Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kember v Commissioner for Fair Trading [2023] NSWCATOD 60 Hearing dates: 4 May 2023 Date of orders: 11 May 2023 Decision date: 11 May 2023 Jurisdiction: Occupational Division Before: T Simon, Principal Member Decision: (1) The decision under review is set aside. (2) In substitution for that decision, the Tribunal grants the applicant a contractor licence in the categories of Carpenter, General Concretor and Kitchen Bathroom Laundry Renovator "general building work" under the Home Building Act 1989 (NSW) (3) The Commissioner is to grant the individual endorsed contractor licence to the applicant within 23 May 2023. Catchwords: ADMINISTRATIVE LAW - REVIEW OF DECISION BY EXTERNAL DECISION-MAKER — decision to refuse contractor licence pursuant to the Home Building Act 1989 (NSW) – fit and proper person Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Firearms Act 1996 (NSW) Home Building Act 1989 (NSW) Weapons Prohibition Act 1998 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 Lal v Director-General, Department of Transport [2001] NSWADT 74 R v Kember [2020] NSWDC 101 Category: Principal judgment Parties: Shane Kember (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Legal, Corporate Services, Department of Customer Service (Respondent) File Number(s): 2023/49805 Publication restriction: Nil Reasons for Decsion 1. This is an application for review of a decision made by the Commissioner for Fair Trading (the Commissioner) refusing an application for the issue of a contractor license in the categories of Carpenter, General Concretor and Kitchen Bathroom Laundry Renovator. 2. The Tribunal has decided to set aside the decision of the Commissioner and grant the application for a contractor license to Mr Kember. Material before the Tribunal 1. The applicant relied on: 1. A copy of an indictment (Exhibit 1) 2. Email from David Adams (Exhibit 6) The respondent relied on: 1. Documents lodged pursuant to s58 of the Administrative Decisions Review Act 1997 1997 (ADR Act) (Exhibit 2) 2. Email from the applicant to the Tribunal dated 18 July 2022, which is a character reference from Mr Allan Cox (Exhibit 3) 3. Email from the applicant to the Tribunal dated 18 July 2022, which is a building reference from Mr Allan Cox (Exhibit 4) 4. Email from the applicant to the Tribunal dated 18 July 2022 at 7.56pm (Exhibit 5) 1. The applicant gave sworn oral evidence at the hearing. The respondent also provided written submissions with their documents and the parties made closing oral submissions at the hearing. Background 1. On 1 September 2016, Mr Kember was arrested and charged with offences pursuant to the Firearms Act 1996 (NSW) and Weapons Prohibition Act 1998 (NSW) (the firearms offences). 2. On 14 February 2020, Mr Kember was sentenced to 2 years and 9 months' imprisonment, with a non-parole period of 1 year and 5 months for the firearms offences. The non-parole period commenced on 14 February 2020 and expired on 13 July 2021. The parole period commenced on 14 July 2021 and ended on 13 November 2022. 3. On 22 October 2021, Mr Kember lodged an application for a licence in the category of 'general building work' with the Commissioner (the first application). The application was refused, and Mr Kember made an application for administrative review of that decision to the Tribunal. Mr Kember sought to later withdraw that application and the proceedings were dismissed by the Tribunal on 10 August 2022. 4. On 28 November 2022, Mr Kember lodged an application for a contractor licence in the categories of Carpenter, General Concreter and Kitchen Bathroom Laundry Renovations. In a Refusal Notice dated 18 January 2023 Mr Kember was advised that the application was refused for the following reasons: 25.1 The offending behaviour demonstrated gives rise to NSW Fair Trading having concerns regarding the Applicant's fitness and propriety to hold a license under the HBA. These concerns are compounded with the view that insufficient time had passed since the conclusion of the parole period on 13 November 2022. 25.2 NSW Fair Trading has a duty of care towards consumers who would enter into contracts with an applicant and must consider a person's character, honesty and integrity when assessing applications to obtain an authority. 25.3 It has been determined that the Applicant was not a fit and proper person to hold a contractor license. Accordingly, the application was refused under sections 20(1 )(a) and 20(1 A) of the HBA. 1. It is that decision which is the subject of this administrative review application. 2. Mr Kember subsequently applied for internal review of the decision on 31 January 2023. The outcome of the internal review was to affirm the decision to refuse to issue the contractor licence. Consideration 1. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states that the ADR Act provides for the circumstances in which the New South Wales Civil and Administrative Tribunal (NCAT) has administrative review jurisdiction over a decision of an administrator. Pursuant to s 9(1) of the ADR Act, NCAT has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to NCAT for administrative review under the ADR Act. 2. Section 83B (1) of the Home Building Act 1989 (NSW) (HBA) allows NCAT to administratively review a decision to refuse to issue a contractor licence under the ADR Act. 3. In accordance with s 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any law, and may exercise all relevant functions conferred or imposed on the Commissioner. In determining the application, the Tribunal may affirm, vary or set aside the decision and make a decision in its place, or set aside the decision and remit the matter for reconsideration by the Commissioner in accordance with any directions or recommendations of the Tribunal. 