1 The decision of the respondent made 21 October 2004 is set aside.

2 Pursuant to s 31C(3) of the Estate Agents Act 1980 (the Act), the applicant is granted permission to be employed as an agent's representative.

3 Pursuant to s 31D of the Act, Order 2 above is subject to the following conditions :

i

That the applicant must notify the Business Licensing Authority in writing of any criminal charge brought against him within 24 hours of being so charged.

ii

That permission granted pursuant to s 31C(3) of the Act will be immediately revoked if the applicant is charged with any offence under the Drugs, Poisons and Controlled Substances Act 1981.

iii

That with respect to any employment as an agent's representative offered to the applicant by an estate agent before 31 August 2009, the applicant shall provide to the Business Licensing Authority within 14 days of commencing such employment, written confirmation from the estate agent employing him, that the applicant has informed the estate agent of the nature and circumstances of the offences on which he was convicted at the County Court at Melbourne on 31 August 1999.

Note: These written reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing.

1 This is an application to review a decision of the respondent refusing to allow the applicant to be licensed as an agent's representative.

2 The legislative framework in relation to this matter is largely contained in s 16(1)(c) of the Estate Agents Act 1980 ("the Act") and s 31C of that same Act. Section 16 of the Act sets out the eligibility of a person to be licensed as an agent's representative, that is, someone employed by an agent. The relevant sub-section that I am concerned with here is (1)(c) which reads :

(1) A person is eligible to be employed as an agent's representative if she or he -

(c) has not, within the last 10 years in Australia or elsewhere, been convicted or had found proven against him or her any offence involving fraud, dishonesty, drug trafficking or violence which was punishable by imprisonment for 3 months or more;

There is no question that the applicant comes within that section. I will return to that shortly.

3 The legislature has provided that, in certain circumstances, in spite of s 16(1)(c), a person may be licensed as an agent's representative. Section 31C provides those circumstances and sub-section (1) states :

(1) This section applies to a person who has, within the last 10 years in Australia or elsewhere, been convicted or had found proven against him or her any offence involving fraud, dishonesty, drug trafficking or violence which was punishable by imprisonment for 3 months or more.

The applicant fits into that category.

4 Sub-section (2C)(3) reads as follows :

The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.

A person in respect of whom permission has been given is eligible to act an as agent's representative, despite section 16(1)(c).

6 The facts of this particular case are as follows.

7 The applicant is 37 years old having been born on 17 December 1967 and he has been married for eight years. The facts of the applicant's conviction are that on 3 September 1999, the applicant was convicted in the County Court of Melbourne of cultivating a narcotic plant, cannabis, and theft. I will return to the circumstances of the conviction shortly. As a result, he was given seven years imprisonment and six months for the theft which he appealed to the Court of Appeal and he was sentenced to three years and six months and ordered to serve a minimum term of two years before becoming eligible for parole.

8 The circumstances of the offence are adequately set out in the judgment of Buchanan JA in The Queen v Hartog No 212 of 1999 dated 18 July 2000. At p 1 his Honour stated as follows :

The appellant pleaded guilty in the County Court to one count of cultivating a commercial quantity of cannabis contrary to the provisions of s 72(1)9b) of the Drugs, Poisons and Controlled Substances Act 1981 and to one count of theft contrary to s 74 of the Crimes Act 1958.

His Honour then describes how the offences were discovered :

The offences were discovered on 21 April 1999 when police executed a search warrant upon residential premises in Boronia owned by the appellant's wife. The premises were split level, with the front door giving access to the upper section of the house. This area was equipped as a residence. Upon conducting a search investigators found a concealed manhole cut into the floor of a bedroom cupboard. The hole gave access via a ladder to the lower section of the house, a substantial area divided into four rooms. The four concealed rooms were stocked fully with cannabis plants at various stages of maturity, growing in plastic buckets, with the assistance of a substantial and sophisticated lighting and ventilation system. The lower section of the premises contained 400 marijuana plants in two stages of growth: 221 seedlings and 179 mature plants. Hanging from the ceilings in each chamber were high wattage 'grow lights', shielded by wide diameter 'grow shades'.

9 His Honour then goes on to describe the lights and a sophisticated exhaust system and the concealment of it. His Honour then notes that there was an agreed value for the power stolen by the bypass of $2,977.80. His Honour also noted that the sentencing judge accepted evidence that the crop if realised by a producer in the appellant's possession was $100,000 to $200,000. He found that sold at street level in gram lots, the crop was worth in excess of half a million dollars. His Honour also noted that the crop had a total weight of 25.6 kilograms.

