(1955) 93 CLR 127
Larter v Commissioner for Fair Trading
Source
Original judgment source is linked above.
Catchwords
(1955) 93 CLR 127
Larter v Commissioner for Fair Trading
Judgment (11 paragraphs)
[1]
The Applicant's Position
The Applicant acknowledges that he has made mistakes in his past and maintains that the relatively short period during which the above-described offences were committed "is not indicative of who I am as a person". He considers that he has "paid [his] debt to society" and has become "rehabilitated as a member of society" who poses no threat. He wants to "move on from the worst part of my life to my once-in-a-lifetime opportunity" of "working at Liquid Sticker Tattoo Company under Justin Nichols." This would allow him to practice his trade of passion and to provide his family with positive surroundings.
In response to the argument that his criminal behaviour shows disregard for the legal system and a failure to reform, Mr Abarquez told the Tribunal that he regrets his crimes and no longer does drugs. He stated that he is 100 per cent clean now. He stated that he made mistakes when he had "fallen really hard" for a period, letting himself and his family down. But more than three years have passed and he says he has learned from his mistakes and is on the right path again, the family life is much better. Tattoo art is his passion a source of expression for him. He says he studied self-development and self-improvement and his partner is proud of what he has become compared to 3 or 4 years ago.
After he came out of prison, he preferred first to take time to collect himself, and "clear his head out from the tattoo industry". His cousin helped line up some work in concreting. The Applicant has been working as a concrete labourer for Gold Coast City Council, which he said has random drug and alcohol tests and he has not failed any of them. Having gotten his life back on track, and with the encouragement of Justin Nichols who was a supportive friend who visited him in jail and gave him a stern talk about getting off the drugs and away from bad influences of his past, the Applicant now wants to pursue tattooing again.
Before he found his passion for tattoo the Applicant previously worked as a stonemason for about 9 years. The statements from his former colleagues Mr Allen, Mr Moore, and Mr Brown noted they had been diagnosed with silicosis and lymph-node enlargement amongst other conditions suffered by people in that industry. They noted the Applicant took pride in his work and was hard-working and could understand why he would want to avoid the risks of the industry and change to tattoo. The Applicant had scheduled a silicosis test with a lung specialist which might have led to a workers compensation claim but he was afraid about what would happen with the scan. He said he would prefer to have a career as a tattooist and explained he had delayed the test until finding out what his options are with his tattoo licence.
The Applicant responded to questions from Mr Bell relating to allegations he had worked as a tattooist while unlicensed. He was asked about certain photos from his social media pages (appended to Mr Bell's affidavit). Some depicted a full-sleeve tattoo of a panda. The Applicant clarified that these were taken in 2016 when the Applicant was working at a parlour in Queensland, while licensed. He confirmed he was paid for the tattoo and that it would have required more than one sitting. The Applicant explained that he had posted his past work on his 'John Abarquez Tattoo Artist' Facebook page for promotion, but not always on the same dates as doing the tattoo procedures.
Mr Bell questioned the Applicant about the tattoo licence attached to his affidavit, which expired on 6 February 2016. Mr Abarquez said that he attached that licence to show that he had in fact held a licence, and added that he had held one before and after that, though he could not locate them amongst his possessions after he came out of custody in 2018. He stated that all the tattoos pictured in the attachments to Mr Bell's affidavit were done during the periods when he held a licence. The one he did more recently for his brother's friend, Ms Eastham, was part of a video assignment for his brother's TAFE course, was done at his home and he did not charge a fee for it.
The Tribunal referred Mr Abarquez to his original application form for a licence and he confirmed that he had provided Fair Trading with the contact details of the three tattoo parlours he worked at in the Gold Coast and the exact dates between 2015 and 2017 when he worked there. He confirmed he had held licences at all three. None had been cancelled. He stated that he never had any complaints from clients or about health or safety or otherwise about his work.
Mr Nichols provided a statement in support of Mr Abarquez as a fit and proper person to hold a tattooist licence. Mr Nichols is the owner/operator at Liquid Sticker Tattoo Company in Albury, and has offered the Applicant a 10-year contract. He has trained women and children in self-defence, and was involved in local law enforcement when he lived in the Gold Coast. He has known the Applicant since around 2004, and also knows his partner and son. He formed a favourable impression of the Applicant's character back when the Applicant had supported him selflessly (with food, accommodation and transport) during a period when Mr Nichols was in town to help a friend through cancer treatment.
