Austin v Commissioner of Fair Trading & Commissioner of Police

Factual background

1. At the time of his licence application, Mr Austin was involved in the operation of a tattoo parlour business known as "Carnival of Carnage Tattoo Studio." It operated from premises in Fitzgerald Street, Windsor. It seems that Mr Austin was a partner with two others in that business. Previously, he had been a part owner and before that, an apprentice, in the tattoo business known as the "Naked Gun II". That business had operated from premises in George Street, Windsor, but the shop had been burnt down in September 2012. Mr Austin had worked as a tattooist since around 2007.
2. As he put it, Mr Austin has "always been around motorcycles", but he denied that he was a member or affiliated with any motorcycle gang.
3. There was no suggestion by the Respondents that Mr Austin was a member, or affiliated with, a declared organisation of the nature examined below. However, as will be seen, an issue arose as to his connections with what are referred to as outlaw motorcycle gangs (OMCGs): see at [19] of the reasons of the Tribunal below.
4. What was meant by "outlaw", in circumstances where a gang was not a declared organisation, was not explained by the Respondents.
5. Mr Austin's application was for a licence for himself to perform body art procedures. It was not an application to carry on a tattooing business. That was another type of licence: s 9 of the Act. The application form notified him that national criminal record information would be exchanged between the NSW Police Force and Fair Trading for licensing purposes. His declaration on the form gave his consent to the release to the NSW Police Force by Australian police agencies of information held by them regarding any convictions, findings of guilt and outstanding matters against him.
6. The application form also asked him if he was a controlled member of a declared organisation under the Crimes (Criminal Organisation) Control Act 2012 (NSW) (the CCOC Act). To this question, Mr Austin answered that he was not.
7. By letter dated 12 May 2015 from NSW Fair Trading, Mr Austin was informed that his application for a licence had been refused. Accompanying the letter, was a statement of reasons. Those reasons informed him of the determination by the delegate of the Commissioner of Police, as reported to the Commissioner of Fair Trading on 4 May 2015, that: (i) the applicant was not a fit and proper person to be granted the licence, due to his criminal history.
8. The reasons also informed Mr Austin that the Commissioner of Police had advised that he was disqualified from holding a licence, permit or other authority under various provisions of the Firearms Act 1996, the Weapons Prohibition Act 1998 and the Security Industry Act 1997 as a result of his conviction of offences for common assault on 16 January 2010. Such disqualification played no role in the decision of the Tribunal at first instance.
9. The reasons provided by NSW Fair Trading concluded by setting out what was described as the reasoning process that led to the decision to refuse the licence as follows: An adverse security determination has been made by the Commissioner of Police about the applicant. 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 applicant is also disqualified from holding a licence, permit or other authority under legislation administered by the Minister for Police and Emergency Service. As an adverse security determination has been made by the Commissioner of Police about the applicant and the applicant is disqualified from holding a licence, permit or other authority under legislation administered by the Minister for Police and Emergency Service, the application is refused.
10. It seems that during the course of the proceedings in the Tribunal, but not before this time, Mr Austin was supplied with a redacted version of the adverse security determination. As will be seen below, that determination contained considerable detail about Mr Austin's criminal history and an assessment of that history for the purpose of the application of the fit and proper person test, most of which was unredacted.

