Commissioner for Consumer Affairs v McCurdy - [2004] SADC 174

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of THE PLUMBERS, GAS FITTERS AND ELECTRICIANS ACT 1995
COMMR FOR CONSUMER AFFAIR v MCCURDY
Reasons for Decision of His Honour Judge Bishop
22 December 2004
ADMINISTRATIVE LAW - APPEALS FROM ADMINISTRATIVE AUTHORITIES
Application for cancellation of the defendant's licence as an electrical contractor on the ground that the defendant is not a fit and proper person to hold a licence - Plumbers, Gas Fitters and Electricians Act 1995 - defendant convicted and imprisoned for three sexual offences against a young boy - consideration of relevant factors - application dismissed.
Plumbers, Gas Fitters and Electricians Act 1995; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 78 ALJR 310; Hughes & Vales Pty Ltd v The State of NSW (No. 2) (1955) 93 CLR 127; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Maxwell v Dixon [1965] WAR 167; C v Johnson [1967] SASR 279; Commissioner for Consumer Affairs v Sollars [2001] 79 SASR 145; Sobey v Commercial & Private Agents Board [1979] 22 SASR 70; Petracaro v Commissioner of Consumer Affairs [1994] 62 SASR 387; Clavell v Office of Consumer Affairs [2000] SADC 107; Law Society of SA v Rodda [2002] 83 SASR 541, referred to.

COMMR FOR CONSUMER AFFAIR v MCCURDY
[2004] SADC 174
Judge Bishop
Administrative
The complaint

The Commissioner for Consumer Affairs (“the Commissioner”) lodged with the court a complaint, pursuant to section 21 of the Plumbers, Gas Fitters and Electricians Act 1995 (“the Act”), setting out matters that were alleged to constitute grounds for disciplinary action under Part 4 of the Act against Thomas Alexander McCurdy (“the defendant”). The allegations were that:
“1.Events have occurred such that the defendant would not be entitled to be licensed as an electrical contractor if he were to apply for a licence: Sections 20(1)(d) and 9(1)(f) of the Act.
Particulars
1.1 The defendant holds and at all relevant times has held an electrical contractor’s licence, PGE 129359, pursuant to the provisions of the Act.
1.2 During 2003, the defendant was convicted of indecent assault, inciting a child to commit an indecent assault and unlawful sexual intercourse with a person under 12 years and on 17 November 2003 was sentenced to a term of imprisonment.”
On 15 December 2004, the court conducted a hearing, pursuant to section 22 of the Act, for the purpose of determining whether the matters alleged in the complaint constituted grounds for disciplinary action. Section 20(1)(d) provides that there is proper cause for disciplinary action against an electrical contractor if “events have occurred such that the contractor would not be entitled to be licensed as a contractor if the contractor were to apply for a licence.” Section 9(1) provides, inter alia, that a natural person is entitled to be granted a licence if the person has the qualifications and experience required by regulation for the kind of work authorised by the licence, has sufficient business knowledge and experience and financial resources for the purpose of properly carrying on the business authorised by the licence and “(f) is a fit and proper person to be the holder of a licence.”
At the hearing, the primary issue was whether the admitted events of the defendant’s conviction for three sexual offences against a person under 12 years of age, his imprisonment for those offences and the conditions of his parole established that he is not a fit and proper person to be the holder of an electrical contractor’s licence. That issue is to be decided “at the time of the hearing” and requires examination of “the whole position” and “a consideration of the detailed subjective and objective circumstances of the offending behaviour” (A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 78 ALJR 310, at 315 and 316). Before embarking on that enquiry, it is convenient to refer to legal authorities upon the meaning of the expression “a fit and proper person”.
“A fit and proper person”
In Hughes and Vales Pty Ltd v The State of New South Wales (No. 2) (1955) 93 CLR 127, at 156, Dixon C.J., McTiernan and Webb JJ said:
“The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty, knowledge and ability”.
That the precise application of a “fit and proper person” test to a particular case will depend upon the nature of the activity being regulated was made clear in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 380, by Toohey and Gaudron JJ:
“ 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 further 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.” (My emphasis.)