As to the Applicant's criminal history, Mr Nichols was aware that the Applicant had been through a "terrible time" when he was "depressed" and "used by" some of the people he worked within the tattoo industry. He said that during this time the Applicant had nobody to turn to and "got lost" and "stumbled". He said he knew how much Mr Abarquez regretted his actions and was ashamed of how he dealt with it all. He said that the Applicant "has made a huge turn around to a person better and stronger than before his terrible ordeal. His suffering has given him more drive, determination, awareness, positivity and a more openness which is a huge benefit to himself and all those lucky enough to be around him."
Mr Nichols had also seen Mr Abarquez at work and observed that his customers were always happy to be around and often shared a piece of themselves with him and he always found a way to help them in a positive way. He said that Mr Abarquez would be a huge benefit for his business and would help his other artists reach greater heights. He noted that the Applicant had helped him as an artist to grow and challenged him positively with healthy competition. He considers that the area where his studio is located can offer a higher quality life and more positive people around than the Gold Coast.
At the hearing, Mr Nichols was questioned by Mr Bell about the basis on which he knew Mr Abarquez had professional-level tattooing skills and if that was from watching him perform tattoo procedures at Liquid Sticker Company. Mr Nichols clarified that the Applicant had never been to Liquid Sticker Company or done tattooing in NSW. Rather, Mr Nichols had seen the Applicant's work in Queensland. Mr Nichols explained that he is originally from Queensland and watched the Applicant perform tattoo in around 2015/2016. He observed customers loved the Applicant, as a giving person who always lifts people up.
Mr Nichols answered questions from the Tribunal. He confirmed that he had met the Applicant back in 2004 through mutual connections in Queensland. He was aware that the Applicant had suffered from depression for a period when he and his partner experienced some health and family issues. The Applicant had gone "downhill" but has served his time, rehabilitated and helped provide for his family. He describes the family as being the happiest he has ever seen.
When asked if he thought there was a risk Mr Abarquez would commit crimes again, Mr Nichols said he was "absolutely 100 percent confident that he won't commit crime again." Mr Nichols described himself as very "anti-drugs", having grown up with a parent with drug problems. He noted that in his contract there was provision for random drug testing and that "any substance abuse will not be tolerated and is grounds for instant dismissal". He recalled that Mr Abarquez committed crimes during a period of drug addiction, and said drug addiction changes who you are. His other criminal actions were all connected to the drug addiction. He is confident that the Applicant is past that now and believes that allowing him to work as a tattoo artist in New South Wales will be positive.
When asked why he wants to hire the Applicant, Mr Nichols explained that the Applicant is a "caring" and "supportive" person who is "great with people". He is also a "great artist" more experience than some others in his shop and would benefit his business.
At the hearing, after listening to the details of the Applicant's criminal history recounted by the Respondent, Mr Nichols was asked if he stood by his assessment of the Applicant's fitness and propriety for the tattooist licence. Mr Nichols confirmed that he did. Mr Nichols also confirmed his businesses had not been subject of complaints or notices of any breach of his operator licence.
[2]
The Respondents' Position
The Respondents point to the Applicant's extensive history of criminal offending (detailed above at para. 26). They also submitted that the Applicant had engaged in unlicensed tattoo work, noting "even a single example of unlicensed work constitutes a further example of disregard for the law, considering the Applicant's criminal history".
The Respondents submit that the Applicant is not a fit and proper person to hold a tattooist licence for three reasons. First, the Applicant has an extensive history of criminal offending which is frequent, serious and recent. The Applicant's pattern of criminal behaviour indicates a lack of judgment and poor character and shows a disregard for the law and the rights and safety of others which is inconsistent with being designated a "fit and proper person". The Respondents observe this is not a case where there is an isolated incident of criminal offending. The Applicant has been charged and convicted of a broad range of serious offences amounting to a general disregard for the law and habitual recidivism (Allen at [49], Mielczarek at [27]).
Secondly, the Respondents submit that the nature of the Applicant's offending is relevant to the fit and proper person test. The Respondents submit that particular weight should be given to the convictions involving dishonesty, as they go directly to the Applicant's integrity and propriety.