4. Rule 24 of the Civil and Administrative Tribunal Rules 2014 (NSW) relevantly provides the following: … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made- (a) in the case where enabling legislation specifies the period within which the application is to be made-within the period specified, or (b) in any other case-by the end of the default application period. (4) The default application period for the purposes of subrule (3)(b) is- (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997-the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act or … 1. Section 53(9) (a) of the ADR Act relevantly provides that an internal review is taken to be finalised when the applicant is notified of the outcome of the review. 2. The Internal Review Determination is dated 8 February 2023 and was included with the administrative review application. Mr Kember lodged the administrative review application with the NCAT on 14 February 2023. 3. In that regard the application was made within 28 days from when the internal review was taken to be finalised. Relevant Qualifications and Experience 1. Section 33C(1)(b)(i) of the HBA states that an endorsed contractor licence must not be issued unless the Secretary is satisfied that the applicant satisfies the requirements of section 33D of the HBA. 2. Section 33D(1)(b) of the HBA states that a supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required. 3. The Commissioner confirmed that the applicant has the relevant qualifications and experience to be eligible for the issuing of the contractor licence in the category for which he is applying. Fit and Proper Person 1. Section 20(1)(a) of the HBA specifies that the Secretary must reject an application for a contractor licence if the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence. 2. Section 20(1A) of the HBA specifies that without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty, and integrity. 3. The Commissioner submits that Mr Kember is not a fit and proper person to hold a licence because of the firearms offences for which he was charged in 2016. 4. The sentence in relation to those firearms offences was determined on 14 February 2020: R v Kember [2020] NSWDC 101. Mr Kember received an aggregate sentence of 2 years and 9 months imprisonment and a non-parole period of 1 year and 5 months. 5. The sentencing remarks provided by Haesler SC DCJ set out a background to the offence at [1] – [4]: 1 On 1 September 2016, Shane Kember was arrested and charged with a number of offences pursuant to the Firearms Act 1996 and Weapons Prohibition Act 1998. He was also charged with other serious offences which were later discontinued. He said he was not guilty to all matters. 2 The trial was listed at Wollongong District Court on 20 May 2019. The parties properly continued to discuss and negotiate the matters pending trial. 3 On 14 May 2019, the prosecution sought leave to present a fresh Indictment. Leave was not opposed. Kember then said he was guilty of two offences - Count 1: supply a (Ruger) pistol to person unauthorised to possess it : s51(1A) (c) Firearms Act – maximum penalty 20 years imprisonment- standard non-parole period 10 years, and Count 2: possess a prohibited weapon (a silencer) without a permit- maximum penalty 14 years imprisonment: 7(1) Weapon's Prohibition Act. 4. Kember also admitted his guilt to and asked that; seven (7) Possess unauthorised firearm offences and one (1) Possess ammunition without holding a licence, permit or authority offences, be taken into account when I sentence for the supply firearm offence, on a ss 32 & 33 Crimes (Sentencing Procedure) Act 1999, Form 1. It is appropriate in all the circumstances I do so. 1. In relation to count 1, Haesler SC DCJ concluded at [42]: 42 Based on the findings noted above in the telephone intercepts, Kember's calls in particular and, in particular, the evidence of Lawrence, I find beyond reasonable doubt: (1) In August 2016 Kember arranged with Ayre for a friend's .38 pistol parts to be re-blued. [Re-blueing is a process by which the exterior metal parts are cleaned and a protective layer is added to them.] (2) Ayre could not get the job done in time. (3) Through Ayer's contact, Lawrence, an opportunity arose to swap the non-operational .38 for a working .22 Ruger. (4) Kember agreed to the swap on his friend's behalf. (5) Lawrence delivered the Ruger to Kembla Grange on 31 August 2016. (6) There it was tested fired in Kember's presence. I note Kember has a pistol range at his house: Mr Austin's statement, Exhibit 1 paragraph 11. (7) The Ruger was given to a third party. (8) Kember was present while this transaction occurred (9) That third party left the property with the Ruger. 1. In relation to Count 2 and Form 1, Haesler SC DCJ stated at [43] – [48]: Agreed Facts Count 2 and Form 1 43 There are agreed facts in relation to count 2, the possess prohibited weapon matter. They relate to the execution of the search warrant and what was found. The police were shown a safe in the lounge room of Kember's home. Kember provided them a key to it. In that safe police found seven rifles, which are described in the facts. 44 The firearms were registered in the name of the offender's estranged partner. She was the holder of a New South Wales firearms licence. She did not use any of the firearms that were in the safe. She did not arrange to acquire any of those firearms; their purchase was arranged by the offender. They were registered in her name but she did not live at the premises, having moved out in May 2016. The offender, it is agreed, was not authorised to possess firearms, weapons or ammunition in the state of New South Wales. His firearms licence in New South Wales was revoked on 11 April 1996. 