Edwards v Department of Fair Trading

Legislation

1. Clause 1 of Schedule 1(1) of the Home Building Act provides: "authority means the following: (a) a contractor licence (whether or not an endorsed contractor licence), (b) a supervisor or tradesperson certificate, (c) an owner-builder permit."
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 21 provides: "21 Authority conferred by contractor licences (1) A contractor licence authorises its holder to contract to do the following: (a) to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations), (b) to do any specialist work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations). (1A) A contractor licence that authorises its holder to contract to do residential building work authorises the holder to supply such building components as are necessary for any such work done by the holder. (2) The authority conferred by a contractor licence: (a) is subject to the conditions applicable to the contractor licence for the time being, and (b) may, on the application of the holder of the contractor licence, be varied by an order of the Secretary set out in a notice served on the holder of the contractor licence. "
4. Section 33A of the Act provides: "33A Disqualification from holding authorities (1) A person is disqualified from holding an authority (other than an owner-builder permit) if the person: (a) has been convicted in New South Wales or elsewhere of an offence involving dishonesty within the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored, or … (2) The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. ..."
5. This is an application for administrative review of the decision and s 63 of the Administrative Decisions Tribunal Act 1998 applies to the Tribunal's exercise of jurisdiction. It provides: "63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

Evidence

1. It is not in dispute that the applicant was convicted on 30 March 2012 after lodging a guilty plea to 4 counts of dishonestly obtaining a financial advantage, namely a Goods and Services Tax refund, by deception. The offences were committed between about 9 October 2004 and 12 January 2006. As a result of lodging false GST claim forms the applicant received $380,724 to which he was not entitled. He made further GST claims which was were stopped by the Australian Taxation Office. He was sentenced to 4 years and 3 months imprisonment with a non-parole period of 2 years and 2 months commencing 30 March 2012.
2. There were in fact eight charges against the applicant but it appears from the evidence that he pleaded to and was convicted of 4 only.
3. The transcript of the sentencing hearing was in evidence. In relation to the events leading up to the prosecution, Counsel for the Crown informed the court that the prosecution arose out of an audit in 2006. Search warrants were issued in 2008, and a Court Attendance Notice was issued on 9 February 2010. The trial judge noted the lapse of time in bringing the charges.
4. On 3 June 2013, while in prison, the applicant lodged an application for an individual contractor licence and qualified supervisor certificate. His evidence was that he did this at the encouragement of the prison authorities to obtain employment as part of his rehabilitation pathway. According to the applicant, he telephoned Fair Trading several times to discuss his application in 2012 and 2013 and he informed Fair Trading at that time of his convictions. He stated that he was led to believe by the Fair Trading staff that he spoke to that only NSW convictions were required to be disclosed.
5. On the form next to the question: "Have you in the last 10 years had a conviction for a criminal offence recorded, or are you now subject to a bond, or have a criminal offence pending?" he wrote "NSW - No" and ticked the box next to "No".
6. Fair Trading disputes that the applicant made it aware of the nature of his convictions concerning GST returns but was unable to adduce any evidence to refute it. However a letter from Fair Trading to the applicant dated 5 July 2013 states "NSW Fair Trading has undertaken a check of Police records and has been advised that you have been convicted of criminal offences". It appears therefore that Fair Trading at some point became aware of his convictions.
7. Fair Trading requested the applicant provide details of any criminal convictions in the last 10 years including a certified copy of a National Police Certificate and the court's decision. The applicant requested an extension of time to obtain that material. However, before that period had expired Fair Trading issued the licence and certificate on 26 July 2013. There is no explanation of why this occurred but it was apparently an administrative error.
8. On 19 September 2017 the applicant lodged an application with Fair Trading for an individual contractor licence for the category of electrical wiring work. This time, on the application form the applicant declared he had a criminal conviction within the last 10 years. Fair Trading requested he provide a certified copy of a National Police Certificate and if there were any new offences, provide details of those.
9. The applicant responded on 23 October 2017 stating that there were no new offences since Fair Trading last assessed his suitability in 2013. He did not provide a current National Police Certificate but instead provided one from 2013. Following a further request from Fair Trading he provided one dated 6 December 2017.
10. His application for a licence was refused by Fair Trading on the ground that he was not a fit and proper person to hold a contractor licence under ss 20(1)(a) and 20(1A) of the Home Building Act.
11. The applicant's evidence was that he believed that Fair Trading had conducted a criminal record check in relation to his application in 2013 and knew about his offences. He said that he had forwarded a National Police Certificate to Fair Trading in 2013 some time after lodging his application. When his application was granted he assumed that this had been done in knowledge of his criminal history.
12. The National Police Certificate which he claimed to have sent to Fair Trading on that occasion was in evidence. The respondent disputed that he had sent Fair Trading that police certificate in 2013 as it was dated 23 August 2013, while he received his licence on 26 July 2013, and it had not received it until 2017 as part of his later application.
13. The applicant considered that his criminal history was not relevant since he had already been issued with a licence after his conviction. He said that he put in his application while in prison and after his release he worked with Upper Hunter Fire Protection to put in fire alarms.
14. He said that the prosecution for the GST related offences was lodged in 2010, some 4 years after the latest offence, and that he was not in a good position to defend himself because he was also charged with attempted murder in 2011, of which he was later acquitted.
15. The applicant provided two character references. These were from a client and a person who had done business with him. Both were aware he had been prosecuted, however it is not apparent that these persons knew the nature of his convictions.

Issues for determination

1. The issues for determination are whether the applicant: 1. is disqualified from holding a licence under s 33A(1)(a) because he was convicted in 2012 of 4 offences involving dishonesty and those offences should not be ignored under s 33A(2); 2. is not a fit and proper person to hold a licence because of his convictions and/or because he was not honest with the Department on his applications.

