ENK v Commissioner for Fair Trading

[2020] NSWCATAD 320

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ENK v Commissioner for Fair Trading [2020] NSWCATAD 320

Hearing dates:

13 November 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

1. The decision under review is affirmed.

Catchwords:

OCCUPATIONS – real estate salesperson – whether fit and proper person to hold certificate of registration

Legislation Cited:

None cited

Cases Cited:

AJO v Director-General of Transport [2012] NSWADT 101

Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179

EBP v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATOD 157

Grenfell v Director General Department of Finance and Services [2013] NSWADT 57

Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127

McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183

McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258

Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284

Offner v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 22

Saadieh v Director General, Department of Transport [1999] NSWADT 68

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Texts Cited:

None cited

Category:

Principal judgment

Parties:

ENK (Applicant)
Commissioner for Fair Trading (Respondent)

Representation:

Applicant (Self –Represented)
Department of Customer Service (Respondent)

File Number(s):

2020/00250968

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal prohibits the disclosure or publication of the applicant’s name and of other identifying information with respect to the applicant.

REASONS FOR DECISION

Background

1. On 20 March 2020, ENK, the applicant, applied to the Commissioner for Fair Trading, the respondent, for a certificate of registration as a real estate salesperson under the Property Stock and Business Agents Act 2002.

2. From 25 March 2020 amendments to the Property Stock and Business Agents Act contained in the Property, Stock and Business Agents Amendment (Property Industry Reform) Act 2018 came into effect. Its title was changed to the Property and Stock Agents Act 2002 (PSA Act).

3. The amendments substituted the term “assistant real estate agent” for “real estate salesperson” (see clause 32, Schedule 1 of the PSA Act).

4. ENK application was dealt with under the PSA Act. His application was refused on 23 June 2020 and the reason given was that because of his past offences and the fact that he was still under an intensive Correction Order, the Secretary could not be satisfied that he was a fit and proper person to hold a certificate of registration.

5. ENK requested an internal review of the decision. On 30 July 2020 the reviewer affirmed the original decision. ENK then sought review of the decision in this Tribunal.

Relevant legislation

6. Section 3 of the PSA Act defines “assistant real estate agent”:

“assistant real estate agent means a person (other than the holder of a real estate agent’s licence) who, as an employee of a real estate agent or a corporation that carries on the business of a real estate agent—

(a) exercises any real estate agent function, or

(b) engages in any other activity that is prescribed by the regulations for the purposes of this definition.”

7. Section 10(1) provides that a person must not be an assistant agent, represent that they are an assistant agent, or act as or exercise any of the functions of an assistant agent, unless they hold a certificate of registration.

8. Sections 14 and 15 provide:

“14 Eligibility for a licence or certificate of registration

(1) An individual is eligible to hold a licence only if the Secretary is satisfied that the individual—

(a) is at least 18 years of age, and

(b) is a fit and proper person to hold a licence and each person with whom the individual is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and

(c) has the qualifications required for the issue of the licence or class of licence, and

(d) is not a disqualified person, and

(e) has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence.

(2) A corporation is eligible to hold a corporation licence only if the Secretary is satisfied that—

(a) the corporation is a fit and proper person to hold a licence, and

(b) each director of the corporation is a fit and proper person to hold a licence, and

(c) the corporation, and each officer (within the meaning of the Corporations Act) of the corporation, is not a disqualified person, and

(d) at least one of the directors of the corporation holds a licence that a natural person is required to hold to carry on the business that the corporation carries on or proposes to carry on, and

(e) the corporation has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence.

(3) A person is eligible to hold a certificate of registration only if the Secretary is satisfied that the person—

(a) is an individual who is at least 16 years of age, and

(b) is a fit and proper person to hold a certificate of registration, and

(c) has the qualifications required for the issue of a certificate of registration of the type concerned, and

(d) is not a disqualified person.

Note—

The grounds of disqualification in section 16 (1A) do not disqualify a person from eligibility to hold a certificate of registration.

(4) The requirement that at least one of the directors of a corporation holds a licence that a natural person is required to hold to carry on the business that the corporation carries on or proposes to carry on does not require a director to be accredited as an auctioneer under section 21 merely because the corporation carries on or proposes to carry on the business of an auctioneer.

15 Qualifications for licence or certificate of registration

(1) The qualifications required for the issue of a licence or certificate of registration are such qualifications as the Minister may approve from time to time by order published on the NSW legislation website.

