Amour v Queensland Building Services Authority [2012] QCAT 360

CITATION: Amour v Queensland Building Services Authority [2012] QCAT 360 PARTIES: Troy Anthony Amour v Queensland Building Services Authority APPLICATION NUMBER: OCR178-11 MATTER TYPE: Occupational regulation matters HEARING DATE: 23 December 2011 HEARD AT: Brisbane DECISION OF: Andrew McLean Williams, Member DELIVERED ON: 12 March 2012 DELIVERED AT: Brisbane ORDERS MADE: Application 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 27 June 2011 refusing the Applicant’s application for a QBSA contractor licence in the class of 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 class of Painting and Decorating; and (3) The Applicant is to be granted a QBSA Contractor Licence, in the category of Painting and Decorating. CATCHWORDS: Occupational regulation – building industry – “fit and proper person” requirement for applicant to hold a building contractor‟s licence – application arising in circumstances where the applicant had served a term of actual imprisonment for stealing offences – impact of imprisonment on assessment of propriety Queensland Building Services Authority Act 1991, s 31 -- 1 of 10 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Troy Anthony Amour, in person RESPONDENT: Mr Simon Formby (QBSA in-house counsel) REASONS FOR DECISION Preliminary [1] On 20 July 2011, Mr Troy Anthony Amour commenced this application before QCAT by filing an Application to Review a Decision (Form 23) in the QCAT registry. Mr Amour seeks to review a decision made by the Queensland Building Services Authority (QBSA), on 27 June 2011. [2] By letter dated 27 June 2011, the QBSA notified Mr Amour that his application for a QBSA contractor licence in the class of painting and decorating had been refused, on the basis that it had been determined that Mr Amour was not a fit and proper person to hold such a licence. This decision was one made in accordance with s 31(1)(a) of the Queensland Building Services Authority Act 1991 („the Act‟). [3] In reaching that determination, and in accordance with s 31(3)(d) of the Act, the original decision maker had regard for the fact that Mr Amour had served an actual term of imprisonment in Victoria, following upon his conviction in that state on multiple charges of burglary, theft, and attempts to commit similar offences. [4] Decisions by the QBSA pursuant to s 31 of the Act are “reviewable decisions”,1 for purposes of s 24 of the Queensland Civil and Administrative Tribunal Act 2009 („the QCAT Act‟). [5] Section 20 of the QCAT Act provides that the purpose of a review of any reviewable decision is to produce the correct and2 preferable decision, and that QCAT is to conduct the review by way of a fresh hearing, on the merits. In light of s 20, the question of Mr Amour‟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 me whilst conducting the review hearing; yet as if I were „standing in the shoes‟ of the original decision maker: QCAT Act, s 24(2)(a). The issue now is not whether on the material that was originally before the QBSA that the applicant was a fit and proper person, but whether on the material now before the review hearing the applicant is a fit and proper person; and thus entitled to a contractor‟s license: Builders‘ Licensing Board v Spurway Constructions (Sydney) Pty Ltd 135 CLR 616; Alford v Auctioneers and Agents Committee [2002] QDC 130. 1 QBSA Act, s 86(1)(a). 2 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. -- 2 of 10 -- 3 [6] A review hearing was convened at Brisbane on 23 December 2011. On that occasion oral evidence was received from the Applicant, as well as from Ms Carol Leung, a compliance officer employed by the QBSA. It was Ms Leung whom had assessed Mr Amour‟s original application for a contractor‟s license. Ms Leung‟s statement became exhibit one in the review proceedings. Ms Leung‟s statement of reasons (made on 6 September 2011) as to why the QBSA had originally declined Mr Amour‟s application for a contractor‟s licence on 27 June 2011 became exhibit two in the review hearing. [7] Mr Amour relied upon a report from a clinical psychologist, Ms Margaret McDonald, dated 21 December 2011, as well as a Magistrates Court of Victoria receipt together with some Australia Post receipts, all indicating a series of payments into the registry of the Victorian Magistrate‟s Court, paid by Mr Amour as partial restitution on behalf of the victims of Mr Amour‟s criminal offences. The aforementioned receipts became exhibit three in these proceedings, and Ms McDonald‟s psychological report became exhibit four. [8] Each of exhibits three and