Austin v Commissioner for Fair Trading + Commissioner of Police, NSW Police Force

The licensing regime

1. I have considered the licensing regime established by the Act in my decisions in Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184, Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211 and Dyas v Director-General Fair Trading & Commissioner Of Police [2014] NSWCATAD 223. I will only discuss it briefly in these reasons.
2. The Act introduced licensing requirements for operators of body art tattoo parlours and tattooists. The regime came into force in November 2013. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to public interest" to grant the licence or allow it to continue in force. It is an offence to carry on a body art tattooing business without an operator licence: section 6 of the Act.
3. Pursuant to Part 2 of the Act, body art tattooing businesses, body art tattooists and employed body art tattooists are to be licenced. It is an offence for those businesses or individuals, as the case may be, to fail to have the requisite licence: sections 6 - 7 of the Act. Businesses that only undertake cosmetic and medical tattooing procedures do not need a licence.
4. Pursuant to section 9 of the Act, there are two kinds of licence that 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 organisation. Sole operators only require an operator licence.
5. A person may apply to Fair Trading for a tattooist licence pursuant to section 11 of the Act. Sections 12 - 13 of the Act provide for an application to be accompanied by a written statement in respect of close associates of applicants and for the fingerprinting and palm printing of applicants.
6. Pursuant to section 14(b) of the Act, upon receiving an application for a licence, Fair Trading 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 the licence, and whether it would be contrary to the public interest for the licence to be granted.
7. Section 19 provides that the Commissioner is to inquire into and determine, and report to Fair Trading on those issues. Subsection 19(3) provides that, 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.
8. In making a report under section 19(3) the Commissioner may have regard to any criminal intelligence report or other criminal information ("Criminal Information") held in relation to the applicant 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.
9. Evidence of this kind is also admissible in this Tribunal. Section 27(4) of the Act provides that Criminal Information must not be disclosed without the agreement of the Commissioner.
10. Pursuant to section 49(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") a confidential hearing may be conducted wholly or partly in private; and pursuant to section 64 of the NCAT Act and/or section 27(4)(b) of the Act, evidence of any Criminal Information and submissions may be heard in the absence of the of the public, the applicant and the applicant's representative.
11. To the extent that was necessary I made orders under these sections.
12. Pursuant to section 20, neither the Commissioner nor Fair Trading are required to give any reasons for the determination or for not granting the licence, if such reasons would disclose any criminal intelligence report or other criminal information.
13. In some circumstances Fair Trading has discretion as to whether to grant a licence. However, a licence must not be granted if the Commissioner makes an adverse security determination in relation to the applicant: section 16(3)(c).
14. The Tribunal's jurisdiction to review the decision is constrained by the terms of the Act. Pursuant to section 27(i)(a) of the Act, review may be sought of the refusal or failure by Fair Trading to grant a licence. The Act does not expressly confer jurisdiction on this Tribunal to review any report or determination made by the Commissioner.
15. I considered the scope of the Tribunal's jurisdiction in my earlier decisions. I will not repeat it here except to say that, in my view, section 27(3) of the Act is to be construed as giving the Tribunal the jurisdiction to make a fresh determination on the basis of the material placed before it.

Background

1. The Applicant concedes that he has a long criminal history. His earliest conviction was recorded in 1998 when he was 18 years old and the most recent conviction was recorded in 2013. He was served with an interim apprehended violence order in July 2015.
2. His offences include common assault; assault occasioning actual bodily harm; destroy or damage property; possess prohibited drug; and stalk/intimidate with intent to cause fear physical/mental harm. He has also been convicted of numerous motor vehicle related offences including: drive while under the influence of alcohol or other drugs; drive while disqualified from holding a licence, and drive in a manner dangerous to the public. Several other charges were dismissed under the Mental Health Act.
3. The Applicant has worked in the tattoo industry for a number of years. He has been tattooing since around 2007. He commenced as an apprentice tattooist at a shop was called Naked Gun II in George Street Windsor. He said that that business had Outlaw Motorcycle Gang ("OMCG") connections.
4. The Applicant and two business partners subsequently bought the Naked Gun II business. They bought the business in about 2012 but the shop was burned down in about September 2012. There was no insurance on the business and their losses totalled around $100,000.
5. The Applicant subsequently reopened the business under the name 'Carnival of Carnage Tattoo Studio', with a new business partner, in premises in Fitzgerald Street Windsor. The Fitzgerald Street Windsor premises are owned by the Applicant's de facto's grandparents.

The Issues

1. The issues to be determined are whether it would be contrary to the public interest for the Applicant to be granted the licence sought and whether the Applicant is a fit and proper person to hold the licence.

