Reynolds and Commissioner Of Police
[2009] WASAT 66
•14 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)
CITATION: REYNOLDS and COMMISSIONER OF POLICE [2009] WASAT 66
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 8 APRIL 2009
DELIVERED : 14 APRIL 2009
FILE NO/S: VR 25 of 2009
BETWEEN: JASON DANIEL REYNOLDS
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Crowd control - Drug test - Lawful excuse for nonfailure to attend the test - Revocation of licence - Discretion of the decisionmaker - Failure to undergo urine test - Interests of the public - Is an excuse that a person 'slept in' a lawful excuse?
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 35, s 72(1) s 80, s 80(1), s 80(3), s 81, s 81(1)(a)
State Administrative Tribunal Act 2004 (WA), s 22(2), s 27(1), s 27(3), s 29(1), s 29(5)
Result:
The application is dismissed
The decision of the Commissioner of Police to revoke the crowd control licence is affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Sgt S Bagley
Solicitors:
Applicant: Self-represented
Respondent: Commissioner of Police
Case(s) referred to in decision(s):
Commercial Agents and Stoveld [2005] WASAT 59
Hancock v Birsa (1972) WAR 177
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Reynolds sought a review of the decision by the Commissioner of Police to revoke his crowd control licence on the basis that he failed to attend a urine test without a lawful excuse.
Mr Reynolds contended that he slept in after a long day and night on duty. As a result he missed the test which was scheduled for 11 am on a Sunday. He did, however, attend at the police station two days later and was told that his licence may be suspended. When he was informed in writing that his licence may be revoked and he was invited to make a submission, he failed to do so. His explanation was that he had returned from leave and did not get around to opening his mail in time. Mr Reynolds finally contended that he had been in the industry for a long period of time; that he has no criminal record and that he is regularly tested for drugs in the construction and mining industry where he works.
Sergeant Bagley, for the Commissioner of Police, contended that Mr Reynolds had no lawful excuse for not having attended the test; that he did not take reasonable steps after the test had been scheduled to contact the local police; that he failed to make submissions when he was invited to do so; and that if the excuse of a 'sleep-in' was accepted by the Tribunal as a 'lawful excuse' the relevant part of the Act may as well be disposed of since it would lose the desired effect.
The Tribunal concurred with the submissions made by the Commissioner of Police. The excuse offered by Mr Reynolds that he merely slept in does not fall within the category of a 'lawful excuse' envisaged by the Security and Related Activities (Control) Act1996 (WA). It is clear from Mr Reynolds' behaviour after he had failed to attend the test, that he took a rather slack and relaxed approach to it. He may not have foreseen that the licence could be revoked, but whatever his understanding was, he did not act with the necessary care, diligence and urgency that could be expected of a person who failed to comply with a directive of the Commissioner of Police.
The Tribunal therefore finds that the decision of the Commissioner of Police to revoke the crowd control licence of Mr Reynolds must be affirmed and the application for review must be dismissed.
Background
The Commissioner of Police (Commissioner) served a notice on Mr Reynolds at 12.24 am on Sunday, 14 December 2008 to attend a urine test at 11 am on the same day at the police station in Karratha. Mr Reynolds failed to attend and at the time did not provide an excuse.
The Commissioner then notified Mr Reynolds per letter dated 7 January 2009 that his licence may be revoked and invited him to make submissions to explain what lawful excuse he had for not having attended the test. Mr Reynolds did not provide a written reply to explain why he had failed to attend the test.
The Commissioner notified Mr Reynolds per letter dated 4 February 2009 that it had decided to revoke the licence on grounds that a lawful excuse had not been given for the failure to attend the test.
The application for review was lodged with the Tribunal on 1 February 2009. A directions hearing took place on 19 February 2009. The Commissioner and Mr Reynolds made written submissions.
The hearing took place on 8 April 2009. During the hearing Sgt Bagley made further oral submissions on behalf of the Commissioner and Mr Reynolds gave evidence and made submissions in person.
