Townley and Secretary, Department of Infrastructure and Regional Development
[2016] AATA 311
•16 May 2016
Townley and Secretary, Department of Infrastructure and Regional Development [2016] AATA 311 (16 May 2016)
Division
GENERAL DIVISION
File Number
2015/4253
Re
Raymond Townley
APPLICANT
And
Secretary, Department of Infrastructure and Regional Development
RESPONDENT
DECISION
Tribunal Deputy President Dr C Kendall
Date 16 May 2016 Place Perth The decision under review is affirmed.
…………[Sgd]........................................
Deputy President Dr C Kendall
CATCHWORDS
MARITIME SECURITY – maritime security identification card (“MSIC”) – adverse criminal record – MSIC required for employment on maritime and offshore facilities – whether applicant is a threat to the security of maritime transport or an offshore facility – Secretary’s discretion to approve issuing of MSIC to applicant with criminal record – MSIC not granted as applicant is a threat to security - decision under review affirmed
LEGISLATION
AusCheck Regulations 2007 – Regulation 9
Maritime Transport and Offshore Facilities Security Act 2003
Maritime Transport and Offshore Facilities Security Regulations 2003 – Regulations 6.08(A), 6.08(B), 6.08(C), 6.08(F), 6.08(X), 6.08(Z), 6.08(3), Schedule 1 Item 2.22
Restraining Orders Act 1997 (WA) – s 61(1)
REASONS FOR DECISION
Deputy President Dr C Kendall
16 May 2016
BACKGROUND
This is an application for review of a decision made in relation to Regulation 6.08X of the Maritime Transport and Offshore Facilities Security Regulations 2003 (the “Regulations”) to refuse to issue a Maritime Security Identity Card (an “MSIC”) to Mr Raymond Townley.
Individuals working in maritime security zones must carry a valid MSIC. A successful applicant for an MSIC can work unescorted or unmonitored in a maritime security zone or offshore facility.
An MSIC is a card issued under the Maritime Security Identification Card Scheme (the “Scheme”) created by the Maritime Transport and Offshore Facilities Security Act 2003 (the “Act”) and the Regulations. The purpose of the Scheme is to identify a person who has been the subject of a background check. It aims to ensure that that the holder of an MSIC meets minimum security requirements.
Under Regulation 6.08C of the Regulations, MSIC “issuing bodies” are prohibited from issuing an MSIC in certain circumstances. One of these circumstances is where a criminal records check carried out by AusCheck shows that the person applying for an MSIC has an “adverse criminal record” (i.e., he or she has been convicted and sentenced to imprisonment for certain “maritime security relevant offences”).
Regulation 6.08F of the Regulations provides that an MSIC issuing body or an applicant may apply to the Secretary, Department of Infrastructure and Regional Development (the “Secretary”) for approval to issue an MSIC to a person who otherwise is not eligible to be issued an MSIC because of their adverse criminal record. A delegate for the Secretary can then grant an MSIC, despite there being an adverse criminal record, if it is determined that the applicant is not “a threat to the security of maritime transport or an offshore facility”.
If in these circumstances the delegate refuses to grant an MSIC, Regulation 6.08X of the Regulations provides that an application may be made to the Secretary for reconsideration of a decision not to issue an MSIC to a person under Regulation 6.08F of the Regulations.
Mr Townley has previously held two MSICs. Both have now expired. On 14 February 2007, he was approved to hold a MSIC with an expiry date of 29 February 2012. On 29 July 2012, he was approved (following a regulation 6.08F review - discussed below) to hold an MSIC with an expiry date of 15 March 2014.
Mr Townley applied to 1-Stop Connection Pty Limited (“1-Stop”), an “Issuing Body”, for a new MSIC in or about October 2014.
As required by the relevant legislation, 1-Stop submitted an application to AusCheck for a background check on Mr Townley.
AusCheck undertook a background check on Mr Townley and concluded that he had an “adverse criminal record”. As correctly outlined by the Secretary in a Statement of Facts, Issues and Contentions dated 4 December 2015, AusCheck came to this conclusion because Mr Townley had been convicted in 2005 for threats with intent to influence and found that this constituted a “Maritime Security Relevant Offence” under category 2.22 (“extortion, blackmail or racketeering”) in Schedule 1 of the Regulations.
AusCheck published its decision on 11 December 2014 and informed Mr Townley that it would advise 1-Stop that it must not issue him with an MSIC (T11).
It appears from the evidence that Mr Townley did not seek a review of that decision under the AusCheck Regulations.
On 13 December 2014, Mr Townley then requested consideration for approval for an MSIC from the Secretary under Regulation 6.08F (T13). That Regulation allows applicants to apply directly to a delegate for the Secretary for approval to issue an MSIC.
On 24 June 2015, a delegate of the Secretary refused Mr Townley’s application for approval to be issued an MSIC (T34).
On 15 July 2015, Mr Townley applied for an internal review of the delegate's decision under Regulation 6.08X of the Regulations (T36).
On 14 August 2015, another delegate of the Secretary upheld the decision not to provide approval to issue a MSIC to Mr Townley under regulation 6.08F of the Regulations (T2).
As correctly outlined by the Secretary in a Statement of Facts, Issues and Contentions dated 4 December 2015, the delegate found that Mr Townley constituted a threat to the security of maritime transport or an offshore facility. In making that determination, the delegate noted, in particular, the nature of Mr Townley’s 2005 criminal, his other criminal history, his behaviour towards Commonwealth officers during the MSIC application process, his apparent disregard of the law and authority and his willingness to act dishonestly for personal gain. The decision-maker concluded that providing Mr Townley with unmonitored access to maritime security zones in these circumstances would pose an unacceptable risk.
Mr Townley applied to this Tribunal for a review of the delegate’s decision not to approve the issue of an MSIC on 19 August 2015.
THE HEARING
Mr Townley represented himself and gave evidence under oath. Mr Bird of Clayton Utz represented the Secretary.
The Tribunal considered the following evidence:
· The documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents);
· A written statement prepared by Mr Townley dated 22 February 2016; and
· The Secretary’s Statement of Facts, Issues and Contentions dated 4 December 2015.
THE LEGISLATION
As outlined above, the legislation relevant to this matter is contained in the Maritime Transport and Offshore Facilities Security Regulations2003, made under the provisions of the Maritime Transport and Offshore Facilities Security Act 2003.
Regulation 6.08C relevantly provides that a person may be issued with an MSIC if a criminal history check shows that the person does not have an “adverse criminal record”. Regulation 6.08A states that a person has an adverse criminal record if he or she has been convicted of a “maritime-security-relevant offence” and sentenced to imprisonment. Regulation 6.07B defines a “maritime-security-relevant offence” as an offence relating to a matter included in Schedule 1 of the Regulations. Relevantly, Schedule 1 (at Item 2.22) includes “extortion, blackmail or racketeering”.
