Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Birch v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 166Commissioner of Police v Toleafoa [1999] NSWADTAP 9Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Director of Public Prosecutions v Smith [1991] 1 VR 63Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Health Care Complaints Commission v Do [2014] NSWCA 307
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28, (1955) 93 CLR 127
Lee v Health Care Complaints Commission [2012] NSWCA 80
Moujalli v Roads and Maritime Services [2017] NSWCATAD 141
O'Sullivan v Farrer (1989) 168 CLR 210
Project Blue Sky Inc. v Australian Broadcasting Tribunal [1998] HCA 28, (1998) 194 CLR 355
Smith v Commissioner of Police and Commissioner of Fair Trading [2014] NSWCATAD 184
Ting v Department of Fair Trading [2017] NSWCATAD 304
Judgment (10 paragraphs)
[1]
REASONS FOR DECISION
The applicant Mr Lee John Asencio applied to this tribunal on 2 February 2018 for review of a decision made by a delegate of the Commissioner for Fair Trading on 22 January 2018 to refuse to grant his application dated 8 April 2017 for a tattooist licence, in accordance with s 16(1) of the Tattoo Parlours Act 2012 (TP Act).
As is required by s 14(b) of the TP Act, the application had been referred to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence to be granted.
On 18 January 2018 a delegate of the Commissioner of Police reported to the Commissioner for Fair Trading under s 19(1) of the TP Act that the delegate had inquired into the application and determined that the applicant is not a fit and proper person to be granted the licence and it would be contrary to the public interest for a licence to be granted to him, in both cases by reason of his criminal history.
The delegate of the Commissioner of Police also advised, pursuant to s 36(1) of the TP Act, that the applicant is disqualified, again by reason of various aspects of his criminal history, from holding a licence, permit or other authority under the following legislation:
Security Industry Act 1997
Commercial Agents and Private Inquiry Agents Act 2004
Firearms Act 1996
Weapons Prohibition Act 1998, and
Wool, Hide and Skin Dealers Act 2004.
The delegate's reasons note that the Act provides that the Commissioner for Fair Trading must not grant a licence where an adverse security determination has been made by the Commissioner of Police about the applicant. The delegate also noted that the applicant had been disqualified from holding a licence, permit or other authority under legislation administered by the Minister for Justice and Police.
[2]
Applicable legislation
The legislative scheme under the TP Act is discussed in more detail below. At this point it is necessary to note only that s 7(1) of the Act creates an offence of an individual performing any body art tattooing procedure for fee or reward unless authorized to do so by a tattooist licence. Section 9(1)(b) provides for the granting of tattooist operator licences and tattooist licences to persons, which authorize the licensee to "perform body art tattooing procedures in accordance with this Act and the conditions of the licence": s 9(3).
When the first respondent's Chief Executive receives an application for a licence, he or she is required to refer it to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, or whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b)(i).
Section 16(1) confers on the Chief Executive a general power to deal with licence applications and to grant or refuse a licence. The general discretion is limited by s 16(3), which provides that "The Chief Executive must not grant a licence if…(c) an adverse security determination has been made by the Commissioner about the applicant".
The issues in the present case are thus whether the applicant is (a) a fit and proper person to be granted a tattooist licence, or (b) whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b).
[3]
The evidence
The respondents called no oral evidence, but relied on the documentary material, including the s 58 documents (exhibit R1), the redacted ASD (exhibit R2), some further documents filed on 22 May 2018 (exhibit R3) and the confidential unredacted ASD (confidential exhibit CR4).
In his oral evidence at the hearing, the applicant adopted his written statement dated 18 June 2018 (exhibit A1). The statement was originally unsigned and undated, but when that fact was drawn to his attention at the hearing, he signed and dated it.
In it he stated inter alia that he could recognize why the delegate might have arrived at the decision he did in view of his prior criminal history. There was no question that he had made "mistakes" in the past and he took full responsibility for his lapses in judgment and poor behaviour as an adolescent and young adult. The difference now in his life compared with his life as a young adult was quite stark.
He accepted that in 2016 he was found guilty of common assault and placed on an 18 months good behaviour bond. That was an unfortunate situation whereby he was trespassing at the time and there was some incidental contact constituting a technical assault upon a person in the premises. He did not punch or slap or kick that person, but accepted that forceful contact is not required in respect of the offence of assault. He would argue that it is clear from the penalty that it was not a vicious assault at the upper end of the spectrum of seriousness, as he received a $1000 fine and a bond.
Following on from that offence was an enforceable intervention order (known as an apprehended violence order or AVO in New South Wales), which he understood was an automatic consequences of the assault and not the result of a judicial determination.
