Agapis v Plumbers Licensing Board

[2013] AATA 187

[2013] AATA 187  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/2554
Re	Raoul Agapis
APPLICANT
And	Plumbers Licensing Board
RESPONDENT

DECISION

Tribunal	Mr S Penglis, Senior Member
Date	28 March 2013
Place	Perth

Decision Summary

The reviewable decision of the Respondent is affirmed.

..(Sgd) S Penglis..................

Mr S Penglis, Senior Member

Catchwords

Mutual Recognition – whether Mutual Recognition Act overrides requirement that a person being “fit and proper” – whether local Registration Authority may refuse to grant registration on the grounds of the applicant being “not fit and proper” outside the period of one month provided for in section 21 of the Mutual Recognition Act – reviewable decision to refuse licence affirmed

Legislation

Mutual Recognition Act 1992 (Cth) sections 19, 20, 21, 22 and 23
Water Services Licensing Act, 1995 (WA)
Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA), Regulations 16 and 17

Cases

Agapis and Plumbers Licensing Board [2011] WASAT 206 (SAT Decision)
Full Bench of the Supreme Court of Western Australia in Re Tkacz Ex Parte Tkacz [2006] WASC 315 at [64]-[68]

Agapis v The State of Western Australia [2012] WASCA 136

REASONS FOR DECISION

Mr S Penglis, Senior Member

28 March 2013

1. The Applicant holds a Contractor Licence for the work category of Plumbing, Roof Plumbing, Draining, Gasfitting and LP Gasfitting under the Home Building Act 1989 (NSW).

2. On or about 3 March 2011, the Applicant applied to the Respondent for a Plumbing Contractor’s Licence pursuant to section 19 of the Mutual Recognition Act 1992 (Cth) (MRA) which applies in Western Australia by reason of the Mutual Recognition (Western Australia) Act 2010.

3. On 28 April 2011, the Respondent refused the application, resolving that the Applicant is “not a fit and proper person to hold a plumbing contractor’s licence” due to “inaccurate and insufficient information provided to satisfy the Board that the applicant is and (sic) a fit and proper person to hold a licence”.

4. The Applicant applied to the State Administrative Tribunal of Western Australia (SAT) to review that decision. Upon the invitation of SAT, the Respondent reconsidered its decision to refuse the Applicant’s application.

5. On 3 June 2011, the Respondent resolved “to still refuse Mr Raoul Agapis’ application for a Plumbing Contractor’s Licence on the grounds that the he does not satisfy the fit and proper test because he has not completed his application and a pending charge for a serious offence is now a conviction”.

6. The Respondent subsequently contested SAT’s jurisdiction to review the Respondent’s decision. SAT accepted the Respondent’s contention, concluding “that Mr Agapis’ application for a review of the decision is beyond the Tribunal’s jurisdiction”: Agapis and Plumbers Licensing Board [2011] WASAT 206 (SAT Decision).

7. The Applicant has now applied to this Tribunal to set aside the reviewable decision of the Respondent to refuse to issue to the Applicant a Plumbing Contractor’s Licence in Western Australia.

   THE LEGISLATIVE FRAMEWORK

8. The relevant provisions of the MRA are summarised at [26] – [35] of the SAT Decision. I respectfully agree with and adopt that summary.

9. Specifically, sections 20, 21, 22 and 23 of the MRA provide as follows:

   “20  Entitlement to registration and continued registration

   (1)    A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

   (2)    The local registration authority may grant registration on that ground and may grant renewals of such registration.

   (3)    Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.

   (4)    Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:

   (a)  apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

   (b)  are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

   (5)    The local registration authority may impose conditions on registration but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.

   (6)   This section has effect subject to this Part.

   21  Action following notice

   (1)    Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.

   (2)    When granted, registration takes effect as from the date the notice was lodged.

   (3)    However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.

   (4)    If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.

   22    Postponement of registration

   (1)    A local registration authority may postpone the grant of registration if:

   (a)    any of the statements or information in the notice as required by section 19 are materially false or misleading; or

   (b)    any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or

   (c)    the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or

   (d)    the authority decides that the occupation in which registration is sought is not an equivalent occupation.