Fit and Proper

1. This expression has been considered in numerous matters in this Tribunal and in other jurisdictions. The second reading speech identifies, in some detail, the threats posed by OMCGs and criminal elements.
2. In Zahra at paragraph [59] I stated: "In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory."
3. In Smith at paragraphs [19] - [20] I stated: [19] …There is no "Principles and Objects" section within the Act. The Tribunal can look at Hansard and the Minister's speech to ascertain the purpose of the Act - the mischief that the statute was designed to cure. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses wili no longer be symbols of a gang's territory. ... [20] While the second reading speech focused on the involvement of outlaw motorcycle gangs in the tattoo industry, it is clear from the Act that the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct.
4. Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. The concept of 'fit and proper' takes its colour from its statutory context and a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
5. The 'fit and proper' test applied in the Act is of broad application. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection.
6. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'
7. Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
8. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving 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."

Public Interest

1. The Tribunal may affirm the decision if it would be contrary to the public interest for the Applicant to be granted the licence. In Smith at paragraphs [42] - [47] I referred to a number of authorities that have considered the concept of the "public interest". It is clear from those authorities that it is designed to give the broader interests of the community priority over private interests. An applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the industry

Evidence

1. The Applicant relies on his own evidence and the affidavit of Ms Karlie Ryan-Norman dated 1 July 2015. He also relies on a report ("the Stoker report") provided by Mr Peter Stoker, a clinical, sport & forensic psychologist who also appeared and was cross-examined.
2. The respondents rely on the affidavits of Ms Lucy Boyle and of Dr Christopher Lennings. Mr Jamie Coss provided a statement annexing a copy of the Applicant's licence application. Dr Lennings appeared at the hearing, gave evidence and was cross-examined.

The Applicant's evidence

1. The Applicant provided evidence in regard to his life and placed his criminal history in the context of a difficult childhood which resulted in some time in which he was placed in care and ultimately resulted in him spending some time when he was homeless. His criminal history dates from that period of his life and he does not remember much of that period.
2. The Applicant has been practising as a tattooist and has built a steady business. He said that the business is based on his personal skill and expertise and that his clients want to deal with him personally. The business would not survive without his work.
3. There is no suggestion that there have been any infringements in relation to the operation of his tattoo parlour. There is also no evidence that he has infringed any local council's rules or regulations.
4. Under cross-examination he conceded his criminal history but stated that it occurred when he was young. He said that his most recent offence (other than driving and drug related offences) was in 2010. That concerned an argument with his ex-girlfriend. He was charged with common assault but said that there was a scuffle and that he was injured more than his ex-girlfriend was.
5. Ms Rao, Counsel for the Commissioner, questioned the Applicant in relation to a number of the incidents which are included in his criminal record. The earliest of these incidents date from 1998 and included shoplifting, possession of housebreaking implements, goods on premises reasonably suspected stolen, driving in a dangerous manner, driving without ever held a licence, taking and driving a conveyance without the consent of the owner. Later charges included destroy and damage property, prohibited drug offences, break and enter a building to commit a felony, various motor vehicle offences including driving whilst under the influence of alcohol or other drugs, stalk/intimidate with intend to cause fear physical/mental harm, common assault and assault occasioning actual bodily harm.
6. Several charges were dismissed under the Mental Health Act. These included a charge of common assault and one of malicious wounding.
7. The Applicant did not dispute the fact of the recorded convictions but was unable to remember many of the incidents. He admitted that he had a lengthy history of drug use. When he was a teenager he smoked a lot of marijuana and later he had experimented with a wide variety of drugs. He said that he had been through several bad periods in his life but that he has straightened up his life. He agreed that there was a bad period in about 2013 in which he experimented with 'ice'. However, he said that he is now clean. He said that he has not taken any drugs since the last time he was pulled over by police about three years ago. At that time he had been through a relationship breakup and was having a difficult time. He decided to go 'cold turkey' and has been good ever since.
8. He said that alcohol leads to him becoming paranoid so he no longer drinks alcohol heavily. He has a cider every week or two.
9. The Applicant stated that he has always been around motor cycles and has bought quite a few over the years. He acknowledges that he has ridden a motorcycle on a ride organised by the Hells Angels. However, he denies any involvement with any motorcycle club accept for that one ride.
10. He did not dispute that the Naked Gun II business had connections with the Life and Death OMCG. However, he said that he did not deal with the OMCGs. When he was an apprentice he was invited to parties and a bike ride. He thought it was cool then but he now knows otherwise.
11. The respondents took issue with the Applicant's licence application and contend that the Applicant failed to disclose his complete employment record. This is said to be significant because he failed to disclose his work at Naked Gun II - a business that had OMCG connections.
12. The Applicant denied that he had failed to include this information on his licence application. He stated that in fact the form had been returned to him because it was incomplete and that he took care to ensure it was accurate.
13. As noted above, Mr Coss provided a statement annexing a copy of the Applicant's licence application. That document does not appear to contain the information that the Applicant said that he had provided.
14. The Applicant also provided some character references which he attached to his affidavit.