Whether the applicant is disqualified under s33A(1)(a) because of his convictions

1. The respondent submitted that the applicant was disqualified because of his convictions for offences involving dishonesty in 2012.
2. The applicant submits that the discretion under s33A(2) to ignore the offences should be exercised because of the time that has passed since the offence was committed. He submitted that s 33A(2) allowed the Tribunal to examine the circumstances of the conviction and in this case there was a significant delay between the Australian Tax Office being aware of the acts and the conviction. The trial judge commented on the delay, It was also relevant that his conduct since 2013 had not been marred by any criminal activity and he had complied with the requirements of his licence and certificate.
3. The last of the offences was committed on or about 12 January 2006. The applicant was not convicted until 30 March 2012.If s 33A(1)(a) were applied, the applicant would be disqualified until 1 April 2022. However s 33A(2) permits the convictions to be ignored either because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.
4. The offences were certainly not trivial as they involved repeated acts of dishonesty to a significant and serious degree. The question therefore is whether the offences should be overlooked because of the time that has passed since they were committed.
5. As noted above, the latest of the offences occurred on or about 12 January 2006. The power in s 33A(2) is discretionary, as indicated by the word "may" and the nature of the power to grant relief from the operation of s 33A(1) (see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 8th edition, Lexis Nexis Butterworths, 2014 at 11.11).
6. The applicant's legal representative submitted that the two limbs to the discretion should be considered separately, that is that whether the offence was or was not trivial should not be considered in relation to exercising a discretion based on the passage of time. I agree with this approach, which is consistent with the wording of the section.
7. I was referred to the decision of Senior Member Leal in Mereb v Commissioner for Fair Trading [2016] NSWCATAD 244. In that case the applicant had been convicted and was still on parole for his offences which involved tax fraud. The Senior Member found that the acts leading to the offence took place between 2001 and 2006, with a break between 2003 and 2004. The applicant was sentenced to a head sentence of four years. The fact that the applicant was still on parole was a relevant consideration in the Senior Member's view, stating at [38]: "Had the applicant already completed his sentence, I would be more minded to exercise such a discretion."
8. Delays were also relevant in Mr Mereb's case, however that was taken into account in the sentencing. There was no evidence that delay was taken into account in the sentencing of Mr Edwards. The Senior Member concluded in Mereb: "In considering whether to ignore the offence on the basis of time elapsed, I give less weight to the delays in the court proceedings and more weight to the fact that Mr Mereb continues to serve his sentence for a serious offence. On the evidence before me, I am not satisfied the offence should be ignored because of the time that has passed since the offence was committed." (at [40])
9. In the present case, the applicant has completed his sentence and his non-parole period expired on 29 June 2016. The last of the offences was committed approximately 12 years and 10 months before the hearing of these proceedings. This was not a case where the applicant was not charged because the Crown was not aware of what he had done. He was audited in 2006 and his files searched in 2008, yet he was not charged until 2010. In those circumstances I consider the delay should be taken into account and I find that the discretion in s 33A(2) should be exercised in his favour so that the conviction is to be disregarded for the purpose of whether he is disqualified from holding a licence.

Whether the applicant is a fit and proper person to hold a licence

1. 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.
2. 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.
3. 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 electrical work. 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.
4. The respondent submitted that the applicant was not a fit and proper person to hold a licence because he had failed to disclose his criminal convictions in 2013 and his criminal conduct had involved dishonesty and had been extremely serious and sophisticated. It submitted that there was insufficient evidence of reform or that he would be trusted by persons working in the industry.
5. The applicant submitted that he had been an electrical contractor since 1997 with no customer complaints about his electrical work since 2013. The applicant had not filled out his 2013 application correctly, but he was not a lawyer and when Fair Trading advised him that his licence application had been granted, it was reasonable for him to proceed on that basis. The applicant had committed quite serious tax offences but he had served his custodial sentence and the Tribunal should assume, in the absence of evidence to the contrary, that people can be rehabilitated.
6. In relation to his convictions, these were convictions for serious offences involving dishonesty and while the applicant has completed his sentence, it is still necessary to assess whether he is now a fit and proper person under the Act.
7. In relation to the 2013 application and the failure to declare his convictions, I do not find his explanation credible and it is difficult to believe that someone who had experienced a criminal prosecution, conviction and imprisonment would not comprehend that his convictions under a Commonwealth law were convictions for criminal offences which should be disclosed on the application. It was not the first such form he had completed. At the very least, his statement was misleading.
8. While it appears that he did request a National Police Certificate at the request of Fair Trading, there is no evidence that he drew it to the attention of Fair Trading after his licence had been issued. He argues in response that he was entitled to believe that Fair Trading had granted the licence in knowledge of his convictions because it had requested he provide the Police Certificate.
9. The question is whether this conduct renders him unfit to hold a licence. In my view the manner in which he completed the form and the failure to forward his criminal history to Fair Trading demonstrates a lack of integrity. It is true that he disclosed his convictions on his 2017 application and I have taken this into account, however, he has not shown any awareness of, or regret for the lack of integrity involved in his earlier conduct regarding the application. Nor has he demonstrated much comprehension of the seriousness of the offences for which he was convicted. The character references do not displace this view.
10. For those reasons I find that he is not currently a fit and proper person to hold a contractor licence. That is not to say that he may not at some point in the future, be able to hold a licence. In Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15 the Tribunal stated in relation to the applicant that case at [76]: "If, after a further period of good behaviour in the community, Mr Cooper were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered."
11. Accordingly in my view the decision under review should stand.

Order 1. The decision under review 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: 02 January 2019