ENK said that he had received the minimum punishment because the amount of drugs involved was very small. He made a mistake to try to get money to help his father who was ill. He had not been regarded as a risk by the legal system, he was given a reduced punishment and he had been allowed to travel overseas while on bail. He had made a serious mistake but wanted an opportunity to set his life on the right track. He was aware that his sentence was not yet completed but would not make the same mistake again if he was given a chance.
He referred to the example of Mr Michael Coutts-Trotter, who was convicted for drug importation in his youth but rose to become the Secretary of the Department of Communities and Justice.
[2]
Consideration
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said:
The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
It is generally accepted that a person's fitness and propriety needs to be determined by reference to the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:
In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In relation to an applicant's past criminal conduct, in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [15] the Tribunal stated:
The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation.
The respondent relied upon McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183 and Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284 as authority that where a person is still under bond it is too soon to determine that he or she is fit and proper. In McEvoy the Land and Environment Court refused a person registration as a valuer on the basis that he was not a fit and proper person. The court took into account the fact that Mr McEvoy was still under a bond in respect of a serious criminal offence. The Court said:
"Secondly, the act of registration as a valuer amounts to a public certification that the person is an honest person in whom confidence can be reposed (In Re Arnold). Both the public and the court must be able to repose confidence in registered valuers and must be able to accept without question their honesty and good character. In cases of this kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of a penalty to the individual (Dad v General Dental Council [2000] 1 WLR 1538 at 1543. PC). Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character (Ex parte Davis, Sakellis). I do not think that a person who is still under a bond in respect of a serious criminal offence can be said to be a person of good character (Sakellis)."
In NIzhnikov the applicant was still on a good behaviour bond and it was determined that it was too soon to be sure that he was a fit and proper person to be
McEvoy was considered in Offner v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 22 where the applicant wished to obtain a certificate of registration as a real estate salesperson. She was still on parole following her conviction for assault causing grievous bodily harm to her partner. There were special circumstances around the case, including alcohol abuse and domestic violence. She wished to hold a certificate with a condition that she not handle real estate sales.
In that case Montgomery SM granted the certificate with the proposed condition, on the basis that he was satisfied on the evidence as to her professionalism, trustworthiness and honesty that she could safely be accredited to the public. The applicant still being on parole was not an obstacle to her being found of good character in that case, but the circumstances of the offence were different from the present case and the applicant was seeking approval to work in an industry where she already worked with the support of her employer, who was aware of her history.
I agree that a person still serving under parole, a good behaviour bond or corrections order can occasionally be found to be a fit and proper person to carry on an occupation; but there must be clear and unequivocal evidence to demonstrate their fitness. Such evidence is lacking in this case.
Following the reasoning in the above cases, I note that the offences were serious but involved a small amount of drugs, and this factor as well as the applicant's previous unblemished record was reflected in the sentence. The applicant was given a non-custodial sentence and subjected to a low level of supervision. There are no complaints against him so far during his sentence, but he has still approximately five months to complete.
The applicant explained his conduct by saying he was under significant stress due to financial failure but also his father's illness and his desire to help him was an important factor in his offending. He has been candid about his convictions with the respondent and before the Tribunal, but he showed reluctance to be candid in his dealings with his prospective employer and others, because he is concerned about his reputation.
It is difficult to assess his current character or honesty as he did not provide any current references. However at a time in the past when he was facing conviction for his offences, two independent referees expressed a view that he could be trusted and he would not offend again, which is in his favour.
Also in his favour is the evidence of Ms Durkin that there is a low risk of reoffending. Ms Durkin's report suggests, however, that he may be overly confident about his ability to succeed and I also gained the impression from his evidence that he is eager to put the past behind him, although he has not yet completed his sentence. Based on Ms Durkin's report, I am concerned that if he does not succeed in his endeavours as quickly or as fully as he wishes, he may be unable to cope with the stress this could cause and this may lead to a relapse. It is encouraging that he wishes to continue attending sessions with a psychologist, and it may be beneficial to address issues around coping and resilience as recommended by Ms Durkin, to help him overcome obstacles he may face in rebuilding his career.
ENK's preference not to disclose his convictions does not demonstrate trustworthiness and would probably create more stress for him in the long term, which is a risk factor for reoffending. He should note that Mr Coutts-Trotter, whom he seeks to emulate, has achieved a successful career despite being open about his past mistakes.
Where there is doubt, I must give greater weight to the interests of the public in being able to trust persons who hold a certificate as an assistant real estate agent (McEvoy). I do not think that this is a matter which can be remedied by placing conditions on the certificate and this was not suggested by either party. I have determined that I cannot be satisfied that ENK has yet reached the stage of being a fit and proper person to hold a certificate of registration. He may be able to show that he has reached that stage after completing his sentence, and demonstrating his honesty and good character by his good conduct in the future.