Thirdly, the Respondents submit there is insufficient evidence of rehabilitation for the Tribunal to be satisfied that the Applicant is a fit and proper person, particularly in light of the recency of the criminal offending. In the Respondents' submission, the Applicant has a practical onus to demonstrate his rehabilitation. Too little time has passed since the Applicant's last offence for the Tribunal to be satisfied that he has been rehabilitated such that he now is a fit and proper person to hold a tattooist licence. In the absence of cogent evidence of rehabilitation, the Respondents say the Tribunal could not have faith that the Applicant will, in the future, comply with the requirements of the TP Act or the general law.
At the hearing, the Respondents took the Tribunal through the Applicant's criminal history. Mr Bell characterised a domestic violence incident of April 2017 as reflecting more than a "bump" in the relationship. Mr Bell submitted that the fraud offences show lack of judgment and honesty and qualities required for a tattooist, recalling that the fit and proper person test is not about skill.
The Respondents submitted that the Tribunal should give limited weight to the references submitted by the Applicant. Only Mr Nichols demonstrated an understanding of his criminal history, and this needs to be balanced with the criminal record which was sustained and recent. As to recency, the Respondents submitted that there is no hard and fast rule on time lapsed, and the Tribunal needs to weigh this against the nature of offences.
The Tribunal asked Mr Bell whether the imposition of a condition about drug use might be appropriate (as was done in Larter at [112]). He stated that the Respondents were less concerned about the drug charges than the dishonesty charges. The Larter case also involved a less serious and extensive criminal history and a stronger record of rehabilitation than the present case.
As for the allegations concerning tattooing while unlicensed, the Respondents acknowledged that the affidavit of Mr Bell referred to a video that was never provided to the Tribunal but they would not be relying on that video. They conceded that the tattoo procedure in the video was done at the Applicant's home for no fee or reward and therefore did not breach the licence regime. After examining the witnesses, the Respondents also accepted that Mr Abarquez had not performed tattoo procedures in New South Wales. However, the Respondents said, on the evidence available, it was still unclear if Mr Abarquez had complied with Queensland tattoo legislation at all times.
The Respondents stated that Mr Abarquez should not be locked out of the tattooing industry for life. However, due to his sustained and recent criminal history and insufficient evidence of rehabilitation, now was not the time to let him back in. The Respondents repeated that the industry was "not closed" to Mr Abarquez and he could "try again" but did not specify when.
[3]
Consideration
As noted above, unfitness for a tattooist licence may be indicated by "criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law."
There is no suggestion in this case that the Applicant had any association with OMCGs. There is also no evidence that the Applicant failed to implement proper tattooing practices. No question has been raised about his talent and skill as a tattooist or observation of proper tattooing, health and safety practices.
Following Mr Nichols' explanation that he had observed the Applicant's professionalism while he performed tattoo procedures in Queensland, the Respondents withdrew their allegations that the Applicant did unlicensed work in New South Wales. The Respondents also now accept that because the tattoo of Ms Edwards was done for no fee and at the Applicant's home, there was no breach of section 7 of the TP Act or its Queensland equivalent.
To the extent the Respondents maintain the Applicant's tattoo art posted to social media was done whilst unlicensed, the Tribunal does not accept such a breach has been established. The Applicant provided all the requested details about the dates and contact information of the tattoo parlours where he had worked in his initial application to Fair Trading over a year ago. The time periods in his application form align with the time periods of the tattoos pictured on his social media account. They were consistent with the evidence of the Applicant and Mr Nichols. The Applicant furnished one of the licenses he held during that period, and explained he could not locate the others (some over five years old) amongst his possessions after he came out of the correctional centre. The Respondents had not requested the licences or checked relevant Queensland registries. When I questioned Mr Abarquez about the licences he answered credibly and consistently with the material in the record. I therefore reject the Respondents' argument that alleged unlicensed work by the Applicant occurred or could constitute evidence of his disregard for the law.
That leaves the Applicant's criminal history as the main obstacle to his application for a licence. The Tribunal considers the frequency, nature and recency of the offences, and in turn whether the Applicant has rehabilitated.
