Lee v Commissioner for Fair Trading, Department of Finance, Services and Innovation

NCAT Occupational|2018-05-02|Before: Dr J

Solicitors: Legal Services Fair Trading (Respondent) File Number(s): 2017/00268490

REASONS FOR DECISION

The respondent ("the Commissioner") refused the applicant's application for a supervisor certificate on the basis that he was not a fit and proper person to hold such a certificate. The main reason for forming this view was that the applicant had been convicted of serious offences including drug supply and drug possession. The Commissioner also considered that the applicant had concealed some of his criminal history on his application form, even though he had revealed the more serious charges.
I found that the applicant did not deliberately conceal his previous offences on his application form. I also found that the applicant has reformed since the offences he committed about four years ago. He has stopped taking drugs, he has undergone counselling to address underlying psychological issues and he has expressed remorse for his actions. He has also taken positive steps towards a pro-social lifestyle, including by accepting more responsibility in his career and committing to a long-term relationship.
Having regard to the applicant's behaviour over the last four years, the evidence of his understanding of the effects of his actions on others, and to expert opinions that his positive behaviour is likely to continue, I have found that he is a fit and proper person to hold a supervisor certificate.

Background

Between March and May 2014, the applicant supplied drugs to buyers at the request of a friend, who had a business of supplying drugs, but who had gone overseas. The applicant was later charged with, and then convicted of, supply and possession offences.
The applicant has a number of earlier convictions on his criminal record. These are "drive on road whilst licence suspended," an offence committed in late 2009, possess prohibited drug (2010), supply a prohibited drug (2015), bring/introduce small quantity of drug into detention centre and possess prohibited drug (2013).
The applicant applied for a qualified supervisor certificate under the Home Building Act 1989 (NSW) in 2016. In his application, in response to a request for information about all criminal offences within the last ten years including pending matters, he indicated he had "pending drug related charges." The applicant explained on the application form that he had "acted in favour of a friend whilst he was travelling and ended up delivering drugs to undercover operative."
Fair Trading sent the applicant a letter requesting further information, including a certified copy of the final court decision and a certified copy of a national police certificate. The applicant did not provide the further information requested.
On 13 February 2017, the applicant's application was refused.
The applicant then lodged a further application for a supervisor certificate on 29 March 2017. In that application, he also disclosed that he was subject to a drug supply charge which was pending.
On 18 April 2017, Fair Trading issued a notice to the applicant requiring him to produce a certified copy of the final court decision on the pending criminal matter and a certified copy of a national police certificate.
On 5 May 2017, the applicant was convicted of drug supply offences (to which he pleaded guilty) and sentenced to two intensive correction orders of twelve months, and one intensive correction order of 22 months.
On 19 May 2017, the applicant provided the Commissioner with a copy of a national police certificate and the "notice of penalty" from his criminal proceedings.
On 31 May 2017, the Commissioner determined to refuse the applicant's application on the basis that he was not a fit and proper person to hold a certificate under the Home Building Act.

Jurisdiction

The Tribunal has jurisdiction to hear this matter pursuant to s 83B(1) of the Home Building Act, s 9(1) of the Administrative Decisions Review Act 1997 (NSW) and ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW). The application was made within time: see Civil and Administrative Tribunal Act, s 40, Civil and Administrative Tribunal Rules 2014, rr 24(3) and (4).

Relevant legislative provisions

The "Secretary" (that is, the Commissioner) must refuse an application for a supervisor certificate if he or she is not satisfied that the applicant is a fit and proper person to hold such a certificate (Home Building Act, s 25(1)(a)). In determining whether an applicant is a fit and proper person to hold a certificate, the Commissioner is to consider whether the applicant is of good repute, having regard to character, honesty and integrity (Home Building Act, s 25(1A)).
Although there are other circumstances in which the Commissioner is required to refuse an application for a supervisor certificate (see Home Building Act, s 25(1)(a1) to (d)), the Commissioner has not suggested that any of those circumstances apply and the Tribunal is satisfied that they do not apply.

