Leclere v Commissioner for Fair Trading

NCAT Administrative and Equal Opportunity|2019-11-12|Before: Gaudron JJ

Judgment

Mr Kane Leclere applies to the NSW Civil and Administrative Tribunal for review of the decision made by a delegate of the Commissioner for Fair Trading, affirmed on internal review, to refuse to grant his application for a contractor's licence in the "specialist work" category of "air conditioning and refrigeration". The stated reason for that decision was that Mr Leclere is not a fit and proper person to hold a contractor licence because of his convictions for drug-related offences.
For the reasons that follow, I have decided to affirm the decision of the Commissioner to refuse Mr Leclere's application for a contractor licence.

Statutory framework

The Home Building Act 1989 (the Act) regulates the residential building industry in NSW. Part 3 of that Act establishes a licensing scheme for persons contracting to do "residential building work" and "specialist work". Specialist work is defined to include air-conditioning and refrigeration work whether or not done in connection with a dwelling: s 21(1)(b) and cl 1 of Sch 1 of the Act and regs 14(b), 14(i) of the Home Building Regulation 2014 (NSW).
The Secretary may grant contractor licences for the purposes of the Act: s 19(1). The Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence: s 20(1)(a). Section 20(1A) states: 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.

Meaning of "fit and proper person"

The expression, "fit and proper person", is not defined by the Act. That expression does not carry any precise meaning and takes its meaning from its statutory 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] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ; Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 [30], [31]. Here, the context is the statutory scheme established for the registration of contractors engaged in the residential building industry and persons undertaking specialist work. Under that scheme, the Secretary represents to the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence: Davidson v Director General, NSW Fair Trading [2015] NSWCATAD 9 at [3].
In determining whether an applicant for a contractor licence is a "fit and proper person" the Act instructs that the decision maker must consider whether the applicant is of "good repute, having regard to character, honesty and integrity". In Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal, considered whether there was a difference between the notion of a person being "fit and proper" and being of "good repute" explaining at [13], [14]: This Tribunal has accepted that the requirements of 'good repute' and 'fitness and propriety' go to different aspects of a person's attributes. 'Repute' denotes the estimation in which a person is held by those who know him, and the wider community. Whereas, the question of whether a person is 'fit and proper' to hold an authority raises the question of the person's intrinsic moral character. It may turn out that a person is held in high esteem by the community but there are issues of intrinsic moral character, or underlying qualities of character, that disqualify the person from being granted a relevant licence or authority, especially when account is taken of the nature of the industry or occupation for which the authority or licence is sought. Equally a person may be held in low esteem, but be, in fact, a person of good intrinsic moral character.

The subject offences

In 2013, the then 21-year-old Mr Leclere was convicted by the NSW Local Court of the offence "possess prohibited drug" and fined $200. He appealed against the severity of that sentence to the NSW District Court, without success. In these proceedings, Mr Leclere claimed that the offence occurred at a music festival where he was found to have in his possession a half a gram of methylenedioxy-methamphetamine (MDMA), commonly called Ecstasy
In 2018, Mr Leclere was convicted by the NSW District Court of the offences of "supply prohibited drug (not cannabis) less than indictable quantity", "supply prohibited drug (not cannabis) more than indictable quantity" and "deal with property proceeds of crime less than $10,000". In these proceedings, Mr Leclere claimed that the drugs the subject of the second of these offences was cocaine (9.06 grams) and MDMA (less that one gram). In addition, he claimed that the amount the subject of the third of these offences was about $3000. The Court imposed a three-year "Intensive Corrective Order" which will end on 11 October 2021 (see Pt 3 of the Crimes (Administration of Sentences) Act 1999 (NSW)). That order requires Mr Leclere to submit to the supervision of the Community Corrections Office and to undertake 700 hours of community service.