The Respondents submit that the Applicant's pattern of repeated criminal behaviour indicates lack of judgment and poor character and point out that there was not an "isolated incident of criminal offending" but rather over 30 offences which show general disregard for the law and habitual recidivism. The Tribunal accepts that the Applicant's criminal offences constitute evidence weighing against finding him to be a fit and proper person to hold a licence. The Respondents emphasised in particular the fraud offences as problematic. When questioned about the possibility of a condition attached to the licence requiring abstinence from illegal drugs, the Respondents submitted that they were less concerned with the drug offences, and that the fraud and theft offences were more troubling.
The Tribunal does not accept that the fraud and theft offences, as serious as they may be, can be so easily separated from the drug offences. Having reviewed the complete criminal history and listened to the testimony of Mr Abarquez and Mr Nichols, the Tribunal finds that the criminal offences occurred during a relatively short period of the Applicant's life and during a low point in his personal life when he had turned to drug use. While it was the fraud and theft offences in 2017 which attracted the more serious punishment for the Applicant, these were committed at the same time as he was found with cannabis and materials associated with use of methamphetamine. The day the Applicant was caught with drugs in December 2017 was also the day of the argument leading to the domestic violence incident noted above at paragraph 26(c). Similarly, the May 2018 incident shows that the Applicant was using cannabis and methamphetamine in the same period as he had turned to theft of a licence and car. The April 2017 incident of domestic violence also stemmed from an argument relating to the Applicant's involvement with drugs.
This points to the criminal activity of the Applicant being connected with his drug use and having spiralled to a low point in his life. Before that period, the record does not indicate a long history of serious crime (cf. Allen, Austin and Wright).
While the character references of his stonemason colleagues Mr Allen, Mr Brown and Mr Moore cannot be given substantial weight due to the fact they did not evince an awareness of the Applicant's criminal history (see, e.g., Larter at [92]), the Respondents did not take them up on their offers of being questioned further, or raise any questions about the Applicant having been a hard working labourer and reliable colleague. There is also on the face of it no reason to doubt their authenticity.
Mr Nichols, however, was acutely aware of the Applicant's criminal history, had visited him in the correctional centre, heard the details of the offences and was also familiar with his domestic relationship. He was cross-examined by the Respondents and questioned by the Tribunal. The testimony of Mr Nichols supported the view that Mr Abarquez is generally of good character, as demonstrated by his accommodating and generous conduct towards Mr Nichols and their friend during a difficult period; and his interactions with customers at the tattoo parlours at which he worked in Queensland. Mr Nichols observed the personal difficulties and depression the Applicant had fallen into in late October 2017 and that he had "got lost" when he started using drugs and engaging in criminal conduct leading to a "terrible" period in his life. Mr Nichols has seen nothing to indicate that Mr Abarquez is presently taking drugs and he Mr Nichols has observed that he now appears to be happier and more settled than he was during that troubled period.
As to the recency of the offences and evidence of rehabilitation, the Respondents submitted that the door should not be closed to Mr Abarquez from applying for a tattooist licence forever, but that his offences were too recent to demonstrate rehabilitation. Mr Bell also said the Tribunal should be wary to give credit for periods of time when the Applicant was in custody.
The Tribunal observes it has been over three and a half years since the Applicant committed criminal offences. This is comparable to the period in Larter and ERI (licences granted). The Applicant's case can be distinguished from cases where the applicants in question had charges pending or there was current confidential police information (e.g., Smith, Birch). It is also distinct from cases where there were ongoing mental health problems (e.g., Wright, Birch) or where the Applicant presented erratically as a witness (e.g., Allen).
The Applicant maintains that he has not been in trouble with the police since 2018 and the Respondents' materials are consistent with this. There are no domestic violence orders in place, his suspended sentences have been served, and the Respondents proffered no confidential police information.
The Applicant accepts full responsibility for his criminal record and does not seek to excuse or minimise his deeds. In this respect, his case contrasts with that of unsuccessful applicants in Birch and Allen. Having observed the Applicant, his remorse seems to the Tribunal to be profound and genuine.
This was also confirmed by the reference and testimony of Mr Nichols. The Tribunal found Mr Nichols to be an articulate and credible witness. He has a background in community work, self-defence workshops, and running two businesses and takes pride in his indigenous heritage. He did not shirk from the Applicant's past. Rather he had made an effort to understand and to help Mr Abarquez recover from his mistakes, rebuild his family life, and re-engage with tattoo art. He is insistent upon a drug-free policy at his tattoo parlour, especially given his own upbringing. Mr Nichols expressed confidence that Mr Abarquez possesses sufficient moral integrity and rectitude to be trusted with a tattoo licence and work in his parlour. It is relevant to the Tribunal that this application is for a tattooist licence, not an operator licence. Consequently, Mr Abarquez would at all times be working under the supervision of a putatively responsible person (see Larter at [101], Ting at [66]). Having observed Mr Nichols at the hearing, the Tribunal is further convinced that he would be a responsible supervisor.
Importantly, the Applicant has also sworn off using drugs since 2018. The Applicant testified that he had not failed any drug tests in his current job with the Council. There is no evidence to contradict him in that respect.
Although it might have been preferable to see a longer period without adverse indications, on the basis of all the evidence before me, I conclude that the Applicant is now a fit and proper person to hold a tattooist licence, subject to a special condition that will be outlined below as an extra precaution.
[4]
Second Issue: Would it be contrary to the public interest for the Applicant to hold a tattooist licence?
Having found Mr Abarquez to be a fit and proper person to hold a tattooist licence, the Tribunal now turns to whether it would be contrary to the public interest for him to hold a tattooist licence.
[5]
The Public Interest Test in context of the TP Act
The phrase "public interest" is not defined in the TP Act. It is an inherently broad concept which gives the Tribunal on review the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. It is a wider enquiry than the question of the fitness of a particular applicant. Necessarily, the public interest will be informed by the legislation under consideration. (ERI at [56]; Smith at [12]).
Including a public interest test allows for matters going beyond the applicant's character to be taken into account. These include public protection, public safety and public confidence in the administration of the licensing system. Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry by signalling that those who do not meet the required standards will not be permitted to operate in the industry.
As noted above, the primary aim of the TP Act is on the regulation of the tattoo industry and on the protection of the public from criminal gangs and criminal activities. While particularly focused on ridding the industry of OMCGs, the broader intention of the TP Act is to "rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct" (Smith at [20]).
In the context of the TP Act, the Tribunal in Mielczarek noted that the regulatory scheme helps to "preserve public confidence in the regulated activity and its members" (at [162]). The Tribunal noted that it should "place itself in the position of a member of the public knowing of the applicant's associations or record, and consider whether that person would object to having the applicant perform the relevant services."
The concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals. As such, an applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the tattoo industry. (Austin at [72]-[73]).
Nevertheless, some private interests may coincide with relevant public interest factors. For example, TP Act cases have acknowledged that there is a public interest in assisting the rehabilitation of persons who have fallen foul of the criminal law, so far as it is possible without endangering public health, safety, security or public confidence in the regulatory scheme. (Larter, Ting). There is also a public benefit in a person being able to engage in gainful business or employment rather than being kept by the taxpayer.
[6]
The Applicant's Position
The Applicant does not believe he poses a threat to society or to the tattoo industry. He maintains that his period of criminal activity reflects a dark period in his life from which he has learned and rehabilitated. He emphasised that in the last three years he had not had any drug use or any trouble with the police.
He confirmed that as a tattooist he never had his licence cancelled or any complaints about his work or done anything wrong from an industry point of view. He believes that having paid his debt to society he should be able to fulfil his passion and apply his trade. He should not be made to work in an industry that gives him no satisfaction or is dangerous to his health. His former colleague, Mr Allen, stated that his illness rules out applying his stonemason skills in other trades which involve dust-related products, including concreting. The Applicant has been reluctant and anxious about undergoing medical tests that might lead to a workers' compensation claim and would prefer to earn a living from tattooing.
The Applicant considers that working with Justin Nichols will provide not only the opportunity to apply his trade and passion as a tattooist but to do so in a much more positive environment than that to which he was exposed in the Gold Coast. He noted that Justin Nichols is very anti-drugs and carries that through his contract terms. Mr Nichols confirmed his operator licence had never been cancelled or subject of complaints.
The Applicant submits it would not be fair to prevent him from working as a tattoo artist. This would amount to a form of double punishment for mistakes he made during a short portion of his life.
[7]
The Respondent's Position
The Respondents recall the purpose of the licencing regime is to "rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct." In light of the Applicant's recent criminal history, including dishonesty and drug offences, the Respondents submit that it would be inconsistent with the purpose of the statutory regime to grant him a licence and, therefore, not in the public interest.