four are matters of fresh evidence, that were not available when Ms Leung had made the original QBSA decision. None of this new evidence was opposed or contradicted by the Respondent, and Ms McDonald was not required for any cross-examination. In addition to those items of new evidence, Mr Amour placed reliance on a bundle of documents that had been previously filed by him in the QCAT registry, prior to the review hearing. These documents include extensive extracts from Mr Amour‟s Victorian prison file, and a number of personal references each attesting to his good character, in circumstances where most of those referees also acknowledged an awareness that Mr Amour has a criminal record, and is now an ex-prisoner. Factual Background [9] The factual backdrop to these review proceedings was obtained from Mr Amour during his oral testimony. The story given by Mr Amour under oath was consistent with the clinical history recorded as part of the report dated 21 December 2011 prepared by the clinical psychologist, Ms McDonald (exhibit 4). [10] The Applicant is the oldest of three siblings, having been born in April 1973, and is thus now nearly 39 years of age. Mr Amour was both born and raised on the Redcliffe Peninsula, north of Brisbane. [11] Although reported as having achieved quite well academically, Mr Amour nonetheless left school in grade 11, in order to join his father and grandfather in their painting business, as an apprentice painter and decorator. Later, Mr Amour left their employ and went to work for an uncle, who was also a painter. -- 3 of 10 -- 4 [12] In about 2000, and whilst still on the Redcliffe Peninsula, Mr Amour met Katrina, a single mother with two children who had recently relocated to Redcliffe from Bendigo, Victoria. They became friends. [13] Approximately six months after meeting Katrina, Mr Amour entered into a de facto relationship with her. Sometime in 2005, Katrina decided to re-locate back to Bendigo, so as to be closer to her own family. Mr Amour also re- located to Bendigo with Katrina at that time, whereupon he quickly found suitable employment. However, almost immediately after arrival in Bendigo, Mr Amour‟s relationship with Katrina deteriorated, and the couple separated. At that stage Mr Amour moved into alternate rental accommodation. [14] Mr Amour told the Tribunal that his relationship with Katrina soured as the result of conflict between himself and Katrina‟s teenage daughter, a matter that only fully emerged once Katrina was back in her home environment in Bendigo; and because he and Katrina had what then emerged to be irreconcilable views regarding parenting issues. Some time shortly after that break-up, and because of his not having any family or other connections in Victoria, Mr Amour resolved that he should return to Queensland. With that intention in mind, Mr Amour gave up his employment and rental accommodation, and packed his car for the return trip to Queensland. [15] When Mr Amour went to say his final goodbyes to Katrina she pleaded with him to stay, in an effort to work things out. Mr Amour testified that he still had strong feelings for Katrina and felt compelled to acquiesce to her entreaties for him to stay with her in Bendigo. Mr Amour then moved back in to live with Katrina. Unfortunately, further conflict manifested within only a few short days. Mr Amour then moved out again, and this time was forced by these events to sleep in his car, parked on the roadside. [16] Rather than renewing his resolve to return to the quietude of Queensland, the evidence reflects Mr Amour then entering into a period of great mental crisis. By now, Mr Amour was utterly transfixed by indecision. Torn, on the one hand, by his sense of obligation and affection towards Katrina, yet otherwise confronted by the harsh reality of his being homeless and jobless in provincial Victoria, completely disconnected from any form of social or family support. At this juncture Mr Amour spiralled into depression, quickly reaching the point where he had sold his car and other possessions, and was instead living on the streets, sleeping wherever the night should find him, and consorting with others in similar circumstances. [17] This rootless miasma led to Mr Amour experimenting with (and quickly becoming addicted to) speed,3 and otherwise filling the void in his life by his gambling on poker machines. With no other means of financial support (other than subsistence dole payments), Mr Amour reports then turning to property crime, in order to feed his – by now – rapacious twin addictions. [18] Mr Amour cannot be sure quite how long his crime spree