The licensing decision - key statutory provisions

1. Most of the provisions of the Act commenced on 29 May 2012. That was not long after the commencement of CCOC Act in March 2012. The long title to the CCOC Act stated that it was: An Act to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members; to make related amendments to various Acts; and for other purposes.
2. The CCOC Act authorised the making of orders by a Court that an organisation was a declared organisation where the Court was satisfied that the members of the organisation associate for the purpose of supporting or engaging in serious criminal activity. It also authorised the making of control orders over persons found to be members of a declared organisation.
3. The references below to provisions of the Act are references to the provisions as they stood at the time of the making in this case of the security determination and the consequent decision to refuse the licence application.
4. The Act provided that an individual must not perform any body art tattooing procedure for reward unless authorised to do so by a "tattooist licence": s 7. An application for a licence could not be made by an individual who was a controlled member of a declared organisation: s 11(4)(c).
5. Once an application for a licence was received, the Commissioner for Fair Trading, Department of Finance, Services and Innovation (Commissioner for Fair Trading) (see definition of "Chief Executive", before that "Director-General" and after that "Secretary") could carry out such investigation and inquiries in relation to the application as he or she considered necessary: s 14(a).
6. By s 14(b), the Commissioner for Fair Trading was obliged to refer any application duly made to the Commissioner for Police for an investigation and determination as to either or both of the following: (i) Whether the applicant is a fit and proper person to be granted the licence, (ii) Whether it be contrary to the public interest for a licence to be granted.
7. The licensing decision was to be a decision of the Commissioner of Fair Trading made pursuant to s 16(1) of the Act, which provided: (1) The Chief Executive may, after considering an application for a licence and the determination of the Commissioner [defined to be the Commissioner of Police] under s 19 on the application, grant the licence or refuse to grant the licence. … (3) The Chief Executive must not grant a licence if: … (b) the applicant is a controlled member of a declared organisation, or (c) an adverse security determination has been made by the Commissioner about the applicant.
8. An adverse security determination was defined in s 3(1) of the Act as: (a) in relation to an applicant for a licence - a determination of the Commissioner that is reported to the Chief Executive under this Act on either or both of the following: (i) that the applicant is not a fit and proper person to be granted the licence, (ii) that it would be contrary to the public interest for the applicant to be granted a licence.
9. The role of the Commissioner for Police in the licensing scheme was the subject of s 19, which section provided: 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.
10. The confidentiality of criminal intelligence information in the licensing scheme was preserved by s 20, which provided: 20 Disclosure of criminal intelligence information (1) The Commissioner is not, under this or any other Act or law, required to give any reasons for determining a matter under section 19 if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in section 19 (3). (2) The Chief Executive is not, under this or any other Act or law, required to give any reasons for not granting a licence to (or for suspending or cancelling a licence of) a person on the basis of an adverse security determination made by the Commissioner about the person if the giving of those reasons would disclose any criminal intelligence report or other criminal information as referred to in section 19 (3).
11. No definition of criminal intelligence was contained in the Act. The CCOC Act contained such a definition as follows: criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected: (a) to prejudice criminal investigations, or (b) to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or (c) to endanger a person's life or physical safety.
12. The provisions of the Act concerning the licensing scheme concluded with a role for the Tribunal as follows: 27 Right to seek administrative review from Civil and Administrative Tribunal (1) A person (other than a controlled member of a declared organisation) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions: (a) the refusal or failure by the Chief Executive to grant a licence to the person (other than by operation of section 26 (1) (a)), (b) a condition imposed by the Chief Executive on a licence granted to the person, (c) the suspension or cancellation of a licence granted to the person. ……….. (3) If an application for a licence was refused or a licence was suspended or cancelled by the Chief Executive on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review: (a) the Commissioner (as well as the Chief executive) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Chief Executive made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. (4) In determining an application for an administrative review of any decision to refuse to grant a licence or to suspend or cancel a licence that was made on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013): (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any information identified in the Commissioner's determination as being from a criminal intelligence report or other criminal information referred to in section 19 (3) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. (4A) If the Tribunal considers that information identified in the Commissioner's determination as being from a criminal intelligence report or other criminal information referred to in section 19 (3) has not been properly identified as such, the Tribunal must ask the Commissioner whether the Commissioner wishes to withdraw the information from consideration by the Tribunal in its determination of an application. (4B) Information that is withdrawn by the Commissioner must not be: (a) disclosed to any person, or (b) taken into consideration by the Tribunal in determining an application. (5) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply in relation to a decision referred to in subsection (1).
13. It can be seen that s 27(4)(b), in effect, authorised non-compliance with procedural fairness to an applicant for a licence in so far as reliance was placed by the Commissioner of Fair Trading and the Commissioner of Police on criminal intelligence information.
14. The Act itself is opaque as to the matters that might inform the content of the fit and proper test, and as to purpose of the legislation and the mischief it is intended to remedy.
15. Some hints can be discerned from such matters as the prohibition of a licence application by an individual who is a controlled member of a declared organisation, the requirement of the Commissioner for Fair Trading to reject the grant of a licence to such an individual, the role of the Commissioner of Police in Div 3, and the power of the Local Court to close specified premises if it is satisfied that there have been, or are likely to be, serious criminal offences committed "at or in connection with the premises": s 29(1)(b).
16. No health protection element is made apparent by the Act and there are no technical knowledge or skill requirements imposed for licence qualification. The activities of a tattooist are, however, to some extent, regulated by the Public Health Act 1991 (NSW) and by Division 3 of Pt 4 of the Public Health Regulation 2012 (NSW), which contains requirements for carrying out the use of skin penetration procedures and the use of inks and pigments: cll 27 & 29.
17. As the Tribunal member at first instance noted by a reference to his earlier decision in this field in Smith v Commissioner of Police NSW, Police Force and NSW Fair Trading [2014] NSWCATAD 184, there is no objects section within the Act. As will be seen below, the second reading speeches on the introduction of the Bill to Parliament are of relevance in understanding the mischief sought to be addressed by this legislation. It is appropriate that they be referred to in order to assist to identify the mischief that it is intended to remedy, in circumstances where no issue of inconsistency with the text arises: see, for example, Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 per Crennan and Bell JJ.
18. What emerges from that second reading speech is a concern with the criminal conduct of motor cycle gangs through involvement in the tattoo industry, as well as other criminal elements of that industry.

