(b) in any case, not directly relevant to consideration of whether he should be granted a motor sales licence.

1. The respondent denies this and submits that the application should be dismissed for the following reasons:

(a) The convictions in question and the circumstances of those convictions were directly relevant to the situation, being the grant of the motor sales licence.

(b) The decision not to grant the applicant a licence did not constitute unfavourable treatment in the broader context of the legislative scheme.

(c) The grant or refusal of a licence does not constitute an authorisation or qualification for the purpose of entry by an applicant into a profession, trade or occupation.

1. In early October 2018, the applicant applied to the Commissioner for a motor sales licence. As part of that process, the Commissioner conducted a police record check of the applicant. The police check listed two convictions in 2017 for:

(a) destroy/damage property not exceeding $5,000 (property damage conviction); and

1. The convictions arose from two separate incidents.
2. The property damage conviction resulted from an incident in April 2016 in which the applicant engaged in an altercation with the driver of another vehicle. There is some dispute over the circumstances, but there is no dispute that the applicant threw a lump hammer at the other party's car, which was being driven the time. The lump hammer became embedded in the windscreen. The applicant was convicted of destroying/damaging property, contrary to section 116(3) of the Crimes Act 1900 (Crimes Act).
3. The conviction for common assault resulted from an incident in July 2016 in which the applicant again engaged in an altercation with another driver, during which he spat in the other driver's face**.** He was convicted of common assault, contrary to section 26 of Crimes Act and was placed on a good behaviour order, which expired on 15 April 2019.
4. The Commissioner had knowledge of the two convictions but not the full details of the offences. On 8 November 2018, an assistant manager in the Directorate that provides oversight of the administrative functions of the Commissioner emailed the applicant noting she was in the process of preparing a brief for decision on the application. She stated that she had not received detailed information in relation to the convictions, writing:

You have provided the statement of facts for the 2 offences ... but no further documentation such as your personal statement explaining any extenuating circumstances surrounding the offences and steps you have taken since to prevent such incidents from occurring again. Personal and work reference can also be submitted.

If you do not want to proceed with your application please let me know and I will have it withdrawn. Otherwise can you please advise whether or not you are providing additional information.

1. On 8 November 2018, the applicant replied and sent the Commissioner a document labelled "Personal Reference Statement". He had previously provided the same document in relation to an earlier application that had been withdrawn. In this document he wrote that:

I consider myself a direct and transparent person, for this reason, I'd like to decline the invitation to seek additional personal character references from friends and co-workers, any of these hand-picked associates can no doubt paint a colourful picture of me. Instead I'd prefer to represent a clear background on myself and the events in question.

1. In summary, the applicant made the following points about the broad circumstances of the offences:

(a) He had sustained a permanent injury to his lower back in 2016.

(b) He was unaware of the long-term effects of his injury at the time of the incidents.

(c) He was juggling a lot of commitments, including project managing the construction of a new house and was under a lot of stress and financial pressure.

(d) This resulted in a deterioration of his physical health and, in turn, his mental health.

1. The applicant then proceeded to make a number of general statements about his situation and to offer his personal reflections, of which the following are representative:

Metaphorically speaking, the overloaded ship had set sail and had now entered a storm en route to its destination and as I reflect on the events and how I handled them my only option at the time was to hang on to what I could as I embarked through this storm.

The injury I sustained on my back has slowed my life down considerably and made me reflect on my life. I am no longer the invincible young brave man I used to be ... But the hardest battle for me has been to not allow the negative notions of the subsequent criminal records imposed on me affect me mentally. I have been a law-abiding citizen ... Now I am labelled a criminal and have this stigma attached for the rest of my life.

[After recovering somewhat from my injury] I then set my sights on addressing some of the underlying issues that I needed to address, to help me become more calm and patient in all activities. I wish the road incidents never occurred, it was plainly triggered by the cocktail of negative events.

... I was also blinded by ego and pride ... I can now accept that I have learnt a lot about myself as a result, most important lesson I have taken on board is that people and events are powerless without your reaction.

I have addressed my issues, focussed on rebuilding myself and not fixating on the stigma of the criminal records against my name as a means of failure.

1. On 13 December 2018, there was a meeting of the Directorate's "Regulatory Advisory Committee" (RAC). This body is comprised of senior officers within the Directorate and provides oversight of the functions of the Commissioner, including making recommendations about granting licences under the Traders Licensing Act.
2. A briefing paper had been prepared for the RAC by officers within the Directorate. The briefing paper recommended that the license be refused because "[t]he convictions are fairly recent and do not demonstrate the behavior expected from people holding a Traders Licence". It would appear from the documentation that the RAC agreed with this recommendation. Following this meeting, a draft statement of reasons was prepared by an officer of the Directorate. The draft statement was provided to another more senior officer and was endorsed by the Executive Branch Manager of Licensing and Registrations at Access Canberra by email dated 21 December 2018.
3. Meanwhile, a letter was prepared notifying the applicant of the RAC's decision (decision letter). The decision letter was dated 18 December 2018 and signed by a delegate of the Commissioner (the delegate). The letter states that:

Section l 8(a) of the Act states that the Commissioner must consider suitability information about an applicant in deciding whether or not the applicant is suitable to hold a licence. This includes whether it is in the public interest to issue the licence...

[I]t was decided given the recent nature of your offences and that you are still under a good behaviour bond, not to issue you the licence...·

You are entitled to apply for a reasons statement ... in relation to the decision...