persisted. He estimates a period of several months, ending only on the day of his final arrest by the Victoria Police. He recalls being high on speed all of the time, 3 Amphetamine. -- 4 of 10 -- 5 throughout this dark period. He recalls poker machine gambling, although not every day, still on most days. He explained that whilst living rough on the streets of Bendigo he would generally find himself at night-fall in industrial areas, and his break and enter crimes were spur of the moment, opportunistic events, perpetrated under the cover of darkness. All of his crimes were committed on commercial premises. Mr Amour candidly told the Tribunal that he would steal just about anything that he could find and carry, and that could be fenced for cash; or immediately exchanged for drugs. As became clear from his testimony this was not an epoch that Mr Amour especially wished to recall, and his recounting of it was marked by obvious shame and quite some embarrassment. Nonetheless, Mr Amour gave his evidence about these things in an unembroidered, creditable manner. [19] When eventually apprehended by the Victoria Police, Mr Amour told the Tribunal that he felt overwhelming relief that his spiral towards oblivion had been halted. When questioned by the police Mr Amour was fully cooperative, and he admitted to every offence that was put to him by the investigating officers. [20] On 2 March 2006 in the Magistrates Court of Victoria at Melbourne, Troy Amour was convicted upon his own confession of 24 counts of burglary, together with 2 counts of stealing, and 2 counts of attempting to commit an indictable offence. Mr Amour was then sentenced to serve an aggregate custodial term of two years and six months, with credit given for the 98 days previously spent by him incarcerated on remand, awaiting that court appearance. [21] Substantial extracts from Mr Amour‟s Victoria Corrections file have made their way into the documentary materials filed in the QCAT Registry. I have had careful regard for all of this material. The prison extracts indicate Mr Amour to have been what can only be described as a model prisoner, who was fully cooperative and compliant with the Victorian Correctional Authorities, successfully participating in a number of drug, alcohol, and gambling addiction programs, including some that were apparently voluntary. It would also appear that Mr Amour transitioned fairly quickly through the prison security classification system, attaining an employed position of trust, as a storeman/fork lift driver within the Marngoneet Prison. This was a trustee position that included the ability for Mr Amour to drive his fork lift unsupervised, including out the prison gate to a warehouse facility, located somewhere outside the perimeter of that prison. Mr Amour told the Tribunal that at the time he was the only prisoner within the Marngoneet Correctional Facility to have this privilege. Mr Amour also told the Tribunal, and I accept, that he was part of a detail of trusted “low security” prisoners sent out into the community to assist in the emergency response to the Victorian bushfires. [22] Mr Amour was approved for parole by the Victorian correctional authorities after serving the minimum required period of actual imprisonment. As part of an interstate agreement he was then transferred to Queensland, returning to live at Redcliffe, residing with his mother. Having returned to a familiar supportive environment Mr Amour was also able to immediately secure -- 5 of 10 -- 6 appropriate employment, returning to his original vocation as a painter and decorator. [23] Throughout the parole period Mr Amour was subject to supervision within the community by the Probation and Parole Division of the Queensland Department of Corrective Services. It is significant to record that this supervision included regular random drug testing. It is, I think, a further matter of significance that on each such occasion Mr Amour returned a negative result. [24] Mr Amour also told the Tribunal, and I accept, that he has not gambled or used any form of illicit substance since the date of his arrest, in Victoria, in late 2005. So too, the available evidence attests that Mr Amour was fully cooperative and compliant with all of the requirements imposed on him by Queensland Corrective Services, whilst he was on parole. [25] Mr Amour was questioned at some length as regards his restitution payments. Under oath he informed the Tribunal that he regards this to be a legal and moral obligation and, now that he has “found his feet” again financially, he has commenced the process of making full financial restitution