Pop v Queensland Building Services Authority
[2012] QCAT 388
•23 August 2012
| CITATION: | Pop v Queensland Building Services Authority [2012] QCAT 388 |
| PARTIES: | Corneliu Pop (Applicant/Appellant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR062-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 1 December 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Gerald T Byrne, Member |
| DELIVERED ON: | 23 August 2012 |
| DELIVERED AT: | Rockhampton |
| ORDERS MADE: | The application for review is allowed. Pursuant to s 24(1)(b) of the QCAT Act 2009, the following consequential orders are made: (1) The decision of the Respondent dated 25 February 2011 refusing the Applicant’s application for a QBSA Contractor Licence in the classes of Carpentry and Painting and Decorating is set aside; (2) In lieu thereof, the Tribunal substitutes its own decision that the Applicant is a fit and proper person to hold a QBSA licence in the classes of Carpentry and Painting and Decorating; and (3) The Applicant is to be granted a QBSA Contractor Licence, in the classes of Carpentry and Painting and Decorating. |
| CATCHWORDS: | Occupational Regulation – building industry – “fit and proper person” requirement for Applicant to hold a licence in Carpentry and Painting and Decorating – where the Applicant had a long criminal history spanning 15 years – where the Applicant had over 70 convictions including indictable offences – where the Applicant served a number of terms in prison – where the Applicant had history of mental illness – where the Applicant had long history of illicit drug use Queensland Building Services Authority Act 1991, ss 31(1) and (3), 35 Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 considered Australian Broadcasting Tribunal v Bond [1990] HCA 33 (1990) 170 CLR considered Weedon v Builders' Licencing Board (NSW) Unreported, Dist Ct NSW, 6 September 1976 considered |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Corneliu Pop, in person |
| RESPONDENT: | Ms Dilhari Mahiepala (QBSA in-house solicitor) |
REASONS FOR DECISION
Preliminary
On 17 March July 2011, Mr Corneliu Pop commenced this application before the Queensland Civil and Administrative Tribunal (QCAT) by filing an Application for Leave to Appeal or Appeal (Form 39) amended in pen to become an Application to Review a Decision in the registry QCAT. The amended form has been accepted by QCAT. Mr Pop sought to review a decision made by the Queensland Building Services Authority (QBSA).
By letter dated 25 February 2011, the QBSA notified Mr Pop that his application for a QBSA contractor licence in the classes of Carpentry and Painting and Decorating had been refused, on the basis that it had been determined that Mr Pop was not a fit and proper person to hold such a licence and that he had not provided sufficient information to show he had 2 years experience.
The issue of experience was not before me as it was conceded by the QBSA[1].
[1] Transcript of proceedings of 1 December 2011 P-14 lines 21-25.
The decision on fit and proper person was one made in accordance with s 31(1) of the Queensland Building Services Authority Act 1991 (‘the Act’). I have taken a reference in the letter of 25 February 2011 under the heading of Particulars of BSA’s decision to s 31(1)(c) to be a typographical error that should read s 31(3) and find this to be of no consequence.
In reaching that determination in accordance with s 31(1) and (3) of the Act, the original decision maker had regard to the fact that Mr Pop had a long criminal history set out in paragraphs marked a) to v) on pages 2, 3 and 4 in the 25 February 2011 letter from the QBSA to Mr Pop, ending in a conviction and sentence of 6 months jail in 2008 for offences committed in 2007 or prior years[2].
[2] Transcript of proceedings of 1 December 2011 P-10 lines 30-43.
Decisions by the QBSA pursuant to s 31 of the Act are “reviewable decisions”[3], for purposes of s 24 of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’).
[3] QBSA Act, s 86(1)(a).