He had been charged with drug possession on three occasions in 2010. That was a long time ago, but he accepted that it was wrong of him to have possessed a prohibited drug. At the time he was using marijuana "recreationally", which he regarded as a victimless crime. He understood, however, that community standards dictate that drugs are prohibited for a reason and he no longer consumes them. From the lack of recent offences over the past 8 years, it could be concluded that he is no longer a drug user.
In 2012 he was convicted of dishonestly obtaining property by deception, receiving a fine of $200, which indicated that it was a relatively trivial offence. The circumstances were that in 2012 his vehicle was involved in an incident and that he was ultimately found guilty because he was the responsible driver at the time. A friend of his had used his car and taken it to a service station. He attempted to pay for fuel using a credit card which, unknown to him at the time, was over its limit. He was unable to complete the transaction, and as he was without money the police were called. His friend did not wait for the police to arrive. As the vehicle was registered in the applicant's name, he was deemed to be the responsible driver for the offence and was fined $200. He accepts responsibility as he knows that he had options with respect to disclosing the driver's identity at the time, but did not obtain legal advice as he could not afford it.
[4]
Applicant's submissions
At the hearing the applicant relied on some written submissions forming part of exhibit A2. For syntactical and other reasons, they are not altogether easy to follow, but essentially he submitted inter alia that he had indeed been using illegal drugs and engaged in some criminal activities, but wanted to make a full change in his life. He would like to apologize to the public for committing those offences that had borne witness to an uncertain character in him. He had no good explanation for them and it was clear that for 10 years of his life he had lived in an un-perfected world. Clearly it was the friends with whom he had been associated in his early 20s who led him to be troubled, confused and abused, wasting his youth and relying on his rebellious friends. If he could turn back time, he would turn away from it all, but he had failed to listen to the advice of those close to him.
The TAFE certificates he had obtained showed that he had been interested in achieving a goal. He attended and participated in all those activities competently, confidently and aiming at distinction, while having work experience and gaining skills relevant to those industries. To battle this troubled time of his, he sought to realize his dream of being registered as a tattoo artist, to stand his ground, to complete that which he had started. With his good intentions he would make full progress, as a new career would certainly change his state of mind and the view of others.
He had been drawing all his life and would never stop. It was a hobby of his, and when he was bored his drawings had been progressing into script writing and realism illustration designs. He was currently working five days a week, 8 to 10 hours a day, as a machine operator in order to get back on track and make a new start for his future needs. He was still a member of the Iglesia ni Cristo (Church of Christ) a Christian organization, and participated in many activities inside the church, still attending worship service twice a week. He had recently become more active and had joined a basketball team with a motivated group of positive close friends, as he had said to himself in the middle of 2017 that he must put an end to all his wrongdoing. He had promised that he would stay away from illegal drugs and any kind of criminal activity. He really wants to attain a brighter future by getting a tattoo licence.
[5]
Consideration
Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the first respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and 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.
[6]
The legislative scheme and the tribunal's approach
The applicant has applied for review under s 27(1)(a) of the TP Act of a decision taken by the Director-General of Fair Trading under s 16(3) of the TP Act to refuse to grant him a tattooist licence. The Commissioner of Police made an adverse security determination (exhibit R2) under s 19(1) of the Act to the effect that by reason of his criminal history the applicant was not a fit and proper person to be granted the licence and that it was not in the public interest for the licence to be granted. Pursuant to s 27(3), the Commissioner is a party to these proceedings.
The TP Act establishes licensing requirements for operators of tattoo parlours and tattooists. Two kinds of licence may be granted: an operator licence and a tattooist licence. Only an individual can apply for a licence, even where the individual is applying on behalf of an organization: s 11. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to the public interest" to grant the licence. It is an offence to perform body art tattooing procedures for reward without a tattooist licence: s 7.
A person may apply to the Director-General for a tattooist licence pursuant to s 11. Section 13 provides for the fingerprinting and palm printing of applicants. On receiving an application for a licence, the Director-General is required by s 14(b) 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 the licence, and whether it would be contrary to the public interest for the licence to be granted.
Section 19 requires the Commissioner to inquire into and 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: s 19(3). The Director-General has a discretion whether or not to grant a licence in some circumstances, but must not grant a licence if the Commissioner makes an adverse security determination in relation to the applicant: s 16(3)(c).
