Applicant 202029 v Commissioner for Fair Trading
[2020] ACAT 92
•12 November 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT 202029 v COMMISSIONER FOR FAIR TRADING (Administrative Review) [2020] ACAT 92
AT 29/2020
Catchwords: ADMINISTRATIVE REVIEW – working with vulnerable people – risk assessment – matters which must be taken into account when conducting a risk assessment – steps for conducting a risk assessment – criminal history and non-conviction information – use of ‘other information’ – working with vulnerable people registration denied
Legislation cited: Working with Vulnerable People (Background Checking) Act 2011 ss 27, 28, 30, 31, 32, 34, 35, 40
Child Protection (Working with Children) Act 2012
Subordinate
Legislation cited: Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2018 (No 1)
Cases cited:S v Commissioner for Fair Trading [2014] ACAT 59
Tribunal: Senior Member G Lunney SC (Presiding)
Senior Member H Robinson
Date of Orders: 12 November 2020
Date of Reasons for Decision: 12 November 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL AT 29/2020
BETWEEN:
APPLICANT 202029
Applicant
AND:
COMMISSIONER FOR FAIR TRADING
Respondent
TRIBUNAL: Senior Member G Lunney SC (Presiding)
Senior Member H Robinson
DATE:12 November 2020
ORDER
The Tribunal orders that:
The decision under review is confirmed.
Further to the orders of 12 June 2020 and 11 August 2020, and for the avoidance of any doubt, pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008:
(a)There is to be no public access to the transcript or audio recording of the hearing.
(b)There is to be no public access to the file.
(c)There is to be no publication of the names of the applicant, his immediate family members or children concerned in these proceedings.
………………………………..
Senior Member H Robinson
For and on behalf of the Tribunal
REASONS FOR DECISION
The applicant seeks review of a decision of 18 May 2020 by the Commissioner under the Working with Vulnerable People (Background Checking) Act 2011, (the Act); and guidelines made under the Act, the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2018 (No 1), (the guidelines).
The decision related to an application by the applicant of 3 November 2017 for general registration under the Act to engage with vulnerable people as a volunteer. A proposed negative order was issued to him on 24 September 2018. This was followed by further investigations and preparation of a reconsidered recommendation report which was negative.
the applicant’s application sought interim orders which were the same as the final orders sought. They were: “Immediate granting of a WWVP, removal of my name from any secret reports and an order for costs”.
In his application, he described the decision as follows:
The decision to deny me a WWVP is wrong. The Chief Minister has ignored the criminal and illegal activity undertaken by the NSW Government and assumed the allegations are valid.
In response to the requirement that he described as the reasons for applying for review, he attached a lengthy document titled: “Have you got what you paid for?”.
The application was set down for hearing on 10 and 11 August 2020. The applicant was self-represented and Ms P Bindon of counsel appeared for the Commissioner.
A brief chronology and background
After receipt of the application, police checks were carried out, and the respondent supplied information about his background from the Goulburn Local Court and the NSW Department of Family and Community Services (FACS). Three independent advisers were engaged pursuant to sections 34 and 35 of the Act, and their reports were received.
A proposed negative notice was served on 24 September 2018[1] after a recommendation by the Regulatory Advisory Committee of 5 September 2018.[2] The applicant sought reconsideration of the draft notice. The applicant participated in an interview and provided further information. Further information was received from the NSW Police. In May 2019, the applicant was referred for a psychological assessment which was carried out by Professor Stephen Woods in October 2019. The applicant made a complaint to the ACT Human Rights Commission which investigated and closed the complaint in December 2019.
[1] T documents page 642
[2] T documents page 644
The Regulatory Advisory Committee on 11 March 2020 recommended that a negative notice be issued in response to the application.
The notice of decision not to grant the application was dated 18 May 2020.
Legislative background
Sections 27, 28, 30, 31, and 40 of the Act are reproduced at Appendix 1.
Section 32 of the Act provides that when a person applies for registration under the Act to be able to work with vulnerable people, the Commissioner must conduct a risk assessment of the person. Section 27 provides that the Commissioner must make guidelines to be called ‘risk assessment guidelines’ about how risk assessments are to be conducted.
Section 28 sets out matters which must or may be taken into account in conducting a risk assessment. These are:
(a)criminal history;
(b)non-conviction information;
(c)any previous notice under the Act;
(d)previous registration under the Act or corresponding law; and
(e)any other information believed on reasonable grounds to be relevant.