Section 20 of the QCAT Act provides that the purpose of a review of any reviewable decision is to produce the correct and[4] preferable decision[5] and that QCAT is to conduct the review by way of a fresh hearing on the merits[6]. In light of s 20, the question of Mr Pop’s application for a contractor’s licence is a matter to be determined by QCAT de novo, on the basis of the evidence, including any fresh evidence, now available before it, whilst conducting the review hearing. This is to be distinguished from a review of whether on the material that was originally before the QBSA Mr Pop was a fit and proper person when it made its decision[7].
[4]For reasons elaborated by the President in QBSA v Meredith [2010] QCATA 50 at [5], the expression “correct and preferable” as used in s 20 is somewhat unusual. The better expression is “the correct or preferable” decision, consistent with the expression commonly used in analogous Australian legislation touching upon matters of administrative review.
[5] Sub-section 20(1) of the QCAT Act.
[6] Sub-section 20(2) of the QCAT Act.
[7]Builders’ Licensing Board v Spurway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616; Alford v Auctioneers and Agents Committee [2002] QDC 130.
The decision is taken to be a decision of the original decision maker[8].
[8] QCAT Act, s 24(2)(a).
Evidence
A review hearing was convened at Brisbane on 1 December 2011. Oral evidence was received from Mr Raymond Mark Wilson, a licensed builder and employer of Mr Pop. Mr Wilson also read a letter of personal reference for Mr Pop into evidence.[9]
[9] Exhibit 1.
In response to questions from me, Mr Wilson reaffirmed his reference for Mr Pop despite the latter’s extensive serious criminal history being put to him. He indicated he mentored Mr Pop for 4 or 5 months as part of his evangelism when Mr Pop had a caravan next to his house. Mr Pop also attended his bible class and church and was genuinely prepared to listen and learn. Mr Wilson stated that from his experience in mentoring young men, he knew Mr Pop would succeed in rehabilitation[10].
[10] Transcript of proceedings of 1 December 2011 P-5 lines 33-45 and P-6 Lines 1-4.
Mr Wilson also indicated Mr Pop has recently married a woman of very high calibre and standing and that she would not be involved with Mr Pop if he had not reformed and that he was certain Mr Pop had moved on with his life[11].
[11] Transcript of proceedings of 1 December 2011 P-6 lines 14-20.
Oral evidence was received from Mr Pop and his application was taken to be in evidence. A further psychologist report dated 22 November 2011 by Tracey Clarke was tendered[12]. Mr Pop’s statement/submissions dated 6 July 2011 and psychologist report by Tracey Clarke of 5 July 2011 were tendered during cross-examination of Mr Pop[13].
[12] Exhibit 2.
[13] Exhibit 3.
The first report by Tracey Clarke indicates that she conducted a Personal Assessment Inventory (questionnaire) with Mr Pop and it did not show any clinical psychopathology in Mr Pop. This was consistent with her findings from 6 sessions with Mr Pop[14]. She also found his self concept appeared to be generally stable and positive and he is likely to be confident and optimistic and approach life with clear sense of purpose and distinct convictions, which would allow him to be resilient and adaptive in the face of most stressors[15]. Ms Clarke had no hesitation in recommending Mr Pop for a Blue Card to work with children[16]. The second report was a result of a seventh session and is essentially the same as the first report, except it states after seven sessions she has no hesitation in recommending Mr Pop for a QBSA licence.
[14] Exhibit 3 report by Tracey Clarke of 5 July 2011 penultimate paragraph.
[15] Exhibit 3 report by Tracey Clarke of 5 July 2011 penultimate paragraph.
[16] Exhibit 3 report by Tracey Clarke of 5 July 2011 last paragraph.
Oral evidence was received from Ms Carol Marie Kuhl, Principal Compliance Officer employed by the QBSA and her affidavit[17] and the statement of reasons for the QBSA decision were admitted into evidence[18]. Ms Kuhl assessed Mr Pop’s original application for a contractor licence and authored the letter of 25 February 2011 denying the application.
[17] Exhibit 4.
[18] Exhibit 5.
