TATTOO PARLOURS-- tattooist licence - fit and proper person - criminal history - confidential evidence.
Legislation Cited: Administrative Decision Review Act 1997
Tattoo Parlours Act 2012
Cases Cited: Assi v Roads and Maritime Services [2013] NSWADT 159
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Source
Original judgment source is linked above.
Catchwords
TATTOO PARLOURS-- tattooist licence - fit and proper person - criminal history - confidential evidence.
Legislation Cited: Administrative Decision Review Act 1997Tattoo Parlours Act 2012
Cases Cited: Assi v Roads and Maritime Services [2013] NSWADT 159Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, (1982) 42 ALR 209
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
(1998) 194 CLR 355
Saffron v FCT (No. 2) (1991) 102 ALR 19
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 211
Judgment (9 paragraphs)
[1]
reasons for decision
The applicant Christopher Allen applied to this tribunal on 7 September 2015 for review of a decision by a delegate of the Commissioner of Fair Trading (CFT) under s 27(1)(a) of the Tattoo Parlours Act 2012 (TP Act) dated 31 August 2015 to refuse to grant the applicant at tattooist licence under the TP Act. The applicant is currently employed as a tattooist at the Golden Needle Tattoo Parlour, which is operated by his father, John Allen.
The Commissioner of Police had on 14 August 2015 made an adverse security determination (ASD) under s 19(1) of the Act, finding that the applicant is not a "fit and proper person" to hold a licence. The Director-General of Fair Trading is required to refer any licence applications to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted a licence or whether it would be contrary to the public interest for a licence to be granted, or both (s 14).
A delegate of the Commissioner of Police reported to the CFT under s 19(1) of the Act that that the delegate had inquired into the application and determined that the applicant was not a fit and proper person to be granted a licence because of his criminal history. The delegate also advised, pursuant to s 36(1) of the Act, that the applicant is disqualified from holding a licence, permit or other authority under the Firearms Act 1996, the Weapons Prohibition Act 1998 and the Security Industry Act 1997 as a result of his conviction of offences against s 61 of the Crimes Act 1900 (Common Assault) on 20 June 2011. On that occasion the applicant was fined $400. As is required by s 16(3)(c) of the Act, the Chief Executive of the Department of Fair Trading refused to grant the licence.
Montgomery SM granted a stay on 21 September 2015.
[2]
Applicable legislation
Section 16 of the TP Act provides as follows:
[3]
16 Decision of Chief Executive in relation to licence application
(1) The Chief Executive may, after considering an application for a licence and the determination of the Commissioner under section 19 on the application, grant the licence or refuse to grant the licence.
(2) The Chief Executive may, in such circumstances as the Chief Executive considers appropriate, treat an application for a licence as having been withdrawn.
(3) The Chief Executive must not grant a licence if:
(a) the Chief Executive is satisfied that the application for the licence was not duly made, or
(b) the applicant is a controlled member of a declared organisation, or
Note. Controlled members are prohibited from applying for licences - see section 27 of the Crimes (Criminal Organisations Control) Act 2012.
(c) an adverse security determination has been made by the Commissioner about the applicant.
(4) Without limiting subsection (1), the Chief Executive may refuse to grant an operator licence if the Chief Executive is satisfied that:
(a) a prohibition order under Part 3 of the Public Health Act 2010 in connection with the carrying out of skin penetration procedures is in force in respect of the proposed licensed premises, or
(b) development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the proposed licensed premises for the purposes of carrying on the body art tattooing business and such consent or approval has been refused or has not been granted.
(5) The regulations may also provide mandatory or discretionary grounds for refusing the granting of a licence.
(6) A licence confers no right of property and is incapable of being transferred, assigned or mortgaged, charged or otherwise encumbered.
Note. A non-transferable licence is not personal property for the purposes of the Personal Property Securities Act 2009 of the Commonwealth. See the definitions of licence and personal property in section 10 of that Act.
(7) (Repealed)
Section 19 deals with security determinations:
[4]
19 Commissioner to make security determinations about applicants and licensees
(1) If an application for a licence is referred to the Commissioner for investigation under section 14, the Commissioner is to inquire into and determine, and report to the Chief Executive on, either or both of the following:
(a) whether the applicant is a fit and proper person to be granted the licence,
(b) whether it would be contrary to the public interest for the licence to be granted.
