Commissioner for Consumer Affairs v Curran - [2023] SASC 6

Supreme Court of South Australia
(Appeal to a Single Judge)
COMMISSIONER FOR CONSUMER AFFAIRS v CURRAN
[2023] SASC 6
Judgment of the Honourable Justice McDonald
19 January 2023
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - FAILURE TO CONSIDER
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
The appellant appealed against a decision of a member of the South Australian Civil and Administrative Tribunal made on 15 February 2022. The appeal was brought under s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) and r 212.2(1)(b) of the Uniform Civil Rules 2020 (SA). The decision subject of the appeal was that of a member of the Tribunal setting aside the determination made by the Commissioner for Consumer Affairs (‘the Commissioner’) to cancel the respondent’s electrical contractor’s licence and electrical worker’s registration (‘the licences’) which he held under the relevant provisions of the Plumbers, Gas Fitters and Electricians Act 1995 (SA). The Commissioner sought leave to appeal that decision on the basis that the Tribunal erred in finding that the respondent remained a fit and proper person to hold the licences. The Commissioner relied on four grounds of appeal, namely:
1.      The Tribunal erred by wrongly finding that the respondent did not deliberately omit disclosure of his criminal convictions to the appellant.
2.      The Tribunal erred in failing to take into account relevant considerations when determining whether the respondent is fit and proper to hold a licence as an electrical contractor and electrical worker’s registration.
3.      The Tribunal erred by taking into account an irrelevant consideration when determining whether the respondent is fit and proper to hold a licence as an electrical contractor and electrical worker’s registration in wrongly finding that the breaches of the Wiring Rules present in the respondent’s own home were a mitigating factor with respect to the seriousness of the offending in relation to the impact on his licencing.
4.      The Tribunal erred in incorrectly applying principles of law relevant to the assessment of fitness and propriety in an occupational licensing disciplinary.
Held:
1.      The appeal is allowed on grounds 2 and 4.
2.      The appeal is dismissed on grounds 1 and 3.
3.      The parties to make further submission on the disposition of the matter.
Controlled Substances Act 1984 (SA) ss 33B, 33LA; Electricity Act 1996 (SA) s 85; Plumbers, Gas Fitters and Electricians Act 1995 (SA) ss 9, 11, 16, 18, 18B, 32; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 71; Uniform Civil Rules 2020 (SA) r 212.2, referred to.
Attorney-General v Raschke [2018] SASC 165; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Clyne v New South Wales Bar Association (1960) 104 CLR 186; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Craig v Medical Board of South Australia (2001) 79 SASR 545; Health Care Complaints Commission v Do [2014] NSWCA 307; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Midwinter v Commissioner for Consumer Affairs [2006] SADC 93; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Pix v South Australian Housing Trust (2016) 125 SASR 10; R v Curran [2019] SASCFC 14, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v CURRAN
[2023] SASC 6
Single Judge Appeal: Civil
McDONALD J.

This is an appeal against a decision of a member of the South Australian Civil and Administrative Tribunal (‘SACAT’) made on 15 February 2022. The effect of that decision was to set aside the determination made by the Commissioner of Consumer Affairs (‘the Commissioner’) to cancel the respondent’s electrical contractor’s licence and electrical worker’s registration (‘the licences’) which he held under the relevant provisions of the Plumbers,Gas Fitters and Electricians Act 1995 (SA) (‘the PGFE Act’). The Commissioner seeks to appeal that decision on the basis that the Tribunal erred in finding that the respondent remained a fit and proper person to hold the licences.
Background
Prior to the decision of the Commissioner, the respondent had worked as an electrician for approximately 14 years. He had completed a four year apprenticeship and since at least 2017 had run his own business in which he had employed up to six staff members. Throughout this time the respondent held the relevant licences under the PGFE Act.
On 18 July 2017 police attended at the respondent’s home address at Moana and in one of the rooms located a purpose built hydroponic grow tent in which cannabis was being cultivated. There were six mature female plants and 18 cuttings. Arising out of this, the respondent was charged with the offences of cultivating a commercial quantity of a controlled plant for sale,[1] possessing prescribed equipment without reasonable excuse[2] and diverting electricity without authority.[3]
[1]     Controlled Substances Act 1984 (SA) s 33B(2).
[2]     Controlled Substances Act 1984 (SA) s 33LA.
[3]     Electricity Act 1996 (SA) s 85(1)(a).
On 11 April 2018 the respondent entered guilty pleas to all three offences in the Adelaide Magistrates Court. He was sentenced on 19 July 2018. For the offence of cultivation of controlled plants, the respondent was sentenced to two years and 10 months imprisonment that was ordered to be served on home detention. For the latter two offences, the Magistrate imposed fines of $800 and $2,800 respectively. During the course of providing reasons for the sentence, the Magistrate observed:[4]
… It is concerning that despite running a successful business as an electrician, you chose to exploit the unlawful market for cannabis in the expectation that you would derive a financial benefit. The diversion of electricity was part and parcel of that flawed thinking and you used your particular expertise in furtherance of the unlawful enterprise.
[4] Remarks on Penalty of Magistrate Sheppard in Police v Curran (Magistrate Court of South Australia, MCCHB-17-2989, 19 July 2018) (‘Remarks on Penalty’) at [17].
The sentence on count 1 was the subject of an appeal in the Court of Criminal Appeal. On 22 February 2019 the Court set that sentence aside and resentenced the respondent to two years, one month and 16 days imprisonment, again to be served on home detention.[5]
[5] R v Curran [2019] SASCFC 14.
In May 2020[6] the respondent applied to the Commissioner for a building contractor’s licence. As part of the application process, the respondent was required to provide detail of his criminal history. In that application he disclosed that he had a conviction for the cultivation of cannabis. As a result of that disclosure the Commissioner obtained a South Australian Police check of the respondent’s antecedents. The respondent’s antecedent history disclosed the 2017 offending which the Commissioner had not previously been aware of.
[6] The materials before the Court list the date of the application as 05 May 2021, however given the following sequence of events the date would logically be May 2020, with the date in the materials seemingly an error.
On 20 July 2020 the Commissioner sent a Notice to Show Cause letter to the respondent inviting him to make submissions in relation to the 2017 offending. The letter advised the respondent that having become aware of his criminal history, the Commissioner was contemplating cancelling the respondent’s licences.
On 12 August 2020 the respondent replied with a written submission. The submission included details of the relevant offending and explained that the respondent had learnt his lesson and emphasised that since that time he had been of good behaviour. The respondent also cited his good work history and submitted that he would suffer financial hardship in the event of his inability to work, which in turn also impacted on his employees and dependants. Accompanying the submission were numerous character references and a letter confirming the respondent’s compliance with the home detention conditions.
Subsequent to this, the Commissioner became aware that the respondent had failed to disclose his 2017 convictions despite the requirement that he do so. Each year a licence/registration renewal form is sent to all electrical workers and electrical contractors. Although these forms had been sent to the respondent in November 2017, November 2018, November 2019 and November 2020, there had been no disclosure of the 2017 offending. On each occasion the form had been completed ticking a box confirming that during that year criminal proceedings had not been commenced against the respondent.
On 23 December 2020 the Commissioner sent a second Notice to Show Cause to the respondent inviting further submissions addressing the fact that the Commissioner had identified that the respondent had failed to disclose the 2017 offences in any of the applications for the renewal of his licences between 2017 and 2020. The letter again advised that the Commissioner was contemplating cancelling the respondent’s licences.
On 19 February 2021 the respondent replied to the Commissioner through his solicitors. In the response he explained that it was not the respondent himself who had declared that he had not been charged with further offending but rather it was his partner who had carried out the renewal process for him. At the relevant times, his partner was his bookkeeper and business accountant.