It was obvious that Mr Pop did not have a clear understanding of what he needed to present to show his rehabilitation, that he was no longer dependent on drugs, that he was unlikely to reoffend and was now a trustworthy member of society.
After discussion I made orders, which upon later application by Mr Pop were amended as to the timing, but not substance, and became as follows:
THE TRIBUNAL DIRECTS THAT BY CONSENT:
1.Directions 1 and 2 of the Directions dated 1 December 2011 are vacated.
2.The Applicant, Mr Pop, may file in the Tribunal and serve on the Respondent further submissions and provide further evidence and reports to support his assertions that:
·his long history of crime was related to, or caused by, his mental illness that he had at the time he committed the offences.
·his current lifestyle is sustainable and he is unlikely to commit any offences in the future.
·his mental illness has abated and the likelihood of it re-occurring is low.
·any other submissions or evidence he wishes to put to support the fact that he is a fit and proper person in the terms of the application for a licence by:
4:00pm on 2 March 2012
3.The Queensland Building Services Authority is at liberty to respond to any further evidence or submissions produced by Mr Pop by:
4:00pm on 23 March 2012
As a consequence of those orders Mr Pop filed further documents on 5 March 2012. The documents were nine character references (4 of which were already in evidence), which I marked exhibit 6, a personal submission/letter and psychologist letter that are already in evidence, a further submission/letter by Mr Pop dated 27 February 2012 which I marked as exhibit 7 and a report from Dr Sanjib Baruah, Consultant Psychiatrist, which I marked as exhibit 8.
On 12 March 2012 Mr Pop filed medical reports and other material, which I marked as exhibit 9.
In response to the orders the QBSA filed submissions in reply on 27 March 2012.
The report by Dr Sanjib Baruah, Consultant Psychiatrist (exhibit 8) indicates that Mr Pop ‘has a diagnosis of Paranoid Schizophrenia with Polysubstance Abuse, currently in Remission for many years without substance abuse’[19]. Dr Baruah goes on to indicate that for Mr Pop ‘with his current lifestyle of complete abstinence from illicit substance abuse, the risk of a relapse appears low’ as he believes that substance abuse was ‘a major factor contributing toward his (Mr Pop’s) past symptoms and unlawful actions’[20].
[19] Exhibit 8 second last paragraph of P - 5.
[20] Exhibit 8 top paragraph of P - 6.
As indicated, Mr Pop has given evidence that he takes no drugs, legal or illegal, and this is consistent with the finding by Dr Sanjib Baruah from a random drug test on 16 February 2012[21]. Dr Baruah concludes the report indicating he has no hesitation recommending Mr Pop for a QBSA licence.
[21] Exhibit 8 top of P - 4.
Mr Pop in written evidence[22] indicated he struggled since 16 years of age growing up in Logan, Queensland.
[22] Exhibit 3.
Mr Pop set out in a statement to the BSA[23] a history, starting at 17 years of age, of being in trouble; a terrible car accident when he was the driver at 18 years of age; and then a life of crime and punishment, mental illness and substance abuse. He states further that he was healed and had not visited a doctor for over 3 years and no longer smoked or drank or took any form of medication or illicit drugs. He credits the change to his faith in God.
[23] Exhibit 5 P - 34 (P - 17 of Mr Pop’s application to the BSA).
His evidence was that he has maintained a balanced lifestyle for over 3 years (now 4 years) due to a miracle from God and functions like any other member of the community. He described the strangeness of being able to drive a vehicle again after his appalling traffic history. He states he regained a licence over 2 years ago[24] (now over 3 years). He also sets out his desire and passion to be creatively working in his own business and sees it as a form of gifting to the community.
[24] Exhibit 5 P - 49-50 (P - 29-30 of Mr Pop’s application to the BSA).