10 When the applicant applied for an agent's representative licence, he did not disclose that he had had prior convictions. He apparently had had a number of prior convictions but they largely involved both possession of cannabis and driving offences, save and except for an offence in 1982 in Hobart where he was convicted of stealing and injuring property and burglary for which he received a 12 months good behaviour bond. Apart from that, he had six offences which were not disclosed. The applicant said he did not disclose these offences because he thought he only needed to disclose the offences that were less than 10 years old. I accept his genuiness and, in my view, he did not fail to disclose those offences in order to hide them from the respondent. As a result of the offence of cultivating the narcotic plant and theft, the applicant went to prison on 21 April 1999 and he was released on 18 April 2001.

11 The applicant's wife has stood by him and apparently she has been of great support; although I am somewhat surprised that she was not here today to give evidence. However, it does appear that the applicant has done everything possible to try and rehabilitate himself. I note that in approximately 1992, the applicant commenced an Arts course at Deakin University majoring in psychology. He passed six units in 1992 but then discontinued the course. However, when he was in prison, he again resumed the course and he completed it on his release. I have a copy of his results before me and it is clear that he has done it to a very high standard indeed and it is commendable.

12 I also note that in the period of two years after his release, the applicant has worked for some time as an electrician and during that time he had access to private homes and people's valuables. There is no allegation whatsoever that he did the wrong thing in relation to removal of those valuables or any illegal activities. Again, that is to his credit. He then subsequently worked two years for Ausco Building Systems as a sales representative and project manager and he completed that job in September 2004. During that time, there were occasions when he was handling large sums of money in cheque form and again there is no allegation of dishonesty.

13 After September 2004, he worked for some months with the Redwood Group which deals in real estate acreage. Apparently he was selling houses to be built. Since January 2005, he has been working for an organisation known as "Individually Freedom Building Company". Again, he has been selling houses to be built. From all accounts, he has been very successful. I understand that he and his wife have also been investing in real estate and they own a number of pieces of real estate.

14 There have been a number of character references which have been given in the applicant's favour which has been tendered in evidence.

15 Mr Devlin, who appeared for the respondent, both cross-examined and commented on a number of those references. The applicant admitted and it is clear from those references, which are from employers, that they were unaware of the applicant's criminal history. Mr Devlin criticised the fact that the applicant asked these people to write references for him without telling them of his criminal history and/or the applicant placing those references before the Tribunal without making it clear that those persons did not know of his criminal history. Unless a person in the applicant's position is specifically asked about their criminal history, he has no obligation to reveal the same. In the circumstances where he has made utmost efforts to rehabilitate himself, as I find the applicant has in this situation, quite clearly when looking for a responsible job, he is not keen to reveal the fact that he has been in jail for the offences which he committed. Under those circumstances, I can well understand why the applicant has taken the course he has. However, in my view, it would have been much better had the applicant disclosed his criminal history to the people that were involved and I take his failure to make such disclosure into account.

16 There was a considerable amount of discussion during this hearing as to whether the applicant comes within s 16(1)(c) once or twice. The applicant admitted that he was involved in an offence of dishonesty, namely the theft of electricity, and he qualified under that section not to be licensed. However, he did draw a distinction between cultivating and the words "drug trafficking". Mr Devlin suggested that because he drew that distinction, it in part shows that he does not understand and is not remorseful for what he has done. While I have to take into account the entire course of the applicant's conduct, I believe it is inappropriate for me here today to decide whether the crime of cultivation is similar to what is described as drug trafficking in s 16(1)(c) as the applicant clearly comes within this section in any event. However, that does not mean that I will not take into account, when I come to decide the matters under s 31C, that the applicant did intend to traffic in the drugs which he was growing. He clearly had that intention and he did not resile from that fact.

17 The question now is whether I should exercise the discretion which the Parliament has given me pursuant to s 31C and allow the applicant to hold a licence as an agent's representative. The section states that I have to be satisfied that giving him permission is not contrary to the public interest.