towards his former victims in Victoria. Mr Amour was candid enough to acknowledge that the process of making full restitution will likely take him several further years, yet he is nonetheless committed to that goal. [26] Mr Amour‟s parole order expired at midnight on 25 May 2008. From the perspective of the criminal justice system he is therefore a free man, fully and successfully re-integrated back into the community. Mr Amour has not been subject to any form of parole restrictions for a period now coming up to nearly four years. Nor has he been the subject of any adverse police attention since late 2005. It is also to be observed that Mr Amour waited until nearly three years4 after the expiration of his period of community supervision, before making his application to the Respondent for a QBSA contractor licence. [27] Currently, Mr Amour is working as a trade-qualified employee painter and decorator. He has re-partnered, and now also has an infant daughter, the product of that relationship. Mr Amour and his partner reside on acreage, near to Brisbane. [28] Mr Amour told the Tribunal – and again I accept – that he derives great pleasure from his trade, obtaining immense satisfaction from the challenge of meeting the high standards of workmanship that he imposes on himself. At the same time, Mr Amour enjoys assisting clientele with the creative aspects of making various aesthetic and finish choices. Outside working hours Mr Amour‟s leisure time is centred on home life. He no longer frequents licensed establishments with poker machines. He describes himself as now being a very light social drinker, only. 4 The Application for a contractor licence was made on 15 April 2011, approximately 2 years and 11 months after the end of his parole period. -- 6 of 10 -- 7 [29] Of more recent times, and so as to provide a better future for his spouse and infant daughter, Mr Amour has warmed to the possibility of venturing out on his own as licensed painter and decorator, rather than continuing to work as an employee of another licensed painter. Indeed, Mr Amour has been encouraged towards that objective by a number of QBSA registered builders, each of whom are intent to sub-contract with him, in the future. With this aim in mind, Mr Amour has now registered a business name, „Amour Professional Painting Services‟ and, on 15 April 2011, Mr Amour made application to the QBSA to be registered as a contractor. As is recorded in the opening paragraphs of these reasons for decision, that application was rejected, on the basis that Mr Amour was then deemed not to be a “fit and proper person”: one of the essential pre-conditions for obtaining a contractor‟s license in Queensland. Relevant Law [30] As the Applicant is an individual rather than a company,5 this application falls to be determined within s 31(1) of the QBSA Act. Section 31(1) of the QBSA Act 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 to a licence of the relevant class; and (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.‖ (The emphasis is not in the original, and has been included.) [31] All of the matters adumbrated in sub-sections (b)-(h) (inclusive) in s 31(1), have been (or can be) satisfactorily met by Mr Amour. That much has been conceded by the Respondent. I find that I am satisfied as regards each of the various matters required by s 31(1)(b)-(h) of the Act. 5 Corporate applications being determined in accordance with s 31(2). -- 7 of 10 -- 8 [32] Focus must return 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.‖ [33] None of the matters specified in subsections (a)-(ca) in s 31(3) of the Act are enlivened in this case. However, the original decision maker formed the view that the fact of Mr Amour‟s previous imprisonment for property offences in Victoria was another “relevant factor” for purposes of s 31(3)(d) of the Act. I concur that this is a matter of relevance. However, the fact of that previous imprisonment does not serve as an automatic negative determinant in the assessment. As becomes clear from the authorities traversed further below in these reasons for decision, the fact of that imprisonment – in and of itself – is but one factor. “All of” the known relevant circumstances going towards the Applicant‟s fitness and propriety as a prospective holder of a QBSA contractor‟s licence must still be considered, because of the use of the word “any” in s 31(3)(d). Fitness and Propriety [34] The expression “fit and proper person” is one often used in statutes concerned with licensing and occupational regulation. The concept is a broad one, with the purpose behind that breadth being so as to give the widest possible scope for judgement (and indeed, if necessary, for rejection) in each individual case. [35] The classic statement as to its connotation is often taken from Hughes & Vale Pty Ltd v New South Wales (1955) 93 CLR 127 at 156-7 (per Dixon CJ, McTiernan and Webb JJ), where the High Court said: ‗‘Fit‘….with respect to an office is said to involve three things, honesty, knowledge and ability: ‗honesty to execute it truly, without malice affection or -- 8 of 10 -- 9 partiality; knowledge to know what he ought duly to do; and an 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.