Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch
[2017] FWC 666
•6 FEBRUARY 2017
| [2017] FWC 666 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.512 - Application for a right of entry permit
Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch
(RE2016/1725)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 6 FEBRUARY 2017 |
Application for a right of entry permit for Kevin Harkins; satisfied that fit and proper person; permit issued.
[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Kevin Harkins. Mr Harkins is employed as an organiser with the CFMEU.
[2] The Australian Building and Construction Commissioner (Commissioner) did not wish to make a submission in relation to this application. I have decided to determine the application on the papers without a hearing.
Relevant statutory provisions and application
[3] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as it is relevant for present purposes these provide as follows:
“512 FWC may issue entry permits
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.
513 Considering application
(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:
(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;
(b) whether the official has ever been convicted of an offence against an industrial law;
(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:
(i) entry onto premises; or
(ii) fraud or dishonesty; or
(iii) intentional use of violence against another person or intentional damage or destruction of property;
(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;
(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;
(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:
(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or
(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;
(g) any other matters that the FWC considers relevant.
(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.
Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
514 When the FWC must not issue permit
The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:
(a) applies to the official’s exercise of; or
(b) prevents the official from exercising or applying for; a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.
515 Conditions on entry permit
(1) The FWC may impose conditions on an entry permit when it is issued.
(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.
(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).
(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.
(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).”
[4] In Maritime Union of Australia v Fair Work Commission and Another 1 (MUA), a Full Court of the Federal Court of Australia considered the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3 – 4 of the Act. The Full Court observed the following:
“[13] Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3–4 of the Fair Work Act fundamentally modifies common law rights.
[14] A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union(1987) 18 FCR 51 at 61– 62 thus observed:
‘The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.’
See also: Lane v Arrowcrest Group Pty Ltd(1990) 27 FCR 427 at 439–440 per von Doussa J.
[15] Section 480, extracted at 8 above, sets out that the object of Part 3–4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3–4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not ‘untrammelled’ and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a ‘permit holder’ renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.
[16] It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are ‘fit and proper’.
[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901(Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:
‘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.’” 2
[5] The Full Court ultimately concluded that when the Commission is deciding whether to issue an entry permit pursuant to s.512 of the Act, those considerations relevant to the exercise of the power in s.513 of the Act are not confined, for example, to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the Commission, at least initially. However, the prospect remains for judicial review founded upon, for example, alleged unreasonableness. 3
[6] The Full Courtalso concluded that conditions may be imposed pursuant to s.515 of the Act to remedy or address deficiencies or reservations in respect of a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person was not fit and proper. 4
[7] Before MUA was decided, the relevant principles applicable to applications of this kind were usefully summarised by Vice President Hatcher in Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 5 as follows:
● “A ‘fit and proper’ standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.
● The expression ‘fit and proper person’ in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.
● The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a ‘fit and proper person’ per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.
● The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.
● The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.
● The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.
● While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).
● Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.” 6
[8] It would seem to me self-evident, having regard to the structure and content of s.513, that in deciding whether an official of a registered organisation is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.
[9] There is nothing in the Vice President’s summary which is inconsistent with the views expressed by the Full Court in MUA save, that the summary needs to be modified to take into account the permit qualification matters and the assessment of the fitness and propriety of a proposed permit holder, in light of the power to impose conditions when a permit is issued and the Full Court’s observations about weight attaching to the permit qualification matters. 7 With those modifications and the observation I have made in the preceding paragraph, I respectfully agree with and adopt the Vice President’s summary.
[10] I turn to consider the application.
Consideration
[11] Between 1995 and 2010 Mr Harkins was an official of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), during which time he was issued entry permits on three separate occasions. Between 2010 and 2014, he worked with Unions Tasmania. He then was employed by Incolink for a period of two years and is now employed as an organiser with the CFMEU.
Permit qualification matters – s.513(1)(a), (b), (c), (e) and (f)
[12] According to the declarations filed by the CFMEU in support of the application for the grant of a permit to Mr Harkins (the Declarations):
- Mr Harkins has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of federal right of entry conducted by the ACTU on 18 August 2016 (s.513(1)(a) of the Act);
- He has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);
- He has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;
- He has not had any entry permit issued under Part 3 – 4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act);
- He has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Harkins held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act); and
- He has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).
