Wiseway Logistics Pty Ltd and Secretary Department of Home Affairs

[2024] AATA 1033

Wiseway Logistics Pty Ltd and Secretary Department of Home Affairs [2024] AATA 1033 (30 April 2024)

AppID:Wiseway Logistics Pty Ltd and Secretary Department of Home Affairs

CitationNumber:    New

Division:GENERAL DIVISION

File Number(s):      2023/8442

Re:Wiseway Logistics Pty Ltd

APPLICANT

AndSecretary Department of Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:30 April 2024

Place:Sydney

Pursuant to subsection 40A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) the applicant’s request to issue summons to the Australian Postal Corporation and MSS Security Pty Limited are refused.

....................... ...[SGD]............................................

Senior Member A Poljak

Catchwords

Practice and procedure – request made to the Tribunal by the applicant to exercise its discretion under subsection 40A(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to issue summonses – Whether request is relevant to the substantive issues the Tribunal is yet to determine – Whether the Tribunal should exercise the discretion in subsection 40A(2) of the AAT Act to refuse the Applicant’s request – Request to issue summons refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Aviation Transport Security Regulations 2005 (Cth)

REASONS FOR DECISION

Senior Member A Poljak

30 April 2024

1. On 8 February 2019, the applicant, Wiseway Logistics Pty Ltd (Wiseway), was designated as a Regulated Air Cargo Agent (RACA) under regulation 4.43A of the Aviation Transport Security Regulations 2005 (Cth) (the Regulations) for a period of five years.

2. Wiseway has an extensive history of non-compliance and infringements from 24 May 2019 to 25 July 2023.

3. On 15 September 2023, Wiseway applied to renew its designation as a RACA. On 31 October 2023, a delegate of the Secretary refused to renew Wiseway’s RACA designation pursuant to regulation 4.43E(1)(b) of the Regulations so that, with effect from 8 February 2024, Wiseway is not authorised to handle, examine, or clear air cargo (the refusal decision). In its decision, the delegate said that Wiseway “have not demonstrated responsiveness to educative or administrative approaches on, and enforcement action has not proven to be an effective deterrent towards achieving[,] compliance”. In the delegate’s view, Wiseway “have not adequately demonstrated the capability and maturity to meet, maintain and make a meaningful contribution to the safeguarding of aviation”. The delegate also found that Wiseway’s recurring breaches “poses an unacceptable risk to aviation security”.

4. The applicant applied to this Tribunal for review of the refusal decision on 13 November 2023, and sought an expedited hearing of its application. Given the expedited nature of the proceedings, the applicant has filed a request to issue summons to the Australian Postal Corporation (Australia Post) and MSS Security Pty Limited (MSS) one week out from the commencement of the substantive hearing. This is not a criticism of delay. The summons request is in response to evidence only recently filed by the respondent in compliance with compacted directions. The timing of the request is merely noted, as if the summons is granted and issued, there may be some difficulties obtaining the documents before the commencement of the hearing.  

5. These interlocutory proceedings concern the respondent’s objection to the issue of the summons. The respondent seeks to have the summons set aside in full on the basis that the request to issue the summons are not relevant to the issues in dispute and are not for a legitimate forensic purpose.

6. Pursuant to subsection 40A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), a person may be summoned to appear before the Tribunal to give evidence, or to produce a document or other thing specified in the summons. The Tribunal has discretion to set aside a summons if it is irrelevant to or will not shed light on the issues in the proceedings.

   Summonses

7. The applicant seeks to following documents for production from Australia Post:

   1.    copies of all contracts for the provision of aviation security services to Australia Post in the past 5 years;

   2.    copies of all records in respect of money paid pursuant to any contract for the provision of aviation security services to Australia Post in the past 5 years;

   3.    copies of all documents in relation to any audits conducted by Australia Post of its provider of aviation security services in the past 5 years; and

   4.    copies of all records in relation to training of screeners of the aviation security service provider and any requests for those records made to the aviation security service provider by Australia Post in the past 5 years.

8. The applicant seeks the following documents for production from MSS:

   1.    copies of all contracts for the provision of aviation security services to the Australian Postal Corporation t/as Australia Post (Australia Post);

   2.    copies of all documents in relation to any audits of MSS Security Pty Limited and the aviation security services it provided/s, conducted by each of:

   a)    Australia Post;

   b)    the Department of Home Affairs;

   3.    copies of all documents in relation to the money received by MSS Security Pty Limited for the aviation security services provided to Australia Post.