45 Police found ammunition at various locations at the property, including in a safe in the garage, on the top of the safe in the lounge room, a table in the house and a beanbag on the lounge room floor. Agreed Facts Count 2 46 In a small shed towards the rear of the premises police located one homemade silencer which was painted in camouflage pattern. It is accepted that a silencer is a prohibited weapon. Assessing seriousness of Count 2 47 The silencer was not secured. Of itself it is not a dangerous item but it has potential to be dangerous. It was not a toy. It was made to be used. There is no suggestion that it was made to be used for anything other than as a tool in the hunting of wild animals. 48 Had this matter been the only matter charged, I accept it would, in all likelihood, have been dealt with in the Local Court and, in all likelihood, a full-time custodial sentence would not have been imposed. But I note that it was sent to this Court and that it carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years. 1. However, in relation to assessing the seriousness of supplying the pistol, Haesler SC DCJ stated that the offence was a significant breach of the Firearms Act and in Mr Kember's circumstances, the facilitating of the transfer of the pistol created a high risk to public safety: [49] – [51] 2. At [90] – [94] of the sentencing remarks, Haesler SC DCJ concluded the following: I return, without repeating the objective seriousness of the offence and my findings in relation to it, to the factual dispute. It has been resolved primarily in favour of the version advanced by the Crown. The offender chose to involve himself knowingly in the supply of a Ruger pistol. He was an active participant in that supply and he was present and facilitated the supply at his premises. The purposes of sentencing so far as Firearms Act matters have been summarised and repeated in many cases. Superior courts have highlighted time and time again that it is necessary to repeat and keep repeating how serious the community views such matters and to reinforce what is said by the imposition of custodial sentences. Substantial weight needs to be given to both general and personal deterrence. I am satisfied that the long delay in resolving these matters and having had it hanging over him the matter for sentence has had a personal deterrent effect but Kember chose to act in complete defiance of his legal obligations, which he, as a firearm enthusiast must have known well. The community has determined that trade in firearms must be strictly regulated. Any breach of the law is regarded as a very serious offence that must be reflected in the sentences imposed: Howard v R [2004] NSWCCA 348, at [66]. A Court, by the severity of the sentences imposed, has to give proper weight to the guidance to which I have earlier referred. Mitigating factors will and should be taken into account but they can only go so far. Here there is a strong and powerful case for a finding, and a significant one, of special circumstances. Here there is a case for a total sentence of less than three years but I cannot do justice to how objectively serious this offence was by imposing a sentence other than a full‑time custodial sentence. 1. In his application for the contractor licence Mr Kember disclosed the firearms offence and in explanation of the circumstances which led to the offences, stated, "I put two people in touch with each other who then did a trade for an illegal firearm". Mr Kember declared he was jailed from 14 February 2020 to 13 July 2021 and that there were no parole conditions at that time of the previous application. 2. In written submissions the Commissioner had indicated that a search of NSW Police records showing Mr Kember's criminal history from 14 February 1996 to the date of the internal review decision listed several offences which the Mr Kember neglected to specify on the Form 3. However, at hearing it was conceded that there was no requirement to specify the offences on the form. 3. The Commissioner submits that that Mr Kember's overall criminal convictions draw into question his fitness and propriety regarding his character, honesty and integrity. They submit that at no time has Mr Kember expressed remorse for his conduct or conveyed an assurance that there will be no reoccurrence of the behaviour. The Commissioner also submitted that Mr Kember did not submit any references attesting to his character or standing within the community and that whilst Mr Kember completed his parole period on 13 November 2022, there had not been sufficient opportunity to demonstrate his fitness and propriety to hold an authority without being bound by the constraints imposed by parole conditions. 4. The expression 'fit and proper' was considered in Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 and at [156] – [157] 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 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 ... 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. 1. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. They went on to say at 388: 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. 1. For the reasons that follow, I am satisfied that Mr Kember is a fit and proper person to hold a contractor licence. 2. Mr Kember states that he only withdrew the first application for administrative review based on the understanding that the Commissioner would grant a fresh application after Mr Kember's parole period ended on 13 November 2022. The Commissioner submits that Mr Kember was not told he would be granted a license, but rather that he could apply for a fresh one. While I accept that Mr Kember may have misunderstood that to mean he would be granted the license, the written correspondence from the time indicates that Mr Kember was told he could make a fresh application when his parole period ended. There was no promise that it would. In any case, in relation to the administrative review application before me, I must look at all the circumstances and determine whether Mr Kember is a fit and proper person to be granted a license. 