[13] I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct.
Permit qualification matters – s.513(1)(d)
[14] The Declarations also disclose that Mr Harkins has been ordered to pay a penalty of $8,800 for contravening s.38 of the Building Constructing Industry Improvements Act 2005 (BCII Act), in circumstances where on 14 December 2005 Mr Harkins engaged in unlawful industrial action constituted by a 24 hour strike of employees in the electrical industry in Tasmania. Mr Harkins’ conduct was taken to be conduct of the CEPU, and consequently, the CEPU was ordered to pay a penalty of $11,000.00 for contravening s.38 of the BCII Act. 8
[15] Judge Lucev in the above proceeding observed the following:
“Nature of the unlawful industrial action
[9] The unlawful industrial action was serious. It involved withdrawal of labour by 81 employees for a full day of work on 14 December 2005. The unlawful industrial action took place in a period in which the CEPU and Mr Harkins (on behalf of the CEPU) were negotiating with electrical contractors for new enterprise bargaining agreements to succeed or replace existing certified agreements.12 The CEPU and Mr Harkins had sought significant pay increases for the employees of the electrical contractors, those increases to be included in any new enterprise bargaining agreements, but those pay increases had not been accepted by the electrical contractors and there was a stalemate in negotiations for new enterprise bargaining agreements.13
[10] The unlawful industrial action was however of short duration: just one day.14 Further, although the CEPU and Mr Harkins were involved in activity leading to the contravention, particularly by their conduct at the meeting at the Glenorchy Football Club on 13 December 2005, there is no evidence that the CEPU or Mr Harkins initiated the proposal that unlawful industrial action be taken by withdrawing labour on 14 December 2005.15 Also, there is no evidence, and it is not alleged, that the CEPU or Mr Harkins coerced employees to engage in the unlawful industrial action.16
[11] The unlawful industrial action resulted in the electrical contractors each losing a day of work on 14 December 2005. That loss was not quantified. A number of the electrical contractors also acceded to the CEPU claims, and consequently, a standard form enterprise bargaining agreement providing significant pay increases for employees, was certified.17 The cost of that accession was not quantified. However, the effect of the industrial action was serious in terms of loss of work, and the electrical contractors’ reluctant accession to the CEPU claims.
Deliberateness and period of contraventions
[12] The contraventions were deliberate. That is evident from Mr Harkins telling employees at the meeting at the Glenorchy Football Club that only he would suffer the consequences of the taking of unlawful industrial action.18 The contraventions lasted only one day.
Conduct of senior management
[13] The most senior management of the CEPU’s Electrical Division Southern States Branch, namely the Branch Committee of Management and the Branch Secretary were not aware of or involved in the unlawful industrial action on 14 December 2005 and did not authorise that action.19 However, Mr Harkins was a member of the senior management team of the Branch, being its Assistant Secretary. He was involved in the unlawful industrial action, and whilst not its initiator, and whilst no coercion was involved, he did nothing to prevent the unlawful industrial action.20 Nevertheless, Mr Harkins conduct is taken to be conduct of the CEPU as he was at all relevant times an officer of the CEPU, and consequently both the CEPU and Mr Harkins were involved in the unlawful industrial action.21
[14] The consequence of Mr Harkins’ actions is that he bears a greater degree of culpability in relation to the breach of the civil penalty provisions of s 38 of the BCII Act than the CEPU, which is less culpable. The degree of culpability is reflected in the agreed penalties: that for the CEPU is only ten per cent of the maximum penalty, whilst that for Mr Harkins is forty per cent of the maximum penalty.22
…
Relevant record of civil penalty contraventions
[19] There is no evidence that the CEPU or Mr Harkins have previously contravened the provisions of the BCII Act, or that Mr Harkins has any prior civil penalty contraventions at all.
…
Contrition
[24] There is evidence of contrition by both the CEPU and Mr Harkins. That contrition is evidenced by:
a) their admissions of the contraventions; and
b) their co-operation with the Commissioner.