[3]
Non-publication order
After these reasons were completed but before they were published, the applicant requested that they be subject to a non-publication order. He said that he did not want his earlier mistake published as his children were not aware of his convictions. He said that he would rather not have the certificate than lose his family's respect and love.
The respondent submitted that ENK's reasons for his request did not justify non-publication as the evidence was not confidential in nature and the public interest should be given priority over his private concerns. The public interest in having the reasons published was said to be informing the community about the facts and maintaining public confidence in the licensing regime.
The respondent cited EBP v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATOD 157, where Senior Member K Ransome stated at [64]:
"Proceedings of the Tribunal are generally held in public. Decisions of the Occupational Division of the Tribunal are, unless otherwise ordered, published on websites maintained by NSW Caselaw and the Australasian Legal Information Institute. Each of these websites is freely accessible to members of the public. This is generally a reflection of the importance of justice being administered openly and in public and the recognition that disclosing the identity of persons who have contravened laws relating to their occupations and breached the trust that has been placed in them has a deterrent effect amongst their peers. The public also has an interest in knowing whether a person has been disqualified or prevented from engaging in a particular occupation and for what reasons. It is also important to know that the regulatory functions of the Commissioner are being carried out appropriately."
I agree that it is important that the public are able to see how decisions are made in such cases and that the industry is aware of the possible consequences of unlawful conduct.
In this case, I have determined that the applicant is not fit and proper to hold a certificate at this time but it is possible that he may become fit and proper with effort and the passage of time.
In EBP the Senior Member made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the applicant's name because of concerns around his mental health. I propose to make a similar order. Firstly because he is not currently working in the industry nor has he done so in the past which reduces any risk to the public. Secondly it is for him to decide when to disclose his convictions to his family. Thirdly because while his mental health is not at risk as in EBP, he is receiving psychological counselling. Fourthly because self-represented parties like the applicant often are not aware that the decision will be published and therefore do not take that into account in considering their options.
[4]
Order
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: 18 December 2020
Parties
Applicant/Plaintiff:
ENK
Respondent/Defendant:
Commissioner for Fair Trading
Cases Cited (9)
The respondent's case
The legal representative for the respondent said that the question before the Tribunal was whether it could be satisfied that ENK was a fit and proper person to hold a certificate of registration. The respondent submitted that the applicant should not be found to be a fit and proper person to hold a certificate for the following reasons.
1. He had several criminal convictions for drug supply offences.
2. He was still subject to an Intensive Corrections order and a person in that situation cannot hold themselves out to be a fit and proper person.
3. Insufficient time had passed to demonstrate he had rehabilitated.
4. Currently while he was under the Intensive Corrections Order he was motivated to be of good behaviour. He needed to show if this would continue after completing the order.
5. There is a risk he may reoffend if a similar financial crisis occurs.
6. He was not prepared to declare his criminal history to his prospective employer and unable to get a reference from them.
She referred to the decision of Saadieh v Director General, Department of Transport [1999] NSWADT 68, concerning an authority to drive a taxi.
That case referred to "good repute" as part of being "fit and proper".
It is worth quoting what Deputy President Hennessy said at length as it summarises the considerations on each side of the issue:
"12 The issue in this case is whether, in the light of the responsibilities and expectations of a taxi driver, the applicant is a "fit and proper person" to hold a taxi authority. …
14 If the respondent is submitting that once a person has committed a dishonesty offence such as breaking, entering and stealing, he can never again be regarded as a person of good character (or in this case, "good repute") then I reject that proposition. If it were otherwise any conviction for a dishonesty offence would automatically prevent a person from re-applying for a taxi authority. The Director General has not interpreted the legislation in this manner, nor do I think it correct to do so.
15 Furthermore, I do not accept the respondent's submission that the applicant is not of good repute merely because his criminal record indicates bad repute and there is no other evidence of repute. Many applicants before the Tribunal are unrepresented. They do not understand, nor should they be expected to understand, that references or other evidence of their repute in the community would be useful in counteracting any evidence of bad repute which can be assumed on the basis of a criminal conviction. A person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority. All the circumstances of the case must be taken into account in assessing a person's suitability to be obtain or retain such an authority.
16 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that:
"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:
1. the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
2. the nature, seriousness and frequency of any complaints made against the applicant;
3. the applicant's driving record;
4. the applicant's reputation in the community; and
5. the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers."
She submitted that the convictions were serious and a longer period of rehabilitation was required to show that the applicant had reformed. The Intensive Correction Order was still in force and would not end until April 2021. It was too soon to be confident that he could be trusted with a certificate. She referred to the decision of McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258. This decision sets out the relevant authorities but the facts are different from those in this case.
She submitted that no weight should be given to Ms Sidhu's report. Some weight could be given to Ms Durkin's report but it was not sufficient to allay all concerns.