Under s 16(5) of the Act, the regulations may also provide mandatory or discretionary grounds for refusing the grant of a licence. For the purposes of s 16(5), cl 13(2) of the Tattoo Parlours Regulation 2013 provides that "the Secretary may refuse to grant a tattooist licence if satisfied", inter alia, that "the applicant is disqualified from holding a licence, permit or other authority under legislation administered by a relevant Minister": cl 13(2)(b).
[7]
Fit and proper person
The meaning of the phrase "fit and proper person" in the licensing context has been the subject of a well-known line of cases dating back at least to Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127. The principles laid down in those cases were summarized by the tribunal's Appeal Panel in Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, [58], [73], [77], following Montgomery SM's reasons at first instance (Austin v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 244), 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 in 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 or she has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he or she 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.
The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37].
While there is a definite focus in the legislation and its administration on the involvement of OMCGs in the industry, that is not to the exclusion of other concerns about criminality: "[T]he 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, [2014] NSWCATAD 184, [20]. The point was specifically made in Wright v Commissioner for Fair Trading [2017] NSWCATAD 98, [118]: "The Applicant had stressed that he had not been involved in gang crime. Gang crime is not the only consideration of the Act, however. The Tattoo Parlours Act 2012 is directed at keeping gang crime out of the tattoo parlour industry and also at eliminating general criminal activity, including violence."
[8]
The public interest
The phrase "public interest" is not defined in the TP Act or the regulations. In O'Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms:
[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said:
The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].
The applicant not being a fit and proper person to hold at tattooist licence, it necessarily follows that it would not be in the public interest to grant the licence: Ting, [28]. (I should mention that the decisions in both Birch and Ting, on which the respondent relied, are decisions of mine, but as far as counsel knew, they have not been criticized). The applicant's criminal history shows a disregard for law, despite numerous judicial sanctions, including a disregard for the driver licensing system which, like the TP Act, is designed to ensure public safety. The fact that, as was noted above, he has been disqualified from holding a licence, permit or other authority under several Acts shows the seriousness with which his kind of behaviour is viewed. Nor does the evidence establish that he has reformed, indeed it rather shows that he has a continuing drug problem and a disposition for law-breaking.
[9]
Orders
1. The decision under review is affirmed.
2. Pursuant to s 64(1)(b), (c) and (d) of the CAT Act, the recording and transcript of the confidential hearing on 18 June 2015, confidential exhibit CR4 and the paragraphs of these reasons marked "[Not for publication]" are not for publication or for disclosure to the applicant or the first respondent.
[10]
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: 29 June 2018
Parties
Applicant/Plaintiff:
Asencio
Respondent/Defendant:
Department of Fair Trading
Legislation Cited (5)
(CAT Act) Law Enforcement (Powers and Responsibilities) Act 2002(NSW)
He was convicted of larceny in 2009 but cannot recall the particulars of that charge, as it was almost 10 years ago. He pointed out, however, that the penalty was only $200 and the charge was dealt with summarily, the subject property being valued at less than $2000. On that basis he assumed that the matter was relatively trivial.
He had not had any recent dealings with the police. In fact he had undergone a significant turnaround in his life, starting early in 2016. At that point he had realized that he was getting older and that his life was changing. He saw his friends of the time making no progress in their lives and in a moment of maturity he realized that he needed to dissociate himself from them. He could see his friends doing nothing and therefore decided to move away. He was in South Australia at the time and decided to relocate to Sydney to start a fresh life.
He reconnected with his family in Sydney, and since early 2016 his life had taken a significant change for the better. He currently spends time with his family and has developed a new circle of friends. The friends he has are good people, and to the best of his knowledge do not engage in any criminal activity or the consumption of illicit drugs. He has been attending church twice weekly since returning to Sydney and currently attends the Church of Christ at Minchinbury, where he makes devotional prayers and socializes with church-going people.
His life's dream has been to be an artist. He had always treated art as a hobby that he was passionate about, but never dreamed of having the opportunity to make a living out of it. Becoming a tattoo artist would allow him to marry his talent and passion together in a way that he can become a productive member of society. He had attached to his statement examples of his artwork, which he was particularly proud of.
In cross-examination at the hearing the applicant said that he was born in the Philippines and moved to Australia in 1992, to Blacktown. He lived in Sydney until 2013, when the family moved to Adelaide. He returned in 2016.
He said he could not recall robbing a bus driver in 2009 because he was on drugs at the time, cannabis. Maybe he did rob the driver.
As regards the episode concerning the petrol (exhibit R2, pp 51 - 53), he said a friend had been driving his car at the time. He was not sure whether he had informed the police of that fact. He admitted that he had named himself as the driver, although his friend had been the driver at the time, and that he had lied when he said that he had no money because his car insurance was due. He had said that he had known at the time that he had options about naming the driver, but he could not afford legal advice. He was not sure why he would have needed legal advice for that purpose, but added that he needed to settle the matter in court. He then conceded that he did not really need advice.
