Howland v Secretary, Department of Customer Service

Evidence before the Tribunal

1. The evidence relied on by the applicant includes: 1. An affidavit of the applicant dated 11 November 2024; 2. A letter from the applicant's general practitioner, Dr Monique Dickens, attaching a copy of pathology records; 3. A copy of a certificate issued by TAFE NSW; 4. A letter from the applicant addressed to "whom it may concern" dated 24 October 2024; 5. A document issued by the NSW State Parole Authority in relation to the applicant's term and conditions of parole; 6. Hair Analysis Drug Test Results from Psychemedics for a sample taken on 8 October 2024, which refers to negative results for illicit substances in the categories of cocaine, opioids, phencyclidine, amphetamine, marijuana and ketamine; 7. A letter dated 13 September 2024 from a clinical psychologist, Bruce Petersen; 8. A copy of a letter from the applicant's brother, Bruce Howland, dated 27 September 2024 regarding building works carried out by the applicant in March 2010; and 9. Reference letters from the applicant's fiancée, the applicant's sister, a friend of the applicant and another member of the public.
2. At the hearing the applicant gave further oral evidence, and was cross-examined by the respondent's representative Mr Navea.
3. The respondent relied on: 1. A bundle of documents submitted in accordance with its obligations under s 58 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) (the s 58 bundle); 2. An extract from the Government Gazette of Friday 13 January 2024 entitled "Qualification requirements for an endorsed contractor licence or supervisor certificate for residential building work in various categories"; 3. A document (the source of which is not apparent) entitled "Effects of PMA and PMMA"; 4. A copy of the applicant's licence application; and 5. Materials in relation to a consumer complaint regarding the applicant made in 2009 to NSW Fair Trading.
4. Included in the s 58 bundle is a copy of an email from the applicant's parole officer to the applicant, which appears to have been written in early July 2024, which states "as discussed with you on 2/7/24 your supervision component of your parole conditions is now suspended as you are meeting the requirements of your parole due to being compliant, stable and you are not experiencing any drug or alcohol issues".

The applicant's testimony

1. The applicant's written and oral testimony can be summarised as follows: 1. He acknowledges his past criminal record and all of the actions that led to his conviction. 2. He served his sentence whilst maintaining a clean record and diligently completing the duties assigned to him. 3. Since being on parole he has complied with the conditions of his parole. Due to previous compliance with the conditions of parole, he has recently been released from reporting requirements. 4. In approximately 1983 he was diagnosed with schizophrenia. His past criminal activities were heavily influenced by his mental health being poorly treated and mismanaged. He made a lot of 'bad decisions'. 5. He has since sought appropriate medical intervention and medication to stabilise his disorganised thinking, irrational thoughts, misunderstandings and behaviours. 6. His motivation for the drug offences was primarily financial motivated. At the time he was in debt. 7. He is no longer in debt and is in a financially secure position having received an inheritance from his father. 8. He is not in contact with any former criminal associates. He no longer 'knows anyone' and 'they've all either gone away or are dead'. 9. He understands the harm associated with his past criminal activities and is committed to maintaining continued relationships with his treating medical team. 10. Throughout his time in jail, and since being on parole, he has shown sufficient moral integrity and rectitude of character so as to permit him safely to provide accredited and skilled tradesman work to the public. 11. He did not use illicit drugs in jail although there were 'plenty available'. 12. Since being jailed he has not been involved in any of the activities associated with his conviction and has not partaken in any recreational drug use. He has completed drug rehabilitation courses and has regular check-ups with his health care providers. He has not used recreational drugs since the day he was arrested in 2012. He says this is corroborated by the hair analysis drug test included in his bundle of documents. 13. He deeply regrets his past actions and understands the impact they had on his personal and professional life. 14. Carpentry as a profession provides him with opportunities to give back to the community and uphold his self-worth. 15. Pending the outcome of these proceedings he is unemployed and receiving social security benefits. He applied for a carpentry licence because he has a fiancée and children to support, as well as a child on the way. 16. His daughter has given him a parcel of land on which to build a home. He wants to get his life back together. He's 'had enough of crime and jail' and wants to put his criminal past behind him.