Section 49 of the Act entitles your application to be reviewed. This is a reviewable decision and you are entitled to have [it] reviewed by the ACT Civil and Administrative Tribunal. ACAT may review the decision and consider other factors that I may not have been aware of when making the above decision...

1. The statement of reasons was later provided to the applicant. The delegate appears to have been absent at the time it was finalised, and it is unclear whether he ultimately endorsed it. However, the statement appears to have reflected the position taken to the RAC by officers within the delegate's area, and he stated his agreement with it while giving evidence at the hearing. Accordingly, I am satisfied that the statement of reasons represents the reasons for the decision.
2. Those reasons for the decision, as per the statement of reasons, can be summarised as follows:

(a) The decision making had regard to the matters required to be considered under the Trader Licensing Act, including whether it was in the public interest to issue the licence (the relevant provisions are set out below).

(b) That the applicant had two convictions, and those convictions and their underlying facts were considered serious, especially as the property damage conviction "could have resulted in injury and death".

(c) The applicant was at the relevant time subject to a good behaviour order that had not expired.

(d) The applicant had not provided any written statements or evidence to indicate that he had taken any steps to "mitigate the risk of offending again".

(e) Based on the original application, criminal history checks and the statements of facts for each offence, a decision was made that it was not in the public interest to issue the licence.

1. The applicant contends, and I accept that, that whatever the other reasons for the decision, a reason for the decision to deny the applicant a licence was the fact of his convictions, how recent they were, and that he was subject to a good behaviour bond as a consequence of them.

The Discrimination Act

1. The Discrimination Act 1991 (Discrimination Act) protects people from being discriminated against because of a "protected attribute". The various 'protected attributes' are set out in section 7 of the Discrimination Act.
2. Discrimination can take two forms: direct and indirect. The applicant claims direct discrimination. Under section 8(2) of the Discrimination Act, direct discrimination occurs if a:

person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

1. In Prezzi and Discrimination Commissioner [1996] ACTAAT 132 (Prezzi) the Tribunal summarised the test for 'unfavourable treatment' as follows:

[Unlike equivalent legislation in some other jurisdictions], the Discrimination Act... does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person. [1]

1. And in Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64 as follows:

In other words, it does not ask: "were you treated less favourably than others?" It asks: "were you treated unfavourably?" This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is 'unfavourable treatment' and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[2]

1. The applicant claims that he was treated unfavorably because he had the 'protected attribute' of an 'irrelevant criminal record', as per section 7(1) of the Discrimination Act.
2. The term 'irrelevant criminal record' is defined in the Dictionary to the Discrimination Act as follows:

irrelevant criminal record_, in relation to a person, means a record relating to an offence, or an alleged offence, if - _

_(a) the person has been charged with the offence but - _

(i) a proceeding for the alleged offence is not finalised; or

(ii) the charge has lapsed, been withdrawn or discharged, or struck out; or

(b) the person has been acquitted of the alleged offence; or

(c) the person has had a conviction for the alleged offence quashed or set aside; or

(d) the person has been served with an infringement notice for the alleged offence; or

(e) the person has a conviction for the offence, but the circumstances of the offence are not directly relevant to the situation in which discrimination arises; or

(f) the person has a spent conviction or an extinguished conviction, within the meaning of the Spent Convictions Act 2000, for the offence.

1. The applicant argues that his criminal record is an irrelevant record by operation of subparagraph (e) of the definition because the circumstances of his two offences are not directly relevant to consideration of whether he should hold a motor traders licence.

1. Under the Discrimination Act, the applicant must establish that he possesses a protected attribute within the meaning of section 7 of the Discrimination Act. Therefore the onus is on the applicant to establish that he has an irrelevant criminal record. This is a jurisdictional fact[3], and this Tribunal only has jurisdiction to consider this matter if satisfied that the applicant does in fact have a protected attribute.
2. 'Irrelevant criminal record' is an unusual protected attribute when compared to the other protected attributes in section 7 of the Discrimination Act, because the attribute that is protected is not the possession of a criminal record per se, but rather the possession of a criminal record the circumstances of which are irrelevant to the situation in which it is or was considered. This is the only protected attribute that a person may or may not have depending on the surrounding facts and law.[4]
3. The question of whether the applicant has an irrelevant criminal record must therefore be considered first. To determine this, there are four questions that must be answered:

(a) Does the applicant have a conviction for an offence/offences?

(b) What are the circumstances of the offence/s for which the applicant was convicted?

(c) What is the situation in which the alleged discrimination arises?

(d) Are the circumstances of the offence/s directly relevant to the situation?

Does the applicant have a conviction for an offence?

1. As set out at paragraph 4 above, the applicant has two criminal convictions, both of which were known to the respondent at all relevant times.

What are the circumstances of the offences for which the applicant was convicted?

1. My factual findings are set out above. Drawing from those factual findings, I am satisfied that the 'circumstances of the offences' include:

(a) On both occasions the applicant engaged in what may broadly be described as 'road rage' altercations with a stranger.

(b) One of the incidents, the property damage offence, could have resulted in injury or death, but did not.

(c) The applicant reacted aggressively and inappropriately to challenging behaviors by another person; but

(i) the two incidents occurred relatively closely together and in a time of some personal stress for the applicant; and

(d) The applicant was subject to a good behavior bond, which carried immediate consequences should he fail to be of good character until its term expires on 15 April 2019.

1. Having considered the applicant's submission to the Commissioner, and heard the applicant's evidence at the hearing, I am also satisfied that:

(a) the applicant gave self-serving evidence about the circumstances of the offences to both the Commissioner and the Tribunal, providing disingenuous explanations designed to paint himself in the best light possible; but

(b) the applicant is aware that such conduct has serious ramifications and I am satisfied that, even if nothing else does, the threat of further penalty will reduce any risk that he will reoffend.

