Altmann v Commissioner for Fair Trading

Background

1. There is general agreement between the parties about the factual background leading to the decision by the Commissioner for Fair Trading to refuse to renew the certificate.
2. At the time Mr Altmann made his application to renew his tradesperson's certificate he had been found guilty of certain offences in both NSW and the ACT. On 25 May 2015 he was convicted on three charges in the ACT. Two of the offences occurred on 3 September 2014 when Mr Altmann used a Notice of Assessment from the Australian Taxation Office showing an ACT address to obtain an ACT drivers licence. He did not at that time reside in the ACT and, in fact, has never resided in the ACT. He was convicted of "Knowingly make false or misleading statement" and released on a good behaviour bond. He was also convicted of "Produce false or misleading document" and fined $750.
3. The third ACT offence occurred on 4 October 2014 when asked to provide identification by ACT Police, Mr Altmann produced his ACT drivers licence showing an ACT address. In relation to this offence he was convicted and released on a good behaviour bond.
4. On 20 May 2015 Mr Altmann was convicted of two NSW offences which arose out of him producing his ACT licence as identification to police on 1 November 2014. The convictions were for "Falsify/conceal identity with intent to mislead/deceive" and "Knowingly produce false/misleading document" and Mr Altmann was fined $1,000 in relation to each conviction.
5. After he made his application to renew his certificate, on 5 February 2018, Mr Altmann was convicted of the following NSW offences with which he had been charged on 7 February 2017 and which arose out of events which had occurred on 8 September 2016: 1. Steal dog 2. Assault occasioning ABH in the company of others 3. Assault person intend criminal activity of criminal group 4. Demand with menaces intend obtain gain/cause loss.
6. Mr Altmann was given an Intensive Correction Order in relation to the offences, that is, he was sentenced to a term of imprisonment which is to be served in the community. The Intensive Correction Order concludes on 4 February 2019.
7. The background to Mr Altmann's offending appears to arise out of his association with the Finks Outlaw Motorcycle Gang which, according to police, commenced in about September 2013. Information provided by NSW Police is that Mr Altmann became a full member of the Finks in Wagga Wagga in about October 2014 and, by August 2016, held the rank of Chapter Sergeant of Arms.
8. Police state that the February 2018 convictions arose out of an assault by Mr Altmann and two other Finks members on a Finks nominee at the direction of the Chapter President. The assault was apparently because the nominee had failed to follow Finks rules and was to be kicked out of the club. The police facts sheet states that it was Mr Altmann who punched the nominee in the face and it was Mr Altmann who took the nominee's dog. Information provided by NSW Police in an affidavit of Anthony Macken tends to show the incident was in keeping with rules and practices of the Finks when dealing with internal matters.
9. Mr Macken has provided evidence which shows that members of the Finks, like members of other Outlaw Motorcycle Gangs, engage in criminal activities and violence. He also states that it is difficult for a man to leave the Finks without risking physical violence and/or theft of property at the hands of other members. In general, the NSW Police state that the Finks is a group which poses a risk to the safety, welfare or order of the community.

Renewal application

1. When Mr Altmann filled out the application form to renew his tradesperson's certificate in December 2017, he disclosed, as required, that there were charges pending against him (the charges which resulted in the February 2018 convictions) but did not disclose, also as required, that he had been found guilty of any offences in the previous ten years.
2. Mr Altmann states that his non-disclosure of his prior convictions in relation to the address on the tax assessment and the ACT licence was a simple error. He states the previous convictions slipped his mind at a time when he was under considerable pressure because of the pending charges and because he had discovered his certificate has expired when he was about to start a new job. He states it was not his intention to deceive and points out that he freely disclosed the pending charges.
3. In relation to the previous convictions themselves, Mr Altmann states that he had intended to move to the ACT to live with his step-sister at the address on the ACT licence, but ended up changing his mind. He neglected to change his licence back to NSW.
4. In relation to the convictions which arose out of the 8 September 2016 incident, Mr Altmann told the Commissioner at the time his application was being considered that a friend owed him money and, when he demanded repayment, the friend went to the police and made a false statement alleging Mr Altmann had assaulted him. Mr Altmann stated that he plead guilty, primarily to avoid the costs of a trial. Mr Altman did not maintain this explanation at the Tribunal hearing.
5. Mr Altmann states, and the Commissioner accepts, that he has taken all possible steps to end his membership of the Finks. He has returned all club gear and clothing and does not attend any club meetings or functions. He states that it is a requirement that members seeking to leave the Finks must pay a fee of $10,000. Mr Altmann is trying to pay this fee on his limited income and, once it is paid, his withdrawal from the club will be final.