   (2)    If the grant of registration has been postponed, the local registration authority may in due course grant or refuse the registration.

   (3)    The local registration authority may not postpone the grant of registration for longer than a period of 6 months, and the person is entitled to registration immediately at the end of that period, unless registration was refused at or before the end of that period.

   (4)   Nothing in subsection (3) prevents earlier registration from being granted on a review by the Tribunal.

   23    Refusal of registration

   (1)    A local registration authority may refuse the grant of registration if:

   (a)    any of the statements or information in the notice as required by section 19 are materially false or misleading; or

   (b)    any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or

   (c)    the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.

   (2)    A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.”

10. In addition, reference must be made to the Water Services Licensing Act, 1995 (WA) (Act) and the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA) (Regulations) made under the Act which establishes the Respondent as the authority concerned with and responsible for the licensing and regulation of plumbers in Western Australia.

11. Regulation 16 provides as follows:

    “An applicant must not, in or in relation to an application, give information that the Applicant knows to be false or misleading in a material particular.

    Penalty: $2,000”.

12. Regulation 17(1) provides as follows:

    “The Board may issue a licence if the licence fee has been paid and the Board is satisfied that the applicant –

    a)is a fit and proper person to hold the licence; and

    b)has complied with the requirements set out in Schedule 3 in respect of the licence.”

    “FIT AND PROPER PERSON”

13. Nothing in the MRA precludes a licensing authority such as the Respondent, and thus now the Tribunal in its shoes, from considering and applying the “fit and proper” requirement of sub-regulation 17(1)(a).

14. In this regard, the Tribunal refers to the decision of the Full Bench of the Supreme Court of Western Australia in Re Tkacz Ex Parte Tkacz [2006] WASC 315 at [64] – [68].

15. In this regard, it is also relevant to note the observations of the Full Bench of the Supreme Court of Western Australia in Tkacz at [62] – [69] as follows:

    “”[62]We have set out s17 of the MRA(Cth) above. The qualification to the mutual recognition principle set out in subsection (2) of that section is of particular significance.

    [63]The LPA is a law that regulates the manner of carrying on the occupation of legal practitioner in the State of Western Australia. It recognises the power of the Court to refuse to admit a person to the practice of that occupation even though he or she may have all the specified qualifications or experience necessary to fit them to carry on that occupation. It is a law which applies equally to all persons carrying on or seeking to carry on the occupation of legal practitioner in Western Australia. Accordingly, the clear and express effect of s17(2) of the MRA(Cth) is to provide that the mutual recognition principle does not affect the operation of that aspect of the LPA.

    Section 20 of the MRA(Cth) should be read and construed consistently with the clear purpose and effect of s17(2). So, where s20(1) refers to a law of the second State expressly providing that “registration in the first State is a sufficient ground of entitlement to registration” it should be taken to be a reference to a sufficiency of the qualifications or experience necessary to secure registration. Moreover, the proposition that s20(1) was not intended to compel registration in the second State contrary to the exception to the mutual recognition principle expressly established by s17(2) is reinforced by s20(2) of the MRA(Cth), which provides:

    “(2)  The local registration authority may grant registration on that ground and may grant renewals of such registration.”

    [65]The use of the word “may” rather than the imperative “shall” is consistent with the approach reflected in the High Court’s decision in In Re Davis (supra) and with the scheme of provisions such as s28 of the LPA. That conclusion is further reinforced by s20(4) of the MRA(Cth) which provides:

    “(4)  Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:

    (a)    apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

    (b)    are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.”

    [66]So, the language of s17(2) of the MRA(Cth) is replicated in s20(4) of that Act, relating to continuance of registration. The long-standing capacity of the superior courts to determine that only the persons with the requisite personal qualities of character be admitted to, or remain on, the Roll would not easily fit within the description of “some qualification or experience”. Accordingly, that capacity of the superior courts, including the Supreme Court of Western Australia, remains unaffected by the mutual recognition legislation.