What is the situation in which the alleged discrimination arises?

1. The alleged discrimination arises in the context of the Commissioner making a decision whether or not to grant the applicant a motor traders licence under the Traders Licensing Act.
2. The applicant's position is that the statutory framework for the Traders Licensing Act, which is set out further below, expressly establishes which convictions are relevant, with the implication that consideration of any convictions or similar matters outside the scope of this framework would amount to consideration of an irrelevant conviction. The applicant further submits that consideration of other, unspecified offences should not be permitted where doing so would be contrary to the Discrimination Act. Finally, the applicant submits that the convictions are, in any case, not directly relevant.
3. The Commissioner argues that the Traders Licensing Act confers a broad discretion, including a requirement to consider 'the public interest', and this discretion is not narrowed by regulation. The Commissioner further submits that the applicant's criminal convictions are relevant to consideration of whether it is in the public interest to grant him a motor traders licence.
4. On either argument, the starting point is section 23 of the Traders Licensing Act, which provides as follows:

(1) If an entity applies for a licence, the commissioner must, within the decision­ making period:

(2) The licence may authorise the entity to carry on business in:

(3) The commissioner may issue the licence to the entity only if the commissioner is satisfied

(a) about the identity of each relevant person for the entity; and

1. Section 23 effectively provides that the Commissioner may only issue a licence if satisfied that:

1. It is 'suitability' rather than 'eligibility' that is the contentious issue in this case. There is no suggestion that the applicant is not 'eligible'.
2. Section 18 of the Traders Licensing Act sets out when an applicant is a 'suitable entity':

In deciding whether an entity is a suitable entity to hold a licence, the commissioner

(i) suitability information about the entity, and each relevant person for the entity, prescribed by regulation;

(ii) any information given to the commissioner under section 32 (Commissioner may request more information); and

(b) may consider whether the premises where the entity intends to carry out the licensed activity are -

(i) suitable premises for carrying out the licensed activity; and

(ii) premises that the entity is entitled to use.

1. In other words, in considering whether an applicant is a suitable entity, the Commissioner must have regard to two types of information:

(b) any information given in response to a request issued under section 32 of the Act.

1. The Explanatory Statement to the Traders (Licensing) 2016 Bill (Amendment Bill) explains that the purpose of sections 18 and 23 of the Traders Licensing Act is to set out a broad framework, pursuant to which detailed regulations could be made[5]:

Prescription by regulation is necessary in this Bill because of the number of different industries that the Bill applies to and will apply to in future. Flexibility, adaptability and customisation are necessary to ensure that the licensing of each industry can be sufficiently regulated, with regard given to balancing administrative efficiency with the public interest and other factors relevant for the specific industry. This is the second of the two areas that require this intervention.

1. Further to this, the 'suitability information' is prescribed in more detail in the Traders (Licensing) Regulation 2017 (the Regulation) as follows:
   1. Suitability Information-Act, s 18 (a) (i)

(1) Information about the following in relation to an entity is prescribed:

(b) a conviction or a finding of guilt for an offence under a relevant law;

(c) a conviction or finding of guilt for an offence involving fraud or dishonest conduct;

(d) a contravention of a licence condition for a licence issued under a relevant law;

(e) being refused a licence under a relevant law;

(f) having a licence cancelled or revoked under a relevant law;

(g) whether it is in the public interest to issue a licence to the entity,

(b) the operational Act/or the entity's trader category; and

1. The note[6] to section 7(1) states that a 'conviction' does not include a spent or extinguished conviction under the Spent Convictions Act 2000. The note does not mention 'irrelevant criminal records' or the Discrimination Act and there is no guidance in either the Discrimination Act or the Trader Licensing Act or Regulations as to how these provisions are intended to interact.
2. I am satisfied that none of matters in sections 7(1)(a) to (f) of the Regulations apply to the applicant. To the extent that the respondent's consideration of the applicant's application is limited to the considerations under the Regulations, then the applicant's criminal convictions may only be relevant to whether it is 'in the public interest' to issue a licence to the applicant under 7(1)(g). This is, in any case, the basis upon which the Commissioner says the applicant's application was refused, and the only basis upon which the Commissioner has contended that the convictions are directly relevant to the decision.

Are the convictions irrelevant because they are not included in the class of specified in the regulation?

1. The question here is: Are the convictions irrelevant because they are not included in the class of offences in the regulation, or can they fall within the 'public interest' aspect of the suitability test in regulation 7?
2. The starting point is to consider what 'the public interest' means.
3. The public interest test has its origins in administrative law and administrative decision making. It is well established that the test imports a wide discretion, albeit one that is confined by its context. As was observed by the Full Court of the High Court in The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379, 400-401 at [42]:

It is well established that, when used in a statute, the expression ''public interest" imports a discretionary value judgment to be made by reference to undefined/actual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is 'neither arbitrary nor completely unlimited" but is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view' (emphasis added)