These matters are expanded in sections 24, 25, 30 and 31. (Please refer to Appendix 1 for this detail.)
The Guidelines are published in a notifiable instrument, the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2018 (No 1). They describe a process involving three steps for conducting a risk analysis. They are:
(a)risk identification;
(b)risk analysis; and
(c)risk evaluation.
Very briefly the risk evaluation is done after the first two steps are attended to. The purpose of the risk evaluation or risk assessment is to determine whether the risk is acceptable, unacceptable, or acceptable if mitigated. This is done by use of the risk rating matrix in Table 3, which calculates the likelihood of the risk against its gravity or impact.
Evidence
The evidence included documentary evidence contained in the ‘T Documents’ (T Docs). There was also a witness statement by Joshua Rynehart who is the Executive Branch Manager with Access Canberra, which has oversight of the working with vulnerable people scheme. He was not called for cross-examination.
The applicant addressed the Tribunal and gave evidence and was cross-examined. He also produced some documents in the course of the hearing, however most documents which he relied on had been included in the T Docs and available to the Commissioner.
Criminal history and non-conviction information
A National Police History Check[3] shows that the applicant has no recorded convictions. However, he was charged in 2015 and 2017 with a number of offences in the Goulburn Local Court recorded in the history check as follows:
[3] T documents page 899
Date
Offence
Result
19 Aug 2015
Sexual intercourse person under 10 – under authority – S1 (3 offences)
(Spent)
Withdrawn: Costs against informant
19 Aug 2015
Agg indecent assault – victim under authority of offender T1
(Spent)
Withdrawn
13 Jun 2017
Obtain personal information about officer – T2 (Attempt)
(Spent)
Dismissed – Not guilty after hearing
13 Jun 2017
Obtain personal information about officer – T2
(Spent)
Dismissed – Not guilty after hearing
It is not known what the reason was for withdrawal of the August 2015 charges.
There is available, among documents contained in Exhibit 4 filed by the applicant, part of the transcript relating to the obtain personal information charges. It appears that the applicant sought information about a public official whose actions he was critical of. The information indicates that the Magistrate who heard the case was not satisfied that the necessary intent to intimidate or harass had been established beyond reasonable doubt. The other elements of the charges had however been established. It appears from the transcript that the Magistrate went on to make an apprehended personal violence order against the applicant effective for five years. Apart from the transcript, there is no further evidence about that order.
There is also evidence that the applicant brought proceedings against the Commissioner of Police or the State of NSW claiming damages arising out of the dismissal of the charges and the time he had spent in custody on remand pending the hearing of the charges. Those proceedings were settled on terms not to be disclosed.
Other information
Other relevant information was received from NSW agencies to whom the applicant was known. He and his wife had acted as foster carers for young children in that jurisdiction, and a number of relevant issues had arisen. There are many documents available, however these have been anonymised by redaction so that detailed analysis becomes difficult and a general approach is necessary. However, in their present form they are quite adequate for present purposes.
The following is a brief overview of the information contained in the T Docs which comes from NSW Agencies mainly from FACS.
There was an investigation by FACS in 2013 relating to allegations made about the applicant as a carer. Three separate allegations of sexual abuse were investigated. The result of the investigation is that the allegations were not sustained. The applicant was notified of the result of the investigation by letter of 11 September 2013 from the Manager of the Reportable Conduct Unit.[4]
[4] T documents page 764
There was an investigation in July to October 2014 of allegations of psychological harm to the applicant’s two male children. Risk of sexual harm/injury to each child was the issue found to be substantiated by the investigation. The applicant was a person identified as a person causing harm.
A letter of 17 April 2018[5] indicates that there were five other investigations in 2014, 2015 and 2016 of concerns relating to: sexual abuse and neglect; sexual penetration (two cases); sexual penetration and sexual abuse; sexual penetration and psychological harm, of children in the applicant’s care. The issues raised in each of these was found to be substantiated. The applicant was a person identified as a person causing harm.
[5] T documents page 762
On 29 October 2014, the Director of Working with Children Check Operations of the Office of the Children’s Guardian wrote to the applicant notifying him of his disqualification for a Working with Children Check Clearance. The basis for disqualification was a pending charge relating to an offence specified in Schedule 2 of the Child Protection (Working with Children) Act 2012 .[6]
[6] T documents page 790
On 15 July 2014, FACS by letter notified the applicant of a decision to cancel his authorisation as a Community Services authorised carer .[7] The basis of this action was an allegation of sexual abuse by a child in the applicant’s care.
