Corkin v Director General, Department of Fair Trading

[2001] NSWADT 190

CITATION:	Corkin v Director General, Department of Fair Trading [2001] NSWADT 190
DIVISION:	General Division
PARTIES:	APPLICANT Samuel Joseph Corkin RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	013204
HEARING DATES:	18/10/2001
SUBMISSIONS CLOSED:	10/18/2001
DATE OF DECISION:	11/15/2001
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Home Builder - issue of supervisor or registration certificate - Home Building Act - home builder - issue of supervisor or registration certificate
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Builders Licensing Act 1986 (SA) Child Protection (Prohibited Employment) Act 1998 Home Building Act 1989 Home Building Regulation 1997
CASES CITED:	Hughes & Vale Proprietary Limited v The State of NSW & Ors (1955) 93 CLR 127 Jasmine v Commissioner of Police NSW Police Service [2001] NSWADT 62 Cavaliere v Director General, Department of Fair Trading [2000] NSWADT 102 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Maurice Neville Hinchcliffe v Building Services Corporation (Commercial Tribunal of NSW, 24/7/1997) Re Brennand Casino Surveillance Authority (1995) 38 ALD 794 Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387
REPRESENTATION:	APPLICANT In person RESPONDENT A Wilson, solicitor
ORDERS:	1 The decision of the Director General to refuse Mr Corkin’s application for a qualified supervisor certificate is set aside and in substitution for that decision the Tribunal decides that a qualified supervisor certificate be issued to Mr Corkin under s 25(1)(a) of the Home Building Act 1989

BACKGROUND
1 Mr Corkin applied to the Administrative Decisions Tribunal (the Tribunal) on 20 August 2001 for review of the decision of the delegate of the Director General of the Department of Fair Trading (Director-General) to refuse his application for a qualified supervisor certificate.

2 The Tribunal’s jurisdiction derives from s. 83B(1) of the Home Building Act1989 (HB Act).

3 The basis of the Director-General’s decision to refuse Mr Corkin’s application for a qualified supervisor certificate was his conviction and sentence on charges of an act of indecency on a child under 16 years of age and charges of carnal knowledge with a child over 10 and under 16 years of age. Mr Corkin pleaded guilty to the charges and was sentenced on 22 May 1997. He was initially sentenced to a maximum term of imprisonment for 18 months in respect of the act of indecency charges and a minimum term of 2 years and 6 months on the carnal knowledge charges. Additional terms of 2 years and 6 months imprisonment were also imposed in respect of the carnal knowledge charges. The Crown appealed the sentences in respect of the carnal knowledge convictions. The Court of Appeal quashed the sentences and in lieu sentenced Mr Corkin to a minimum term of imprisonment of 4 years to expire on 4 May 2001 plus an additional term of 4 years to expire on 4 May 2005.

4 Mr Corkin is 64 years of age and a qualified electrician. On release from prison earlier this year he made an application to the Director General for a qualified supervisor’s certificate as an electrician under the HB Act. He was previously the holder of such a certificate from 29 August 1991 to 20 August 2000.

RELEVANT LAW
5 The HB Act regulates residential building work, specialist work and the supply of kit homes. Included in the definition of the term "specialist work" is electrical work (see s. 3(1)).

6 Division 2 of Part 2 of the HB Act sets out restrictions on who is authorised to do residential building work and specialist work. S. 14 prohibits an individual from doing any electrical work unless that person has an appropriate licence or is the holder of a registration certificate under the Act. That is, in respect of electrical work the HB Act is of general application and not restricted to electrical work for a "dwelling" as defined in the Act. That section provides as follows:

14(1) An individual must not do any electrical work (whether or not it is also residential building work), except:
(a) as a qualified supervisor (being the holder of an endorsed licence, or a supervisor certificate, authorising its holder to do that work); or
(b)as holder of a registration certificate authorising its holder to do that work under supervision, but only if the work is done under the supervision and in accordance with the directions, if any of such a qualified person
Maximum penalty: 100 penalty units.
7 S.14(2) provides for an exception to the above mentioned provision where the individual is doing electrical work under the constant supervision of a qualified licensed supervisor.