On 31 August 2021 the Commissioner cancelled the respondent’s registration as an electrical worker and his licence as an electrical contractor, to be effective immediately. The decision to cancel was accompanied by a detailed statement of reasons. In arriving at the decision to cancel the licences, the Commissioner relied on the 2017 convictions, placing some weight of the Magistrate’s remarks, and on the respondent’s failure to disclose those offences in his licence renewal applications.
The Commissioner found that the respondent was not a fit and proper person to be registered under the PGFE Act. In the statement of reasons the Commissioner summarised the basis of the decision in the following terms:
I am of the view that allowing you to remain registered under the PGE Act, in light of the seriousness of your offending, the fact your offending involved you using your electrical trade knowledge to steal electricity to facilitate this offence, and your failure to candidly declare your 2017 drug cultivation offences to the Commissioner on the renewal of your licence in 2017 – 2019, would pose a risk to the public, would undermine the integrity of the licensing scheme, and has the potential to undermine public confidence in the licensing scheme.
SACAT proceedings
The respondent made an application to the SACAT for a review of the decision of the Commissioner to cancel his licences pursuant to s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘the SACAT Act’). The review was heard on 9 February 2022. At the outset of the hearing, counsel for the respondent raised that there had been ongoing negotiations between the parties and that he remained hopeful that some form of compromise could be reached. On that basis, a short adjournment was granted to enable the parties to confer to ensure that all options for a non-litigious resolution had been exhausted. In particular, counsel for the respondent hoped to further explore whether conditions surrounding the respondent’s licences or a requirement that he work under supervision would be sufficient to alleviate the Commissioner’s concerns.
When the matter resumed it was apparent that no compromise position could be reached in that nothing short of the revocation of the licences would satisfy the Commissioner. The Commissioner maintained that the respondent was not a fit and proper person to hold either an electrical contractor’s licence or worker’s registration.
There was new evidence before the Tribunal that was not before the Commissioner. This related to unsatisfactory aspects of the work undertaken by the respondent in previous years. Before the Tribunal was an affidavit of Darren Winter from the Office of the Technical Regulator which outlined breaches of the Electricity Act 1996 (SA) and the Wiring Rules in relation to the electricity use and rewiring in relation to the 2017 offences at Moana, breaches of the Wiring Rules at a Mitchell Park property for which the respondent received an expiation notice and irregular wiring at a property owned by the respondent at Seaford. The allegation in relation to the Seaford property was subsequently not relied upon as it appears to have been accepted that as this house was rented out, and it could not be established that the respondent had any involvement in the electrical work at the premises.
There was also evidence before the Tribunal that the respondent had never been the subject of any disciplinary action. Further, that throughout his career the respondent had only been the subject of two complaints made to Consumer and Business Services and these were resolved between the parties without the need for any further action to be undertaken.
It follows that on the review the Tribunal relied on three main matters:
1.The respondent had committed the 2017 criminal offences, in the course of which he had used his skills and knowledge to steal electricity. These offences were committed against a backdrop of the respondent having been convicted of aggravated assault, cultivating cannabis, common assault and failing to pay a taxi fare between 2009 and 2013. It was accepted that none of these offences were as serious as those committed in 2017.
2.The respondent had failed in his duty of honesty and candour by not disclosing the 2018 convictions (for the 2017 offences) to the Commissioner.
3.The respondent had engaged in electrical work that breached the relevant regulatory scheme, namely the Wiring Rules by performing work that was non-compliant and that posed a risk to others.
On 15 February 2022 the Tribunal allowed the review and set aside the cancellation of the respondent’s licences on the basis that the respondent remained a fit and proper person to hold both a contractor’s licence and worker’s registration. The Commissioner appeals against that decision.
Grounds of appeal
The Commissioner relies on four grounds of appeal. These are:
1.The Tribunal erred in law by wrongly finding (at [68]-[69] of the Decision) that the respondent did not deliberately omit disclosure of his criminal convictions to the appellant:
a. given the respondent was obliged to disclose any criminal charges or convictions in lodging annual returns pursuant to sections 11 and 32 of the Plumbers, Gas Fitters and Electricians Act 1995 (SA); and
b.    in any event, in the absence of sworn evidence to support that finding.
2.The Tribunal erred in law in failing to take into account relevant considerations when determining whether the respondent is fit and proper to hold a licence as an electrical contractor and electrical worker’s registration in:
a.     wrongly finding the breaches of the Wiring Rules present in the property associated with the respondent’s criminal convictions did not need to be separately considered by the Tribunal, in circumstances where the breaches of the Wiring Rules had not been the subject of criminal charges and were considered by the Office of the Technical Regulator as creating a serious risk of fire or electrocution (Decision at [49] and [71]); and
b.    wrongly finding that the expiation notice issued to the respondent for breaches of the Wiring Rules present in a property at Mitchell Park was relevant only to whether the respondent had sufficient qualifications and experience and had no bearing on the respondent’s fitness and propriety (Decision at [51] and [73]).
3.The Tribunal erred in law by taking into account an irrelevant consideration when determining whether the respondent is fit and proper to hold a licence as an electrical contractor and electrical worker’s registration in wrongly finding that the breaches of the Wiring Rules present in the respondent’s own home were a mitigating factor with respect to the seriousness of the offending in relation to the impact on his licencing (Decision at [63]).
4.The Tribunal erred in law in incorrectly applying principles of law relevant to the assessment of fitness and propriety in an occupational licensing disciplinary context by:
a.     discounting the weight to be given to the criminal offending because it would otherwise lead to an risk of “further punishment” (rather than considering the offending in the context of the protection of the public and maintenance of standards and public confidence in the industry) (Decision at [75] and [78]);
b.    giving excessive weight to character evidence and good behaviour since the offending, where such evidence was only able to be demonstrated because of the respondent’s failure to notify the appellant about his criminal convictions enabled him to maintain his licence and registration (Decision at [78], [79], [80]).
These grounds can effectively be placed under two headings. The first is ground 1 which is that the Tribunal erred in finding the respondent did not deliberately omit disclosure of his criminal convictions. The second, comprising of grounds 2, 3 and 4 is that the Tribunal erred in its consideration of the respondent’s fitness and propriety.
A preliminary issue – Leave to appeal
Before turning to the merits of the various grounds of appeal, there is a preliminary issue as to whether the Commissioner should be granted leave to appeal. The decision under review is that of an ordinary member of the Tribunal. An appeal against the decision of the Tribunal lies to the Supreme Court constituted of a single judge in circumstances in which the Tribunal was constituted of an ordinary member of the Tribunal.[7]
[7] South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(1)(b).
Section 71(2) of the SACAT Act provides that an appeal against a decision of the Tribunal is only by leave of the Supreme Court.
In Jackson v Lepp Investments Pty Ltd,[8] Parker J succinctly summarised the governing principles upon which to determine whether to grant leave to appeal:[9]
In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. A failure of the first-instance decision-maker to give adequate reasons will require the grant of permission.
Because SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings. For this proposition I rely on the decision of this Court in Legal Practitioners Conduct Board v Colton.
(Footnotes omitted)
[8] (2016) 125 SASR 1.
[9] Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19]-[20]; cited with approval by Kourakis CJ in Pix v South Australian Housing Trust (2016) 125 SASR 10.

It is the Commissioner who must satisfy the Court that the appeal is reasonably arguable. It was submitted by counsel for the Commissioner that the appeal was of sufficient substance and was at the very least reasonably arguable.
Counsel for the Commissioner put to the Court that the starting point is that the Commissioner has the responsibility for administering the licensing scheme under the PGFE Act and has the sole responsibility to the public in holding out licensees as fit and proper to hold a licence and registration. It is against that backdrop that counsel for the Commissioner set out the reasons why leave should be granted:[10]
This matter involves questions of statutory construction and will affect the Commissioner’s assessments in future applications. It deals squarely with the role and function of the Commissioner as the licensing authority under this Act and other occupational licensing legislation. It involves consideration of the obligations of licence holders under the licensing scheme, and what it means to be a fit and proper person for the purposes of the PGE Act.