Relatedly, the Respondents submit that it would undermine the integrity of the licencing regime for the Applicant to be granted a licence. They pointed to his series of disparate criminal offending and that "he has been working as an unlicensed tattooist in New South Wales" (an allegation since withdrawn). The Respondents add that there is inadequate evidence of rehabilitation. In any event, they submit, insufficient time has passed for the Tribunal to be satisfied that the Applicant has in fact rehabilitated and is unlikely to engage in similar conduct in the future.
The Respondents submit that granting the Applicant a licence would erode public confidence in the tattoo licencing scheme. One of the objectives is the exclusion of persons with criminal tendencies from the industry, with a view to protecting public safety. The public would not have confidence in the integrity of that scheme if a person with recent and extensive criminal offending, and no adequate evidence of rehabilitation, were to be granted a licence.
The Respondents also state that the Applicant's private interest in not wishing to work as a stonemason is only relevant insofar as there is a general public interest in employment. The Respondents recall that the Applicant's private interests should only be considered insofar as those matters have a wider public interest. As the Applicant is currently employed, the argument that there is a public interest in not having him kept by the taxpayer is not engaged.
The Respondents agreed that the public interest in rehabilitation was a matter the Tribunal could consider. However, in the circumstances of the present case, the Applicant had not sufficiently established rehabilitation and the Tribunal must consider the need to maintain the robustness of the licensing scheme.
According to the Respondents, the Applicant should not be locked out of the tattoo industry forever and could try applying again some time in the future.
[8]
Consideration
As noted above, the main object of the TP Act is to rid the tattoo industry of OMCG influence and infiltration by other criminal elements. There is no suggestion that the Applicant has had any association with any OMCG or knowing links with them. He does, however, have a concerning criminal record, as set out in detail in paragraph 26 above.
As set out above, the Tribunal has observed that the Applicant's last criminal offence was over 3 years ago, and many of the crimes were committed during a period of his life when he was using drugs. There is evidence of the Applicant's rehabilitation, remorse, and determination to make a fresh start in life.
The Applicant stated he wants to provide for his family and take up an opportunity for a reliable income working in his field of passion. This in and of itself is not relevant to public interest (Austin at [72]), but it has been acknowledged that there is a public benefit in a person being able to engage in gainful business or employment rather than being kept by the taxpayer. (Larter at [110], Ting at [74]). The Respondents submitted that such a public interest consideration is inapplicable here due to the fact that the Applicant is currently employed. The Tribunal has not placed great weight on the private financial interest of the Applicant, however has noted that the Applicant would prefer to make a gainful income from tattooing than fall back on workers compensation from his exposure to the diseases that have inflicted his masonry colleagues.
More pertinent to the present case is the public interest in assisting the rehabilitation of persons who have fallen foul of the criminal law, so far as is possible without endangering public health, safety or security. (Wright, Ting, Larter). The evidence here suggests that licensing the applicant as a tattooist would assist the rehabilitation process. Balancing that interest against health, safety or security concerns, the Tribunal notes there have been no complaints about the Applicant's health and safety in the tattoo industry, nor on his skill as an artist. The Tribunal has already rejected the Respondents' allegations that the Applicant practised while unlicensed. The Respondents considered that the offences committed by the Applicant were too recent to show rehabilitation, however for the reasons considered above at paragraphs 70-71, the Tribunal disagrees.
The Tribunal concludes that a member of the public who might use the Applicant's services knowing the Applicant's record, would not object to the Applicant being their tattoo artist. (Mielczarek).
Notably, the Applicant has applied for a tattooist licence, not an operator licence, so he will be under supervision. The Tribunal was impressed by Mr Nichols and his supervision of the Applicant gives the Tribunal additional confidence that improper conduct will not occur if the applicant were granted the licence. (see Larter at [101], Ting at [66]).
Nevertheless, in view of the connectedness of the drug offences with the other serious criminal offences in his record, and the relatively limited time that has elapsed since his last conviction, the Tribunal considers it would be prudent to stipulate that any licence issued should contain a condition requiring total abstention from all prohibited drugs. Although, as noted in Larter (at [112]), that is already a legal requirement (and would be also be a term of his contract at Mr Nichols' tattoo parlour), its incorporation as a section 10(1)(a) condition would mean that even a single instance of drug abuse would, under section 26(2)(a)(iii), empower the chief executive to cancel the licence without the need to be ready to prove that the holder was no longer a fit and proper person.