References

1. Mr Altmann has provided several references in support of his application to renew his tradesperson's certificate. Mr Reg Dury, who is the Community Corrections Officer who has been supervising Mr Altmann on the Intensive Correction Order, has provided two references in which he states Mr Altmann has complied with all of his obligations. In his view, paid employment is an important factor in Mr Altmann's rehabilitation and links to the community.
2. Mr David Kelly is the owner of the Goodyear business where Mr Altmann currently works, although not as a mechanic. He speaks highly of Mr Altmann's professional abilities and believed his recent convictions are out of character. He also states that if Mr Altmann does not get his licence back, he will not be able to continue to employ him. Two other business owners for whom Mr Altmann has worked in the past also speak highly of his skills and character.

Fit and proper

1. Under the Act the Commissioner may grant various types of licences, one of which is a tradesperson's certificate. Under s 26 of the Act, the Commissioner is not to grant a tradesperson's certificate to a person if the Commissioner is satisfied that the applicant is not a fit and proper person to hold a licence.
2. The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
3. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
4. These sentiments have been echoed in cases before the Tribunal and it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
5. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
6. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
7. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
8. As was pointed out in Saleh v Commissioner of Fair Trading [2015] NSWCATOD 68 at [17], the nature of the industry in which the person concerns wishes to operate affects a consideration of whether a person is a fit and proper person to hold a licence in that industry.
9. In Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [10] the Tribunal stated: The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. Thus the character, knowledge and experience that an application for a taxi-operators licence has to demonstrate in order to be considered fit and proper for that role, is different to the character, knowledge and experience required of a person who simply wishes to drive taxis. This is so because what is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake, as well as in accordance with [the] industry in which they will undertake that role.
10. The decisions in Saleh, Grenfell and the more recent decision of Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167 note the distinction that is drawn in the Act between the grounds for refusal of a tradesperson's certificate and a motor dealer's licence, motor repairer's licence or motor vehicle recycler's licence (ss 25 and 26). Similarly, the Act in s 27 imposes additional factors to be taken into account when assessing whether a person is a fit and proper person to hold a motor dealer's licence, motor repairer's licence or motor vehicle recycler's licence compared to a tradesperson's certificate. Although, it must be said, that the matters the Commissioner can take into account in assessing a person's fitness and propriety to hold any licence are not limited in any way (s 27(4)).
11. In Grenfell the Tribunal considered the effect of a past criminal record on a person's fitness and propriety and stated at [15]: The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation.
12. In Trombetta the Tribunal was considering the application by Mr Trombetta for a tradesperson's certificate as a motor mechanic in circumstances where Mr Trombetta had been found guilty in April 2017 of several serious offences. The Tribunal stated that the convictions were relatively recent but noted that there is no necessary period before a person convicted of serious offences can be considered to be a fit and proper person. The Tribunal went on to say: The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.

