FGL v Commissioner for Fair Trading [2022] NSWCATOD 29

By Anthony StrikNews

This case concerns an application by FGL for a certificate of registration as an assistant real estate agent in New South Wales. The key points are:

  1. FGL was convicted of supplying a prohibited drug in 2020 and sentenced to a fine and 18-month community correction order.
  2. When applying for a certificate of registration in 2021, FGL answered ‘no’ when asked if he had any criminal convictions in the past 10 years.
  3. The Commissioner for Fair Trading refused FGL’s application on the grounds that he was not a fit and proper person due to the drug conviction.
  4. FGL applied to the Civil and Administrative Tribunal for a review of this decision.
  5. The Tribunal considered whether FGL met the legislative requirements to be granted a certificate, particularly whether he was a “fit and proper person”.
  6. While FGL had made positive changes and his employer spoke highly of him, the Tribunal found the drug offence was serious and insufficient time had passed for FGL to demonstrate full rehabilitation.
  7. The Tribunal also found FGL lacked understanding of the ethical requirements for real estate agents, as shown by his failure to disclose the conviction on the application form.
  8. The Tribunal affirmed the decision to refuse FGL’s application for a certificate of registration on the basis he was not currently a fit and proper person.

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Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FGL v Commissioner for Fair Trading [2022] NSWCATOD 29 Hearing dates: 17 December 2021 Date of orders: 2 March 2022 Decision date: 02 March 2022 Jurisdiction: Occupational Division Before: L Rogers, Senior Member Decision: The decision to refuse to grant FGL a certificate of registration is affirmed. Catchwords: ADMINISTRATIVE REVIEW – Property and Stock Agents Act 2002 – Application for certificate of registration as an assistant real estate agent –– Fit and proper person – Applicant convicted of criminal offence – Did not disclose conviction in application for certificate of registration – recent completion of community correction order Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Drug Misuse and Trafficking Act 1985 Property and Stock Agents Act 2002 Property and Stock Agents Regulation 2014 Valuers Registration Act 1975 Cases Cited: Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321 Delmege v Director General NSW Fair Trading [2013] NSWADT 304 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 ENK v Commissioner for Fair Trading [2020] NSWCATAD 320 ENK v Commissioner for Fair Trading [2020] NSWCATAD 320 Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 Hughes and Vale Pty Ltd v The State of New South Wales (No. 2) 1955 HCA 28; (1955) 93 CLR 127 Jamal v Commissioner for Fair Trading [2020] NSWCATOD 99 McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183 McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258 Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Wilson v Director-General of the Department of Fair Trading [2003] NSWLEC 134 Texts Cited: Nil Category: Principal judgment Parties: FGL (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: A Strik (Applicant) Solicitors: Leverage Solicitors (Applicant) Legal, Corporate Services, Department of Customer Service (Respondent) File Number(s): 2021/00259172 Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013 – Publication of the name of the Applicant or any information or other material that identifies the applicant or is likely to lead to the identification of the applicant is prohibited. REASONS FOR DECISION A person cannot be granted a certificate of registration as an assistant real estate agent unless they satisfy a number of requirements, including that they are a fit and proper person to hold such a certificate. FGL was convicted of an offence of supplying a prohibited drug and on sentence was given a fine and a community correction order. When FGL applied to Fair Trading, Department of Customer Service for a certificate of registration as an assistant real estate agent he answered ‘no’ to a question about whether he had been convicted of any criminal offences in the previous 10 years. The Commissioner for Fair Trading refused FGL’s application for a certificate of registration and this Tribunal reviewed that decision. After considering all the evidence and the material filed by the parties and the submissions of the parties’ representatives, the Tribunal decided that the correct and preferable decision was to affirm the decision to refuse FGL a certificate of registration. Background FGL applied for a certificate of registration as an assistant agent on 25 April 2021. FGL did not contest the fact that that when he filled in the application form for the certificate of registration he ticked “no” to a question asking about whether he had any conviction for criminal offences in the last 10 years. When processing the application, the Commissioner for Fair Trading (‘Commissioner’) proceeded to request a police criminal record check and also obtained FGL’s criminal history and further information from the Local Court. These documents showed that FGL was convicted of “supply prohibited drug > indictable & < commercial quantity – T1” in the Local Court on 4 June 2020. The sentence imposed by the Local Court was a $1500 fine and an eighteen month community correction order. The