Parsons v Commissioner for Fair Trading

NCAT Occupational|2017-05-24

REASONS FOR DECISION

This is an application by Benjamin James Leigh Parsons seeking review of a decision by the Commissioner for Fair Trading (the Commissioner) that he not be granted a tradesperson's certificate under the Motor Dealers and Repairers Act 2013 (the Act). This decision was made on 28 October 2016 and affirmed on internal review on 29 November 2016.
Mr Parsons had applied for a tradesperson's certificate in the Class of Repair Work being Motor Mechanic. In the application Mr Parsons did not disclose, as required, that he had been found guilty of any offences in the preceding 10 years. A New South Wales Criminal Police Search obtained by the Commissioner revealed that Mr Parsons had been found guilty of multiple offences between August 2009 and January 2016.
The Commissioner refused to grant the tradesperson's certificate on the basis that Mr Parsons is not a fit and proper person to hold a licence.

The legislation

Sub-section 26(1)(a) of the Act provides that the Commissioner must not grant a tradesperson's certificate to an individual if the Commissioner is satisfied that the person is not a fit and proper person to hold a licence.

The evidence before the Tribunal

It is not in dispute that Mr Parsons has had the following convictions in the 10 years preceding his application for the licence:

22 September 2009: one count of possession of a knife in a public place (fined $450);
16 February 2010: one count of larceny in relation to stealing 22 x $5.00 Community Transport Taxi Vouchers, the property of Gosford Community Transport (six months good behaviour bond);
10 August 2010: one count of break and enter (and steal value <$15,000) at Brisbane Water Secondary College, Umina (fined $700 and 2 year good behaviour bond);
10 August 2010: one count possess prohibited drug (cannabis) (fined $200);
21 January 2015: one count of larceny (value <$2,000) (fined $500);
21 January 2015: three counts of dishonestly obtain financial advantage etc. by deception (9 months imprisonment suspended on entering a good behaviour bond);
12 January 2016: two counts possess prohibited drug (cannabis and MDMA) (fined $500 and 12 month good behaviour bond).

Mr Parsons states that he had a difficult childhood marred by alcohol, lack of discipline and poor education. He was homeless at the age of 14 and a father at 16. He states that the worst period of his life was between 2007 and 2010 when he was heavily involved with drugs and alcohol. In 2010 he distanced himself from his destructive environment and moved to the Northern Territory where he worked on a project building houses for Aboriginal communities.
Mr Parsons said he returned to NSW after 13 to 14 months in the Northern Territory and worked as a trades assistant on trucks. He then obtained his apprenticeship as a motor mechanic in 2012, firstly with a garage at a Metro Service Station and then with Kmart Tyre and Auto Service. He completed his apprenticeship in May 2016 and applied for the tradespersons certificate in August 2016.
After his application was refused Mr Parsons remained working at Kmart as a tyre fitter but left about a month ago as he wasn't able to work on cars. He now works as a labourer on the North West Rail Link. He hopes to continue that job for the next 12 months as the money is good but he wants to obtain his trade certificate so he has a career and security for the future. He is in a stable relationship and his girlfriend works full-time.

The application form

Mr Parsons did not disclose on the application form for the trade certificate that he has a criminal history. In answer to the question "Have you been found guilty, within the preceding 10 years of an offence?", he ticked the "No" box.
At the hearing Mr Parsons said that he filled out the application form during his lunchtime and rushed to Service NSW to lodge it. He said that, at the time, he didn't think that a person's criminal record had anything to do with getting a tradesperson's certificate, and he answered "No" without properly reading the question.

The offences

Mr Parsons was questioned at the hearing about the offences recorded against him. He stated that the 2010 offences were at a time when he was using drugs and alcohol.
The convictions in 2015 for larceny and dishonestly obtain financial advantage by deception arose out of an incident in November 2014 at Mr Parson's workplace, the Metro Service Station. A customer had purchased fuel using a credit card. Mr Parsons was walking to the workshop when he found the card on the ground. He picked it up and secured it in his toolbox. Later the same day he made three cash withdrawals ($23.00, $90.00 and $99.00) using the credit card by way of PayPass at the service station.
Mr Parsons said that at the time he was depressed and had turned back to his old habits and was using cannabis regularly. His girlfriend had left him abruptly, taking their son. He had no family support and had gotten behind with his rent. He said his wages were low as an apprentice and he wanted the money to pay the rent as he was living by himself. He described the incident as the biggest mistake of his life.
About a year after the convictions concerning use of the credit card, in January 2016, Mr Parsons was convicted on drug possession charges. He said he was in his car parked at a phone box as his mobile had run out of credit, when he was approached by police who searched the car. They found a small quantity of MDMA and cannabis. He said he was using cannabis at the time but the MDMA had been in the car since 2015.
Mr Parsons said that he stopped smoking cannabis in February 2016 and saw a counsellor. He did not find the counsellor useful but has not taken drugs since. He said he is randomly drug tested in his current employment and passed a drug test three weeks before the hearing. He said he has cleared his credit history and paid his debts. He wants a stable life for the future and hopes to buy a house.

References

Mr Parsons has provided several character references in support of his application. The majority make no reference to Mr Parsons' criminal history. Mr Parsons said he was not aware that his referees should refer to his past convictions. He said that all know of his history and are supportive of him.
Mr Parsons provided a reference from the Operations Manager at Kmart Tyre and Auto who stated that he is aware of Mr Parson's criminal record but that he has turned his life around. Mr Parsons stated that the manager was aware of what had happened at the Metro Service Station when he started employment there.