(2) Without limiting the Minister’s power to approve qualifications, the Minister may approve qualifications by reference to any one or more of the following—

(a) the completion of a course of study,

(b) the completion of a period of training in a particular activity,

(c) the attainment of a standard of competency in a particular activity,

(d) satisfaction of professional development requirements,

(e) specified working experience.

(3) Qualifications may be approved for a limited range of activities specified in the approval, so as to enable a person who has those qualifications to be granted a licence or certificate of registration subject to conditions that limit the person to exercising the functions of licensee or certificate of registration holder in relation to that limited range of activities only.

(4) A person does not have the qualifications required for the reissue or restoration of a licence or certificate of registration (as provided by section 26) if the person failed to comply with any condition of the licence or certificate of registration that required the holder to undertake professional development, continuing education or a course of study, unless the Secretary otherwise determines in a particular case.

(5) Different qualifications may be approved for different classes of licence.”

9. Section 3 defines “Secretary” as:

(a) the Commissioner for Fair Trading, Department of Finance, Services and Innovation, or

(b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Finance, Services and Innovation.

10. Section 17 provides:

“17 Application of Licensing and Registration (Uniform Procedures) Act 2002

(1) The Secretary may grant the following licences and certificates of registration for the purposes of this Act—

(a) real estate agents’ licences,

(b) stock and station agents’ licences,

(c) strata managing agents’ licences,

(d) corporation licences,

(e) certificates of registration as an assistant real estate agent,

(f) certificates of registration as an assistant stock and station agent,

(g) certificates of registration as an assistant strata managing agent.

(1A) A licence (other than a corporation licence) may be granted as a class 1 licence or a class 2 licence.

(2) Part 2 (other than section 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a licence or certificate of registration, subject to the modifications and limitations prescribed by or under this Act.

(3) For the purpose of applying Part 2 of the applied Act to a licence or certificate of registration—

(a) the Secretary is taken to be the licensing authority, and

(b) the licence or certificate of registration may be amended under section 7 of that Act, and

(c) the licence or certificate of registration may not be transferred under section 8 of that Act, and

(d) in respect of a licence—the references to 2 weeks, 4 weeks and 8 weeks in section 9 (1) (a), (b) and (c) of that Act are each to be read as references to 6 weeks, and

(d1) section 9 of that Act does not have effect in respect of a certificate of registration, and

(e) (Repealed)

(f) an application is not required to be advertised under section 15 of that Act, and

(g) section 21 (4) of that Act does not have effect, and

(h) the reference to 14 days in section 24 (1) of that Act (as to the period within which changed particulars must be notified) is to be read as a reference to 7 days.

(4) Subject to this section, the regulations may make provision for or with respect to such matters concerning a licence or certificate of registration as are relevant to the operation of Part 2 of the applied Act.

11. Section 63 of the Administrative Decisions Review Act 1997 sets out the powers this Tribunal has when reviewing the decision in question:

“63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

Evidence

12. On his application ENK disclosed that he had been convicted of offences involving supplying prohibited drugs. The convictions were recorded in the District Court on 10 April 2019 and were:

1. Supply prohibited drug – indictable quantity (not cannabis)

2. Supply prohibited drug – small quantity

3. Deal with property proceeds of crime less than $100,000.

13. For the first offence he was sentenced to an Intensive Correction Order of 2 years commencing 10 April 2019 and ending 9 April 2021, with a 100 hours community service order. For the second offence he was placed on a Conditional Release Order for the same period. The third matter was taken into account under the other matters. It appears from the records that he pleaded guilty.

14. For the period of the Intensive Corrections Order (which is still in force) he must report regularly to a Community Corrections Officer and comply with the Officer’s directions about matters such as where he lives, participating in programs, treatment and other activities, employment, education, not undertaking specified employment, education, training, volunteer, leisure or other activities, and not associating with certain people.

15. According to a psychological report prepared for his sentencing by Ms Laura Durkin, a Clinical and Forensic Psychologist in April 2019, ENK was born in Bangladesh. His family was apparently well off. He emigrated to Australia at the age of 20 and is now an Australian citizen. He was qualified in IT and worked in the IT field until in 2011 he was made redundant. At the same time his wife became ill.

16. He endeavoured to set up his own business so that he could earn an income while having the flexibility to care for his wife. His attempts to do so, however, were not successful and he lost money and accrued debts. Around the same time his father became ill and he felt pressure to provide funds to support his father, but because of his own situation was unable to do so. This caused feelings of guilt and shame.

