Zangara v Queensland Building and Construction Commission
[2018] QCAT 52
•27 February 2018
CITATION: | Zangara v Queensland Building and Construction Commission [2018] QCAT 52 |
PARTIES: | Jacob Alexander Zangara |
| v | |
| Queensland Building and Construction Commission (Respondent) | |
APPLICATION NUMBER: | OCR099-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 21 September 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Olding |
DELIVERED ON: | 27 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Queensland Building and Construction Commission dated 11 May 2017 to cancel the Applicant’s contractor licence is set aside. 2. Each party is to bear their own costs. |
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – where licensed carpenter convicted of drug-related offences – where history of drug taking - where carpentry licence cancelled - where approximately six months of parole remaining to be served – whether fit and proper person to hold licence – whether sufficient time has passed since conviction Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Tirta v Ministry of Transport [2006] NSWADT 65 |
APPEARANCES: | |
APPLICANT: | Jacob Alexander Zangara |
RESPONDENT: | Queensland Building and Construction Commission |
REPRESENTATIVES: | |
APPLICANT: | represented by Mr A S McDougall of Counsel instructed by Lawler Magill |
RESPONDENT: | represented by Mr C W Hill, Senior Lawyer, Queensland Building and Construction Commission |
REASONS FOR DECISION
The Applicant, Mr Zangara, has applied for review of the Respondent Commission’s decision of 11 May 2017 to cancel his carpentry contractor licence.
That decision was stayed by the Tribunal pending the hearing and determination of the review.
The Commission cancelled the licence because Mr Zangara was convicted of 19 drug-related indictable offences. The Commission says that it is too soon after conviction to be satisfied that Mr Zangara is a fit and proper person to hold a licence, and also points to certain other factors.
Mr Zangara says that he has addressed the issues relating to his drug addiction, that the offences are unrelated to his carpentry occupation and that cancellation of his licence is inappropriate having regard to an earlier decision of the Tribunal in another matter. He also seeks an award of costs.
I have decided to set aside the decision to cancel Mr Zangara’s licence but to refuse his application for costs. My reasons follow.
Facts
The following facts are not in contention:
a)Mr Zangara has held a contractor licence in the class of carpentry since 26 June 2010.
b)On 30 August 2016, Mr Zangara pleaded guilty to and was convicted of 17 charges of supplying dangerous drugs – for which he was sentenced to two years imprisonment - and two charges of possessing dangerous drugs – for which he was sentenced to one year of imprisonment. The drugs included cocaine, ecstasy and steroids.
c)The terms of imprisonment are concurrent, with an immediate parole release date of 30 August 2016.
d)Accordingly, Mr Zangara has not served any time in prison, but has served approximately 18 months on parole, with a further period of approximately six months to serve.
e)Mr Zangara maintains that the drugs were purchased for his own use and for friends. It was not alleged that Mr Zangara undertook any drug transactions for the purposes of profit.
f)At the time of his arrest, the police found an amount of $3,400 in cash in his bedroom, along with a supply of cocaine and a bottle of steroids.
g)It was accepted by the sentencing judge, and the Commission accepts, that Mr Zangara had been drug-free from the time of his arrest until his sentencing.
h)Mr Zangara wrote to the Commission to disclose the convictions.
i)While on parole, Mr Zangara is subject to random drug testing. At the time of the hearing, Mr Zangara had not been found to have breached his parole conditions.
j)Mr Zangara’s use of illicit drugs commenced during his early high school years, resulting in him being expelled from a school for using cannabis, and continued and escalated after that time.
k)The offences for which he was convicted were committed over the period from 3 November 2014 to 17 February 2015 when Mr Zangara was around 26 years of age.
l)When taking drugs, Mr Zangara’s memory was affected and he performed sub-optimally on Mondays and Tuesdays after taking drugs on a weekend.
m)Since his arrest, Mr Zangara has attended numerous sessions over an extended period, both before and after his sentencing, with a clinical psychologist, Dr Carl Steindl, who assesses his risk of re-offending as low.
n)Mr Zangara has no other criminal convictions relating to the time before or since the drug-related convictions. Additionally, although the amount of building work he has carried out as a licensed contractor is limited, he has an unblemished record as a contractor, with no record of any complaints to the Commission about his work.
Based on Mr Zangara’s unchallenged evidence, I also find that he never took drugs while working and that none of the charges for supplying drugs were connected with this day-to-day carpentry work.