During cross-examination Mr Pop indicated he prayed through the months after 2007 and then he had a dream and, following the dream, he fasted for a week and beat his remaining addictions of Valium, a drug he took for anxiety and cigarettes. After this he no longer needed any drugs, legal or illicit, to be a well person. He indicated that he realised something internally had taken place that he could only describe as a miracle.
Mr Pop openly agreed during cross-examination that the offences he committed in 2007 and earlier that he was sentenced for in 2008 were serious offences[25]. He also openly agreed that the offences showed a disregard for rules and regulations[26].
[25] Transcript of proceedings of 1 December 2011 P-10 lines 45-46.
[26] Transcript of proceedings of 1 December 2011 P-11 lines 1-3.
Mr Pop also told the Tribunal that he has not used any form of illicit substance since March 2008. He no longer drinks and smokes. Nor has he needed medication since that date.[27] I accept this evidence.
[27]Letter of Dr Rowena Soriano Psychiatry Registrar of the Queensland Government Logan Central Adult Mental Health Service, dated 7 October 2008, part of exhibit 9.
Mr Pop also gave evidence that he has a healthy lifestyle with good food and exercise[28] and in written material evidence of his running in events in very respectable times, giving an indication of physical rehabilitation[29].
[28] Transcript of proceedings of 1 December 2011 P-13 lines 43-46.
[29]Exhibit 7 P - 2 second paragraph – the veracity of this evidence was checked by the Tribunal on the web site of the Bridge to Brisbane <>
Mr Pop has not been the subject of any adverse police attention for offences he has committed since late 2007. I observe that Mr Pop waited nearly three years[30] since his last offence before making his application to the Respondent for a QBSA contractor licence.
[30] Exhibit 5 P - 31 (P - 11 of Mr Pop’s application to the BSA).
Currently, Mr Pop is working as an employee painter and decorator. He has recently married.
Mr Pop in written material, indicated and again I accept this evidence, that he has a desire and passion to be creative in this field (of painting and decorating) and he wants a licence to continue and grow his business[31].
[31] Exhibit 3.
In Mr Pop’s statement of 5 July 2011 he indicates his goal is to work, study part time and stay focussed on running his family.
Relevant Law
As the Applicant is an individual this application falls to be determined within s 31(1) of the QBSA Act which provides:
“31 Entitlement to contractor's licence
(1)A person (not being a company) is entitled to a contractor's licence if the authority is, on application by that person, satisfied that—
(a) the applicant is a fit and proper person to hold the licence; and
(b) the applicant has the qualifications and experience required by regulation in relation
(c) the applicant satisfies the relevant financial requirements stated in the board's policies; and
(d) the applicant can lawfully work in Queensland; and
(e) the applicant is not an excluded individual for a relevant event or a permanently excluded individual; and
(f) the applicant is not a disqualified individual; and
(g)the applicant is not a banned individual; and
(h) the applicant does not have an unpaid judgment debt for an amount the authority may recover under section 71.”
All of the matters in sub-sections (b)-(h) inclusive in s 31(1) have been conceded by the QBSA. As the QBSA has made this concession and I have no evidence before me to suggest the Mr Pop does not meet these requirements, I find that I am satisfied as to each of the various matters required by s 31(1)(b)-(h) of the Act.
The substantive issue before me is in relation to s 31(1)(a). In determining whether a particular person is a “fit and proper” person as required by s 31(1)(a), some guidance is afforded to the decision maker by s 31(3) of the Act, which provides:
“(3) In deciding whether a particular person is a fit and proper person to hold a contractor's licence or to exercise control or influence over a company that holds a contractor's licence, the authority may have regard to—
(a) commercial and other dealings in which that person has been involved and the standard of honesty and integrity demonstrated in those dealings; and
(b) any failure by that person to carry out commercial or statutory obligations and the reasons for the failure; and
(c) tier 1 defective work carried out by the person, whether or not the person received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work; and
(ca) if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act or the Domestic Building Contracts Act 2000--whether the person has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order; and
(d) any other relevant factor.”