The expression “fit and proper” is to be interpreted in the light of the subject-matter of the statute in which that expression appears. Hale J. observed in Maxwell v Dixon [1965] WAR 167, at 169, that,
“Clearly different qualifications are needed by e.g. lawyers, transport operators, hotel keepers and land agents, but as is shown by the cases cited in the judgment referred to [Hughes and Vale Pty Ltd v NSW (No. 2), supra], it is not necessary to confine oneself to the special provisions of the Act in question in deciding whether a man is fit provided one gives weight only to matters which can fairly be seen to be relevant to the vocation in issue.” (My emphasis.)
“It must be remembered that the disciplinary action of domestic tribunals of this nature is not intended as a punishment to the defendant, but as a protection to the public by ensuring that proper standards of professional or occupational conduct are maintained, and that persons who fall short of them are, in appropriate cases, prevented permanently or temporarily from continuing to deal with the public” (Bray C.J. in C v Johnson [1967] SASR 279, at 297). As Doyle C.J. remarked of the Security and Investigation Agents Act 1995 in Commissioner for Consumer Affairs v Sollars [2001] 79 SASR 145, at 147,
“ In my opinion the scheme of the Act is relevantly to protect the public by regulating who may engage in the activities for which a licence is required. The focus is on the protection of the public by requiring applicants to meet criteria directed to their qualifications, experience and fitness for the occupation.” (My emphasis.)
That different vocations may result in different consequences when the expression “a fit and proper person” is interpreted in different statutes is shown by considering local cases. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 (which concerned the Commercial and Private Agents Act 1972-1978) Walters J. said, at 74, that,
“a person, who holds a licence as a commercial agent, a commercial sub-agent or a process server, is in a minor, though practical, way held out as a person who is authorized to take some part in the administration of justice and who is capable of performing duties not dissimilar from those performed by bailiffs employed in the courts system. Moreover, persons holding licences under the Act are intended to be persons who, by reason of knowledge, skill, capacity, good fame and character, can safely be accredited to the public as persons who can be entrusted with the responsibilities and duties pertaining to the work comprehended by the particular type of licence held. Any member of the public engaging the services of, or having business dealing with, a person holding a licence as a commercial agent, a commercial sub-agent or a process server, is entitled to expect that person to be of good standing in the community and to possess sufficient skills, experience and proficiency to enable him to discharge the functions which he is licensed to perform. Hence, it seems to me that the object of the legislation is twofold: first, to control, regulate and supervise the conduct of those who engage in the sort of work falling within the ambit of the Act, and, secondly, to ensure that those to whom licences are granted are persons of probity who have the capacity to carry out the duties and responsibilities with which licences invest them.” (My emphasis.)
Of criminal offences, Walters J. continued, at 75,
“ I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance. I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and propriety which is a pre-requisite for a licence under the Act. But, in the present case, I think the appellant’s past conduct exposes an intrinsic defect of character which is incompatible with his being entrusted with a licence, either as a process server or a commercial sub-agent… When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time and weight might then be properly given to his subsequent good behaviour.” (My emphasis.)
Upon the issue of whether an applicant has shown himself to be “a fit and proper person” within the meaning of that expression in the Commercial and Private Agents Act, 1972-1978, Walters J. said, in Sobey’s case (supra, at 76),
“ The issue … is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 S.R. (NSW) 433, at 442).” (My emphasis.)
There the appellant (who had committed five offences of dishonesty as a juvenile during four years, and one offence of carnal knowledge of a young girl and possessing Indian hemp as an adult during two years) failed to discharge the onus of establishing that that he was fit and proper to hold the licence for which he had applied.
The interpretation by Olsson J. in Petracaro v Commissioner of Consumer Affairs [1994] 62 SASR 387 of the expression “a fit and proper person” in the Builders Licensing Act 1986 resulted in an outcome different from that in Sobey’s case. The appellant had convictions for numerous offences (including building break and felony and receiving) for which he had been imprisoned. Those offences were not connected with work done by him on worksites where he had previously been engaged as a licensed bricklayer, stonemason and building work supervisor. In allowing his appeal against that licence being withheld, Olsson J. said, at 390,
“ It cannot be stressed too strongly that the Act is not pre-occupied with general character aspects, except to the extent that these may directly be relevant to the clear purposes of the statute, which essentially focus on the fitness of a person to discharge the responsibilities applicable to a particular type of licence. The statute is primarily concerned with the protection of the public by ensuring that building work is not carried out by persons who are not suitably skilled or who are, or are likely to be, dishonest with those with whom they enter into contracts…
Moreover, the test to be applied to the required characteristics of a bricklayer are fundamentally different from those related to (say) a security guard under the Commercial and Private Agents Act 1986 – where general good character is a vital feature of inherent qualifications for much of the work involved, for quite obvious reasons.”