9. I note that at the interlocutory hearing, the applicant conceded that paragraph 2(b) of the documents requested to be produced by MSS was too broad and accepted that it should be limited to documents related to Australia Post.

10. As for the reasons supporting the summonses requests, the applicant contends that an issue relevant to the Tribunals’ determination is the fact that a number of non-compliances issued to the applicant were based on the conduct of MSS and that the evidence of Mr Beaven, filed and relied on by the respondent, puts in issue what constitutes appropriate management of a contact by a RACA. Further the applicant contends that Mr Beaven gives an opinion as to a variety of actions which RACAs could take to manage the performance of their security providers, such as adequate supervision, regular meetings, regular reports, regular updates on performance, review of training, and auditing. The applicant contends that the opinions expressed by Mr Beaven in his evidence are based on his previous experience and contends that the most recent experience in this regard was as a manager of the provision of security services to Australia Post.

11. The applicant contends that the documents which the applicant seeks are expected the reveal the following matters:

    a)    The terms of the contract between other RACAs other than the applicant an MSS;

    b)    The extent of any non-compliance caused by MSS when providing security services to RACAs other than the applicant and in particular, Australia Post;

    c)    The actions which RACAs other than the applicant, and in particular, Australia Post, take to manage performance of MSS;

    d)    The actions which RACAs other than the applicant, and in particular Australia Post, take in relation to the training of screeners provided by MSS pursuant to contract.

    Consideration

12. The relevant issue for determination in the substantive hearing is the compliance of Wiseway with the Regulations and whether, on the available evidence, Wiseway’s designation as a RACA should be renewed and whether this is in the interests of safeguarding against unlawful interference with aviation.

13. At the interlocutory hearing, the applicant submitted that the language used by Mr Beaven throughout his written evidence speaks of “industry norms”; a “security culture” and “RACA compliance culture”. As already stated, the applicant contends that these concepts must be formed through Mr Beaven’s experience, most recently with Australia Post. The applicant seeks to challenge these concepts and contends that the summons requests have the potential to produce documents capable of shedding light on Mr Beaven’s own experiences and management of MSS.  

14. The applicant further contends that the respondent relies on the concept of “culture”, and training programs at paragraph 39 of its Statement of Facts, Issues and Contentions, which provides:

    A RACA should have in place and maintain at all times nominated security personnel with clearly articulated responsibilities (such as a compliance manager supported by trained staff), a security program, a security aware culture, a training program and a compliance program.

15. The respondent submits that the ideas of industry norms and security culture are not new concepts. The applicant’s evidence also refers to such ideas. Lisa Nunn refers in her statement dated 15 March 2024, to fostering a culture of security awareness within Wiseway via training, education and procedures…

16. I am not convinced that the documents sought are sufficiently relevant to shed light on the principal issues in dispute. The summonses requested by the applicant are for the purpose of obtaining evidence against a third party. Australia Post is not a party to these proceedings. The compliance history of Australia Post and its management of its contracts with contactors are not issues in dispute in these proceedings.

17. The comparison to the practices of RACAs other than the applicant is of little assistance as the principle relevant issue is the extent to which Wiseway properly managed its contract with its contracted service provider, MSS. This has nothing to do with Australia Post nor what MSS did as a contractor to Australia Post. The relevance of copies of records in respect of money paid pursuant to any contract for the provision of aviation security services to Australia Post is entirely unclear.

18. There is no clear submission about what evidence the summons requests are expected to produce. I have not been directed to any evidence which raises relevant instances or concerns with compliance by Mr Beaven nor Australia Post. As such, it appears to be no more than a fishing expedition. If the summons is essentially based on mere speculation that the person named in it has relevant material, it being seen as for the purposes of the hearing of a proceeding becomes more tenuous.

19. The evidence and opinions expressed by Mr Beaven, and to which the applicant takes issue, can be explored, and challenged during cross examination at the substantive hearing. Any question of weight to be given to such evidence can be a matter for submissions.   

    Decision

20. Pursuant to subsection 40A(2) of the AAT Act the applicant’s request to issue summons to Australia Post and MSS are refused.

21.                 I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

................................[SGD]........................................

Associate

Dated: 30 April 2024

Date(s) of Interlocutory hearing:	29 April 2024
Counsel for the Applicant	Mr T Brennan SC
Counsel for the Respondent	Mr H Bevan SC