Page 6067 - Week 18 - Thursday, 12 December 1991
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Unfortunately, I do not have the citation of the authority with me, but the leading case that I am aware of is a Federal Court decision some years ago in relation to broadcasting, where the question was whether a person was a fit and proper person to have a broadcast licence. The court said that the "fit and proper" must go to relevant facts. So, in relation to a broadcast licence, a bad driving record - a series of convictions for dangerous driving - was not relevant to whether one was a fit and proper person. However, some taxation offences or offences of honesty might be.
For a taxi driver, on the other hand, the taxation offences probably would not be relevant, if there was a "fit and proper" purpose test for a taxi driver. But driving offences would be. In relation to our refrigeration mechanic, clearly some taxation offences or driving offences would not be relevant. But a history of offences under the consumer affairs legislation for - - -
Mr Kaine: We have just eliminated two more cases.
Mr Humphries: Where do they see it on the face of the legislation? Who is the man who is going to read a High Court judgment to find that out?
MR CONNOLLY: No, no. The relevance for the refrigeration mechanic may be if he or she had been convicted under consumer affairs legislation for faulty workmanship. So, although a person might be technically competent - that is, he or she would pass the tests and establish that he or she knows how to fix a fridge - there is a record that says that this person has played fast and loose and not followed technical standards.
Mr Humphries: Well, say so.
MR CONNOLLY: Mr Humphries says, "You should say so". I would say that the "fit and proper" purpose test is an established test in law, with a well established series of authorities which say that it is not an at large test; that it always is relevant to the purpose of the licence giving. A court will always look at what the licence is being granted for and decide what are the relevant considerations - and, as Mr Humphries and Mr Collaery would be well aware, the term "relevant", at law, is well understood. A court will decide whether or not particular offences or other blemishes in the character are relevant.
That does not mean that if you have diddled your tax you will not get a refrigeration mechanics licence; but it may mean, if you have a history of convictions for faulty workmanship, that you would not get your licence. If there was a "fit and proper person" test for accountancy - Mr Wood read through a list of professions where it was relevant - clearly, for an accountant, honesty offences would be relevant to whether a person is considered a fit and proper person to have the trust of being a
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