it was against the law for crowd controllers to take drugs. He said that it was never an issue for him as he was against drug taking and had removed patrons from venues and arranged the arrest of those persons for drug offences on many occasions.
The applicant said that he is respected by people in Albany who know him. Due to the nature of his work he does not have a lot of friends in Albany, but he produced one witness, a Mr Ballantyne, who spoke in extremely positive terms regarding the applicant's good character and dependability, and knowledge and diligence as a crowd controller. Mr Ballantyne commented on Mr Pennicott's lapse as "one of those silly things", and confirmed his general anti-drug stance.
The applicant said that he is about to commence full time employment at the Albany Abattoirs. However, he wanted to continue as a crowd controller, which he gets a thrill from and is "part of me".
Sgt Bagley submitted that the intent of the legislation (in particular s 52(c) and ss 80 and 81) was to remove from the crowd controllers' industry people who take drugs. Crowd controllers on the doors of venues are trusted to look after members of the community and are required to do so drug-free, given the well-known effects of drug use on people's behaviour. Sgt Bagley submitted that if the decision taken against the applicant was overturned, the "wrong message" would be sent out.
Consideration
There is no guidance provided by the Act for the manner in which the Tribunal is conduct a review of a decision to revoke a licence pursuant to s 72(1). The matter comes within the review jurisdiction of the Tribunal which is the subject of Division 3 of Part 4 of the SAT Act. Relevantly for present purposes, the review is by way of a hearing de novo and may involve consideration of new material whether or not it existed at the time the decision was made (s 27(1) SAT Act), the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review (s 27(2) SAT Act), and the Tribunal has functions and discretions corresponding to those exercisable by the decision maker in making the decision under review (s 29(1) SAT Act).
We have had regard to all of the arguments raised by the applicant. There was an undercurrent in the applicant's submission of a lack of knowledge of the legislative prohibition of any drug use by licensees. It was of particular concern to us that on the transfer of the applicant's licence from Tasmania to Western Australia, there was and is apparently no administrative process allowing for a new entrant to the Western Australian crowd controller industry to be informed of rights and obligations of licensees under the Western Australian Act. We would have thought that in an industry such as this, the police, through their agent, should take the opportunity of events such as transfers and renewals of licence to facilitate the flow of information licensees require in order to comply with their obligations in a user‑friendly format. The problem is likely to be exacerbated where, as in this case, the licensee lives in a regional part of Western Australia where access to statutes and the like might be somewhat more difficult than in Perth.
Having said that, it is trite to say that ignorance of the law is no excuse. The anti‑drug regime looms large in the Act, and, in general terms, it must be complied with in order for the licensee to remain entitled to his licence. It prohibits even silly, one off indiscretions, as has been submitted was the case here. The provisions of and rationale for what was to become Part 9 of the Act, in which ss 80 and 81 are found, were expressed in the second reading speech in the following terms:
"Part 9 of the Bill deals with the random drug testing of licensed crowd controllers. This part provides that the Commissioner of Police or a delegated police officer may serve on a crowd controller a notice requiring the person to attend for the collection of a urine or blood sample. The collection and analysis of the samples is to be controlled by the Health Department. Where the analysis reveals that drugs as prescribed in the regulations have been taken for a non‑therapeutic reason without the authority of a medical practitioner, the crowd controller will have the licence revoked … It is essential to deter any persons who use such substances for non‑therapeutic reasons from being crowd controllers. This is because crowed [sic 'crowd'] are closely involved with the public and are often required to remove unruly patrons from the business premises. To allow a crowd controller to perform such duties whilst using anabolic steroids or amphetamines for non‑therapeutic purposes will inevitably result in injury to the public. The random testing will act as an effective deterrent to a crowd controller considering to use these substances improperly, and will reduce the possibility of injury to the public." Hansard (LC) 23 May 1995, 3499 ‑ 3500
The question for us is whether the circumstances which the applicant has described are such as to override the legislative intention that generally speaking, the consequence for a holder of a crowd controller's licence of failing a blood or urine test by detection of a proscribed drug in a sample is revocation of the licence. Whilst we do have some sympathy for the predicament in which the applicant found himself in what he describes as the low point of his life, we do not consider that the circumstances he has described can properly be taken into account by the licensing officer in exercising his or her discretion under s 81(1) of the Act, and hence, by the Tribunal in carrying out its review function.
For the above reasons, we were not persuaded that any of the matters to which the applicant referred us, nor all of those matters considered cumulatively, constitutes a basis to substitute a different decision from that of the licensing officer to revoke the applicant's crowd controller's licence.
I certify that this and the preceding seven pages comprise the reasons for decision of the State Administrative Tribunal.
_____________
Mr T Carey
Member
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