"Fit and proper" and "good repute"

The meaning of the term "fit and proper person" has been considered by this Tribunal and other courts and tribunals, on many occasions.
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156, Dixon CJ, McTiernan and Webb JJ 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."
A person's fitness and propriety is 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]). As Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 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."
The relevant context here is the provision of an authorisation to supervise home building work. I respectfully adopt Senior Member Ransome's observations in Spasevski v Commissioner for Fair Trading [2017] NSWCATOD 53 ("Spasevski") at [12]-[17], another case determining an application for review of a licensing decision under the Home Building Act, about the relevant legislative regime: "17 Under the licencing regime established by the Act, the Commissioner warrants to the public that, not only has the licenced person the requisite skills, qualifications and knowledge to undertake the work, but that they are also a person in whom the home owner can have confidence."
The issue of a person's fitness and propriety, in circumstances where that person has criminal convictions to his or her name, was considered by the Administrative Decisions Tribunal in Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57. That was a case considering the fitness and propriety of a person to hold a tradesperson's certificate under the Motor Vehicle Repairs Act 1980 (NSW). The applicant had been convicted of criminal offences when he was 19 or 20 and was, at the time of the tribunal proceedings, about 25. Judicial Member Molony said at [15]: "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."
As indicated above, in determining whether the applicant is a fit and proper person, it is also necessary to consider whether he is of good repute, having regard to character, honesty and integrity.
The term "repute" goes to the public estimation of a person while "fit and proper" goes to such matters of character "as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry": Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 at [13].
Evidence of a conviction for a criminal offence is prima facie evidence of bad repute: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 402 [31]. However, it is not determinative evidence, and the factual issue is to be determined in all the circumstances of the case: Saadieh v Director General, Department of Transport [1999] NSWADT 68 at [14]-[15].
Saadieh v Director General, Department of Transport [1999] NSWADT 68 was an application for a review of a decision to cancel an applicant's taxi authority on the grounds that he was not a fit and proper person (including that he was not of good repute). The main issue going to the applicant's fitness, propriety and repute was that he had been convicted of several offences in a period in which he was using heroin. Deputy President Hennessy commented at [17] to [18]: "17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors 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 re-offend, be the subject of further complaints or commit further traffic offences. 18 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 applicant's circumstances such as increased support from friends, family or professional service providers."
These comments are relevant, with appropriate modifications, to the fitness and propriety of a person who has criminal convictions to hold a supervisor certificate under the Home Building Act.

Is the applicant a fit and proper person to hold a supervisor certificate?

The Commissioner relied primarily upon the following circumstances to support the decision that the applicant is not a fit and proper person to hold a supervisor certificate: 1. The applicant's failure to disclose his criminal record, other than his pending criminal charges, on his applications; 2. The gravity of the applicant's convictions; 3. The consideration that granting the applicant a qualified supervisor certificate whilst serving an intensive correction order for serious criminal offences is likely to have a negative impact upon public confidence in the industry; and 4. The circumstance that the applicant has not yet been rehabilitated - or has not yet demonstrated that he has been rehabilitated -- as he is still serving his sentence by way of an intensive correction order.

