Hartwig v PE Hack [2007] FCA 1039 (6 July 2007)

Last Updated: 13 July 2007

FEDERAL COURT OF AUSTRALIA

Hartwig v PE Hack [2007] FCA 1039

BRUCE JAMES HARTWIG v PE HACK, DEPUTY PRESIDENT, ADMINISTRATIVE APPEALS TRIBUNAL
QUD 193 OF 2007





KIEFEL J
6 JULY 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 193 OF 2007

BETWEEN:	BRUCE JAMES HARTWIG Applicant
AND:	P E HACK DEPUTY PRESIDENT ADMINISTRATIVE APPEALS TRIBUNAL First Respondent THE MINISTER FOR TRANSPORT AND REGIONAL SERVICES Second Respondent

JUDGE:	KIEFEL J
DATE OF ORDER:	6 JULY 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The Minister for Transport and Regional Services be joined as a party to the proceedings.
2. The application for interlocutory relief is dismissed.
3. The applicant pay the second respondent’s costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 193 OF 2007

BETWEEN:	BRUCE JAMES HARTWIG Applicant
AND:	P E HACK DEPUTY PRESIDENT ADMINISTRATIVE APPEALS TRIBUNAL First Respondent THE MINISTER FOR TRANSPORT AND REGIONAL SERVICES Second Respondent

JUDGE:	KIEFEL J
DATE:	6 JULY 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 Mr Hartwig seeks final orders from this Court setting aside a decision of the Administrative Appeals Tribunal (the ‘AAT’) made on 17 May 2007 and declarations which have the effect of directing the Deputy President in relation to evidence which may be received. The interlocutory orders which he seeks, and with which I am presently concerned, are: to suspend the order of 17 May 2007; to direct the AAT no longer to deal with the matter, I infer until the substantive application is heard by this Court; and orders which prevent any publication of the applicant’s name and ensure any hearing of his matter be in private.

2 The decision in question was in the nature of a direction by the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) concerning the further conduct of the hearing. It was that:

‘Both parties file in the Tribunal and serve on each other any additional evidence intended to be relied upon at the hearing on or before 2 July 2007.’

3 Clearly enough it is not a decision of the kind referred to in s 44 of the AAT Act, from which an appeal could be brought. The applicant bases his application upon the Administration Decisions (Judicial Review) Act 1977 (Cth), but that does not advance his position. The decision is not final, operative, or determinative in any way of his rights. In any event, it seems clear enough the direction has been fastened upon by the applicant as a way of getting his matter into Court. It does not reflect his real concern, which is with a ruling by the AAT on a question of evidence.

4 The proceedings before the AAT involve a review of a decision refusing the applicant, or his companies, registration under the Motor Vehicle Standards Act 1989 (Cth). One issue to be addressed in that regard is whether he is a fit and proper person. The question whether the AAT could, or should, take into account a conviction against Mr Hartwig in 2004, which was directed not to be recorded by the sentencing Judge, has been raised. I take it that his legal representative asked for a ruling at a relatively early stage of the proceedings. The AAT ruled that:

‘it is open to the respondent to seek to prove, and if proved, it is open to me to have regard to the fact of the District Court proceedings and the conduct that led to those proceedings’.

5 It did so after referring to s 12(3) of the Penalties and Sentences Act 1992 (Qld) which provides that:

‘(a) a conviction without recording the conviction is taken not to be a conviction for any purpose;’

and s 85ZR(2) of the Crimes Act 1914 (Cth), which provides in relevant part:

‘(2) ... where, under a State law ... a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State ... :

(b) the person shall be taken ... by any Commonwealth authority in that State ... never to have been convicted of that offence.’

