DECISIONS ON CONTROLLED SUBSTANCE LICENCES

Transcription

1 TECHNICAL GUIDE DECISIONS ON CONTROLLED SUBSTANCE LICENCES Table of Contents Introduction...2 Work Assessment...3 Option 1 - Statutory Declaration...3 Option 2 Verification by a test certifier... 3 Fit and Proper Person...4 Introduction...4 Criminal Records (Clean Slate) Act General Considerations...6 Criminal History...7 Criminal Convictions...7 Group 1 Convicted to a sentence of imprisonment...7 Group 2 Convicted without a sentence of imprisonment...8 Pending Criminal Proceedings...8 Youth Offending...9 New Zealand Police Diversion Scheme...9 Court Orders...9 Domestic Violence / Protection Orders...9 Other Court Orders...10 Behavioural Issues...10 History of Violence, Drug and Alcohol Abuse...10 Infringements...10 Terrorist and Criminal Organisations...11 Allegations...11 Providing False, Misleading or Non-Disclosure of Information...11 Appendix 1: Summary of approach to decision-making

2 2 Introduction When setting the controls on a hazardous substance under section 77A(2)(b) of the Hazardous Substances and New Organisms Act 1996 (the HSNO Act), the Environmental Protection Authority (EPA) may require a licence for the possession of the substance to be obtained under section 95B of the HSNO Act. Regulation 6A of the Hazardous Substance and New Organisms (Personnel Qualifications) Regulations 2001 (the Regulations), specifies the requirements an applicant must meet in order to be granted a licence. These conditions require the applicant to: be 17 years or over; be a fit and proper person to possess the controlled substance; meet the relevant test certification requirements (which is the Approved Handler Test Certificate; deeming provisions for pilots; or D endorsement for transport of explosives); and require possession of the controlled substance to carry out his or her work. Decisions on licence applications are made by WorkSafe New Zealand 1. In order to provide process transparency for applicants and consistency of decisionmaking these guidelines have been published for use by the delegate. However, it is emphasised that the delegate has discretion in making decisions and can consider any issues not specifically mentioned in these guidelines, particularly an applicant s personal circumstances. These guidelines set out WorkSafe New Zealand s general approach to the fit and proper person (FPP) test, and the requirement for the possession of a substance to be needed for carrying out an applicant s work. The age requirement requires no interpretation as this is clearly set out in the legislation and there is no discretion. Approved Handler test certification requirements are not included as they do not relate specifically to licensing. It is WorkSafe New Zealand s policy to ensure that CSL holders remain fit and proper for the duration of their licence, and when it is being renewed. To achieve this, WorkSafe New Zealand may decide to: Set conditions on a licence, including the requirement to report any issues within the licence period; Revoke a licence on the basis of a concern, such as a new conviction in 1 This function has been delegated to specified staff positions within WorkSafe New Zealand.

3 3 the licence period; Not renew a licence; or Issue or renew a licence for a period shorter than 5 years. Work Assessment In order to hold a CSL the applicant must have a current and legitimate work related purpose for possessing a controlled substance (work includes voluntary work) at the time that they apply for a licence. In order to assess this requirement the following two options should be considered: Option 1 - Statutory Declaration A statutory declaration can be provided that the applicant requires the substance/s for work purposes. The statutory declaration must state: a. The name of the substance/s and the type of work the substance/s will be used for. b. The reason why they need to possess a controlled substance. c. Evidence of current or planned engagement in work, either: i. A statement that a letter from the applicant s employer is attached; or ii. A statement that a letter from the person the applicant is contracting for is attached; or iii. A statement from the applicant that they are self-employed and describes the work they do with recent examples; or iv. A statement from the applicant that the substance/s are to be used on their own property (e.g. a farm) for legitimate reasons. Option 2 Verification by a test certifier A test certifier, who has met the applicant, can verify that the applicant requires the substance/s for work. There are three main ways for the test certifier to do this. 1. The test certifier has sighted one of the following documents: a. A letter from an employer confirming the applicant s position and the requirement to have in their possession a controlled substance as part of their duties; or b. A letter from a prospective employer stating that an applicant is appointed subject to obtaining a licence; or c. Evidence of a current contract which requires the use of a controlled substance, or that a contract will be made subject to the applicant obtaining a CSL; or

