Complainant 201908 v Commissioner for Fair Trading (Discrimination)

Case [2020] ACAT 24

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT 201908 v COMMISSIONER FOR FAIR TRADING (Discrimination) [2020] ACAT 24

DT 8/2019

Catchwords:               DISCRIMINATION – irrelevant criminal record – applicant applied for licence under the Traders Licencing Act – whether the applicant’s criminal record is directly relevant to the circumstances – whether the applicant’s criminal convictions are relevant to the consideration of whether it is in the public interest to grant him a motor traders licence – whether a conviction which is relevant under the Traders Licensing Act can be irrelevant under the Discrimination Act – what is ‘in the public interest’ – does the issue of protecting consumers extend to ensuring that they deal with persons of good character more generally

Legislation cited:        Australian Human Rights Commission Act 1986

Crimes Act 1900 ss 26, 116
Discrimination Act 1991 s 8

Sale of Motor Vehicles Act 1997

Security Industry Act 2003

Spent Convictions Act 2000

Traders (Licensing) Act 2016

Working with Vulnerable People (Background Checking) Act 2011

Subordinate
Legislation cited:        Traders (Licensing) Regulation 2017

Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2018 (No 1)

Cases cited:Australian Retailers Association v Reserve Bank of Australia (2005) 148 FLR 446

Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64
Kovac v Australian Croatian Club Limited [2014] ACAT 41
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Pereira v Commissioner of Police NT Anti-Discrimination Commission (15 August 2012)
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379

List of

Texts/Papers cited: Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law, 3rd ed (Federation Press, 2018)

Tribunal:  Senior Member H. Robinson

Date of Orders:  6 April 2020

Date of Reasons for Decision:         6 April 2020

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 8/2019

BETWEEN:

COMPLAINANT 201908

Applicant

AND:

COMMISSIONER FOR FAIR TRADING

Respondent

TRIBUNAL:     Senior Member H Robinson

DATE:6 April 2020

ORDER

The Tribunal orders that:

  1. The matter is listed on 22 April 2020 at 10:00am for a directions hearing and the hearing of the applicant’s application for interim or other orders dated 3 April 2020.

  2. This hearing will be conducted by telephone.

    ………………………………..

    Senior Member H Robinson

REASONS FOR DECISION

  1. The issue before the Tribunal is whether the actions of the respondent in refusing to grant to the applicant a motor vehicle sales licence (motor sales licence) under the Traders (Licensing) Act 2016 (Traders Licensing Act) constituted “unlawful discrimination” contrary to section 8 of the Discrimination Act 1991 (Discrimination Act). A secondary question is whether the grant or refusal of a licence constitutes an authorisation or qualification for the purpose of entry by the applicant into a profession, trade or occupation for the purposes of section 16 of the Discrimination Act.

What is this matter about?

  1. The applicant claims that the Commissioner engaged in unlawful discrimination by treating him unfavourably because…

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AGLC
Complainant 201908 v Commissioner for Fair Trading (Discrimination) [2020] ACAT 24
Case
[2020] ACAT 24
Decision Date

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involves a complaint by an applicant, referred to as Complainant 201908, against the Commissioner for Fair Trading. The applicant alleges that the Commissioner discriminated against him on the basis of his criminal history when deciding not to issue him a licence. The AAT is tasked with reviewing the decision of the Commissioner, as well as determining whether the decision constituted discrimination under the Discrimination Act 1991. The central legal issue before the AAT is whether the Commissioner's decision to deny the applicant a licence constituted discrimination against the applicant based on his criminal history, in violation of the Discrimination Act. The applicant argues that the decision was directly discriminatory because it was influenced by his criminal record and the fact that he was subject to a good behaviour bond as a consequence of those convictions.

The AAT found that the Commissioner's decision was not based on discrimination, but rather on the applicant's criminal history and the public interest considerations outlined in the Trader Licensing Act. The Tribunal noted that the Commissioner had considered the relevant factors, including the seriousness of the applicant's convictions and the fact that he was still subject to a good behaviour bond. The Tribunal concluded that the decision was not influenced by the applicant's criminal history in an impermissible manner, but rather was based on the legitimate grounds provided for in the Act. Therefore, the Tribunal found that the Commissioner's decision did not constitute discrimination under the Discrimination Act.

As a result of its findings, the AAT dismissed the applicant's complaint. The Tribunal ordered that the matter be listed for a directions hearing and the hearing of the applicant’s application for interim or other orders on 22 April 2020, to be conducted by telephone. This outcome underscores the importance of ensuring that decisions are made on legitimate grounds and in accordance with the relevant legislation, while also highlighting the need to protect individuals from discrimination based on protected attributes.

Orders

Orders of the court

The Tribunal orders that:

1.

The matter is listed on 22 April 2020 at 10:00am for a directions hearing and the hearing of the applicant’s application for interim or other orders dated 3 April 2020.

2.

This hearing will be conducted by telephone.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Meanwhile, a letter was prepared notifying the applicant of the RAC’s decision (decision letter). The decision letter was dated 18 December 2018 and signed by a delegate of the Commissioner (the delegate). The letter states that:Section l 8(a) of the Act states that the Commissioner must consider suitability information about an applicant in deciding whether or not the applicant is suitable to hold a licence. This includes whether it is in the public interest to issue the licence… [I]t was decided given the recent nature of your offences and that you are still under a good behaviour bond, not to issue you the licence…·You are entitled to apply for a reasons statement ... in relation to the decision…Section 49 of the Act entitles your application to be reviewed. This is a reviewable decision and you are entitled to have [it] reviewed by the ACT Civil and Administrative Tribunal. ACAT may review the decision and consider other factors that I may not have been aware of when making the above decision… The statement of reasons was later provided to the applicant. The delegate appears to have been absent at the time it was finalised, and it is unclear whether he ultimately endorsed it. However, the statement appears to have reflected the position taken to the RAC by officers within the delegate’s area, and he stated his agreement with it while giving evidence at the hearing. Accordingly, I am satisfied that the statement of reasons represents the reasons for the decision. Those reasons for the decision, as per the statement of reasons, can be summarised as follows:(a)The decision making had regard to the matters required to be considered under the Trader Licensing Act, including whether it was in the public interest to issue the licence (the relevant provisions are set out below).(b)That the applicant had two convictions, and those convictions and their underlying facts were considered serious, especially as the property damage conviction “could have resulted in injury and death”.(c)The applicant was at the relevant time subject to a good behaviour order that had not expired.(d)The applicant had not provided any written statements or evidence to indicate that he had taken any steps to “mitigate the risk of offending again”.(e)Based on the original application, criminal history checks and the statements of facts for each offence, a decision was made that it was not in the public interest to issue the licence. The applicant contends, and I accept that, that whatever the other reasons for the decision, a reason for the decision to deny the applicant a licence was the fact of his convictions, how recent they were, and that he was subject to a good behaviour bond as a consequence of them. The Discrimination Act 1991 (Discrimination Act) protects people from being discriminated against because of a “protected attribute”. The various ‘protected attributes’ are set out in section 7 of the Discrimination Act. Discrimination can take two forms: direct and indirect. The applicant claims direct discrimination. Under section 8(2) of the Discrimination Act, direct discrimination occurs if a:person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

Ratio Decidendi

Legal Principle Established

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