The Decision, by misapplying the principles of fitness and propriety, and by placing little weight on the Commissioner’s role in the licensing scheme, undermines the role of the Commissioner in protecting the public and prevents the Commissioner from properly exercising his functions, powers, and duties under the PGE Act when assessing a licensee’s fitness and propriety. This is also in circumstances where there is judicial authority that there is a wide scope for judgment and rejection.
It is imperative for the proper administration of the PGE Act, and other licensing schemes administered by the Commissioner, that the Commissioner is permitted to make determinations of one’s fitness and propriety on the basis of a lack of candour with respect to disclosing matters directly relevant to their fitness and propriety.
The Commissioner submits that the decision of the Tribunal raises important issues for determination by this Honourable Court and will impact decision-making by the Commissioner in administering the PGE Act. The Commissioner submits that the Tribunal’s decision has the effect of lowering the bar for entry for new applicants and restricting the basis upon which the Commissioner can reject applications and discipline licence holders. This, in turn, will impact the integrity of the licensing scheme and protection of consumers. For these reasons the appeal is of sufficient substance.
(Footnote omitted)
[10] Written Submissions of the Commissioner for Consumer Affairs (FDN 12) at [16]-[19].
Counsel for the Commissioner submitted to the Court that there was also an unusual aspect to this case that warranted the grant of leave:[11]
I think of particular note in this matter is that there is a sort of somewhat novel consideration where there is this serious offending that occurred some years ago but in the context where there was no disclosure of that offending during that intervening period. So you have the balancing act of dealing with offending that has occurred quite some time ago and where there’s been good behaviour since, but also a failure to disclose that offending to the Commissioner. The Commissioner says that this matter is not just turning on its own facts, it will impact his decision making going forward and that is why, whether or not this court ultimately agrees with the Commissioner’s submissions, a decision of the court will be helpful in guiding the Commissioner going forward.
[11] Transcript of Proceedings, Commissioner for Consumer Affairs v Curran (Supreme Court of South Australia, CIV-22-002652, McDonald J, 2 June 2022) (‘Appeal Transcript’) at 3-4.
Counsel for the Commissioner submitted that those same matters demonstrate why it is in the interest of justice to grant leave to appeal.
There is also an additional consideration in determining whether leave should be granted when an appeal is from a specialist body or tribunal, in that the Court must ensure appropriate deference to the specialist skills and knowledge reposed in such a body. In Attorney-General (SA) v Raschke,[12] Doyle J summarised the appropriate approach:
… because the Tribunal is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings. And, as I have previously observed, it follows from the above that this Court will not routinely grant leave to appeal from decisions of the Tribunal. The Court should not readily grant leave to appeal in cases where to do so will tend to undermine the legislative intention of the SACAT Act that tenancy disputes be dealt with by a specialist tribunal which is better equipped to deal with such disputes in a timely and cost efficient way. Granting leave to appeal too readily would tend to undermine this objective, and serve only to add a further layer of expense and delay.
(Footnotes omitted)
[12] [2018] SASC 165 at [21].
On the question of leave to appeal, counsel for the respondent took a sensible and pragmatic approach. After I expressed a tentative view that I was inclined to grant leave, whilst he did not concede that leave should be granted, he did not seek to put forward any submissions in opposition to that course.
In my view, for reasons that will become apparent, the appeal grounds are at least arguable and given those matters put forward by counsel for the Commissioner, I accept that it is in the interests of justice to grant leave. Accordingly I grant leave to appeal the decision.
Nature of the appeal
This appeal is brought pursuant to s 71 of the SACAT Act and r 212.2(1)(b) of the Uniform Civil Rules 2020 (SA). An appeal of this nature is by way of a rehearing. It is effectively a trial over again on the evidence relied upon in the Tribunal together with such additional evidence as may be received on appeal. The Court must independently review the evidence and carefully consider the findings made at first instance. Significantly, where the matter involves a question of judicial discretion, the Court is not entitled to substitute its own decision unless an error is identified in the exercise of that discretion.
Again, it must be factored in that the decision under consideration is that of an administrative decision maker. In Collector of Customs v Pozzolanic Enterprises Pty Ltd[13] it was said that the Court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision maker.[14] The Court continued “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.[15]
[13] (1993) 43 FCR 280.
[14] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
[15] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang[16] the High Court also considered the issue and observed:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
[16] (1996) 185 CLR 259 at 272.
The PGFE Act licensing scheme
Before turning to consider the grounds of appeal, it is instructive to set out the framework created by the PGFE Act for the registration and licensing of workers and contractors. The PGFE Act regulates who may carry out (relevantly) electrical work in South Australia. Essentially the licensing scheme sets up a regime with the primary focus on the protection of the public. The Commissioner is required to maintain a scheme that enables him to hold out that an electrical worker is not only sufficiently skilled and qualified to hold a licence, but also that their fitness and propriety is such that the public can trust and rely on them.
Part 2 of the PGFE Act relates to the licensing of contractors and Part 3 to the registration of workers. It is an offence to carry on the business of an electrical contractor without a licence, or act as an electrical worker unless registered.
For both a contractor’s licence and the registration of a worker there is a requirement that they not only possess the requisite qualifications and skills but they are “a fit and proper person to be the holder of a licence”[17] or “a fit and proper person to be registered”.[18] In order to retain a licence or registration it is necessary to pay an annual fee and “lodge with the Commissioner a return in the manner and form required by the Commissioner”.[19] At the relevant time there was an electronic renewal process that required the annual completion of an online form. One of the questions that an applicant was required to answer related to any change in the circumstances that may impact on an assessment of whether they remained of good character.
[17] Plumbers, Gas Fitters and Electricians Act 1995 (SA) s 9(1)(f).
[18] Plumbers, Gas Fitters and Electricians Act 1995 (SA) s 16(b).
[19] Plumbers, Gas Fitters and Electricians Act 1995 (SA) s 11(2)(b) and s 18(2).
The screenshot below represents the question about criminal offences present in the electrical contractor’s licence renewal process in the years 2017 to 2021:
Section 32 of the PGFE Act makes it an offence to provide any false or misleading information. It reads:
32—False or misleading information
A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided, or record kept, under this Act.
Maximum penalty:
(a) If the person made the statement knowing that it was false or misleading—$10 000.
(b) In any other case—$2 500.
It is s 18B of the PGFE Act that empowers the Commissioner to cancel a licence or registration. It relevantly reads:
18B—Commissioner may cancel, suspend or impose conditions on licence or registration
(1)If the Commissioner is satisfied that events have occurred such that—
(a)     a licensed contractor would not be entitled to be so licensed if the person were to apply for the licence; or
(b)     a registered worker would not be entitled to be so registered if the person were to apply for registration,
the Commissioner may, by notice served on the person—
(c)     cancel the licence or registration; or
(d)     suspend the licence or registration for a specified period or until the fulfilment of stipulated conditions; or
(e)     impose conditions on the licence or registration.
…
The operation of s 18B involves the satisfaction of two limbs. First, events must have occurred and, secondly, the Commissioner must be satisfied that those events have had the effect of negating a person’s previous satisfaction of a precondition for a licence or registration.
Ground 1
1.The Tribunal erred in law by wrongly finding (at [68]-[69] of the Decision) that the respondent did not deliberately omit disclosure of his criminal convictions to the appellant:
a. given the respondent was obliged to disclose any criminal charges or convictions in lodging annual returns pursuant to sections 11 and 32 of the Plumbers, Gas Fitters and Electricians Act 1995 (SA); and
b. in any event, in the absence of sworn evidence to support that finding.
There was no dispute that the respondent was required to disclose at the very least the 2017 offences in his annual renewal certificate completed in November 2017.[20] There was equally no dispute that the integrity of the licensing scheme relies on the conduct of applicants and licence holders nor that the respondent had failed to meet his obligations in this respect. The issue that remained was the weight to be placed on that factor in determining the question of whether the respondent remained a fit and proper person under the terms of the PGFE Act.