    [67]Nor is any other conclusion supported by the language of s22 and s23 of the MRA(Cth) which specify grounds upon which registration “may” be postponed or refused (respectively). While the use of the word “may” is obviously intended to convey the existence of a discretion to postpone or refuse, rather than a duty to postpone or refuse, if the legislature had intended that the specified grounds be exhaustive of those discretionary powers, one would have expected the word “if” in each of those sections to be followed by the phrase “and only if”. The maxim of statutory interpretation known by the Latin expression “expressio unius est exclusio alterius” (the expression of one excludes the others) is not of sufficient strength to compel a different conclusion in this context.

    [68]Any other construction would give to the mutual recognition legislation the perverse effect referred to by each of Starke and Dixon JJ in In Re Davis (supra) in that it would require the court of one state to admit to practice any person who had been admitted to practice in any other state or territory, however long ago, notwithstanding that the Court called upon to admit was aware that the person was a lunatic, or a serious criminal or, for some other reason, totally unfit to practise law. The intention to procure such a perverse result should not be attributed to the legislature and is certainly not compelled by either express words or a necessary implication found in the MRA(Cth).

    [69]For these reasons, in our opinion, the established and long recognised power of the Court to determine whether a person should be admitted to its Roll, irrespective of whether or not they possess the requisite educational qualifications and experience, is unaffected by the mutual recognition legislation, and applies equally to applicants for admission under that legislation as it does to applicants for admission who rely only on the provisions of the LPA.”

    Whilst Re Tkacz involved the question of whether or not the MRA impinged upon the inherent jurisdiction of the Supreme Court of Western Australia to admit legal practitioners, the Court’s reasoning is equally applicable to a statutory licensing authority.

16. As to the concept of being a “fit and proper person”, the law in this regard is well settled. In Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35, the Court of Appeal of Western Australia stated as follows (at [26] and [27]):

    “The expression “fit and proper” 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: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported), WASCA, Library No 970426, 26 August 1997). When used in connection with an office or vocation it normally comprises the three characteristics of honesty, knowledge and ability in the conduct of that office or vocation: Hughes and Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127, 156 – 157; Real Estate and Business Agents Supervisory Board v Barnett, (4 – 5).

    In Real Estate and Business Agents Supervisory Board v Barnett, Kennedy J (5), in considering the meaning of ‘fit and proper’ in s 47(1)(b) of the Act, referred to what was said by Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 as follows:

    The issue whether an appellant has shown himself to be ‘a fit and proper person’, within the meaning of s 16(1) of the [Commercial and Private Agents] Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an 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 the particular licence under the Act, 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, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR (NSW) 433, at 442) (76)”

17. The question therefore is whether the material before the Tribunal establishes that, relevantly, the Applicant possesses the requisite degree of honesty that is required of a person to hold a Plumbing Contractor’s Licence.

    THE MATERIAL BEFORE THE TRIBUNAL

18. The parties agreed that this application ought be determined on the papers, without a hearing.

19. The following documents were before the Tribunal, namely:

    ·the documents contained in the section 37(1) bundle of documents: described as T1 – T82;

    ·affidavits of the Applicant dated 21 February 2013, 26 February 2013 and 15 March 2013;

    ·the Applicant’s Statement of Facts Issues and Contentions filed on 26 February 2013;

    ·the Respondent’s Statement of Issues Facts and Contentions dated 20 February 2013;

    ·a second (114 page) Applicant’s Statement of Facts Issues and Contentions filed on 5 March (and again on 15 March) 2013.

20. The Tribunal has reviewed and considered each of the above documents.

21. The overwhelming majority of the documents which the Applicant had filed with the Tribunal as at 5 March 2013 concerned assertions to the effect that the Act and Regulations are invalid. As a consequence, the Tribunal directed its District Registrar to write to the Applicant on 5 March 2013 in the following terms:

    “As discussed at a Directions Hearing held on 22 February 2013, your application has been referred to Senior Member Penglis for determination on the papers.

    Having reviewed the file, Senior Member Penglis has requested that I write to you to provide to you an opportunity to provide further affidavit evidence and submissions focusing on (and limited to) the matters raised in paragraphs 15.1-15.9 and 24.2 of the Respondent’s Statement of Issues Facts and Contentions dated 20 February 2013.