Statutory framework
Building contractor licences are granted under and governed by the Queensland Building and Construction Commission 1991 (QBCC Act)[1], the objects of which are stated in s 3 to include:
to regulate the building industry—
(i) to ensure the maintenance of proper standards in the industry; and
(ii) to achieve a reasonable balance between the interests of building contractors and consumers; and . . .
[1]All legislative references are to the QBCC Act unless otherwise indicated.
Aside from appropriate qualifications and experience, to grant a contractor licence the Commission must be satisfied that “the applicant is a fit and proper person to hold the licence”: s 31(1)(a).
Section 31(3) provides:
(3) In deciding whether a particular person is a fit and proper person to hold a contractor’s licence . . . the commission 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 . . .; and
(ca) if the person is an enforcement debtor under an enforcement order for an infringement notice offence for this Act—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.
Section 48(1) states:
The commission may suspend or cancel a licence if—
. . .(c) the licensee is convicted of an indictable offence . . .
. . . ; or
(j) the commission becomes aware of the existence of facts that, having regard to section 31(1)(a) or (2)(a), or 32(1)(g), or 32AA(1)(d), or 32AB(1)(d)—
(i) would allow the commission to refuse to issue the licence if it were now being applied for by the licensee; or
(ii) would have allowed the commission to refuse to issue the licence originally.
The Tribunal’s task
The Tribunal’s role is to hear and decide the review by way of a fresh hearing on the merits “to produce the correct and preferable decision”: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 20.
Mr Zangara does not dispute that, having been convicted of indictable offences, the Commission’s power to cancel his licence is enlivened. It is therefore a matter of discretion for the Tribunal, standing in the shoes of the Commission, to decide whether cancellation of the licence is the correct and preferable decision.
Strictly speaking, it appears that the power to cancel a licence is discretionary whether it is enlivened by s 48(1)(c) (the licensee being convicted of an indictable offence) or by s 48(1)(j)(i) (the Commission becoming aware of facts that would allow refusal of the licence if it were now being applied for – here the fact of the convictions and other matters raised by the Commission). However, where the latter case results in a conclusion that a licensee is not a fit and proper person to hold a licence, it is difficult to envisage a circumstance in which the discretion could be exercised other than to cancel the licence.
The Tribunal may confirm or amend the cancellation decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration with directions the Tribunal considers appropriate: QCAT Act, s 24(1).
Drug testing matters
Consistent with the approach of the sentencing judge, the Commission accepts, and I find, that Mr Zangara was drug-free in the period between his arrest and his sentencing.
Mr Zangara maintains that he continues to be drug-free and produced some drug testing certificates. These documents without further explanation were not capable of conclusively establishing that Mr Zangara had not, around the time of the tests, taken any of the drugs to which his convictions related. Mr McDougall, who appeared for Mr Zangara, attempted to provide an explanation of the testing certificates but the Commission did not accept this without expert evidence.
Given the Commission’s concern about the risk of Mr Zangara returning to drug use, I gave the parties the opportunity to make submissions after the hearing about whether the Tribunal might set aside the cancellation decision and substitute a decision not to cancel the licence but to impose a licence condition requiring Mr Zangara to submit to drug testing. Despite some initial enthusiasm at the hearing, Mr McDougall did not ultimately submit that that would be appropriate and the Commission opposed that course.
I also allowed time for additional evidence regarding the nature of the drug testing. An affidavit by a representative of the testing company was filed, but since the deponent could not depose to the actual testing carried out in relation to Mr Zangara, the evidence remained inconclusive.
Further, Mr Hill, who appeared for the Commission, indicated in written submissions filed after the hearing that, if the further evidence were to be relied upon, he would seek an opportunity to cross-examine the deponent. Balancing the statutory objectives of the Tribunal,[2] I do not consider that setting the matter down for further oral evidence on this issue is appropriate. Since the deponent had not carried out the testing, examination or cross-examination of the deponent would be unlikely to lead to the Tribunal being able to give any greater weight to the drug testing certificates.
[2]QCAT Act, s 3(b)
Mr McDougall, who appeared for Mr Zangara, informed me that drug testing certificates of this kind are commonly relied upon in criminal law matters for sentencing purposes and indeed that appears to have been the case in relation to Mr Zangara’s sentencing in the District Court. Be that as it may, in hearing this matter I was left with drug testing certificates but no explanatory evidence from the doctor or other professional responsible carrying out the actual testing of Mr Zangara in relation to the conclusions that could be drawn from the testing certificates in respect of Mr Zangara.