Medical evidence

1. The applicant relied on a letter dated 13 September 2024 from his treating psychologist Bruce Petersen. The letter relevantly states: 1. Since being released from jail the applicant has been 'endeavouring to integrate back into the community by gaining work as a carpenter and trying to get his complex medical problems under control'; 2. The refusal of his application for a contractor licence has caused the applicant a great deal of stress and anxiety; 3. The applicant has good family and intimate partner support. He wants to 'get married and settle down'; 4. He does not report any use of drugs or alcohol and there are 'no safety concerns'; 5. He is compliant with medication, polite, cooperative, demonstrates good self-care and attends regular medical appointments; 6. He is adamant about changing his life and fitting back into the community. Working is a large part of this. He shows remorse for what he has done and acknowledges the damage he has caused to the community. 7. If given the chance the applicant will turn his life around and fit back in as a productive and lawful member of society. 8. The applicant's general practitioner (with whom Mr Petersen consulted), agrees that the applicant is remorseful for his past behaviour.
2. The respondent's representative submitted at the hearing that the weight to be attributed to Bruce Petersen's letter should be 'moderated' because the letter does not address the applicant's schizophrenia diagnosis and provides no detail about his mental health challenges. Although it is correct that the letter does not assist the Tribunal to understand the applicant's mental health profile or treatment plan in any detailed way, the report contains evidence which is important and useful in other respects. It provides information and opinion as to the applicant's conduct since being released from jail, his attitude towards his criminal history, and Mr Petersen's views about the likelihood of the applicant reintegrating into normal society. I have taken it into account in assessing these matters.
3. The applicant's general practitioner, Dr Dickens, did not provide a report to the Tribunal. The letter from Dr Dickens which is relied on by the applicant is a copy of a letter to the applicant's cardiologist dated 5 September 2024. The notes at the end of the letter refer to the applicant's history of schizophrenia and schizophreniform disorder, and thus corroborate the applicant's evidence that he has a schizophrenia diagnosis. The letter is otherwise of no relevance to the issues in dispute in these proceedings.

Character references

1. The character references relied upon by the applicant comprise: 1. A letter from the applicant's brother, Mr Bruce Howland, dated 27 September 2024, which describes in favourable terms construction work the applicant carried out at the brother's premises in March 2010; 2. A letter from the applicant's fiancée, Ms Martin, which states that she has known the applicant for 15 years, that he is honest and kind-hearted, a competent builder with a 'good outlook to work and life'; 3. A letter from the applicant's sister, Ms Sommerard, which describes the applicant's enthusiasm to re-enter the building trade, the care he has provided for his elderly mother, that he is a reliable and responsible citizen, that he has shown remorse for his crimes, has regrets about his past actions and is sad about his past decisions and missed opportunities, that he wants to 'put the past behind him and move forward with his life', and that he is working towards building a life together with his fiancée; 4. A letter from an old friend, Ms Erwin, who says the applicant 'has been in prison for many years and paid his dues', that he is honest and hard-working, respectful, reliable and honest; and 5. A letter from a former client, Ms Jones, who describes in favourable terms construction work the applicant carried out at her premises.
2. The respondent submits that the character references of the applicant's close relatives and friend should be given limited weight because close relatives and friends cannot be considered independent arbiters of the applicant's character. The respondent also says that the references of Mr Howland, Ms Martin and Ms Jones should be given limited weight because they do not state whether the authors are aware of the applicant's criminal history.
3. I do not entirely agree with the respondent's submission in this regard. Whilst the opinions of close friends and relatives may well lack objectivity, their character evidence is nonetheless valuable because it is evidence of persons who have the closest, most intimate and lengthiest knowledge of the applicant. They are not mere acquaintances. Having said that, the reference letter from the applicant's brother refers only to construction work carried out by the applicant some 15 years ago. It does not deal with the applicant's current behaviour, his rehabilitation, or his attitudes towards his criminal history. Similarly, the letters from Ms Martin and Ms Jones refer to work carried out by the applicant (on unspecified dates) but do not address his criminal history or his behaviour since being released on parole. They are of limited assistance to the Tribunal in assessing the applicant's character for the purposes of these proceedings. I have given them minimal weight. The letter from Ms Erwin addresses these matters, but only in a cursory manner, and therefore I have also given it minimal weight.
4. By contrast, the letter from the applicant's sister, Ms Sommerard, deals squarely with these matters and I have given it considerable weight.