17. The psychologist concluded that the stress from these emotions encouraged ENK to engage in criminal activity as he said he could not see any other way to obtain the money to help his father and get out of his financial difficulties. He had no history of drug use or involvement.

18. She advised that he did not have many risk factors for reoffending, but he would need support to help him identify those risk factors and develop a relapse prevention plan.

19. The Sentencing Assessment report stated that ENK had no previous offences and had acknowledged the seriousness of his behaviour and expressed remorse. He engaged in the offending to pay off his debts. He was assessed as being low risk of offending.

20. ENK provided a statement to the Tribunal and was cross examined by the respondent. He said that he applied to be an assistant real estate agent because he had been offered a job by a real estate agent to work with him. That person does not know his criminal history. He was concerned about his reputation and said that only a few people knew about his offences. He said that he had applied for another job but when he told the employer about his criminal record he had failed to get the job.

21. Currently he was trying to start a business with his wife but it was difficult. He saw the job offer as an opportunity to make a new start and look after his family financially.

22. He had been seeing a clinical psychologist, Dr Kieran Sidhu, in order to manage his stress better.

23. ENK was asked about a conversation he had with an employee of the respondent about his application in July 2020. He was asked whether the person who had offered him a job could provide him with a reference to support his application. He said that he did not wish to disclose his convictions to that person because he believed it would destroy his reputation in the community which is associated with his father whom he and the community held in great esteem.

24. During cross-examination he seemed a little confused about the type of certificate he had applied for but I have attributed that to the change in the name of the role following the amendments to the PSA Act.

25. A letter from Ms Kiran Sidhu, ENK’s treating psychologist, to the Tribunal was in evidence. It was evident from the letter that Ms Sidhu had read the Sentencing Assessment report. She stated that ENK has been attending sessions regularly. The sessions include cognitive behaviour therapy to challenge unhelpful cognitions related to traumatic symptoms, guilt and self-blame, and trust issues. The intervention program also included mastering relaxation, building self-esteem and assertiveness and challenging irrational thoughts. He intended to continue attending the sessions up to April 2021. Ms Sidhu expressed the view that ENK was “a reformed person who has put his past behind him and he will not re-offend and there will be no risk to the general public.” Unfortunately she was not available to be cross examined therefore the Tribunal did not have the opportunity to ask about the basis for her opinion. As she did not give reasons for holding this opinion the Tribunal is unable to place much if any weight on it.

26. I note that when asked about the sessions ENK denied that he received counselling and said that he just went there “to talk”. He said that he had been depressed over the death of his father and his inability to help him financially. He seemed unsure about whether he could afford to continue with the sessions.

27. He said that currently he is not required to report under the Intensive Corrections Order.

28. ENK provided character references from a friend who had known him for over 18 years. It appears that this reference was written in 2018 for the criminal proceedings. He said that ENK worked with a charitable foundation helping underprivileged families in Bangladesh. He had helped his friend and other students with accommodation. He was confident that ENK had committed the offences out of financial pressure and would not do anything similar again.

29. He also had a reference from his sister dating from 2019. She stated that he had never been involved in any wrongdoing previously in Australia or Bangladesh and attributed it to financial pressure. She said he was well respected in the community.

30. He also had a reference from a co-worker in his previous employment, who stated that he had been dismayed and shocked at the news of his offences as he would trust ENK as a worker. He believed financial and family pressures had caused him to make a serious mistake. He had worked at Macquarie University without any concerns and he was sure he would not commit any such conduct in the future.

The respondent’s case

31. The legal representative for the respondent said that the question before the Tribunal was whether it could be satisfied that ENK was a fit and proper person to hold a certificate of registration. The respondent submitted that the applicant should not be found to be a fit and proper person to hold a certificate for the following reasons.

1. He had several criminal convictions for drug supply offences.

2. He was still subject to an Intensive Corrections order and a person in that situation cannot hold themselves out to be a fit and proper person.

3. Insufficient time had passed to demonstrate he had rehabilitated.

4. Currently while he was under the Intensive Corrections Order he was motivated to be of good behaviour. He needed to show if this would continue after completing the order.

5. There is a risk he may reoffend if a similar financial crisis occurs.

6. He was not prepared to declare his criminal history to his prospective employer and unable to get a reference from them.

32. She referred to the decision of Saadieh v Director General, Department of Transport [1999] NSWADT 68, concerning an authority to drive a taxi.