The applicant then said that he had in fact been the driver, but then stated that his written statement was correct and that his friend had been driving. He admitted having lied to police in 2012 in response to the indictable form of demand. He acknowledged the correctness of the victim's statement about the 2015 assault and added that he had not previously met her, although he worked at an establishment a few shops down from the scene. He had asked if he could use the lavatory at the victim's premises, and that was not just an excuse, as he needed it at the time. When asked why he had not used the one at work, he replied that he was on his break and just wandering around. He had no reason to go into her office and no excuse for doing so, and he had not been trying to talk to her.
He acknowledged that he had grabbed the victim and released her when she bit his hand. He had told the police that it was "a prank" and that he had been "in the wrong place at the wrong time". He had been wandering around and there appeared to be no-one in the facility in question. He became scared and shocked when he saw the victim. It was pointed out to him that she said he had asked to use the lavatory, and subsequently returned 10 minutes later, on that occasion hiding behind the door. Asked whether he had still been shocked at that time, he replied that he had been "in the wrong place at the wrong time" and had been engaging in a silly "prank"; though it had not been unintentional or accidental.
He was then referred to Magistrate Grasso's sentencing remarks in relation to that offence in the South Australia Magistrate's Court on 23 March 2016 (part exhibit R3) where a reference was made to drugs and mental health issues. He said that the offence took place two days after he had used drugs (marijuana) and that he was not affected by them at the time. He also used drugs after the assault, but not at the time of the sentencing hearing, and only occasionally. He used marijuana only and the last time he did so was in June 2017.
He had sought to dissociate himself from his previous friends in Sydney and Adelaide when he moved to New South Wales to make a fresh life. He had no contact with any of them. He admitted the correctness of the police event report E4442149 (exhibit R2, p 74) about parking his car and approaching staff of Mountain View Adventist College at Doonside on 31 March 2017, appearing dazed and confused and rambling in his speech with staff. He admitted that he had been driving under the influence of drugs, although the incident happened after he had supposedly made his "fresh start". The police had thought he was under the influence of "ice" or synthetic cannabis, but he had only been using cannabis. He had fainted on that day and had wanted to seek hospital treatment. He had therefore parked at the school in order to arrange for help. He had obtained the drug from a school friend.
When it was pointed out to him that he had said he had denied having any contact with his former friends, he replied that he had simply bumped into his friend in a railway station, and they had gone off together in order to catch up with each other's activities. Later his friend gave him the drug and they used it together. He had later driven home. The meeting had not been organized and since then he had not seen his friend.
He said that had been his last drug incident, and he had not used any since March 2017. He had never sold drugs. When counsel asked him if he was still taking drugs, he replied "What do you mean by that?" and said he had stopped using in March 2017.
He had been a member of the church since birth, and had always attended twice a week, also in Adelaide. Currently he was working in a factory as a crane operator and had been doing so for a year. He did not require a ticket to operate the crane. Previously he had worked on call as a machine operator at Visyboard at Smithfield, and at the time of the school incident he had been employed at Aldi at Minchinbury.
He wanted to work as a tattooist in order to change his life, as he thought he had a big future in that role. He wanted to drop everything he had previously had and show who he really is. He could still work as a crane operator, but wanted to start a new career. His nursing qualifications were not up to date and he had no intention of returning to that work. In the hospitality industry he had simply worked as part of work experience in Adelaide. He was able to obtain employment as a bartender.
The applicant tendered a number of character references, as part of exhibits A1 and A2. They are discussed below.
With regard to the assault and trespass at Semaphore, South Australia, he admitted he had committed a "minor offence" and had caused negativity through his stupidity and careless act, for which he took responsibility. He had frightened a victim and committed a trespass, which he should not have done. "I was in the wrong place at the wrong time". He had sought advice from a local doctor and was referred to a psychologist and a counsellor at that time. Though he had been lacking sleep, depressed and stressed, his psychologist said it must have been because of the isolation he then felt. He had been placed on a good behaviour bond that he had not disobeyed. In future he would not be seen doing anything of that kind again, for he was looking forward to completely putting his foolish ways behind him and never again waste his time and be required to attend court because of such an ignorant, unintelligent, imbecile prank incident.
He would like to apologize to the victim, for he was truly deeply sorry for the disturbance, his uncharacteristic manner and poor explanation. He was not a violent person but was just inside the wrong place at the wrong time. It was really silly of him to pull a prank and commit a very big mistake in his life. He takes full responsibility and will allow the law, rules and regulations to decide how he should act in the future.