Jurisdiction

1. Under s 83B of the HB Act, the applicant may apply to the Tribunal for review of the respondent's decision. Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what is the correct and preferable decision, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. The Tribunal makes its own decision in place of that of the respondent's and there is no presumption that the respondent's decision was correct: McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357.
2. In considering an application for review, the Tribunal is not restricted to a consideration of the material that was before the respondent but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1997] AATA 179; (1979) 46 FLR 409.

The licensing regime

1. The HB Act is part of the legislative scheme which regulates many aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences in relation to residential building work.
2. The Tribunal in McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48] noted that "the overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential buildings".
3. 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 many cases a homeowner, can have confidence, particularly as they may have access, that could be unsupervised, to a person's home.
4. Section 19(1) of the Act provides that a contractor licence may be granted for the purposes of the Act. Pursuant to s 20(1)(a), the Secretary must refuse an application for a contractor licence if, relevantly, he or she is not satisfied that the applicant is a fit and proper person to hold a contractor licence.

Meaning of "fit and proper person"

1. The expression 'fit and proper' has no express definition in the HB Act. However, guidance for what 'fit and proper' means is found in s 20(1A) of the Act which provides: 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 respondent has provided a helpful summary of the relevant case law. Relevantly: 1. The expression 'fit and proper person' is to be given the widest scope for judgment and indeed rejection: Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 (Hughes) at pp156-157. 2. Fitness for office involves considerations of honesty, knowledge and ability: Hughes at pp 156-157. 3. A person's character is relevant but not determinative of the question of fitness. The matters which may be relevant to the inquiry depend on the circumstances of each case: Hughes at pp 156-157. 4. The expression 'fit and proper person' derives 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: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) at 380 [36]. 5. 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 upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to occur, or whether the general community will have confidence that it will not occur: Bond at 380 [36]. 6. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question: Bond at 380 [36].
3. The respondent also cited authority explaining the concept of "good repute", which goes to the public estimation of a person: Sobey v Commercial and Private Agents Board (1979) SASR 70 at 76. See also Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [13], [14].