For the reasons set out above, the Tribunal is satisfied that it would not be contrary to the public interest to grant him a tattooist licence.
[9]
Conclusion
For the reasons set out above and having considered all the evidence before me including the adverse security determination by the Commissioner of Police, I find that the Applicant is a fit and proper person to hold a tattooist licence and that it would not be contrary to the public interest for such a licence to be granted to him. On this basis, the decision to refuse Mr Abarquez a tattooist licence should be set aside and a tattooist licence should be issued to him. The licence issued to him should, however, be subject to a condition requiring total abstinence from all or any prohibited drugs.
[10]
Orders
The Tribunal makes the following orders:
1. Decision under review set aside.
2. A tattooist licence is to be issued to the Applicant.
3. The licence referred to in (2) is to be subject to a condition requiring total abstinence from all or any prohibited drugs.
[11]
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.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 November 2021
The TP Act "provides for the licensing and regulation of body art tattooing businesses and body art tattooists."
The TP Act was introduced with a view to imposing requirements that would eradicate "criminal elements" from the tattooing industry. As per the second reading speech, the particular focus was on eliminating Outlaw Motorcycle Gangs ("OMCGs") from the tattooing industry. However, several decisions of this Tribunal have acknowledged the "broader intention" of the TP Act is to "rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct." (Austin v Commissioner of Fair Trading & Anor [2016] NSWCATAP 179 ("Austin") at [33], Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 ("Smith"), Wright v Commissioner for Fair Trading [2017] NSWCATAD 98 ("Wright") at [118], Allen v Commissioner for Fair Trading [2015] NSW CATAD 273 ("Allen") at [47]).
It is an offence under Section 7 of the TP Act for an individual to perform any body art tattooing procedure for fee or reward unless authorised to do so by a tattooist licence. It is also an offence to perform any body art tattooing procedure (whether or not for fee or reward) at premises in respect of which an operator licence is in force unless authorised to do so by a tattooist licence.
Part 3 of the TP Act establishes the licensing scheme for body art tattooing in NSW, providing for two kinds of licence: "operator licence" and "tattooist licence". The Applicant applied for a tattooist licence, which, according to Section 9(3) of the TP Act, "authorises the licensee to perform body art tattooing procedures in accordance with this Act and the conditions of the licence."
A person may apply to the Secretary (defined to mean the "Commissioner for Fair Trading") for a licence under section 11 of the TP Act. The application must be accompanied by evidence "concerning previous, existing or impending employment as a body art tattooist". Under section 14(1) of the TP Act, when the Secretary receives an application for a licence, the Secretary -
(a) may carry out such investigations and inquiries in relation to the application as the Secretary considers necessary for a proper consideration of the application, and
(b) is to refer any application that the Secretary considers to have been duly made (along with any supporting information) to the Commissioner for an investigation and determination as to any one or more of the following -
(i) whether the applicant is a fit and proper person,
(ia) whether a close associate of the applicant is a fit and proper person,
(ii) whether it would be contrary to the public interest for the licence to be granted or renewed.
Once an application for a licence is referred to the Commissioner under section 14(1)(b), section 19 of the TP Act provides that the Commissioner is to "inquire into and determine, and report to the Secretary" on (a) whether the applicant is a fit and proper person to be granted the licence, and (b) whether it would be contrary to the public interest for the licence to be granted. In this respect, the Commissioner may have regard to "any criminal intelligence report or other criminal information held in relation to the applicant or licensee" that is (a) relevant to the procedures proposed to be performed, (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the licence were granted.
If the Commissioner determines that an applicant is not a fit and proper person, and/or that it is contrary to the public interest for the licence to be granted, such a determination is an "adverse security determination" ("ASD"), as defined in Section 3(1) of the TP Act.
If the Commissioner makes an ASD in respect of an applicant for a licence, then section 16(3) of the TP Act provides that the Secretary must reject an application for a licence.