The nature of the review by the Tribunal

1. The grant of a right of a review by the Tribunal as an administrative review under the Administrative Decisions Review Act 1997 (NSW) meant that the Tribunal was to decide what the "correct and preferable decision is" and to do so having regard to the material then before it: s 63 of the Administrative Review Decisions Act.
2. In determining the application for the administrative review, the Tribunal was empowered to make the decisions set out in s 63(3) of that Act, including to affirm or set aside the decision.
3. For the purpose of making its decision, the Tribunal was empowered to exercise all of the functions conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2).
4. As the Tribunal at first instance decided, correctly, in our opinion, the Tribunal was not bound by the adverse security determination and its task was to make a fresh determination on the licence application according to the criteria set out in s 19(1), namely whether the applicant was a fit and proper person, and/or it would be contrary to the public interest for the licence to be granted.
5. We note that, correctly, in our opinion, Mr Austin's application for administrative review by the Tribunal was for review of the decision of the Commissioner for Fair Trading, and not for review of the adverse security determination by the Commissioner of Police.

The proceedings in the Tribunal at first instance.

1. The conduct of the proceedings in the Tribunal at first instance provides context for an understanding of the reasons of the Tribunal.
2. We have already referred to Mr Austin's application dated 18 May 2015 for administrative review by the Tribunal. That application stated that his grounds for review were: This is my only source of employment and means to support my growing family.
3. Additional points came to be made by him. In essence, Mr Austin's case before the Tribunal at first instance can be summarised as follows: 1. He had reformed from his criminal past, which he placed in the context of family and other personal circumstances. He was no longer using drugs. He had decided to get off drugs in or around 2004 (paragraph 7 of Mr Austin's affidavit of 1 July 2015). 2. He relied upon the report from Mr Stoker, a clinical psychologist he had engaged, which expressed the opinion that he was a fit and proper person to hold a licence. 3. His conduct in carrying out the work of a tattooist had not been the subject of any criticism. 4. He was not qualified to do anything else but tattooing. His business had been growing year by year. His work as a tattooist provided him with a good living to support his partner and child. He stood to lose the vehicles of himself and his partner and his business, if he was unable to practice as a tattooist (paras 17 and 19 of the above affidavit). 5. In anticipation of the confidential criminal intelligence evidence relied upon against him, which he was not to see, he denied any involvement with the Life and Death motorcycle gang. He had never been a member of, or affiliated with any such gang, although he had once gone on a bike ride hosted by the Hells Angels (paragraphs 12 and 18 of the affidavit).
4. At some point, Mr Austin was supplied with a redacted version of the security determination: reasons of the Tribunal at [57]. An unredacted copy of this document was supplied to the Tribunal at first instance on a confidential basis. Most of the document provided to Mr Austin was not redacted.
5. A limited objection was taken by Mr Austin at the hearing at first instance to COPS fact sheets that were part of the security determination on the basis that it was not clear that these were the fact sheets used in respect of his various convictions and findings of guilt. However, this objection was overruled (Respondents' supplementary submissions at [39]). Furthermore, for the most part, the use of the particular fact sheets for this purpose was confirmed by affidavit evidence adduced by the Respondents.
6. In any event, Mr Austin gave no evidence contradicting any of the facts contained in the security determination with which he had been provided, including those set out in the various unredacted facts sheets. The Respondents fairly characterise Mr Austin's case as one of confession and avoidance about his criminal history and its nature, seriousness and frequency. His argument was that it largely occurred in the distant past and he had reformed.
7. We have referred to this feature of the hearing at first instance because it assists to understand and assess the brevity of the reasons of the Tribunal about Mr Austin's criminal history. We accept the submissions from the Respondents that such brevity needs to be understood in the context where there was no real issue between the parties about the criminal history, including its nature, frequency and seriousness as outlined in the security determination : supplementary submissions of the Respondents at [29]-[38]. We return to this aspect when dealing with an inadequacy of reasons ground of appeal.