Commissioner wrote to FGL on 27 May 2021 asking for details of his criminal history. FGL wrote back and provided information that he had a low range drink driving conviction and indictable drug supply conviction in 2019 or 2020 and provided some character references in support. The Tribunal could not find any other information about a low range drink driving charge in the material, other than the fact that FGL listed this as a criminal offence in the last 10 years. The Commissioner refused FGL’s application for a certificate of registration on 9 July 2021. The reason given for the refusal was “the seriousness of the [drug supply charge]”. FGL sought an internal review of the refusal decision and on 13 August 2021 the review officer at the Department of Fair Trading decided to affirm the decision. The reasons given by the internal review officer highlighted the fact that FGL’s community corrections order would expire on 3 December 2021 and that there would, in the officer’s view, need to be “sufficient time passed after this date when he is no longer under supervision and then clearly demonstrates his reformation of character” before the Commissioner could be satisfied that he was a fit and proper person to hold a certificate of registration. FGL lodged an application for review in this Tribunal on 10 September 2021. The community correction order applying to FGL ended on 3 December 2021, some two weeks prior to the hearing of the application for review on 17 December 2021. Relevant legislation and narrowing the issues Assistant agents must be employed by a licensed real estate agent and hold a certificate of registration: sections 10(1) and 11(1) of the Property and Stock Agents Act 2002 (‘PSA Act’). The requirements for obtaining a certificate of registration are set out in section 14(3) of the PSA Act. A person is eligible to hold a certificate of registration only if the Commissioner is satisfied that the person: (a) is an individual who is at least 16 years of age, and (b) is a fit and proper person to hold a certificate of registration, and (c) has the qualifications required for the issue of a certificate of registration of the type concerned, and (d) is not a disqualified person. Ms Robosa appeared for the Commissioner at the hearing. She confirmed that the Commissioner accepted that FGL met the age and qualification requirements in section 14(3)(a) and (c) of the PSA Act and also accepted that FGL was not a disqualified person (section 14(3)(c) of the PSA Act). The issue in dispute was therefore whether or not FGL was a fit and proper person to hold a certificate of registration. Administrative review jurisdiction The Tribunal has jurisdiction to review a decision of the Commissioner to refuse to grant a certificate of registration: section 27 of the PSA Act. This jurisdiction is exercised under the Administrative Decisions Review Act 1997 (‘ADR Act’). Section 63 of the ADR Act provides that the Tribunal must decide what the correct and preferable decision is, having regard to the material before it including any relevant factual material and any applicable written or unwritten law, meaning legislation or common law. In conducting the administrative review, the Tribunal can have regard not only to the material before the Commissioner, but also any relevant material before the Tribunal at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. The Hearing Application lodged within time The decision on internal review was made on 13 August 2021 and the application to this Tribunal for administrative review was made 28 days later, on 10 September 2021. Section 55 of the ADR Act states that an application for an administrative review is to be made in the time prescribed by the procedural rules, which in this case means 28 days after the day FGL was notified of the outcome of the internal review (rule 24(3) and 24(4)(a) of the Civil and Administrative Tribunal Rules 2014 and section 53(9) of the ADR Act). The parties agreed at hearing that the application for review was lodged within time and I so find. Non-publication order made Mr Strik of counsel appeared for FGL and requested that the Tribunal make an order under section 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the publication of the Applicant’s name or information that might identify him. The basis for this application was that the Applicant had acted as an informant to police and if to identify him may be damaging to his personal safety. The Tribunal adjourned the hearing briefly to provide Ms Robosa an opportunity to seek instructions about this application. On resumption of the hearing Ms Robosa informed the Tribunal that the Respondent consented to the making of the order. The Tribunal made an order under section 64(1) of the Civil and Administrative Tribunal Act 2013 prohibiting disclosure of the name of the Applicant or any information or other material that identifies or is likely to lead to the identification of the Applicant. The discretion to make such an order is a fairly broad one. The Tribunal can make such an order because of the “confidential nature of any evidence or matter or for any other reason.” The Tribunal decided to make the order because of the concerns FGL had for his safety if he were identified as a police informant and also because the Respondent made no objection to the order being made. Oral evidence of FGL FGL gave sworn evidence and he was the only witness called to give oral evidence. FGL