Failure to disclose criminal record

There is no dispute that the applicant failed to disclose his criminal record, other than his pending criminal charges, in his two applications for a qualified supervisor certificate.
The applicant was found guilty of drug possession and possession of a prescribed restricted substance when he was 20 and was given a bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That provision provides relevantly that, without proceeding to conviction, a court that finds a person guilty of an offence may make an order discharging the person on condition that the person enter into a good behaviour bond. The applicant gave unchallenged evidence that, when he filled out his application forms, he did not understand those to be criminal convictions.
In 2013, at the age of about 23, the applicant was convicted of taking drugs into a detention centre. He gave evidence that he took prescription drugs, being painkillers, into a detention centre for a friend. The applicant's evidence was that he was sent a letter in the mail with a fine but never went to court - and was not required to do so. He simply paid the fine. His unchallenged evidence was that he did not understand that the fine involved a criminal conviction.
The applicant also gave unchallenged evidence that he did not understand, when filling out the Fair Trading application forms, that his conviction in 2009 for driving whilst his licence was suspended, for which he had been fined, was a criminal conviction.
The applicant's evidence was that, when he filled out the application forms, he did not realize that he had a criminal record and that he thought, in any event, that Fair Trading would have access to his criminal record.
Whilst it is unfortunate that the applicant did not disclose the matters referred to above, on balance, I accept the applicant's evidence as to why he did not do so. He disclosed the charges against him. These were for more serious offences than those of which he had been convicted. A person seeking to hide his criminal history and criminal record in order to be granted an authority would be more likely to disclose nothing, or to disclose minor offences and to conceal serious charges. The applicant did, eventually, provide his National Police Certificate to the Commissioner, even though he did not do so when it was first requested. I accept his evidence that he was waiting for the outcome of his pending criminal proceedings before obtaining the certificate. Once those proceedings had been concluded, he provided it promptly.
The applicant appeared to be open with the Tribunal in giving his evidence. His treating psychologist, Ms Gilto, expressed the opinion that he was "very open" with her. Taking into account the circumstances that the applicant's evidence was unchallenged, that his psychologist considers him to be candid and that he appeared open and frank when giving evidence, I find that, at the time the applicant filled in his application forms, he did not understand that he had a criminal record.
In light of this finding, the Commissioner's submissions about the applicant's failure to disclose his criminal record lose their force.

Gravity of the applicant's convictions

The applicant's convictions are very serious. For the most recent offences of "Supply Prohibited Drugs on an Ongoing Basis" (s 25A(1) of the Drug Misuse and Trafficking Act 1985) and "Supply Prohibited Drug > Indict. Quantity (Not Cannabis)" (s 25(1) of the Drug Misuse and Trafficking Act), he was sentenced to a 22-month and two 12-month intensive correction orders. The offences carry maximum terms of 20 and 15 years' imprisonment respectively.
The earlier offences, although not as serious as the supply offences, are nevertheless not insignificant. I accept the respondent's submissions that the applicant's offences, when considered as a whole, demonstrate a pattern of conduct which tends to suggest he is not a fit and proper person to a supervisor certificate.

Public confidence in the industry

The Commissioner submitted that the decision to grant the applicant a certificate must be considered in light of the public interest. It was submitted that granting the applicant a qualified supervisor certificate, in circumstances where he is serving an intensive correction order for serious criminal offences, is likely to have a negative impact on public confidence in the industry.
The ground on which the Commissioner relies for refusing the applicant's application is that the applicant is not a fit and proper person to hold a supervisor certificate. That does not, on its face, involve consideration of whether granting him a certificate would have a negative impact on public confidence in the industry. I have doubts that this is a legitimate question to ask, as it is likely to distract the Tribunal from the principal question before it, relating to the applicant's fitness and propriety.
If, however, it is legitimate to consider whether the grant of a supervisor certificate is likely to have a negative impact on public confidence in the industry, I am not persuaded that it would do so. The "industry" to which the Commissioner refers is not specified, but presumably it is the building industry or a subset of it. It may be that a person, who is uninformed as to the applicant's circumstances, would have less confidence in the building industry as a result of knowing that the applicant was still serving a sentence whilst holding a supervisor certificate. However, that is not a proper basis on which the Tribunal may decide this case. The Tribunal has provided detailed reasons for reaching its conclusion in this matter. The reasons I have decided to grant the applicant's application are transparent and available to any member of the public who wishes to read them. I do not accept that a member of the community, properly informed as to the facts of this case and the grounds for this decision, would lose confidence in the building industry (or a subset of it) because the applicant holds a supervisor certificate whilst still subject to an intensive correction order.