Under section 27(1)(a) of the TP Act, a person whose licence application has been refused may apply to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("ADR Act"). If an application for a tattooist licence has been refused on the ground of an ASD made by the Commissioner about an applicant for administrative review, section 27(3)(c) of the TP Act provides:
the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner.
Jurisdiction and Issues to be Determined
This Tribunal has jurisdiction under section 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and section 27(1)(a) of the TP Act to review the Decision to refuse the Applicant's application for a tattooist licence.
In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision is" having regard to the material then before it, including any relevant factual material, and any applicable written or unwritten law. The standard of proof that applies is the civil standard, that is, on the balance of probabilities.
While there is no jurisdiction conferred on the Tribunal to review the ASD itself, it is clear from the terms of section 27(3)(c) that the Tribunal has a discretion, not available to Fair Trading, as to whether or not to grant a licence notwithstanding the ASD. (Smith at [13]-[15])). The Tribunal makes its decision in place of the Secretary's and there is no presumption that the Secretary's decision is correct. The Tribunal considers the matter afresh, is not restricted to considering the material that was before the decision-maker, but may have regard to any relevant material before it at the time of review (ERI v Commissioner for Fair Trading [2021] NSWCATOD 95 ("ERI") at [8]).
The relevant questions for the Tribunal in the present case are:
1. Is the Applicant a fit and proper person to hold a tattooist licence?
2. Would it be contrary to the public interest for a tattooist licence to be granted to the Applicant?
The Fit and Proper Person Test in the context of the TP Act
The words "fit and proper person" are not defined in the TP Act. The meaning of the phrase in the context of licensing has been developed by the High Court (e.g., Hughes and Vale Pty Ltd v New South Wales (no. 2) (1955) 93 CLR 127). The principles laid down by the High Court have been distilled by the Appeal Panel of this Tribunal in Austin at [58], adopting Montgomery SM's reasons at first instance, as follows:
(1) The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground.
(2) "Fit" with respect to an office is said to involve honesty, knowledge and ability.
(3) 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.
(4) 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 it will not occur, or whether the general community will have confidence that it will not occur.
(5) In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question.
(6) The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.
This summary of the key propositions has been oft-cited with approval (e.g., ERI, Smith, Wright, Ting v Department of Fair Trading [2017] NSWCATAD 304 ("Ting"), Larter v Commission of Fair Trading [2019] NSWCATAD 81 ("Larter")).
In the context of the TP Act, it has been held that unfitness can be indicated by "criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law." (Allen at [49]; Mielczarek v Commissioner of Fair Trading [2017] NSWCATAD 5 ("Mielczarek") at [27]). The Appeal Panel in Austin considered a criminal record relevant because it showed a "disregard for the law and the rights and safety of others" ([79]-[80]):
We accept that the standard of character required of a tattooist does not equate with the high standard of character required of, for example, a legal practitioner. However, in our opinion, qualities of good character are introduced as an aspect of the licence assessment by the legislature's adoption of the commonly used expression 'fit and proper person'. They bear upon the obvious consideration of public safety.
Secondly, as we have already explained, there was no real issue in the proceedings that, in the absence of rehabilitation, Mr Austin's criminal history, including the nature and seriousness of it, leaving aside any relationship with OMCGs, stood in the way of a successful application by him for a licence. In our opinion, it was correct that it did so because it showed a disregard for the law and the rights and safety of others which was inconsistent with his designation as a fit and proper person and warranted a lack of confidence that he would conduct himself as a tattooist safely and honestly.
The appropriate standard of whether an applicant is a fit and proper person to hold a licence is judged by the requirements of the tattooist role and the community expectations of an individual in that position. The community expects a tattooist to display honesty in interactions with the general public, artistic ability, knowledge of the regulations and health and safety requirements. (ERI at [39],). But a tattooist is not required to have led a prior life of "unblemished rectitude" (Allen). Where there is criminal history, some evidence of rehabilitation must be present (Austin at [75] Larter at [63], Birch v Commissioner for Fair Trading [2017] NSWCATAD 166 ("Birch") at [68]).
The Tribunal notes that the Applicant has applied for a tattooist licence, not an operator licence. A tattooist is not responsible for the conduct of other staff, does not manage the operation or have business responsibilities. (ERI at [39]ff).
Finally, questions of financial disadvantage or hardship on an applicant are not relevant to the assessment of that person's fitness and propriety (Austin at [73]).