said that he is 26 years old and living with his parents and brother. He described his current routine and lifestyle and said he gets up each morning at 5am to walk the dog and go to the gym. He said he drinks socially and has not taken illicit drugs since he was charged with the drug supply charge. FGL told the Tribunal that he assisted Police in their investigations for six months and worked as an informant with the Police drugs squad. He said that he engaged the services of a psychologist around the time of his criminal case and that he saw the psychologist for a total of five sessions. Three of those sessions were before his case was dealt with at court and two sessions followed. Ms Robosa asked FGL under cross-examination about the application form he filled in to apply for the certificate of registration as an assistant real estate agent. FGL said he had never filled in forms much before. He said he was excited and rushed when filling it in. He said that the error in responding “no” to the question about whether he had any criminal convictions in the last 10 years “was totally not intentional.” He said that as soon as he received news that he had successfully completed his qualification in real estate he filled in the form. Ms Robosa asked FGL about the unit he studied called ‘Access and interpret legislation in real estate’ which was listed in the Statement of Attainment he received from the Real Estate Institute of NSW (at Tab B attached to FGL’s affidavit sworn on 16 November 2021). FGL agreed that this subject covered the PSA Act, Property and Stock Agents Regulation 2014 (‘PSA Regulation’) and rules of conduct (which are contained in Schedule 1 of the PSA Regulation). When asked by Ms Robosa about how he filled in the application form, FGL said he was “pretty sure” he filled the application in online. He agreed with her suggestion that in order to move through each part of the form he had to enter in the required information. FGL agreed that he answered “no” to the question about criminal convictions and that this answer was false. When asked whether the answer was dishonest, FGL said that “to be honest I didn’t really read the question”. He said that he had been excited and that he had not correctly read the information in the form. When asked by Ms Robosa about whether he had read the other questions in the form, FGL replied that he “didn’t really know, to be honest.” He said that he flicked through and answered questions on the front page. Ms Robosa referred FGL to paragraph 16 of his affidavit which stated that at the time he did not understand the purpose of the declaration on the application form to the effect that the information in the form was true and correct. He also said he did not recall reading the warning that it was an offence to give false and misleading information. FGL accepted Ms Robosa’s suggestion that real estate agents have duties in preparing documents and that it was important for them to have attention to detail and that these tasks of a real estate agent might be more complex than that of providing information in the application form. FGL annexed a report of his psychologist to his affidavit. The report was dated 18 November 2019. He agreed with Ms Robosa that no updated report was obtained from the psychologist since that report. The Tribunal asked FGL about his real estate studies and whether he received training about the character requirements for the real estate profession. FGL said his training covered that real estate agents should not be charged with fraud. He also said he knew he had to disclose if someone had passed away in a particular property. The Tribunal asked FGL about when he received his Statement of Attainment from the Real Estate Institute of NSW. The date on the Statement was 20 April 2021 and so the Tribunal asked whether he received it by mail or whether five days might have elapsed between receiving the Statement of Attainment and his filling in the application for a certificate of registration 25 April 2021. FGL said that as soon as he received the Statement of Attainment he made the application to Fair Trading, saying he filled in the application for registration “as quick as he could”. FGL explained that it had been a good learning experience and he would not make the same mistake again. He said he would check the information he entered. FGL said that his girlfriend left him after he was charged and he moved back home. He said that at the time of the drug offence he was “not in a good head space”. He said he was experiencing money and relationship stress. FGL secured employment in May 2021 at a real estate agency. He gave evidence that he disclosed his criminal conviction at his first interview with the real estate agency in March or April 2021. FGL said that he would not go down the “same walk of life” in the future, that he had a career and great people that he can talk to. He agreed with his solicitor that he would be supervised and monitored by his supervising real estate agent. Other material relied on by the parties FGL relied on his own affidavit, affirmed on 16 November 2021 and also an affidavit of the licensed real estate agent with whom he works, also affirmed 16 November 2021. The same licensed real estate agent provided a character reference, dated 2 August 2021. He also provided two other references, one which was undated and from a previous employer and one from the woman who knew FGL through a family friend and