In oral submissions at the hearing he reiterated those points. In connection with the assault charge he apologized for the trespass and causing fear in the victim. He said he had been in the wrong place at the wrong time and had been suffering from lack of sleep and stress. He had received medical advice because of his drug problem and health issues. The doctor had referred him to a psychologist, with whom he had between three and five interviews. All the relevant reports had been left in South Australia, however, his former solicitor there would have them. He again apologized for his conduct and said he was not a violent person. He had been foolish to pull such a prank and had been in the wrong place at the wrong time. He apologized also to the public for the fact that 10 years of his life had been bad as he had associated with a bad crowd.
The certificates he had obtained showed that he had a goal in life and was competent and interested in his studies. His dream was to become a tattooist and he believed he would make progress in that regard. He had been drawing all his life and it was his hobby. He wanted a brighter future and looked to the person he desired to be and was motivated to achieve. He was currently playing with the church basketball team every Saturday morning - his health and mental state were much improved, and consequently he was no longer taking drugs.
The relevant Minister is defined in cl 13(3) of the Regulation as "the Minister for Innovation and Better Regulation" or "the Minister for Police and Emergency Services". Pursuant to order 12(a) of the Administrative Arrangements (Administrative Changes - Ministers) Orders 2015, a reference to the Minister for Police and Emergency Services is to be construed as a reference to the Minister for Justice and Police if used in relation to legislation administered by that Minister. Relevantly for present purposes, the Minister for Police administers the several Acts referred to in paragraph 4 above as enactments under which the applicant is disqualified from holding a licence or permit.
Pursuant to s 27(1)(a), a person may apply to this tribunal for review of a refusal or failure by the Director-General to grant a licence. The Act does not expressly confer jurisdiction on the tribunal to review any report or determination made by the Commissioner of Police but does so implicitly, as s 27(3)(c) provides that "the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application of the licence concerned merely because of the determination of the Commissioner": Smith v Commissioner of Police and Commissioner of Fair Trading [2014] NSWCATAD 184, [22]. Nevertheless, the tribunal is required to take the ASD into account as an essential, legally relevant, consideration to which weight must be given: id., [24].
The assessment of whether an applicant is a fit and proper person rests with the Commissioner of Police, but the Act makes it clear that it is the Director-General's decision that is under review, not the Commissioner's ASD 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 making it.
As with all legislation, the provisions of the TP Act and the powers 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, but its purpose is not 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 Montgomery SM explained in his comprehensive review of the authorities in Smith, at [38] to [41].
In Smith, Montgomery SM set out the approach to be adopted when undertaking a review of a decision to refuse an application for a licence as a result of an ASD (at [24] - [28] and [32] - [37]). Those principles may for present purposes be summarized as follows:
(1) As was noted above, the tribunal is required to take the ASD into account as an essential, legally relevant consideration to which weight must be given: at [24].
(2) While the ASD does not constitute a prima facie position which the applicant bears the burden of displacing, due weight must be given to it: at [25] - [26].
(3) Although the decision under review may be that of the secretary rather than the Commissioner, the tribunal may make a fresh determination as to whether the person is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the applicant to be granted a licence: at [31] - [32]; and
(4) The tribunal is to determine what the correct and preferable decision is on the basis of the material before it and any other lawful, discretionary basis; it is not confined to the grounds relied upon by the Commissioner or the secretary: at [27] - [28], [32] - [33].
Thus, in Austin, Montgomery SM considered that the applicant's long criminal record was a "strong prima facie indicator of the Applicant's lack of fitness and propriety", and that "The question therefore arises as to whether he has been completely rehabilitated" (at [75]). The tribunal ultimately was not satisfied about the applicant's rehabilitation and refused the grant of a licence.
The redacted ASD shows that the applicant has a range of criminal convictions over an extended period for offences involving drugs, theft and assault, as well as a number of traffic infringements. They include the following:
1. On 12 October 2006, he was convicted for a drug offence, having custody of an offensive implement in a public place and goods in custody suspected of being stolen, and fined $200 for each offence: exhibit R2, pp 40, 70.
2. On 27 April 2009, he was convicted of larceny of property to a value of less than $2000. He had stolen money from a bus driver and then absconded. He was fined $200 and placed on 12-month good behaviour bond: exhibit R2, pp 40, 67.