8 Division 2 of Part 2 of the HB Act relates to supervision and registration certificates. S. 24 provides that an individual may make an application to the Director-General for a certificate that the person is "qualified to do, and to supervise residential building work or specialist work of a specified kind".

9 Section 25 provides that after considering an application, the Director General must either issue a qualified supervisor certificate or reject the application by serving on the applicant a notice setting out the reasons for rejecting the application. S.25(2) provides that the regulations may specify or provide what qualifications and other requirements that must be met before the Director General issues such a certificate.

10 In respect of such requirements the relevant provision in this case is clause 20 of the Home Building Regulations 1997 ("HB Regulations"). That clause provides as follows:

"Before a certificate is issued, the Director General must be satisfied that the applicant:
(a) is of or above the age of 18; and
(b) is not an apprentice or trainee within the meaning of the Industrial and Commercial Training Act 1989; and
(c) is a fit and proper person; and
(d) has such qualifications or has passed such examinations or practical tests, or both as the Director General determines to be necessary to fit the applicant to do, or to supervise, the work for which the certificate is required; and
(e) has had experience of such a kind and for such a period, as the Director General considers would fit the applicant to do, or to supervise, the work for which the certificate is required; and
(f) is capable of doing or supervising work for which the certificate is required; and
(g) is not disqualified from holding a certificate or a certificate of a particular kind; and
(h) is not the holder of a certificate that is suspended."
11 S. 27 of the HB Act sets out the authority which is conferred by a supervisor certificate. This section provides:
"(1) A supervisor certificate authorises its holder to do (and to supervise) such residential building work, or specialist work, as is described in the certificate when it is issued.
(2) A registration certificate authorises its holder to do such specialist work as is described in the certificate when it is issued (but only under the general supervision, and subject to the control, of the holder of an endorsed licence or a supervisor’s certificate authorising supervision of the work).
(3) The authority conferred by a supervisor or registration certificate:
(a) is subject to the conditions applicable to the certificate for the time being; and
(b) may, on the application of the holder of the certificate, be varied by an order of the Director General set out in a Notice served on the holder of the certificate."
EVIDENCE
12 Mr Wilson for the Director-General relied on the material filed by the Director in these proceedings, which included an affidavit of Donald John Van Keimpema sworn on 14 September 2001. Mr Van Keimpema is an Assistant Technical Investigator employed by the Department of Fair Trading and he is the holder of a builder’s licence, which he has held for approximately 20 years. In his affidavit Mr Van Keimpema sets out various functions which would be performed by a "nominated qualified supervisor". This includes carrying out residential building work, supervise employees of the builder and subcontractors to the builder and "interface with the owner, the builder and subtrades regarding the building work". It was agreed that a qualified supervisor’s certificate would entitle Mr Corkin to do electrical work as a subcontractor and not as the principal contractor or builder.

13 Mr Corkin did not give evidence, nor was he required for cross-examination. Mr Corkin did however, tender into evidence a letter dated 10 October 2001 from M. McElhone and N. Sutton of The Department of Corrective Services. In their letter they state that Mr Corkin completed the Sex Offender Redirection Training Program and that he had commenced with the Community Maintenance Program since his release from custody and his attendance and involvement had been satisfactory.

14 In addition to this material, Mr Corkin relied on the material he furnished to the Director-General in relation to his application. This included references from previous employers and details of his qualifications. The references all pre-date his convictions.

ISSUES
15 Mr Wilson stated that, with the exception of the matters referred to in paragraph (c), the Director-General was satisfied in respect of all the criteria set out in clause 20 of the HB Regulations. That is, he was satisfied that Mr Corkin had the necessary qualifications and experience to be issued with the qualified supervisor certificate he had applied for but, he was not satisfied that Mr Corkin was a "fit and proper person".