33. That case referred to “good repute” as part of being “fit and proper”.

34. It is worth quoting what Deputy President Hennessy said at length as it summarises the considerations on each side of the issue:

“12 The issue in this case is whether, in the light of the responsibilities and expectations of a taxi driver, the applicant is a “fit and proper person” to hold a taxi authority. …

14 If the respondent is submitting that once a person has committed a dishonesty offence such as breaking, entering and stealing, he can never again be regarded as a person of good character (or in this case, “good repute”) then I reject that proposition. If it were otherwise any conviction for a dishonesty offence would automatically prevent a person from re-applying for a taxi authority. The Director General has not interpreted the legislation in this manner, nor do I think it correct to do so.

15 Furthermore, I do not accept the respondent’s submission that the applicant is not of good repute merely because his criminal record indicates bad repute and there is no other evidence of repute. Many applicants before the Tribunal are unrepresented. They do not understand, nor should they be expected to understand, that references or other evidence of their repute in the community would be useful in counteracting any evidence of bad repute which can be assumed on the basis of a criminal conviction. A person’s criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority. All the circumstances of the case must be taken into account in assessing a person’s suitability to be obtain or retain such an authority.

16 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person’s suitability and fitness to obtain a taxi authority. These factors include:

1. the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

2. the nature, seriousness and frequency of any complaints made against the applicant;

3. the applicant’s driving record;

4. the applicant’s reputation in the community; and

5. the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant’s circumstances such as increased support from friends, family or professional service providers.”

35. She submitted that the convictions were serious and a longer period of rehabilitation was required to show that the applicant had reformed. The Intensive Correction Order was still in force and would not end until April 2021. It was too soon to be confident that he could be trusted with a certificate. She referred to the decision of McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258. This decision sets out the relevant authorities but the facts are different from those in this case.

36. She submitted that no weight should be given to Ms Sidhu’s report. Some weight could be given to Ms Durkin’s report but it was not sufficient to allay all concerns.

The applicant’s case

37. ENK said that he had received the minimum punishment because the amount of drugs involved was very small. He made a mistake to try to get money to help his father who was ill. He had not been regarded as a risk by the legal system, he was given a reduced punishment and he had been allowed to travel overseas while on bail. He had made a serious mistake but wanted an opportunity to set his life on the right track. He was aware that his sentence was not yet completed but would not make the same mistake again if he was given a chance.

38. He referred to the example of Mr Michael Coutts-Trotter, who was convicted for drug importation in his youth but rose to become the Secretary of the Department of Communities and Justice.

Consideration

39. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said:

The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. 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 ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.

40. It is generally accepted that a person’s fitness and propriety needs to be determined by reference to the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).

41. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the 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 a particular licence ... 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 ... as a person to be entrusted with the sort of work which the licence entails.

42. In relation to an applicant’s past criminal conduct, in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [15] the Tribunal stated:

The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation.

43. The respondent relied upon McEvoy vDirector-General of the Department of Fair Trading [2000] NSWLEC 183 and Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284 as authority that where a person is still under bond it is too soon to determine that he or she is fit and proper. In McEvoy the Land and Environment Court refused a person registration as a valuer on the basis that he was not a fit and proper person. The court took into account the fact that Mr McEvoy was still under a bond in respect of a serious criminal offence. The Court said:

"Secondly, the act of registration as a valuer amounts to a public certification that the person is an honest person in whom confidence can be reposed (In Re Arnold). Both the public and the court must be able to repose confidence in registered valuers and must be able to accept without question their honesty and good character. In cases of this kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of a penalty to the individual (Dad v General Dental Council [2000] 1 WLR 1538 at 1543. PC). Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character (Ex parte Davis, Sakellis). I do not think that a person who is still under a bond in respect of a serious criminal offence can be said to be a person of good character (Sakellis)."

44. In NIzhnikov the applicant was still on a good behaviour bond and it was determined that it was too soon to be sure that he was a fit and proper person to be

45. McEvoy was considered in Offner v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 22 where the applicant wished to obtain a certificate of registration as a real estate salesperson. She was still on parole following her conviction for assault causing grievous bodily harm to her partner. There were special circumstances around the case, including alcohol abuse and domestic violence. She wished to hold a certificate with a condition that she not handle real estate sales.

46. In that case Montgomery SM granted the certificate with the proposed condition, on the basis that he was satisfied on the evidence as to her professionalism, trustworthiness and honesty that she could safely be accredited to the public. The applicant still being on parole was not an obstacle to her being found of good character in that case, but the circumstances of the offence were different from the present case and the applicant was seeking approval to work in an industry where she already worked with the support of her employer, who was aware of her history.