    Should you wish to provide any further evidence or submissions, please do so by no later than 20 March 2013.

    Should you wish to provide any further evidence or submissions, but cannot do so  by no later than 20 March 2013, please let me know, in writing, why further time is needed and what further time you request be given to you. I will then refer your request to Senior member Penglis.

    Please note that if you choose to provide further evidence or submissions, as a matter of fairness, the Respondent will then be given a period of time in which to respond to the same.”

22. For the purpose of giving the letter context, paragraphs 15.1 – 15.9 and 24.2 of the Respondent’s Statement of Issues Facts and Contentions were in the following terms:

    “The refusals of the Application were made on the ground that the Applicant is not a fit and proper to person to hold a plumbing contractor’s licence because:

    15.1The information provided by the Applicant in Section 6 of the Application form under the heading Charges was untrue.

    15.2The Applicant did not disclose that he had been convicted of, or found guilty of criminal offences or that he had pending criminal charges;

    15.3Several of the convictions and the pending charges involved allegations of violent behaviour on the part of the Applicant

    15.4The Applicant did not provide sufficient information of his plumbing experience;

    15.5The Applicant did not provide referee submissions;

    15.6The Applicant had held his New South Wales licence for a period of only 12 months;

    15.7The Applicant’s commentary on the application form was less than satisfactory;

    15.8The Applicant did not provide further information when requested by the Respondent to do so (refer T23 and T41) and did not answer questions put to him by the Respondent regarding information contained in the Application.

    15.9The Applicant did not disclose that he had been known by a name other than Raoul Agapis (that is to say Raoul Larnach).”

1. In response, on 15 March 2013, the Applicant lodged with the Tribunal his affidavit of 15 March 2013 and a further copy of the second (114 page) Statement of Facts Issues and Contentions previously provided to the Tribunal on 5 March.

2. The substantive paragraphs of that affidavit are reproduced below in their entirety:

   “1.     I, Raoul Agapis, is of legal and lawful age and competent to testify.

   2.I, Raoul Agapis, has first-hand personal knowledge of the facts stated herein which are all true, correct, complete, not just true and correct, certain and in no way intended to mislead.

   3.By presenting this Affidavit to the Administrative Appeals Tribunal, the AAT, I at no time concede the AAT has any judicial authority to be making the decision required in Agapis v WA Plumbers Licensing Board as the AAT have repeatedly admitted that the AAT is not a Ch III Court.

   4.Fact of Law in the Commonwealth of Australia is the Commonwealth Constitution is the Supreme Law of the Commonwealth of Australia.

   5.The Annotated Constitution of the Australian Commonwealth, page 791,330 – Its Interpretation, “The Constitution, like every other law, is directly binding on every individual and every governmental agency within the Commonwealth. Every person, every officer, every political organ, has the duty of complying with its provisions, and must in the exercise of that duty interpret its provisions, in the first instance, to the best of his ability and on his own responsibility. Every citizen is entitled to the protection of the Constitution and is bound not to infringe it; every officer and department of every Government – State or Federal – has similar rights and obligations; and the Federal Parliament and the State Parliaments alike are bound not to exceed the authority conferred or reserved by the Constitution.”

   6.The Annotated Constitution of the Australian Commonwealth, page 791, 330 – Its Interpretation, “The Federal Parliament and the State Parliament are not sovereign bodies; they are legislators with limited powers, and any law which they attempt to pass in excess of those powers is no law at all, it is simply a nullity, entitled to no obedience.

   7.The Annotated Constitution of the Australian Commonwealth, page 346 at 33, states “Not all enactments purporting to be laws made by the Parliament are binding; but laws made under, in pursuance of, and within the authority conferred by the Constitution, and those only, are binding on the courts, judges and people”.