3. On 4 March 2010 he was convicted for possession of 2.5 g of marijuana and fined $200: exhibit R2, p 40.
4. On 18 May 2010, a further cannabis conviction and a fine of $1000: exhibit R2, pp 40, 60.
5. On 5 July 2010, another cannabis conviction: exhibit R2, pp 41, 56-57.
6. On 24 May 2012, he was convicted of dishonestly obtaining property by deception by failing to pay for $50 worth of petrol at a service station and was fined $200: exhibit R2, pp 40, 51.
7. On 23 March 2016 he was convicted for assault on a female victim in the manner and in the circumstances described in paragraphs 24 and 25 above. He was fined $1000 and placed on an 18 month good behaviour bond. An enforceable intervention (apprehended violence) order was also granted and is currently in force: exhibit R2, pp 42 -45.
The record as set out in the ASD also shows five traffic infringements, as well as a licence suspension and a disqualification. There have also been further instances of the applicant taking prohibited drugs or being in possession of drugs or drug paraphernalia, in respect of which no arrest was made. He has also been in the company of others possessing prohibited drugs or paraphernalia on several occasions. The tribunal is entitled to consider evidence of criminal behaviour, even if no conviction results: Birch v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 166, [69].
The applicant's most recent misconduct occurred on 31 March 2017, when he was found in a local high school under the influence of drugs, suspected by police to be "ice" or synthetic cannabis, although he states that it was ordinary marijuana. His behaviour was so seriously erratic that police and an ambulance were called and paramedics considered it necessary to take him to hospital for treatment and observation. He was not arrested in relation to that conduct, but it suggests that, contrarily to his evidence, his drug abuse did not come to an end early in 2016. The police also suspected that he had driven to the school under the influence of drugs, but no further action was taken as there was no witness to his driving: exhibit R2, p74.
The record shows a sustained pattern of offending despite numerous fines and other court sanctions, and an inability to learn from his mistakes. Despite three drug convictions in late 2006, the applicant continued to take prohibited drugs in 2007 and subsequently. His repeated traffic infringements reveal an indifference to a licensing regime which, like the TP Act, is designed to ensure public safety: Birch, [66], [77], [80].
Although since 2012 there has been some diminution in his misconduct, his behaviour in relation to the assault matter in 2015 evokes particular concern. Such conduct is particularly relevant in assessing an application for a tattooist licence, as the holder is generally in close proximity with clients (including women) in private, and potentially in contact with intimate parts of the body.
Yet the applicant continues to minimize the seriousness of the offence, repeatedly describing it as a "prank" and claiming that he was simply "in the wrong place at the wrong time". In his statement of 18 June 2018, on which he relied at the hearing, he said, "I was trespassing at the time and there was some incidental contact constituting a technical assault upon a person in the premises". To describe in that anodyne way an event that must have been terrifying for the victim shows a failure to acknowledge the seriousness of his conduct and to accept responsibility for it.
He asserts that his history of drug abuse ended early in 2016 when he left his former group of friends in South Australia and returned to Sydney to start a new life. Yet in March 2017 at the Doonside school he was, by his own admission, in a dissociated and incoherent state resulting from drug use, to the extent that he parked at the school in order to seek help. Police formed the view that he was under the influence of "ice" (methamphetamine) or synthetic cannabis, but the applicant states that it was ordinary cannabis. That incident, it may be noted, occurred only a week before he lodged his application for a tattooist licence.
As the "recreational" use of cannabis is not normally associated in the public mind with a need for ambulance attention and hospital treatment, it might appear on the face of it that either he is a heavy user of that substance or he was in fact under the influence of some other drug. At all events his claim that he ceased drug-taking in 2016 cannot be accepted. That must count against his fitness and propriety to hold a tattooist licence, not only because it shows a lack of candour and plain disregard of the law over a long period, but also because a drug habit must bring him into contact with criminal elements when he is seeking supplies, while the TP Act aims at ridding the tattoo industry of criminal influences.
In the applicant's favour is the fact that he is in regular employment and has shown in the past an ability to focus on obtaining useful qualifications. The examples of his artwork in exhibit A1 indicate a talent for the kind of draftsmanship used in tattooing. He appears to be strongly motivated to develop the skills required in that occupation.
Before the tribunal are a number of character references. One is from his brother Camillo Jeffrey Pascasio, dated 10 March 2018, which states inter alia that the author is fully aware of his brother Lee's criminal history .Lee had countless times expressed his shame and remorse at his thoughtless, immature and rebellious behaviour, which had now caused him to be limited and unstable in life and career. Growing up he had never been the type of person to cause their parents significant embarrassment and disappointment, having always been generous, active and extremely reliable. He was always quiet and conservative and dedicated to everything he did. They had worked together at Blue Hills Manor as assistants in nursing, and Mr Pascasio had received good feedback about the applicant's work ethics from work colleagues, including the director of nursing. When he moved to Adelaide with their parents, he studied and pursued his interest in hospitality and was awarded certificates II and III through the hospitality college.