1. Drawing upon this, the question becomes: what is the 'scope and purpose' of the Traders Licensing Act, and what public interest considerations fall within a decision made under it?
2. Unfortunately, the Traders Licensing Act does not include an objects clause. However, its purpose is self-evidentially to establish a regulatory framework for engagement in certain industries or occupations. Logically, the legislature must have recognised that there are risks associated with trading in these industries that need to be regulated, and that licensing is an appropriate means to do this. As such, the Traders Licensing Act is broadly analogous to other Acts that regulate occupations, albeit that the underlying concerns may be different.
3. In Commissioner for Fair Trading & Quinton [2011] ACAT 10 at [50] the Tribunal considered the public interest test in the context of the Security Industry Act 2003 (SI Act), which governs the licensing of security guards. The SI Act at that time listed a broad range of "relevant offences", including any offence under the Crimes Act 1900 and the Criminal Code 2002 and any offence under any corresponding Act. The Tribunal observed that_:_

The test that granting the licence has to be in the public interest is a high one. The fact that the Tribunal must in terms of our legislation take into account criminal convictions (although not traffic convictions) is a vital part of this equation. The law on this subject is quite clear (see, Walters J's observations in Sobey v Commercial and Private Agents' Board) which sets out the principles which regulatory bodies that granted licences have to take into account:

With this in mind, Parliament has constituted a Board which, in the exercise of its discretion to grant or refuse licences, has a duty to the community to be careful not to accredit any person as a licensee under the Act, unless he is worthy of public confidence and can satisfactorily establish his right to that credential.

1. Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 concerned the regulation of process servers and commercial sub-agents. Such persons, the Court noted, are:

[H]eld out as ... authorized to take some part in the administration of justice...and by reason of knowledge, skill, capacity, good fame and character can be safely accredited to the public.

1. The functions that a motor salesperson licensed to perform are somewhat different, and largely centered around the purchase and sale of motor vehicles and the conduct of a commercial business - activities that involve interaction with consumers who are purchasing a vehicle. Undoubtedly, in terms of making the business a profitable one, this requires a range of skills, but the Traders Licensing Act and Regulations do not appear to prescribe any education, experience or learning. Rather, in broad terms, there appears to be an emphasis on criminal convictions and regulatory compliance (although this is not stated in the Act).
2. The current licensing scheme was introduced to the Traders Licensing Act by way of the Traders (Licensing) Bill 2016 (Amendment Bill). The Explanatory Statement to the Amendment Bill provides, relevantly, that one of the goals of the new licensing framework was the introduction of a public interest test:

The Single Licensing Framework facilitated by the Bill aims to provide the community with a single coordinated point of regulation and enforcement delivered through the range of licensing, registration, education and compliance activities undertaken by Access Canberra for the four industries. In addition, the following measures are provided by the Bill to protect consumers and ensure licensing continues to remain in the public interest:

• introducing a public interest test in deciding certain elements of application;[7]

1. There is no substantive explanation of what kinds of matters would be considered under this test, but the human rights consideration in the Explanatory Statement sets out the purposes of the register of licences as follows:

The keeping of a register of licences works to allow consumers to search and consider the legitimacy of the trader they are purchasing goods and services from. This works specifically to protect consumer interests in verifying that a provider is appropriately licensed, where fair trading and trades practices protections can be relied upon, as well as where criminal activity is legally guarded against. Consumer protections serve many functions in a democratic society some of which include supporting a sustainable economy, ensuring sufficient quality of goods and services to prevent unacceptable risks of physical and/or economic harm to consumers. This is considered a sufficiently important objective (emphasis added).[8]

1. It would appear from this that consumer protection, the prevention of criminal activity and economic considerations are the key purposes of the licensing scheme. Preventing an "unacceptable risk of physical ... harm" is also stated as a relevant consideration, although no detail is given as to what kind of harm is envisaged. The sale of only safe, reliable motor vehicle is one way in which the Act may promote the physical safety of consumers, but the protection of consumers from potentially aggressive conduct may arguably be another.
2. Further, in relation to the suitability requirements, the Explanatory Statement to the Bill provides that character may be a consideration for licensing purposes:

The Bill introduces the concept of suitability in determining whether it would be appropriate to issue a licence to a particular entity. Suitability requirements are likely to vary depending on the particular industry trader category or trader classes (if any) applied for and may include such matters as the character of the entity, the suitability of the premises where the licensed activity is to be carried out and whether the entity is entitled to use such premises.[9]

1. Unfortunately, the term 'character' has several potential meanings, and is not immediately apparent whether the term is used here in terms of the personality or reputation of the entity, or the legal nature of the entity (eg. whether it is an individual or corporation). As such, this statement in the explanatory statement does not evidence a clear intention to introduce a 'character' test.
2. Prior to the Amendment Act, the licensing of motor vehicle dealers was governed by Part 2 of the Sale of Motor Vehicles Act 1997. This Act was significantly amended, and the licensing scheme reformed, by the Sale of Motor Vehicles (Amendment) Bill 1995_._ In introducing this Bill the then Attorney-General said:

For most consumers the purchase of a motor vehicle represents the most significant financial commitment they will make apart from the purchase of a home. It is essential, therefore, that consumers be properly protected when purchasing a vehicle and that the market operate efficiently and fairly.