[7] T documents page 766
There were also three reports from independent advisors appointed pursuant to the Act. The reports from two of the advisors were relatively brief.
Ms Narelle Hargreaves reported on 15 July 2018.[8] She noted that there was extensive material available and did not proceed to analysis of it at all. She said that she understood the issues involved for the applicant to obtain a WWVP registration. Her conclusion was that “the applicant in question poses an unacceptable risk of harm to a vulnerable person in a regulated setting for both children and adults.”
[8] T documents page 682
Ms Coralie McCalister reported on 16 July 2018.[9] She concluded that a risk exists but did not make a systematic analysis. Her opinion was that the likelihood of an incident was “possible”, with the impact in the major to catastrophic range. By reference to the risk rating matrix she assessed the overall risk as being high. She went on to say that she did not think that the risk could be mitigated by conditions on registration. Consequently, the result was that the risk was unacceptable.
[9] T documents page 684
The third report was from Scott Pearsall dated 12 August 2018.[10] Mr Pearsall analysed the source material prior to undertaking a detailed risk analysis. In a section of his report headed “Attitude to the Alleged Offences”, Mr Pearsall made the following observation:
With respect to how he felt about the alleged offences, [the applicant] has provided significant comment and material. Whilst it is not possible to capture all these details here, it is relevant to note that [the applicant] maintains that these charges were resultant, not from any wrong-doing on his behalf, but rather from systematic and vexatious campaign by many against him.
[10] T documents page 656
In his final risk assessment evaluation, Mr Pearsall made the following related observation:
I also note that despite claims of malicious prosecution/persecution by [the applicant], that in my reading of the materials, this is not supported by the facts. Indeed, it would seem that allegations against [the applicant] were handled carefully and professionally, bearing in mind the seriousness of the allegations and the complex claim and counter-claims which were being made.
Mr Pearsall rated the risk source as being “multiple alleged sexual offences against children”; the harm as being physical/psychological/emotional. He rated the consequences as being catastrophic; the likelihood of occurrence as possible/likely; and the risk rating as being high/critical. He noted a significant number of risk increasing factors, and no decreasing factors.[11]
[11] T documents pages 666-667
Mr Pearsall concluded that the applicant poses an unacceptable risk of harm to vulnerable people and was not suitable for registration.
There is also a relevant report by SAL Consulting dated 14 July 2014.[12] This firm was originally commissioned by Marymead NSW Foster Care Program to provide assessment and planning regarding four children in the foster care of the applicant and his wife, therapy services for the children, and support for the family. That arrangement was taken over by FACS, Goulburn in December 2013.
[12] T documents page 287
The firm was to report generally on the situation, the clinical support provided to the carers, to discuss barriers to providing that support, and make recommendations.
Concerns regarding success of the foster placement grew to the point where recommendations were made in a draft version of the report to remove all four foster children from the applicant and his wife’s care “based on the concerns raised within that report regarding their capacity to create and maintain a therapeutic environment of the foster children”.[13]
[13] T documents page 323
That process came to an end when on 10 July 2014 two children made allegations of sexual abuse by the applicant leading to the removal of all four children from respite and from the foster care placement with the applicant and his wife.
The recommendations of the report were that all foster children be removed from the applicant and his wife’s care and that no further foster children be placed with them.
The respondent issued a detailed response to the report more than a year after it was signed on 22 September 2015. The response generally denies the factual and opinion content of the report and questions the qualification of the authors to raise the issues referred to. There were many redactions to the report. However it is detailed and apparently carefully prepared.
The applicant was referred to Prof. Stephen Woods, a forensic psychologist. This was done after a revised risk assessment was done dated 22 May 2019.[14] The risk rating result of that assessment was a ‘high’. The author of the assessment also recommended an assessment by Prof. Woods.
[14] T documents page 197
It was a long report in which Prof. Woods concluded that the applicant did not receive a risk rating on standardised sex offender risk inventories; and that he fell in the low risk category on a violence inventory. He diagnosed him as having a mental disorder, being an adjustment disorder with mixed disturbance of emotion and conduct. He concluded his report as follows:
Clinical forensic assessment of [the applicant] has failed to detect any available objective evidence to suggest he represents a risk to vulnerable persons. There is however good reason to suspect that [the applicant], due to his high level of distrust of certain authorities, would not be open to the possibility of supervision if granted approval to work with vulnerable persons and more specifically children under the age of eighteen years.