[20] Given the wording of the question, it was not accepted that the responses in subsequent renewal certificates were inaccurate.
There appeared to have been a general acceptance that although it was for the respondent to ensure that he had complied with his obligation of disclosure, the failure was far more egregious if this had been a deliberate omission.
Before addressing the complaints made by the appellant, it is necessary to first of all consider the positions adopted by the parties to this topic in the Tribunal hearing and the determination made by the Tribunal.
The issue was first addressed in the letter that the respondent provided through his solicitor on 19 February 2021. In his reasons for his decision to cancel the respondent’s registration and licence, the Commissioner set out the detail of the explanation that the respondent provided in that letter as to the circumstances in which he had not complied:
·Your then partner was the book keeper and assistant and was responsible for updating your licenses and details.
·You declared the relevant offences when you personally completed the renewal application.
·You did not intend to deceive CBS in relation to your criminal history.
…
The Commissioner went on to make findings about that explanation:
There is no record of you ever having disclosed the 2017 drug cultivation offences to CBS. Annual Renewals for your licence were posted to you in November 2017, November 2018, November 2019, and November 2020. The renewal letters specifically asked you to disclose whether any criminal proceedings had been commenced against you. A review of CBS’ business records shows that no such notifications or disclosures were received from you.
CBS records indicate that your 2017, 2018 and 2019 licence renewals were all paid online. This would not have been possible from a systems perspective unless you had clicked a specific ‘button’ during the online renewal process confirming that you had not been convicted or charged with any offences since the last renewal. Moreover there are no notes on the CBS system which would indicate that you called CBS’ Licensing and Registration Branch staff to discuss your offending, or that CBS gave any permission to you not to provide answers to the disclosure requirements on renewal of your licence.
In relation to the 2017 drug cultivation offences for which you were charged and convicted, I am satisfied on the balance of probabilities that you deliberately and dishonestly failed to disclose your criminal offending to the Commissioner on the annual renewal of your registration for the years 2017-2019.
If you had disclosed these offences, CBS’ Licensing and Registration Branch would have referred you to CBS’ Compliance i:ind Enforcement Branch for investigation far earlier as regards your fitness and propriety to remain registered under the PGE Act. In my view you should not gain an advantage from your failure to declare the 2017 offences to CBS in a timely manner.
The integrity of the licensing regime depends on the complete candour of applicants and the failure to truthfully disclose offences and other relevant matters has been considered to be sufficient by the Licensing Court to cancel licences and registrations in other (i.e.- liquor licensing and occupational licensing) matters that involved questions of fitness and propriety considered by that Court.
In Castelluzzo v Commissioner for Consumer Affairs [2004] SADC 62 non-disclosure was considered by the Court. In this case Mr Castelluzzo was applying for a builders licence and had not disclosed his offence history. The non-disclosure formed the basis for a determination that Mr Castelluzzo was not a fit and proper person. Justice Trendorden [sic] stated at [18] that:
The failure of the appellant to be honest with the Commissioner suggests that he is not a fit and proper person to be granted a licence. It was put to me by counsel for the appellant that, in effect, the failure to address the February 2003 conviction was an oversight on the part of the appellant. I do not accept that. The appellant had at least two opportunities to mention the offence for the Commissioner’s consideration. The appellant has not been honest in his dealings with the Commissioner. The absence of honesty on his part in his dealings with the Commissioner upon his application for a licence, suggests strongly that he is not a fit and proper person to hold a licence.
While I acknowledge the suggestion that your former partner was responsible for your licence renewals, I do not accept that this as a sufficient reason to excuse your failure to declare the offences to CBS.
As the holder of the electrical contractor’s licence and electrical worker’s registration, you are solely responsible for the duties and obligations attached to your licence and registration.
It is unclear from the above passages as to what findings the Commissioner made about the respondent’s state of mind in relation to the failure to disclose the convictions. The Commissioner at one point determined “you deliberately and dishonestly failed to disclose your criminal offending” however went on to say “while I acknowledge the suggestion that your former partner was responsible for your licence renewals, I do not accept that this is a sufficient reason …”. In the first passage, the Commissioner appeared to make a clear finding of deliberate dishonesty but then subsequently appeared to treat the respondent’s conduct as an oversight.
The issue of the respondent’s state of mind in relation to the failure to disclose the convictions came up a number of times during the course of the hearing in the Tribunal. The topic first came up during the submissions of counsel for the Commissioner. In the context of outlining the circumstances of the respondent’s failure to disclose, she said:[21]
Throughout that whole period while he had been awaiting conviction, he’d been charged, he was waiting, he was then convicted, he was then placed on the home detention bond, he didn’t think to tell the Commissioner about the offending. I understand that he has previously submitted to the Commissioner that it was his then partner who completed the documents but with respect, the Commissioner – it doesn’t really matter. It was his responsibility to complete those forms and he had a responsibility to tell the Commissioner. And in the Commissioner’s point of view, he was aware of the impact on his electrical licence because it’s referenced in the sentencing remarks that he was concerned that this offending would have an impact on his licence. So, the Commissioner says it’s a reasonable inference to find that he deliberately kept quiet about the offending, because he knew that the Commissioner would have a view about it.
[21] Transcript of Proceedings, Commissioner for Consumer Affairs v Curran (South Australian Civil and Administrative Tribunal, 2021/SA003134, Member Reilly, 9 February 2022) (‘SACAT Transcript’) at 12-13.
At that point the Member expressed some confusion about the findings of the Commissioner that mirror those observations that I have made about the apparent inconsistency. In that context the following exchange occurred:[22]
[22] SACAT Transcript at 13-14.
MEMBER:
Because the two – and this is something that is pointed out in the applicant’s submissions that on the one hand, the Commissioner did seem to accept that Mr Curran’s partner had filled out the online form.
MS FERGUSON:
Yes.
MEMBER:
But on the other hand, then said it was deliberately dishonest.
MS FERGUSON:
Yes.
MEMBER:
And I didn’t quite see how they married up. Because if Mr Curran wasn’t actually himself responsible for doing that
MS FERGUSON:
Yes.
MEMBER:
Unless, is it the commissioner’s position that Mr Curran told his partner to not fill in that box? Is that the
MS FERGUSON:
I don’t think we can put it that high. I think that
MEMBER:
Well, how high would you put it?
MS FERGUSON:
What the Commissioner would say is that as an electrician who’s been working in the industry for 15 years and completing returns, he knew that he had an obligation to report to the Commissioner this offending, which was relevant to an assessment of whether he was entitled to hold a licence, and that he simply did not do so. And there were
MEMBER:
But is it the circumstances about him not doing so? I mean, there are two possibilities.
MS FERGUSON:
Yes.
MEMBER:
I accept that clearly, it’s his responsibility.
MS FERGUSON:
Yes.
MEMBER:
No one’s questioning that.
MS FERGUSON:
Yes.
MEMBER:
The question is whether he deliberately and dishonestly chose not to fill that box. Can I just ask what – because the online form, what – do we have exactly what it says and is it just a, you just tick the box and you move on to the next question
MS FERGUSON:
As I understand it, it is a tick box.

Shortly after, counsel for the Commissioner made a further submission on this topic:[23]
MS FERGUSON:
Going by the form, yes. However, I still maintain the submission that it’s apparent from the sentencing remarks that Mr Curran was well aware that the Commissioner would be interested to know about this. And just in general, in terms of the licencing scheme as a whole, the licencing scheme relies on people holding licences to inform the Commissioner. That’s the, the integrity of the whole regime is dependent on the candour of the people who are within it. And in the absence of informing the Commissioner of material facts that have occurred that might impact his ability to hold a licence, he has essentially caused the scheme to – well, it meant the Commissioner was not then able to make an assessment at all during that whole period. I do accept that the form may not have required him to indicate in you know, the following years but I maintain that it was something he should have done.
