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 2004 ....................................................5
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 ........................13
www.worksafe.govt.nz
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Technical Guide: Decisions on Controlled Substance Licences
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:
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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 Zealand1. 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:
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1
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
This function has been delegated to specified staff positions within WorkSafe New Zealand.
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Technical Guide: Decisions on Controlled Substance Licences
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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
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Technical Guide: Decisions on Controlled Substance Licences
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:
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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
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Technical Guide: Decisions on Controlled Substance Licences
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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 2004. If they disclose convictions that are covered by the
Criminal Records (Clean Slate) Act 2004, the conviction will not be taken into
account.
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Technical Guide: Decisions on Controlled Substance Licences
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:
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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.
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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:
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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.
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Technical Guide: Decisions on Controlled Substance Licences
Note that:
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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:
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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
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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:
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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.
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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
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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.
2.
3.
Repeat infringements of a similar nature over a recent period of time.
Recent suspension of a driver’s licence that has resulted from
accumulation of demerit points.
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
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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:
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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.
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TECHNICAL GUIDE
DECISIONS ON CONTROLLED SUBSTANCE LICENCES
www.worksafe.govt.nz