Ms Ryan-Norman

1. Ms Ryan-Norman is the Applicant's partner. She is a qualified body piercer and has been piercing for about 2 years, working in the Applicant's Tattoo Parlour at Windsor. She does ear, nose and abdominal piercings but works limited hours because she is also looking after their child.
2. Ms Ryan-Norman said that the Applicant only has a dirt bike and that he does not belong to any motorcycle gang. To her knowledge he has never belonged to a motorcycle gang. She has never been to any meetings or gatherings of any motorcycle gangs and to her knowledge the Applicant has never been to any motor cycle gang gathering whilst they have been together.

Mr Stoker'

1. Mr Peter Stoker is a clinical, sport & forensic psychologist. He explained the information that he had been given and the methodology that he adopted in interviewing the Applicant and in preparing his report. In his report he gave the following opinion in regard to the Applicant: It is my opinion that this man, as a result of a very dysfunctional childhood, developed a Major Depression with Psychotic Features ... His depression and subsequent drug usage to medicate his psychological state resulted in his offending and expulsion from schools. He was involved in a highly volatile de facto relationship, which included illicit drugs and he was charged with common assault. Since he has met his present de facto, he has ceased using drugs and his psychological health has improved. He now has a 19-month old son and this is also helping in regards to him taking on a much more mature outlook on life and accepting responsibility. In other words, his present relationship has stabilized him emotionally. I note that this man has bright to superior intelligence and his intelligence will help him to manage any tattoo parlour that he operates in a proper fashion. He loves his work as a tattooist and I see that his work is his passion. He also sees his work as a way of him being to give back to the community. In my opinion, this work will further stabilize his emotional health. He reported to me that he is not mixing with any criminal subculture. He has not offended for a number of years. It is my opinion that he is now a fit and proper person to hold a tattoo licence.
2. Mr Stoker conceded that the opinions that he expressed in his report were based on factual assumptions which were in turn based on what he was told by the Applicant. He also conceded that if the information that the Applicant had provided to him was not correct then it would affect his report.
3. Mr Stoker also conceded that the issue of whether or not the Applicant is a fit and proper person to hold the licence may be outside his area of expertise.