Lee holds the office of choir member and youth officer at the Church of Christ. He had always helped at church activities, especially in its voluntary work among the community, including Clean Up Australia Day, tree planting at Chipping Norton in 2000 and recently the Aid to Humanity Program at Lismore for a mass cleanup. Because of their mother's stroke in 2003, they had to put their studies on hold and seek jobs to pay for their daily needs and to help their father paying the mortgage.
During that difficult time they had been unaware that Lee had started making acquaintances with the wrong crowd, which led to the list of offences he had committed from the year 2006. He blamed himself for his bad behaviour and for being useless at the time their mother had the attack, which led him to pursue nursing training in 2008. He also mentioned that because of being under the influence, he was capable of doing something as foolish as stealing, which was not in his nature. He promised he would make sure he changed his ways and become more responsible. He had been very cooperative in fulfilling his good behaviour bond and deeply regrets the offences he has committed. Mr Pascasio is confident that Lee has learned from his mistakes and will take responsibility for his actions and put an end to his lawbreaking.
Mr Jemore Santos wrote on 31 March 2018 that he was aware that Lee had a criminal conviction in the past, but he had turned over a new leaf and was vice youth leader of their Christian community at Liverpool. He also served on the secretariat in that district. He is very passionate about art and Mr Santos believes his path towards being a tattoo artist will be an honest and fruitful one.
An unsigned and undated letter from Camille-Ivory de Guzman, a registered nurse clinician, states that Lee had been a long-term family friend whom she met at church when they were very young. He had always been kind, considerate and the type who would give up his seat for a lady or the elderly, and would sacrifice his meal for a younger child who had nothing to eat. She was sure he was not capable of making bad or risky decisions unless under the influence of others. He is a kind soul and a true artist at heart who has big dreams and a heart of gold.
Mr Derrick Macatangay wrote on 3 April 2018 that he had known Lee for over 20 years and had always known him to be honest and trustworthy, always willing to go above and beyond what was expected of him. He was a dedicated member of the Church of Christ and a youth leader in the Liverpool congregation. Since he became more involved within the church, he had seen so much positive change in him and he had helped younger youths who had experienced troubles in the past. He is a great role model for the youth and has always taken his own time to be more involved in their church activities.
A letter from Ms Janine Grantham, payroll officer at Primo Smallgoods, dated 30 April 2012 states only that the applicant had been employed as a casual process worker at the company's Chullora manufacturing plant between September 2010 and April 2012. Mr Jeff Schuldt, operations manager at O'Brien Aluminium, wrote an undated letter stating that Lee spent two weeks working with their company as a CAD draftsman and had been capable and productive in that role. He had a good understanding of Autocad software and was helpful in producing standard drawings for their company. Mr John Sloan on 20 August 2004 stated that he had been a teacher to the applicant at South Western Sydney TAFE and had found him to be punctual, courteous and eager to learn. He had achieved well during his time at the college and continues to do so, demonstrating his eagerness to achieve quality results.
Mr Daryl Ilaya's unsigned letter of 1 June 2018 states that the applicant is an active member of the Church of Christ and has been a youth leader in the congregations at Adelaide and Liverpool, a motivational speaker motivating the youth to be active and tending to the concerns facing them. He had also been involved with charitable deeds, providing winter goods to the needy, Clean Up Australia Day and many others. He had been a secretary officer in their church, both in Adelaide and in Liverpool and is still an active member in the Western Sydney locale.
Only the reference from the applicant's brother shows full awareness of his criminal history, including his habit of drug abuse, and that necessarily reduces the weight that the tribunal can give to the other letters: Birch, [73]. Nevertheless, one can accept that he has a number of positive qualities, including community-mindedness and a willingness to help others in practical ways. There is also a general belief that he can make something of himself in the future. The confidential evidence must, however, also be taken into account.
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The elements of fitness and propriety are knowledge, integrity and ability of the kind and standard required in the relevant activity, in this case tattooing: Birch, [77], [79]. The evidence shows that the applicant possesses an aptitude for tattooing work and the motivation to acquire the necessary skills, if he does not have them already. It is the element of integrity that causes concern. The applicant has an unimpressive criminal history extending over a decade for offences including drugs, assault and theft, as well as a substantial number of traffic violations, some of them leading to a licence suspension and disqualification.
