The decision of the respondent made on 19 December 2005 is affirmed

1 On 19 December 2005 the respondent Business Licensing Authority determined to refuse an application made by Mr Andrew Lehman. Mr Lehman had sought permission to be employed as an employee of a motor car trader in a customer service capacity pursuant to the provisions of s.29B(2)(b) of the Motor Car Traders Act 1986 ("the Act").

2 Mr Lehman seeks to review that determination.

3 Relevantly section 35A of the Act provides -

(1) A motor car trader must not employ in any customer service capacity in connection with her, his or its business any person who the motor car trader knows -

(b) has, within the last 10 years, been convicted or has been found guilty of a serious offence (whether or not a conviction was recorded) (unless the person has obtained permission under section 29B);

(2) A person who is not permitted to be employed in a customer service capacity by a motor car trader by this section must not participate in a customer service capacity in the business of a motor car trader.

(3) In this section "customer service capacity" means any position that requires the holder of the position to deal with members of the public who are buying, selling or exchanging motor cars or who are seeking to buy, sell or exchange motor cars.

4 Section 29B relevantly provides as follows-

(1) This section applies to a person who has been convicted or been found guilty of a serious offence (whether or not a conviction was recorded) within the last years.

(2) The person may apply to the Authority for permission -

(b) to be employed as an employee of a motor car trader in a customer service capacity (within the meaning of section 35A)

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

5 The purpose of the legislation is to be found in section 1 and reads a follows-

The purpose of this Act us to provide for the regulation of motor car traders and to ensure that licensing is carried out efficiently and equitably and that the rights of those who purchase motor cars are adequately protected.

6 The Act is clearly designed to protect the interests of the community. It establishes a system of regulation wherein persons are required to be fit and proper to trade and as can be seen from section 35A, it prohibits certain persons from taking part in the business of motor car trading and in particular it prohibits persons who have, within the last ten years, been convicted of a serious offence. The respondent Authority (and the Tribunal standing in its stead) may grant permission for such a person to be employed only if it is satisfied to do so will not be contrary to the public interest

7 In Robbins v Business Licensing Authority [2000]VCAT 457 Kellam J considered an application from a person who had been convicted of theft and had this to say about the legislation -

It is apparent that the term "public interest" embraces matters, among others, of standards of human conduct acknowledged to be necessary for the good order and wellbeing of the public, and in the circumstances of this case, those members of the public who buy and sell motor cars. Accordingly the function of the Business Licensing Authority (and this Tribunal on an application to review a decision of the Authority) is entirely protective, not punitive. The Authority (and this Tribunal) may only grant permission for a person who has a conviction for a serious offence within the last ten years to be employed in a customer service authority, if satisfied that do to so will not be contrary to the public interest.

8 His Honour then continued by quoting from Inglese v Estate Agents Board (unreported Supreme Court of Victoria 15.8.1988), a case that he saw as particularly applicable to the motor trade as well.

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

9 Mr Lehman gave sworn evidence and was cross-examined by counsel for the respondent. Mr Lehman has an extensive criminal history dating from 1991 onwards and in the ten years preceding his application (that is from October 1995 onwards) he has been convicted of a number of offences including burglary, obtaining property by deception, theft from a shop, unlawful assaults and most recently on 15 October 2004 he was convicted of burglary again, this time in relation to an event that occurred in May 2002. In addition to those convictions (which relate to serious offences as defined in the legislation) he was also convicted in relation to a breach of an intensive corrections order, breach of a suspended sentence order and breach of an intervention order.

10 Although he admitted to several of the convictions in his application form, he by no means provided a complete version and that is clear from the police criminal history report provided to the Tribunal. When questioned by counsel about the circumstances of the various offences, his memory was deficient in some instances and his explanations were not wholly credible given the information provided in the criminal history report and the sentences imposed. He told the Tribunal he had based the information he supplied in the application on information provided by his legal representative. Whatever may have been the situation, the result was that, at least by omission, he sought to put a more positive gloss on his application.

11 Mr Lehman was at pains to assure the Tribunal that he had changed his ways, that he had a wife and children, and that until this present dilemma arose he had been in regular work in the motor trade and furthermore, he had committed no offences since 2002. I accept this is so.

12 The Tribunal was told that Mr Lehman had been in more or less constant employment in the trade from October 1999 to August 2005 with six different motor car traders. The Tribunal did not hear from any of the employers although a statement from one of them (James Chaplin of Front City Car Sales) was made available to the Tribunal. In that statement, Mr Chaplin indicated he was now aware of Mr Lehman's criminal history and that should permission be given by this Tribunal, he would be happy to employ him. Unfortunately Mr Chaplin was not called and thus I can place little, if any reliance on the statement

13 Whilst the Tribunal understands that the first of the employers (Bellara Motors) might not see fit to come forward, the applicant having been convicted of burglary at his employer's home, it is regrettable that nothing was heard from the other employers. The Tribunal observed that he worked for one motor car trader (Yarra Valley Motor Group) for a period of eighteen months and four other firms for varying periods up to, in one case, fifteen months. Mr Lehman told the Tribunal that only one of those employers enquired about his criminal history and he admitted that he had lied to that one. According to him the other employers did not enquire and again, according to his evidence, he was not aware of the prohibition on his employment until October 2005. Of course if Mr Lehman's evidence is correct, then the traders may have breached the Act and may be liable to prosecution and I infer that in those circumstances, they might be reluctant to come forward.

14 I am particularly conscious of the protective nature of this legislation and overall I am not satisfied that Mr Lehman should be permitted to be employed in the industry. This is so notwithstanding his claims of remorse and his undoubted change of lifestyle and his more recent display of insight and responsibility.

15 I might have been persuaded otherwise and accepted his assertions of remorse had there been other evidence to support his claims. It would have been useful to have heard from his past employers who would have been best placed to judge his ability, his character, his application to his work, his reliability and whether or not they perceived him as a risk to the public. The Tribunal can only speculate whether their absence was due to the fact that the applicant was not represented or otherwise.

16 The determination of the respondent is affirmed.