6 It was submitted for Mr Hartwig that the AAT’s ruling involves a breach of those provisions and exposes him to considerable harm to his reputation and other disadvantages. I have therefore proceeded upon the basis that the application might be viewed as one under s 39B of the Judiciary Act 1903 (Cth). The question to be resolved is one of the construction of the State Act on the one hand and the Commonwealth legislation on the other. Section 12(3) of the Penalties and Sentences Act (Qld) requires that no record be kept of a person’s conviction, except for the Court’s purposes concerning an appeal or subsequent offences. It requires that it not count as a conviction for any purpose, other than those. As McPherson JA pointed out in R v Gallagher (1999) 1 Qd R 200, that does not mean that there is no conviction in the usual sense of the word. ‘Conviction’ usually refers to the Court’s acceptance of a verdict or a plea of guilty.

7 Section 12(3) of the Penalties and Sentences Act (Qld) works with s 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), which provides that a person shall not be obliged to disclose, or be asked to disclose, a conviction that is not part of that person’s criminal history. The effect of the section is not to treat the conviction as not having occurred, but to expunge it from a person’s criminal history. Its purpose is to permit them to conduct their lives, obtain employment, and other benefits, without having to divulge that aspect of their history.

8 The nature of the State legislation, to which s 85ZR(2) of the Crimes Act (Cth) refers, is one which deems a person never to have been convicted of an offence. The effect of the provision must be such as to take away the fact of the conviction, as a pardon might do. It is not without significance that the section is headed ‘Pardons for Persons Wrongly Convicted’. Other legislation of the type to which s 85ZR(2) refers maybe that which deems a person not to have been convicted after the lapse of a number of years.

9 This understanding of the purview of the Commonwealth legislation is reinforced by the second reading speech for the Crimes Legislation Amendment Bill 1989 (Cth) Parl. Deb H of R (1989) Vol 166 at 2543 where the Attorney-General said:

‘The Bill also inserts a new part into the Crimes Act that will provide for a scheme that will permit old convictions for minor offences to be spent.’

10 In the resumption of debate, this was referred to as the Spent Convictions Scheme. It was said to be one which prevents any use being made of convictions and punishment incurred by people during a wayward period of their lives, and that the general view is that this should not be held against them ‘forever and a day’. Reference was made to the Spent Convictions Schemes in other states, and discussion was had about when a conviction could be said to be spent. Section 9 of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) may be viewed as a provision of this kind. It provides for the circumstance where a person’s fitness for any purpose is to be assessed and requires the person or authority charged with that task to disregard any conviction that is part of the person’s criminal history, where the ‘rehabilitation period’ has expired. That term is defined to refer to a minimum period of five years. It was not suggested that the section could now apply in the present case.

11 Section 12(3) of the Penalties and Sentences Act (Qld) and s 85ZR(2) of the Crimes Act (Cth) are however dissimilar. The former is concerned that there be no record of a conviction. The Commonwealth provision envisages a state legislation provision, which removes or disregards the conviction altogether. Their common purpose might be said to be rehabilitation, but they arise in different ways, and from a different circumstance. In my view, the Commonwealth provision is not referring to a provision such as the non-recording provision in s 12(3) of the Penalties and Sentences Act (Qld). The Commonwealth provision does not operate on that provision in the way contended for.

12 It follows, in my view, that the AAT is entitled to take account of the fact of conviction, which is to say: the acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question before the AAT, which involves the purpose for which a person is said to be fit and proper.

13 The questions of privacy raised by the applicant would appear to have depended upon the argument which has been determined against him. In any event, they are properly a matter for the AAT.

14 The application for interlocutory relief will be dismissed. It would seem to me that there is nothing remaining in the substantive application. The applicant does not contend to the contrary. The applicant pay the second respondent’s costs of the application.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:
Dated: 6 July 2007

Counsel for the Applicant:	Mr T Macklin
Solicitor for the First Respondent:	Ms M B Rogers Deputy Registrar Administrative Appeals Tribunal
Counsel for the Second Respondent:	Ms M Brennan
Solicitor for the Second Respondent:	DLA Phillips Fox
Date of Hearing:	6 July 2007
Date of Judgment:	6 July 2007