The parties' submissions

1. The applicant submits, in summary: 1. He has met all conditions of parole and has successfully reintegrated into society and contributed to the community by offering handyman services. 2. He acknowledges the harms caused by his past behaviours, is deeply remorseful, has demonstrated contrition and actively contributed to the community. 3. He is a fit and proper person who has demonstrated honesty, knowledge and ability; 4. He has the knowledge required for a carpenter's licence, and has not committed any crime of dishonesty. His fitness and propriety must be determined in the context of the role he is to undertake, being a carpenter. The evidence establishes that the applicant is of sufficient moral integrity and has the ability to safely and proficiently provide carpentry services to the general public. 5. The applicant acknowledges that his past behaviours were wrong, but he has since reformed and will not reoffend.
2. The respondent submits in summary: 1. The paramount purpose of the HB Act is consumer protection. This involves protection of a consumer's personal safety and protection from financial loss arising from deceptive trade practices; 2. In construing the fit and proper person test in the context of this matter it is relevant for the Tribunal to have regard to the purposes and objects of the HB Act. A licence is not merely an authority to lawfully carry out the business of carpentry, but is a demonstration of confidence in the applicant to act with integrity. 3. There is no suggestion that the applicant has been dishonest during the licence application process, either in this instance or in his 2008 licence application. 4. The primary issue is the reasonable inferences that can be drawn from the applicant's history of criminal convictions. The persistent and escalating seriousness of that history demonstrates a person who lacks the moral integrity and rectitude of character to be entrusted to conduct himself with consumers properly and lawfully. 5. Given the applicant's history of offending, there is an elevated likelihood of improper conduct occurring in the future. On available evidence it is difficult to assess whether that likelihood has been sufficiently addressed. 6. The most serious of the applicant's most recent convictions in 2017 involved the manufacture and supply of a large commercial quantity of prohibited drugs for which the applicant received an aggregate sentence of 15 months' imprisonment with a non-parole period of 11 years and 3 months. 7. The applicant's offences are at the upper end of seriousness, as reflected by the seriousness of the maximum penalty (life imprisonment). The sentences ultimately imposed by the District Court reflect a matter that was objectively serious. 8. The harm and consequences of prohibited drugs in the community are well established. It can be reasonably inferred that the applicant was a person who was entrenched in the trade of prohibited drugs. By the applicant's own disclosure his offending was primarily financially motivated and the proceeds were used to meet daily expenses. It is unclear whether he would have ceased that behaviour without the intervention of law enforcement. 9. The applicant's preparedness to disregard the criminal law and the harm of prohibited drugs to meet daily expenses is not reflective of a character and integrity that satisfies the fit and proper person test. Against that history the Tribunal may consider what confidence it has that the applicant will not disregard his legal obligations as a licence holder. 10. There is no evidence from Dr Dickens or Bruce Petersen of a mental health treatment plan or of the applicant's progress in any such plan. 11. No corroborative evidence of the applicant having completed drug rehabilitation courses, or details of those courses, have been provided. The applicant has not disclosed what insights he has gained from such courses. 12. The drug test result relied on by the applicant only provides a snapshot of the applicant's sobriety at that point in time but does not assist the Tribunal to determine whether he has been compliant with his conditions of parole. 13. In 2009 a warning letter was issued to the applicant following a consumer complaint, which included an assertion that the applicant did not obtain the appropriate insurance and contracted outside the scope of his licence. The complaint was proximate to the period of the applicant's life when he was interacting with the criminal justice system. Whilst there was no substantiation of that complaint, against the background of the applicant's criminal history and identified deficiencies in the applicant's evidence, the complaint may demonstrate that there is some risk of improper conduct whilst dealing with consumers. 14. Overall, the applicant's history of convictions for serious criminal offending raises a real concern about his character and integrity. There is an elevated likelihood of improper conduct whilst the applicant interacts with consumers. His claims of rehabilitation and contrition have deficiencies, making it difficult for the Tribunal to assess that the risk to consumers has been addressed at this point in time.

Findings

1. I found the applicant presented as a truthful witness. He was open and candid about the offences he committed, for which he took responsibility, and he expressed remorse. I accept the applicant's evidence.
2. I acknowledge there are some deficiencies in the applicant's evidence. For example, he has not provided details of the drug rehabilitation courses he says he completed, his medical evidence does not include evidence of any mental health plan or details of his medical conditions or treatment, and the drug test analysis reflects only a snapshot in time some four months ago.
3. However, the absence of this evidence is not fatal to the applicant's case. In this regard the evidence of the applicant's treating psychologist, whilst it does not address these issues in any detail, nonetheless provides relevant information from a treating health professional as to the applicant's behaviour since being on parole, his attitude to his crimes and the likelihood of his reoffending.
4. Having considered the applicant's testimony which is corroborated by the letter from his treating psychologist, the email from his parole officer, and the character reference from the applicant's sister, I find that the applicant has not reoffended since being released on parole, that he has complied with his conditions of parole, that he is genuinely remorseful about his criminal history, that he is sincere about his desire to put his criminal past behind him, to make a positive contribution to the community and to provide for his family, that he receives good emotional, as well as financial support, from his family and that he is engaging with medical personnel and is taking his prescribed medication.
5. Moreover, whilst I accept that the drug test hair analysis reflects only a point in time, there is other evidence of the applicant's drug-taking history. Having considered the evidence of the applicant, the letter from his psychologist, the email from the parole officer and Ms Sommerard's character reference, as well as the hair analysis results, I accept that the applicant has not consumed illicit drugs since being on parole. I also accept that the applicant did not consume illicit drugs whilst in jail.