FINDINGS OF FACT
16 The facts in this application were not in dispute and can be summarised as follows:

• The offences for which Mr Corkin was convicted and sentenced occurred between 1974 and 1981 and in 1989. The carnal knowledge charges related to his daughter and the act of indecency charges related to a friend of his daughter while he was a swimming coach;
• Mr Corkin initially sought to defend the charges and subsequently pleaded guilty to them;
• Mr Corkin has served the minimum terms of his sentence in respect of the convictions and is now on parole. That parole period is not due to expire until 4 May 2005;
• On 15 May 2001 Mr Corkin lodged an application for a qualified supervisor certificate with the Department. In his application he disclosed the fact of his criminal convictions and that he had just been released from gaol after serving 4 years.
• Mr Corkin has worked as an electrician since 1974 and was the holder of a qualified supervisor certificate under the HB Act from 1991 to 2000. There is no evidence of his certificate having being suspended or cancelled. Nor is there any evidence of any complaint having been made against him while he was the holder of a certificate under the HB Act or at any time prior thereto. That is, he has an unblemished history of many years of electrical work.
• Since his release from prison Mr Corkin has applied for electrician type work. He has been successful in obtaining some casual forms of work, however, most employers are only willing to employ electricians who have the requisite qualified supervisor’s certificate.
• Mr Corkin’s previous electrical work experience has primarily been in air conditioning with commercial businesses and not in the home building area. He stated that this was the type of work he intended to pursue if granted a Certificate.
SUBMISSIONS
17 Mr Wilson submitted that the HB Act was for the protection of the public and in light of the serious nature of the convictions against Mr Corkin, his recent release from prison and the fact that he remained on parole until 2005 were factors that established that Mr Corkin was not able to satisfy the Director-General that he was a fit and proper person as required under cl. 20 of the HB Regulations. Mr Wilson stated that the Director-General was concerned that the issue of the qualified supervisor certificate would enable Mr Corkin to accept any form of employment or sub-contract for electrical work.

18 As part of his submissions Mr Wilson relied on a 25 June 2001 conversation between an officer on behalf of the Director-General and Mr Corkin’s parole officer, Gavin Rowan. The officer’s record of this conversation includes the following: "Mr Rowan felt that the Applicant was in the relatively low risk group to re-offend as his crimes were not ‘spur of the moment.’ He felt though that the Applicant still needed to be monitored and should only be issued with a qualified supervisor’s certificate and not a contractor licence which may bring him into contact with minors" The Tribunal did not have the benefit of hearing evidence from Mr Rowan.

19 In support of his submissions Mr Wilson relied on various decisions, including the decision in Hughes &Vale Proprietary Limitedv The State of NSW & Ors (1955) 93 CLR at 127; Jasmine v Commissioner of Police NSW Police Service [2001] NSWADT 62; Cavaliere v Director-General, Department of Fair Trading [2000] NSW ADT 102. He also relied on the decisions referred to in the following paragraphs and the provisions of the Child Protection (Prohibited Employment) Act 1998. The latter mentioned Act prohibits persons convicted or found guilty of a serious sex offence from being employed or contracted in “child-related employment" (defined in s. 3 of that Act). Mr Corkin’s convictions bring him within the terms of Child Protection (Prohibited Employment) Act 1998.

20 Mr Corkin submitted that his convictions related to offences committed many years ago and which had no relevance to his work as an electrician. He was well qualified to do such work and had many years of experience.

21 Mr Corkin stated that he wanted to re-establish himself after being released from gaol. Part of that re-establishment was the ability to again work as an electrician as he had previously. He was aware of the provisions of The Child Protection (Prohibited Employment) Act 1998 and stated that he was required to report to his parole officer prior to accepting any offer of employment. This requirement was an ongoing requirement.