Submissions

1. The Commissioner points to the gravity of the offences committed by Mr Altmann. The offences concerning the ACT address on the tax return and the ACT driver's licence involved dishonesty, while those committed on 8 September 2015 involved personal violence and intimidation. Moreover, the Commissioner submits that Mr Altmann's association with an Outlaw Motorcycle Gang is a matter that should be taken into account when determining if he is a fit and proper person.
2. The Commissioner referred to the case of Mielczarek v Commissioner of Police, New South Wales Police Force and Commissioner for Fair Trading [2016] NSWCATAD 34 where at [87] the Tribunal stated: … the Commissioner, and the tribunal on review, must be entitled to take into account all matters that may bear on the questions of fitness and propriety, and public interest. The tribunal is not prevented from reaching the view that membership of an organization may weigh heavily, or decisively, on the questions of public interest and fitness and propriety … unfitness can be indicated by disregard for the law, including criminal conduct and antisocial behaviour and involvement with organizations that are known to have an adverse impact on the tattoo industry, such as OMCGs.
3. While Mielczarek was a matter concerning a licence under the Tattoo Parlours Act 2012, the Commissioner submits that a similar approach should be taken in relation to persons applying for a tradesperson's certificate under the Act so as to protect the public and consumers. In this context, the Commissioner points to one of the objects in the Act in s 3 being to provide enforcement mechanisms to prevent misleading or dishonest conduct and illegal dealing with motor vehicles and parts.
4. Mr Altmann states he does not have a significant criminal history and that his offending occurred only during the relatively short period he was associated with the Finks. He states that he knows that his conduct was inappropriate and criminal and states it would not have occurred but for his association with the Finks. Mr Altmann agrees that he should not have changed his address to the ACT and obtained an ACT licence prior to moving there. He points out that there is no suggestion he gained any benefit from this matter. He also notes that, at the time he produced his ACT licence to NSW Police as identification in November 2015, he had not been charged with any offences in relation to the licence and was not aware it was a matter of great concern.
5. Mr Altmann submits that the offences do not involve his work as a motor mechanic in any way and he had held a tradesperson's certificate from 2009 to 2017 without any disciplinary action being taken against him. He submits that his offences do not reflect on his ability to work as a motor mechanic.
6. The Commissioner notes that Mr Altmann failed to disclose his previous offences in the application to renew his licence and referred to the Tribunal's decision in Salhab v Department of Fair Trading [2018] NSWCATOD 122 where the Tribunal considered at [97] that failure to declare criminal convictions on an application for a licence is evidence of dishonesty on the applicant's part. The Commissioner states that Mr Altmann should have known it was his responsibility to check and provide accurate information.
7. In response, Mr Altmann states that he did not intend to conceal his prior offences and it was a simple error on his part in circumstances where he had just learnt his licence, which previously had no expiry date, had in fact expired and he was rushing to obtain a new licence in order to take up the employment offer from Goodyear. He points to the fact that he readily disclosed the more serious charges which at the time were pending against him. He states that these were foremost in his mind and he did not consider the other offences.
8. The Commissioner also drew attention to the fact that, when asked for further information, Mr Altmann denied that he in fact committed the offences of which he was convicted in February 2018 and sought to characterise them as a false case against him. In the Commissioner's view, this is an indication that Mr Altmann does not understand the seriousness of his offending and does not accept responsibility for it. Mr Altman no longer denies the circumstances of the offences and states that he has taken steps, including leaving the Finks, to distance himself from that period in his life.
9. The Commissioner submits that the way in which Mr Altmann dealt with his application goes directly to the question of his honesty and integrity.
10. The Commissioner also contends that a relatively short period of time has elapsed since Mr Altmann committed serious offences and, although the Commissioner accepts he is no longer a member of the Finks, he has not provided any compelling evidence as to reformation of character. The Commissioner acknowledges that there has been no more recent offending by Mr Altmann and notes that it is some time since the dishonesty offences. However, the Commissioner states that, as Mr Altmann is still subject to the Intensive Correction Order which does not expire until the beginning of February 2019, he currently has a strong motivation to be of good behaviour and it too early to assess whether he has in fact reformed and his good behaviour would continue in the future.
11. Mr Altmann states that, except for a period in 2016 where he could not work due to injury, he has worked all his life since leaving school and starting a motor mechanic's apprenticeship in 2005. He successfully completed his apprenticeship and in 2010 returned to TAFE to do his HSC. In 2013 he gained qualifications in pest management and worked in that industry from late 2011 to 2015. He is in a stable relationship and his partner has been accepted into a university course next year. He states he will not reoffend and points out he has never been refused bail or been given a custodial sentence.
12. In relation to his membership of the Finks, Mr Altmann states he has done everything to relinquish his membership that he can do. He is still required to pay an amount of $10,000 to the club and needs steady employment to be able to do this. Mr Altmann particularly drew attention to the two references from his Community Corrections Officer, Mr Dury, who attests to his progress towards rehabilitation. Mr Dury stresses that, in his opinion, paid employment is a protective factor and very beneficial to Mr Altmann's ongoing economic and sociological progress.
13. The Commissioner submits that little weight should be put on the references supplied as there is no evidence that the referees were aware of the precise nature of Mr Altmann's offending.