Is the applicant a 'fit and proper person'?

1. The Tribunal has considered the assessment of criminality in relation to fitness and propriety in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57. At [15] the Tribunal said: The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgement. 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.
2. In Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 the Tribunal stated at [82]: … the Tribunal is required to take into account the nature and seriousness of the original conduct, 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 conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time and the Applicant's present circumstances and reputation…
3. In Saadieh v Director General, Department of Transport [1999] NSWADT 68, the Tribunal, when assessing the applicant's fitness to be authorised to drive a taxi-cab, observed at [17] that the factors to be taken into account in determining a person's suitability and fitness include: ● the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; ● the nature, seriousness and frequency of any complaints made against the applicant; ● the applicant's driving record; ● the applicant's reputation in the community; and ● the likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences. 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 applicants circumstances such as increased support from friends, family or professional service providers.
4. It is without doubt that the applicant has an extensive criminal history which escalated from 1989 until his most recent arrest in 2012, that the drug offences for which the applicant was most recently convicted are at the upper end of seriousness, and that the drugs which the applicant was convicted of manufacturing and supplying are dangerous drugs with the capacity to cause significant harm.
5. Also relevant is the fact that the applicant has been on parole for only 14 months, and that he will remain on parole until December 2026.
6. However, to be balanced against these considerations, there are factors regarding the applicant's more recent circumstances which weigh in the applicant's favour. These include that he has been drug free since his arrest, that he has not reoffended since being released on parole, that he has complied with his conditions of parole, that he is engaging with health professionals and is compliant with medication, that he is remorseful and recognises the seriousness of his offences and the harm they have caused, that he genuinely wishes to turn his life around and put his criminal past behind him, and that he has good family support, both emotionally and financially. Significantly, the opinion of the applicant's treating psychologist is that the applicant is likely to lead a 'normal life' and be a lawful and productive member of society.
7. It is also relevant that there is no evidence that the applicant's criminal behaviour has previously impacted on his work as a carpenter or his interactions with the public in that role. In this regard, in the four years that the applicant held a carpenter's licence prior to his arrest in 2012, there is evidence of only one complaint having been made against the applicant by a consumer. The complaint was not connected to the applicant's criminal behaviour and in any event was not ultimately substantiated.
8. Further, there is no suggestion that the applicant has acted dishonestly in his dealings with the public and the respondent acknowledges that the applicant did not act dishonestly in the licence application process either on this occasion or in 2008.
9. Given the seriousness of the applicant's criminal history the issue is finely balanced. However, having considered all of the above circumstances, as well as the passage of time since the applicant's arrest in 2012, and taking account of the principles identified above, I am satisfied the applicant is a fit and proper person to hold a licence under the HB Act in the category of carpentry.
10. In reaching this decision I have taken account of the overall purpose of the HB Act which is to protect consumers in the contracting for, and the construction of, residential buildings.
11. It follows that the correct and preferable decision is to set aside the decision of the respondent to refuse the application for a licence under the HB Act. Instead, the applicant should be granted a licence in the category of carpentry.

Orders 1. The decision under review is set aside. 2. A contractor licence under the Home Building Act 1989 (NSW) in the category of carpentry is to be issued to the applicant.

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: 04 March 2025