REASONS AND DECISION
22 The fact of a conviction in itself will not ordinarily be enough for the Tribunal to be satisfied that a person is not a fit and proper person to be issued with a licence to undertake a particular work activity. In the High Court case Ziems v The Prothonotary of The Supreme Court of New SouthWales (1957) 97 CLR 279 Taylor J made the following comment, at 302:

"I find it impossible to assent to the proposition that proof of the fact of the Appellant’s conviction and sentence, without more, made it inevitable that an Order should be made directing that his name be removed from the Roll of Barristers. The vital question in my opinion, in such cases, is not whether a Practitioner has been convicted of an offence against Criminal Law, but whether his conduct has been such as to show that he is unfit to remain a member of his profession".
23 The Tribunal has frequently quoted the decision in Australian BroadcastingTribunal vBond (1990) 170 CLR 321 as a guide to the meaning of "a fit and proper person" . In that case Toohey and Gaudron JJ, at paragraph 63, stated that where a person must satisfy a legislative requirement of being a "fit and proper" in relation to a licence of some kind, the requirement takes its meaning from the activities which the person is or will be authorised to engage in by virtue of the licence and the ends to be served by those activities "depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to 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 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 a fit and proper person to undertake the activities in question"

24 In Maurice Neville Hinchcliffe v Building Services Corporation (Commercial Tribunal of NSW, 24/07/1997), the Tribunal held that the intent of the HB Act was consumer protection and that the accreditation of a person as a building contractor or a qualified supervisor meant that such a person "can be held out to the public as being possessed of acceptable building expertise" and is a person of "integrity and honesty". In that case the refusal to grant the applicant a qualified supervisor’s certificate related to the manner in which the applicant had previously conducted his business as a licensed builder. That is, the applicant’s improper conduct directly related to the activity for which he was seeking a licence.

25 In Re Brennand Casino Surveillance Authority (1995) 38 ALD 794 the Administrative Appeals Tribunal affirmed the decision of the administrator to cancel the applicant’s casino employee’s licence on the grounds that he was not a fit and proper person. In that case the basis of the decision was the applicant’s failure to reveal in his licence application that summonses had been issued against him in respect of certain debts and his subsequent failure to respond truthfully and frankly to questions by the relevant licensing authority about the debts. Again the improper conduct of the applicant in this case had a direct bearing on the activity for which the licence was being sought.

26 The case of PetracarovCommissioner of Consumer Affairs (1994) 62 SASR 387 involved an application for a bricklayer, stonemason and building work supervisor licence under the Builders Licensing Act 1986 (SA). The application was refused by the Administrator on the grounds that the applicant was not a “fit and proper person”. The basis of the refusal by the administrator was the applicant’s convictions for offences involving dishonesty. These convictions arose from drug dependency, which the applicant subsequently overcame. The decision of the administrator was affirmed by the Commercial Tribunal (SA) and the applicant appealed to the Supreme Court.

27 In that case the relevant provisions were similar in terms to s.20 of the HB Regulations and in respect of that provision Olsen J made the following statement at page 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 statue 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. It goes without saying that, in the case of a subcontract bricklayer who usually gives a firm price to a builder for quite specific work, is to be assessed mainly on his reliability and skill to do the job, whereas in the case of a category 1 building contractor the public concern must relate not only to technical ability but also general trustworthiness and honesty in negotiating and discharging contractual obligations.”
28 Olsen J went on to state at page 392:
"In the instant case the Tribunal has sought to exclude the appellant from working at either a quite basic (or, alternatively, an employed supervisory) level at a trade occupation in which he is plainly skilled and as to which he has a number of years experience, with no complaints as to his activities in the work situation. True it is that his more general conduct has been regrettable but, not only has this had no bearing on his work as a bricklayer in the building industry, but also there is clear, uncontroverted evidence of a major change in his personal situation and character since 1991. Such evidence as was before the Tribunal strongly suggested that the fears expressed by it were not well founded."
29 The unquestioned principle from the abovementioned decisions in determining whether a person is a "fit and proper person" to be issued a licence for a particular activity, is that past improper conduct of the applicant must be considered in light of the activity which is to be licensed and not considered at large.