   8.The Annotated Constitution of the Australian Commonwealth, page 794 at paragraph 3, “As a Federal Constitution. – The Constitution of the Commonwealth is a Federal Constitution; it establishes a government of limited and enumerated powers. The federal Parliament is not, like the British Parliament, sovereign; it is not even, like Parliament of the colonies before Federation, invested with powers which, within its territorial jurisdiction, are practically sovereign; its authority are limited to specified subjects.”

   9.Section 109 of the Commonwealth Constitution states, “When a law of the State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

   10.The Acts Interpretation Act 1901 (CTH) section 15A states, “Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth. To the intent that where any enactment thereof would but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

   11.Section 117 of the Commonwealth Constitution states, “A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

   12.I, Raoul Agapis, have the use of a Plumber’s Contractor’s Licence in the correct, sovereign entity of Raoul Agapis in the State of New South Wales and am correctly entitled to the use of a Plumbers Contracting Licence in the State of Western Australia as endorsed by the Commonwealth Constitution, section 117.

   13.The High Court is the highest Appellant Court of the Commonwealth of Australia and is the apex of the Judicature of the Commonwealth of Australia. The High Court has ruled in Lipohar v R [1999] HCA 65 “that all common law is to come from the High Court and is to bind all Courts of the Commonwealth.”
   -and-
   52. The liability of the Commonwealth in tort and contract is created by the common law; s 75(iii) of the Constitution denies operation of what otherwise might be doctrines of Crown or executive immunity in these fields. The “common law” here is that of Australia, rather than a “federal common law” distinct from the common law of each of the other bodies politic in Australia.

   14.The Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, the Act, is invalid State of Western Australia Legislation as it does not comply with and is repugnant to the Commonwealth Constitution, many High Court decisions and Commonwealth Legislation and, therefore, “entitled to no obedience” by the Courts, Judges and people of the Commonwealth of Australia, see Attachment A, VALIDITY OF WATER SERVICES LICENSING (PLUMBERS LICENSING AND PLUMBING STANDARDS) REGULATIONS 2000.

   15.The matter of “fit and proper person” paragraphs 15.1 – 15.9 of the Respondents Statement of Fact, Issues and Contentions are completely immaterial to the issuing of a Plumbers Licence for Raoul Agapis to use because the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, the Act, is repugnant to the Commonwealth Constitution, many High Court decisions and Commonwealth Legislation and therefore “simply a nullity, entitled to no obedience” and both the AAT and the WAPLB have breached the law of tort and the action/s of the AAT and the WAPLB are a tort.

   16.The matter 24.2 of the Respondents Statement of Facts, Issues and Contentions is also part of “fit and proper person” is also part of the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, the Act, is repugnant to the Commonwealth Constitution, many High Court decisions and Commonwealth Legislation and therefore “simply a nullity, entitled to no obedience” and both the AAT and the WAPLB have breached the law of tort and the action/s of the AAT and the WAPLB are a tort.

   17.The matter 24.2 of the Respondents Statement of Facts, Issues and Contentions is still before the High Court of Australia and is going before other Courts as new evidence was available after the trial so the matter will be pursued in the Courts. I have also been in contact with United Nations Headquarters and will be pursuing the matter in an International Court.

   18.The High Court decision regarding “fit and proper person” involving a licence is Hughes and Vale Pty Ltd v New South Wales (No 2)[1955] HCA 28 and as I, Raoul Agapis, is a qualified Plumber, Drainer and Gasfitter with a Licence issued in New South Wales and as the WAPLB have admitted, there has never been a complaint against my work or honesty then I pass the test of “fit and proper person” provided by the High Court of Australia.

   19.The WA PLB state in their submission to the Federal Court in regard to Agapis v WA Plumber’s Licensing Board, WAD 198 of 2012, see Attachment B, I

   a)I, Raoul Agapis, made an application to WAPLB for a licence to be issued on 3 March 2011.

   b)the WA PLB refused that application on 27 April 2011

   c)the time difference between application date and decision date by the WA PLB is 56 days.

   d)I, Raoul Agapis, am told by State Administrative Tribunal, WAPLB, Administrative Appeals Tribunal and the Federal Court that the reason the application is before the Administrative Appeals Tribunal is because my application for a Plumbers Licence to WAPLB fell under the Mutual Recognition Act 1992 (CTH).

