Jones v Commissioner for Fair Trading

NCAT Occupational|2020-07-02|Before: Gaudron JJ

REASONS FOR DECISION

Nathan Jones completed his trade qualifications as a mechanic in 2011 and worked as a mechanic for about eight years before starting his own plastering business in 2015. In March 2019 Mr Jones applied for a new motor vehicle tradesperson's certificate under the Motor Dealers and Repairers Act 2013 (the Act). In response to a question on the application form about whether he had been found guilty of any offence within the preceding 10 years, Mr Jones responded: "Yes. Drug possession".
A criminal history check showed that on 27 November 2018 Mr Jones was convicted and sentenced in the Newcastle District Court of the following offences:

Supply prohibited drug > indict. quantity (not cannabis)
Knowingly/recklessly direct criminal group assist crime
Possess unauthorised pistol
Possess unauthorised firearm
Possess prohibited drug
Possess unregistered firearm - not prohibited firearm/pistol (2 counts)
Not keep firearm safely - not prohibited firearm/pistol (4 counts)
Not keep firearm safely - pistol
Possess or use a military style weapon without permit

Mr Jones received a cumulative sentence of three years and seven months imprisonment. He was incarcerated for 27 months before being released on parole in February 2019. His parole ended on 14 June 2020.
On 5 July 2019 the Commissioner for Fair Trading (the Commissioner) refused Mr Jones' application for a tradesperson's certificate under the Act on the basis that he is not a fit and proper person to hold the licence. That decision was affirmed on internal review and Mr Jones applied to the Tribunal for review of the decision.

The relevant law

Under the Act the Commissioner may grant various types of licences, one of which is a tradesperson's certificate. Under s 26(1)(a) of the Act, the Commissioner is not to grant a tradesperson's certificate to a person if the Commissioner is satisfied that the applicant is not a fit and proper person to hold a licence.
The expression "fit and proper" is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said "fit" with respect to an office is said to involve three things, honesty, knowledge and ability and that each case must depend on its own circumstances.
These sentiments have been echoed in cases before the Tribunal and it is generally accepted that 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 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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.
They went on to say at 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.
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.
As was pointed out in Saleh v Commissioner of Fair Trading [2015] NSWCATOD 68 at [17], the nature of the industry in which the person concerns wishes to operate affects a consideration of whether a person is a fit and proper person to hold a licence in that industry.
In Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [10] the Tribunal stated: The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. Thus the character, knowledge and experience that an application for a taxi-operators licence has to demonstrate in order to be considered fit and proper for that role, is different to the character, knowledge and experience required of a person who simply wishes to drive taxis. This is so because what is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake, as well as in accordance with [the] industry in which they will undertake that role.
The decisions in Saleh, Grenfell and the more recent decision of Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167 note the distinction that is drawn in the Act between the grounds for refusal of a tradesperson's certificate and a motor dealer's licence, motor repairer's licence or motor vehicle recycler's licence (ss 25 and 26). Similarly, the Act in s 27 imposes additional factors to be taken into account when assessing whether a person is a fit and proper person to hold a motor dealer's licence, motor repairer's licence or motor vehicle recycler's licence compared to a tradesperson's certificate. Although, it must be said, that the matters the Commissioner can take into account in assessing a person's fitness and propriety to hold any licence are not limited in any way (s 27(4)).
In Grenfell the Tribunal considered the effect of a past criminal record on a person's fitness and propriety and stated at [15]: 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.
In Trombetta the Tribunal was considering the application by Mr Trombetta for a tradesperson's certificate as a motor mechanic in circumstances where Mr Trombetta had been found guilty in April 2017 of several serious offences. The Tribunal stated that the convictions were relatively recent but noted that there is no necessary period before a person convicted of serious offences can be considered to be a fit and proper person. The Tribunal went on to say: The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.