30 The Tribunal understands the concerns of the Director-General in respect to the serious nature of Mr Corkin’s convictions. However, proper regard must be had to the circumstances of these convictions in determining whether Mr Corkin is a "fit and proper" person to be issued a qualified supervisor certificate under the HB Act. In my opinion, having regard to the relevant provision of the HB Act and the abovementioned decision, the question to be asked is whether the circumstances of Mr Corkin’s convictions are such that he is not fit to discharge the responsibilities relating to electrical work as would be authorised under s. 27 of the HB Act on the issue of a qualified supervisor certificate.

31 In my opinion, in the circumstances of this case the fact that Mr Corkin is prohibited from undertaking certain employment pursuant to the Child Protection (Prohibited Employment) Act 1998 must be viewed in its proper context when having regard to the question of whether Mr Corkin is a fit and proper person under cl. 20 of the HB Regulations.

32 The Tribunal notes that the Child Protection (Prohibited Employment) Act 1998 is not administered by the Director-General and there is no provision in the HB Act or Regulations requiring the Director-General to have regard to it. Accordingly, the mere fact that Mr Corkin comes within the terms of Child Protection (Prohibited Employment) Act 1998 is not a sufficient basis to hold that he is not a "fit and proper person" under cl 20 of the HB Regulations. The question remains whether the circumstances of Mr Corkin’s criminal conduct are such that he is not a "fit and proper person" to be issued with the requisite certificate, which authorises him to do electrical work.

33 The Tribunal notes that in respect of the type of employment Mr Corkin is able to accept, this requires the approval of his parole office. Mr Corkin is also aware of the restrictions placed on him under Child Protection (Prohibited Employment) Act 1998 and he has never worked in an area of employment coming within that Act and has no intention to do so.

34 The Tribunal was not presented with any evidence, other than that which has already been mentioned, relating to the circumstances of Mr Corkin’s convictions. The Director-General also appears to have accepted the comments received from Mr Corkin’s parole officer that the offences involved a member of Mr Corkin’s family and a friend of the family and were not "spur of the moment" offences.

35 While Mr Wilson, for the Director-General, submitted that if a qualified supervisor certificate were to be issued to Mr Corkin, he would be authorised to supervise apprentices who were under the age of 18, he did not present any evidence to the Tribunal to show that such persons were at risk because of Mr Corkin’s previous conduct for which he has been convicted. What the evidence does establish is that Mr Corkin has an unblemished work history as an electrician and the circumstances of his convictions were family related and had no bearing on that work. This does not detract from the seriousness of Mr Corkin’s criminal conduct but does not of itself prohibit him from working in an area for which he is qualified and experienced in.

36 Mr Corkin did not in any way conceal the fact of his convictions or the seriousness of them. He disclosed on his application to the Director-General the fact that he had been convicted and he frankly stated that he had just been released from gaol after serving 4 years. Had Mr Corkin concealed his convictions in his application this would have reflected on his honesty and integrity if there was no satisfactory explanation for such a concealment (see Cavaliere v Director-General, Department of Fair Trading [2000] NSW ADT 102).

37 Having regard to the circumstances surrounding Mr Corkin’s convictions, which were not work related, which cannot be said to reflect on his ability to work as an electrician and his unblemished work history of more than 20 years as an electrician, in my opinion, the Director-General’s decision to refuse Mr Corkin’s application for a qualified supervisor certificate is not the correct and preferred decision.

DECISION
38 In accordance with s. 63(3)(c) of the Administrative Decisions Tribunal Act1997, the decision of the Director-General of the Department to refuse Mr Corkin’s application for a qualified supervisor certificate is set aside and in substitution for that decision the Tribunal decides that a qualified supervisor certificate be issued to Mr Corkin under s. 25(1)(a) of the HB Act.