   20.MUTUAL RECOGNITION ACT 1992 (CTH) – SECT 21

   Action following notice

   (1)   Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.

   (2)   When granted, registration takes effect as from the date the notice was lodged.

   (3)   However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.

   (4)   If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.

   21.As the time between application, 3 March 2013, and decision by the WAPLB, 27 April 2013, was 56 days, therefore the WAPLB is in breach of Mutual Recognition Act 1992 (CTH), section 21(4), and as a result I, Raoul Agapis is “entitled to registration immediately.”

   22.Throughout the long process since I, Raoul Agapis, first applied to the WAPLB for a License to be issued and then applied to the AAT, both the AAT and the WAPLB have continually breached the law of tort and both the action/s of the AAT and the WAPLB are a tort.”

   CONSTITUTIONAL CHALLENGE TO THE GOVERNING LEGISLATION

3. As noted above, the overwhelming majority of the documents which the Applicant has lodged with the Tribunal concern assertions to the effect that the Act and Regulations are invalid. For example, in addition to the Applicant’s affidavit set out above, at pages 113 and 114 of the Applicant’s second Statement of Facts Issues and Contentions, under the heading “Summation”, the Applicant wrote as follows:

   “1) At the time the WAPLB made a decision, 28 April 2011, not to grant a Plumbing Licence for me, Raoul Agapis, to use, the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, the Act, is continuously and on numerous occasions repugnant to the Commonwealth Constitution, many High Court decisions and Commonwealth Legislation.

   2)Interestingly, at the time the WAPLB made a decision, 28 April, 2011, not to grant a Plumbing Licence for me, Raoul Agapis, to use, the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, the Act, at no time states or defines who issues a “Plumbers Licence” that the Act claims is needed to carry out plumbing and drainage plumbing work in accordance with the Act.

   4)Interestingly, at the time the WAPLB made a decision, 28 April 2011, not to grant a Plumbing Licence for me, Raoul Agapis, to use, the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, the Act, at no time defines “Fit and proper person” in accordance with the Act. I have used the highest Court in the Commonwealth of Australia, the High Court, specifically the decision made by the High Court – Hughes and Vale Pty Ltd v New South Wales (No 2)[1955] HCA 28 to define the term “Fit and proper person.” I, Raoul Agapis, fit into the definition and guidelines of the High Court decision Hughes and Vale Pty Ltd v New South Wales (No 2)[1955] HCA 28.

   5)Interestingly, every member of the WAPLB including the Chief Officer, including any plumbing compliance officers, have been from the time the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 was first legislated and gazetted until this present day, 4 March 2013, continually acting unlawfully as shown by the Commonwealth Constitution, High Court decisions and Commonwealth legislation and, therefore, not “fit and proper person(s)” to hold public office as ignorance is no excuse of the law.

   6)I estimate that I might lose challenging the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, the Act, in a State Court. I might even lose challenging the validity of the Act in a Federal Court, but, I believe it would be a very rare occasion for the High Court of Australia to rule against the Commonwealth Constitution and so many of their own High Court decisions and Commonwealth Legislation.

   7)If I win the case in a Chapter III Court and prove the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, the Act, is in fact invalid because the Act is repugnant to the Commonwealth Constitution, numerous High Court decisions and Commonwealth Legislation, that would mean that no Legislation covers Licensed Plumbers in the State of Western Australia.

   8)If I win the case in a Chapter III Court and prove the Water Services Licensing (Plumbers Licensing Plumbers Standards) Regulations 2000, the Act, is in fact invalid because the Act is repugnant to the Commonwealth Constitution, numerous High Court decisions and Commonwealth Legislation, then it will be proven that:

   1)many State of Western Australia Government employees are guilty of crime;

   2)and any decision made by the WAPLB would then be null and void.”

4. The Tribunal has no jurisdiction to consider, let alone make any findings as to, the validity or otherwise of legislation or delegated legislation. The Tribunal is a statutory body empowered to consider matters properly within its jurisdiction as provide by the AAT Act. Challenges of the nature maintained by the Applicant are patently outside that statutory jurisdiction.