[23] SACAT Transcript at 15-16.
The Member then raised the undisputed fact that in 2021 the respondent had declared his convictions in circumstances in which he was applying for a building contractor’s licence:[24]
[24] SACAT Transcript at 16-17.
MEMBER:
and in that application, he did declare his convictions? To what, does that in some way demonstrate that he wasn’t trying to deceive or might, we might infer from that that he wasn’t ever trying to deceive, that it maybe was an oversight that he didn’t tick the box? Or his partner didn’t tick the box on his behalf?
MS FERGUSON:
I mean, without having, putting evidence or asking Mr Curran, which we could do, in my submission
MEMBER:
Well, Mr Curran I think has said quite clearly that it was an oversight.
MS FERGUSON:
Yes.
MEMBER:
So, that’s his position.
MS FERGUSON:
Yes.
MEMBER:
And it does seem from the combination of those two bits of evidence that I could draw that inference
MS FERGUSON:
You could draw that inference.
MEMBER:
that it was an oversight. Which doesn’t mean that it, which still has a problem for the integrity of the licencing scheme.
MS FERGUSON:
Yes.
MEMBER:
But maybe then isn’t so relevant to the question of him being a fit and proper person in relation to – because where honesty, dishonesty is the key issue there.
MS FERGUSON:
Yes. I think the only thing I can say in relation to that is that the sentencing remarks of the Magistrate based on the submissions made on Mr Curran’s behalf in those criminal proceedings indicate that he was, it was on his mind that this may impact his licence and notwithstanding that he may not have personally filled out the form, it was dishonest of him not to tell the Commissioner about the offending. At that time. And then to benefit from it years after. Perhaps in later years, it was a genuine oversight, I really can’t say; I can’t put any evidence to you to suggest it wasn’t except for that acknowledgement in the sentencing remarks.
MEMBER:
Yep, alright. So, in terms of it going to whether he’s a fit and proper person.
MS FERGUSON:
Yes.
MEMBER:
It’s a demonstration of possibly some dishonesty.
MS FERGUSON:
Yes.
Although counsel for the Commissioner mentioned in passing the option of the respondent giving evidence, it appears that no one had any appetite for adopting that course and that submission was never fully developed. It was certainly never suggested that absent sworn evidence it was not open for the Member to accept the submission that was made by the respondent’s counsel. That is important for reasons that I will come back to.
In the Tribunal’s reasons for setting aside the Commissioner’s decision, the inconsistency in the Commissioner’s reasons was identified. The Tribunal observed at [67]:
There is an apparent inconsistency in the reasons of the Commissioner in relation to whether the omission was deliberate or accidental. At one part of the reasons, the Commissioner states, ‘I am satisfied, on the balance of probabilities, that you deliberately and dishonestly failed to disclose your criminal offending to the Commissioner’. In another part of the reasons, the Commissioner states, ‘while I acknowledge the suggestion that your former partner was responsible for your licence renewals, I do not accept that this is a sufficient reason to excuse your failure to declare the offences to CBS. As the holder of the contractor’s licence and electrical worker’s registration, you are solely responsible for the duties and obligations attached to your licence.’ In this second statement, the delegate acknowledges the possibility that the omission of the details of criminal offending was not deliberate. Although as the Commissioner states, this does not detract from the applicant’s duties and obligations attached to the renewal of his licence, it does, in my view, have implications for whether the applicant is a fit and proper person.
The Tribunal went on to make the following findings at [68]-[69]:
After hearing submissions, I am of the view that the omission of the criminal offences was not deliberate. I accept the applicant’s evidence that his partner was responsible for his online renewal, and that she ticked the box ‘confirming the applicant had not been convicted or charged with any offences since the last renewal’. In answer to this question, in the 2017 renewal, the applicant’s partner should have ticked yes, in acknowledgement of the applicant’s charges for the offences surrounding the cultivation of cannabis, and in 2018 should have ticked yes to a conviction for these charges. But on the wording of the question, the applicant had no charges or convictions to declare in the 2019 and 2020 renewal notices.
I am prepared to accept the applicant’s evidence that he did not deliberately mislead the Commissioner given that, as is stated in the submissions of the applicant, ‘it was the applicant’s own application for a builder’s licence that caused the Commissioner to become aware of the offending.’ If the applicant had been trying to deliberately deceive the Commissioner in relation to the offences, it seems unlikely that he would have been honest about those offences in this related application process.
Consideration of ground 1
There are two limbs to this ground of appeal. The first is that the Tribunal erred in finding that the respondent did not deliberately omit disclosure of his criminal convictions. The second is that absent sworn evidence it was not open for the Tribunal for arrive at this finding.
I will deal first with the suggestion that in order for the Tribunal to accept this submission, the respondent was required to give evidence.
The starting point is the nature of proceedings in the Tribunal. Part 4 of the SACAT Act set out the principles, powers and procedures during hearings conducted in that forum. Section 39 relevantly provides:
39—Principles governing hearings
(1)On the hearing of any proceedings, but subject to the provisions of a relevant Act—
(a)     the procedure of the Tribunal will, subject to this Act, be conducted with the minimum of formality; and
(b)     the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and
(c)     the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.
(2)Nothing in this Act affects any rule or principle of law relating to—
(a)     legal professional privilege; or
(b)     "without prejudice" privilege; or
(c)     public interest immunity.
(3)This section does not limit the operation of section 69.
Counsel for the respondent effectively summarised the position:[25]
A hearing before the Tribunal is not governed by the rules of evidence and is to be conducted with the ‘minimum of formality’. As such it appears the Tribunal is effectively empowered to receive material before it in any manner it sees fit in accordance with the statutory requirement to act in accordance with ‘equity, good conscience and the substantial merits of the case and without regard to legal technicalities and form’. However, in construing its own functions, the Tribunal has cautioned that in the event it is to make positive of wrongdoing or that are otherwise adverse, it should do so on the balance of probabilities with due regard to the principles in Briginshaw and that such findings should only be made on cogent evidence.
(Footnotes omitted)
[25] Written Submissions of Respondent (FDN 15) at [24].
At no point during the Tribunal hearing was it seriously suggested that the respondent was required to give sworn evidence before the submission by his counsel could be relied upon. Whilst at one point it was glossed over as an option, it was a suggestion that was never again revisited let alone pursued with any real vigour.
A litigant has the right to know the forensic contest that they are required to meet. It is not open for the Commissioner to now take the position on appeal for the first time that it was necessary for the respondent to give sworn evidence before the Tribunal could act on the submission of his counsel. That was never put to the Tribunal nor counsel for the respondent. It is not now open to suggest that receiving sworn evidence was a necessary step in arriving at the findings made by the Tribunal.
Even had the Commissioner taken the position in the Tribunal that they now take on appeal, I do not accept that it was a necessary prerequisite for an acceptance of the respondent’s counsel’s submission for the respondent to have given evidence. The Tribunal heard competing submissions. It was open to the Tribunal to draw appropriate inferences and arrive at whatever decisions were reasonably open on the evidence.
That then brings me to the second aspect of this ground of appeal which is whether it was open for the Tribunal to arrive at a finding that the respondent did not deliberately omit disclosure of his criminal convictions.
Counsel for the Commissioner both in the Tribunal and on appeal relied heavily on the sentencing remarks of the magistrate who sentenced the respondent to support the inference that his conduct was deliberate. Those sentencing remarks were made on 19 July 2018 and relevantly provide: [26]
You accept by committing these offences you have made a huge mistake. You have a mortgage over your residential property. You have been very worried about your business and your mortgage if you are imprisoned. You are also concerned that your electrician’s licence may be in jeopardy.
[26] Remarks on Penalty at [13].