Orders sought
Mr Reynolds is seeking an order pursuant to s 72(1) of the Security and Related Activities (Control) Act 1996 (WA) (SRA Act) to set aside the decision by the Commissioner to revoke his crowd control licence and to reinstate the licence.
Statutory framework
The review function of the Tribunal derives from the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 22(2) of the SAT Act enables a person aggrieved by a decision by or on behalf of the Commissioner to seek a review from the Tribunal thereof. The decision in this matter is the refusal of the delegated officer appointed by the Commissioner.
The Tribunal has in accordance with s 29(1) of the SAT Act the same jurisdiction, functions and discretions as those of the delegated officer.
The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made (s 27(1) of the SAT Act).
The review hearing is therefore 'de novo' (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the decision-maker at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to ‑
a)affirm the decision;
b)vary the decision; or
c)set aside the decision, and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the delegated officer (s 29(5) of the SAT Act).
The relevant provisions of the SRA 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 of the SRA Act 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.
Section 80 of the SRA Act enables the Commissioner or a police officer delegated by him to 'at any time' direct the holder of a crowd controller licence to undergo a blood or urine test. Section 80(3) provides that such a direction must be in writing, specify the date, time and place of the test, and indicate the nature of the sample to be given.
Section 81 of the SRA Act empowers a licensing officer to revoke a crowd controller licence if the person fails to comply with a direction under s 80 'without a lawful excuse'.
Submissions
The following is a summary of the submissions made by Mr Reynolds:
a)He failed to attend the urine test because he had a very long day and night shift prior to the test and overslept the Sunday morning when the test was taken.
b)When he woke up at about 4 pm the Sunday afternoon he realised that he had missed the test but he did not contact the police station since he thought they would not be open on a Sunday. He eventually visited the police station on Tuesday and was told that he may lose his licence.
c)Although he received the invitation dated 7 January 2009 to make further submissions to the Commissioner, he did not make a submission. His failure is explained in part by the fact that he was on leave when the letter arrived and although he had another two weeks to submit a reply after he had returned from holiday, he never got to open all his mail.
d)He does not have a criminal record, he has been in the security industry for many years and he is not a user of drugs. He is regularly tested in the mining and construction industries where he works and has never had any positive return.
e)While he recognises in hindsight that he could have done more to explain his failure to attend the test, it must be recognised by the Tribunal that it was an inadvertent error and not a reflection on his character. The decision to revoke the licence should therefore be set aside and the licence must be reissued.
The following is a summary of the submissions made by Sgt Bagley on behalf of the Commissioner.
a)The SRA Act sets out a strict regime for testing of crowd controllers. If the requirements were open to evasion by persons not having a lawful excuse for failing to attend a test, it would undermine the integrity of the regime.
b)Mr Reynolds was given proper notice to attend the urine test. His excuse of sleeping in is not a 'lawful' excuse as envisaged by the SRA Act.
c)Mr Reynolds made no effort to attend to or to call the police station on 14 December 2008 when he was due to be tested. Even after he woke up at about 4 pm, he failed to call the police to explain his absence. He further failed to attend the police station the next day or to call. He only contacted the police on the Tuesday. This signifies the careless way in which he regarded the process.
d)He failed to make a written submission to the Commissioner when he was invited to do so in the letter dated 7 January 2009.
e)Mr Reynolds not only failed to provide a lawful excuse for not attending the test, he also failed to give a coherent explanation of his behaviour after he had realised that he had missed the test.
f)The Commissioner is not contending that Mr Reynolds has used drugs, but the testing arrangements are designed to be conducted at short notice and unless a person has a lawful excuse, failure to attend may lead to a revocation of a licence. The notice of a drug test has a clear reminder, printed in bold, at the bottom to remind a crowd controller that failure to comply with the notice may lead to the licence being revoked.
g)The decision of the Commissioner to revoke the licence should therefore be affirmed and the application dismissed.
Consideration
In considering the application the Tribunal has taken into account the written and oral evidence and submissions made by the parties.
