GNM v Building Commission NSW

NCAT Occupational|2024-06-24

Introduction

GNM (the Applicant) applied for a licence under the Home Building Act 1989 (the HB Act). The reason the Applicant applied for the licence is so that he can work as an electrician.
The Building Commission NSW refused that application because the Commission was not satisfied the Applicant was a fit and proper person to hold a licence.
The Commission made its decision on 15 January 2024. It conducted an internal review of the decision at the request of the Applicant and on 27 February 2024 the Commission affirmed its decision.
The Applicant seeks review of the decision to refuse him a licence.

Relevant Legislation

The HB Act regulates home building and specialist building work in NSW. In McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 the Tribunal noted (at [48]) that the overall purpose of the HB Act "is to protect consumers in the contracting for and the construction of residential buildings".
Section 20(1)(a) of the HB Act relevantly provides that the Secretary must refuse an application for a contractor licence if not satisfied an applicant is a fit and proper person to hold a contractor licence.
Section 20(1A) of the HB Act provides that in determining whether an applicant is a fit and proper person to hold a licence, one consideration the Secretary is to take into account is whether the applicant is "of good repute, having regard to character, honesty and integrity".

Material before the Tribunal

The application for administrative review attaching the reasons for the original and internal review decisions was before the Tribunal. The Applicant also filed a reference and a national criminal records check dated 18 March 2024. The Applicant was self represented, he gave evidence, was cross examined and made oral submissions at the hearing.
The Commission provided a bundle of material filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act), as well as written submissions.

Applicant's case

The Applicant contends the decision to refuse him a licence is unfair and unjust because he is trustworthy and honest in his character and has changed since he was convicted of serious criminal offences. He submits the serious offences were committed over ten years ago and more recent convictions were for technical reporting breaches as a result of mistakes he made in changing mobile phones.

Respondent's case

The Commission submits that the Applicant is not a fit and proper person to hold a licence because he has been convicted of criminal offences in the last 10 years and has recent other related convictions.
In oral submissions at the hearing, the Commission submitted if the Tribunal finds the Applicant to be a fit and proper person in this review, the Applicant should receive a certificate instead of a contractor licence under the HB Act because a certificate would require the Applicant to work under supervision and, further, a condition should be attached to the certificate preventing the Applicant from working in occupied residences.

Jurisdiction

The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 83B of the HB Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a licence application. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. In conducting a review the Tribunal is not restricted to consideration of the material that was before the Commission but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.
The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17].

Applicant's history

In March 2015 the Applicant was convicted of several online child grooming and child pornography offences for which he received a two year suspended sentence and a three year good behaviour bond. As a result of the convictions he is required to be on the child protection register and has reporting obligations under the Child Protection (Offenders Registration) Act 2000 (the CP Act) for 15 years.
In 2021 the Applicant received a community corrections order of 12 months for failing to comply with reporting obligations under the CP Act.
In 2023 the Applicant received two community corrections order of six months each running concurrently for failing to comply with reporting obligations under the CP Act.
The Applicant's evidence is that he committed the three reporting offences because he changed mobile phones and he did not realise in doing so three online accounts had altered usernames. The offences were discovered when police performed annual inspections of his mobile phone on two occasions.
The Applicant previously worked as a teacher, a career which ended as a result of the 2015 offences. He then worked as a tyre fitter and in in the past three years has retrained as an electrician. He wants to work as an electrician in commercial and industrial premises. Since 2015 the Applicant has married and had a child. He has a family to support and is protective of his child.

Psychological evidence

The Applicant has been treated by a psychologist since 2014 and continues to attend monthly sessions. A report from his psychologist prepared for 2023 local court proceedings was contained in the s 58 bundle (exhibit R1). The report records the Applicant's traumatic childhood, mental health issues, circumstances around the 2015 online offences and current domestic circumstances.

Reference

The Applicant provided a letter of reference from a person who supervised him at work between September 2019 and March 2021. The referee has knowledge of the Applicant's personal circumstances including his criminal history and speaks to the Applicant's good character.

Is the Applicant a fit and proper person to hold a licence?