It is clear that at the very least at the time of the sentencing process the respondent was acutely aware that his licences were at peril as a consequence of his criminal offending. The inference can readily be drawn that this was not a matter that subsequently escaped his mind. Counsel for the Commissioner took the position that it did not matter who filled out the renewal forms, the obligation remained on the respondent to ensure that the Commissioner was aware of any criminal conviction. That responsibility is particularly important in circumstances in which the Commissioner is not in a position to monitor individual licence holders to ensure that they have not been charged with any new criminal offence.
Counsel for the Commissioner made the concession that it could not be positively asserted that the respondent had told his partner to inaccurately or dishonestly complete the forms, however maintained that having worked in the industry for 15 years the respondent should and would have been aware of this requirement.
Counsel for the respondent submitted that the failure of disclosure was in the nature of a failure of diligence on the part of the respondent as opposed to an act of deliberate dishonesty. Further, that the Commissioner was unable to point to any positive evidence that discredited the respondent’s explanation or suggested that it was not true. Counsel for the respondent relied heavily on the fact it was the respondent’s own conduct in disclosing the convictions in the course of applying for a building contractor’s licence that caused the issue to come to light. It was contended that this was powerful support for a finding that the failure to disclose was not deliberately dishonest conduct.
It is apparent from the exchange set out at [49]-[52] that the Tribunal took a very black and white approach to this issue. It appeared that absent a finding that the respondent had deliberately caused his partner to incorrectly complete the form, the only alternative inference was that this was a case of oversight. There was of course a middle ground which was that the respondent was wilfully blind as to how the renewal was completed, choosing to put his head in the sand rather than confront the issue.
Whilst I have some misgivings about the finding arrived at by the Tribunal and others may well have drawn the contrary inference, that is not the question for this Court. It is whether it was open for the Tribunal to arrive at that view. In considering this issue the Tribunal clearly weighed up the issue and considered the findings of the Commissioner and the respondent’s explanation. The Tribunal appears to have been particularly persuaded by the fact that it was the respondent’s own application for a building contractor’s licence that caused the Commissioner to become aware of the offending, concluding his finding at [69] with:
… If the applicant had been trying to deliberately deceive the Commissioner in relation to the offences, it seems unlikely that he would have been honest about those offences in this related application process.
I can identify no error in the Tribunal arriving at this finding.
It was open for the Member to find that the failure to disclose was not dishonest and accordingly I find that this ground has not been made out.
Grounds 2, 3 and 4 – The Tribunal erred in its consideration of the respondent’s fitness and propriety
It is well accepted that the purpose of any disciplinary proceedings is to protect the public, not to punish an individual in the sense in which punishment is administered under the criminal law. In Craig v Medical Board of South Australia,[27] in the context of disciplinary proceedings against a psychiatrist, Doyle CJ explained:
… A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
In NSW Bar Association v Evatt (1968) 117 CLR 177, in a much cited passage, the High Court found that the conduct in question demonstrated that the practitioner was unfit to practise as a barrister, and then went on to say (at 183-184):
The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v NSW Bar Association (1960) 104 CLR 186 at 201, 202. The respondent’s failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser.
Accordingly, the Supreme Court was, clearly, in error in deciding to suspend the respondent from practice rather than to disbar him, and it is the duty of this Court to correct that error.
Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.
[27] (2001) 79 SASR 545 at [41]-[43].
At the same time, the disciplinary action must be proportional and appropriate to all of the circumstances of the case.
These principles are widely accepted and applied, recognising that the purpose of disciplinary proceedings is to protect the public, maintain proper professional standards, and to assure the public that proper standards are being maintained in the relevant profession. A disciplinary sanction also assists in upholding public trust and confidence in the profession, bringing home to the individual the seriousness of their conduct, deterring them from any further departures from appropriate standards, deterring other members of the profession from acting in a similar manner, and imposing restrictions on the individual’s right to engage in that work so as to ensure that the public is protected.
The term “fit and proper person” is a term commonly used in legislation regulating trades and professions. It takes its meaning from the context of the statutory scheme in which it appears. As explained by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond:[28]
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.
[28] (1990) 170 CLR 321 at 380.
Consideration was given to the phrase and the assessment as to the fitness and propriety of a person in the context of a building licence by Lovell DCJ (as his Honour then was) in Midwinter v Commissioner for Consumer Affairs.[29] The following factors were identified as relevant considerations:
Therefore it appears that when considering the question of whether an applicant is a “fit and proper person” the relevant licensing authority should:
1.Direct its enquiry to the situation that stands at the time of the application.
2.Consider the activities in which the applicant is or will be engaged and the ends to be served by those activities. What is relevant for consideration depends on the statutory context and the qualifications directly relevant to the particular vocation.
3.Take into account relevant past events including previous experience in the area under consideration and the personal antecedents of the applicant.
4.If the applicant has been involved in breaches of the law and/or has a propensity towards offending against the law such matters must be regarded as of importance.
5.The nature and seriousness of previous convictions will necessarily vary in their importance bearing in mind the significance that those convictions must necessarily have in relation to the type of work envisaged by the particular licence sought. In some cases, previous criminal convictions may be crucial to the decision process.
6.Where an applicant applies for a licence having never before performed a particular class of work, a licensing authority would be justified in erring on the side of caution, thus requiring an applicant to demonstrate a significant period of good behaviour following relevant convictions before acceding to an application for a licence.
[29] [2006] SADC 93 at [35].
Ground 2
2.The Tribunal erred in law in failing to take into account relevant considerations when determining whether the respondent is fit and proper to hold a licence as an electrical contractor and electrical worker’s registration in:
a. wrongly finding the breaches of the Wiring Rules present in the property associated with the respondent’s criminal convictions did not need to be separately considered by the Tribunal, in circumstances where the breaches of the Wiring Rules had not been the subject of criminal charges and were considered by the Office of the Technical Regulator as creating a serious risk of fire or electrocution (Decision at [49] and [71]); and
b. wrongly finding that the expiation notice issued to the respondent for breaches of the Wiring Rules present in a property at Mitchell Park was relevant only to whether the respondent had sufficient qualifications and experience and had no bearing on the respondent’s fitness and propriety (Decision at [51] and [73]).

The breaches of the Wiring Rules were not considered by the Commissioner in reaching his decision in the first instance. They were presented by the Commissioner on the review before the Tribunal as further evidence of the respondent not being a fit and proper person to be licenced or registered.
The Moana property
As a consequence of the police locating the cannabis crop at the respondent’s property, they arranged for an audit to be conducted of the electrical work that had been undertaken at that property. Multiple breaches of the Electricity Act 1996 (SA) and the Wiring Rules were detected in the electrical installation that had occurred there. In particular, live exposed terminals and conductors were found on top of a grow tent. The live exposed terminals had the potential to cause electric shock if a person were to touch it. There was also a risk of fire if the system was subjected to a heavy load. In addition, it was observed that electricity had been extracted from the power system without proper authority from the electricity entity. The diversion was unsafe as there was non-compliant unmetered by-pass wiring and electrical contactor in the wall cavity below the metre panel causing a risk of fire.[30]
[30] Affidavit of Darren Winter affirmed on 1 December 2021 at [7].
Of significance, the enforcement officer, Mr Winter, who carried out this audit, made the observation that the breaches that he identified were not caused by the illegal diversion of electricity alone. In his experience, the diversion of electricity can be undertaken in a safe manner, compliant with the Wiring Rules. These breaches were objectively dangerous as they caused a serious risk of fire or electric shock.
The Mitchell Park property
The Mitchell Park property was a new build that the respondent had been working on. On 29 August 2017 an Electrical Technical Standards and Safety Officer attended at the building site to inspect the electrical work that had been undertaken. Multiple breaches of the Electricity Act 1996 (SA) and Wiring Rules were observed. In particular, exposed bare conductor ends were hanging loose from the distribution board. This created an immediate risk of electric shock as protection had not been provided against contact with live parts. There were various other faults with the electrical work that had been undertaken that indicated that the electrical installation was not adequately inspected and tested and was in breach of the Wiring Rules. The respondent was served with an expiation notice for these breaches.