If a background check conducted by AusCheck shows that an Applicant has an “adverse criminal record” then:
a)AusCheck is to provide advice to this effect to the Issuing Body (Regulation 9 of the AusCheck Regulations); and
b)the Issuing Body cannot issue a MSIC to a person unless the Secretary has approved an application to issue an MSIC to the person (see regulation 6.08C(1)(e) in conjunction with regulation 6.08F(3)(a) of the Regulations).''
Regulation 6.08F(1) allows for a person with an adverse criminal record to apply in writing to the Secretary directly for approval to issue an MSIC to the person, despite having an adverse criminal record. The Secretary can do so if it is determined that the applicant does not constitute “a threat to the security of maritime transport or an offshore facility” (Regulation 6.08F(5)).
Pursuant to section 6.08F(3) of the Regulations, the Secretary must notify the person making such a request within 30 days after receiving an application and advise whether he or she approves the issuing of the MSIC card.
Regulation 6.08F(5) lists the issues the Secretary must consider in determining whether the person constitutes “a threat to the security of maritime transport or an offshore facility”. They are:
(a) the nature of the offence the person was convicted of; and
(ab)if the person was convicted of the offence before becoming the holder of an MSIC; and
(b) the length of the term of imprisonment imposed on him or her; and
(c)if he or she has served the term, or part of the term – how long it is, and his or her conduct and employment history, since he or she did so; and
(d)if the whole of the sentence was suspended – how long the sentence is, and his or her conduct and employment history, since the sentence was imposed; and
(e)anything else relevant that the Secretary knows about.
Regulation 6.08X(3)(a)(i) allows a person to apply to the Secretary for reconsideration of the decision to refuse the issue of an MSIC.
Regulation 6.08Z provides for an application to be made to this Tribunal for review of the decision made by the Secretary under Regulation 6.08X.
ISSUES
Mr Townley did not dispute the accuracy of his criminal record and accepted that the 2005 offence constituted an “adverse criminal record” in accordance with the provisions of the Act.
Accordingly, the only issues before this Tribunal are whether Mr Townley constitutes a “threat to the security of maritime transport or offshore facilities” and, if not, whether he should be issued with an MSIC.
EVIDENCE
Mr Townley is now aged 48. He has an extensive criminal record dating from when he was a young man. His criminal record spans 29 years and includes more than 30 convictions (not including convictions for motor vehicle offences) (T4, T12 and summarised at T34 at page 94).
Relevantly, the Secretary summarised aspects of Mr Townley’s criminal record as follows at paragraphs 10-12 of its Statement of Facts, Issues and Contentions:
10.On 7 July 2005, the Applicant was convicted of 'threat with intent to influence' pursuant to section 338A of the Criminal Code (WA) for threatening two men in order to prevent those men from giving evidence in Family Court proceedings. Specifically, the Applicant told the men that he would kill them if they gave evidence. On this day, the Applicant was also convicted of two charges of 'criminal damage' under section 444 of the Criminal Code (WA) for wilfully and unlawfully damaging one of the men's gate and the other's car. The Applicant was sentenced to an 18 month suspended sentence of imprisonment for the threat offence. The Applicant was fined $710 for the damage to the fence, and $1000 for the damage to the car (T3).
11.On 30 October 2012, the Applicant was convicted of two counts of 'threats to injure, endanger or harm any person' pursuant to section 338B of the Criminal Code (WA) in circumstances where the Applicant had threatened his neighbour that he would seriously and violently injure him (T9). The Applicant was fined $2300 for these offences.
12.On 11 December 2012, the Applicant was convicted for 'breach of violence restraining order' pursuant to section 61(1) of the Restraining Orders Act 1997 (WA), in circumstances where the Applicant had approached his neighbour in contravention of a restraining (T10). The Applicant was fined $600 for this offence.
In evidence before this Tribunal, Mr Townley advised that, in addition to the criminal record before this Tribunal (which ends in 2014), he was fined in 2015 following an argument with his then employer (a transportation company) in relation to what he described as “illegal loads”.
In relation to his 2005 conviction for the “threat offence”, the Tribunal notes the transcript of proceedings before Chief Judge Kennedy dated 7 July 2005 (T3 at 24) relating to that incident:
KENNEDY CJDC: Thank you. All right, Mr Townley, you can remain seated. In April of this year you pleaded guilty before me that on 22 May 2004 you made a threat with intent to prevent Ivan Lackovic doing an act he was lawfully entitled to do and you threatened to kill him. Then on 23 May, again, you wilfully and unlawfully damaged a front gate of Ivan Lackovic. On count 3 you made a threat with intent to prevent Gregory Morgan doing an act he was lawfully entitled to do and you threatened to kill him. On count 4 you wilfully and unlawfully damaged a motor vehicle belonging to Raymond Townley [sic]. These are very serious matters, extremely serious. Firstly, anyone can give evidence of anything they want without being stopped and, secondly, people are entitled to live without having their homes and their property damaged by you.
It was to prevent people or to threaten people about them giving evidence in the Family Court. Now, under normal circumstances you would go to gaol for this but you have already been in gaol for 13 months in relation to this matter and it seems to me from all the reports I have that a number of programs are needed for you. Those programs aren't being done in the prison system. If I sentence you to a term of imprisonment, you would be about due for release now in any event and it may be that I could probably bolster it up a little further without being unjust, but not sufficiently to give the community any further protection and it seems to me, given all the reports I have, that the best protection is that you do various things.
Now, I have got a report from the psychologist, a report from the psychiatrist and a pre-sentence report and I also have a letter from you. You assure me that even though you made threats you weren't going to do anything about it. Is that right?
THE ACCUSED: Yes, that's correct.
KENNEDY CJDC: All right, because, as I said to you on the last occasion, those are the things we worry about. I don't have any idea. When somebody makes those threats I don't know whether they're a person who is going to carry them out or whether they're just being bad tempered and that is why you have now found yourself in a lot of the trouble you're in because people just don't know whether you're one of those people who is going to carry these threats out or whether you were just being bad tempered. Now, you assure me that you're not one of those people who is going to carry those threats out and it was just frustration and the indications for the reports are that life has not been easy for you.
Life did not deal you a very good hand and you need assistance so that you can express your feelings and express your losses in some way other than threatening people and doing the things that you do. It seems to me the best thing to do is to release you. I probably could, as I say, justify keeping you in prison for another six months or so and then releasing you on parole but I can't see any point in that given that I trust what you have said to me and given the other reports that I have had and given the fact that there are so many people out there who would like to assist you, that you should take that assistance and you should try and be a bit patient because by not being patient you have simply just delayed everything more and more, so I hope that you will do the things that they say.
In relation to count 3 and 4 and that relates to Mr Morgan and the damage to his motor vehicle there’s an 18 months term of imprisonment in relation to each concurrent with each other and that is suspended for 18 months, so that 18 months term hangs over your head and I would think that if you do anything particularly in relation to any of these people or your former wife et cetera that sentence would come down on your head. In relation to counts 1 and 2 there will be a two-year intensive supervision order with a program and a supervision requirement.