The two reports of the Regulatory Advisory Committee previously referred to were in evidence. The first recommended the issue of a proposed negative notice. The second concluded that on the evidence, the applicant presented a high risk of harm to vulnerable people and recommended that a negative notice be issued. No conditions had been identified that would mitigate the risk.
In coming to this conclusion, the committee made the following observation:
The role of the Working with Vulnerable [People] Scheme is to provide a protective framework that safeguards vulnerable people from harm, and it is not intended to be a licensing organisation that registers people for particular occupations.
In his statement, Joshua Rynehart (Exhibit 5), said that he was employed as executive branch manager with Access Canberra with oversight over the Working With Vulnerable People scheme. He was the delegate who decided to issue the negative notice to the applicant on 18 May 2020. He briefly explained the working of the scheme.
At paragraph 11 of his statement, he discussed the use of ‘other information’ in the decision making process and said the following:
An assessment officer may consider relevant ‘other information’ such as, for example, behaviour which may not have proceeded to charge or prosecution. There are numerous reasons why criminal action may not be pursued following an act or behaviour that may otherwise amount to an offence. Equally, there may be behaviour that may not amount to an offence which is unlawful in a civil sense or is socially or morally reprehensible. Consideration of such behaviour as relevant ‘other information’ is nonetheless appropriate as it may illustrate, for example, a pattern of inappropriate behaviour, escalating patterns of behaviour, or a poor understanding or appreciation of acceptable boundaries. These factors may influence the level of risk that an applicant for registration may pose to vulnerable people, remembering always that the aim of the Act is to protect vulnerable people through the assessing risk to them. Assessing risk does not require risk assessment officers to determine, or otherwise make findings about the criminal culpability of any applicant.
He also said at paragraph 15, that in his view the assessment process was not actuarial. Assessment officers exercised professional judgement in weighing up the elements considered to impact upon the likelihood and gravity of risk. In relation to likelihood of occurrence in this case he said the following in paragraph 17:
…. I did not have material before me that could allow me to safely disregard the conclusions by FACS about sexual abuse of his children that led to FACS Cancelling the applicant’s carer’s authorisation. In particular, the allegation of a widespread conspiracy amongst staff of FACS was not an explanation I could readily accept as a basis for disregarding FACS’ conclusions. Ultimately, these factors necessitated my conclusion that the level of risk eventuating was ‘possible’.
In relation to the possibility of imposition of conditions to ameliorate a high risk, he said that there was no condition that he could devise that might be suitable and capable of reducing the risk to an acceptable level.
Evidence of the applicant
The applicant gave evidence, was cross examined, and filed a great deal of material. His evidence and submissions were intended to establish that nothing untoward had happened. Officers of the NSW agencies had acted maliciously in their reports and assessments; and had persuaded the infant complainants to make false complaints.
The applicant made no attempt to address the analytic processes of the Act, and has in the Tribunal’s view produced no satisfactory evidence in support of his contention that the extensive material supporting the decision under review is mischievous or fraudulently obtained. In coming to that view the Tribunal notes the quotation from Mr Pearsall’s report included at paragraph 34 above.
Consideration
The Act and the Guidelines are a scheme to centralise background checking. Previously this was done principally by employers and relied substantially on examination of an applicant’s police record. It is now clear that non-convictions must be considered and there is clear instruction as to the use of ‘other information’. The guidelines provide instruction at all levels of the decision-making process and provide processes to objectify that process as much as possible in order to achieve consistency in decision making.
Judgement is however needed, and in this case assessment of likelihood of the occurrence of risk and the gravity of its occurrence are matters of judgement made within a confined environment. Whether there is residual discretion in the decision maker was questioned in the ACAT case of S v Commissioner for Fair Trading [2014] ACAT 59. At paragraph 167 the tribunal said the following:
…the decision as to the level of risk is not inchoate, but is given clear structure and systematic application by the application of the prescribed risk assessment process to the circumstances of the case. The risk assessment is integral to the decision to be made by the Commissioner, indeed given the prescriptive structure and conclusions provided by the Guidelines, it is arguable whether any residual discretion vests in the Commissioner to form a view of risk and a particular case, contrary to that provided by a properly conducted risk assessment.