The Sale of Motor Vehicles Act was introduced in 1977 to encourage fair trading amongst persons engaged in the selling of motor vehicles in the Territory. The Act provides for a Registrar of Motor Vehicle Dealers who may license persons to carry on business as licensed dealers. Under the licensing regime dealers are required to keep records of second-hand vehicles at the point of sale, maintain trust accounts and keep records in respect of all vehicles sold on consignment and contribute to a motor vehicle dealers compensation fund for the purpose of compensating purchasers of vehicles in certain circumstances.[10]

1. It is evident from these comments that the main purpose of the regulation scheme is consumer protection, in the sense of protecting the financial investments that consumers make when purchasing a vehicle. Consistent with this, section 7(1) of the Regulations requires the Commissioner to consider information about convictions for fraud, dishonest conduct or breaches of licensing laws. But what consequences does this have for the consideration of other convictions? What about a conviction for reckless driving, or for murder? Does the issue of protecting consumers extend to ensuring that they are dealing with persons of good character more generally?
2. The Commissioner says that the criteria does allow such consideration, and that in this case, the applicant's convictions were relevant to the question of whether it is in the public interest that the applicant be given a licence. There is, the Commissioner says, a public interest in protecting consumers from "heightened risks...for erratic behaviour"[11], or perhaps even from aggression more generally.
3. For his part, the applicant argued in reply that if the Tribunal were to allow the consideration of criminal convictions under 'public interest', the discretion in Regulation 7(a)(g) would import to the Commissioner "a power rendering the Discrimination Act nugatory, which , as a matter of statutory constructions, should not be preferred."[12] I do not accept this argument. The purpose of section 7 of the Regulations is to set out what must be considered when considering whether a person is a suitable person. The opening paragraphs (a) to (f) contains a specified list of information that must be considered. But nothing in those sections limits 7(1)(g). Information, including information about convictions, might be relevant to more than one category, and convictions may be relevant to other, identified public interests.
4. However, that does not mean that I accept that the public interest allows consideration of any criminal record that suggests a less than desirable character.
5. Having regard to the explanatory statement above, it appears that a broad 'public interest test' was intended as a way of ensuring a degree of flexibility and adaptability in considering whether an entity should be licensed. The 'public interest' includes both promoting consumer protection and protecting against criminal activity. Consequently, I am satisfied that the 'public interest' in the context of the Traders Licensing Act is the 'public interest' in supporting consumer protection, which embraces such concepts as a sustainable economy, ensuring sufficient quality of goods and services, and preventing unacceptable risks of physical and/or economic or other harm to consumers. Regulations 7(1)(a) to (c) identify offences that are clearly relevant to that test, but that does not mean that other offences may not be relevant to the consideration of whether it is in the public interest to issue a licence to an applicant.
6. In conclusion, I am satisfied that the legislative scheme permits, and indeed requires, the consideration of criminal convictions beyond those prescribed in section 7(1)(a) to (c), where the fact and circumstances of those convictions go to whether it is in the public interest to issue a licence to the applicant. The relevant areas of public interest are the physical and economic safety of consumers. This may include consideration of criminal convictions beyond those in the regulations.
7. What this leaves open is the question of how to reconcile the two Acts. I do not consider this an impossible task, although it does add a layer of complexity to administrative decision making, and reconciling the Acts requires a brief detour to consider the background to the Discrimination Act.

Can a conviction which is 'relevant' to the Traders Licensing Act be 'irrelevant' under the Discrimination Act?

1. The protected attribute of 'irrelevant criminal record' was inserted into the Discrimination Act by the Discrimination Amendment Bill 2016, following recommendations from the Review of the Discrimination Act by the ACT Law Reform Advisory Council (LAC). Prior to the amendment, the Discrimination Act protected against discrimination on the basis of a 'spent criminal conviction', defined by reference to the Spent Convictions Act 2000. A 'spent conviction' is, broadly, one that is no longer part of a person's criminal history. The Discrimination Act did not, at that time, prohibit discrimination against a person whose conviction was not spent, or was not capable of being spent, even if the conviction was for an irrelevant offence.
2. The LRC favoured adopting the approach taken in the Tasmanian Anti­ Discrimination Act 1998 and the Northern Territory Anti-Discrimination Act 1992 of protecting against consideration of 'irrelevant criminal record'. However, the LRC also considered the special circumstances of the Working With Vulnerable People (Background Checking) Act 2011 (WWVP Act). Ultimately, the LRC recommended as follows:

1. to replace the existing protected attribute of 'spent criminal conviction' and its definition with the protected attribute of 'irrelevant criminal record', defined in the same terms that both criminal history and non-conviction information are defined in the Working with Vulnerable People (Background Checking) Act 2011 (ACT)
2. so that the prohibition against discrimination on the basis of irrelevant criminal record is subject to the operation of the Working with Vulnerable People (Background Checking) Act 2011 (ACT).

1. While it is clear that attention was given to expanding the ambit of the protected attribute, from 'spent convictions' to 'irrelevant convictions' and from 'convictions' to any record relating to arrest, interrogation and criminal proceedings, it is not clear if any attention was given to the criteria for determining what constitutes a relevant or irrelevant criminal record. The only consideration of this issue in the explanatory material appears in a discussion relating to possible exceptions to discrimination including in relation to the operation or effect of other Territory laws:

The LRAC's recommended model does not create particular exceptions for different attributes or circumstances, but allows people to justify their conduct as a permissible limit on the right to non-discrimination. Consistently with this approach, an exception would not be made for working with children, but appropriate drafting can ensure that discrimination protection for this attribute is subject to the provisions of the Working with Vulnerable People (Background Checking) Act 2011. ...