engaged FGL as her son’s golf instructor and dated 7 June 2021. He also filed a copy of the Orders made in the Local Court on 4 June 2020 in respect of the drug supply offence. The licensed real estate agent with whom FGL currently works is highly positive about FGL in his affidavit. He makes it clear that he is aware of FGL’s drug supply charge and supports FGL’s account that he disclosed his criminal record when he applied for work at the real estate agency and says he also disclosed about his “former drug habit”. It is clear from the affidavit that FGL’s supervising agent is effusive in his praise of FGL’s capabilities in real estate and sees FGL as having a bright future in the industry. He states that he would very much welcome FGL moving from his current administrative position into an assistant real estate agent position. In fact, the real estate agency is leaving an assistant agent position open for FGL pending the resolution of the application before this Tribunal. The licensed agent states that both he and the human resources department of the real estate agency take the view that FGL has stayed away from drugs and people who may have influenced him and that he has “worked heavily to cleanse himself of his demons and remain clean”. FGL’s previous employer attests to FGL’s hard work and reliability and makes an indirect reference to his having hit “rock bottom” but that this was out of character and that would never occur again. The reference from the woman whose son FGL coached in golf attests to FGL’s personal qualities such as including respectful and compassionate treatment of others and commitment to pursuing his goal of becoming a real estate agent. She states that FGL will not repeat his mistakes and that FGL has become a better person and role model to others. FGL also relies on a report of a psychologist, dated 18 November 2019. It is a relatively short report of some six or so paragraphs. The psychologist describes FGL’s skills building to address his depression and anxiety and stress. The psychologist described FGL as high in motivation and insight and that FGL had gained some control over these symptoms with the assistance of Cognitive Behaviour Therapy. I note that this report was written two years ago and does not address the likelihood of relapse or reoffending in any detailed way. The Commissioner relies on the material required to be filed by s.58 of the Administrative Decisions Review Act and also the criminal history obtained from NSW Police in respect of FGL, as at 3 May 2021. Both parties provided the Tribunal with written submissions and the Tribunal also heard their oral submissions. Applicant’s submissions Mr Strik submitted that FGL was not an “overly educated gentleman”. He said that FGL was “over the moon” on getting through his real estate studies and applied as quickly as he could for a certificate of registration. He said that FGL has learnt that he should double check the forms he fills in. He pointed out that as at the date of the hearing, FGL had completed the community correction order. He said that FGL will be under the supervision of the lead real estate agent and that given the licenced agent was not called for cross-examination, that his evidence about FGL’s work ethic and abilities should be accepted with the highest weight. Mr Strik drew the attention of the Tribunal to Hughes and Vale Pty Ltd v The State of New South Wales (No. 2) 1955 HCA 28; (1955) 93 CLR 127 (‘Hughes’). Hughes is a decision of the High Court of Australia about the constitutionality of legislation concerning the licensing of inter-State public motor vehicles carrying goods or passengers on a commercial basis. In that case the Court said that the expression “fit and proper person” involved three things: honesty, knowledge and ability (at [9]). The Court also stated that the intention of the phrase is to “give the widest scope for judgement and indeed rejection” and described the phase as giving a decision-maker a “very wide discretion”, again at [9]. Mr Strik submitted there was no question about FGL’s ability and knowledge. He said that FGL had completed five sessions with his psychologist, even though this was not required by the conditions of his community correction order. He said that FGL had embarked on a process of rehabilitation and that the court had not seen fit to impose any conditions that he complete any drug or alcohol treatment or rehabilitation. Mr Strik cited Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321. In that case Justices Toohey and Gaudron at [36] state that the meaning of “fit and proper person” is derived from “its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.” Their Honours said that in some situations character and reputation might be sufficient to lead to a finding that a person is not a fit and proper person ([36]) but also that this would depend on the statutory context: [37]. Mr Strik submitted that FGL had demonstrated good conduct for a period of over two years and he had assisted the police. He said that assistant real estate agents are under supervision and that if granted the certificate of registration, FGL will have that support and supervision. He said that FGL did fail to disclose his conviction but then quickly updated the information with the Department of Fair Trading. Mr Strik distinguished the decisions of McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258 and Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 