(2) The Commissioner may also investigate and determine, whether at the request of the Chief Executive or on the Commissioner's own initiative, either or both of the following and report to the Chief Executive on them:
(a) whether a licensee continues to be a fit and proper person to hold his or her licence,
(b) whether it would be contrary to the public interest for the licensee to continue to hold his or her licence.
(3) For the purpose of making a determination on a matter referred to in subsection (1) or (2), the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant or licensee (or a close associate of the applicant or licensee) that:
(a) is relevant to the business or procedures proposed to be carried on or performed, or carried on or performed, under the licence, or
(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence or the licensee continued to hold the licence, or
(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence or the licensee continued to hold the licence.
The tribunal has jurisdiction under s 27(1)(a) of the Act to review the Chief Executive's refusal or failure to grant a licence to a person. The issue in this case is thus whether the correct and preferable decision is to affirm, vary or set aside the decision to refuse the applicant a licence and, specifically, whether the applicant is a fit and proper person to hold a tattooist licence.
[5]
Applicant's evidence
At the hearing the applicant adopted his statement dated 26 September 2015 (exhibit A1) in which he said inter alia that he is aged 38 and works as a tattoo artist for his father, who has been in the business since 1972. In 1999 the applicant attended a skin penetration guideline training workshop conducted by the New South Wales Health Department, and later that year began a course in basic microbiology, infection and disease, completing it 3 months later.
After working in a variety of positions, he started in April 1999 as an unpaid apprentice for his father, and continued in that role until December 2003, when he commenced as a paid worker, receiving a share of about 60 percent of the work he did. In 2002 he was accepted as an associate artist member of the National Tattoo Association in the United States, membership in that category being limited to 1000 people worldwide. It is difficult to become a member and in Australia there are only fifteen members. In 2003 he was accepted as a member of the Professional Tattooing Association of Australia, another organization that is difficult to join.
Early in 2005 his mother became very sick and was diagnosed with cancer, which led to her death in 2009. He became very depressed and worked only part-time in the industry from July 2006 until 2012, when "my problems started and I was convicted of a number of offences". During that period he obtained psychiatric help and was on medication, but has since turned his life around and has been a full-time tattooist since July 2013.
He began living with his de facto partner Kelly Cooper in 1995 and they are still together. They have six children together, including Jacob, aged 18, who suffers from mild cerebral palsy. The two eldest children have left home. Before stopping work because of the letter he received from the Department of Fair Trading, he was taking home about $500-$600 per week. Kelly is on Centrelink benefits and receives about $360 per week. He has a motorcycle but they do not possess a car. Tattooing is the only work in which he has qualifications and he believes that at his age, if he loses his tattooing licence, his prospects for obtaining work to support his family are poor.
As regards the assault charge for which he was convicted in January 2012, he states that in February 2011, his son Jacob went to the local store with his cousin and sister to buy some goods. While they were returning home a car containing three people pulled up and one person got out. Jacob's sister and cousin ran off, as they were frightened, but because of his palsy, Jacob was unable to do so. He told the applicant that "the guy from the corner shop got out of the car, held up a knife in my face and told me that "if you go to my shop I will cut you like a pig". The applicant was charged by the police and engaged a local lawyer who told him to plead guilty, without listening to his story. The police were not interested and did not interview Willow (the applicant's daughter) or Nicholas (the cousin).
[6]
Respondents' evidence
The respondents called no oral evidence but relied on the s 58 documents (exhibit R1), the Commissioner's ASD file (exhibit R2) and other documentary material, including an affidavit dated 10 December 2015 by Jennifer Windsor, a solicitor with the police force (exhibit R4). Ms Windsor stated that as the applicant's solicitor on 29 September 2015 served some submissions that objected to all the fact sheets tendered by the respondent on the ground that they came from the police and not from the court papers, she had obtained from Blacktown Local Court 21 fact sheets relating to charges referred to in the ASD, together with the court files relating to two of the above matters. In relation to 5 other matters, the court was unable to locate a record.