His Honour continued, at 392,
“ As was pointed out by Hale J. in Maxwell v Dixon [1965] WAR 167 at 169, weight must be given only to matters which can fairly be seen to be relevant to the vocation in issue. That inquiry must primarily be directed to the situation as it stands at the time of the application, given that past events may assist as being relevant indicative background. Although the expression “fit and proper” is capable of extending to the three characteristics of honesty, knowledge and ability, what is pertinent for consideration depends on the statutory context and the qualifications directly relevant to the particular vocation.”
In Clavell v Office of Consumer and Business Affairs [2000] SADC 107, the appellant had been refused a building work contractor’s licence and supervisor’s registration for the demolition of single storey residential buildings and out buildings because he was not a fit and proper person to hold such a licence in that, three and a half years before, he had been found guilty of indecent assault of a young woman. She was engaged in door to door selling and approached the appellant as he was doing some welding in the driveway of a house. He grabbed her, tried to kiss her, grabbed one of her breasts and tried to undo lace on the bodice of her dress. For that offence, he received a suspended sentence of imprisonment for six months.
In dismissing Clavell’s appeal against the refusal to grant him a licence, Judge Muecke considered that the same considerations apply to a licence under the Building Work Contractors Act 1995 as applied to the Commercial and Private Agents Act 1972, which Walters J. had considered in Sobey’s case (supra). Judge Muecke also said,
“The commission of that one criminal offence would not necessarily deprive him of his fitness and propriety to hold the licence he seeks…
The allegation made against him was a very serious one, particularly when made against a person seeking to be accredited to the public as a person to be entrusted with work within and around the homes of members of the community.
I consider that until the appellant has come to terms with the incident in 1996 one way or the other [on the appeal, he did not admit to having done anything to the woman], perhaps with the professional assistance suggested by the learned Special Magistrate some years ago, he cannot safely be accredited to the public as a person to be entrusted with the sort of work which the licence entails.” (My emphasis.)
In Law Society of South Australia v Rodda [2002] 83 SASR 541, the commission by a legal practitioner of two offences of indecent assault of a girl who was more than 12 years old (kissing her on the lips and putting his tongue into her mouth; and briefly touching her on a breast outside her clothing – for which offences he received a suspended sentence of imprisonment for six months) was held to demonstrate personal failings for which he was not a fit and proper person to remain a legal practitioner. The fact that the criminal conduct was committed in his office was regarded as “a mere accident”, which did not arise in the course of his professional practice. The Chief Justice said (at 545) that the case was one in which a mature man took advantage of the immaturity and vulnerability of a young female for his sexual gratification.
The offending behaviour
During one day in January 2002, the defendant committed three sexual offences against an eight year old boy, the parents of whom were close friends with the defendant and his wife through common membership of a church. That day, the boy was staying overnight with the defendant and his wife. The three offences occurred in the defendant’s computer room, where the boy was looking at pornographic pictures on the Internet. The first offence (indecent assault) occurred when the defendant gripped and moved his hand up and down on the boy’s penis. The second offence (inciting a child to commit an indecent act) occurred when the defendant allowed the boy to touch him on the penis and the defendant subsequently ejaculated in the boy’s presence. (To both those offences, the defendant pleaded guilty.) The third offence (unlawful sexual intercourse with a person under 12 years of age) occurred when the defendant sucked on the boy’s penis. (To that offence, the defendant pleaded not guilty but was found guilty by the majority verdict of a jury on 17 September 2003.)
For those three offences, on 17 November 2003 the defendant was sentenced to imprisonment for four years, with the non-parole period of one year. In sentencing the defendant, Judge Lee took into account the following circumstances:
·that the defendant had made admissions to the boy’s parents in March 2002 about the first two offences, but not the third offence;
·that the defendant was then 33 years old, had no previous convictions, was otherwise of good character, was genuinely remorseful and contrite and, earlier in 2003, had voluntarily attended the Sexual Offenders Treatment and Assessment Programme (SOTAP) and successfully completed that programme in September 2003;
·that the SOTAP report expressed the opinion that the risk of the defendant re-offending was low and that he should continue to attend monthly follow-up group sessions with SOTAP;
·that apart from working in his own business as an electrical contractor, much of the defendant’s life had centred around his church, of which he was a devout and committed member.