The decision, the subject of this review, has followed the process, and although value judgements are involved at key steps in the process, the latitude for individual judgement is limited and has been made in clear view on review. We have previously referred to Mr Pearsall’s views.[15]
[15] T documents pages 655-669
When presenting his case, the applicant did not dwell on the statutory process when referring to the evidence he called. He took a more historical approach, focussing on alleged injustices to him within the NSW system to assert that all evidence adverse to him was incorrect. When the decision maker was available to be challenged in cross examination on his acceptance and use of the adverse evidence, this opportunity was not utilised by the applicant.
The respondent submitted that the first two steps in the process consisted of an information gathering process. This consists of identification of risks and then their evaluation. These two steps were followed in the presentation of evidence through the hearing with reference to the T docs, a witness statement tendered by the respondent, and documentary material identified by the applicant.
Although there are criminal charges of extreme severity, all were withdrawn without indication as to why they were withdrawn. In the guidelines this information is categorised as non-conviction information to be taken into account in risk assessment with the following limitation provided for in the guidelines:
Non-conviction information about alleged offences will carry significantly less influence in the assessment of risk as there was insufficient evidence for conviction…..
The outcome of a risk assessment will not be determined solely on the basis of any non-conviction information. Information obtained from a criminal history check and other entities will also be considered.
A significant amount of such information is available.
The guidelines then require the Tribunal to evaluate the likelihood of occurrence of risk and its gravity. Table 3 will then be utilised to determine which category of risk of harm follows: acceptable, acceptable if mitigated, unacceptable.
The evidence of risk of harm is summarised above.
The risk of harm is of sexual assault and abuse and neglect.
This risk has formed the basis for denial of licensing in another jurisdiction. The Tribunal notes the advice of the three independent advisors, in particular the progressive analysis of Mr Pearsall. The Tribunal also notes the two advices of the Regulatory Advisory Committee and the internal risk assessment of 22 May 2019. Also noted are the opinions of Prof. Woods. The report of SAL consulting gives good perspective to the continuity of the problem.
The applicant has presented a great deal of material and has made very serious allegations which are not supported by any of the material he has produced. The Tribunal finds the propositions he advances about the reason for his prosecution to be inherently highly improbable.
The applicant also misunderstands the legislative framework. He considers that he has a right to a certificate as a default position. This is incorrect. The granting of a certificate is a privilege and is part of a statutory system to protect the safety and welfare of vulnerable people. As the Regulatory Advisory Committee said, it is also not a vocational qualification. The applicant must establish that he meets the criteria.
The risk having been identified, it must be evaluated by reference to the Risk Rating Matrix . Firstly, its likelihood of occurrence must be determined. In the Tribunal’s view the evidence strongly indicates that the rating is ‘possible’. The results of the FACS investigations adverse to the applicant are of significance in the making of that determination.
As to the ‘impact’ rating, again the evidence indicates clearly that this is ‘catastrophic’. As counsel for the respondent submits, the four offences which were withdrawn fell within the highest severity of offences according to Table 1 of the guidelines being sexual offences against children. This leads to a risk rating of high which coincides with the rating in the decision under review and is at the lower end of the range established by Mr Pearsall.
The decision under review is confirmed.
………………………………..
Senior Member H Robinson
For and on behalf of the Tribunal
Appendix 1
27 Risk assessment guidelines
(1) The commissioner must make guidelines (risk assessment guidelines) about how risk assessments are to be conducted under this Act.
(2) A guideline may apply, adopt or incorporate an instrument, as in force from time to time.
Note 1The text of an applied, adopted or incorporated instrument, whether applied as in force from time to time or as at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2A reference to an instrument includes a reference to a provision of an instrument (see Legislation Act, s 14 (2)).
(3) A risk assessment guideline is a disallowable instrument.
NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
28Risk assessment guidelines—content
(1) The risk assessment guidelines must provide for—
(a)matters the commissioner must or may take into account in conducting a risk assessment; and
(b)how those matters must or may be taken into account.
(2) The risk assessment guidelines must provide for the following to be taken into account in conducting a risk assessment for a person in relation to a regulated activity:
(a)the person’s criminal history;
NoteThe risk assessment guidelines must provide for certain matters to be taken into account in relation to relevant offences included in the person’s criminal history—see s 29.