The most recent fact sheet (H44728233) described how at 8:30 pm on 24 February 2011, the victim, Mandeep Chohan, was seated at the front counter of his mixed business in Johnson Avenue, Seven Hills when the applicant entered, walked up to him and the witness (the victim's mother), and said, "Where is your son, how dare he pull a knife on my kid, call him now". At that point the applicant could not see the victim, as he was sitting on the floor behind the front counter. After hearing what the accused had said, the victim rose to his feet, and while he was doing so the applicant swung a black sports bag that struck the victim on the left side of the head. The witness then seized the bag and the applicant struggled to take it from her. The victim recognized the accused as a former customer and as someone to whom he had delivered Thai food a few weeks previously. The applicant then left the store, followed by the victim, who had picked up a metal rod with which to protect himself and the witness. The victim and the applicant exchanged some words and the applicant then walked off in the company of a young male who had been waiting outside during the incident. The victim recognized the young male as someone who had caused him some problems recently by loitering around his shop and intimidating customers. The victim then contacted police. The fact sheet then describes how the applicant was identified, arrested and charged and notes that the applicant told police that his son had told him that the victim had pulled a knife on him at some point.
As the main area of dispute in the present matter appeared to be that the applicant believed he should not have pleaded guilty to that charge and had only done so at a result of being told by his lawyer (whose name he could not recall) to do so, the police made enquiries that enabled them to locate the lawyer, Mr Joseph Nashed, of Parramatta. At the hearing the respondents tendered an affidavit by Mr Nashed dated 10 December 2015 (exhibit R3) in which the deponent stated inter alia that he had been shown a statement by Mr Allen alleging that he had instructed him to plead guilty, did not listen to his story and failed to conduct a defence of self-defence, which was available because he had in fact been acting in self-defence. Mr Nashed rejected all those allegations. He related how Mr Allen had contacted him on 9 January 2012 in relation to the charge which was listed for final hearing before Blacktown Local Court on 13 January 2012. At the time, the applicant informed him that he had already entered a plea of not guilty in answer to it.
[7]
Applicant's submissions
The applicant's solicitor served some written submissions dated 28 September 2015 in which he pointed out inter alia that the applicant is now aged 38, and his first criminal conviction was in December 1991 when he was aged 14. His first conviction as an adult occurred in 1996 when he was 18. From 1996 until 2005, he committed no offences, and explains the later offences as having been caused by his mother's ill-health and her eventual death in 2009.
The last offence occurred in 2011, following a gap of 6 years, and he was convicted in 2012. He was badly represented by his then lawyer, who should have entered a plea of not guilty. There were 3 witnesses to what occurred, Jacob, Willow and her friend Nicholas. If those witnesses had given evidence, the charges probably would not have succeeded. But for that offence, the applicant has had no charges since 2008.
He is in a stable relationship with his partner and has 6 children. He works full-time for his father as a tattoo artist and there is no evidence of any complaints from either the police or the local council. His father speaks highly of him, as do the people who have offered references. He is a member of two professional associations, the joining of which is a difficult task. One needs to be a high performer to keep one's membership of those bodies. He poses no danger to the public and is a fit and proper person to conduct himself as a tattoo artist.
His only work qualification is as a tattoo artist. He earns a reasonable living and is able to support his family, but given his age and limited education, he would have little prospect of finding reasonably paid employment. Not allowing him to work at his profession would be harsh and unjust. His family would suffer financial hardship without his contribution. He has few assets other than an old motorcycle, and rents the house they live in. Licences are renewed every 3 years, and if in the meantime he were to be convicted of an offence, his future licence would be at risk. For that reason the chances of his re-offending are slight.
At the hearing Mr Maspero submitted that the concept of fitness and propriety was widely defined. To be a tattoo artist was not like applying for admission as a lawyer. The legislation's aim was simply to free the industry of the biker criminal element.
The applicant admits his criminal record, apart from the 2011 common assault charge, and has given reasons for his conduct. He might not have pleaded guilty to the 2011 charge if he had been better represented. His lawyer at the time failed to investigate the facts and circumstances of the case.
[8]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act), the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. The tribunal has jurisdiction under s 27(1) of the TP Act, which empowers it to form its own view of the fitness and propriety of an applicant, although that does not require reviewing the ASD itself.
Under s 9 of the Act, two kinds of licence may be granted: an operator licence and a tattooist licence. The person may apply to the Director-General for a tattooist licence pursuant to s 11 of the Act. The applicant is required to submit a written statement in respect of close associates and applicants must be fingerprinted and palm printed: ss 12, 13. On receiving an application for a licence, the Director-General is to refer the application to the Commissioner for an investigation and determination as to whether the applicant is a fit and proper person to be granted a licence, and whether it would be contrary to the public interest for the licence to be granted.