and submitted that most of the other decided cases concerned facts where the applicant was subject to a gaol term or parole or the facts involved offences of dishonesty. He said that the present case was different and submitted that FGL is 26 years of age and that one’s character is forming at such an age. He also argued that FGL has never worked as a real estate agent so the community has been protected. Mr Strik also took issue with [34] of the Commissioner’s written submissions where the drug supply offence (a charge under section 25(1) of the Drug Misuse and Trafficking Act 1985) was described as objectively serious because of the maximum penalty of 15 years imprisonment. Mr Strik pointed out that as the matter was dealt with in the Local Court the maximum penalty that could be imposed was two years. He also distinguished ENK v Commissioner for Fair Trading [2020] NSWCATAD 320 and submitted that in that case ENK was on parole and that parole is different to a bond. He said that in FGL’s case the bond had finished. Mr Strik referred the Tribunal to the decision of Jamal v Commissioner for Fair Trading [2020] NSWCATOD 99 (‘Jamal’), a case in which an initial real estate agent license had been granted in circumstances where the applicant had been convicted of an offence of supply of a prohibited drug and received a three year custodial sentence approximately two years before that. When the applicant applied for a license at a later time he had further convictions for common assault in a domestic violence context and the offence of threat to distribute an intimate image without consent. The intimate image conviction was not disclosed in the application form. In that case the Tribunal made the observation that a bond differed from parole. At [64] the Tribunal said “A bond is a different proposition to parole, whereby parole seeks to productively manage the terms of a custodial sentence for the benefit of both the defendant and the community”. The Respondent in Jamal argued that the applicant must have discharged his bond to be judged a fit and proper person to be granted an individual real estate licence. The Tribunal said that in that case that the bond only required the Applicant to be of good behaviour ([75]) and so merely created a promise that if the applicant offended there would be “potentially greater consequences on sentencing that [sic] that of an ordinary citizen.” Mr Strik made the point that the Applicant’s non-disclosure to Fair Trading was not ongoing. He submitted that the Tribunal should accept FGL’s explanation that he was so excited he just filled in the application. He submitted that FGL had foolishly got involved in drug supply but had turned his life around. Mr Strik submitted that that offence was not once of dishonesty (which would make the Applicant a disqualified person: section 16(1)(a) of the PSA Act). Mr Strik said that the Tribunal could safely set aside the decision and grant to certificate of registration in the knowledge that FGL would then spend three to five years under the supervision and authority of a licensed agent. He submitted that the Tribunal should find that FGL was sincere in his apology and had learnt his lesson. Respondent’s submissions The Respondent relied on the documents it was required to file in the Tribunal registry under section 58 of the ADR Act, that is, statements of reasons for the original and internal review decisions and every document the Respondent considered relevant to the determination of the application by the Tribunal. Ms Robosa made the submission that the PSA Act applies the same standard of fitness and propriety for both those seeking certificates of registration and real estate licenses. She submitted that the cases refer to the importance of character and that character was still part of being a fit and proper person. She said that the cases also highlighted that candour with the regulator was taken into account in the assessment of whether a person was a fit and proper person, regardless of the seriousness of the offences in the cases cited. Ms Robosa referred to the decision of Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 where Justice Walters said that what is meant by “fit and proper” is that: “…the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence…but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public…as a person to be entrusted with the sort of work which the licence entails”. Ms Robosa referred to the written submissions filed for the Respondent which cited the case of Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 (‘Grenfell’). In that case the Tribunal said at [15]: “The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant’s fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant’s explanation of the misconduct, the impact of the effluxion of time, and the applicant’s present circumstances and reputation”. Ms Robosa argued both at hearing and also in the Respondent’s written submissions that the drug supply offence was an objectively serious matter and that there had been an insufficient amount of time since the conviction for FGL to demonstrate that he has rehabilitated, particularly given that the community correction order had just expired prior to the hearing. Ms Robosa referred the Tribunal to the decision of McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183, a decision of the NSW Land and Environment Court. That decision concerned an application to