‖ [36] Hughes & Vale Pty Ltd v New South Wales (ibid) is now an old case, written in the language and style of that era. An arguably more useful appreciation of what it is to be a “fit and proper person” in the context of occupational regulation may be had from the comparatively more recent decision of the High Court in Australian Broadcasting Tribunal v Bond,6 in which 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 further conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.‘ [37] Also in Australian Broadcasting in Bond, 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‘.7 [38] In the specific context of the building industry, in Dougdale Holdings Pty Ltd v Builders Licensing Board of New South Wales, Goran J, when speaking of the fit and proper person test in the Builders Licensing Act 1971 (NSW) said: ‗A fit and proper person to hold a licence to build, in my view, is a person who is responsible in his intention and those projected intentions, that is projected into the performance of them; that he is so to speak a stable person upon whom the customer could depend and that he is the sort of person who the Board, in its wisdom, having looked at him in the context of the building trade and industry as a whole, would regard as the sort of person who could be entrusted with projects on behalf of prospective customers who have to pay for his services.‘8 [39] In light of the aforementioned authorities, the task that is before me on this review application requires that I pose and then answer two inter-related questions: 6 (1990) 94 ALR 11 at 56. 7 Ibid, at 63. 8 Unreported, District Court of New South Wales, 11 December 1973. -- 9 of 10 -- 10 In light of his known antecedents is the Applicant presently fit to engage in the occupation of a licensed painter and decorator? Can the general community repose sufficient confidence in the Applicant to discharge that position competently, diligently, and honestly? [40] On the evidence before me the questions so posed are answered in the affirmative. The circumstances of this case and in particular Mr Amour‟s known criminal history does not, in any way, suggest him to be a rogue, with no business seeking to be registered as a QBSA contractor. Rather, the evidence presents a picture of an ordinary person who, in 2005, had the misfortune to enter into a black epoch in the aftermath of a relationship breakdown, and at that time demonstrated aspects of ordinary human frailty. These are matters that are in a different category from those that might give legitimate cause for pause when assessing the Applicant‟s fitness for registration as a painter and decorator in 2012, particularly when in the intervening period since conviction the Applicant has served his time, and redeemed himself. [41] The evidence does not, to my mind, support a conclusion that the Applicant is a venal or mendacious person; nor that he is untrustworthy, or in any way governed by dishonest or antisocial propensities. Quite to the contrary, 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).9 [42] In my assessment there are no relevant factors that vitiate against the Applicant being assessed as having the necessary qualities of honesty, knowledge and ability necessary to be a fit and proper person, for purposes of s 31(1)(a) of the Act. Despite the social stigma that will undoubtedly persist in some quarters, the bare fact of Mr Amour‟s 2005 criminal conviction in Victoria should not be seen as an impediment to his now becoming licensed in Queensland as a painter and decorator. Order [43] 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 27 June 2011 refusing the Applicant‟s application for a QBSA contractor licence in the class of 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 class of Painting and Decorating; and (3) The Applicant is to be granted a QBSA Contractor Licence, in the category of Painting and Decorating. 9 Cavadino & Dignan The Penal System: An Introduction (Second Ed), Sage Publications, 1997, at p. 48. -- 10 of 10 --