None of the matters specified in subsections (a)-(ca) in s 31(3) of the Act are an issue in this case. Mr Pop’s previous history is clearly something that falls within the term of ‘any other relevant factor’ for purposes of s 31(3)(d) of the Act.
Fitness and Propriety
The expression “fit and proper person” is one often used in statutes and it is a very broad concept. It is not defined in the QBSA Act.
What is often quoted as “the classic” Australian statement as to the meaning of the words “fit and proper person” appears in the joint judgment of Dixon CJ, McTiernan and Webb JJ in the High Court's decision in Hughes and Vale Pty Ltd v The State of New South Wales[32]:
‘The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus') with respect to an office is said to involve three things, honesty knowledge and ability; "Honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"— Coke.’
[32] (1955) 93 CLR 127 at 156-157.
This statement has subsequently been adopted on numerous occasions in relation to the QBSA Act[33].
[33]See for example Dobson v Queensland Building Services Authority [1998] QBT 140 (10 November 1998) per Member Mrs Mullins SC (as her Honour then was). See also Alford v Auctioneers and Agents Committee [2002] p3 DC 130 at paragraph [5] per McGill SC, DCJ.
Further assistance in interpreting this term has been given by the High Court, in Australian Broadcasting Tribunal v Bond (Bond Media case)[34] where Toohey and Gaudron JJ noted:
‘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 context, 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.’
[34] [1990] HCA 33:(1990) 170 CLR 321 at paragraph 36.
Also in Bond Media case, Chief Justice Mason said:
‘The question whether a person is fit and proper is one of value judgement. 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 a person whose fitness and propriety are under consideration.’[35]
[35] Ibid, at paragraph 63. Note Brennan and Deane JJ agreed with the Chief Justice.
The QBSA in submissions rightly conceded[36] that the “power to grant or withhold a licence is protected, and there is no element of punishment involved.” The QBSA submissions went on to indicate that the “primary consideration is the protection of persons with whom the licensee might deal, primarily consumers”[37] which is a submission I adopt.
[36] Trial submissions paragraph 31.
[37] Ibid.
The QBSA submitted that the ‘concept of fitness and propriety should not be narrowly construed or confined and must extend to any aspects of fitness and propriety that is relevant to the public interest’[38] and noted that in the matter of Weedon v Builders' Licencing Board (NSW)[39], Redapple DCJ stated that:
‘In order to show that a person is a fit and proper person to hold a licence, the applicant must establish that in a business sense he is a person of honesty and integrity in his dealings with others, that he is possessed of the characteristics of stability, and of sound judgment which he can and will exercise in the interests of his clients; he must show that he is otherwise of good character’.
[38] Submissions for hearing at paragraph 38.
[39] Unreported, Dist Ct NSW, 6 September 1976.
I adopt this as one reasonable summary in broad of the law regarding fit and proper person as it applies to this Application and accept that the term fit and proper is to be construed widely.
The question of fit and proper person from the authorities must be established in the context of the licence that is subject to the Application.
I am conscious of the very long criminal and illicit drug-taking history and the relatively short period of Mr Pop living as a “useful member of society”. I have come to the conclusion that society accepts that after a time of proven rehabilitation that a person’s past should be past and no longer limit them in seeking to do what any “worthwhile member of society” is allowed to do. I accept that by an act of God, or some other explanation, Mr Pop has now been free of illicit substances, the need for medication and the use of legal drugs such as alcohol and tobacco for over 4 years, has no indication of criminal activity for nearly 5 years and has driven a vehicle for 3 years without apparent issues arising.
I note the rather colourful language of my colleague Mr Andrew McLean Williams in a recent as yet unreported decision[40].
“… it is open on the evidence to assess the Applicant as a veritable poster child for the rehabilitative ideal that has infused penology and correctional policy since as long ago as the publication of Lombroso’s L’Uomo Delinquente (1876).”