5. Accordingly, the Tribunal has not considered the merit or otherwise of any of the Applicant’s contentions of such a nature.

   THE APPLICANT IS NOT A “FIT AND PROPER PERSON”

6. The Tribunal has no hesitation in finding that, on the material before it, the Applicant is not a “fit and proper person” within the meaning of that term.

7. The evidence clearly establishes that the Applicant has been convicted of several offences, including as recently as 2011 when, on 31 August 2011, after a trial in the District Court before Birmingham DCJ and a jury between 10 and 13 May 2011, the Applicant was sentenced to 1 year and 3 months imprisonment, suspended for 2 years, for a burglary he committed on 18 September 2010.

8. Of course, the mere fact of a conviction does not mean that an applicant cannot subsequently contend before a licensing authority such as the Respondent, or this Tribunal, that little (if any) weight ought be afforded to a conviction because, for example, it was unsound or because of evidence that has subsequently become available.

9. That, however, is not available to the Applicant in this case. Not only is there no evidence before the Tribunal to warrant such a finding, but the Court of Appeal of Western Australia heard and dismissed an appeal by the Applicant against both his conviction and sentence in which the Court carefully considered the evidence which had been adduced at trial and the submissions raised by the Applicant on appeal. The Court dismissed the Applicant’s appeal: Agapis v The State of Western Australia [2012] WASCA 136.

10. The Tribunal is of the view that that conviction alone is sufficient to justify a finding that the Applicant is not a fit and proper person to hold a plumbing contractor’s licence The notion of a recently convicted burglar being given a licence which would authorise him to undertake work for members of the public which, by its nature, is very likely to often involve access to private property, is entirely inconsistent. However, there is more.

11. The material before the Tribunal includes a National Police Certificate for the Applicant “valid as at 21/03/2011” which discloses the following further convictions:

14 February 2005	Resist officer in execution of duty	Convicted: Fined $100 with costs of $61
22 May 2007	Behave in offensive manner in/near public place/school	Convicted: Fined $100 with costs of $67
23 June 2010	Excluded person remaining in vicinity of licensed premises	Convicted in absentia “Warrant to issue”
23 June 2010	Resist officer in execution of duty	Convicted in absentia “Warrant to issue”

1. The Certificate also notes the following “pending charges” with a court date of 8 April 2011, namely “aggravated burglary & commit offence dwelling” and “common assault”.

2. Given the more recent and more serious conviction in 2011, it is unnecessary to consider whether or not these other convictions, of themselves, would justify a conclusion that the Applicant is not a “fit and proper person”. Considered together, however, these other convictions show repeated criminal conduct on the part of the Applicant which, if not alone, certainly considered together, disclose a character that is inconsistent with a finding that the Applicant is a “fit and proper person”. When one adds to this the more recent and serious conviction in 2011, the position is put beyond doubt.

3. Whilst that is sufficient to dispose of the matter, the Tribunal also refers to the Applicant’s Application for a Plumbing Contractor’s Licence received by the Respondent on 3 March 2011. Included in the questions asked on the application, were the following:

   ·“Have you ever been convicted or found guilty of any offences?”

   ·“Are there any charges against you that are pending?”

4. To each of these questions, the Applicant circled the word “No”.

5. These answers were clearly false. Moreover, the Applicant must have known them to be false: not only had the Applicant been convicted of 4 offences prior to the date of his application, his District Court trial was to commence just 2 months later).

6. The form also asked the question “Is a National Police Certificate attached?”, to which the Applicant circled the word “Yes”. The documents before the Tribunal establish that this answer was also false.

7. In this regard, the Tribunal refers to an undated letter from the Respondent to the Applicant referring to his application dated 3 March 2011 and noting that “for your application to be considered you are required to provide the following information … National Police Clearance less than 3 months old”. As has already been noted, the National Police Certificate before the Tribunal appears to have been issued on 21 March 2011. A copy appears to have been received by the Respondent on 24 March 2011 (signified by a certification on the copy of the Certificate before the Tribunal by Tracy Barbero on 24 March 2011, Ms Barbero being the Executive Officer of the Respondent). As there is no earlier National Police Certificate in the material before the Tribunal, the proper inference to be drawn is that the Applicant did not provide a National Police Certificate with his application (as opposed to having provided one that was more than 3 months old). This conclusion is supported by a typewritten “note” dated 24 March 2011 by Tracey Barbero of an attendance she had with the applicant on that day.

