McIvor v Commissioner for Fair Trading

NCAT Administrative and Equal Opportunity|2017-05-22

Background

On 16 September 2016 the Applicant lodged an application with the Respondent for an Individual Contractor Licence under the Home Building Act 1989 ("the Act") in the categories of Carpenter and Joiner.
In response to the disclosure question "Have you been found guilty, within the preceding 10 years, of any offence?", the Applicant answered "Yes".
The Applicant provided the following information regarding his criminal record: I had a massage parlour and gave women on holiday visa's work. When Immergration came the women told them I would not let them leave till they had paid off there debt (sic).
A Police Criminal History Search dated 27 September 2016 confirmed the Applicant had been found guilty of offences in the preceding 10 years. Relevantly, on 15 November 2007 the Applicant was convicted on five counts of intentionally possessing a slave, and five counts of intentionally exercising ownership over a slave. The Applicant was sentenced to twelve years' imprisonment with a non-parole period of seven and a half years. The Applicant appealed the judgment and the finding of guilt was upheld. In 2010 the Applicant was again sentenced to twelve years' imprisonment with a non-parole period of seven and a half years. The Applicant was eligible for parole from 14 June 2016 but his sentence does not expire until 14 December 2020, which means the Applicant is currently on parole and effectively still serving his sentence.
On 14 October 2016 the Respondent determined to refuse the Applicant's application for a Contractor Licence under the Act, on the basis the Applicant is not a fit and proper person to hold a Contractor Licence under the Act.
By email dated 10 November 2016, the Applicant sought internal review of the decision. The Respondent's decision was confirmed on Internal Review on 16 December 2016 ("the reviewable decision"). On 20 January 2017, the Applicant applied to the Tribunal for administrative review of the decision.

The legislative scheme

The Definitions contained in Schedule 1 of the Act define "Secretary" as the Commissioner for Fair Trading, Department of Finance, Services and Innovation.
Under Section 20(1) of the Act, 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.
Under Section 20(1A) of the Act, 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
Section 24 of the Act provides that Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 ("LRUPA") applies to and in respect of a licence, subject to the modifications and limitations prescribed by the Act or the Home Building Act regulations.
Section 18 of the LRUPA provides that a licensing authority may refuse an application for a licence or certificate of registration.
The Act expressly provides that one of the mandatory grounds for refusal of a contractor licence is if the Secretary is satisfied the Applicant is not a fit and proper person to hold a licence. An assessment of whether a person is a fit and proper person will involve consideration of the nature of the role the person seeks to undertake, and the relevant industry within which the role will be performed.

Fitness and Propriety

In Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 the characteristics of fitness and propriety were said to be knowledge, honesty and ability.
The High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 provides further guidance as to the meaning of a "fit and proper person". In that case Toohey and Gaudron JJ stated (at page 380): The expression "a fit and proper person", 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 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. 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.
Their Honours further stated at page 388: The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for valuation by the decision maker. So too is the weight, if any to be given to matters favouring the person who's fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": 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 evolving 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.

The Applicant's criminal convictions

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] ("Grenfell"). Judicial Member Molony 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.
In the case of Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 (24 September 2015) (Poytress), S Montgomery Senior Member 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…"
One of the functions of the licensing regime under the Act is to ensure there is public confidence in the home building industry. In McEvoy v Director General of the Department of Fair Trading [2000] NSWLEC 183, the Land and Environment Court refused a person's registration as a valuer on the basis that he was not a fit and proper person. In reaching such a view the Court said: Secondly, the act of registration as a valuer amounts to public certification that the person is an honest in whom confidence can be reposed (in Re Arnold). Both the public and the court must be able to repose confidence in registered valuers and must be able to accept without question their honesty and good character. In cases of this kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of a penalty to the individual (Dad v General Dental Council [2000] 1 WLR 1538 at 1534. PC). Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character (Ex part Davis, Sakellis)."
In Saleh v Commissioner for Fair Trading [2015] NSWCATOD 68 ("Saleh"), the Tribunal set aside the Respondent's decision on the basis of evidence that Mr Saleh had completed his sentence and parole supervision in relation to his criminal offences over two years before the proceedings, demonstrated he was a changed man and provided a number of references from professional associates.
In Grenfell, the passing of a number of years since Mr Grenfell's convictions, his conduct in the community during this time, the evidence from family and friends that Mr Grenfell was a changed individual, and Mr Grenfell's youth at the time of his offending were factors that were taken into account by the Tribunal in determining that Mr Grenfell should be granted a tradeperson's certificate.
In Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15 ("Cooper"), the Tribunal affirmed the Respondent's decision to refuse Mr Cooper a certificate of registration as a strata manager under the Property, Stock and Business Agents Act 2002 on the grounds that he was not fit and proper. Mr Cooper remained on a good behaviour bond at the time of the hearing. The Tribunal found at [76]: If, after a further period of good behaviour in the community, Mr Cooper were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered.
In Saadieh v Director General, Department of Transport [1999] NSWADT 68 (Saadieh), the Tribunal, when assessing the Applicant's fitness to be authorised to drive a taxi-cab, observed a number of factors need to be taken into account in determining a person's suitability and fitness. 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 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.