By virtue of s 19, the Commissioner is to inquire into, determine and report to the Director-General on those matters. For the purposes of making his determination, the Commissioner may have regard to criminal intelligence reports or other criminal information held in relation to an applicant, namely that which:
1. is relevant to the business or procedures proposed to be carried on or performed, or carried on or performed, under the licence, or
2. causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence or the licensee continued to hold the licence, or
3. causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence or the licensee continued to hold a licence.
Neither the Commissioner nor the Director-General is required to give any reasons for the determination or for not granting a licence, if such reasons would disclose any criminal intelligence report or other criminal information: s 20.
[9]
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: 24 December 2015
Parties
Applicant/Plaintiff:
Allen
Respondent/Defendant:
Commissioner for Fair Trading + Commissioner of Police, New South Wales Police Force
The applicant had then gone around to the shop to confront the alleged victim. He did not walk into the shop with a face covering and did not threaten to kill him. He did not hit him. Willow and Nicholas returned home very distressed about the incident. Willow said to him words to the effect of, "The man from the corner shop pulled up in a car. He pulled a knife out and went to open the door, and I ran off with Nicholas".
At the hearing the applicant said that the lawyer had not interviewed Jacob or Willow. The complainant/victim, Mandeep Chohan on a previous occasion had come to the applicant's house to deliver food, but Kelly had refused to accept delivery. Mr Chohan threatened to kill her, and she complained to police about the incident. The police had not interviewed any of them about the complaint.
In cross-examination the applicant admitted that he had a long criminal history, but did not admit the 2011 assault charge. Mr Chohan had punched him, and he had struck him with his bag. To the best of his recollection it was one motion. When his attention was drawn to his statement (exhibit A1) in which he had said he had not hit the victim, he said he did not recall saying that he had not hit him and had never denied that he had. For the past year he had been under stress and it was hard to know head or tail of what had happened. The statement did not say what he had hit the victim with. If he had said he had not hit him, it was a mistake.
His attention was then drawn to a passage in the ERISP transcript (part exhibit R3), pp 30 - 31, in which he was quoted as saying that he had "Never had any dealings with them (the operators of the local store) whatsoever, other than buying cigarettes from there", that he had had "nothing to do with them whatsoever". He replied that he had pleaded guilty, and asked why he was being "prosecuted again". He did not understand any of it. From the outset he had never denied having struck Mr Chohan and agreed that the fine he received was a fair result. He had pleaded guilty to save stress and time, but the victim had attempted to assault his son and daughter and he was trying to protect them. Referring to p 31 of the ERISP record, he said he did not recall any of it, because it was so long ago. He did not recall whether his son had told him that Mr Chohan had pulled a knife on him, but his daughter had said who it was.
When Ms Rao pointed out to him that in his statement (exhibit A1) para 22, he had said that Jacob had told him that "the guy from the corner shop" was the assailant, he replied that it was so long ago and he was so stressed, he did not recall. He did not know if either or both versions were unreliable. He did not understand, but he did not dispute that he had hit the victim. Similarly, as regards his ERISP comment that he had "distanced" himself from all of the relevant events because they are opening another tattoo shop and he is trying to keep his business going, and that the Thai food delivery episode was the first and only time he had come face to face with the victim (p 32, Q26), he repeated that he could not recall any of it because it was so long ago. He did not explain why he had told the police that he had not retaliated and that he had not committed an offence (Q47, 48), but said he had never worn any face covering.
The applicant was then asked about a passage in the ERISP transcript where he had said he had never assaulted anyone and would not do so for any reason, including for any reason related to his children. He replied that he had done nothing wrong and had only defended himself. Later in the interview he had repeated that he had done nothing wrong, "I did not, I, I didn't assault him in the shop. I didn't confront him in the shop. The only time I ever confronted him was in, on my property", and that "I didn't go in there [into the shop] at all" (Qs 69-71). He further replied that he did not recall, he had hit him with the bag and had pleaded guilty because he was afraid of jail. He then repeated that he had never confronted the victim in the shop. Initially he had pleaded not guilty, but he did not trust the police and had decided to "cop it". The lawyer he had engaged was "an arse" who cared only about the money. It was all confusing and frustrating, he had thought he was helping his children by making the whole matter go away. He had paid the $400 and was pleased that he had not been sent to jail.
The applicant also tendered a statement by John Allen, his father, who said inter alia that he had opened his own tattoo shop in 1972 in Blacktown and had been in the business ever since. He had operated in his current shop for about 23 years. He was married in 1972 to his wife Robyn and they had three children, including the applicant. Christopher had a talent for drawing but his academic skills were limited and he left school at the age of 14. He had a number of jobs over the years and also wanted to be a tattoo artist. At that stage he was not sufficiently committed to become a tattooist and was also mixing with the wrong crowd and got into trouble. In April 1999 at the age of 20 he was ready to undergo an apprenticeship in the shop and did so.