(b)non-conviction information about the person;
NoteThe risk assessment guidelines must provide for certain matters to be taken into account in relation to relevant offences, or alleged relevant offences, included in the non-conviction information about the person—see s 30.
(c)whether the person was previously given a negative notice under this Act or a corresponding law;
(d)whether the person was previously registered under this Act or a corresponding law (including whether the registration was suspended or cancelled);
(e)any other information the commissioner believes on reasonable grounds is or may be relevant in deciding whether, in engaging in the activity, the applicant poses a risk of harm to a vulnerable person.
Examples—par (e)
1an order made against the person made under the Family Violence Act 2016 or Personal Violence Act 2016
2a care and protection order under the Children and Young People Act 2008 for a child for whom the person has or had parental responsibility under that Act
3a professional disciplinary proceeding against the person
NoteThe risk assessment guidelines must provide for certain matters to be taken into account in relation to other information—see s 31.
(3) The risk assessment guidelines must provide that—
(a)the applicant may make submissions to the commissioner in relation to any matter the commissioner must or may take into account in conducting a risk assessment; and
(b)the commissioner must not take into account any information about an applicant unless satisfied on reasonable grounds that the information is accurate.
30Risk assessment guidelines—non-conviction information
The risk assessment guidelines must provide for the following to be taken into account in relation to any relevant offence, or any alleged relevant offence, included in the non-conviction information about the person:
(a)the nature, gravity and circumstances of the offence or alleged offence;
(b)the relevance of the offence or alleged offence;
(c)how long ago the offence or alleged offence was committed;
(d)the age of the person and the victim at the time of the offence or alleged offence;
(e)the truthfulness, completeness and reliability of any information or evidence provided by the person who made the allegation or provided the initial information;
(f)the nature, extent and outcome of any investigation into the offence or alleged offence;
(g)any formal statement made by the person to a police officer, including any answer given in a recorded interview, in relation to the offence or alleged offence;
(h)any evidence given by the person in a court proceeding for the offence or alleged offence;
(i)whether this was the person’s first offence or alleged offence;
(j)any submission made by the person to the commissioner in relation to the matters mentioned in paragraphs (a) to (i).
Risk assessment guidelines—other information
The risk assessment guidelines must provide for the following to be taken into account in relation to any other information the commissioner believes on reasonable grounds is or may be relevant in deciding whether, in engaging in a regulated activity, the applicant poses a risk of harm to a vulnerable person:
(a) how the information was obtained;
Examples
1tip off from a member of the public
2a media report
(b) the relevance of the information;
(c)the truthfulness, completeness and reliability of the information;
(d)any submission made by the person to the commissioner in relation to the matters mentioned in paragraphs (a) to (c).
40 Negative notices
(1) The commissioner must refuse to register a person—
(a)if—
(i)the commissioner conducts a revised risk assessment for a person; and
(ii)the commissioner is satisfied that the person poses an unacceptable risk of harm to a vulnerable person; or
(b)if the commissioner gives the person a proposed negative notice and—
(i)the person does not tell the commissioner that the person intends to ask the commissioner to reconsider the decision under section 38 (1) (a); or
(ii)the person—
(A)tells the commissioner that the person intends to ask the commissioner to reconsider the decision under section 38 (1) (a); but
(B)does not ask the commissioner to reconsider the decision under section 38 (1) (b).
(2) If the commissioner refuses to register a person, the commissioner must—
(a)tell the person in writing (a negative notice) that the commissioner refuses to register the person and the reasons for the refusal; and
Note 1The commissioner must also give the person a reviewable decision notice in relation to the decision (see s 62).
Note 2For how documents may be given, see the Legislation Act, pt 19.5.
(b)tell the named employer (if any) in writing that a negative notice has been given to the person.
(3) For subsection (2) (b), the commissioner must not tell a named employer the reasons for giving the person the negative notice.
NoteIf an unregistered person engaging in a regulated activity under s 15 is given a negative notice, the person commits an offence under s 13 if the person continues to engage in the activity.
HEARING DETAILS
FILE NUMBER: | AT 29/2020 |
PARTIES, APPLICANT: | Applicant 202029 |
PARTIES, RESPONDENT: | Commissioner for Fair Trading |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Senior Member G Lunney SC (Presiding) Senior Member H Robinson |
DATES OF HEARING: | 10 & 11 August 2020 |
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