Rehabilitation

The applicant's counsel, Ms Ghabrial, submitted that, since his last offence, the applicant had completely rehabilitated himself. She also submitted that the applicant has accepted complete responsibility for his offending behaviour. The applicant relied upon the evidence of his treating psychologist, Ms Gilto, and a forensic psychiatrist, Dr Furst, in support of the submission that he had been rehabilitated. Ms Gilto and Dr Furst both gave evidence in the applicant's criminal case and wrote further reports for these proceedings.
There are a number of factual matters which support the proposition that the applicant has reformed or been rehabilitated, since committing the 2014 drug offences. He has been seeing Ms Gilto, on his own initiative, since March 2016 and I accept his evidence (and hers) that this has helped him to manage his anxiety and to behave in a more pro-social way. The applicant said that the offence of supply was "uncharacteristic" but that he had agreed to do this for a friend because he had difficulty saying "no." I accept his evidence that, through his sessions with Ms Gilto, he has developed a better ability to make decisions and to refuse to do things for other people where to do so would be inappropriate. I also accept his evidence that, recently, he left a bar when acquaintances started using drugs in his company, indicating that he is now better able to avoid situations where he would be at risk. As Dr Furst said in oral evidence, the applicant has matured since the offences and is less likely to make impulsive or irresponsible decisions.
I also accept the applicant's evidence (which was not challenged) that he gave up using drugs when he spent a week in gaol in about June 2014, prior to being released on bail for the 2014 offences. This means that he has been drug-free for about four years. The applicant has expressed a strong commitment to abstaining from drug use. Both Ms Gilto and Dr Furst were of the view that it was unlikely that he would use drugs again. Dr Furst explained that the applicant's prognosis was good because he had been a recreational user, but did not have a physiological addiction. The applicant was using drugs for about two years, which was on the lower end of the spectrum, in Dr Furst's opinion. Despite using drugs, the applicant was able to maintain employment and to maintain relationships with family and other people. He is now older and more mature and has so much more to gain from staying sober in terms of his relationship and his work. I accept Dr Furst's opinion, which is supported by that of Ms Gilto, that the applicant's risk of relapse into drug use is low.
The applicant is now in a long-term relationship and engaged to be married. He has maintained a position in a company in the solar industry for eight years, and has been promoted to a position of responsibility. He and his fiancé have recently bought an apartment and they plan to have children. The applicant has clear goals for the future. Ms Gilto expressed the view that, over the last year and a half, the applicant had "shown remarkable personal development which have [sic] resulted in him obtaining a promotion at work, buying his first property and maintaining a long term relationship." In her opinion, the applicant was at low risk of offending in the future, having implemented changes to all aspects of his life including his attitudes and mental health. All these factors support the applicant's submission that he has been rehabilitated and is unlikely to reoffend.
The applicant gave sworn evidence that he was remorseful for his crimes. The applicant described himself, in oral evidence, as having "hurt" and "let down" his family, his fiancé and his employer. He recognised that his supply of drugs could have hurt a lot of people, being the recipients of the drugs and their friends and family. References supplied by the applicant also describe him being remorseful and disappointed in his own choices and actions. Ms Gilto indicated that the applicant had expressed remorse to her. Dr Furst reported that, on each of the three occasions he had assessed the applicant, the applicant had expressed remorse and that he had described his actions of supplying and using drugs as "the biggest mistake of my life." I find that the applicant regrets what he did and has insight into the effects of his behaviour.
The applicant does not have any psychological disorder which might lead him to re-offend. Whilst Ms Gilto reported in April 2016 that the applicant suffered from mild depression and extremely severe anxiety and severe stress, and diagnosed him as suffering from generalized anxiety disorder with panic. However, she is now of the view that he has overcome these conditions. Dr Furst was of the view that the applicant currently meets criteria for the diagnosis of a substance use disorder (cocaine and MDMA abuse) that is in remission. He explained, in oral evidence, that what he meant by "remission" was that the applicant is not currently satisfying criteria for drug dependence. In Dr Furst's opinion, the applicant's anxiety disorder has now resolved. I accept this evidence.
The applicant's evidence is that he no longer associates with the people with whom he formerly took and supplied drugs. Ms Gilto expressed her understanding that the applicant had not been associated with "any of the involved parties" since the offence. Again, this evidence was unchallenged and I accept it.
A letter of a community corrections officer states that the applicant has attended the community service work component of his intensive correction order without fail. The letter notes that the applicant was given consent to travel interstate. As the applicant said in oral evidence, this is very unusual. The applicant said, and I accept, that he was also given permission to travel overseas and that his community corrections officer helped him with his application to do so. The fact that the applicant has the support and trust of community corrections officers is a significant indication of his reformation.
The Commissioner acknowledges that the applicant has provided several character references from persons who are aware of his convictions and attest to his character. The Commissioner also acknowledges that Ms Gilto and Dr Furst have assessed him as having a low risk of reoffending. However, the Commissioner submits that "the fact the Applicant is still serving a term of imprisonment, albeit in the community, means that he has not demonstrated that he is rehabilitated through a period of good behaviour in the community when he is not subject to the supervision that an ICO entails." The Commissioner's proposition appears to be, essentially, that the applicant is required to persuade the Tribunal that he has been rehabilitated and that he may only do this through a period of good behaviour in the community after he is no longer subject to an intensive correction order.
The Tribunal's task, in merits review proceedings such as these, is to determine the correct and preferable decision at the time of making its decision; there is no onus of proof on either party (see, for example, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [34]; Boyle v WorkCover Authority of New South Wales [2015] NSWCATAP 183 at [202]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]). In circumstances where an applicant has been convicted of offences, and claims to have been rehabilitated, the applicant has a practical onus to establish that this is the case: see, for example, Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 248 at [19].
The Commissioner relied upon McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183, a decision of the Land and Environment Court, hearing an appeal from an administrative decision to refuse the appellant's application to be registered as a practicing real estate valuer. The appellant had to establish that he was of "good character" in order to be entitled to registration. Lloyd J concluded that he was not, reasoning that "I do not think that a person who is still under a bond in respect of a serious criminal offence can be said to be a person of good character." It may be that, in general, a person who is under a bond is unlikely to be of good character, or that such a person will have a heavy practical burden of persuading a court or tribunal that he or she is of good character. However, the question of whether a person is "fit and proper" to hold a supervisor certificate (a slightly different, but related question) is a question of fact. There is no legal principle to the effect that a person subject to a bond can never be fit and proper to hold a supervisor certificate. All depends upon the circumstances of the particular case.