[T]he existing provisions of the Working with Vulnerable People (Background Checking) Act 2011 operate to ensure that both criminal history and non-conviction information are taken into account when registering a person to work with vulnerable people. The continued operation of that regime would provide an important and necessary exception to the prohibition against discrimination on the basis of irrelevant criminal record. If other circumstances require discrimination then conduct can be justified, and an exemption can be sought[13]

1. The WWVP Act was clearly intended to be a special case, justified by the special vulnerability of the persons that legislation protects. But what happens in other cases?
2. Where I understand the problem to arise is in the space between what is a 'relevant consideration' in the context of administrative decision making, and a 'directly relevant' consideration under the Discrimination Act.
3. As a principle of administrative law, decision makers are required to take 'relevant' considerations into account.[14] There are considerations that a decision-maker must consider, having regard to the express terms of the legislation or the subject matter, scope and purpose of the empowering law.[15] Section 30 of the Discrimination Act provides that nothing in the Act makes unlawful anything done necessarily for the purpose of complying with a requirement of a Territory law, so a decision maker who is obliged to take something into account must generally do so, regardless of the Discrimination Act.
4. However, where the relevant legislation allows a broad discretion, the situation is more complicated. In such cases, it is generally for the decision maker to decide what is relevant.[16] As set out above, the public interest test in the Traders Licensing Act does suggest a broad discretion, at least in relation to matters that go to the public interest in consumer protection. But matters taken into consideration still have to be relevant, and in order to be relevant, there must be a reasonable and credible basis for the concern. In the context of this case, for a conviction to be relevant under the Traders Licensing Act, there must be a reasonable and credible basis for concern that the applicant's criminal record may compromise consumer welfare. Tenuous or an inferred connections which one strains to draw are not sufficient.
5. There is nothing in the Discrimination Act that conflicts with this. Instead what the Discrimination Act does is apply another test. In addition to be relevant to the decision, information about a conviction must be directly relevant in order to be permissible under the Discrimination Act. In effect, this appears to narrow the field of permissible considerations from those that are relevant, to those that are directly relevant.

Is the applicant's criminal record directly relevant to the circumstances?

1. The next question is whether the applicant's criminal convictions are not directly relevant to the circumstances in which they are considered. This is a question of mixed fact and law, but the factual element is a question of jurisdictional fact - if the applicant does not have the protected attribute, the Tribunal cannot adjudicate this matter. The applicant bears the onus of proof.
2. As noted above, the test for the existence of a protected attribute that depends on the context is different to the other tests for a protected attribute under discrimination law. Hence, in Pereira v Commissioner of Police[17], Commissioner Rice observed in relation to the similarly worded Northern Territory Act:

...to refer to the attribute as an 'irrelevant' criminal record is unhelpful drafting, as it incorporates into the definition an evaluation of the circumstantial status of the record ...it is the occurrence of those circumstances which renders the record 'irrelevant'.

1. The question in Pereira was whether the relied upon criminal record actually existed - that is, it was the existence of the record that was in doubt. There is no doubt in the present case that a criminal record exists, the only question is whether or not the record itself was 'directly relevant'. I have been unable to find any previous case that has considered what test to apply in the present circumstances.
2. There is definition of 'relevance' in the Discrimination Act, and therefore the ordinary meaning of the world should be considered. The Macquarie Dictionary defines 'relevant' to mean:

bearing upon or connected with the matter in hand; to the purpose; pertinent

Adverb- 1.. in a direct line, way, or manner; straight.

1. without delay; immediately.
2. presently; soon absolutely; exactly; precisely.

Conjunction- 5**.** as soon as: directly he arrived, he mentioned the subject.

1. The question, therefore, is whether the circumstances of the offences for which the applicant was convicted absolutely or precisely bear upon the question of whether it is in the public interest that the applicant be licensed as a motor vehicle trader. This is an objective test - the circumstances in which the decision is made are relevant to this question, but belief of the decision-maker is not.
2. As a starting point, the Australian Human Rights Commission has issued guidelines on the operation of a prohibition on the consideration of criminal records found in the Australian Human Rights Commission Act 1986 (Cth)[18]. The Commonwealth legislation has a different structure to that in force in the Territory, as it includes a prohibition on discrimination in employment, but also a defense that the conviction is relevant to the 'inherent requirements' of the position. Still, notwithstanding the differences, the guidelines do provide some guidance. They provide relevantly as follows[19]:

The type of information which an employer may need to consider when assessing the relevance of a person's criminal record includes:

• the seriousness of the conviction or offence and its relevance to the job in question whether in relation to the offence there was a finding of guilt but without conviction, which indicates a less serious view of the offence by the courts
• the age of the applicant when the offences occurred
• the length of time since the offence occurred
• whether the applicant has a pattern of offences
• the circumstances in which the offence took place, for example if it was an offence that took place in a work, domestic or personal context
• whether the applicant's circumstances have changed since the offence was committed (for example, past drug use)
• whether the offence has been decriminalised by Parliament or it was an offence overseas but not in Australia
• the attitude of the job applicant to their previous offending behaviour
• references from people who know about the offending history.

1. These considerations are not dissimilar to the decision matrix established under the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2018 (No 1). Both set out what may broadly be described as 'common sense' principles about what one can infer about risk on the basis of a criminal record or criminal conviction.
2. I consider the following to be relevant to these considerations:

(a) The convictions were serious, although certainly not among the most serious.

(b) The applicant was driving at the time of the offences, and it is foreseeable that the applicant may need to drive vehicles as part of the role of a vehicle salesman.

(c) The offences occurred in the context of dealing with difficult people, and the applicant may need to deal with difficult people as a vehicle salesman.

(d) The incidents did not occur in the context of a sales pitch or customer relations activities or other activity directly relevant to the role of a salesman.

(e) The applicant's offences occurred when he was an adult.

(f) The offences occurred less than two years before he applied for the licence.

(g) The applicant was still subject to a good behaviour bond at the time he made the application for a licence.

(h) The two incidents occurred within four months of each other, but such conduct has not been repeated and there has been no pattern of inappropriate or criminal activity.