Consideration

The Applicant stated that he had no desire or interest to return to the adult industry and was "never doing anything illegal again", he just "wants a legal job to support my family", and I accept that as evidence of his intentions, but in the context of the remainder of his evidence I am unable to agree that these intentions are realistic. The Applicant took umbrage at the hearing at any mention of "slavery", seeking to downplay his crimes as issues relating to hiring and paying cash to workers without visas, and stating "if they were slaves, I wouldn't have paid them $100". He displayed a lack of remorse or contrition for his offences and a total lack of insight into the impact his actions had on his victims or the community, stating repeatedly "the girls went through nothing". In circumstances where he continues to refuse to recognise the legal and personal implications of his actions on other individuals and the general community, I have no confidence in his ability or inclination to comply with the law or acceptable community standards of behaviour.
It was submitted that because the Applicant was on a pension he was not able to provide any references from professional service providers to demonstrate what efforts he has made to rehabilitate himself, but that his obtaining parole demonstrated rehabilitation because "the Board has decided that he is not an unacceptable risk to the safety of the community. Parole is a privilege and is only given to prisoners who comply with prison rules, are truly committed to maintaining a positive lifestyle and becoming a contributing member of the community." I reject the granting of parole to the Applicant as demonstrating rehabilitation for the purposes of determining his fitness and propriety under the Act. There was not a single statement put forward in support of the Applicant's positive role, reputation or engagement in the community following his release. This indicates to me that the Applicant's reputation in the community is poor.
It was submitted that his wife and son's attendance at the hearing demonstrated their support for the Applicant. Their support of the Applicant through attendance is of minimal relevance to the Tribunal's consideration. I refused the Applicant's request at the hearing without notice for leave to put forward his son, who is a minor, as a character reference as entirely inappropriate in the circumstances.
The Applicant gave no evidence of any rehabilitation or attempts at rehabilitation, save for 5 psychologist appointments which he considered were unnecessary, but which he attended as a condition of his parole. In support of his application, the Applicant submitted that he held his original contractor licence for nine years, and never breached its terms. The licence expired in 1997. He submitted that the offences for which he was convicted in 2010 were not committed while on duty as a contractor, and that since that time he has committed no offences. It was submitted that he posed no danger to the public and that given his age and limited education, he would have little prospect of finding reasonably paid employment outside his original trade qualifications. It was submitted that the chances of his reoffending were "slight" on the basis that he had no assets.
Whether or not the Applicant "breached the terms" of his previously held licence was a matter of factual dispute which is ultimately irrelevant for the Tribunal to determine in this context. The undisputed fact was that there had been multiple complaints made against the Applicant when he was a building contractor in the late 1980s/early 1990s. Those complaints may or may not have been justified or upheld, but the fact is, there were complaints made, which is a relevant factor in the Tribunal's consideration of the Applicant's fitness and propriety. However I afford that consideration little weight due to the passage of time and low relevance in the context of the other fitness and propriety issues.
I also consider that the fact he was not "on duty" when he committed the offences has little relevance in the context of the objective seriousness of those offences. His criminal convictions are unrelated to his work as a building contractor, but are substantially relevant to the ability of the Respondent to assure the general public and community that they should rely on, or place any kind of trust or confidence in, the Applicant as a person of good character, honesty or integrity. Similarly, the assertion that he "posed no danger to the public" is not the relevant test or threshold applied in considering an individual's fitness, propriety or reputation, which requires far more. I consider his financial position and lack of assets entirely irrelevant to my determination.
The Applicant's circumstances are distinguished from those in Saleh and Grenfell on the basis that he is still currently serving his sentence, is on parole and has not demonstrated sufficient reformation of character or rehabilitation since the time of his convictions. With reference to the factors set out in Saadieh, of significance are the following: 1. The offences are serious as reflected by the 12 year sentence imposed on the Applicant; 2. The Applicant's offending behaviour was widely publicised and is likely to have had a negative impact on his reputation in the community; 3. The Applicant has not admitted responsibility for the offences and therefore has not expressed a genuine remorse; and 4. The Applicant has failed to demonstrate what efforts he has made to rehabilitate himself and has not provided any evidence of support from family, friends or professional service providers.
The weight of authority goes against any assessment of the Applicant being a "fit and proper person" under the Act at this time. Whilst unrelated to the work authorised by the licence he is seeking, the Applicant's criminal convictions are clearly relevant to the assessment of his fitness and propriety due to their seriousness, as are his failure to demonstrate remorse or rehabilitation, and his current position on parole.
In the circumstances, the correct and preferable decision is to affirm the Respondent's reviewable decision to refuse the Applicant's application for a Contractor Licence under the Act.

Orders 1. The respondent's decision to refuse the applicant's application for a Contractor Licence under the Act 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 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: 18 August 2017

At a glance

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Decision date

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Judgment (7 paragraphs)

Parties

Cases Cited (6)

Cited By (3)