3. Mr Kember made submissions that at present he is only able to contract for jobs under $5,000. However, financial hardship that may be occasioned by the decision is not relevant to the assessment of a person's fitness and propriety (Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47]). 4. A printout of Mr Kember's criminal history has been provided with the s 58 documents. The criminal history discloses the following: * In 1994 a low range drink driving charge was proved and dismissed. * In 1996 Mr Kember was fined a total of $100 in relation to two stalking charges. * In 2001 Mr Kember received a s 10 bond for contravention of an Apprehended Domestic Violence Order. * In 2003 Mr Kember received a total of $800 in fines and a s 9 bond in relation to assault charges. He was also ordered to obey reasonable directions for counselling, educational development or drug and alcohol rehabilitation. * In 2005 Mr Kember was fined a total of $600, plus $63 for court costs in relation to charges for having custody of an offensive implement in a public place and use of offensive language in/near a public place/school. 1. The representative for the Commissioner conceded at the hearing that Mr Kember's criminal history prior to the firearms offences was not significant. I am also of the view that the penalties imposed in relation to the offences indicate that they were not significant, and in addition, it has been some time since those offences were committed. Further, the offences do not primarily involve offences of dishonesty. 2. Mr Kember presented to the Tribunal as being sincere and stated he had served his time in relation to the firearm offences and having served that time he wanted the opportunity to be able to move on with his life. 3. The sentencing remarks cited above demonstrate that in relation to firearms offences there was a strong and powerful case for a finding of special circumstance which warranted a total sentence of less than three years. 4. At issue is whether sufficient time has elapsed for the Tribunal to be satisfied that Mr Kember is rehabilitated and is a fit and proper person to hold a licence now. The Commissioner submits that not enough time has passed since Mr Kember completed his parole in order to determine whether he is a fit and proper person to hold the license. 5. However, I also consider relevant that Mr Kember was charged with the firearms offences over 6 years ago. As was acknowledged in the sentencing remarks, there was a significant period between the time that Mr Kember was charged and the sentencing. Mr Kember's criminal history does not disclose any offences since he was charged with the firearms offences. In my view, taking into consideration that a period of 6 years has passed since he was charged with the firearms offences, and 6 months since the end of parole, sufficient time has elapsed for the Tribunal to be satisfied that Mr Kember is rehabilitated and is a fit and proper person to hold a licence. 6. Further, in an email dated 9 March 2022, from Corrections Officer Daniel Briggs its states: Shane please see the attached copy of your Parole Order. As discussed your Parole Order was suspended on 24/8/21 as a result of your low risk of reoffence and overall compliance. This means you are not required to be supervised by Community Corrections, however, are still subject to the standard and suspension conditions of your Parole Order (see attached) Should NSW Fair Trading wish to contact me, please provide them with my email address, as this is the best way to contact me. 1. That email clarifies that there remained standard conditions in relation to the Parole Order, but that the parole supervision conditions were otherwise suspended. Further the suspensions were because Mr Kember was a low risk of reoffending and had overall complied. 2. The email of the parole officer provides confidence that Mr Kember is unlikely to reoffend. 3. At the hearing Mr Kember provided an email from the civil coordinator at Wollongong City Council which attests to the level of service he provides and makes recommendations in relation to his work. The coordinator speaks of Mr Kember having undertaking work and having delivered an extremely high level of service. He also states that the 'level and quality of the work delivered by Shane Kember and his company was as good as I have ever seen'. The coordinator also states: I would have no hesitation in personally recommending Shane for any works he applied for. 1. The email demonstrates that there is good reason to have confidence that Mr Kember will deal with consumers with honesty and integrity. 2. In summary, I am satisfied that Mr Kember has the relevant qualifications and experience to be eligible for the issuing of the contractor licence in the category for which he applied, and I am satisfied that Mr Kember is a fit and proper person to hold the contractor licence because: 1. The criminal history prior to the firearms offences is not significant 2. Mr Kember is unlikely to reoffend. 3. Mr Kember is likely to deal with consumers with honesty and integrity. Conclusion 1. For the reasons outlined above, the correct and preferable decision is to set aside the decision of the Commissioner and grant Mr Kember's application for his contractor's licence. Orders 1. The Tribunal makes the following orders: 1. The decision under review is set aside. 2. In substitution for that decision, the Tribunal grants the applicant a contractor licence in the categories of Carpenter, General Concretor and Kitchen Bathroom Laundry Renovator "general building work" under the Home Building Act 1989 (NSW) 3. The Commissioner is to grant the individual endorsed contractor licence to the applicant within 23 May 2023. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2023