In the circumstances, I do not rely on the drug testing certificates as evidence for a finding that Mr Zangara has not taken any of the drugs since the time of his conviction.
In considering whether Mr Zangara has remained drug-free since his conviction, I am therefore left with:
a) The fact that, as the Commission accepts, Mr Zangara was drug-free between his arrest and conviction.
b) Dr Steindl’s evidence, which I accept, that Mr Zangara’s risk of re-offending is low.
c) The fact that Mr Zangara is subject to random drug testing during his probation and has not been found to have breached his parole by illegal drug-taking.
All of this evidence is capable of supporting a finding that Mr Zangara has remained drug-free since his conviction.
However, Mr Hill noted that one of the drug testing certificates, dated 7 April 2015, returned a positive result for opiates. Mr McDougall advised in submissions, but did not provide any supporting evidence, that common prescription medicines may cause such a result. This is consistent with the Commission’s reasons for decision, which noted that “preliminary research indicates that this result could possibly stem from the intake of legal substances”. It appears that neither the Commission nor Mr Zangara pursued this further, and nor was it taken up by the sentencing judge.
I had the benefit of observing Mr Zangara answering questions under cross-examination. My impression was that he endeavoured to answer questions honestly.
Having regard to that impression, but more particularly the factors mentioned above, and the absence of any contrary evidence, I accept that Mr Zangara has not taken illegal drugs since his conviction.[3]
[3]Whatever may have been the cause, the positive result for opiates predates Mr Zangara’s conviction.
The tax compliance issue
The Commission submits that, because cash was found with the drugs during the police search at Mr Zangara’s home, this indicates that the cash “was not obtained from lawful employment and was not destined for the Australian Tax Office”. By “not destined for the Australian Tax Office”, I take the Commission to mean that the amount would be unlawfully omitted from Mr Zangara’s tax return.
It would be reasonable in the circumstances to draw an inference that the cash related to Mr Zangara’s illegal drug purchasing and sale activities but that was not a profit-making venture. The cash may have been sourced from Mr Zangara’s after-tax income and held ready for a drug purchase. It may have come from friends for whom he intended to or had purchased drugs. None of these possibilities would indicate that the cash was assessable income for income tax purposes.
Dr Ken Arthur, Mr Zangara’s doctor, reported that Mr Zangara told him that he held the cash for his own personal use and to pay contractors. It does not follow that he did not properly account to the Tax Office for his income and expenses.
In the absence of other evidence, I am not prepared to find, as the Commission’s submission necessarily infers, that Mr Zangara was fraudulently lodging false tax returns.
The Asbestos Eliminator issue
Mr Zangara operates, through a company, a business that trades as “Asbestos Eliminator” and carries out asbestos removal work.
A licence is not required for asbestos removal work and the company does not hold a licence. However, Asbestos Eliminator holds itself out on its website as providing a full service of both asbestos removal and carpentry work.
Without a licence, the company cannot lawfully carry out carpentry work to a value exceeding $3,300.[4] There is no statement on the website that limits the carpentry work to jobs not exceeding $3,300 in value and the evidence indicates that carpentry jobs in excess of $3,300 in value have been carried out.
[4]QBCC Act, s 53C
As a consequence, the company, which I infer Mr Zangara controls, is in breach of the QBCC Act.
The steroid use evidence
Mr Hill submitted that Mr Zangara gave inconsistent evidence in relation to his steroid use.
In a report dated 14 August 2014, Dr Arthur stated, under a heading “Information provided by your client”:
He claimed the steroids (found by the police) had been in his drawer for over 12 months and related to a period of time when he had used them at the gym.
In the same report, Dr Arthur also recounted:
When asked about steroid use he stated: ‘there was a time a couple of years ago . . . I was really into my gym . . . had time up my sleeve . . . was training to bulk up . . . there were steroids around . . . did a couple of courses . . . but it bloated me and I didn’t look good . . .’