His record of wrongdoing diminishes after 2012, and if he had not come under significant adverse notice since then one might be prepared to say that he had been rehabilitated. That, unfortunately, is not the case. His most serious offence, and one that is particularly relevant to the tattoo industry, occurred in July 2015. That was the assault on the young woman in South Australia, for which an apprehended violence order is still in force. Yet he continually seeks to diminish its gravity, repeatedly describing it as a "prank" and repeatedly saying he was simply "in the wrong place at the wrong time".
His written statement describes it as "an unfortunate situation whereby I was trespassing at the time and there was some incidental contact constituting a technical assault…." Yet he deprived the victim of her liberty, asked her to kiss him and forcibly prevented her from escaping. He provided no explanation to assist the tribunal to understand why the unprovoked and seemingly random aggression occurred. One could therefore not be confident that similar conduct will not recur.
Again, the episode at the Doonside school in which he was found in a state of drug-induced dementia necessitating ambulance attention and hospital treatment took place as recently as 31 March 2017, the week before he lodged his present application for a tattooist licence. Police thought he must have been using "ice" or synthetic cannabis, but he maintained at the hearing that it was simply ordinary cannabis. At all events, the incident suggests a continuing drug problem and the applicant has produced no test report or other evidence to confirm that he is now free of it. The mere passage of time is insufficient to establish rehabilitation (Lee v Health Care Complaints Commission [2012] NSWCA 80, [72] - [73]), and in any event not much time has in fact elapsed since the incident.
The applicant's evidence in these proceedings was also less than satisfactory. He said he could not remember the offence on 30 March 2009 when he robbed a bus driver, attributing his lack of recollection to the effects of cannabis. Yet in his interview with police on that day (exhibit R2, p 68) he appears to have been quite coherent and offered details about his motivation and the circumstances of the incident. While admitting that he had been drinking with a friend beforehand, he said nothing about cannabis. His claim to have no memory of such a relatively dramatic episode seems hardly credible.
His explanation about his failure to pay for petrol at the service station on 24 March 2012 changed repeatedly and his versions of the events were contradictory. The fact sheet (exhibit R2, p 52) records that on 11 April police attended the applicant's address and spoke to him about the incident. As a result of that conversation, police issued him with what is known as an indictable form of demand (under the Law Enforcement (Powers and Responsibilities) Act 2002, ss 14(1)(c), 18) seeking the identity of the driver at the time of the offence. The applicant complied with the request and nominated himself as the driver, saying in his statement that he had no money to pay for the petrol because he was paying off his car insurance.
His written statement, however, relates that a friend of his was the driver but that he had nominated himself in response to the statutory demand because, while knowing that he had options about disclosing the identity of the driver, he did not obtain legal advice as he could not afford it. At the hearing he insisted at first that his friend had been driving, contrarily to his response to the police request, then said he himself had been the driver, then once again said it had been his friend. Such tergiversations do not reflect well on his integrity.
Further, under s 16(5) of the TP Act and cl 13(2)(b) of the Regulation, the tribunal has a discretion to refuse a tattooist licence if the applicant is disqualified from holding a licence, permit or other authority under legislation administered by a relevant minister. As was noted above, the applicant has been disqualified under the five enactments listed in paragraph 4 above, a fact that also weighs against his fitness and propriety, as it underlines the seriousness with which the applicant's conduct is to be viewed: Ting v Department of Fair Trading [2017] NSWCATAD 304, [77].
The applicant claims to be a reformed character but has produced no cogent evidence to support that assertion. On the basis of all the evidence it is not possible to conclude that he has reformed and that there will be no recurrence of the types of unlawful conduct that appear on his record: Lee. [72]. I therefore find that he is not a fit and proper person to hold a tattooist licence.
Specifically, his assault conviction and his failure to appreciate the seriousness of it suggests that he may pose a risk to the personal safety of others, while his disregard for licensing laws suggest that he might not diligently comply with the conditions of any tattooist licence.
Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and other orders 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 and its members by signalling that those whose activities or faculties do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Moujalli v. Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53]. Issuing a licence to a person with the applicant's record in the present circumstances would tend to undermine public confidence in the tattooist licensing scheme.
While there is a public interest in persons being able to engage in gainful business or employment, and thereby inter alia supporting the rehabilitation of offenders, the applicant has options open to him other than tattooing. He is currently in regular full-time employment as a crane operator and did not suggest that he would be unable to continue working in that occupation. He has a strong personal preference for entering the tattoo industry, but private interests must give way to the public interest: Ting, [74].
In light of the open and confidential evidence I find that it is not in the public interest for a tattooist licence to be granted to the applicant at the present time.