4 4 d. Supporting documents which show that the applicant works for a business that manufactures, sells, stores or uses a controlled substance; or e. Official letters of support from a government agency or a recognised community organisation which state the applicant regularly undertakes voluntary work which requires them to possess a controlled substance; or f. Supporting references from a local Regional Council or Territorial Authority, or the Department of Conservation supporting the use of a controlled substance by a farmer who undertakes his or her own pest control; or g. Any other relevant information that an applicant may provide to demonstrate their work status. The test certifier must keep records of the information used to verify the work need so that it can be audited. 2. Where a farmer holds an existing CSL, references will not be necessary but the farmer must provide to a test certifier: a. proof of their current CSL; and b. proof of their continuing interest in a farm; and c. documentation that shows active use of the substance requiring a licence during the recent one year period, such as a GST receipt of purchase of the substances. 3. A test certifier has personal knowledge of the applicant s work status and makes a statement to this effect. Fit and Proper Person Introduction In general terms, a fit and proper person is a person of good character who abides by the laws of New Zealand and is likely to continue to do so while in possession of a licenced hazardous substance. Regulation 6B of the Hazardous Substances and New Organisms (Personnel Qualifications) Regulations 2001 lists the matters that must be considered when assessing whether an applicant is a fit and proper person. These matters are: the applicant's criminal history (if any), whether in New Zealand or overseas; any pending criminal proceedings against the applicant, whether in New Zealand or overseas; any protection order made against the applicant under the Domestic

5 5 Violence Act 1995; any other court order made against the applicant, whether in New Zealand or overseas, that is, or may be, relevant to the application; the applicant's behavioural history, including any history of violence, drug abuse, or alcohol abuse; any information collected in the course of a New Zealand Police investigation that relates to the applicant's conduct; any matters disclosed to WorkSafe New Zealand by the New Zealand Police in relation to the application, including any objection to the issue of a licence. WorkSafe New Zealand may give such weight to those matters as it considers appropriate. WorkSafe New Zealand may also take into account other matters that it considers relevant. WorkSafe New Zealand will normally ask the Police to conduct a check of the applicant s criminal, infringement and behavioural history, and provide an opinion as to whether the applicant is a fit and proper person to possess the substance concerned. WorkSafe New Zealand will consider the Police opinion alongside the other matters set out in Regulation 6B in reaching a decision on the applicant s fit and proper person status. A firearms licence is not considered to be an alternative to a Police check of these matters. Matters relevant to the FPP test for a CSL differ from those for a firearms licence. Any objection the Police have to the issuing of a licence will be given serious consideration in reaching a decision on whether to approve or decline an application. If WorkSafe New Zealand declines an application, the applicant may appeal the decision to the District Court under section 125(1A)(b)(ii) of the HSNO Act. Revocations The guidelines apply to both new applications and when considering revocations. Criminal Records (Clean Slate) Act 2004 Applicants do not need to declare convictions covered by the Criminal Records (Clean Slate) Act If they disclose convictions that are covered by the Criminal Records (Clean Slate) Act 2004, the conviction will not be taken into account.

6 6 General Considerations In deciding whether an application should be approved, the decision-maker should consider whether the negative factors, when balanced against the positive factors, bring into doubt whether the applicant will properly use or possess a controlled substance. A summary of the approach to decision-making as set out in this Guide is provided in Appendix 1. Further information When information is received that may be prejudicial to an application the applicant will be given a reasonable opportunity to comment on the information, unless disclosing the information would endanger the safety of the informant or any other person (in which case limited information will be provided) 2. If in doubt the veracity of any information/allegation will be investigated before any decision to approve or decline the application is made. Where there is prejudicial information, WorkSafe New Zealand will request further information from the applicant including a personal statement and supporting character references. Character references from employers are desirable and relevant where they demonstrate good character, such as helping others, being in a position of trust, or demonstrating reliability or responsible handling of hazardous substances. However, the applicant s requirement of the substance for work purposes is not sufficient to demonstrate that the applicant is a fit and proper person. The work requirement is assessed separately (see Work Assessment). To assess character relating to behaviour outside of work (for example, if the applicant has domestic violence offences), a reference from a person of standing in the community who knows the applicant may be preferable. For example: Registered lawyer Kaumatua Minister of religion Doctor Elected official Teacher. Note that references from local Police officers will not be accepted in support of an applicant s character with respect to an application that has been opposed by Police. 2 The Police may oppose an application and disclose the information for comment. Where Police oppose an applicant but are unable to disclose the information, the applicant will be given the opportunity to comment on the fact that the Police have objected.