At the hearing, Mr Zangara gave evidence as follows:
[MR HILL:] You also used - - - ? --- [WITNESS:] Yeah
- - - steroids, didn’t you? - - - Look, I took it once so I happen to have, you know, a bit in my drawer when I – when the police came over and, yeah, sort of - - -
So that was the only time - - - ? --- - - - raided our family home
So that was the only time you ever took steroids? - - -It was – yeah, literally, I’ve done it – one prior to the – what they caught at the time. Yes
And a little later:
MEMBER: Could I just clarify one aspect of your evidence, please, Mr Zangara. It’s not a huge matter but I just wanted to clarify what you said in respect of steroids. Did you say that you had, on one occasion, taken steroids and also had steroids on hand when the police raided your home? - - - [WITNESS:] I – I – I – I tried steroids – I – years ago – like three, four – four years ago – and I happened to have that – like, the – like, it’s – it’s a – it’s a glass bottle. It – it was left in my drawer. It’d probably been sitting in there for a year, you know. I – it was just there. They found it. They looked through my drawer . . .
Out of this evidence, Mr Hill sought to identify what he called “a clear inconsistency” - in that the evidence referred to a single use of steroids but also use at a period at a gym “inferring more than one incidence of steroid use” – and invited me to take this into account in relation to Mr Zangara’s honesty and integrity.
I am not convinced that there is a substantial inconsistency in this evidence. A fair summary is that Mr Zangara said he tried steroids as part of his gym work but found they bloated him.
Is Mr Zangara a fit and proper person to hold a contractor licence?
In a different context, the High Court has said in relation to the expression “fit and proper person” that, depending on the nature of the activities the subject of the test, “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.”[5]
[5] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380
It is also important to bear in mind that the statutory question directs attention to whether Mr Zangara is a fit and proper person at the time the issue falls for determination. That is to say, I must decide whether I am satisfied that Mr Zangara is at the present time a fit and proper person to hold a contractor’s licence.
Further, the issue for determination is not whether Mr Zangara is a fit and proper person in the abstract. It is whether he is a fit and proper person to hold a contractor’s licence.
In considering whether Mr Zangara is a fit and proper person to hold a licence, I have regard to relevant factors specified in s 31(3) as extracted above:
a)Section 31(3)(a): Aside from the drug-related transactions, there is no evidence relevant to any “commercial and other dealings” in which Mr Zangara has been involved to suggest any concern with his standard of honesty and integrity in such dealings. His integrity is also supported by references. This factor weighs in favour of Mr Zangara being a fit and proper person.
b)Section 31(3)(b): Mr Zangara’s failure to ensure that the company he controls does not carry out carpentry work exceeding $3,300 in value without a licence puts his company in breach of statutory obligations. No reason for the failure to obtain a licence was offered by Mr Zangara. This factor weighs against Mr Zangara being a fit and proper person to hold a licence.
Aside from these particular factors set out in s 31(3), Mr Zangara’s commission of serious drug offences weighs heavily against him being a fit and proper person to hold a licence. Mr Zangara knew the conduct was illegal, but he nevertheless carried out the offending over an extended period.
While the conduct is not directly related to the context of a contractor licence, it was deliberate illegal activity and as such reflects poorly on his integrity. There is, in any case, an indirect connection in that a person affected by drug taking, even the after effects of weekend use, may pose a risk to other construction workers and clients.
If the matter fell for consideration shortly after the offending behaviour, I would have difficulty accepting Mr Zangara could be a fit and proper person to hold a licence.
Further, Mr Hill noted that the parole conditions provide an incentive for Mr Zangara to abstain from drug-taking during the parole period, but not after completion of his parole.
However, the offences were committed some three years ago. Mr Zangara has taken positive steps to overcome his addiction and modify his conduct. His clinical psychologist assesses his risk of re-offending as low. He has served approximately 18 months of his sentence without being found to have breached parole conditions. He has not been charged with or convicted of any other offences.
Additionally, Mr Zangara has an otherwise unblemished record in the construction industry. Having regard to the factors outlined in the previous paragraph, the community could have a high degree of confidence that the offending conduct will not re-occur.
While the matter is, in my view, finely balanced, weighing all of these matters up I consider that, assessed at this time, Mr Zangara is a fit and proper person to hold a licence.
Should Mr Zangara’s licence be cancelled?
Mr McDougall and Mr Hill each drew attention to cases in support of their submissions. However, no cases were identified that were directly or even closely comparable to this matter. I found the cases to be of limited assistance.
In Queensland Building and Construction Commission v Bloomfield & Anor [2015] QCATA 19, the Appeal Tribunal refused the Commission leave to appeal a decision of the Tribunal setting aside a decision to cancel Mr Bloomfield’s building licence following his conviction for the offence of extortion for which he was sentenced to two and a half years imprisonment, suspended after four months.
