Case: Davies v Australian Securities Commission [1995] FCA 1496 ; (1995) 131 ALR 295
Outcome: discussed
The AAT Senior Member first (at [3]-[4] of his reasons) directed himself to the meaning of "fit and proper person" by reference to the judgments of Hill J in Davies v Australian Securities Commission [1995] FCA 1496 ; (1995) 131 ALR 295 at 305 and Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. No complaint was made about these passages, which were as follows: (a) Hill J in Davies 131 ALR at 305: The phrase "fit and proper person" is a familiar one in the context of qualifications for offices or vocations. Discussing the phrase in a context of licenses to use vehicles for the purposes of interstate trade, Dixon CJ, McTiernan and Webb JJ said in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) [1955] HCA 28 ; (1995) 93 CLR 127 at 156-7: 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: "honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and 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. 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 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... As I observed in Stasos v Tax Agents' Board of NSW [1990] FCA 379 ; (1990) 90 ATC 4950 at 4959, the content of what is necessary to constitute a person a fit and proper person to occupy a particular office or pursue a particular vocation will vary having regard to the office or vocation under consideration. Thus the characteristics required to show fitness as a tax agent were expressed by Davies J in Re Su and Tax Agents' Board, South Australia (1982) 82 ATC 2484 at 4286 as requiring that person to be: ... a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently. (b) Toohey and Gaudron JJ in Bond 170 CLR at 380: 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. 35 The AAT then concluded at [57]: Given all the circumstances referred to above I find that the Applicant is not, in the terms described by Hill J in Davies v Australian Securities Commissions (supra) a fit and proper person and the decision under review is affirmed. 36 The two proceedings raised a number of complaints. I will deal with them as they were organised in the written submissions filed in support of both.