Evidence before the Tribunal

There is not a great deal of evidence before the Tribunal in this matter. When the Commissioner became aware of Mr Jones' convictions, he was asked to provide a detailed explanation of the circumstances surrounding the offences. In response, Mr Jones said that he shouldn't have to justify his actions to anyone and that he had let someone live in his house who got him into trouble. He indicated that he had a minor role in the offences.
In the application for internal review, Mr Jones was represented by a solicitor who stated in a letter dated to August 2019 that, at the time of his offence, Mr Jones was experiencing a particularly difficult time in his life and had significant mental health problems at the time. She indicated that he commenced rehabilitation during his incarceration and has continued with treatment. She stated that Mr Jones was remorseful for his offence and took responsibility for his conduct. The solicitor stated that Mr Jones plead guilty to several matters at an early stage and provided assistance to the authorities.
In a statement to the Tribunal Mr Jones states that he did not deliberately intend to mislead the Commissioner when he filled out the application form. He said he had difficulties completing the form as he did not have access to a computer and completed it using his mobile phone. He said he had limited space to enter information and did not think that he had to list all the charges he had faced. He stated that he was not forthcoming when he was asked for further information as he was embarrassed about his circumstances and did not wish to discuss his mental health and offending issues with an officer from Fair Trading.
Mr Jones has provided two reports from Mr Wayne Learmouth, Clinical Psychologist, one of which was prepared in September 2018 for the purposes of assisting the District Court in sentencing and a more recent report dated 2 January 2020. At the time of the second report Mr Learmouth had been treating Mr Jones since March 2019 to assist his readjustment post incarceration.
Mr Learmouth reports that Mr Jones has a history of drug use, depression and anxiety. He states that Mr Jones's offending was associated with his links to a negative peer group from which he was trying to extricate himself. At the time Mr Jones was out of work, experiencing a deterioration in his mental health and experiencing financial duress. He notes that throughout treatment Mr Jones has exhibited and reported remorse for his offending and acknowledges the moral wrongfulness of his actions. Mr Learmouth states that that the time in prison, counselling and ongoing participation in his rehabilitation plan have allowed Mr Jones greater insight into his offending, a significant period of drug abstinence and distance from his negative peer associations. He states Mr Jones now demonstrates an understanding of the gravity of his offending, taking responsibility for his actions and remorse.
Mr Learmouth noted that Mr Jones' offences did not occur in the context of his employment. In his opinion, as part of reducing his risk of reoffending and again becoming a productive member of society, Mr Jones would benefit from re-establishment in gainful employment. On this basis Mr Learmouth is supportive of the application for a tradesperson's certificate. He states that Mr Jones would benefit from ongoing treatment and counselling to further reduce the risk of reoffending. He states that Mr Jones is positively engaged in rehabilitation and does not endorse antisocial attitudes.
Mr Jones notes that if granted the certificate he will be working as a mechanic working directly on vehicles. He states that his employment does not involve direct contact with the public or the handling of money as these matters are handled by the front desk staff and executive officers in the business he would be working in. He also states that after release from incarceration he was engaged in supervision while on parole for six weeks. During this time he attended supervision regularly was compliant and was also drug tested. After six weeks his supervision was ceased as he was considered a low risk to the public. He states that he has continued his psychological treatment as part of his rehabilitation plan.
Mr Jones provided three references - one from a former employer, another from the owner of a gym he attends and one from his mother. All are aware of his previous offending and are supportive of his application to work again as a mechanic as this will allow him to move on from his past mistake and contribute to society.

Consideration

There is no suggestion that Mr Jones does not possess the necessary skills and qualifications to be a motor mechanic. At issue is whether he is a fit and proper person to hold a tradesperson's certificate in the class of motor mechanic. The relevant matters for consideration are his offending and his dealings with the Commissioner, along with general considerations of his character and rehabilitation.
Mr Jones does not have a lengthy history of offending. However, the offences for which he was convicted in 2018 were very serious as evidenced by the length of the term of imprisonment. The majority of the offences involve firearms. Mr Jones has not provided any detailed evidence of the circumstances in which those offences were committed, although Mr Learmouth indicates that he had fallen in with the "wrong crowd" at a difficult time in his life. I accept that at the time of the offences Mr Jones was experiencing difficulties, including mental health problems and problems associated with long-term drug use. That, however, does not fully explain his behaviour.
In his correspondence with the Commissioner at the time of his application for internal review, Mr Jones sought to downplay and deflect responsibility for his past criminal conduct. The reports of Mr Learmouth indicate that Mr Jones now understands the nature and seriousness of his crimes, accepts responsibility and is remorseful. His family has been very supportive which has assisted in his rehabilitation and he now wants to resume his former occupation as a motor mechanic. Mr Learmouth's view that employment is an important factor in Mr Jones' rehabilitation carries some weight.
Mr Jones intimates that, because, as a mechanic, he is not in a public facing position within a business, his past offending should be of little concern. In Tromberro the Tribunal accepted that the significance of the offences involved in that case was less than it otherwise would have been if the applicant had been seeking a motor dealer's or repairer's licence. The rationale, which I accept, is that a dealer or repairer is running a business with the accountabilities and responsibilities that accompany such a business, while a motor mechanic is a qualified individual in the employ of a licensee (see Grenfell at [11]). It is in the context of his work as a motor mechanic that Mr Jones' offending must be viewed.
I accept that, as a motor mechanic, Mr Jones would not have responsibility for his employer's finances and, in reality, may have little contact with members of the public. His level of contact, however, may well depend upon the size and nature of the business in which he is employed. What is concerning is the nature of the offences for which he has been found guilty as they relate to a criminal enterprise and includes serious firearms offences.
Mr Jones did not disclose all his convictions on his application form for the licence. His explanation that he could not do so because he was filling out the form on his mobile phone is unconvincing. I do not accept Mr Jones' evidence that he did not intend to deceive the Commissioner by not disclosing all his convictions. The fact that he disclosed what is arguably the least serious offence on the form but neglected to include any others indicates that his action was deliberate. While his reluctance to disclose the extent of his offending is understandable, it points to a lack honesty as did his response to the Commissioner when he was asked to provide further information about the offences.
A relatively short time has passed since Mr Jones' is offending. Indeed, his period of parole has only just expired. His offending appears to be confined to a particular period in his life and the evidence before me is that he has been actively engaged in rehabilitation. In this context his referees are supportive of him being given an opportunity to move forward and to put this part of his life behind him.
Given the seriousness of Mr Jones' past offending, his lack of candour in providing information about his offending to the Commissioner, the general paucity of information surrounding the circumstances of his offending and the fact that little time has passed since his conviction, I am not satisfied that sufficient time has passed which would demonstrate that Mr Jones has turned a corner and is not at risk of reoffending. I am therefore not satisfied that at the present time he is a fit and proper person to hold a tradesperson's certificate in the class of motor mechanic.
That is not to say that at no point should Mr Jones be granted the licence. If after a further period in the community he is able to demonstrate good behaviour and positive engagement it may well be that a further application would be considered favourably (see Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15).

Orders 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 July 2020

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Judgment (6 paragraphs)

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Cases Cited (7)