(i) The applicant has not provided satisfactory objective evidence as to what has changed in the period since he committed the offences. Instead, he provided a subjective statement, and declined to provide character references.

1. The Commissioner has submitted that I should draw further inferences from the circumstances of the offences, including:

(a) The convictions disclose a propensity for emotional dysregulation and acts of violence to persons and property which is directly relevant to the conduct of a licence holder and the safety of consumers and others in the motor vehicle trade.

(b) The convictions disclose propensities the possession of which by a licence holder will undermine public confidence in the integrity of the motor vehicle trade.

(c) The Commissioner was correct to be concerned about the need for further explanation.

1. The respondent offered no expert evidence to support the first or second contention, and I am presumably meant to draw the conclusion that the applicant has such a propensity from the fact of the convictions. I cannot do so. At the highest, I can draw the conclusion that the applicant may have a relatively 'short fuse' when under stress, and that he may be particularly vulnerable when that stress arises from a traffic or road incident. Possibly, there is a greater risk of an altercation with a dissatisfied customer. However, I must also view the two incidents in the context of these being but two incidents over the course of a lifetime, neither of which involved an interaction with a customer, client or colleague.
2. Still, even if I accept that the applicant has a propensity to emotional dysregulation when under stress, I do not necessarily accept that this is directly relevant to the question of whether he should be excluded from a career in sales, or in the motor industry. The applicant must engage with society, he needs to work and hold down a job, he needs to interact with society at large when going about his daily business. In order to find these convictions directly relevant to consideration of whether the applicant should be permitted to work this area, I need to consider whether there is something about the role and functions of a motor vehicle salesman that could present a risk to the physical or economic harm to a customer, and whether there is something about the applicant's convictions that may enhance that risk. In other words, is there anything about being a motor vehicle salesman that would increase the general risk to the public that the applicant poses because of his past conduct?
3. The delegate's response to this question, put to him by his counsel, was that the regulation of the profession of a motor vehicle salesman was a matter of public safety:

_MR HANCOCK: Why is it important that you think about public safety? - _

DELEGATE: Because safety is - safety is everybody's responsibility and particularly when you're in a position where you are a decision-maker granting a licence. The way that Access Canberra assesses safety is that they balance, I guess, the risk and public safety versus the likelihood of an event happening, and what experience has shown us as a regulator is that when people have taken steps to change their behaviour and have engaged in the help of professionals or support groups or other mechanisms that exist, that the propensity for the behaviour is mitigated and that the person can continue on in normal life. Now, in terms of safety in this context, we didn't see sufficient evidence that the granting of the licence would be necessarily safe for total strangers to be interacting.

MR HANCOCK: What did you understand to be - that statement to mean, that, 'The convictions do not demonstrate the behaviour expected from a licence holder.'?---Well, I think that that statement refers to the fact that, the nature of the convictions, the violent and unpredictable nature of the predictions and the fact that they occurred relatively recently, makes the motor trader's licence inappropriate.

By whom - if you understood that sentence, by whom is the expectation; whose expectation is this?---The public. So if you're going to - if you are interacting with any trader that has got a licence, you don't expect the person to have a propensity for violence or unpredictable behaviour in fairly fluid situations, which is what I would call moving in and out of traffic.

Why is that an important thing? Why is it here an important thing, this expectation of the public?---Well, it's here because if we don't take that into account then we're not being a responsible regulator.

A responsibility to?---The care of duty that we have to the general public.

1. I accept the delegate's argument that there is a public interest in ensuring that consumers who purchase motor vehicles are protected from unnecessary risks. While I consider these risks to be primarily financial, I accept that there may also be public interest in protecting consumers from persons who present a genuine physical or emotional risk them. However, I am not satisfied that the mere fact that the applicant has the convictions gives rise to a reasonable basis for reaching the conclusion that the convictions mean he has a propensity for violence or that he presents a greater risk to consumers. I am satisfied that there is no direct link between the circumstances of the offences and a risk to the public interest in consumer protection or public safety.
2. Consequently, I am satisfied that the respondent has taken into consideration an irrelevant criminal record. This means that applicant has the protected attribute of 'irrelevant criminal record' for the purposes of section 7(1) of the Discrimination Act.

Was the applicant treated unfavourably because of his protected attribute?

1. Pursuant to section 8(2), the respondent will have discriminated against the applicant if it:

(b) because the applicant had a protected attribute.

1. The respondent declined to grant the applicant a licence. Plainly, this was an unfavourable action.
2. The respondent suggested that because the applicant had an alternative means of review available through administrative review, and he did not avail himself of that review opportunity, there has been no 'unfavourable treatment' by the respondent. I do not accept this argument. The applicant has remedies under both statutory frameworks and was entitled to choose which he commenced proceedings under.
3. The next question is whether that treatment was because of an irrelevant criminal record. Presidential Member Spender set out the test for causation in the case of Kovac v Australian Croatian Club Limited [2014] ACAT 41 as:

Whether the applicant's [protected attribute] is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment... so in determining whether the respondent [in that case] has treated the applicant unfavourably... the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or are insubstantial.[20]

1. The question before the Tribunal is whether the unfavourable treatment was 'because' of a protected attribute. It does not need to be exclusively or solely because of that protected attribute.
2. The delegate gave evidence about reason for the decision. Unfortunately, his evidence was unreliable. He said he recalled, and gave an account of, his active participation in a key meeting of the RAC which he later admitted he did not attend at all. However, as set out above, I accept the documentary evidence that is before the Tribunal as to the reasons for the decision, including the statement of reasons adopted by the delegate. That statement of reasons is clear that the applicant's criminal convictions were a substantial, if not the substantial, reasons for the decision.
3. Accordingly, I am satisfied that the applicant was treated unfavourably because of his irrelevant criminal record.