7 7 If the applicant has a history involving drugs, alcohol and/or violence, WorkSafe New Zealand would take into account references and other evidence regarding the behaviour. For example: Proof of attendance of a rehabilitation programme or anger management course, Written supporting documentation from a suitably qualified professional, such as their doctor or support worker as relevant. Renewals WorkSafe New Zealand will give consideration to information available at the renewal stage. If no concerns have been raised during the preceding licence period, this may support their continued status as a fit and proper person. However, any new convictions, infringements or behavioural issues that have arisen during the licence period are likely to trigger WorkSafe New Zealand to reconsider the applicant s status. In those circumstances previous convictions are also likely to be relevant to the overall assessment. Any breaches of licence conditions will also be taken into account in the renewal process. Conditions WorkSafe New Zealand may apply conditions on a licence, and these may include conditions to address specific concerns with an applicant s fit and proper person status. For example, WorkSafe New Zealand may require an applicant to report anything to WorkSafe New Zealand that may affect their status as a fit and proper person. Criminal History Criminal Convictions Convictions are grouped into those that resulted in a sentence of imprisonment (Group 1) and those that did not (Group 2). Unless good reasons exist for not doing so, significant weight should be applied to the following types of criminal convictions. Group 1 Convicted to a sentence of imprisonment This group includes convictions involving a sentence, whether in New Zealand or overseas, to preventive detention or imprisonment. The applicant should demonstrate they have been successfully rehabilitated, and would normally be expected to have had no group 1 convictions for a period of 7 years from completion of the sentence to the time of the application.

8 8 Note that: if a sentence of imprisonment is served by way of home detention, it is still a prison sentence and is treated exactly the same as if it were served in a prison; and a sentence includes time spent on parole or subject to recall to prison. Group 2 Convicted without a sentence of imprisonment This group includes a conviction, whether in New Zealand or overseas, that did not involve a sentence of imprisonment. The applicant should demonstrate they have been successfully rehabilitated, and would normally be expected to have had no convictions for a period of 3 years from the date of the conviction to the time of application. Note: Suspended sentences that are not activated are not included in this section. This is because, unless the sentence is activated, a suspended sentence is essentially a community-based sentence. Traffic offences such as drink driving, reckless or dangerous driving are included in this group. Infringements such as speeding or driving without a licence, generally will not fit into this group (see Infringements below). Notes on group 1 and 2 convictions For both Group 1 and 2 applicants the decision-maker should consider evidence that demonstrates that the offences do not bring into doubt whether the applicant will properly use or possess a controlled substance. This evidence could include: i) A written submission from the applicant explaining the circumstances of the conviction and why the applicant considers a Licence should be issued; and ii) Supporting character references. Where convictions relate to a behavioural issue regarding the use of drugs or alcohol, or violence related actions, evidence that the applicant has successfully completed a rehabilitation programme related to the convictions would be taken into account. Pending Criminal Proceedings If the New Zealand Police advise that criminal charges are pending or that the applicant is under investigation, the application should not be processed until the matter has been finalised by the Courts or the investigation is completed. If the results of the charges or investigation are unlikely to be known in the near

9 9 future, a decision should be made on the facts available at the time. If this decision results in the application being declined, the applicant can be advised to re-apply at a later date. Youth Offending Offences committed when an applicant was less than 17 years of age, and were dealt with in the Youth Court, may be disregarded unless the offences were committed within the 3 year period immediately prior to the application. Where offences were dealt with in the Youth Court and were committed in the 3 years prior to application, the applicant should be requested to provide a written submission explaining why he/she considers a licence should be issued, explaining the circumstances of the offence, and it should be accompanied by supporting character references. The decision-maker should consider whether the offence/s brings into doubt whether the applicant will properly use or control a licensed substance. If the offences were dealt with in the District or High Court they will be treated as a Group 1 or 2 conviction as appropriate. New Zealand Police Diversion Scheme Applicants do not need to disclose if they have been the subject of a New Zealand Police diversion scheme. If the applicant discloses that they were charged with an offence but received diversion, the offence should not prevent the applicant from being considered fit and proper. Court Orders Domestic Violence / Protection Orders Significant weight against granting an application should be applied where an applicant has an undischarged protection order granted under the Domestic Violence Act 1995 against him/her. If a protection order has been discharged, the applicant should be asked to provide sufficient evidence to demonstrate that their behavioural history does not bring into doubt whether the applicant will properly use or possess a controlled substance. This evidence should include: a written submission explaining the circumstances surrounding the making of the order and why he/she considers a licence should be issued; and supporting character references from a person with standing in the community who has personal knowledge of the applicant.