become a registered real estate valuer and was made under different legislation from the present case. The legislation contained a requirement that the applicant for registration be “of good character” (section 15(1)(a) of the Valuers Registration Act 1975). In that case the Applicant failed to disclose convictions for the offences of possession of a prohibited drug and self-administration of a prohibited drug. The explanation given by the Applicant for the non-disclosure was that he had received what was then a section 556A, whereby the magistrate was satisfied that the charge was proved but the charge was dismissed, and so he thought that was not a conviction. Justice Lloyd said in that case that the Applicant should have recognised that he must disclose the drug offences. Further the Court said at [36]: “The obligation of complete candour and disclosure is an important element of good character. Its absence does not give one confidence that in the course of his work as a registered valuer the applicant will not overlook in his valuation reports all relevant facts or opinions which may bear upon the question of value. Its absence suggests that the accuracy and reliability of the applicant’s work would have to be checked”. Ms Robosa also referred the Tribunal to the decision of the Land and Environment Court in Wilson v Director-General of the Department of Fair Trading [2003] NSWLEC 134. In that case Mr Wilson was involved in concurring with false statements in order to obtain a financial advantage. The Court confirmed the decision that Mr Wilson be removed from the register of valuers for five years. Mr Wilson answered “no” on two application forms for renewal of his registration when asked whether he had been convicted of any offence. The Court found it difficult to accept the appellant’s suggestion that he thought that receiving a bond for the criminal charges meant he could answer no to the question. Ms Robosa submitted that FGL’s case was similar. There was a clear and unambiguous question about criminal charges to which FGL answered “no”. In written submissions, Ms Robosa also relied on the decision of ENK v Commissioner for Fair Trading [2020] NSWCATAD 320, where the Tribunal said at [47]: “I agree that a person still serving under parole, a good behaviour bond or corrections order can occasionally be found to be a fit and proper person to carry on an occupation; but there must be clear and unequivocal evidence to demonstrate their fitness.” Ms Robosa submitted that the reasons for FGL not disclosing criminal convictions on the application form were not justified and a critical oversight and further demonstrated he is not a fit and proper person. She rejected any notion that there were two standards, one for a real estate licence and a lower standard for an assistant real estate agent and referred to the reasoning in Delmege v Director General NSW Fair Trading [2013] NSWADT 304. In that case Mr Delmege did not disclose that he had entered into a Personal Insolvency Agreement and that he was a director of a company that became externally administered. His solicitors wrote to the Respondent and described the non-disclosure as ‘more an oversight or clerical error’. In that case the Tribunal found it difficult to accept the Applicant’s explanation for the errors that he did not understand “body corporate” to mean a company. In that case the Tribunal made the observation at [51] that: “The Applicant’s explanation for his incorrect answers on the various licence renewal application forms suggests that he may not have the necessary knowledge or care to be regarded as a fit and proper person to hold a certificate of registration.” Ms Robosa pointed out that despite a change in the legislation, the same standard still applied and referred to Schedule 1 of the Property and Stock Agents Regulation 2014 which contains the rules of conduct applied to both agents and assistant agents. The Schedule requires that an agent have a knowledge and understanding of the PSA Act and Regulations (clause 1) and also must exercise reasonable skill, care and diligence. Ms Robosa argued that the failure of FGL to provide correct information to the regulator was evidence that he lacked the knowledge and ability and attention to detail that is expected of real estate agents. Ms Robosa also submitted that insufficient time had passed since the end of FGL’s bond for him to demonstrate his rehabilitation. Ms Robosa also emphasised that the psychologist report was dated 2019 and that no updated report was provided and submitted that the report should therefore be accorded minimal weight. She said that two of the character references provided by FGL should be afforded no weight as they did not make direct reference to the writer being aware of the nature of FGL’s conviction. She also submitted that the statement of FGL’s supervisor at the real estate agency at which he worked should be accorded minimal weight. Consideration and findings of fact I find as a matter of fact that FGL was convicted in the Local Court on 4 June 2020 of the criminal offence of supply prohibited drug (indictable and commercial quantity). He received a $1,500 fine and an 18 month community correction order, which he completed on 3 December 2021. I find that a conviction for the supply of drugs is not an offence of dishonesty. I accept that FGL was at all times open with his current employer about his criminal conviction and that his employer