Employment and education history

Mr Leclere completed his HSC at TAFE. In 2014, after working for a short period in a warehouse, Mr Leclere commenced an apprenticeship with Beaver Air Conditioning. He remains in the employ of Beaver after completing his apprenticeship in 2017. He now holds a Certificate 3 in "Heating Ventilation and Air Conditioning".
In a reference dated 9 October 2018, tendered by Mr Leclere in the District Court proceedings relating to his 2017 offences, Beaver Manager, Mr Matthew Knight, who has known Mr Leclere since he commenced at Beaver, wrote that he is "proud to be the manager of such a promising employee". According to Mr Knight, Mr Leclere has been a "decent, hardworking and trustworthy person". Mr Knight attested to Mr Leclere's strengths as an employee and wrote that he is held in high regard by colleagues and customers.

History of illicit drug use

In a sentencing assessment report dated 8 October 2018, Community Corrections Officer, Ms Therese Ross, detailed Mr Leclere's reported history of illicit drug use. Ms Ross recorded that Mr Leclere has a lengthy history of "recreational" drug use, starting at age 18 years when he commenced taking MDMA. Ms Ross recorded Mr Leclere's claim that he has never been addicted to MDMA and that his drug use "escalated" in July 2017, following the breakdown of a long-term relationship.
Ms Ross recorded that Mr Leclere demonstrated "good insight into the impact of his offending" and acknowledged that his behaviour could result in "setting other people on the path of drug use and financial problems". She wrote that assessed on the Level of Service Inventory-Revised (LSI-R), an actuarial assessment tool widely used to determine a person's risk of re-offending, Mr Lechlere poses a medium to low risk of reoffending.
In these proceedings, Mr Leclere claimed that when charged in December 2017 his life was "chaotic and a bit of a wreck". He said he had a series of "bad girlfriends", was going out every night, drinking and taking drugs. He stated that he started to supply drugs to finance his illicit drug use. He claims his life has changed dramatically: he no longer uses illicit drugs, works five to six days per week, attends the gym regularly and no longer socialises with former friends and acquaintances who were "into drugs and stuff". He describes the 2018 conviction as "the biggest regret in my life".
According to Mr Leclere, when he first reported to the Community Corrections Office as required by the Intensive Corrective Order, he was told he was exempt from the requirement to submit to regular drug tests but could be asked to undertake a drug test at any time.

Psychological treatment

Throughout 2018, Mr Leclere attended forensic psychologist, Ms Yiota Zingirlis, for treatment on a regular basis. In a report dated 9 October 2018, Ms Zingirlis wrote that Mr Leclere readily engaged throughout the treatment and was respectful. She wrote that he has remained motivated to "address his emotional experiences and develop pro-social responses" and denies any cravings to use illicit substances. She wrote that throughout the period she treated Mr Leclere, he remained physically active and maintained stable employment and a supportive personal network, factors which in her opinion were protective against further offending and relapse into drug use.

Opinion of Dr Marcelo Rodriguez

In the sentencing hearing before the NSW District Court, Mr Leclere tendered a report prepared by Dr Marcelo Rodriguez, dated 18 September 2018.
Dr Rodriguez recorded in his report, the history given by Mr Leclere of illicit drug use: using Ecstasy on his 18th birthday; trying MDMA at 19; consuming cocaine in his early 20s on an occasional basis, usually with friends; consuming amphetamines in his early 20s but not extensively; using GHB twice but not liking its effects; trying magic mushrooms and LSD on a couple of occasions; using Dimethyltryptamine on many occasions; mostly consuming drugs at "rave parties" and when out with friends; never using drugs intravenously.
Dr Rodriguez wrote that Mr Leclere reported that he had been abstinent from all substances for the last 10 months.
Noting Mr Leclere's "stable family background", "unremarkable development", the absence of disciplinary problems at school or "persuasive disregard" for authority, Dr Rodriguez's opined that Mr Leclere did not meet the criteria for a diagnosis of "Anti-Social Personality Disorder" under the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Nor, in Dr Rodriguez's opinion, did Mr Leclere meet the criteria for a diagnosis of "Substance Use Disorder".
In Dr Rodriguez's opinion, Mr Leclere has a "good prognosis": he is young, intelligent, has good supports, is not anti-social, has always engaged in paid employment, has stable accommodation and has demonstrated remorse. In his view, Mr Leclere understands the seriousness of the 2017 offence and the extent to which it has impacted on his mental health, resulting in guilt and depression. He recommended that Mr Leclere receive "targeted psychological treatment" with Ms Zingirlis and, in addition, cognitive behavioural therapy for his mild depressive periods and maintenance therapy to avoid relapse.
In Dr Rodriguez's view, assessed under the LSI-R, Mr Leclere's risk of reoffending was "low" and he does not pose a risk to either himself or the community. In his view, Mr Leclere could be suitably managed by ongoing supervision by the Parole Board.