Consideration

1. There is no suggestion that Mr Altmann does not possess the necessary skills and qualifications to be a motor mechanic. Indeed, relevant referees speak very highly of his work skills. At issue is whether he is a fit and proper person to hold a tradesperson's certificate in the class of motor mechanic.
2. Mr Altmann did not give oral evidence at the hearing but provided a written statement. It is clear from his history that his period of offending was confined to the period he was associated with the Finks, from about 2013 to 2016. There is no information before me about why he was motivated to join the Finks and what knowledge he had of their activities, in particular, their criminal activities. It is clear, however, that he was very young at the time, being about 23 years old when he joined.
3. In Tromberro the Tribunal accepted that the significance of the offences involved in that case was less than it otherwise would have been if the applicant had been seeking a motor dealer's or repairer's licence. The rationale, which I accept, is that a dealer or repairer is running a business with the accountabilities and responsibilities that accompany such a business, while a motor mechanic is a qualified individual in the employ of a licensee (see Grenfell at [11]). It is in the context of his work as a motor mechanic that Mr Altmann's offending must be viewed.
4. The fact that Mr Altmann was a member of an Outlaw Motorcycle Gang is of concern and is a matter which could affect his fitness to hold a licence. Unlike in Mielczarek, where Mr Mielczarek continued to be a member of an Outlaw Motorcycle Gang and was so at the time of the Tribunal proceedings, Mr Altmann states he has left the club.
5. The Intensive Correction Order prohibits Mr Altmann from associating with those members of the Finks who were involved in the 8 September 2016 incident, but does not preclude him from any ongoing association with the Finks in general. However, no evidence has been provided of any ongoing contact or association with members of the club. I therefore accept that he is no longer a member of the Finks. I also accept that Mr Altmann has no intention of re-joining the club or again associating himself with an Outlaw Motorcycle Gang.
6. Mr Altmann has no history of offending other than during his relatively brief period of membership of the Finks. He otherwise has a clean record and a good employment history and is clearly well regarded by his former and current employers. As noted above, he joined the Finks when he was very young and, in my view, clearly lacked judgment at the time. I am satisfied that there is every expectation, having severed ties with the club, he will not reoffend.
7. I accept Mr Altmann's evidence that he did not intend to deceive the Commissioner by not disclosing his earlier convictions. His evidence that the application was made in a rush when he discovered his licence had expired, and that the more serious charges he was facing at that time were uppermost in his mind, led him to make a mistake and therefore not to the earlier matters, while not completely satisfactory, is understandable. His behaviour in seeking to characterise the later charges as a false case against him is, however, concerning and indicates he was prepared to be dishonest to gain his desired outcome of a renewed licence.
8. Mr Altman no longer seeks to maintain that he was not responsible for the crimes he committed. In my view, particularly taking into account the comments made by his Community Corrections Officer, Mr Dury, Mr Altmann now understands the nature and seriousness of his crimes and clearly wishes to follow a different path. He has a partner and a job and wants to resume his former occupation as a motor mechanic. Mr Dury's assertion that employment is an important factor in Mr Altmann's rehabilitation carries some weight.
9. The Commissioner stresses that a relatively short period of time has elapsed since Mr Altmann's offences and he is still subject to an Intensive Corrections Order. Mr Altmann has not offended since September 2016. His offending was confined to his period of association with the Finks and must be seen in that context. There is no indication in any of the material before me that there is any pattern of criminal conduct by Mr Altmann other than in that context. While it is true his offending was relatively recent, the issue is whether Mr Altmann can now be said to be a fit and proper person to hold a tradesperson's certificate.
10. Mr Altmann states that he should not be punished twice for his offences. That is clearly correct and, as noted in Trombetta, the issue is the protection of the public, not punishment for crimes committed. As a motor mechanic, Mr Altmann would not have any responsibilities for his employer's finances and, in reality, would have minimal contact with members of the public. The violent offences of which Mr Altmann was convicted did not involve violence towards any member of the public but related to a purely internal Finks matter. While that does not, of course, excuse his behaviour in any way, his past crimes do not indicate that he would pose a risk to customers with whom he might have some contact in the course of his work as a motor mechanic.
11. I am satisfied that allowing Mr Altmann to work as a motor mechanic would not pose a risk to customers, the public, his employer or other employees. I am satisfied he is a fit and proper person to hold a tradesperson's certificate in the class of motor mechanic.

Orders 1. The decision under review is set aside. 2. The decision is made that the tradesperson's certificate in the class of motor mechanic is granted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2018