10 10 Other Court Orders Any other relevant court orders may be taken into account. A court may make an order which may be relevant when considering if the applicant is a fit and proper person to hold a CSL. Where the order reflects on whether they will reliably and safely manage a controlled substance the applicant should be asked to provide evidence why their behavioural history does not bring into doubt that they would properly use or possess a controlled substance. Behavioural Issues Where an applicant has a history of violence, drug abuse, alcohol abuse, or other behavioural issues the overriding considerations are whether: these behavioural issues are relevant; and/or these behavioural issues will affect the likelihood of the applicant improperly using or possessing a controlled substance (e.g. will the applicant follow the controls). An applicant may provide evidence to support their application to show that they have successfully completed a rehabilitation programme in relation to their behavioural issue where this is appropriate; e.g. an anger management course in relation to a history of violence. History of Violence, Drug and Alcohol Abuse Information on an applicant s history of violence, drug or alcohol abuse would normally be obtained from the Police, but could be obtained from other sources. An applicant with a recent history of violence, alcohol and/or drug abuse is unlikely to be considered to be fit and proper. To demonstrate that such behaviour is no longer an issue, an applicant should provide sufficient evidence to demonstrate that their current history does not bring into doubt that they will properly use or possess a controlled substance. This evidence could include written supporting documentation from a suitably qualified professional, such as their doctor or support worker, which indicates that the applicant is now a stable person who will comply with the law and who is fit to possess a controlled substance. The applicant should also be asked to provide supporting character references. The overriding consideration is whether or not the applicant s history brings into doubt whether he/she will properly use or possess a controlled substance. Infringements Infringement offences are matters that are dealt with by way of instant fines rather than a court hearing and do not carry criminal convictions. For example, speeding offences, health and safety infringements issued by WorkSafe New

11 11 Zealand, and some fisheries offences. Infringements are not considered as part of the applicant s criminal history. However, they may indicate that the applicant shows a disregard for the law. Some examples of where this may occur are: 1. Repeat infringements of a similar nature over a recent period of time. 2. Recent suspension of a driver s licence that has resulted from accumulation of demerit points. 3. The applicant has received an infringement notice which relates to their possession or use of a controlled substance. If an applicant has had four or more infringements of a similar type in the previous two years, these may be taken to indicate a pattern of offending which may suggest a disregard for the law. However, the decision-maker should exercise judgement when applying weight to the unique circumstances of an applicant s infringement history (e.g. frequency, seriousness of offence). In these circumstances, the applicant should be asked to provide an explanation of why the infringements do not bring into doubt whether the applicant will properly use or control a licensed substance. The explanation should also cover any pattern of frequent repeat infringements. The applicant should be asked to provide a written submission explaining why he/she considers a licence should be issued, explaining the circumstances of the infringements. This submission should be accompanied by supporting character references. Terrorist and Criminal Organisations Information received from the New Zealand Police or from another organisation must be considered on the basis of whether the information brings into doubt whether he/she will properly use or possess a controlled substance. Membership of, or association with, a terrorist or criminal organisation would constitute a reason for Police to recommend that WorkSafe New Zealand decline an application. A decision on an application will be made on a case by case basis taking into account the Police information and view as well as any information received from the applicant. Allegations WorkSafe New Zealand may receive information from sources other than the New Zealand Police, e.g. a HSNO enforcement agency, which may be prejudicial to an application. Any decision on whether information is sufficient to decline an application will be made on a case-by-case basis. Providing False, Misleading or Non-Disclosure of Information Any deliberate provision of false, misleading, or non-disclosure of information

12 12 should be treated as an indication that the applicant is unlikely to be a fit and proper person. Any case where it is suspected that an applicant has provided false, misleading or non-disclosure of information should be considered on a case by case basis, when considering whether to approve the application. The decision-maker should consider whether the applicant: has an explanation for the false, misleading, or non-disclosure of information; and could reasonably be expected to know that the information was false or misleading, or whether it should have been disclosed.

13 TECHNICAL GUIDE DECISIONS ON CONTROLLED SUBSTANCE LICENCES