Character referees

In a letter dated 8 May 2018, prepared for the District Court proceedings, family friend, Mr Tanner May, wrote that Mr Leclere was "approaching these charges, and this entire situation with great care and seriousness". He wrote that Mr Leclere deeply regrets his offending conduct, has learned from the experience and is focused on "self-improvement".
The character reference provided by Mr Knight is to the same effect. See [11] above.

Is Mr Leclere a fit and proper person to hold a contractor licence?

The Act instructs that I must refuse Mr Leclere's application for a licence if I am not satisfied that Mr Leclere is a fit and proper person to hold a contractor licence.
Mr Leclere contends that the following considerations, taken together, support a finding that that he is a fit and proper person to hold a licence. First, his decision to cease using illicit drugs and the steps he has taken to ensure that he does not relapse into drug use, including engaging with psychological treatment, distancing himself from former friends and acquaintances and maintaining good physical and mental health. Second, the expert evidence that he poses a low risk of reoffending. Third, his demonstrated insight and remorse. Fourth, his candour, demonstrated by disclosing his criminal history when applying for a contactor licence. Fifth, the opinions of Messrs Knight and Tanner, persons of good repute who attest to his good character.
The parties agree that the central issue raised in his application is whether I can now be satisfied Mr Leclere has reformed. While not determinative, the fact that Mr Leclere is subject to an Intensive Corrective Order and will remain so until October 2021, is relevant to the task of determining whether Mr Leclere is a fit and proper person to hold a licence.
While care should be taken in applying statements of authority which relate to different regulatory regimes, the following oft-cited passage from Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 460-461, approved in part by the Court of Appeal in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637 provides useful guidance to the task of assessing whether in light of his criminal conviction, Mr Leclere is a fit and proper person to hold a contractor licence: Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited some serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show some years later he has established himself as a different man.
Mr Leclere has a long history of polysubstance abuse. Over time, he commenced supplying illicit drugs to finance his drugs use. While arguably the 2013 offence could be characterised as a folly of youth, Mr Leclere's more recent offences are in a different category. While not the most serious type of offence, the 2017 offences, in particular the offences of supplying illicit drugs and dealing with the proceeds of crime, are objectively serious. It is against that background that Mr Leclere bears a practical onus of proving, on the balance of probabilities, that he is reformed and is a fit and proper person to hold a licence.
In deciding whether Mr Leclere is a "fit and proper person" the question of whether the community would have confidence that any improper conduct will not reoccur is a relevant factor (Bond at 380 per Toohey and Gaudron JJ).
Mr Leclere is not a hardened criminal. The available evidence does not suggest that he has a substance abuse disorder or some other psychological condition which might pre-dispose him to such disorder. Mr Leclere's self-report is that over the last two years he has made a series of positive changes: he has been drug-free, genuinely engaged with psychological counselling and distanced himself from anti-social peers. In addition, even during the period where he was regularly using illicit drugs, he maintained stable employment and enjoyed family support. The respect in which he is held by his employer and peers as evidenced by the comments made by Mr Knight, is a further positive indicator.
Against these favourable factors is the fact that there is little evidence to support Mr Leclere's claim of having reformed. In these proceedings, the only evidence tendered to support that claim was the material presented to the District Court over 12 months ago. In circumstances where Mr Leclere has a long history of illicit drug use, less than 24 months has elapsed since he was charged with and convicted of serious offences, together with the scant supporting evidence to support Mr Leclere's claim of having reformed I am not satisfied Mr Leclere is now a fit and proper person to hold a contractor licence. It follows that the decision to refuse Mr Leclere's application for a licence must be affirmed.

Order 1. The decision to refuse to grant Mr Leclere's application for a contractor's licence in the category of "air conditioning and refrigeration" 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: 10 January 2020

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