1. The remaining question is whether the Commissioner is a 'qualifying body' pursuant to section 16 of the Discrimination Act. This provides:
   1. Qualifying bodies

_It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person - _

(a) by failing to confer, renew or extend the authorisation or qualification; or

(b) in the terms or conditions on which it is prepared to confer, renew or extend the authorisation or qualification; or

(c) by revoking or withdrawing the authorisation or qualification or varying the terms or conditions on which it is held; or

(d) by subjecting the person to any other detriment.

Note The Legislation Act, dict, pt 1 defines fail to include refuse.

1. The Discrimination Act is to be interpreted in a beneficial and not in a narrow way. Section 4AA of the Act expressly provides that the Act must be interpreted in a way that is beneficial to a person who has a protected attribute.
2. The respondent is empowered to confer licences under the Trades Licensing Act. The applicant argues that the licence is an 'authorisation' to engage in the occupation of a motor trader. There is no definition of 'authorisation' in the Act, so regard should be had to the ordinary meaning of the term. An 'authorisation' is defined in the Macquarie Dictionary as:

noun the act of authorising; permission from or establishment by an authority.

1. In order to work in the occupation of motor vehicle trader, the applicant must be licensed. To trade without a licence would be an offence under section 45 of the Traders Licensing Act. Section 45(1) - (2) of the Licensing Act provides that:

(b) is not licensed to carry out the licensed activity.

(a) carries out a licensed activity at premises; and

(b) does not hold a licence authorising the person to carry out the licensed activity at the premises.

1. In other words, it is an offence to carry on a licenced activity without a licence. A licence is an authorisation to do something that is otherwise prohibited.[21] This provision leaves little doubt that a licence is an authorisation.
2. In terms of whether the applicant is engaged in an 'occupation', the ordinary meaning of that term is: "noun 1. one's habitual employment; business, trade, or calling."
3. I am satisfied that the applicant wishes to engage in the business of trading in motor vehicles as his habitual employment. In any case, and given section 4AA of the Discrimination Act makes it clear that the legislation should be interpreted beneficially, no purpose is served by taking an unduly or technical interpretation of the term 'occupation'. I do not need to consider whether the applicant may also be engaging in a trade.

1. The intention of the amendments to the Discrimination Act are clear: a person's criminal conviction should not 'hound' them for their whole life, keep them out of employment, or cause them to be subject to discrimination or disconnected from employment, other aspects of public life, or the chance to earn money.[22]
2. The Traders Licensing Act requires consideration of whether the granting of a licence is in the public interest. That Act establishes a statutory framework under which there is a range of relevant considerations. However, the Discrimination Act provides that where one of those considerations is a criminal conviction, it may only be considered if the offence is directly relevant to the situation in which it is being considered.
3. In this case, the question was whether the applicant's convictions were directly relevant to the question of whether the applicant should be licensed to perform the role and functions of a motor vehicle trader. I am satisfied that neither conviction meets this test. Consequently, by taking those convictions into consideration, the Commissioner has discriminated against the applicant on the basis of an irrelevant criminal record.
4. Obviously, the need to consider whether a conviction is not just relevant, but directly relevant, places a greater regulatory burden on decision makers. I note that under section 30 of the Discrimination Act, the Discrimination Act does not make unlawful anything done necessarily for the purpose of complying with a Territory law. It is open legislature to refine the statutory scheme to make it clear that what criminal offences may be considered.
5. The matter is relisted on for submissions on remedy.

[1] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]

[2] Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64 at [7]

[3] Pereira v Commissioner of Police NT Anti-Discrimination Commission (15 August 2012)

[4] See above Pereira v Commissioner of Police NT Anti-Discrimination Commission (15 August 2012); Rees et al Australian Anti-Discrimination and Equal Opportunity Law, 3rd ed, (Federation Press, 2018) at [10.7.7].

[5] See Traders (Licensing) Bill 2016, Explanatory Statement of June 2016 at page 11

[6] The note is not part of the Act but can be used for interpretation.

[7] Traders (Licensing) Bill 2016, Explanatory Statement page 2

[11] Transcript of proceedings, 29 October 2019 page 117, lines 36, 38

[12] Applicant's submissions at [21b]

[13] ACT Law Reform Advisory Council, Review of the Discrimination Act 1991, Final Report ACTLRAC 3

[14] Eg. a failure to take into account a 'relevant consideration' may be a ground for administrative review under the Administrative Decisions (Judicial Review) Act 1989, see section 5(2)(b).

[15] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 36

[16] Australian Retailers Association v Reserve Bank of Australia (2005) 148 FLR 446, 577 at [525]

[17] Pereira v Commissioner of Police NT Anti-Discrimination Commission (15 August 2012)

[18] AHRC, On the Record, See https://www.humanrights.gov.au/our-work/human-rights-record-contents

[19] Chapter 5, recruitment: https://www.humanrights.gov.au/our-work/human-rights-record-recruitment-chapter-5

[21] Federal Commissioner of Taxation v United Aircraft Corp [1943] HCA 50; (1934) 68 CLR 525, 533 "A licence provides an excuse for an act which would otherwise be unlawful..."

[22] Australian Capital Territory, Debate Discrimination Amendment Bill 2016, Legislative Assembly for the ACT, 4 August 2016, 2351 (Shane Rattenbury)