47. I agree that a person still serving under parole, a good behaviour bond or corrections order can occasionally be found to be a fit and proper person to carry on an occupation; but there must be clear and unequivocal evidence to demonstrate their fitness. Such evidence is lacking in this case.

48. Following the reasoning in the above cases, I note that the offences were serious but involved a small amount of drugs, and this factor as well as the applicant’s previous unblemished record was reflected in the sentence. The applicant was given a non-custodial sentence and subjected to a low level of supervision. There are no complaints against him so far during his sentence, but he has still approximately five months to complete.

49. The applicant explained his conduct by saying he was under significant stress due to financial failure but also his father’s illness and his desire to help him was an important factor in his offending. He has been candid about his convictions with the respondent and before the Tribunal, but he showed reluctance to be candid in his dealings with his prospective employer and others, because he is concerned about his reputation.

50. It is difficult to assess his current character or honesty as he did not provide any current references. However at a time in the past when he was facing conviction for his offences, two independent referees expressed a view that he could be trusted and he would not offend again, which is in his favour.

51. Also in his favour is the evidence of Ms Durkin that there is a low risk of reoffending. Ms Durkin’s report suggests, however, that he may be overly confident about his ability to succeed and I also gained the impression from his evidence that he is eager to put the past behind him, although he has not yet completed his sentence. Based on Ms Durkin’s report, I am concerned that if he does not succeed in his endeavours as quickly or as fully as he wishes, he may be unable to cope with the stress this could cause and this may lead to a relapse. It is encouraging that he wishes to continue attending sessions with a psychologist, and it may be beneficial to address issues around coping and resilience as recommended by Ms Durkin, to help him overcome obstacles he may face in rebuilding his career.

52. ENK’s preference not to disclose his convictions does not demonstrate trustworthiness and would probably create more stress for him in the long term, which is a risk factor for reoffending. He should note that Mr Coutts-Trotter, whom he seeks to emulate, has achieved a successful career despite being open about his past mistakes.

53. Where there is doubt, I must give greater weight to the interests of the public in being able to trust persons who hold a certificate as an assistant real estate agent (McEvoy). I do not think that this is a matter which can be remedied by placing conditions on the certificate and this was not suggested by either party. I have determined that I cannot be satisfied that ENK has yet reached the stage of being a fit and proper person to hold a certificate of registration. He may be able to show that he has reached that stage after completing his sentence, and demonstrating his honesty and good character by his good conduct in the future.

Non-publication order

54. After these reasons were completed but before they were published, the applicant requested that they be subject to a non-publication order. He said that he did not want his earlier mistake published as his children were not aware of his convictions. He said that he would rather not have the certificate than lose his family’s respect and love.

55. The respondent submitted that ENK’s reasons for his request did not justify non-publication as the evidence was not confidential in nature and the public interest should be given priority over his private concerns. The public interest in having the reasons published was said to be informing the community about the facts and maintaining public confidence in the licensing regime.

56. The respondent cited EBP v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATOD 157, where Senior Member K Ransome stated at [64]:

“Proceedings of the Tribunal are generally held in public. Decisions of the Occupational Division of the Tribunal are, unless otherwise ordered, published on websites maintained by NSW Caselaw and the Australasian Legal Information Institute. Each of these websites is freely accessible to members of the public. This is generally a reflection of the importance of justice being administered openly and in public and the recognition that disclosing the identity of persons who have contravened laws relating to their occupations and breached the trust that has been placed in them has a deterrent effect amongst their peers. The public also has an interest in knowing whether a person has been disqualified or prevented from engaging in a particular occupation and for what reasons. It is also important to know that the regulatory functions of the Commissioner are being carried out appropriately.”

57. I agree that it is important that the public are able to see how decisions are made in such cases and that the industry is aware of the possible consequences of unlawful conduct.

58. In this case, I have determined that the applicant is not fit and proper to hold a certificate at this time but it is possible that he may become fit and proper with effort and the passage of time.

59. In EBP the Senior Member made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the applicant’s name because of concerns around his mental health. I propose to make a similar order. Firstly because he is not currently working in the industry nor has he done so in the past which reduces any risk to the public. Secondly it is for him to decide when to disclose his convictions to his family. Thirdly because while his mental health is not at risk as in EBP, he is receiving psychological counselling. Fourthly because self-represented parties like the applicant often are not aware that the decision will be published and therefore do not take that into account in considering their options.

Order

60. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 December 2020