18 Mr Devlin has correctly summarised my obligation in the sense that I must protect the public and I must be conscious of the necessity to maintain standards of the estate agency profession. This has been made clear in a number of cases which were cited to me, in particular Re Trowthe and Estate Agents Board (1994) 7 VAR 384 Preuss M. At p 391 of that case, the Member said :

In considering the imposition of an appropriate penalty, the Tribunal must have regard to the fact that the Act lays particular emphasis upon the protection of the public. As Murphy J said in Inglese Pty Ltd v Estate Agents Board, in an unreported decision dated 15 August 1989:

'If an estate agent is to be disqualified, the purpose which the Tribunal should have in mind is not the punishment of the individual (though it may appear to be a punishment to him) but the importance of protecting the public and the necessity to maintain standards in the conduct of an estate agent's business.

19 A similar proposition was referred to in Ruscitti v Business Licensing Authority (a decision of this Tribunal made February 1999).

20 It is also clear that in determining this matter, I must take into account all the facts, including all the facts of the actual offence. It is not sufficient for me to just look at the offence and see what the punishment is.

21 In Cichello v Estate Agents Licensing Authority Justice Buchanan sitting in the Court of Appeal in a judgment given on 19 May 1988 at p 8 stated as follows :

In determining whether it was satisfied that it was not contrary to the public interest to give permission under s 31C(3) the Tribunal, in my opinion, was required to take into account the circumstances of the offence. Those circumstances bore directly upon the question of the risks and detriment to which members of the public were exposed by the appellant conducting the business of a real estate agent. Other factors may also affect the nature and degree of risk of harm to members of the public posed by a violent offender acting as an estate agent, but the starting point must be the circumstances constituting the offence of violence upon which s 14(5)(e) of the Act operates.

I note that s 16(3) is similar to s 14(5) of the Act which the Court was dealing with in Cichello.

22 Here, I take into account all the facts which I have referred to and which were referred to by Buchanan JA in the applicant's case before the Court of Appeal.

23 I take into account that the applicant was operating a very sophisticated operation. It was a well planned operation. It was an operation that would have netted him large sums of money had it been successful. It was an operation that required him to deceive his wife, in that he was operating the business out of his wife's premises without telling his wife that such business was being operated, and in fact making his wife believe that the premises were being leased to other tenants. I take into account that initially the applicant thought he might conduct a business from his own home and made considerable preparations for doing so but in the end decided against it. I balance against those matters which I have referred to, the fact that the applicant gave evidence to this Tribunal today and impressed me as being an honourable and forthright person. He impressed me as a person who is attempting to tell the truth and has rehabilitated himself. I think it is extremely commendable that he has gone to such lengths to complete his study and work virtually constantly since his release from prison. There may be matters for which he could be criticised, such as for not telling employers about his previous record but I think that one can understand that.

24 I also have to look at what I believe would happen if the applicant was licensed as an agent's representative. In my view, he has got both the character and the ability to carry out that job in a proper manner. He seems to me to be an extremely good salesman. I have no reason to believe that he would disappoint all those who have supported him in the last four years since his release from prison and indeed while he was in prison, and he would treat his obligations under the Act and indeed his general obligations to the law very seriously. He impresses me as a person who would not want to get involved in any further illegal conduct. He realises what he has done was wrong and he expressed remorse in the strongest possible terms. Thus I find that I do not believe that the applicant's conduct in the future would be anything that would bring him into a disgraceful situation.

25 Mr Devlin emphasised that it is necessary for me to find that for the applicant to be re-licensed, it would not have a deleterious effect on the standards of the estate agency profession. In other words, he said necessity of maintaining standards of an estate agent is clearly an important factor. Mr Devlin suggested that if members of the public were aware that the applicant was convicted of the type of offences that he was convicted of in the circumstances they would be alarmed to think that he could work as an estate agent. However, in my view, Parliament did intend that in circumstances where a person such as the applicant has completely reformed and it has been clearly demonstrated that person is suitable to be licensed to be an estate agent, that that person should not be so licensed. Otherwise s 31C would never have been enacted. While the offences which the applicant committed are very serious and under normal circumstances, they would be so serious as to say that to allow him to hold a licence would mean that it would degrade the standards required for the estate agency profession, in my view, the applicant has made such rehabilitation since he committed those offences that licensing the applicant as an agent's representative would not be contrary to the necessity of maintaining standards of an occupation of estate agent.

26 Mr Devlin also drew a similarity between this case and Ruscitti to which I have already referred which also involved cases of cultivation of illegal substances. However, in my view, each case must be looked at on its own merits and, in this particular case, the very strong merit which the applicant has demonstrated today by his evidence and by the material which he was produced would indicate to me that while the offences may have some similarity, this is indeed a different type of case. Under those circumstances, in my view, the decision of the respondent should be set aside and I will order that a licence for an agent's representative be issued.