Ground 2a – Findings re Moana property
The first limb of this ground of appeal relates to findings made by the Tribunal in relation to the breaches of the Wiring Rules that were observed when the cannabis crop was located.
No issue was taken with the fact that the Wiring Rules had been breached with the consequence that the exposed wires were a danger to the public. The issue that arises is the use that the Tribunal did or did not make of those breaches.
The Tribunal considered the breaches of the Wiring Rules at [70]-[77] of the reasons. The only passage that relates to the weight that the Tribunal placed on the Moana breach is at [71]:
The breaches of the wiring rules in relation to the Moana property were related to the offences for which the applicant was convicted and sentenced. To the extent that they are relevant to the applicant’s fitness to be licenced or registered, they have already been considered in relation to the offences.
(Emphasis added)
Counsel for the Commissioner contends that this passage establishes a failure by the Tribunal to clearly and carefully consider the Moana breaches separately from the criminal offending. The breaches of the Wiring Rules were not matters that were dealt with in the Magistrates Court. They were a separate and relevant consideration for the assessment of fitness and propriety.
Counsel for the respondent submitted that this ground is based on a misinterpretation of the impugned paragraph and if regard is had to the entirety of the reasons it is apparent that the Tribunal did in fact have separate regard to the Moana breaches.
I do not accept that submission. In my view, a reading of the whole of the judgment supports the Commissioner’s position. The wiring breaches are first raised at [15] and [16] of the judgment. At that point, the Tribunal sets out the nature of the evidence and concludes with:
I have considered this new evidence in reaching my decision. The weight I have attached to the evidence is discussed in the findings below.
The topic is next dealt with at [48]-[51] under the heading “Submissions on review before the Tribunal”. In these paragraphs, the Tribunal sets out in greater detail the nature of the wiring breaches as set out in the affidavit of Mr Winter.
The next reference appears under the heading “Offences relating to the cultivation of cannabis in 2017”. The paragraphs relating to the electrical wiring are [61]-[64]. Relevant to this ground of appeal are [61] and [62] which read:
However, in determining the significance of the use of electrical skills in the course of offending, it is important to note that the diversion of electricity was part of the broader dishonesty that led to the offence of cultivation in the first place. As the sentencing magistrate stated, ‘It is concerning that despite running a successful business as an electrician, you chose to exploit the unlawful market for cannabis with the expectation that you would derive a financial benefit. The diversion of electricity was part and parcel of that flawed thinking and you used your particular expertise in furtherance of the unlawful enterprise.’
In considering whether the offence of diverting electricity carries any particular significance in the assessment of fitness and propriety, it is important to recognise that the whole cultivation operation was illegal, and completely out of the context of the applicant’s business as an electrician. As counsel for the applicant submitted, diversion of electricity is an essential part of the crime of cultivating cannabis, and it is very common for the offences of cultivation and diversion of electricity to be prosecuted together, and not just when the accused person is an electrician.
It is apparent from these paragraphs that the Tribunal was there dealing with the diversion of electricity (which involved the Wiring Rules breaches) under the rubric of the criminal offences. This follows on from a submission made by counsel for the respondent at the Tribunal hearing. That submission was:[31]
Be that as it may, cultivation in attempt, use of artificial lighting, artificial hydration, oxygen filters – sorry, carbon filters is absolutely pedestrian examples of this type of offence. It is also very much of note that the, that they are almost a trinity – if I can use that word – of offences: cultivation; possession of prescribed equipment; interference with electricity metre, they occur almost uniformly across this type of offending if there’s any artificial cultivation.
[31] SACAT Transcript at 26.
He went on to further develop the submission:[32]
There are many, many people who carry out diversions of electricity metres with no electrical qualifications whatsoever and noting that Mr Winter says that this one was dangerous, it’s still in our submission, an electrician doing it is a hell of a lot safer than someone banging a nail through a mains wire, which is also seen in this type of offending. So, whilst in this case it was an electrician – and I’m cautious of giving evidence from the bar table – but in many, many cases of hydroponic cultivation, the inter-electricity metre goes hand in hand and is carried out by people who are not electricians. Now granted, it is not a good look that an electrician does this. However, there is no sort of equivalent to the Hippocratic oath that doctors take about not using their knowledge for evil – if I can use that colloquialism. But the important part of that though is, is that it wasn’t a necessary pre-requisite to having committed this offence.
[32] SACAT Transcript at 27.
This was an unusual submission that seemed to suggest that because a lay person cultivating cannabis may also divert electricity and do so in an unskilled manner, that somehow the faulty wiring became part of the “trinity” and consequently should be considered together with the criminal offending. It also ignored the uncontested affidavit of Mr Winter which makes it plain electricity diversion can be undertaken in a manner which is safe. It appears that this is the respondent’s submission that the Tribunal was relying on in [62] of the judgment.
The next reference to the Wiring Rules breaches comes up under the heading of “Breaches of the Wiring Rules”. This includes paragraph [71] that counsel for the Commissioner relies upon in support of this ground.
Having considered the Tribunal’s judgment in its entirety, it is my view that this limb of ground 2 had been made out. The Member at no stage separately considered this aspect of the respondent’s conduct, but rather swept it together with the criminal offending. The Moana breaches of the Wiring Rules should have been given close and careful consideration in a determination of whether the respondent is a fit and proper person.
Ground 2b – Findings re the Mitchell Park property
This is similar to ground 2a in that it relates to a suggested failure by the Tribunal to take into account breaches of the Wiring Rules, on this occasion in relation to the Mitchell Park property.
The passage of the judgment relevant to the second limb of this ground of appeal appears at [73]. It reads:
The breach of wiring at the Mitchell Park property was work carried out by the applicant in the course of employment. The applicant received an expiation notice for breaches of the Wiring Rules. This is undoubtedly relevant to his licencing as an electrician. However, its relevance is to whether he has sufficient qualification and experience, not to whether he is a fit and proper person to hold a licence. In evidence before the Tribunal, Mr Winter of the Office of the Technical Regulator stated that regular audits are conducted of the work of electricians. Expiation notices are a way of ensuring that electricians are complying with the rules. Only if an electrician received several expiation notices, or a breach of the Rules was particularly egregious, would this raise questions about a person’s registration. The evidence before the Tribunal was that the applicant has received one expiation notice in over 14 years of work as an electrician. The expiation notice has no bearing on the applicant’s fitness.
(Emphasis added)
The first observation to be made is that this paragraph appears to be internally inconsistent. Initially the Member suggests that the Mitchell Park breaches are a reflection on whether the respondent has sufficient qualifications or expertise. There was no suggestion from either party throughout these proceedings that the respondent did not have sufficient skill to undertake the role. The submission of the Commissioner was that the breaches of the Wiring Rules were indicative of an attitude towards safety issues that may impact on whether the respondent was a fit and proper person. Given the respondent had worked in the industry for 14 years, if these breaches were a reflection of his qualifications and expertise, this would be a significant concern about whether he should continue to hold his licenses.
The Member then goes on to minimise the significance of the Mitchell Park breaches, highlighting the evidence that had the conduct been more egregious then more serious sanctions would have been put in place.
Whilst the above factual observation is correct, it did not follow that the Mitchell Park breaches had no bearing on the respondent’s fitness. The Member was in error in arriving at that conclusion.
The errors identified in relation to the Member’s reasoning in relation to both the Moana property and the Mitchell Park property is compounded by the fact that he did not consider the combined effect of the evidence about the two properties. These were two significant breaches of the Wiring Rules committed relatively close in time. They demonstrated, at the very least, a carelessness on the part of the respondent to issues of safety. They were clearly relevant to the question of whether the respondent is a fit and proper person and should have been given separate and careful consideration. That did not occur.
I find that ground 2 has been made out.