Conclusion

I am satisfied that the applicant is now fit and proper to hold a supervisor certificate, notwithstanding that he has committed serious crimes and is still serving his sentence. In oral evidence, Dr Furst said it was "very unlikely" that the applicant would go back to using drugs when his intensive correction order expired. He also expressed the view that the applicant was likely to continue on his positive pathway. I agree. The applicant has made substantial positive changes to his life, including giving up drugs, undergoing counselling, committing to a long term relationship, and taking on further responsibility at work. His conduct over the last four years has been that of a responsible citizen. The insight he has shown into his offending is significant. He has demonstrated that he is now capable of making positive decisions such as declining drugs when they are offered to him.
I find that the applicant is of good repute, notwithstanding that he is still subject to a bond. The applicant has provided the Tribunal with eight character references, which he previously provided to the court in his criminal proceedings. These references all demonstrate a knowledge of the charges against him, and describe his behaviour in committing the offences as "out of character." They also describe him as being "of good character," "polite" and "respectful," "dedicated to his mother and sister," "courteous" and "trustworthy." The applicant has the full support of his employer, who is aware of his convictions. The evidence establishes that his reputation is that of a person of good character, notwithstanding his convictions and sentence.
Having regard to the applicant's character, honesty and integrity as at the time of the Tribunal hearing, I find that he is now a fit and proper person to hold a supervisor certificate and that he is of good repute. He is a person in which a home owner can have confidence (see Spasevski, above, at [17]). He is also possessed of sufficient moral integrity and rectitude of character, in 2018, as to permit him to be safely accredited to the public without further inquiry (see AIC's case, above, at [13]).

Orders

For the reasons given above, I make the following orders pursuant to s 63(3)(c) of the Administrative Decisions Review Act 1997: 1. The respondent's decision is set aside. 2. The applicant is to be granted a supervisor certificate.

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: 28 June 2018

Motor Vehicle Repairs Act 1980(NSW)

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