[40]Troy Anthony Amour v QBSA handed down on 12 March 2012 paragraph 41 acknowledging Cavadino & Dignan The Penal System: An Introduction (Second Ed), Sage Publications, 1997, at p. 48.
In this Application Mr Pop gave evidence of a time of fasting, a dream and a cure as if it were a miracle. That also troubled me in some respects. However, I accept Mr Pop believes this and some devout religious people accept such things, where others may be sceptical. But how the transformation occurred is not to me the issue. That it did or did not occur is the key question for me to answer on the evidence before me.
So what is before me in evidence? One thing is a very long and serious criminal history. A second is an apparent long history of substance abuse. A third is a long history of mental illness and reports that are conflicting in their findings. A fourth is nearly five years on the apparent “straight and narrow”. A fifth is a series of references to which I have given varying degrees of weight and I was particularly impressed by the evidence of Mr Wilson and his reference. All references are quite glowing testimonials for Mr Pop. The sixth is a report and letter by Dr Rowena Soriano Psychiatry Registrar of the Queensland Government Logan Central Adult Mental Health Service. The report dated 27 December 2006[41] indicated, among other things, that Mr Pop admitted to abusing illicit substances at moments when he was feeling low and she found that he will probably repeat the same cycle of recidivism and a letter by her of 7 October 2008 indicated Mr Pop has not been on medication for 7 months and is well and it is consistent with his faith in God[42]. An eighth is the recent medical history as assessed by a psychologist Tracey Clarke and psychiatrist Dr Baruah. The former indicates that she conducted a Personal Assessment Inventory (questionnaire) with Mr Pop and it did not show any clinical psychopathology in Mr Pop, consistent with her findings from 7 sessions with Mr Pop and recommended him for a Blue Card regarding children and the QBSA licence. The latter diagnosed Mr Pop with Paranoid Schizophrenia with Polysubstance Abuse, currently in Remission and indicated that without substance abuse the risk of relapse is low and recommended Mr Pop for a QBSA licence.
[41] Exhibit 9 P - 24-28.
[42] Exhibit 9 P - 7.
The evidence before me indicates Mr Pop is a reformed person. There is no evidence before me to indicate that for over 4 years Mr Pop has not been a reformed person and that for this period (putting aside his past) he should not be regarded as a fit and proper person. Rather the evidence is that in the past few years he has been an exemplary person.
How long does one need to be reformed to purge the past and be regarded as a fit and proper person? I turn for guidance on the issue of time to the decisions of the Deputy President of QCAT, Judge Fleur Kingham in Pharmacist Board v Gordon[43] and Medical Radiation Technologists Board of Queensland v Groves[44]. Both matters were disciplinary proceedings regarding the indictable offence of possessing child exploitation material for practitioners in the medical field – one a medical radiation technologist and the other a pharmacist. In each case her Honour set conditions for re-registration and barred an application for re-registration in the former case for 2 years and the latter for 3 and a half years.
[43] [2010] QCAT 181.
[44] [2010] QCAT 528.
In the Groves’ matter her Honour noted a number of negative aspects concerning Mr Groves including an apparent lack of remorse, his lack of participation until a late stage in proceedings, his failure to get a health assessment as ordered by the Tribunal and a cavalier approach[45].
[45] [2010] QCAT 528 paragraphs 15-19.
Her Honour also distinguished the two professions regarding risk to the public on the basis that a pharmacist was unlikely to see people in private while a medical technologist would see members of the public in private and unsupervised, including adolescents, where patients may be in a stage of semi-dress in semi-darkness and it is frequently necessary for the practitioner have to touch them to position them for the procedure[46].
[46] [2010] QCAT 528 paragraphs 20-21.
I note that in Gordon he was arrested in May 2008, convicted in February 2009 and the two years time till he could reapply was from the decision in March 2010 and in Groves the arrest was February 2007, conviction November 2008 and the three and a half years time period until he could reapply was from the decision on 27 October 2010.