[25] The CEPU’s contrition is further evidenced by agreement to the provision of training by the Commissioner for Southern States Branch officials and delegates in relation to the rights and obligations of the CEPU, its officials and delegates arising under the BCII Act and the WR Act.38 That training will include Mr Harkins, and Counsel appearing for Mr Harkins gave an undertaking to the Court that Mr Harkins would attend training provided by the Commissioner.39
[26] The Court accepts that there is contrition on behalf of the CEPU and Mr Harkins entitling them to a discount on penalty.”
[16] In the current application, Mr Harkins filed a statement dated 7 December 2016. In that statement, he says 9:
“I understand the seriousness of my actions and appreciate the gravity of the Federal Magistrates Court proceedings and the penalties imposed upon me as an individual and upon the CEPU in relation to my actions. I’m sorry for my actions [sic] led to the contraventions in the past.
The ‘ACTU Certificate of Achievement Federal Right of Entry’ training I completed on 19 August 2016 was informative. I took notice of what I was taught and I intend to apply this knowledge to the best of my ability.
I intend to comply with all industrial laws including right of entry laws, if the Fir Work Commission were to be satisfied that I am a fit and proper person to hold an entry permit.”
[17] These statements are consistent with the observations of Judge Lucev and demonstrate an expression of contrition for the conduct in relation to which a pecuniary penalty was imposed. The statements also serve as an indication that Mr Harkins understands that he must comply with the law and has given an assurance that he will do so, and I accept the statements as truthful and genuinely given.
[18] As his Honour observed above, Mr Harkins had not prior to 14 December 2005 engaged in conduct in contravention of the Act. Nor is there any evidence of subsequent unlawful conduct engaged in by Mr Harkins.
[19] I have taken into account the contravening conduct that resulted in the imposition of a pecuniary penalty, the significant passage of time between the conduct outlined above and the current application being made and Mr Harkins’ attitude to compliance with the law as set out in his statement of 7 December 2016 in attributing appropriate weight to this particular permit qualification matter.
Permit qualification matters –s.513(1)(g)
[20] A previous application for a permit of Mr Harkins was made by the Tasmanian Branch of the CEPU on 5 November 2009 10 (Previous Permit). Both the Committee of Management and proposed permit holder declarations in that matter failed to disclose the abovementioned contravention and penalty. As a result, the matter was not taken into consideration when issuing the Previous Permit on 8 December 2009. The Previous Permit was also not returned within the statutory period provided by s.517 of the Act. Mr Harkins was invited to provide reasons for the non-disclosure and the late return of his Previous Permit. The CFMEU’s submissions indicate that Mr Harkins “expresses his apology to the Commission for his mistake”11 and says that “there should have been greater care taken in preparing the declarations”12. It says further that “Mr Harkins has learnt a lesson from his mistake”13. The CFMEU submits that “Mr Harkins appreciates that a serious mistake was made in preparing the application”14 and that there was no attempt to deliberately conceal or mislead the Commission about the matter.
[21] Mr Harkins filed two statements dated 11 January 2017. In his first statement, Mr Harkins provides some context about his failure to disclose the contravention identified above and says 15:
“…
2. In or around October 2009 an Industrial Officer of the Communications, Electrical, Engineering, Information, Postal and Allied Services Union (CEPU), who I do not presently recall, approached me to discuss preparing a right of entry application on my behalf. I do not recall discussing past contraventions with the Industrial Officer.
3. The Industrial Officer prepared the application and brought it back to me for signing. At the time I trusted that the application had been prepared adequately.
4. At the time I read and signed the application in 2009, I did not specifically remember the proceeding Carr v CEPU & Anor [2007] FMCA 1526.
5. I remembered this proceeding when I participated in preparing the current application for an entry permit (RE2016/1725). I apologise for not disclosing this contravention in my earlier application and confirm that it was not my intention to mislead or hide my past contraventions.
6. I have recently undertaken further training regarding my responsibilities as a permit holder.
7. I understand the error of my actions and I am remorseful for them. I also understand the seriousness of my conduct in Carr v CEPU & Anor and repeat my submission at paragraph [16] of my statement dated 7 December 2016.
8. It was never my intention to mislead the Commission when I declared that 1 had made all relevant disclosures on the previous application for an entry permit dated 5 November 2009.