The expression 'fit and proper' has often been considered by this Tribunal and in other jurisdictions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at pp 156-157 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.
Further, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ discussed the meaning of fit and proper person (at p 380): 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.
Their Honours went on to say (at p 388): 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.
Mason CJ (with whom Brennan and Deane JJ agreed) stated that the concept fit and proper person should not be construed narrowly and stated at (pp 348-349): Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interest of the public. A commercial broadcasting licence is a valuable privilege which confers on the licensee a capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with due regard to proper standards of conduct and a responsibility not to abuse the privilege it enjoys.
It is generally accepted what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of 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 (at p 76): 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.
Under the licencing regime established by the HB Act the licence holder not only needs the prescribed skills, qualifications and knowledge to undertake the work, they also need to be a person in whom a consumer, including in some cases a homeowner, can have confidence. For an electrician this is particularly the case as they may have access, that could be unsupervised, to a person's home.
As the hearing drew to a close, the Commission corrected its original submission that the Applicant was a risk to children for life because the reporting obligations applying to him were for life. Instead, it was acknowledged the reporting obligations applying to the Applicant under the CP Act are for 15 years and will therefore apply for another five years due to the passing of time.
In giving evidence, the Applicant was open and candid about the offences he committed for which he took responsibility and expressed remorse as well as the circumstances of his life.
The Commission submits the Applicant was not honest in applying for the licence because his description of his criminal history did not exactly match the criminal record check he provided in his application. The Applicant's evidence, that I accept, is that he is not a lawyer, he used terms he understood to describe his history as he prefilled the information required in the application form and then sometime later, when he had received the criminal record check, he uploaded the record check and submitted his application assuming the Commission would be fully informed by the totality of what he provided.
The Applicant's 2023 convictions were pending at the time of the original decision and had resolved by the time of the internal review. The Applicant's evidence, that I accept, is that he engaged a lawyer to prepare the paperwork for the internal review which had a tight timeframe of 21 days for response. Engaging a lawyer took some time and he knew criminal records checks take 14-21 days so he had no opportunity to provide an updated check and while he maintains he had told his lawyer about the result of court proceedings in late 2023, he acknowledged that information was not included in his submission for the internal review. On the material before the Tribunal I am not satisfied the Applicant attempted to knowingly mislead the Commission on this issue because he disclosed details of the subject matter of the offences.
The Commission also had concerns over the Applicant's description of his reporting offences being related to a social media account. I do not find inaccuracy in the description used by the Applicant on the material before the Tribunal and given the circumstances.
In Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 where the Tribunal stated (at [52]): The period of time sufficient to warrant an exercise of the discretion to ignore an offence must be viewed in the context of the offence for which an applicant has been convicted (Wilson v Commissioner for NSW Fair Trading [2014] NSWCATOD 79 at [25]; Bek v Commissioner for Fair Trading [2004] NSWADT 149 at [47]).
The serious offences committed by the Aplicant for which he was convicted in 2015 are not trivial, however it is almost a decade since the offences were committed and on the material before the Tribunal, the Applicant's personal circumstances are now very different.
The Applicant will continue to be subject to obligations under the CP Act for at least another five years. He was able to complete the full range of work required to gain the requisite experience for a licence in compliance with child safety legislation.
While not unrelated to the 2015 convictions, the 2021 and 2023 convictions do not carry the same seriousness and I am satisfied any concerns as to risks under the HB Act can be dealt with by a condition as set out below.
On the material before the Tribunal, in all the circumstances I am satisfied the Applicant is a fit and proper person to hold an authority under the HB Act to perform the work of an electrician at commercial and industrial premises.
The Applicant's skills, knowledge and experience are not in dispute. The Commission's recommendation that further supervision of the Applicant's work should be imposed by the grant of a tradesperson certificate instead of a contractor's licence under the HB Act, is not appropriate in those circumstances.
Given the serious nature of the online offences committed by the Applicant's in 2015, and taking into account the 2021 and 2023 reporting offences, it is appropriate the Applicant's licence be subject to a condition prohibiting him from performing work in homes, that is, as the Commission submits, at premises where an occupation certificate has been issued.
It follows that the correct and preferable decision is to set aside the decision of the Commission to refuse the application for a licence under the HB Act. Instead, the Applicant should be granted a licence subject to the condition described above.

Order 1. The decision under review is set aside. 2. A contractor licence under the Home Building Act 1989 in the category of electrician is to be issued to the Applicant subject to a condition prohibiting the Applicant from performing work at residential premises where an occupation certificate has been issued.

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

Amendments 06 August 2024 - applicants name removed 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: 06 August 2024

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (12)