With this guidance where does Mr Pop stand? At the hearing, in affidavit evidence and in submissions in reply[47] the QBSA submitted that the material as provided by Mr Pop has not sufficiently demonstrated that he shows remorse or regret for his years of offending, rather “as a result of his faith and his new lifestyle, it is as if the offences had never occurred”[48].
[47]Exhibit 4 Affidavit Ms Carol Marie Kuhl, Principal Compliance Officer employed by the QBSA paragraphs 15 and 28(h) and submissions in reply paragraph 41.
[48] Submissions in reply paragraph 41.
In cross-examination the QBSA representative questioned Mr Pop about him not recollecting his criminal past and the possibility of reoffending. Mr Pop indicated it was not correct that he did not recollect; rather he knows his past is there, but does not dwell on the past. He indicated he looks at it as an experience he had that can teach and guide him[49]. Mr Pop did not state his remorse or regret expressly. Mr Pop was not directly asked if he was regretful or remorseful, but I took this to be how he felt in expressing how he now is well and how he was mentally ill and addicted to legal and illicit drugs in his past. Mr Pop did readily concede his offences were serious and showed a disregard for rules and regulations. With some reticence I accept what Mr Pop was expressing was that he sees life for him now and his life as it used to be as so totally different his past is almost disconnected in a sense. I find on balance, from his evidence and demeanour and his history of illness and addiction that there is no negative connotation to be taken from the fact that he did not come out and say how remorseful and regretful he is. There was nothing from the evidence that leads me to think that Mr Pop was flippant about or sought to excuse his past or was not remorseful about his past. I distinguish this case from, for example, cases such as Medical Radiation Technologists Board of Queensland v Groves[50] discussed above.
[49] Transcript of proceedings of 1 December 2011 P-12 lines 11-17.
[50] [2010] QCAT 528.
I still have a concern about Mr Pop’s history of mental illness and the risk of succumbing to illicit drugs.
I note the QBSA concern that the “building and construction may be experiencing some very difficult and bleak days faced with trying times” and one cannot be sure Mr Pop will not be tempted to repeat his former ways and reoffend in a similar fashion if not on a greater scale and its concern that Mr Pop may relapse if some of those positive factors are removed, especially in terms of his drug use[51].
[51] Submissions in reply, in particular paragraphs 45-47.
As a finding on the evidence, I accept the QBSA’s submission that the various reports provided, and the consideration of those reports by Dr Baruah, does not demonstrate conclusively that the long history of offending by the Applicant is solely as a result of mental illness[52].
[52] Submissions in reply, in particular paragraphs 50(a).
I also accept broadly the QBSA’s submission that the evidence does not conclusively demonstrate that the likelihood of the Applicant reoffending is low[53]. However, I find that the risk is likely to be low based on the report from Dr Baruah and two reports from Tracey Clarke and other evidence particularly, that of Mr Pop and Mr Wilson.
[53] Submissions in reply, in particular paragraphs 50(b).
I reject the submission by the QBSA that there is “insufficient material provided that demonstrates the Applicants current medical state” and ‘healthy’ lifestyle[54] and find this to be proven.
[54] Submissions in reply, in particular paragraphs 50(c).
I find Mr Pop to be a fit and proper person.
Order
The application for review is allowed. Pursuant to section 24(1)(b) of the QCAT Act 2009, the following consequential orders are made:
1. The decision of the Respondent dated 25 February 2011 refusing the Applicant’s application for a QBSA Contractor Licence in the classes of Carpentry and Painting and Decorating is set aside;
2. In lieu thereof, the Tribunal substitutes its own decision that the Applicant is a fit and proper person to hold a QBSA licence in the classes of Carpentry and Painting and Decorating; and
3. The Applicant is to be granted a QBSA Contractor Licence, in the classes of Carpentry and Painting and Decorating.
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