Criteria in the Act

Section 27 of the Act is as follows (emphasis added): 27 Criteria for being fit and proper person to hold a licence (1) In determining whether a person is a fit and proper person to hold a motor dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence, the Secretary may have regard to any of the following: (a) whether the applicant has, in the preceding 10 years, been found guilty of an offence involving fraud or dishonesty (whether in this State or elsewhere), (b) whether proceedings for such an offence have been commenced against the applicant but have not been finally determined, (c) whether the applicant has been convicted of an offence against this Act or the regulations or another Act administered by the Minister, (d) whether the applicant has failed to pay any contribution or other payment required to be paid by the applicant to the Compensation Fund under this Act. (2) An applicant is not a fit and proper person to be the holder of any licence if the Secretary has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the applicant that: (a) the applicant is a member of, or regularly associates with one or more members of, a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012, and (b) the nature and circumstances of the applicant's relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the applicant is granted a licence. (3) The Secretary is not, under this or any other Act or law, required to give any reasons for refusing an application for a licence or taking disciplinary action against a person because of subsection (2) to the extent that the giving of those reasons would disclose any criminal intelligence. (4) This section does not limit the grounds on which the Secretary may determine that a person is not a fit and proper person to hold a licence.
The Commissioner argues that, in this case (there being no suggestion that Mr Parsons is a member of or associates with members of a declared organisation) ss 27(1)(a) and (4) set out the criteria to be applied to a determination of whether Mr Parsons is a fit and proper person.
This interpretation is, in my view, incorrect. Sections 25 and 26 of the Act set out the grounds for refusal of licences under the Act. Section 25 sets out the grounds for refusing licences other than tradesperson's certificates and specifically states the section applies to motor dealers' licences, motor vehicle repairers' licences and motor vehicle recyclers' licences. Section 26 sets out the mandatory grounds for refusal of tradespersons' certificates. Both sections have as a ground for refusal that the person is not a fit and proper person to hold a licence.
Section 27 of the Act then goes on, as set out above, to specify the criteria to be had regard to in considering whether a person is a fit and proper person to hold a licence. By its own terms s 27(1) refers to licences refused in accordance with s 25, that is, motor dealers' licences, motor vehicle repairers' licences and motor vehicle recyclers' licences. Sub-sections (2), (3) and (4) of s 27 then refer to "any licence" or "a licence" which would include, in addition to those licences specified in s 27(1), a tradesperson's certificate.
As previously noted, the matters set out in s 27(2) (and therefore s 27(3)) are not relevant in this case. Whether Mr Parsons is a fit and proper person to hold the licence falls to be determined in accordance with s 27(4). The import of that sub-section is that the issue falls to be determined in accordance with the common law approach to fitness and propriety.

Common law approach to fitness and propriety

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: 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 ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon 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.
In relation to an applicant's past criminal conduct, in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [15] the Tribunal stated: 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.

Consideration

Mr Parsons is a young man who is about to turn 26. He appears to have had a difficult childhood and adolescence with an unstable family life, a lack of education and a history of substance abuse. I accept his account that in 2010 he was able to distance himself from his former life and stayed out of trouble until late 2014 when he stole the credit card. There is no evidence that he came to the attention of police whilst in the Northern Territory or in the period after his return to NSW prior to the credit card incident.
It is of great concern that the offences concerning the theft and use of the credit card occurred at Mr Parson's workplace. The theft appears to have been opportune and not pre-meditated. Nevertheless, it was a significant betrayal of the trust placed in him as an employee. His explanation that he was going through a rough time and needed the money to pay the rent does not detract from the seriousness of his conduct. While the amounts of money stolen were not significant, the offence was serious and his actions go to his honesty, reliability and integrity. That is reflected in the sentence he received for the offences of nine months' imprisonment (suspended on entering into a s 12 good behavior bond).
Mr Parsons' most recent conviction for drug possession occurred in January 2016. While I accept that he no longer takes drugs, the conviction does demonstrate a tendency on his part to fall back on old behaviours when times are difficult. Mr Parsons acknowledged this at the hearing but states he now wants stability in his life.
There is no doubt that, in the past, particularly in light of his 2015 and 2016 convictions, Mr Parsons would not have been considered to be a fit and proper person to hold a tradespersons certificate. At issue is whether sufficient time has elapsed for the Tribunal to be satisfied that Mr Parsons is rehabilitated and is a fit and proper person to hold a licence now. In my view, it has not.
The only evidence before the Tribunal is that of Mr Parsons himself. Other than the references, most of which do not refer to his past, there is no objective, corroborating evidence which would support his statements that he is a changed man. Further, less than 18 months has elapsed since his last conviction which is a short period of time. I cannot be satisfied on the basis of the evidence before the Tribunal, Mr Parsons' obvious remorse and candour notwithstanding, that he is rehabilitated and will continue to be so.
Mr Parsons' behavior in not telling the truth on the application form is a pointer in this regard. I do not accept that Mr Parsons either did not read or misread the question on the application form concerning his past criminal history. The question is very straightforward and simply invites a "Yes" or "No" answer. Mr Parsons may be embarrassed and ashamed of his past history, but that is not a sufficient reason for lying on the form. That he did so indicates a level of immaturity on his part.
That is not to say that Mr Parsons should be precluded from holding a tradesperson's certificate forevermore. In Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15 the Tribunal stated in relation to the applicant that case 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.
Those comments are apt in the current circumstances. Should Mr Parsons be able to demonstrate his continued sobriety, good behaviour and positive engagement in the community he may be considered to be a fit and proper person to hold a tradesperson's certificate. He in fact told the Tribunal that, because of his current work, he does not need the licence at the current time. While he is engaged in other work he will have an opportunity to demonstrate that he is reformed and the Tribunal would encourage him to make a further application in the future.
For the reasons set out above, at the current time, the Tribunal finds that the correct and preferable decision is that the decision of the Commissioner be 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: 16 June 2017

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (5)