McDonald v SafeWork NSW (No 2) [2018] NSWCATAD 218

McDonald v SafeWork NSW (No 2) [2018] NSWCATAD 218

The Tribunal set aside SafeWork NSW's refusal because, although Mr McDonald's past conduct showed violence, disregard for public safety, disrespect for law and dishonesty, the evidence showed significant rehabilitation: no new violent offences, continued professional assistance, cessation of reliance on alcohol and drugs, candid and calm evidence, acceptance of responsibility, responsible management of a mechanical workshop, and improved insight into complying with law and regulation. The Tribunal was satisfied that he was over 18 and was now a fit and proper person to be granted a security clearance.

Jurisdiction
Australia
Judgment Date
18 September 2018
Procedural Posture
Administrative Review of Refusal of Security Clearance Under the Explosives Act 2003 (nsw) and Explosives Regulation 2013 (nsw) / Principal Judgment; Merits Review Hearing
Outcome
SafeWork NSW's decision was set aside and substituted with a decision that Mr McDonald is to be issued with a security clearance.
Legal Topics
['security Clearance' 'fit and Proper Person' 'criminal Convictions' 'rehabilitation' 'public Safety']
['administrative Law' 'explosives Licensing'] ['security Clearance' 'fit and Proper Person' 'criminal Convictions' 'rehabilitation' 'public Safety']

Case Brief

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Procedural Posture

Administrative Review of Refusal of Security Clearance Under the Explosives Act 2003 (nsw) and Explosives Regulation 2013 (nsw) / Principal Judgment; Merits Review Hearing

Legal Issues

  1. 1 ['Whether Mr McDonald is a fit and proper person to be granted a security clearance under cl 12(1)(b) of the Explosives Regulation 2013 (NSW).' "Whether SafeWork NSW's decision to refuse the security clearance should be affirmed, varied, set aside or substituted on merits review."]

Ratio Decidendi

The Tribunal set aside SafeWork NSW's refusal because, although Mr McDonald's past conduct showed violence, disregard for public safety, disrespect for law and dishonesty, the evidence showed significant rehabilitation: no new violent offences, continued professional assistance, cessation of reliance on alcohol and drugs, candid and calm evidence, acceptance of responsibility, responsible management of a mechanical workshop, and improved insight into complying with law and regulation. The Tribunal was satisfied that he was over 18 and was now a fit and proper person to be granted a security clearance.

Court Disposition

SafeWork NSW's decision was set aside and substituted with a decision that Mr McDonald is to be issued with a security clearance.

Orders

  • ["The First Respondent's decision that the Applicant is not a fit and proper person to hold a security clearance is set aside." 'In substitution the Tribunal determines that Mr McDonald is to be issued with a security clearance.']