Barrett v Commissioner for Fair Trading

NCAT Occupational|2020-03-17

REASONS FOR DECISION

The applicant has sought a review of the respondent's decision to refuse to renew his contractor licence in the category of bricklaying under the Home Building Act 1989 (the Act). The licence was refused on the basis that the applicant was not a fit and proper person to hold a contractor's licence. The decision was confirmed on internal review.

Background

The applicant applied to renew his contractor licence on 8 August 2019. He had previously been granted a licence on 17 August 2014.
The reasons given for the refusal were that: 1. The applicant had been convicted of criminal offences in the past 10 years. 2. The applicant did not declare his criminal history on the application form when he applied to renew his contractor licence in 2014. 3. The applicant had not disclosed all the details of his criminal convictions on his most recent application form.

The issues to be determined

Pursuant to s 63 of the Administrative Decisions Review Act 1998, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all of the functions that are conferred or imposed on the administrator who made the decision, and may affirm, vary or set aside the decision. If the decision is set aside the Tribunal may remit the decision for further consideration to the respondent or make a new decision.
It is not in dispute that the applicant has a number of criminal convictions. The applicant's convictions cover a period between January 2014 and April 2017. The applicant is 27 years of age.
The convictions include: 1. Two charges of common assault, arising from an argument with a neighbour for which he was given two good behaviour bonds (18 months and 2 years) and one $1000 fine. 2. Two instances of destroy or damage property to the value of less than $2000, for which he was given one 2 year good behaviour bond and a 100 hour community service order; 3. One instance of entering inclosed land without a lawful excuse for which he was fined $100; 4. Two convictions for possessing a prohibited drug, for which he was fined $500 and imprisoned for one month; 5. A further charge of destroy or damage property for which he was imprisoned for 7 months with a 3 month non-parole period; 6. Two convictions for stealing property from a dwelling house, for which he was sentenced to 13 months imprisonment with a non-parole period of 8 months; 7. One conviction for aggravated entering a dwelling with intent knowing that people were there, for which he was sentenced to 2 years imprisonment with a 15 month non-parole period.
The applicant served a custodial sentence between 7 August 2016 and 6 November 2017, then was on parole until August 2018.
The Tribunal must determine whether the applicant is a fit and proper person to hold a contractor's licence. This involves considering whether the applicant is of good repute, having regard to character, honesty and integrity. If he is not a fit and proper person, the licence must be refused.
Section 25(1)(a) provides that in determining whether an applicant is a fit and proper person to hold a certificate, the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33 at 36 Toohey and Gaudron JJ stated: "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."
A person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. A contractor licence entitles a person to undertake residential building work or specialist work of the category nominated, in this case bricklaying. Such a contractor will be expected, given the requirements of the Act, to be of good repute and worthy of a certain level of trust.
The question of how the requirement of being of "good repute" relates to being "fit and proper" was considered by Principal Member Britton in Leclere v Commissioner for Fair Trading [2020] NSWCATAD 15: "In Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal, considered whether there was a difference between the notion of a person being "fit and proper" and being of "good repute" explaining at [13], [14]: This Tribunal has accepted that the requirements of 'good repute' and 'fitness and propriety' go to different aspects of a person's attributes. 'Repute' denotes the estimation in which a person is held by those who know him, and the wider community. Whereas, the question of whether a person is 'fit and proper' to hold an authority raises the question of the person's intrinsic moral character. It may turn out that a person is held in high esteem by the community but there are issues of intrinsic moral character, or underlying qualities of character, that disqualify the person from being granted a relevant licence or authority, especially when account is taken of the nature of the industry or occupation for which the authority or licence is sought. Equally a person may be held in low esteem, but be, in fact, a person of good intrinsic moral character."
To be regarded as a fit and proper person under the Act requires that that person fully understands the provisions of the Act and be prepared to observe its requirements. Regard must be given to the nature of the functions, obligations and duties which would arise under the licence (Taouk v Director General, NSW Fair Trading [2016] NSWCATOD 41 and Bejjani v Commissioner for Fair Trading [2004] NSWADT 262).

The applicant's criminal history

The applicant concedes he has a criminal history as outlined above. He stated that he is ashamed and embarrassed about it. He states that at the time of offending, he was separated from his family and taking drugs. He was addicted to the drug methamphetamine or "ice" for 12 months.
Being in gaol made him realise he did not want to continue on that path. He has not offended since he was sent to gaol. While in gaol he rehabilitated himself, by training, reading books, reopening contact with his family and completing educational courses offered by the correctional centre. He undertook the Gurnang Life Challenge for young adult offenders and completed the Equips Foundation and Addiction Programs while in custody.
During his parole period he said was tested for drugs but never tested positive. He did not have evidence of any drug test results. He said that he was not aware that he could ask for them. He did not re-offend while on parole.
He said he is no longer addicted and is now in contact with his family, is employed as a bricklayer and engaged to the mother of his son.

Lack of disclosure of criminal history

The 2014 application form was not in evidence but the applicant conceded he had not declared his criminal history on the form. At that time, based on the NSW Police Force criminal history, he had one conviction for each of common assault and destroy or damage property imposed in January of that year. He received a good behaviour bond for each offence.
Under cross examination he said that he did not realise how seriously Fair Trading treated this question. He said that for the contractor licence in 2019, he disclosed the most serious offences. The form shows that he disclosed the drug possession and break and enter convictions and his 18 month custodial sentence.

Whether the applicant is of good repute

The applicant provided character references from his fiancé, father and grandfather. His father stated that gaol had been a transformational experience for him. He notes that he is now calm in difficult situations. His grandfather said he had shown single-mindedness in gaining employment and supporting his family. His fiancé said that the relationship ended due to his drug issues, but believed that he was a changed person following his gaol term. She said he obtained work immediately upon his release, had not taken any drugs since his release and was the main provider for herself and their son.
He did not have a reference from his employer. He said he had originally obtained the contractor's licence at the request of a previous employer but it appears he did not use it. His current employer employs over 100 bricklayers and he now wanted to work for himself.

Consideration

The applicant's criminal history as a whole raises concerns about the applicant's fitness and propriety to hold a contractor licence. The main concerns are: 1. The offence of entering a dwelling with intent to steal knowing that persons were inside the dwelling is a serious offence which could cause fear and apprehension to members of the community; 2. While the applicant deserves credit for overcoming his drug addiction, there is no independent evidence such as a drug test result or letter from a medical practitioner to substantiate this; 3. He does not appear to have realised the importance of full and honest disclosure of his criminal history in demonstrating his honesty and good character; 4. Apart from the evidence from his family and the evidence that he is employed, there is no evidence of the applicant's good repute in the community, which is a necessary component under the Act.
The applicant has passed a period of 20 months without offending, which is in his favour. I accept the respondent's submission, however, that in the absence of reliable evidence to the contrary the Tribunal should not assume that the applicant is now a fit and proper person. The more serious the offences, the longer a period of time without incident is required to show reform (Farah v Director General, Department of Finance and Services [2013] NSWADT 198).
That is not to say that the applicant cannot demonstrate in the future that he is of good repute, or that he could not establish that he is a fit and proper person to hold a contractor licence after a further period of good behaviour has passed and with some evidence of his good character.
At the current time, however, on the available evidence, I consider that the refusal should stand.

Order 1. The decision to refuse to renew the applicant's contractor licence is affirmed. ********** 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 April 2020

Administrative Decisions Review Act 1998(NSW)

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