As a tattoo artist he is "wonderful operator, always keeping up with the latest trends and very well respected in the industry. He works very well with clients and retains much of his clientele. He is a member of the National Tattoo Association, of which there are only 15 members in Australia and 1000 members worldwide. He is also a member of the Australian association. Both bodies set very high standards. His mother's fatal cancer greatly affected Christopher. He was suffering from depression and was treated by a psychiatrist. Between 2006 and 2012 he worked only irregularly for the business but then decided to work in it and has been wonderful. His client base has been growing and he was going well until the letter from Fair Trading told him to stop working. In that period he kept away from the shops. He is a very talented artist and does everything by the book. He takes his time and never rushes a job".
Christopher is a large part of his business, and his not having a licence would be a great loss to both of them. To replace a man of his calibre would be difficult and the business would suffer.
The applicant also tendered a statement dated 28 September 2015 by his daughter Willow Allen, who said that she had gone to the corner shop with her friend, her cousin and her brother. After they left they were walking back when a car pulled up next to them. It was the man who works in the shop they had been to. He began "yelling at us, saying tell all your friends to stay away from my shop". He then pulled out a knife and said he would "gut us" if they caused any trouble for his shop. At that point she began to run home to tell her mother, who called the police. When they pulled him over they could not find a knife, so they did not charge him.
The applicant tendered a number of character references (exhibit A3). One, dated 23 August 2015, is from Mr Brian Perry of Lalor Park who states that he is a close family friend and neighbour who has known the applicant for about 15 years and has been a neighbour for 12 years. He acknowledges that the applicant has had "a few misadventures in his life", but says he has grown from them and has excelled in all his personal and professional ambitions. He has a caring family that he supports and cares for emotionally and financially, as well as the family-owned business where he works, the Golden Needle Tattoo Studio at Blacktown, with his father and brother. He is confident in saying that Christopher Allen is well adjusted, caring member of the local community. Ms Lucy Jorden, also of Lalor Park, in a letter dated 23 September 2015 states that she has had the pleasure of knowing the applicant for the past five years. She notes that he has experienced "hardships" over the years, but through his love for his family and his position in the family business, he has grown from those hardships and difficulties to become a wonderful family man and a hard-working, honest and very dependable person. The most important things to him are is strong family commitment and his very strong work ethic, and to be able to support and provide for his partner and his six children.
Ms Rebecca Collier, of Blacktown, states in a letter dated 26 September that the applicant has been her tattooist for the past two years and during that time has become a good friend. He is a bright and talented artist that she highly recommends to anyone and respects and trusts him because of the comfortable, friendly, welcoming approach he takes towards his customers. He has a fantastic talent that needs to be nurtured, not wasted. Ms Sandi Smith of Lalor Park has known the applicant for about 16 years and their sons have attended the same schools and have grown up together. She has enjoyed those years with Chris and his family and they have had many birthday and Christmas celebrations together as families. During that time he had been very responsible. He has a caring nature and it is a joy to watch him with his family. As a single mother, she has appreciated his being there as a male role model for her son, providing sound and level-headed advice. He has held a steady job in his family business for the past fifteen years and takes great pride in producing high quality work for his clients.
None of the applicant's witnesses, apart from the applicant himself, were required for cross-examination.
At a conference with the applicant 10 January, Mr Allen confirmed that his instructions were to plead not guilty and that his defence was as stated in his ERISP recording, namely that the incident alleged by the complainant did not happen and that he was not at the shop at the time the alleged offence was committed. In the interval before the hearing, Mr Nashed spent considerable time preparing for it, including taking detailed case notes, copies of which were annexed to his affidavit. He was of the view at that time that Mr Allen's defence case presented some questions of identification and credibility. While in the ERISP he had denied ever being present at the scene, there was on the other hand the evidence of two prosecution witnesses who provided statements to the contrary. He prepared the case in advance to the best of his ability, consistently with the case theory that the applicant had not been at the scene of the alleged offence.