Dr Lennings

1. Dr Lennings is a clinical psychologist with a Masters degree in Clinical Psychology and a Ph. D in research on personality. He provided an opinion on the Stoker report. Dr Lennings also appeared at the hearing and was cross examined. His evidence at the hearing was consistent with that in his report.
2. Dr Lennings was critical of the methodology that Mr Stoker adopted. He stated that when Mr Stoker assessed the Applicant he had used the 1984 version of the Eysenck Personality Questionnaire (Revised). In regard to that questionnaire Dr Lennings noted: [T]he EPQ-R is an out-dated personality measure, its normative data is old, and it is no longer produced. Only factor scores and not facet analysis is reported. Factor scores can give some information about broad personality propensities, facet analysis allows for a more detailed assessment of traits of behaviour and psychopathology. Factor scores suggest Mr Austin's personality is somewhat unstable, but there is no follow up interview or discussion in the report to determine the reliability of the EPQ-R assessment. His L score was reported as "above normal limits". It is not clear if in fact the current administration was a valid one given the high L score. Both the Beck Depression and Anxiety inventory measures were used. No mental state examination (MSE) is reported and a significant failing of the report, given the prior history of severe psychopathology (PTSD and Psychosis) no examination of the current status of such disorders reported. The psychometric assessment (other than IQ) is outdated and irrelevant to the issues at hand. The use of the symptom scales of the Beck is inappropriate - these are measures that are not diagnostic but merely grade the severity of a condition in a person diagnosed with either depression or anxiety. They have been used as screening measures to identify people who may need assessment but they cannot stand in place of a proper mental health interview and assessment (MSE). They are also useful as pre-post assessment tools for assessing the impact of interventions.
3. In relation to the usefulness of Mr Stoker report to the mattes to be determined, Dr Lennings commented: The report is a summary of the interview and self-report. It seems internally coherent, it suggests a man who has struggled with life for many years and has recently had some better level of functioning due in main part to the healthier relationship he is in, compared to previous relationships. It suggests he has some extended family support (grandparents - although this aspect was not well developed) as well as his wife. It terms of whether the self-report is trustworthy, it is a matter of whether there are facts that suggest things different. The observation of a high L score on the EPQ raises the issues of defensiveness in the account, but this is not explored by Mr Stoker. As it is the two main issues are the well-established history of anti social behaviour and substance use, and the history of poor psychological functioning despite high intelligence. This is to be contrasted against a more recent period of better functioning, it is not known if he is still using alcohol at a hazardous level. It seems that a clear narrative is exposed by the report, the major problem for it is it does not attempt to define what a fit and proper person is, it merely says Mr Austin has turned the corner in terms of functioning and currently is functioning better than he ever has. The report does not address certain key issues that would allow for a more confident assertion that he is in fact performing at a sufficiently high functioning level to say that despite the past behaviour he is now a fit and proper person. There is no mental state examination so his current level of psychopathology and psychosocial adjustment is unknown. There is no analysis of his intimate partner relationship, so it is unknown other than a bland "things going well for now" what tensions of triggers there may be in the relationships. There is no analysis of his peer group and the extent to which his peer group might support or detract from a higher level of functioning. Given he reports weekly drinking with his peers, to the point that his paranoia is exacerbated, such an analysis seems important and it is therefore critical that it is missed. Further, any reasonable assessment of reputation would require an assessment of the extent to which his current peer group may support anti social attitudes. This is unknown from Mr Stoker's report. The report does not address the criteria for a fit and proper person in terms of accounting for Mr Austin's past reputation, the seriousness of the challenges to his reputation in terms of number and seriousness of offending, recency of offending, drug use and psychological morbidity, or provide a sufficient analysis of his current level of functioning. No risk assessment has been considered. Is it that the current level of functioning and the time it has existed is sufficient to say that the past is less informative about his character now? That need to be argued but the report does not do that. As such the clinician's conclusions are weak. In summary, to my mind the report is probably an accurate enough account of what the client told him, but the report lacks a coherent argument to support the opinion nor is there a sufficient analysis of criminogenic needs and how Mr Austin may have matured in his personality. In particular the issue of why he is fit given that his last charge was in 2013 needs to be argued.

Confidential Sessions

1. The Commissioner provided information to the Tribunal on a confidential basis in the absence of the Applicant. The Applicant is aware that a confidential session took place but he is not aware of the information that was presented.
2. The Applicant has been provided with some material in a redacted form, for example a security determination pursuant to section 19(1) of the Act. An unredacted copy of that document has been provided to the Tribunal on a confidential basis
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Discussion

1. It is not in dispute that the Applicant has a lengthy criminal record. The record spans a long period. The most recent recorded incident is from April 2013 when he was convicted of driving whilst under the influence of alcohol or other drugs. He admitted to using 'Ice' at that time.
2. I agree with the Respondent that the criminal record is a strong prima facie indicator of the Applicant's lack of fitness and propriety. The question therefore arises as to whether he has been completely rehabilitated.
3. In July 2015 he was served with an interim apprehended violence order which arose from an altercation between him and Ms Ryan-Norman. With the exception of that order, his evidence is that there have not been any other incidents which would suggest that he is not a fit and proper person to hold a tattooist licence or that it is not in the public interest for him to do so.
4. I note the concerns raised by the respondents in relation to the Applicant's licence application form. I accept that the form was not complete to the extent that it did not include his full employment record. However, I do not consider that this was a deliberate attempt by the Applicant to conceal links to OMCGs through his work as an apprentice tattooist at Naked Gun II and the link to the Life and Death OMCG.
5. The Applicant relies on the Stoker report. It is not in dispute that Mr Stoker met with the Applicant or that his report is based on the information that the Applicant provided in that meeting. It is also not in dispute that Dr Lennings did not examine the Applicant. Nevertheless, I accept Dr Lennings' assessment of the Stoker report. I agree with Dr Lennings that the report does little more than provide an account of what the Applicant told Mr Stoker. Its value is particularly limited if the information that the Applicant gave to Mr Stoker was not correct. The confidential material on which the Commissioner relies casts serious doubt on the accuracy of some of that information.
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7. I accept that there is difficulty in relying on untested material.
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10. In my view, the Applicant was not totally candid in his evidence. Given the significance of this evidence, his lack of candour suggest that he is not a fit and proper person to hold a tattooist licence or that it is not in the public interest for him to do so.
11. That being the case, it is my view that the decision to refuse the application should be affirmed.

Order The decision is affirmed. 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 November 2015