8. The report from Mr Stoker, who interviewed Mr Austin, helpfully set out Mr Austin's criminal history in chronological sequence as follows: Shoplifting [1998] Possess Housebreaking Implements [1998] Goods in/on premises reasonably suspected stolen [1998] Take and Drive Conveyance without Consent of Owner [1998] Drive in a manner dangerous to the public [1998] Driver never held licence [1998] Drive whilst disqualified from holding licence [1998 and 1999] Destroy or damage property [1999, 2003] Possess Prohibited Drug [1999, 2001] Self administer/attempt self administer prohibited drug [1999] Break and Enter Building Commit Felony (Steal) [1999] Use Uninsured Motor Vehicle on Road [1999] Permit/Cause Use of Unregistered Vehicle on Road [1999] Resist Officer in Execution of Duty [1999, 2003] Common Assault [1999, 2010] He reported that, with respect to the 2010 Common Assault charge, he was involved in a volatile, domestic violent situation with his ex de facto. This resulted in the index common assault charge. Maliciously Wound [2000] This offence relates to his father - they had a disagreement and he received a Section 32 as a result of him suffering schizophrenia. Remain on Enclosed Land without Lawful Excuse [2000] Stalk/Intimidate with intent to cause Fear, Physical/Mental Harm [2000] Fail to Comply with Bail Conditions [2000] Possess/Use a Prohibited Weapon [2002] Use Offensive Language in/near Public Place/School [2003] Fail/Refuse to Comply with Direction [2003] Resist Officer in Execution of Duty [2003] Armed with intent to commit indictable Offence [2003] Possess Implements to Enter/Drive Conveyance [2003] Larceny [2003] Assault Occasioning Bodily Harm [2003, 2010] Contravene Domestic Violence Order (2 counts) [2004] Not Comply P1/P2 High Performance Vehicle Restriction [2001] Drive whilst under the influence of alcohol or drugs [2013]
9. In section 9 of the security determination, there was set out in considerable detail the reasons for the conclusion that Mr Austin was not a fit and proper person to obtain a licence.
10. The opening paragraph of that section stated: 9.1 In making my determination in relation to the application lodged by Mathew Leslie AUSTIN for a tattooist licence, I have drawn upon the understanding of the expression 'fit and proper' outlined above and have considered the concept in relation to how it may be applied under the TP Act. I have determined that the applicant is not a fit and proper person to be granted a tattooist licence. In particular, as detailed below, I find that the applicant's criminal record shows him to be of poor character and lacking moral integrity, and the applicant has demonstrated an ongoing history of disregard for the law, and a propensity to re-offend.
11. In section 9, the following also appears: 1. Assaults committed by Mr Austin in September 2000 of his father and partner showed a disregard for the personal rights and safety of others (9.2(a)(iv)). 2. These assaults, in conjunction with an assault on a security guard in June 2004, involving biting the security guard on the face, showed a propensity towards violence both in public and private and demonstrated a lack of good character and moral integrity. As a consequence, the writer did not have confidence that improper conduct would not occur in the future (9.2(a)(v)). 3. Mr Austin's wilful disregard for the law was demonstrated by numerous traffic-related offences. Whilst these were relatively minor in nature, when viewed in conjunction with his criminal history as a whole, it suggests a wilful disregard for the law and an overall pattern of behaviour indicates he is of poor character (9.2(a)(vii)). 4. (At 9.2(b)(i) and (ii)). Between 1996 and 2012, Mr Austin was convicted of 5 separate offences against sections 10(1) and 12(1) of the Drug Misuse and Trafficking Act 1985 in respect of possession of prohibited drugs. As a result of an incident on 28 September 2012, Mr Austin was charged with driving under the influence of alcohol or other drugs in respect of which the Fact Sheet stated: Whilst speaking to the accused, Police assessed his sobriety. He appeared to be very erratic, being calm before crying and then returning to being calm. He failed to follow simple instructions, was sweating heavily, he appeared to be sluggish with his movements and staggered when he walked, his eyes were glazed and pupils pinpoint. Police asked the accused if he had consumed any form of drug prohibited or prescribed which he stated that in the early hours of the morning on this date he smoked about three pipes of "ice" with his girlfriend. 1. (At 9.2(b)(iii)). The expert certificate under s 177 of the Evidence Act 1995 in respect of this offence stated: [William Allender] is of the opinion that at the time of driving, the accused was under the influence of methyl amphetamine to the extent that his driving ability would have been impaired. He further states that the blood concentration of methamphetamine was well outside the therapeutic range and indicates a large dosage and suggests that the accused was a regular user of amphetamines. 