Ground 3
3.The Tribunal erred in law by taking into account an irrelevant consideration when determining whether the respondent is fit and proper to hold a licence as an electrical contractor and electrical worker’s registration in wrongly finding that the breaches of the Wiring Rules present in the respondent’s own home were a mitigating factor with respect to the seriousness of the offending in relation to the impact on his licencing (Decision at [63]).
This ground also relates to the use that the Member made of the Moana breaches of the Wiring Rules. During the Tribunal hearing there were competing submissions about the relevance of the Moana breaches occurring within the respondent’s own home. Counsel for the Commissioner submitted that the fact that the breach of the Wiring Rules occurred in the respondent’s own home, made the conduct more serious. She rhetorically put to the Member “if you’re willing to permit that in your own home, what will you permit in other people’s home?”.[33]
[33] SACAT Transcript at 24.
The Member challenged the Commissioner’s counsel about that submission, making the obvious point that in the respondent’s home he is only putting himself at risk, whereas undertaking unsafe practices in someone else’s home puts other members of the public at risk.
Counsel for the respondent contended that the substandard work in the respondent’s home was far less serious than in someone else’s home. He submitted:[34]
Mr Winter identifies dangers with the grow room but that is in an electrician’s house who’s aware of those dangers. In my submission, that is a totally different scenario to engaging in that same dangerous work in somebody else’s premises, particularly if there are children present et cetera. I mean, in my submission, they are very different characters. We would allow in our own home things that we wouldn’t permit or allow ourselves to do in other people’s houses.
[34] SACAT Transcript at 27.
It was against those submissions that the Member came to make his findings. The relevant finding appears at [63] of the judgment:
The Respondent’s submission stated that it is ‘highly concerning that the applicant was willing to permit unsafe electrical work in his … own home’. [para 33] It seems to me, though, that the fact that the breach of the Wiring Rules was only in the applicant’s own home is a mitigating factor on the seriousness of this offending in relation to its impact on his licencing. It would seem far worse if he were prepared to breach the rules and place others at risk outside his home.
Counsel for the Commissioner made the submission that in these circumstances it was not open to the Member to find that it was a mitigating factor. She submitted:[35]
The finding paid no regard to the risk posed by the wiring to anybody who may enter the house, including the respondent’s family and friends who, being aware of the respondent is a licenced electrician, would consider the electrical wiring in the home would be safe.
[35] Written Submissions of the Commissioner for Consumer Affairs (FDN 12) at [47].
This submission overstates the approach that the Member adopted. It cannot be extrapolated from the judgment that the Member paid no regard to the risk. The Member was saying no more than that it was not as serious in the respondent’s home given a lesser number of individuals would be exposed.
It was the respondent’s submission that when the Member referred to mitigation, he did so in a relative rather than a general sense. Properly understood, the Member was indicating that contrary to the submissions of counsel for the Commissioner, he found a breach of the Wiring Rules in the respondent’s own home is less serious than that of a breach in someone else’s home, and as such the fact that it occurred in his own home was a mitigatory as opposed to aggravating feature.
I accept the submission made by the respondent. It is apparent that was what was meant by the Member when considered in the context of the competing submission. Whilst the use of the word “mitigation” was perhaps not the best choice, it is clear that it was an acceptance of the respondent’s submission. It was open to the Member to arrive at that position. Having said that, it is my view that nothing much turns on this point. On either scenario the electrical work left the public at risk regardless of the number of people exposed. That was the gravamen of the respondent’s conduct.
This ground of appeal is not made out.
Ground 4
The Tribunal erred in law in incorrectly applying principles of law relevant to the assessment of fitness and propriety in an occupational licensing disciplinary context:
a.discounting the weight to be given to the criminal offending because it would otherwise lead to an risk of “further punishment” (rather than considering the offending in the context of the protection of the public and maintenance of standards and public confidence in the industry) (Decision at [75] and [78]);
b.giving excessive weight to character evidence and good behaviour since the offending, where such evidence was only able to be demonstrated because of the respondent’s failure to notify the appellant about his criminal convictions enabled him to maintain his licence and registration (Decision at [78], [79], [90]).
Underpinning this ground of appeal is the submission that the approach taken by the Tribunal failed to reflect that the purpose of disciplinary proceedings is to protect the public. It is not about the punishment of the individual in question.
The appellant’s first complaint under this ground is that the Tribunal did not properly evaluate the significance of the criminal offending in determining the risk of harm to the public as a consequence of a concern about not punishing the respondent twice. It was submitted that this was an error that had the effect of giving inadequate weight to the need for the protection of the public.
Central to this argument is [75] of the Tribunal’s reasons. In the context of considering the criminal offences and the significance given to the respondent’s other personal circumstances, the Tribunal made the following observation:
This is crucial to the proper approach to determining the issue of fitness and propriety as any criminal offences will otherwise assume central importance, and there is a serious risk of the licencing and registration process becoming a further punishment.
In my view, given the purpose of the proceedings this was an incorrect reasoning process. Just as disciplinary proceedings are not designed to punish, considerations of whether an appropriate sanction amounts to a second penalty can have no role to play. In adopting this reasoning process, the Tribunal factored in the punishment of the respondent in making a determination of what was necessary in order to protect the public.
Disciplinary proceedings against members of a trade or profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession. Because any sanction is protective, the consequences of the sanction on the respondent are not relevant considerations. The High Court made this clear in Clyne v New South Wales Bar Association[36] in the context of the consideration of sanctions against a barrister:
Although it is sometimes referred to as “the penalty of disbarment”, it must be emphasized that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege.
[36] (1960) 104 CLR 186 at 201-202.

The protective purpose of disciplinary proceedings continues to be emphasised in the more recent authorities. In Health Care Complaints Commission v Do,[37] the New South Wales Court of Appeal observed:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
[37] [2014] NSWCA 307 at [35].
On occasions the protection of the public will require the making of an order with a greater adverse effect on the individual than may be warranted if punishment alone was the relevant consideration.
The second complaint made under this ground of appeal relates to the weight that the Tribunal placed on the evidence of the respondent’s good character since the time of the offending. In essence, the submission was that the respondent should not have received the benefit of an opportunity which was only created by virtue of his failure to notify the Commissioner about his criminal convictions.
The difficulty with this submission is that it requires consideration in the context of the finding made by the Tribunal that the failure to notify the Commissioner was not deliberate but inadvertent. Had the Tribunal made the finding that the failure to disclose the conviction was an intentional and dishonest act, there would be considerable force in a submission that the respondent cannot now rely on his ill‑gotten gains.
The situation is less straight forward in circumstances in which it is through no deliberate dishonesty that the respondent has had an opportunity to demonstrate rehabilitation and good character. It cannot be that in those circumstances no weight can be placed on the respondent’s conduct in that intervening period.
The Tribunal dealt with this aspect at [78]-[80] of the reasons:
… Since the commission of the 2017 offences, the applicant has served his sentence of home detention while continuing to work. He completed all his community service obligations and all other reporting obligations in relation to his sentence. He continued to have a good record as an electrician up until the cancellation of his licence by the commissioner on 31 August 2021.
Since his licence was cancelled, the applicant has continued to work as an unskilled labourer. The applicant gave evidence of the profound impact of the convictions on him personally and the efforts he has taken to reform himself. He submitted character references to the Commissioner, including from an employee, that spoke highly of the applicant’s character while acknowledging the offending.
The applicant has no record of offending since the drug offence in 2017 which is now over five years ago.
As a consequence of the findings made by the Tribunal about the circumstances surrounding the failure of the respondent to disclose his convictions, it was open to use the evidence in the manner it was relied upon by the Tribunal.
Given the error identified in relation to the first complaint made under this ground, I would allow the appeal on ground 4.
Conclusion
I make the following orders:
1.     I allow the appeal on grounds 2 and 4.
2.     I dismiss the appeal on grounds 1 and 3.
3.     I will hear submissions on the disposition of the matter.