Barrett v Commissioner for Fair Trading

Background

1. The applicant applied to renew his contractor licence on 8 August 2019. He had previously been granted a licence on 17 August 2014.
2. 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.

Legislative framework

1. A person must not contract to do any residential building work, or any specialist work, except as or on behalf of an individual, partnership or corporation that holds a contractor licence authorising its holder to contract to do that work (s 4 of the Act).
2. Section 20 provides: "20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if - (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or (b) the applicant is a mentally incapacitated person, or (c) the applicant is disqualified by this Act or the regulations from holding a contractor licence, or (d) the Secretary considers that a close associate of the applicant who would not be a fit and proper person to hold an authority exercises a significant influence over the applicant or the operation and management of the applicant's business. Note. Under section 6 of the applied Act (within the meaning of section 19) an application for the grant of a contractor licence may be made by any individual aged 18 years or more, by any partnership or other association whose members are all individuals aged 18 years or more or by any corporation. (1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. (2) The regulations may fix or provide for the Secretary to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued. (3) The Secretary must refuse an application for a contractor licence if - (a) the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or (b) the Secretary is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do, or (c) the Secretary is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work of a kind proposed to be authorised by the contractor licence. (4) (Repealed) (5) A decision of the Secretary relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act. (6) Without limiting this section, the Secretary may refuse an application for a contractor licence if the Secretary is of the opinion that it is in the public interest to do so on any of the following grounds - (a) an employee or proposed employee of the applicant is disqualified from holding a contractor licence, has had an application for an authority refused on a ground relating to his or her character, honesty or integrity or has had an authority cancelled or suspended on any disciplinary ground, (b) there are reasonable grounds to believe that the application has been made with the intention of avoiding disclosure of any relevant past misconduct of the applicant or a close associate of the applicant. (c) (Repealed)
3. Section 83B provides: "83B Administrative reviews by Tribunal (1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2) The holder of an authority aggrieved by any decision of the Secretary to alter an authority or to cancel a provisional authority may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2A) The holder of a contractor licence aggrieved by a decision of the Secretary to suspend the contractor licence under section 22A, 22B or 61A may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (3) A person aggrieved - (a) by a decision made by the Secretary under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, or (b) by any other decision made by the Secretary under that Part that is prescribed by the regulations, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of that decision. (4) For the purposes of this section, the Secretary is to be taken to have refused any application that has not been withdrawn if the Secretary has not served on the applicant notice of the decision on the application - (a) within 40 days of its being lodged with the Secretary, or (b) if the Secretary and the applicant agree on a longer period - within the longer period after its being so lodged."
4. Under the legislative scheme, the Secretary represents to the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence: Davidson v Director General, NSW Fair Trading [2015] NSWCATAD 9 at [3].

The issues to be determined

1. 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.
2. 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.
3. 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.
4. The applicant served a custodial sentence between 7 August 2016 and 6 November 2017, then was on parole until August 2018.
5. 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.
6. 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.
7. 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."
8. 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.
9. 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."
10. 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

1. 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.
2. 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.
3. 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.
4. 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

1. 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.
2. 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

1. 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.
2. 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

1. 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.
2. 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).
3. 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.
4. 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