1. (At 9.2(b)(iii) and (iv)). This particular material was of particular significance and indicates that Mr Austin's actions demonstrated his disregard for public safety and that he behaved in a manner that was not fit and proper. A report in 2015 published by the Australian Crime Commission was referred to that depicts the threat imposed by methyl amphetamine, including that users are more likely to demonstrate violent behaviours, including assault. The reasons stated that Mr Austin's alleged regular use of methyl amphetamine in 2012 was therefore of significant concern. It stated that when considering Mr Austin's behaviour and actions in the context of the ACC report findings, the writer did not have confidence that improper conduct would not occur if the applicant was granted a licence. 2. A review of Mr Austin's criminal history indicated he had not been convicted of an offence since 2013. This had weighed in his favour. However, having reviewed his history, particularly the context of the offences, the writer had formed the opinion that such on-going and repeated criminal behaviour gives rise to concerns as to Mr Austin's future conduct and for the Commissioner to have confidence the applicant would not re-offend (9.2(c)(ii)). 3. The public could not have confidence in a newly regulated industry if an individual with a lengthy criminal history such as Mr Austin's was granted a licence (9.2(c)(iv)).
12. Mr Stoker's report dated 8 June 2015, included: 1. At interview Mr Austin presented as appearing to be suffering from paranoid ideation. 2. In Mr Stoker's opinion, Mr Austin's dysfunctional childhood would have had an adverse effect on his psychological development. 3. In 2001, he suffered a drug induced psychosis and whilst in a psychiatric hospital due to the assault on his father he was diagnosed with paranoid schizophrenia. He was prescribed medication for this condition, but he had not taken this medication for the past eleven years. 4. He still has some paranoia on certain days and reports that alcohol caused him to become more paranoid. He drinks approximately on a weekly basis with his mates. 5. He stopped taking illicit drugs, namely cocaine and cannabis three to four years ago. He and his de facto do not do drugs. She is the mother of their 19 month old son. He considers it to be a stable relationship. We note here that no express reference to taking "Ice" appears in Mr Stoker's report. 6. Mr Austin had gained status in the tattoo industry. 7. He moved from the old shop as it had bikie connotations. He is not associated with the criminal subculture.
13. Mr Stoker concluded with the following opinion (set out at [50] in the reasons of the Tribunal): 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.
14. The Respondents presented a report from Dr Lennings, a clinical psychologist, in response to Mr Stoker's report. As the Tribunal at first instance noted, the report was critical of Mr Stoker's report.
15. Passages from Dr Lennings' report are set out in the reasons of the Tribunal (at [54]-[55]). Dr Lennings referred to the two main issues as being the well established history of anti social behaviour and substance abuse, which were to be contrasted with a more recent period of better functioning, but pointed out that Mr Stoker's report did not address key issues that would allow a more confident assertion that Mr Austin was in fact performing at a sufficiently high functioning level to say he was now fit and proper.
16. Dr Lennings criticised Mr Stoker's report for not addressing: 1. The current level of psychopathology and psychosocial adjustment, which was unknown. This was because no mental state examination was reported, which was a significant failing given the prior history of severe disorders. Psychometric testing and assessment was reported but the method used was outdated and irrelevant. 2. Whether Mr Austin was still using alcohol at a hazardous level. 3. An analysis of his intimate partner relationship. 4. An analysis of his peer group and, for example, the extent to which it may support anti social attitudes. 5. A risk assessment in accounting for his past reputation as part of the criteria for a fit and proper person.
17. Dr Lennings expressed the view that Mr Stoker's report lacked a coherent argument to support his opinion. He thought that the issue as to why Mr Austin should be thought fit and proper, given that his last charge was in 2013, needed to be argued.
18. The Respondents also presented confidential criminal intelligence to the Tribunal at first instance. Some of that was in redacted parts of the security determination, but most was in a separate bundle consisting of 34 documents. We have examined this material. We deal with its significance when considering the grounds of appeal below.