On the morning of the hearing, the prosecution in accordance with usual practice raised the question of possible negotiations and a guilty plea. After taking into account the prosecution case as well as Mr Allen's defence, Mr Nashed gave Mr Alan further advice in conference about his prospects of successfully defending the assault charge. Mr Allen had agreed with his assessment by acknowledging that the prosecution case was strong and that he would probably be found guilty. He then provided Mr Nashed with written instructions to enter a guilty plea. A copy of those instructions was annexed to the affidavit.
In accordance with his client's instructions, he negotiated with the police prosecutor concerning facts that would be admitted on sentencing. He obtained police agreement to the omission of various matters from the police facts that would have aggravated the offence. Following the guilty plea, Mr Allen was convicted and fined $400. He told Mr Nashed that he was very pleased with the outcome of the case and thanked him. Subsequently he even referred people to Mr Nashed for legal representation. He did not instruct the applicant to plead guilty but spent considerable time preparing to run his defence case and was ready and willing on the morning of the hearing to do so. Rather, he gave Mr Allen legal advice in light of the police offer to accept a plea with some amendments to the police facts. He then instructed Mr Nashed to enter a guilty plea, not vice versa. He did listen to Mr Allen's story, and at the conference on 10 January was instructed that he was not at the shop at the time of the offence. He rejects the allegation that he had failed to run an available defence of self-defence. On the basis of the instructions he had received and the contents of the ERISP, a defence of self-defence was impossible, as it was inconsistent with the applicant's instructions that he was not at the shop, and self-defence was never raised by him during the ERISP. In light of those instructions it was not ethically or legally open to maintain a defence of self-defence.
The respondent also relied on some confidential parts of exhibit R2 that will be referred to below.
He has a partner who is unable to work and 6 children, 4 of whom are living at home. He has lived within the law for several years and has an incentive to remain within the law, because any new conviction could cause loss of his licence. The ERISP interview with the police was conducted under high pressure and in circumstances in which the applicant could say the wrong thing. There is a tendency for people to trust their lawyers, but in this case the applicant's solicitor could have done better. Mr Allen has tendered a number of supportive character references.
While the Director-General in some circumstances has a discretion as to whether to grant a licence, a licence must not be granted if the Commissioner makes an adverse security determination in relation to the applicant: s 16(3)(c). A licence once granted remains in force for three years and may not be renewed: s 17.
As was noted above, under s 27(1)(a) the tribunal may review the Director-General's refusal or failure to grant a licence, but the tribunal is not expressly granted jurisdiction to review any report or determination made by the Commissioner. It is not, however, prevented from determining whether the Director-General made the correct and preferable decision merely because of the Commissioner's determination. Unlike the Director-General, therefore, the tribunal has a discretion to grant a licence notwithstanding an adverse security determination made by the Commissioner. Although the Commissioner's report or security determination is not under review, the tribunal may nevertheless decide to grant a licence despite the ASD.
The assessment of whether an applicant is a fit and proper person rests with the Commissioner, but the Act makes it clear that it is the Director-General's decision that is under review, and not the Commissioner's determination. Under s 8(2) of the ADR Act, the person or body whose decisions are administratively reviewable is taken to be the only administrator in relation to the making of an administratively reviewable decision, even if some other person or body also had a role in the making of the decision.
The provisions of the TP Act and the power that it confers must be construed and applied in such a way as to be consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, [69]. The Act contains no objects clause, but the tribunal may have regard to the Minister's second reading speech to ascertain the purpose of the legislation, the mischief that it was designed to cure. The second reading speech of the TP Act noted that the Act was introduced in response to gang crime in New South Wales. It aims to break the stranglehold that outlaw motorcycle gangs had over the tattoo industry. It was expected that removing bikers from the tattoo industry would reduce the reasons for rival gangs to engage in turf wars, because those businesses would no longer be symbols of a gang's territory. The Act's purpose is not, however, limited to eradicating the influence of outlaw motorcycle gangs (OMCGs) in the industry. The "fit and proper" criterion applied in the Act is of much broader application, as was explained in a comprehensive review of the authorities by Moloney SM in Smith v Commissioner of Police & Anor [2014] NSWCATAD 211 at [38] to [41].
The assessment of fitness and propriety is a question of fact to be decided objectively in relation to the activities in which the applicant, if licensed, would be engaged (ibid). It has been held to involve three things, honesty, knowledge and ability (Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 7. In Sobey v Commercial and Private Agents Board, Walters J had this to say:
In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of the 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.
In the context of the TP Act, 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. Relevant in this case are Hennessy DP's comments in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, [17]. In the context of a taxi licence, the tribunal identified factors relevant to fitness and propriety as including:
the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
the applicant's reputation in the community; and
the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences.