8. Finally in this regard, the Tribunal also notes that on the page of his application form under the heading “Fit and Proper Test” (where the above reference and other answers were given), the Applicant wrote as follows:

   “My name is Raoul Agapis. I have testimony from my mother as to my arrival on this planet. My father and her gave me the name of Raoul Agapis, not a legal fictional entity or a corporation that was created by a government such as RAOUL AGAPIS, AGAPIS Raoul, etc. I have no title I have neither assumed or inherited a title. I have proved all of above many times in court. Quite frankly, a piece of plastic does not make me a plumber [indecipherable] apprenticeship and years of experience make me a plumber. Police have lied and are severely corrupt in New South Wales. They have a lot of sour grapes in regard to me the man, Raoul Agapis”.

1. The Applicant has shown no remorse or contrition for his offences.

2. There were other grounds by which the Respondent sought to support its decision (such as not providing sufficient information of the Applicant’s plumbing experience or providing referees’ submissions). It is unnecessary for the Tribunal to consider such matters. The convictions detailed herein, and the Applicant’s false answers given on his application form, separately, and together, overwhelmingly establish that the Applicant is not a “fit and proper person” within the meaning of sub‑regulation 17(1)(a).

   SECTION 21(4) OF THE MRA

3. The Applicant contends that it was not open to the Respondent, and therefore not now open to the Tribunal, to refuse mutual recognition of his New South Wales licence because given the time that passed between his application and the Respondent’s initial decision, by reason of section 21(4) of the MRA, “no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved”.

4. The Applicant contends that more than 30 days expired between the date of his application, 3 March 2013, and the Respondent’s first decision, 27 April 2013. He submits “therefore the WAPLB is in breach of Mutual Recognition Act 1992 (CTH), section 21(4) and as a result I, Raoul Agapis is (sic) ‘entitled to registration immediately’”.

5. This is an issue which the Respondent did not address in its written material.

6. For the reasons which follow, the Applicant’s submission is rejected.

7. The words in section 21(4) “any of the grounds on which refusal or postponement may be effected” clearly a refer to “the grounds on which refusal or postponement may be effected” provided in the two sections of the MRA that immediately follow after section 21. Accordingly, what is by section 20(1) an entitlement to be registered subject to the express rights of postponement and refusal provided in 22 and 23, becomes, after 30 days without a decision to postpone or refuse the application, an entitlement to registration immediately “and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved”. That, however, does not prevent the Respondent from otherwise refusing registration by reference to matters outside the scope of the MRA, such as that the person is not a “fit and proper person”.

8. This construction of the relevant sections of the MRA is consistent with the observations of the Full Bench of the Supreme Court of Western Australia in Tkacz referred to above.

   CONCLUSION

9. Whilst the passage of more than 30 days from the date of the Application to the date of the Respondent’s first decision meant that (absent fraud) it was no longer open to the Respondent to postpone or refuse registration on any of the grounds provided in the MRA, it did not prevent the Respondent from refusing to grant a licence to the Applicant by reason of it not being satisfied that the Applicant was a “fit and proper person” (within the meaning of Regulation 17) where the grounds for doing so had nothing to do with whether the Applicant had the specified qualifications or experience necessary to carry on that occupation: Tkacz at [62].

10. For the reasons given above, the Tribunal concludes that the Applicant is not a “fit and proper person” to hold the licence for which he has applied. The Respondent’s decision to refuse to issue to the Applicant the licence for which he has applied must therefore be affirmed.

I certify that the preceding 51 paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mr S Penglis

....(Sgd) T Freeman....................

Associate

Dated  28 March 2013

Date of hearing Heard on the Papers on 28 March 2013