On the face of it, this seems to be a more serious offence than the offences for which Mr Zangara was convicted, as indicated by the longer sentence and serving of actual prison time. Additionally, the offence of extortion is arguably more closely related to the protective objects of the QBCC Act.
On the other hand, the period between the conviction of Mr Bloomfield in November 2010 and the Tribunal setting aside the cancellation of the licence on 25 June 2014 was longer than the period that has passed since the convictions in this case. Further, Mr Bloomfield’s conviction arose out of a single event rather than, as in this case, a pattern of offending.
As these factors indicate, the case is insufficiently comparable to be of much assistance in determining the correct and preferable decision in the current matter.
Mr Hill drew attention to a number of New South Wales cases in which the relevant tribunal or court considered that insufficient time had passed, since a conviction for an offence, for the applicant to be considered a fit and proper person to hold an occupational licence, in particular where the applicant had further time to serve under a good behaviour bond. These cases involved a variety of licence types, offences and periods of time since conviction for an offence.[6]
[6]Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284; McEnvoy v Director General of the Department of Fair Trading [2000] NSWLEC 183; Lloyd v Director General, Department of Transport [2001] NSWADT 201; Tirta v Ministry of Transport [2006] NSWADT 65; Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387. Also Fryar v QBCC [2014] QCAT 299, which again involved quite different circumstances to the current case.
Having regard to these decisions, I have carefully considered whether the fact that Mr Zangara still has a period of parole to serve means either that he cannot be a fit and proper person to hold a licence or whether in any case as a matter of discretion his licence should remain cancelled at least until the expiry of this period.
However, as the Senior Member constituting the Appeal Tribunal in Bloomfield pointed out:
There can be no fixed rules about an appropriate time between the offending conduct and the decision to cancel or suspend a licence; it is a matter for the decision-maker’s discretion, taking into account all the facts and circumstances.[7]
[7]Queensland Building and Construction Commission v Bloomfield & Anor [2015] QCATA 19 at [37].
Mr McDougall submitted that the Commission’s reasons for cancellation of Mr Zangara’s licence pre-suppose that a licensing contractor should not be using illicit drugs, which, he submitted, does not conform to any societal norm and indeed is contrary to societal norms in the building industry. No evidence was adduced in support of this submission. Absence such evidence, I do not accept that illegal drug-taking by persons engaged in the building industry accords with societal norms in Queensland.
I also give minimal weight to the financial impact of cancellation of Mr Zangara’s licence, which is an inevitable impact of licence cancellation.
Nevertheless, having regard to the matters outlined in relation to whether Mr Zangara is now a fit and proper person to hold a licence, and weighing up the additional matters outlined immediately above, I conclude on balance that Mr Zangara’s licence should not be cancelled. In so concluding, I have had particular regard to the seriousness of Mr Zangara’s offending over an extended period, but also his efforts to overcome his drug taking in the extended period that has now passed since the convictions and the evidence, which I have accepted, that his risk of re-offending is low. Weighing up all such considerations, while the matter is finely balanced, I consider the preferable decision is to set aside cancellation of Mr Zangara’s licence.
Mr Zangara will no doubt be advised that, if further offending were to occur in the future, the history set out in these reasons would form part of the context against which the Commission would consider whether to again cancel his licence.
Costs
The starting point is that each party bears their own costs in proceedings in this Tribunal: QCAT Act, s 100. The Tribunal may only make an order for costs if the Tribunal “considers the interests of justice require it to make an order”: s 102(1).
Section 102(3) lists a number of factors that the Tribunal may have regard to in considering whether to make a costs order. Aside from s 102(3)(e), nothing in this case raises particular issues for consideration in respect of those factors.
Section 102(3)(e) allows the Tribunal to have regard to “the financial circumstances of the parties to the proceedings”. Undoubtedly, the Commission’s resources are more expansive than Mr Zangara’s, although they are not unlimited. The evidence established that Mr Zangara’s assets include a not insignificant amount of cash at the bank. He has the means to readily meet his own costs.
Even without taking into account the s 102(3(e) factor, I would conclude that the interests of justice do not require a costs order. Mr Zangara engaged in serious criminal behaviour over an extended period. In the context of a licensing regime founded on a requirement that a licensee must be a fit and proper person to hold a licence, he knew or should have known that such conduct could put his licence at risk. Although I have taken a different view, it was not unreasonable for the Commission to take the decision to cancel Mr Zangara’s licence and to maintain that position before the Tribunal.
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