The applicant does not deny that he has a lengthy criminal record. It is set out in the open portions of the ASD at para 7.1 and includes 16 offences as an adult between 1996 and the 2012 case involving the assault against the shopkeeper. The offences include driving while never having held a licence (second offence), common assault, three counts of destroying or damaging property, contravening an apprehended domestic violence order, failure to appear in accordance with a bail undertaking, goods in custody, using an unregistered vehicle and supplying false information to a pawnbroker. There are also five convictions in Children's Court, including assault and stealing, between 1991 and 1993.
In his ERISP interview he explained to police when they queried him about his contradictory accounts of the events that he was taking a great deal of medication, and "I'm bipolar and I'm, and right now I take, I take Valium and stuff every, every day mate. So I can't remember, remember everything to the exact fact, exact facts and details…" (Exhibit R3, Q72). The respondent did not challenge the proposition that he was being treated for a psychiatric disorder, but there is no expert evidence before the tribunal about his precise diagnosis, the treatment he is receiving, and the effect, if any, that the condition or the medication, or both, might have on his behaviour or his mental state, including his memory.
The applicant's approach in this case is to challenge the correctness of his most recent conviction, the assault charge relating to the shopkeeper. He maintains that he was wrongly convicted because he pleaded guilty on the advice of his lawyer, and that if he had been properly represented, the charges would have been dismissed. In that event he would have had a period of approximately 8 years free of any convictions that would show he was rehabilitated and consequently a fit and proper person to hold a tattooist licence.
The general rule is that where the exercise of jurisdiction by a tribunal depends on conviction for an offence (as in the case of criminal deportation), the conviction cannot be challenged before the tribunal, other than in exceptional circumstances: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, [42]; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; (1982) 42 ALR 209. On the other hand, "where the exercise of power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based": Saffron v FCT (No. 2) (1991) 102 ALR 19, 22.
In this case the exercise of jurisdiction is not based on the conviction itself, but on an application for review of a decision by the respondent. Nevertheless, in such a case conviction and sentence are "strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted" (Ali, [43]). The Court of Appeal in Sudath v Health Care Complaints Commission explained that "The leading of evidence which challenges the facts underlying the conviction does not, without more, involve the re-litigation of the question whether the appellant was guilty of the offences so as to engage the public policy against collateral attack on a conviction" (at [103]).
The applicant's line of argument encounters a number of difficulties, the first being the inconsistencies and flat contradictions between the various accounts he has given of the relevant events:
1. In his written statement (exhibit A1), the applicant said, "I went around to the shop to confront the alleged victim…. I did not walk into the shop with a face cover and I did not threaten to kill him. I did not hit him" (at [21] - [24]).
2. During the stay hearing in this tribunal on 21 September 2015, he said that "when I walked into the shop to confront the man he sort of stood up and threw a punch at me and I hit him with my bag". He had been "pretty much" acting in self-defence (exhibit R7, p 6).
3. In his police ERISP interview, he twice said that he had not at any time entered the shop, that he did not retaliate in any way, that he had never assaulted anybody and added that he would not do so for any reason, including anything to do with his children (transcript, part exhibit R3, pp 7 to 10) (emphasis added in each case).
In addition, at the hearing he said that he could not recall going into the shop, then shortly afterwards said he had never confronted the victim in the shop, but several times admitted hitting him, and indeed claimed that he had never denied doing so.
He endeavoured to explain these inconsistencies by pleading loss of memory. On nine separate occasions, in response to nine questions, he replied that he did not recall, adding several times that it was so long ago and that he was stressed at the time. He also said that he did not "understand any of it". Yet 2011 is not such a long time ago, and his being stressed would not normally affect his recollection of an incident that was an important event in his life. As to not understanding any of it, the applicant's record shows that he is no stranger to forensic proceedings.
The applicant maintains that the lawyer who represented him on the 2011 charge told him to plead guilty without listening to his story (exhibit A1, para 23). The affidavit (exhibit R3),by the lawyer, Mr Nashed, states that he received the prosecution brief of evidence on 9 January 2012, and after studying it had a conference with the applicant on 10 January in relation to the hearing. During that conference, Mr Allen instructed his solicitor that, consistently with his statement to police on the ERISP recording, he had not been at the shop at the relevant time. Consequently, it was logically impossible to defend the prosecution on the basis of self-defence.