What that means is if you get into any trouble in the next two years you're going to be brought back and dealt with in some other way. There is a supervision requirement which means that you have to report to them when they tell you. It doesn't matter whether you want to report. I have now made an order you have to report so you just report, even if it's just to humour me, so you report. There’s a program as well and that is all the programs that the Family Court have said, basically, you have got to do if you want to see your kids and you want to see them unhindered.
Obviously they mean a great deal to you or you wouldn't have gone to so much effort when they were taken out of the state so those are the programs and things that you have to do and you have to patient with yourself and you have to be patient with the authorities as well. It’s no good thinking this is all going to be sorted out next week now and if it’s not sorted out blowing a fuse next week. You have to give people a couple of months to get things organised. You have to be patient and I hope that you will be otherwise if you don't, I mean, I will know about it because you will be back here.
It seems a shame when, as I say, life didn't deal you a particularly wonderful hand but there is now help that you can get. …
In relation to Mr Townley’s 2012 offences, the Tribunal notes the following transcript of court proceedings before Magistrate King on 30 October 2012 (T9), as follows:
PROSECUTOR: At about 9.20 pm on Thursday 30 August the accused was observed on CCTV vision to walk to his neighbour's front garden situated at 4 Kuroki Way in Byford. The accused resides at number 4 which is directly adjacent - I'm assuming there's a mistake there in regards to house numbers. The accused went to the area next to the complainant's driveway and located eight rolls of turf which had been stacked there. The accused picked up two rolls and walked to the complainant's front garden bed and threw the rolls of turf into four small shrubs. The turf rolls broke up and caused the shrubs to break.
A short time later the accused returned to the stacked rolls and commenced to break them up with his hands and throw them onto the complainant's brick paved driveway. The accused then walked back to his house. The entire incident was recorded on the complainant' s surveillance equipment which he had installed after previous problems with the accused. At 7.30 pm on Wednesday 12 September the accused was participating in a video record of interview at Mundijong Police Station in relation to this matter. The accused initially denied any knowledge of the matter and when advised the incident had been recorded he made certain admissions.
Further, 7.30 pm Wednesday 12 September the accused was participating in a record of interview regarding another matter. During the course of the interview the subject of the violence restraining order came up in conversation several times. The accused became visibly aggressive and started making threats towards Alison, who was the subject of that violence restraining order. Some of the threats which were recorded on the video were:
I will fix him myself, that's a promise. I will break his legs and I will bring his legs down here. I will snap his legs off, that's a promise. I will belt him up. He pisses me off. Snap, bang and his neck will be broken. He rattled my boat. I will get my wife to ring you and come pick his body up. You had better lock me up then, hey, if he knows - if he shows his face-tomorrow I will cave it in.
Police conducting 'he interview formed the opinion that the accused, who lived next door to Alison was in such a frame of mind that he could possibly carry out these threats. And, further, as the interviewing police officers endeavoured to calm down the accused he became increasingly more aggressive and started directing threats towards the police, particularly Constable Rogers. The accused yelled at the officers, saying:
I will snap your legs if you piss me off. I will put my first through your skull. You're pretty tough with your uniform but I can still put you on your arse. I'm licensed with deadly weapons outside of Australia. I will show you what I can do. Get him out of here or I will kill him.
The accused was subsequently placed in to the rear of a security van and conveyed to East Perth lock up. Bail was considered but refused due to the fact that if released the accused may try to carry out these threats.
HIS HONOUR: Is there anything you would to say, Mr Townley?
ACCUSED: Yes, Your Honour. What the police officer has said just then I took pictures before the incident actually happened regarding the turf. It shows the turf wasn't on where he actually said. And that's - my neighbour has been charged and got to face court regarding stealing and dumping unlawful rubbish on building sites. Now, these turfs actually stipulate and show - not on this boundary - he has bought - knocked 10 bags of cement off - myself and BGC building company, which is the owner of Homestart. My neighbour - yes, there is a dispute with my neighbour and myself and he (indistinct) boats. We did a park between the two boundaries. He picked up the survey peg and threw it into the middle of my property. He - - -
HIS HONOUR: Mr Townley, the damage is the least serious of these charges. I'm more interested in hearing about the threats.
ACCUSED: Well, over the course of action he has actually threatened myself, my wife. I do distance for a living and I've got these boys going past my house continuously. All right. When I'm home they're hounding my house and I've actually put a harassment charge - - -
HIS HONOUR: Did you make these threats? Did you make these threats?
ACCUSED: Yes. Because they wouldn't listen to what was actually going on in the first place.
HIS HONOUR: Why did you make the threats?
ACCUSED: Because they did not listen and didn't give a damn about the video footage - sorry, the photographs.
HIS HONOUR: Well, do you appreciate that these are serious threats you have made to people that can cause significant concern and fear in people's minds?
ACCUSED: Yes. I understand that, your Honour. But I don't have to put up with threats and abuse from my neighbour either. We've got to live in the same street.
HIS HONOUR: Well - - -
ACCUSED: Now, he is - - -
HIS HONOUR: - - - that may be the case. But it's unlawful for you to use - to make any of these sorts of threats.
ACCUSED: Yes. I do understand that, your Honour. But he can't go around throwing things at my animal every time it's out the front either.
HIS HONOUR: Well, there ways for you to deal with that
ACCUSED: And then when you ring these boys - -
HIS HONOUR: - - - according to law. It doesn't give you an excuse to go and threaten people,
ACCUSED: Well, I do try and do it by the law, when you ring them up and they don't even do anything. But when it's my neighbours on the phone they run out like a flash. The day I got out of court - - -
HIS HONOUR: Sorry. Sergeant?
PROSECUTOR: I would seek to amend the complaint for the damage from $120 to $40. Thank you.
HIS HONOUR: Well, that doesn't make it as - quite as serious, Mr Townley. It's a less serious damage charge. Now, are you working at the moment?
ACCUSED: Yeah, I - I cart big machinery between – up north, over the border.
HIS HONOUR: Have you still got that job?
ACCUSED: Yes, well, the load is actually parked up. Been waiting for me to get behind the steering wheel today. But I was waiting to return to court. So -
HIS HONOUR: Okay.
ACCUSED: - - - the price tag is around about the $2 million mark because nobody moved anywhere. Mines are waiting for it.
HIS HONOUR: Okay. Does the prosecution have any sentencing submissions?
PROSECUTOR: No, sir.
HIS HONOUR: Mr Townley, you have a record in relation to this sort of thing but there is a significant gap between the last time you have been in court- for this sort of thing. So I will deal with this by way of fine today but if you come back to court in the near future for anything like this you may be looking down the barrel of a jail term. You are fined $2300 global, costs of $66. You can make arrangements to pay that off. Once you've got your fine slip, you are free to go.
ACCUSED: (indistinct) Am I getting fined for that?
HIS HONOUR: Yes. You're getting fined for all of them.
ACCUSED: I don't know how's - how is it damage when it shows there is nothing damaged?
HIS HONOUR: I beg your pardon. Did you want to plead not guilty or guilty on that? It looks like there wasn't a plea on the last occasion.
ACCUSED: Well according to these people here - the video footage - well according to the photographs nothing's damaged.
HIS HONOUR: You can have the fine - they are all included in a fine today if you plead guilty. If you plead not - if you don't want to plead guilty to the damage that is your right and I will adjourn it to a hearing.
ACCUSED: I need to get it over and done with but - - -
HIS HONOUR: Well I can't deal with a not guilty plea today but I will adjourn the matter to enable it to go to a hearing.
ACCUSED: (indistinct) I've got to plead not guilty to something which was never on his building - on his property.
HIS HONOUR: Okay. You've got a choice of having the global fine today and having it over and done with, but if you maintain a plea of not guilty I will have to put it off to another day, you will have to come back, we will hear evidence from witnesses and decide whether you're guilty or not guilty. And then the court will hear submissions about whether a further penalty should be imposed.
ACCUSED: (indistinct) whatever. It the builders - - -
HIS HONOUR: Is that what you want to do? Do you want to come back for a hearing?
ACCUSED: No. I can't be bothered.
HIS HONOUR: So what do you want to do in relation to the damage charge?
ACCUSED: Get it over and done with.
HIS HONOUR: So that's a plea of guilty, is it? Okay, (indistinct) just to go with the officer, please.
ACCUSED: There's the proof where it's not damaged.
The Tribunal also notes the transcript of proceedings before Magistrate King dated Tuesday on 11 December 2012 (T10), wherein Mr Townley was convicted for “breach of violence restraining order” pursuant to section 61(1) of the Restraining Orders Act 1997 (WA), as follows:
HIS HONOUR: Mr Chilvers.
CHILVERS, MR: Yes. Appear for Mr Townley, sir. It's a charge of breaching a restraining order, and the position is he will plead guilty to it.
HIS HONOUR: Thank you. You're Raymond Charles Townley, is that correct?
ACCUSED: Yes, correct.
HIS HONOUR: Mr Townley, you are charged that on 11 November this year at Byford you, having been personally served with a violence restraining order, 2012, 00642, breached that order by communicating with the protected person by making physical gestures to him. Do you understand that charge?
ACCUSED: Yes.
HIS HONOUR: How do you wish to plead?
ACCUSED: Guilty.
HIS HONOUR: Just take a seat there, please.
PROSECUTOR: There is a previous record. The accused and the protected person are neighbours and reside on adjoining properties. On 12 October 2012 the accused was served with a violence restraint order. Not to communicate or attempt to communicate with the protected person or - which included SMS and text messages. At about 8.48 on Sunday the - 8.48 am, Sunday, 11 November, the accused was in his front garden, near the boundary of the protected person's front garden.
As the protected person reversed his vehicle out of his own driveway, the accused has gesticulated towards the protected person with the middle finger of his left hand and then used the left hand to beckon to the protected person. The accused, who was holding a long-handled shovel in his right hand, has swung the shovel with both hands in a threatening manner. The protected person observed the actions of the accused whilst reversing his vehicle as he was glancing over his left shoulder.
The protected person had the windows up in his car, and did not hear the accused. Those incidents were captured on CCTV. He participated in a record of interview and made certain admissions. Explanation, "He did it to me first." Costs are $66.
HIS HONOUR: Thank you. Mr Chilvers.
CHILVERS, MR: Yes, your Honour. Couple of things about the facts. He admits gesturing with his finger, in what's referred to as "the bird" and gesturing for the other person to come towards him in the course of a - you know, an event between them. He says that at the time he was digging out his water metre [sic]. He was out in his front yard. That's why he had the shovel. It's a new area; the earth had been built up. He was digging it out and putting brick paving around it.
He denies gesturing in any physical way with the shovel. Says he turned with the shovel in his hand. The other chap sees that as he's reversing out. So he's charged with communicating; he's not charged with threatening. He's pleading on the guilty on the basis that he has [sic] communicating ---
HIS HONOUR: Interesting form of communication, I think.
CHILVERS, MR: Well, it's a common form of communication, actually, so - but in terms of a breach, it - look, it's a - I said to him, “Look, it seems to be a breach, because it is a form of - you know, of communication, whichever way you read it.” You know, I mean a signal sent and received, I'm sure. He says that there's a little bit of a history of it, and I think you might have dealt with him when he was before the court on the last matter, which more or less arose out of the same series of events.
HIS HONOUR: So things haven't got any better between he and his neighbour.
CHILVERS, MR: Well, they have now improved, in that the neighbour has sold his house and gone elsewhere. The whole thing started, I think, when - I think the neighbour was there first, Mr Townley had a block next door. He says the neighbour has dumped his building refuse on his property. That went unremarked. There was then a further incident involving the neighbour - something about a channel dug along the side, some lawn that was dumped on another property, and it has gone back and forth and escalated.
The restraining order has been obtained by the neighbour, he has put in an objection which is coming up in April next year, something of that nature, but as I said, in the meantime the neighbour has moved on. So - you know, there's unlikely to be any further - you know, contact between them. He doesn't know where the neighbour he's not interested. He was aware that he had the restraining order. He says he was digging. His neighbour gave him the finger first, he replied.
He was then - his dog has gone on to the neighbour's lawn, that has sparked further - you know, reaction. The neighbour has said something. He said, “Well, you come on to my side - you know, if you want to complain about it.” The neighbour has reversed off, recorded it. You know, end of story. So look, he has got a terrible record. It's mainly - largely fairly minor things. He has got a bit of a - - -
HIS HONOUR: Although punctuated by a couple more serious matters.
CHILVERS, MR: Couple of serious ones, yes.
HIS HONOUR: But the rest have been - I notice he had a suspended imprisonment order for breaching a violence restraining order, but that's some time ago.
CHILVERS, MR: Some time ago, yes. There was - he tells me there was an incident where his partner's children were removed by the DCP, and that sparked an emotional time, so it might relate to that particular incident. But as you say, that's some time ago. He's 45, he's in employment as a truck driver. I think he earns around 1000 a week. My suggestion would be that it could be dealt with by way of a fine.
HIS HONOUR: I think he needs also to be aware of the recent amendments in relation to breaching these sorts of orders.
CHIVERS, MR: I did explain to him, and as I read those amendments - and a brief discussion this morning - that relates to breaching the same order repeatedly. So he has breached this one once, and it's unlikely again, given that the neighbour has moved on. Thank you.
HIS HONOUR: Mr Townley, could you stand please. It's simply not worth your while, getting involved in this sort of conduct. At the end of the day, it hits you in terms of either your hip pocket or more serious outcomes. I accept that this offence is unlikely to be repeated now. In the circumstances, you will be fined $600, with costs of 66.
Once you've got your fine slip you're free to go. Thank you, Mr Chilvers.
In its Statement of Facts, Issues and Contentions, the Secretary outlined a number of other incidents which, it was contended, reflected unfavourably on Mr Townley’s application for an MSIC. In that regard, the Tribunal notes the following submissions from the Secretary:
17.On 3 December 2014, the Applicant contacted AusCheck and spoke with AusCheck staff regarding his MSIC application. According to those staff, the Applicant was abusive and aggressive. The Applicant indicated that he had previously taken loaded shotguns to Parliament House and threatened to shoot a politician. This conversation was referred to AusCheck’s internal security unit and then referred onto the Australian Federal Police (T15 & T16).
20.On 17 December 2014, the Applicant telephoned an officer at AusCheck to discuss his criminal convictions. The AusCheck officer reported that the Applicant was aggressive and made a number of threats towards them (T15 & T16). This conversation was referred to the Australian Federal Police. The Applicant is reported to have said that he would "threaten to kill again to achieve what he wants", and also specifically threatened to "shoot another premier" and referred to the recent siege in Sydney as a means for achieving his goals.
In relation to this incident, the Tribunal notes the following information provided by an official from AusCheck (T15 at 64) dated 18 December 2014 as follows:
•Throughout the application process, Mr Townley has been in contact with AusCheck on a regular basis.
•AusCheck assessed Mr Townley's criminal history information according to the MSRO criteria in the MTOFSR Regulations. His conviction on 7 July 2005 "threats with intent to influence" was classified as an MSRO (criterion 2.22).
•In his conversations with AusCheck, Mr Townley has been quite agitated and aggressive. In a telephone conversation with the Policy Legal and Communication team, Mr Townley indicated that he has taken two loaded shotguns to Parliament House before (and alluded that this was related to his conviction for his MSRO).
•In a conversation with AusCheck on 3 December 2014, Mr Townley was abusive and very aggressive. He threatened to “shoot a politician and then see where I stand” -- this call was referred to the Department's internal security unit (DSU) and then referred on to the AFP.
•Mr Townley contacted AusCheck on 17 December 2014 to discuss his criminal convictions. He stated that his relevant convictions (his MSRO) related to threats to kill, rather than threats to influence, and that he would make those threats again if he needed to because that is the only way to achieve what he wants. He was erratic, moving quickly from one topic to the next. He spoke broadly about ‘knowing how to get justice’ and having no problem with ‘going to jail’ or being ‘killed by the government’. He also specifically threatened to 'shoot another premier’ and referred to the recent siege in Sydney as a means for achieving goals. This conversation was also referred to our DSU.
The Tribunal also notes the following email from another AusCheck officer dated 19 December 2014 (T15 at 63), as follows:
Following my email to you yesterday, I spoke to the officer in our team who has been dealing with Mr Townley as part of our usual weekly handover. The officer indicated that in addition to making specific threats to “shoot another premier” and making reference to the recent siege in Sydney, Mr Townley also made some broad threats to maritime security. We are unable to provide more specific details at this time, as the officer in question is on leave (he returns on 5 January).
The Tribunal also notes the following email correspondence (T16 at 68) from an AFP official dated 22 December 2014, as follows:
Thankyou for your call this afternoon. I can confirm that AusCheck did refer the matter to the attention of this office (AFP). As discussed Mr TOWNLEY made a number of comments which were of concern, In particular a veiled, not specific threat to “shoot a politician”. Although alarming, there was insufficient evidence to exceed the threshold to take any prosecutorial action. The matter was referred to our office in Perth, who have notified prominent MP's and VILA'S In Western Australia of the issue and provided general security advice to them. The AFP in conjunction with WAPol are still looking into the matter and are assessing what, if any, further action will be taken in relation to the perceived threats.
The Secretary also contended as follows in its Statement of Facts, Issues and Contentions:
21.On 12 January 2015, the Applicant contacted the Department of Infrastructure and Regional Development (the Department) and spoke to a Departmental officer regarding the request for additional information he had received from the Department. While talking to the officer, the Applicant was reported to have been aggressive (T17).
22.On 19 January 2015, the Applicant contacted the Department and spoke to a Departmental officer. According to the officer, the Applicant was aggressive and abusive while discussing the additional information requested by the Delegate (T19).
In relation to these submissions, the Tribunal notes a file note from the Department of Infrastructure dated 12 January 2015 (T17 at 70), as follows:
Mr Townley called to further discuss the request for additional information letter he received from the Department.
Sentencing Remarks
I advised Mr Townley that the Department had received his email advice he cannot afford the cost of obtaining the court transcripts that had been requested. I discussed with Mr Townley the importance of this information for the Delegate in the decision making process.
Operational need: Mr Townley stated that he did not currently have employment and therefore could not provide an operational need letter. He also stated that he could not get work without an MSIC. I informed Mr Townley that the Department may accept a letter from an employer stating that should he hold an MSIC that they would give him work.
Evidence of rehabilitation: with regard to the request for evidence of any rehabilitation that Mr Townley had undertaken he stated that ‘it has never happened and never will’. I asked Mr Townley to consider providing a statement to that effect in writing to the Department. He said he would.
Personal and/or professional character references: I reminded Mr Townley of the request for reference. He did not have anything to say on this.
Throughout the conversation Mr Townley expressed his dissatisfaction with the discretionary MSIC process. He stated that he did not mind returning to prison and that if he was not given a card he would return to offending. He also stated that by not having a card he would not be able to pay his mortgage. Mr Townley also made note of his opinion that the MSIC did not stop people gaining access to secure maritime areas. He also noted that he had been in contact with the Deputy Prime Minister's Officer to discuss his case.
Mr Townley, while talking, often changes topic and was aggressive in getting his point across, often swearing.
The Tribunal also notes the file note details of a telephone call from Mr Townley to the Department of Infrastructure and Regional Development on 19 January 2014 (T19), as follows:
Mr Townley called to further discuss the additional Information requested by the Delegate.
Mr Townley was quite aggressive arid abusive at the beginning of the conversation but calmed down after being told the call would be terminated if he continued in that manner.
Mr Townley questioned why the Delegate had sought information about his 2012 offences as they were not MSROs. He also wanted to know under what authority this information could be asked for.
I explained to Mr Townley that the Regulations allow for the delegate to seek any information that was considered to be relevant to his case and that as these offences had been committed while he held an MSIC and were of a similar nature to previous offences the delegate considered them relevant.
Mr Townley engaged in an argument on the validity of governments' ability to seek information from private citizens which quickly got off track from his application for an MSIC.
Once I was able to re-focus Mr Townley on his application he asked for more time to collect what had been asked of him, stating that he would need another month. I agree to extend the deadline until 22 February 2015. Mr Townley said he would apply to the courts for the requested transcripts, get a letter from an employer, would consider getting character references but that there was no evidence of rehabilitation as he had never done any.
The Secretary further contended in its Statement of Facts, Issues and Contentions:
23.On 30 January 2015, the Applicant provided the Department with a letter which purported to be from ARS logistics stating that he was employed by ARS logistics and had an operational need to hold an MSIC (T22).
24.On 28 March 2015, the Applicant contacted the Department and spoke to a Departmental officer. According to the officer, the Applicant asserted that he was employed by ARS logistics (T23).
25.On 18 May 2015, an officer from the Department spoke to ARS logistics. ARS logistics informed the officer that the Applicant was not, and had not been, employed by it (T24).
26.On 20 May 2015, ARS logistics informed the Department that the Applicant attempted to obtain a new operational need letter from ARS logistics and when refused, made threats towards persons and threats towards maritime infrastructure (including that he would “blow up the wharf”) (T27 & T29).
In relation to the above, the Tribunal notes the following email from an employee of ARS Logistics, Ms Ruth Marshall, to the Secretary (dated 20 May 2015)(T27 at 81), as follows:
Please call me urgently on my mobile on … regarding Raymond Townley asap as he has been here to see me and made many threats to myself and the wharf.
In relation to this issue, Mr Townley denied under cross examination that he threatened to “blow up the wharf”. He did, however, admit that he had acted aggressively towards Ms Marshall and that he had referred to her as a “slag” when speaking with her.
Mr Townley also denied that he had attempted to mislead anyone about his employment history with ARS Logistics. Mr Townley was adamant that he had worked for ARS Logistics and that he was going to work for them in the future. In that regard, he referred to an email record of a pay slip that, the Tribunal was advised by counsel for the Secretary, did display ARS Logistics branding and logo.
The Tribunal also notes the contents of an email from Rebecca Bariesheff to David McMahon and Adam Gladman dated 27 January 2015 (T20), as follows:
Mr Townley called and asked to speak with you, I advised him that you were back in the office on Monday 2 February 2015 and that he could call back then or that you would call him Monday 2 Feb. He continued to tell me that the bank is foreclosing on his mortgage and he wanted to say that he has applied for transcripts and that his boss is unable to hold his job open for much longer. He said that he needed his MSIC in order to pay his mortgage and that he was also facing other legal processes regarding a motor vehicle incident. I again told him that you would call him back next week and that I would inform my supervisor that he had called and he seemed fine with that. He was not rude or aggressive.
In relation to the content of the other non-ARS Logistics matters noted above, Mr Townley did not deny that he had had the conversations referred to. However, the Tribunal notes the following written statements provided by Mr Townley that seek to explain his behaviour or explain why he should be granted as MSIC.
The Tribunal notes in that regard an undated letter from Mr Townley to the Secretary in support of his MSIC (T7 at 33), which reads as follows:
I, Raymond Townley was involved in a marital dispute with my former wife’s cousin that was affecting the three children of the marriage. I went around to talk things over and it was at this point that things became heated. I was threatened and retaliated with threats. I was charged with intent and spent two years in Hakea Prison on remand. I faced court again and was placed on parole.
After some time I was able to gain employment in road transport and it was at this time I applied for and was granted my first MSIC card. I have turned my life around and have now been clean for seven years. I have remarried and built a house and I am no longer involved with certain parties from my-past. For me to be knocked back on my application for renewal on my MSIC card places my future in jeopardy as this card is an integral part of my employment within the transport industry.
The Tribunal further notes a letter from Mr Townley addressed to ‘Your Honour’, dated 17 August 2013 (T1 at 6), which reads as follows:
I Raymond Townley of … applied for MSIC, in October 2014 with Istop maritime Security Identification cards amount of $291. Then Infrastructure sent a letter 22 December 2014 requesting information of transcript of proceeding of my convictions of 7 July 2005 dealt with the District Court of WA. I obtain transcript email to Infrastructure Security then Armadale court has only got half of convictions sent so I go to Armadale Court has and get them to send whole lot of conviction script. It took 4 month for court house Armadale to get the transcript. Then on 19 May 2015 Infrastructure requesting Statutory Declaration so I sent a hard copy by mail and also a fax to Canberra ACT Transport Infrastructure. I went to Administrative Tribunal General Division and sent me dealth with in the court also Local Federal Don Randalls office Kelmscott.
It taken months, October 2014 till August not sort out denie my the card and I sent a letter for them to review and till notice of Decision to refuse of Maritime security cards. Sent 14 August 2015 received on the gmail 17 August 2015 take it Appeal.
When I was work 2010 – 2012 Qube Logistics. I obtained MSIC card and conviction on their then and still got the MSIC card on 7 Jul 2015.
Criminal History on 7 July dealth with District Court threats with intent to Influence. Maritime Security 2.22 Extortion, blackmail or racketing is already it nothing federal police and was dealth I did my time for that. I was issued cards MSIC 2010-2012 when work Qube Logistics
I had to get my Superfund released to pay my mortgage so I would some to live. As well as my wife took part of her Superfund to pay for Home Loan for arrears of amount $18,000.
I would like to be compensated for time to get paper work and time sending faxing. Still no answer refused the card most employers want in transport like you have the cards MSIC to enter ports and wharf have the cards to hold job transport. [sic]
The Tribunal also notes an email from Mr Townley to “ID Security” dated 13 December 2014 (T13), which reads as follows:
TO every it may concern I Raymond Townley had applied for a MSIC card back in year 2013 and had to go all throw this progress and delays which had then put my house mortgage with the bank into fore closer, The criminal record I have I agree with it, but there is one with 2.22 that is not on my criminal record . The threats with intent to influence was over a personal mater and not to do with a company or any other Government or the wharf so I am not a terrorist and threat to the country. SO I have again had to renew my MSIC cards and once again been knocked back and forced to go to Department of transport to get my cards, all of this has taken 2 months lost my job and bank has again fore closed on my mortgage as unable to pay it. So I need to sort this out to get my MSIC cards to get employment again matter of urgency. [sic]
The Tribunal also notes a Statutory Declaration from Mr Townley dated 26 May 2015 (T31 at 85), which reads as follows:
I filled in documents for onestop for msic cards in October 2014 and paid $291 between onestop, ozcheck and Infrasture wanted more information so I got more information for court house
It taken 4 months
My criminal convictions offence have nothing to do with maritime security. I done my time debt to society. In between one stop infrastructure given me a sentence. I had to get cards to obtain employment to pay my house mortage to live. The postion I appklied for at ARS was offered to me on the condition to obtain MSIC cards. The potion was unable to be held for four months for length of time.
To sercure another postion for a Job with Nathan Kalenge transport …, providing I obtain MSIC cards within three weeks.
Your urgent attention would be appreciated.
I have complied with the Law to get Stat Declation.
I had MSCI in 2009 when their were first introducted by Government. I had convictin then and this department was never involved.
This is the end of my declation. [sic]
In oral evidence, Mr Townley also provided details of his poor health and his life long struggle with the law and authority figures generally. He was incarcerated at a very young age and subjected to violence while incarcerated. He testified that had taken an anger management course of some sort after his Family Court proceedings. He admitted to having a short temper and anger issues but explained that much of this arose from his frustration with the police and legal system and the many injustices he had experienced throughout his life. To quote Chief Judge Kennedy (above), the evidence shows in that regard that “life didn't deal Mr Townley a particularly wonderful hand”. To be blunt, this gentleman’s life story evidences one set back after another. It is noted that Mr Townley expressed considerable concern to the Tribunal that if he is denied an MSIC, he would prefer to return to prison as this would be “the only option” left open to him.
CONTENTIONS
The Secretary made the following contentions before this Tribunal:
Summary of contentions
31.The Respondent submits that the Tribunal should affirm the decision to refuse to approve the issue of an MSIC to the Applicant on the basis that the Applicant is a threat to the security of maritime transport or an offshore facility, taking into account:
a.the serious and repetitive nature of his criminal offending (including offences committed since he was convicted for the maritime security relevant offence and the last occasion upon which a MSIC was issued to him);
b.the Applicant's aggressive and intimidating behaviour towards government officials and to people generally where he does not get what he wants;
c.the Applicant's lack of integrity evidenced by his apparent attempt to obtain a MSIC by providing false or misleading information to the authorities (including falsely representing that he was employed by ARS Logistics).
32.The power in regulation 6.08F of the Regulations to approve the issuance of an MSIC is conditional on the existence of a background check conducted by AusCheck which shows that that the Applicant has an “adverse criminal record”. As noted above, a person has an “adverse criminal record” if they have been convicted of a “maritime-security-relevant offence” and sentenced to imprisonment. As the background check performed by AusCheck shows that the Applicant has an adverse criminal record by virtue of being convicted and sentenced in relation to a “maritime-security-relevant offence,” the Tribunal must consider whether the person constitutes a threat to the security of maritime transport or an offshore facility having regard to the mandatory considerations contained in regulation 6.08F(5) of the Regulations.
Threat to security of maritime transport
33.The Respondent submits that the Applicant constitutes a threat to the security of maritime transport or an offshore facility. The factors that must be considered are specified above (see paragraph 8 above) and are relevantly addressed below.
The nature of the maritime-security-relevant offence
34.The offence is serious. It involves threatening to kill two men to prevent those men from providing evidence in Court.
Timing of the offence
35.The Applicant was convicted of this offence in 2005, prior to being approved to hold an MSIC on 14 February 2007 which expired on 29 February 2012.
The length of the term of imprisonment
36.The Applicant was sentenced to 18 months imprisonment suspended for 18 months.
Conduct since the suspended sentence imposed / other relevant factors
37.The Applicant has continued to offend since he was convicted of the maritime security relevant offence. He has been convicted of other offences whilst the holder of a previous MSIC (which was issued to him following an earlier regulation 6.08F review). These offences related to breaches of a restraining order, threats to injure, endanger or harm any person, and involved menacing conduct, including towards police officers. The transcript of proceeding before the Magistrates Court of Western Australia dated 30 October 2012 records that the Applicant threatened police as follows:
I will snap your legs if you piss me off. I will put my fist through your skull. You're pretty tough with your uniform but I can still put you on your arse. I'm licensed with deadly weapons outside Australia. I will show you what I can do. Get him out of here or I will kill him.
38.The MSIC Application process has demonstrated that the Applicant has continued to make threats to Commonwealth officers (and other persons, and maritime infrastructure) when he doesn't get what he wants or is frustrated by administrative processes. This is evidenced by paragraphs 20 to 26 above. The Respondent submits that this demonstrates that the Applicant has a volatile and unpredictable demeanour that makes him unsuitable to work in a position of trust and accountability (such as the maritime transport environment).
39.The Respondent submits that the Applicant's conduct demonstrates a disregard and disrespect for authority. The Respondent submits that his propensity to continue to engage in the type of conduct specified above presents a real threat to maritime security where law enforcement officers and other persons in authority are present. Those entrusted with an MSIC can operate in security sensitive areas subject to strict legislative obligations under the Act. The Respondent is concerned that, were the Applicant to hold a MSIC, he would present an unacceptable risk to the safe and secure operation of a port and the safety of its personnel.
40.The Respondent also submits that the evidence suggests that the Applicant may have acted dishonestly for personal gain by providing a false letter of operational need (see paragraphs 23 to 26 above). The Respondent submits that this is a further reason for the Tribunal to find that the Applicant presents a threat to the security or maritime transport and to exercise its discretion not to approve the issue of a MSIC to him.
Mr Townley did not submit a written Statement of facts, Issues and Contention to this Tribunal. He did, however provide a written statement via email dated 22 February 2016, which reads as follows:
I Raymond Townley I am writing in relation to decision made regarding my application there have many reference made to criminal code Regulations Legislation etc with my criminal convictions record. The simple fact of the matter that I am simply try to make a living being no threat to anybody whatso. Through this down out process I have lost employment opportunities which of course frustration on my part say things that I don’t mean. I am not a threat to the Wharf operations never will I be particularly concerning security is that I am permitted to enter Wharf operation areas when delivering empty containers while only being required to produce my drivers licence at Security While I regret practices in my younger years In no way should effect my application at this time. Moreover I have heald MSIC cards before both with no issues or problems. I have no choice but to pursue this to the fullest. In 2005 conviction I was charged intent two onflence. The two men 7 July 2005 were not at the court. [sic]
CONSIDERATION
As explained above, in determining whether Mr Townley should be granted an MSIC, the Tribunal is required to take into account the matters specified in sub regulation 6.08F(5) of the Regulations.
In relation to Sub Regulation 6.08F(5), the Tribunal notes as follows.
(i) the nature of the offences the person was convicted of
As noted above, a person has an "adverse criminal record" if they have been convicted of a "maritime-security-relevant offence" and sentenced to imprisonment.
It was not disputed before this Tribunal that Mr Townley was convicted of one maritime-security relevant offence as follows:
Offence Date Threats with intent to influence 7 May 2005
This offence is “a maritime-security-relevant offence” in accordance with Item 2.22 in Schedule 1 of the regulation – relevantly, Item 2.22: “extortion, blackmail or racketeering”.
(ii) if the person was convicted of this offence before becoming the holder of an MSIC
Mr Townley was convicted of the 2005 offence before becoming the holder of an MSIC. In that regard, it is noted that Mr Townley was convicted of this offence prior to being approved to hold an MSIC on 14 February 2007, with an expiry date of 29 February 2012.
(iii) the length of the term of imprisonment imposed on him or her
Mr Townley was sentenced to imprisonment for his one maritime-security-relevant offence (that being an offence related to “threats with intent to influence” dated 7 May 2005). He was sentenced to serve 18 months imprisonment.
(iv)if he or she has served the term, or part of the term - how long it is, and his or her conduct and employment history, since he or she did so;
This section is not relevant to this matter as Mr Townley’s sentence was suspended for 18 months.
(v) if the whole of the sentence was suspended, how long the sentence is, and his or her conduct and employment history
In relation to his 2005 maritime security related offence, Mr Townley was sentenced to serve 18 months imprisonment. That sentence was suspended by Chief Judge Kennedy.
Mr Townley explained during the hearing of this matter that he had recently worked for Kalenge Transport but that he had had an argument with that company which following an argument, which, according to Mr Townley resulted in criminal proceedings.
In relation to Mr Townley’s post-2005 conduct, the Tribunal notes in particular the 2012 incident with his neighbour and the criminal court proceedings arising from the altercation. These are discussed above and relate to the incident of 11 December 2012 (Breach of Violence Restraining Order) and the incident of 30 October 2012 (Threats to Injure, Endanger or Harm any Person (2 counts)), for which Mr Townley was convicted whilst holding an MSIC.
(vi) Anything else relevant the Secretary knows about
It is noted that Mr Townley previously held two MSICs, between 2007 and March 2014. The latter was granted following a Regulation 6.08F review of the sort conducted here.
In his reasons for refusal dated 24 June 2015 (T34 at page 93), Delegate Richard Farmer summarised the events surrounding ARS Logistics (discussed above at paragraph 44-48) as follows:
4.9.3The applicant provided a letter, fully cited at 2.1.11, from ARS Logistics, stating that he is employed by the company and has an operational need to hold an MSIC. According to the documents fully cited at 2.1.14, 2.1.15, ARS Logistics stated that the applicant was not, and has not, been employed by them. It is noted from the documents fully citied at 2.1.16 and 2.1.17, that the applicant attempted to gain a letter of employment from ARS Logistics and when refused, allegedly made threats towards persons and non-specific threats towards maritime infrastructure. It is further noted that within the Statutory Declaration fully cited at 2.1.18, provided by the applicant, that he claims he was denied employment at ARS Logistics due to the time taken to obtain an MSIC.
This serves as an accurate summary of the evidence before this Tribunal.
In relation to the ARS Logistics issue, it appears there may have been some sort of corporate restructuring in relation to ARS Logistics and that this caused some confusion on Mr Townley’s part. The Tribunal accepts Mr Townley’s statement that he was under the impression that he had been employed by ARS Logistics in some capacity and that he needed an MSIC in order to work for them in the future. The Tribunal does not find on the evidence, however, that ARS Logistics had in fact made any such commitment to Mr Townley – simply that Mr Townley was confused and, accordingly, was not attempting to mislead anyone about this issue.
The Tribunal also notes in relation to the above that Ms Marshall claims that Mr Townley acted aggressively toward her, made threats and “threatened to blow up the wharf”. In relation to this issue, Mr Townley denied under cross examination that he threatened to “blow up the wharf”. The Tribunal believes him. Mr Townley did, however, admit that he had acted aggressively towards Ms Marshall and that he had referred to her as a “slag” when speaking to her – behaviour that, based on the evidence, is consistent with Mr Townley’s pattern of aggressive behaviour and is completely unacceptable.
In relation to Mr Townley’s aggressive behaviour, Delegate Farmer also noted:
4.9.4While dealing with AusCheck and the Department, as per the documents fully cited at 2.1.7, 2.1.8, and 2.1.10, the applicant has allegedly been abusive, aggressive and threatening, to a point where officers at AusCheck referred his behaviour to the Australian Federal Police.
This also serves as an accurate summary of the evidence before this Tribunal. The fact that government employees felt it necessary to seek assistance from the Federal Police in relation to Mr Townley’s behaviour towards them is very serious indeed.
As the Tribunal finds that Mr Townley has “an adverse criminal record” by virtue of being convicted and sentenced in relation to a “maritime-security-relevant offence,” the Tribunal must now consider whether Mr Townley constitutes “a threat to the security of maritime transport or an offshore facility” having regard to the mandatory considerations contained in regulation 6.08F(5) of the Regulations outlined above.
In relation to the expression “a threat to the security of maritime transport or an offshore facility”, the Tribunal notes the analysis of that term undertaken by Delegate Pauline Sullivan dated 14 August 2015 (T1 at page 14) as follows:
6.2A threat to the security of maritime transport or an offshore facility is not defined in the MTOFSA or MTOFSR and therefore has its ordinary or natural meaning.
6.3In accordance with the Macquarie Dictionary (6th Edition), threat as far as is relevant, means “an indication of probable evil to come; something that gives an indication of causing evil or harm”. Security, as far as relevant, means “(1) freedom from danger, risk etc.; safety; and (2) protection from or measures taken against espionage, theft, infiltration, sabotage, or the like”.
6.4Referring to the MTOFSA, I note that under Section 11, paragraph (l)(a), the meaning of unlawful interference with maritime transport or offshore facilities includes “committing an act, or causing any interference or damage, that puts the safe operation of a port, or the safety of any person or property at the port, at risk”.
Against this background, the Tribunal finds that Mr Townley should not be granted an MSIC as he constitutes a threat to the security of maritime transport or an offshore facility. The 2005 offences for which Mr Townley received a suspended sentence are, as noted by the sentencing judge (the Chief Judge of the District Court), very serious. The justice system simply cannot function as it should if potential witnesses are threatened with violence and intimidated into not providing evidence in court proceedings.
While Mr Townley has only one maritime related offence and while this offence occurred 11 years ago, the Tribunal notes that there are other, also quite serious criminal offences recorded in 2012, an extensive criminal record overall, and a pattern of extraordinarily aggressive and threatening behaviour by Mr Townley directed at government employees and others.
Further, while Mr Townley claims to have undergone some sort of anger management training, there is no evidence before the Tribunal that this has had any impact on an extensive pattern of aggressive behaviour frequently demonstrated when Mr Townley is frustrated or does not get what he believes he is entitled to.
Mr Townley has endured considerable hardship throughout his life. The result is that he does not trust authority figures and often feels unable to express himself in ways that are not aggressive and/or emotive. This has resulted in an extensive criminal record of the sort that will, undoubtedly, make employment opportunities harder to come by.
While the Tribunal has considerable sympathy for Mr Townley, the Tribunal takes particular note of the importance of safeguarding maritime security in Australia. The Tribunal is satisfied on the balance of probabilities that Mr Townley does pose a threat to this security. Maritime facilities in this country simply cannot function safely and efficiently if persons with a criminal background and volatile temperament of the sort displayed here are granted an MSIC. Accordingly, Mr Townley cannot be granted an MSIC.
CONCLUSION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall .................[Sgd].......................................
Administrative Assistant
Dated 16 May 2016
Date of hearing 5 May 2016 Applicant In person (self-represented) Representative of the Respondent
Mr J Bird Solicitors for the Respondent Clayton Utz
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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Remedies
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