sees him as a valuable employee and one who would be a very good addition to the sales team. I also accept that FGL has made gains, achieved by engaging in psychological treatment. He has not reoffended in the period of approximately two and a half years since the incident giving rise to the criminal charge. Mr Strik is correct to point out the criminal conviction for drug supply was dealt with in the Local Court and accordingly a much smaller maximum term of imprisonment was available to the magistrate on sentence. The offence is therefore of a less serious nature than if the matter had been dealt with in the District Court. I also place some weight upon the fact that FGL provided assistance to the police. Mr Strik emphasised that if FGL was granted a certificate of registration, he would be supervised. Whilst that is the case, the types of responsibilities that FGL would have in my view require a similar degree of fitness and propriety as a person seeking the issue of a licence. According to FGL in his internal review application, his responsibilities would be “to liaise with prospective purchasers…deal with the marketing of properties, conducting open homes and dealing with legal representatives.” I accept that he would not be involved in many more significant responsibilities such as those outlined in the Applicant’s written submissions (at page 7), such as administering trust accounts and taking deposits or being involved in contracts for sale (page 9), but I reject the submission in that document that an assistant agent is no more than an apprentice and the “lowest levels of fitness” should apply. The public is entitled to expect that persons holding certificates of registration possess the integrity, care and diligence required to act as assistant real estate agents. The fact that FGL was under a community correction order which expired approximately two weeks prior to the hearing does not of itself preclude this Tribunal from making a finding that he is a fit and proper person. Rather, it is a combination of factors described in the passage from Grenfell (cited above), that should be considered to determine the impact of past criminal conduct on an applicant’s fitness and propriety, that is, the nature of the offence, the events taking place since, the degree of candour the Applicant displayed in respect of the misconduct and the explanation given for the misconduct as well as the impact of the effluxion of time and the applicant’s present circumstances and reputation. The supply of drugs is a serious offence, albeit one tried in the Local Court. FGL has maintained a positive lifestyle for more than two years and has embarked on a process of rehabilitation including ceasing his involvement with drugs. He has been open with his employer about his conviction and previous lifestyle. Despite these positive factors, I am of the view that a period of further time is required to allow FGL to demonstrate his fitness and propriety and to allow him to show himself to be someone whom the community can trust to maintain a positive lifestyle and not reoffend. I find that FGL did not disclose his criminal conviction for supply of a prohibited drug on his application for a certificate of registration. I find his evidence credible and accept that he rushed and did not read or appreciate the importance of the question he was asked on the form about criminal convictions in the last 10 years. I accept that he did not deliberately conceal the conviction, but rather rushed to complete the form without paying due regard to the questions. I also find that he did not appreciate the importance of making the correct disclosure or the gravity of giving an incorrect answer to that question. I accept that he also did not appreciate the gravity of making a false declaration on the form. However, the failure to make the requisite disclosure of the conviction on the form is relevant to whether FGL is a fit and proper person to be granted a certificate of registration. The passage cited from Hughes above makes it clear that being a “fit and proper person” also includes whether a person has the requisite knowledge and ability for the office or profession concerned. Under questioning, I found FGL’s knowledge about the ethical requirements of real estate practice to be relatively low. I find that FGL rushed through filling in the form because he did not possess the necessary knowledge or care expected of those seeking a certificate of registration, including an understanding of the ethical and professional standards required of a real estate agent. It is for these reasons that I cannot be satisfied that FGL is a fit and proper person to be granted a certificate of registration. The Tribunal has therefore decided to affirm the decision to refuse the certificate as at this point in time. It remains possible that FGL will in the future successfully apply for a certificate of registration. It may be that, given further time, FGL will demonstrate he is a fit and proper person and by the account of his employer will succeed in his desired profession. Conclusion and Orders For the reasons set out above, the correct and preferable decision is that FGL’s application for a certificate of registration should be refused on the basis that he not a fit and proper person. The decision of the Commissioner to refuse FGL’s application for a certificate of registration is therefore affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.