Mr Nashed states that despite the short period of time between Mr Allen retaining his services and the hearing on 13 January, he spent considerable time preparing for the hearing, including compiling detailed case notes. The notes, which are annexed to the affidavit, comprise 14 pages of double-spaced handwritten notes dealing inter alia with what appears to be an opening, cross-examination of Mr Chohan and a final address. From the factual detail embodied in the notes, it is obvious that Mr Nashed had previously taken detailed instructions from the applicant in relation to his version of events, as well as his background and circumstances. Mr Nashed was not called for cross-examination and his evidence completely refutes the proposition that he had not listened to the applicant's story or that he failed to present an available case of self-defence.
On the morning of the trial, given that the prosecution had two witnesses and an obviously strong case, Mr Nashed entered into negotiations with the police prosecutor for a plea of guilty on the basis that certain aggravating features of the charge would be deleted from the fact sheet. The applicant agreed that he was likely to be convicted if the matter proceeded and agreed to the arrangement. He instructed his solicitor in writing to enter a plea of guilty and initialled the amended fact sheet, which is also annexed to the affidavit. On the basis of all the evidence I find that the allegation against Mr Nashed is without substance. Making it was a discreditable act that reflects adversely on the applicant's fitness and propriety.
When giving his oral evidence, the applicant was an erratic witness who frequently became agitated when questioned about the issues in the case. He repeatedly claimed to be unable to recall matters that he should normally have been able to remember and was quite unable to explain the inconsistencies and contradictions in his earlier versions of his story. The somewhat unusual result is that his handling of the 2011 assault charge reflects adversely on him at least as much as the assault itself which, the evidence indicates, was seriously provoked by Mr Chohan.
It is now necessary to consider the confidential material in the ASD (exhibit R2).
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Relying on Assi v Roads and Maritime Services [2013] NSWADT 159, [31], Ms Rao submitted that the five references tendered by the applicant (exhibit A3) merited no weight as they made no reference to his criminal history. Three of them to allude to it, however, in euphemistic terms such as that the applicant had had "a few misadventures in his life", or that he had experienced "hardships and difficulties". Mr Eldridge, state representative of the Professional Tattooing Association of Australia Inc., stated that he was aware of Mr Allen's licence refusal and appeal and considered the decision "to be unjust and not relevant to his ability to perform his duties in his trade and profession". Experience shows that many people who provide references feel that a certain delicacy is involved in referring specifically to a person's misdeeds and prefer to make only oblique references to them. Provided that the testimonial expresses some awareness of the legal trouble in which the subject finds himself or herself, it can be taken into account, but the weight that can be attributed to it cannot be substantial. In this case the references, some of them from people who have known the applicant for many years, are very supportive and speak highly of his competence and behaviour as a tattoo artist.
Also in the applicant's favour is the fact that none of his transgressions relate to his activities or behaviour as a tattooist. He has no known links with OMCGs or other criminal elements. He is regarded as having a high level of expertise, good relations with customers and enjoys favourable standing in the industry. He appears to be a reasonably responsible family man in a chaotic way, and no doubt there is a public benefit in a person, not least a man with a large family, being able to engage in gainful employment rather than being kept by the taxpayer.
The applicant showed signs of long-term rehabilitation after the 2008 offence until the 2011 assault on the shopkeeper. That could be regarded as a sign of relapse into his earlier habits of disregard for law, or it could be viewed as an isolated incident resulting from real provocation, in the form of the dire threats made to his disabled son. Further, the authorities make it clear that fitness and propriety are to be judged in the context of the activities intended to be engaged in. Being a fit and proper person to perform tattooing does not necessarily require an applicant to have led a life of unblemished rectitude.
On the other hand, his long criminal history is most unimpressive, especially with the addition of the significant 2011 assault, which is relatively recent. His contradictory accounts of the incident, his inability to explain the substantial conflicts between them, his baseless attack on his former lawyer and his erratic performance when giving evidence seriously undermine his case. The confidential material is also of real concern. There is in addition no expert psychiatric or psychological evidence that might cast light on the applicant's current mental state and his likely future conduct.
On the basis of all the evidence, I find that the applicant is not at present a fit and proper person to hold a tattooist licence. If he is ever to reapply for a licence, one may suggest, without seeking to predict the outcome of any future security determination or Director-General's decision, that he would need at the very least to be able to point to a substantial period of rehabilitation with no offences and without coming under adverse notice of the authorities.
The decision under review is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar