Travers and Secretary, Department of Transport and Regional Services
[2007] AATA 1797
•24 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1797
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q 200700076
GENERAL ADMINISTRATIVE DIVISION ) Re REGAN TRAVERS
Applicant
And
SECRETARY, DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES
Respondent
DECISION
Tribunal Dr KS Levy, RFD, Senior Member Date24 September 2007
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and orders:
1. Mr Travers be granted an Aviation Security Identification Card (ASIC) under Regulation 6.29 of the Aviation Transport Security Regulations 2005; and
2. Conditions be imposed on the ASIC to be issued to Mr Travers as follows:
- the identification card be issued for an initial period of two years; and
- Mr Travers be subjected to drug testing during this initial period, at the discretion of the Secretary or his or her delegate, and at a frequency and at places reasonably directed by the Secretary or his or her delegate; and
- a report be provided to the Secretary as to Mr Travers’ good conduct and performance by his employer annually for the initial two-year period; and
- these conditions be lifted at the end of that two-year period, provided that there have been no positive drug tests, satisfactory performance and no further criminal convictions in that period; and
- if these conditions are not satisfied for the duration of and at the end of the two-year period, the Secretary should extend or terminate this probationary period as he or she sees fit.
..................[sgd]............................
Heather Baldwin
CATCHWORDS
AVIATION – aviation security identification card (ASIC) – applicant has an adverse criminal record – applicant is employed at a security controlled airport – Secretary has a discretion to issue an ASIC and impose conditions – decision under review set aside
Aviation Transport Security Act 2004 (Cth) ss 3, 35
Aviation Transport Security Regulations 2005 (Cth) ss 3.03, 3.08, 6.01, 6.28, 6.29Administrative Appeals Tribunal Act 1975 (Cth) s 37
Re Kevin Johnson and Secretary, Department of Transport and Regional Services [2006] AATA 573
Veen v The Queen(No 2) (1987) 164 CLR 465
Jackson and Hakim v The Queen (1988) 33 A. Crim. R. 413
REASONS FOR DECISION
24 September 2007 Dr KS Levy, RFD, Senior Member Introduction
1. Mr Regan Travers has applied for an Aviation Security Identification Card (commonly known as an “ASIC”). This application is sought so that Mr Travers can work in a secure area of the Cairns airport, where he is currently employed as an aircraft refueller. The application however, was rejected by the issuing authority, the Cairns Port Authority. This was necessary under the relevant legislation as Mr Travers has some criminal convictions which amount to “an adverse criminal record”. The issuing authority was therefore precluded from granting an ASIC. Provision exists for the Secretary, Department of Transport and Regional Services to reconsider the application and has a discretionary power to grant an ASIC. The Secretary declined to exercise that discretion. The Tribunal is now asked to review that latter decision.
Legislation
2. The Cairns airport, where the applicant works, is a “security controlled airport” under the Aviation Transport Security Act 2004(Cth) (the Act). The long title of the Act describes its purpose as “[a]n Act to safeguard against unlawful interference with aviation, and for other purposes”. That is replicated in s 3(1) of the Act which describes the main purpose of the Act. Section 3(3) of the Act prescribes that the role of the Secretary is to regulate aviation industry participants.
3.Regulations have been approved under s 35 of the Act (the Aviation Transport Security Regulations 2005). Relevantly, these are:
(i)A person entering a “secure area” must display a valid red ASIC (for an airside security zone) or a grey ASIC for a secure area, which is other than the airside security zone (Regulation 3.03(1));
(ii)For a person to be exempted from the requirements of displaying the relevant ASIC in a secure area, the Secretary’s exemption is required under Regulation 3.08;
(iii)Regulation 6.28(1)(d)(ii) precludes an issuing authority from authorising an ASIC where a person has “an adverse criminal record”. The latter phrase is defined in Regulation 6.01(2) and refers to an applicant having been convicted of an aviation-security-relevant offence and having been sentenced to imprisonment;
(iv)Regulation 6.29(5) empowers the Secretary to use a discretionary power to grant an ASIC to a person otherwise disqualified by Regulation 6.28(1)(d). Before the Secretary exercises a discretion to issue or refuse an ASIC to a person with an adverse criminal record, the following factors must be considered:
“(a) “the nature of the offence the person was convicted of; 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.”
(v)Regulation 6.29(6) empowers the Secretary to grant an ASIC under Regulation 6.29(5) and impose a condition (and notify the issuing body in writing of the condition).
Evidence
4. The Tribunal received documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975. There were also references provided in support of the applicant. At the hearing, Counsel for the respondent submitted a map of the Cairns airport to facilitate an understanding of the logistical considerations involved in a person having access to areas on the airside of the Cairns airport.
5. Mr Travers provided evidence by telephone and was not represented. Ms Helen Bowskill of Counsel appeared on behalf of the Secretary, Department of Transport and Regional Services.
6. The map of the Cairns airport tendered by the respondent was faxed to the applicant during the hearing, as it was not clear to the respondent or to the Tribunal prior to the commencement of the hearing that the applicant would not be appearing in person. The applicant confirmed that he had received the faxed documents (the map of the Cairns airport and the respondent’s submission).
7. The facts shown in the documentary evidence, and accepted by the Tribunal, were:
(i)The applicant was convicted of supplying a dangerous drug, which also involved a commercial element;
(ii)The applicant was sentenced to 12 months imprisonment, and that sentence was wholly suspended for three years from the date of conviction, 19 May 2005. Other related offences attracted a fine of $750.
(iii)The offences occurred when the applicant moved out of home and he rented premises with two other men, the latter two were involved in drug activities.
(iv)The operational period of the sentence remains extant, and will not be completed until 19 May 2008.
(v)No other criminal convictions in relation to the applicant have occurred either before or since the convictions on 19 May 2005.
(vi)The applicant has a number of good character referees. These were supplied by persons associated with him in the community, some of whom have known him most of his life. The references also indicate the support of his employer.
(vii)Mr Travers has a settled family life and now lives with his parents again.
(viii)The applicant is a qualified motor mechanic and also is qualified as an aircraft refueller. He has worked in the Cairns area all of his life. His father and grandfather were also motor mechanics and also aircraft refuellers, also in the Cairns area.
(ix)Evidence was received that the applicant principally works in the general aviation area. If issued with an ASIC he would then be able to go within any airside area of the airport, other than the domestic apron or the international apron. The latter would require the issue of a red ASIC to the applicant.
Submissions
8. Ms Bowskill referred to the statutory provisions. She also referred to Re Kevin Johnson and Secretary, Department of Transport and Regional Services [2006] AATA 573. She submitted that while each case must be viewed on its own facts, the decision in the present case was correct as the offences committed by the applicant were serious ones. She referred also to the report by the Right Honourable Sir John Wheeler, DL, who conducted a review of airport security for the Australian Government in 2005. It was noted in that report that at paragraph 4 of the Executive Summary (page ix) that:
“Terrorism and crime are distinct, but potentially overlap. At its most basic, a culture of lax security or petty criminality can provide opportunities for terrorists to exploit weaknesses in airport security. Staff can be bribed to ignore criminality or paid large sums to assist in drug trafficking or theft. Once compromised, such employees may be unable to stand up to terrorists. Any airport staff who are not thoroughly background checked and routinely searched are potential weak links.”
Consideration
9. I note the history of this matter and the circumstances surrounding the conviction of Mr Travers and the comments of Justice Helman in sentencing him to a wholly suspended term of imprisonment of one year. I am also cognizant of the reasons for rejection of his application for an aviation security identification card given by the original decision-maker.
10. It was submitted that the issue of an ASIC would not restrict his access to areas of the airport, other than the Domestic Apron and the International Apron. Access is controllable because of the regulatory requirements for a person to be issued with a valid grey ASIC or a valid red ASIC (Regulation 3.03), unless the person has an exemption under Regulation 3.08.
11. In arriving at a determination in relation to this application, one must be conscious of the issues to be taken into account under the Aviation Transport Security Regulations 2005 and with a heightened global awareness of security in recent years, particularly around airports and the aviation industry.
12. The purposes of sentencing in criminal courts are multiple: protection of society, deterrence of the offender and others who might be tempted to offend, retribution, and where possible, rehabilitation of the offender. These purposes intersect in many respects and they should not be regarded as separate and distinct from one another. The considerations which a sentencing court must take into account might often lead to dynamically opposed conclusions where one set of considerations might indicate a longer custodial sentence while other considerations might justify a conclusion towards a non-custodial or shorter sentence. (Veen v The Queen(No 2)(1987) 164 CLR 465 at 476.
13. In any event, courts take into account a balancing of these considerations and look at the offender and the circumstances of offending in their entirety. It will look at the offender's antecedent criminal history, particularly for the purpose of seeing whether the offence before the court is "… an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted." (Veen v The Queen (No 2) (supra) at 477 per Mason CJ, Brennan, Dawson and Toohey JJ).
14. Certainly, where there is a substantial period of time since the last conviction, a court may be persuaded to regard an offender, not as a recidivist, but as someone who has made a genuine attempt to be more law-abiding. In like manner, courts will regard reference to good character as being relevant and this is usually evidenced by the absence of previous convictions and by testimonials by persons who may reliably provide such assurances. This will be one mitigating factor which could be regarded by courts as significant and may result in one person receiving a non-custodial sentence for an offence which might otherwise attract a term of imprisonment, for example, where the offender holds a position of high public office (Jackson and Hakim v The Queen (1988) 33 A. Crim. R. 413 at 436).
15. In Johnson (supra), the applicant was 43 years old, and had “…four separate sets of convictions. In 1981, he was sentenced to five years imprisonment after being convicted of demanding money by oral threats. In 1986, he was convicted of possessing a dangerous drug for a specified purpose. He also faced two charges of resisting arrest. …..He breached his probation order in 1991 and was sentenced to six months gaol. His most recent conviction is in 1998. ….I accept the applicant’s conviction in 1998 was in respect of a serious and premeditated offence of dishonesty. ….The Secretary’s delegate noted the applicant – who is 43 – has been sentenced to a total of nine and a half years in prison in respect of his various offences.”
16. The circumstances of the present applicant can be distinguished from the case of Johnson. The sentencing judge was Justice Helman, a judge of very lengthy experience in criminal law in both the District Court and the Supreme Court in Queensland. His sentencing remarks note that Mr Travers’ age and lack of previous criminal convictions justified a wholly suspended sentence. He did so notwithstanding his reference to a commercial element in the offence. These matters are all relevant as to whether Mr Travers can now be regarded as being a risk to the community or to engaging in criminal behaviour again, and whether the regulations should apply to him more strictly. The present risk must be assessed in light of his behaviour also since his conviction.
17. Mr Travers clearly has aviation security relevant offences under the regulations. I note also that these offences were dealt with concurrently by the sentencing court and not as one offence following upon a previous conviction. The commercial element involved was the sale of amphetamines to a friend, and was part of a transaction which involved his two former flatmates. This was also in the context of a young man who had moved away from home and was living with two persons, at least one of whom appears to have been a poor example. He succumbed to some peer pressure in trying drugs and he had the misfortune to be associated with a person who was under surveillance by the police.
18. But the question I have to decide is what risk Mr Travers might now be if he was granted an ASIC and whether the circumstances of the offences suggest that he should not be granted such a card. He finished high school, became a motor mechanic and subsequently, he has become an aircraft refueller. The family history of that employment has been stated earlier. The applicant has also undertaken a variety of training. This is evidenced by a number of qualifications in the documentary evidence. For his age, his diligence and aptitude for hard work seems of a high order. He also seemed to have a good employment record since leaving school and he is now 29 years of age.
19. The circumstances of the previous offences and the record of Mr Travers’ work and family history does not suggest to me that he is likely to be a risk greater than any other person in the community. His convictions were at a time in his life which have been adequately explained and I accept the veracity of his account. He has a number of references from people in the community and his employers. He seems to have substantial support, at least from a character viewpoint. One of those references also indicates some difficulty in finding people who are qualified, reliable and willing to work, particularly in roles such as this in regional airports.
20. While reference was made to rejection of his application as potentially affecting his livelihood, I do not regard this as a significant consideration in making a determination under the regulations. I have noted the original decision-maker placed less weight on the references by the applicant's parents, as do I as a matter of law. However, having considered other references and statements of support, I think the references by his parents provide a context in which to assess the life and circumstances of this young man. That assessment indicates the likelihood of future stability and that the level of risk is likely to be low for future offending. There was also no evidence about his susceptibility to the risks quoted from the report by Sir John Wheeler DL, or any evidence of concerns about airport security, as also referred to in that report.
21. Having considered all the relevant factors, including the fact that the operational period of his sentence for the previous offences has not yet been completed and will not do so for some eight months, together with the weight to be placed on the references, I find that on the balance of probabilities, he is not likely to be any more risk than a law abiding person if I accede to the applicant’s request.
22. In reaching this conclusion, I have been conscious of the submissions of the Wheeler review and I have also taken into account that Cairns is an airport through which overseas drug trafficking or other offences might be channelled. Nevertheless, I have concluded that Mr Travers’ background, references and more recent pattern of life is not one which poses a greater risk to security of an airport than the average person in society. I therefore order that Mr Travers be granted an ASIC under Regulation 6.29 of the Aviation Transport Security Regulations 2005.
23. I do so however, consistent with Regulation 6.29(6). I therefore order that conditions be imposed on the ASIC to be issued to Mr Travers as follows:
- that the identification card be issued for an initial period of two years; and
- that Mr Travers be subjected to drug testing during this initial period, at the discretion of the Secretary or his or her delegate, and at a frequency and at places reasonably directed by the Secretary or his or her delegate; and
- that a report be provided to the Secretary as to Mr Travers’ good conduct and performance by his employer annually for the initial two-year period; and
- these conditions be lifted at the end of that two-year period, provided that there have been no positive drug tests, satisfactory performance and no further criminal convictions in that period; and
- if these conditions are not satisfied for the duration of and at the end of the two-year period, the Secretary should extend or terminate this probationary period as he or she sees fit.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD, Senior Member
Signed: .........................[sgd]............................................................
F Kamst, Legal Research OfficerDate/s of Hearing 30 July 2007
Date of Decision 24 September 2007
Applicant Mr Travers by telephone
Counsel for the Respondent Ms H Bowskill
Solicitor for the Respondent Legal Services Branch, Department of Transport and Regional Services