Judge Lee also took into account “certain negative factors”, namely,
·the boy’s age;
·the defendant’s exploitation of the trust reposed in him by the boy’s parents;
·the “grooming aspect of the offences”, constituted by suggestive conduct and allowing the boy access to pornographic computer material; and
·the dramatic effect that these offences had upon the lives of the boy’s parents, together with the speculative effect upon the boy.
Judge Lee imposed the sentence that he did, in acknowledgement of the seriousness of these offences and the need to deter would-be abusers of young children. To reflect “the positive factors” and reduce the impact that incarceration would have upon the defendant’s future attendances at SOTAP, his Honour made the non-parole period a relatively small proportion of the head sentence.
The defendant was released on parole on 16 November 2004. He will remain on parole until November 2007. Conditions of his parole include that he not leave the State without permission and that he not be in the company of any child under 16 years of age unless accompanied by his parole officer, his wife or a nominated person approved by his parole officer. The defendant is currently attending at SATOP, in obedience of his parole conditions.
Submissions

For the Commissioner, Ms Makiv pointed out that the defendant has now only been released from custody for about four weeks and very little time has since elapsed for him to have re-established the good character and reputation that he had before he committed these offences. In her submission, “a person operating under such stringent conditions cannot possibly command public confidence as a trades-person in business, nor can [the defendant] be safely accredited to the public until he completes further SOTAP programmes as recommended by his therapists” [and] “he doesn’t have the necessary requisites to hold himself out or to present himself as a fit and proper person as he is required to do. Too little time has elapsed since the convictions and [the defendant] needs to re-establish his fitness and propriety for a licence”. For those reasons, the Commissioner sought cancellation of the defendant’s restricted electrical contactor’s licence.
For the defendant, Mr Longson submitted that, upon consideration of all of the subjective and objective circumstances of the defendant’s offending-behaviour, although these were serious offences it has not been established that the defendant is not now a fit and proper person to be the holder of an electrical contractor’s licence. The offences were not committed during his work. He informed the Commissioner of his convictions and imprisonment when applying for the renewal of his contactor’s licence in May 2004. The offences were isolated, in the sense that they were all committed on the one day. No concern has been expressed about his qualifications, the standard of his work or his ability to run a business. (The defendant’s licence is ‘restricted’, in that he is not permitted to carry on business in partnership or to employ electrical workers. He is a what was referred to as ‘a sole operator’. He is also the holder of an ‘unrestricted’ electrical worker’s registration and able to perform any electrical work. In Mr Longson’s submission, because of these convictions it is not likely that the defendant will be able to obtain employment as a registered electrical worker.) He has now served the non-parole part of his sentence and, while he remains on parole (for practically the next three years), his parole conditions prohibit him from being alone in the company of children under 16 years of age. He is also still receiving treatment at SOTAP.
Decision
As indicated at the outset of these reasons for decision, the principal question is whether the defendant’s three sexual offences in January 2002 demonstrated that now, in December 2004 (almost three years later), the defendant is not a fit and proper person to be licensed as an electrical contractor. The objective and subjective circumstances of his criminal conduct in 2002 have been described. Although there were three separate offences, in my view they did represent a brief and uncharacteristic episode of serious misbehaviour. The powerful subjective evidence of the defendant’s previous good character and his subsequent successful efforts to obtain early professional advice and assistance were also impressive. Moreover, the condition of his parole – that he not be alone with young children – should allay any possible public apprehension about his future behaviour. Effectively, he will not be able to perform electrical work in premises where young children are present.
Upon consideration of the expression “a fit and proper person” in section 9(1)(f) of the Act and the legal authorities to which reference has been made, giving weight to matters which can fairly be seen to be relevant to the vocation in issue and bearing in mind that disciplinary action of this nature is not intended as a punishment to the defendant but as a protection to the public by ensuring that proper standards of occupational conduct and fitness for the occupation be maintained, in my view it has not here been established that the defendant is not now a fit and proper person to continue to hold his electrical contractor’s licence.
For these reasons, the application to cancel the defendant’s licence will be dismissed. I do not consider that there is any useful purpose to be gained by the imposition of a condition on his licence, in view of the parole condition to which the defendant is already subject.