9. I undertake to be more diligent when making declarations in the future ensuring that I will not make the same mistake again.”
[22] In his second statement, Mr Harkins provides some context about his failure to return the entry permit within the statutory period and says 16:
“…
2. I was employed by the Communications, Electrical, Engineering, Information,
Postal and Allied Services Union (CEPU) from 1995 to 2010. During this time I was issued an entry permit being permit number RE2009/10710.
3. On 10 January 2017 I was informed by Ms Reid (CFMEU Legal Officer) that the
Fair Work Commission (FWC) had requested further information regarding my current entry permit application (RE2016/1725).
4. Ms Reid informed me that my previous permit (RE2009/10710) was returned to the FWC on 10 April 2014, after the permit should have been returned.
5. I left the employ of the CEPU in 2010. At that stage my permit had not expired.
6. Upon leaving the CEPU I was of the impression, which was the practice at the time that the office manager would return my entry permit to the FWC.
7. I trusted that this would occur.
8. It was not until 10 January 2017 that I became aware that my permit had not been returned to the FWC on time.
9. I did not attempt to use my permit to enter premises after I left the employ of the CEPU.
10. I understand that it is my responsibility to return my permit on expiry or if I cease to be an official of the union.
11. I apologise for not ensuring that my previous permit was returned in accordance with s 517 of the Fair Work Act 2009.”
[23] The nature of the non-disclosure and the failure to return the Previous Permit within the statutory period is conduct of a serious kind and ought to have been included in the application for the Previous Permit. However, I consider the explanations provided by Mr Harkins as genuine and I accept that the non-disclosure was one of inadvertence rather than deliberate. Furthermore, no matter of which I am aware raises any question as to his conduct as a permit holder following the issue of the Previous Permit.
[24] There are no other relevant matters of which I am aware or which have been disclosed by the CFMEU or Mr Harkins.
Conclusion
[25] As indicated above the nature of the contravening conduct engaged in by Mr Harkins is conduct of a serious kind and ought not lightly be disregarded.
[26] Such conduct appropriately raises questions about Mr Harkins’ fitness and propriety to hold an entry permit. The contravening conduct was deliberate, caused inconvenience and disruption, and it appears was a deliberate industrial strategy deployed instead of utilising and thus, showing a disregard for alternative and lawful means by which employee grievances should be resolved. Mr Harkins’ conduct also displayed a disregard for important industrial laws which regulate or proscribe particular conduct and for the rights of others. Weighed against this, is the fact that the conduct engaged in on 14 December 2005 appears to have been the first and the only occasion on which Mr Harkins has engaged in contravening conduct resulting in the imposition of a pecuniary penalty; that 12 years have elapsed since the contravention and over 9 years since the imposition of the penalty; that there are no other identified permit qualification matters which would tell against Mr Harkins’ fitness and propriety to hold a permit and the fact that Mr Harkins has recently received appropriate training about the rights and obligations of a permit holder and he seems to well understand those rights and obligations. In addition, Mr Harkins has given a statement in which he shows contrition and acknowledges his obligation to comply with the law and gives an assurance that he will do so. Mr Harkins’ earlier failure to disclose and the failure to return the Previous Permit within the time prescribed, whilst serious are nonetheless explicable because of inadvertence, rather than dishonesty or a deliberate disregard for obligations.
[27] Ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Harkins for his past wrongdoing. The assessment is whether having regard to the permit qualification matters, some of which discloses past wrong doing, Mr Harkins is now a fit and proper person to hold an entry permit. Taking into account the totality of the material and for the reasons already given, I am satisfied that Mr Harkins is a fit and proper person to hold an entry permit. Given this conclusion it is unnecessary to consider the question of conditions that might be imposed under s.515 of the Act.
[28] The application is therefore granted. An entry permit will be issued to Mr Harkins separately.
DEPUTY PRESIDENT
1 [2015] FCAFC 56.
2 Ibid at [13]–[17].
3 Ibid at [42].
4 Ibid at [43].
5 [2015] FWC 1522.
6 Ibid at [32].
7 [2015] FCAFC 56 at [25] and [43].
8 Carr v CEPU & Anor [2007] FMCA 1526.
9 Statement dated 7 December 2016 at [16] – [18].
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