The general scheme of the SRA Act provides a regulatory framework for the licensing and disciplining of persons in the security industry in order to serve and protect the interests of the public. The provisions of the SRA Act must therefore always be read with the interest of the public and those who serve in the security industry in mind. That is particularly the case when the drug testing regime is considered. As pointed out by Sgt Bagley, Parliament was so concerned about the prevalence of prohibited substances in the security industry that it enacted a very strict regulatory standard for testing crowd controllers.
The SRA Act enables the Commissioner to 'at any time direct' the holder of a crowd controller licence to undergo a blood or urine test (s 80(1)). Although the power to make such a direction seems at face value to be unlimited, s 81(1)(a) anticipates that where a person has a 'lawful excuse' he will not be required to comply with such directive. A person who fails to attend a drug test can therefore make representations to the police to explain why he was not in attendance.
The question in this matter is therefore if the excuse offered by Mr Reynolds that he had slept in was 'lawful' within the meaning of the SRA Act.
The meaning attached to 'lawful' depends on the circumstances of each case.
In general, one would approach 'lawful' as a reason that is supported by law. As The Oxford Dictionary (Moore, B (4th ed, 2004)) puts it: 'conforming with or recognised by law'.
The test for lawful excuse is described by Burt J in Hancock v Birsa (1972) WAR 177 (Hancock) at 181 as whether in the 'judgment of the court' a person's actions were 'excusable in all the circumstances of the case' bearing in mind the nature of the offence and the possible punishment.
In the matter of Commercial Agents and Stoveld [2005] WASAT 59, the Tribunal rejected the contention of the respondent that his failure to attend a test was due to 'business reasons'. The Tribunal found that he could have made arrangements to attend the test and that 'lawful excuse' cannot be equated to 'any excuse'.
The Tribunal notes the explanation offered by Mr Reynolds for his non‑compliance with the direction to undergo a urine test, but we are not satisfied that the reason he offered qualifies as a 'lawful excuse' as envisaged by the SRA Act.
From Mr Reynolds' evidence, it appears that he took a rather casual and relaxed approach to the notice to undergo the test. He knew he had to attend but yet did not arrange with anybody to call him or to wake him. He slept in, made no effort when he woke up to call the police station on the same day or to present himself to the station to see if the test could be administered. He merely assumed the station would be closed. When he was later afforded an opportunity to explain in writing why he failed to attend the test, he again did not utilise it. This time he says he returned from holiday and failed to read the letter in the two weeks that he had been home.
Mr Reynolds may be concerned now about losing his licence, but at the time he appeared to be rather unconcerned and even reckless.
The SRA Act anticipates that a crowd controller may for a 'lawful reason' be unable to attend a test as directed by a notice under s 80 of the SRA Act. However, applying the test as set down in Hancock above, we have concluded that if all the circumstances are taken into account, including the nature of the offence, the public interest and the consequences of a breach of the SRA Act, no lawful excuse has been given by Mr Reynolds. The non‑compliance to attend the test was serious, no lawful excuse has been offered and it justifies the revocation of the licence.
The Tribunal accepts that Mr Reynolds is a hardworking member of society with a clean record. He also presented well during the hearing and gave the impression that he is serious about his life and the contribution he could make to the security industry. There is also no evidence to suggest that Mr Reynolds uses drugs. But he failed to provide a lawful excuse for not attending the test and that brings him within the ambit of s 81 of the SRA Act.
Finding
The Tribunal finds that Mr Reynolds failed to comply with a direction given under s 80(1) of the SRA Act to attend a drug test and that the excuse he offered is not a 'lawful excuse' within the meaning of the SRA Act. The Tribunal is therefore satisfied that the Commissioner acted properly when it decided to revoke Mr Reynolds' crowd controller licence. The decision of the Commissioner must therefore be affirmed and the application for review must be dismissed.
Orders
1.The decision by the Commissioner of Police to revoke the crowd control licence of Mr Reynolds is affirmed.
2.The application for review of the decision is dismissed.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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