The decision of the Tribunal below

1. The Tribunal considered the test of fit and proper person by reference to the well known decisions in Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 and Sobey v Commercial and Private Agents Board (1979) 22 SASR 70.
2. The passages from the authorities set out by the Tribunal (at [26]-[30]) emphasised: 1. The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. 2. "Fit" with respect to an office is said to involve honesty, knowledge and ability. 3. The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. 4. Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. 5. In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question. 6. The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.
3. As to context for the meaning of fit and proper, the Tribunal member referred to his earlier decisions in Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211 and Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 with respect to the mischief to which the Act was directed. Here, by reference to the second reading speech to which we have earlier referred, the Tribunal identified the legislature's concerns with criminal conduct connected to the tattoo industry, principally through the activities of outlaw motorcycle gangs.
4. The Tribunal examined the evidence, including that given by Mr Austin and by his partner. In respect of Mr Austin's evidence, the Tribunal noted that: 1. In cross-examination, Mr Austin conceded his criminal history, but stated it occurred when he was young (at [37]). 2. Mr Austin agreed there was a bad period in 2013 when he experimented with "Ice", but he was now clean (at [40)]. 3. Mr Austin said that alcohol leads him to becoming paranoid so he no longer drinks heavily (at [41]). 4. Mr Austin said he did not deal with OMCGs (at [43]).
5. The Tribunal noted that Mr Austin had built a steady business and there was no suggestion of any infringements in relation to the operation of the tattoo parlour (at [35]-[36]).
6. Consistently with the thrust of Mr Austin's case, it is clear that in arriving at the conclusion to affirm the decision to refuse the licence application, the Tribunal gave primary focus to the issue of rehabilitation (at [75]). The criminal record was treated as a strong "prima facie indicator" of lack of fitness and propriety (at [75]).
7. As to the issue of rehabilitation, it seems that two of the matters that were of importance to the Tribunal were the most recent conviction in 2013 involving Mr Austin's use of "Ice" (at [74]) and the evidence from the psychologists. As to the latter alone, it was implicit in the Tribunal's acceptance of Dr Lennings' criticism of Mr Stoker's report (at [78]) that the Tribunal was not satisfied that Mr Austin had rehabilitated.
8. In the mind of the Tribunal, further support for such conclusion was derived from the heavy reliance Mr Stoker placed upon the accuracy of the information supplied to him by Mr Austin and the serious doubt about the accuracy of some of that information arising from the Tribunal's analysis of the confidential criminal intelligence (at [78]).
9. Finally, one further matter contributed to Tribunal's conclusion to affirm the decision not to grant a licence. The Tribunal found that there was a lack of candour by Mr Austin in his evidence (at [83]). It is apparent that this conclusion flowed from the conclusions the Tribunal drew from the criminal intelligence and that this explains the generality with which this finding was expressed.
10. We do not agree with the submission from Mr Maspero, the solicitor for Mr Austin, that this latter ground was the sole reason for the Tribunal's decision. In our opinion, that is not a sensible conclusion in light of the reasons as a whole and, particularly, in light of the central reasoning set out in paragraphs [74]-[84].
11. Overall, it was implicit from the reasons that the Tribunal was not satisfied that, at the present time, Mr Austin was a fit and proper person to hold a tattooist licence or that it was in the public interest that he do so. Hence, it followed that the decision to refuse a licence should be affirmed.

Grounds of appeal

1. Mr Austin's grounds of appeal came to be: 1. That the decision was harsh and unreasonable in that Mr Austin has a family to support and the only viable income he earns is from practising as a tattooist. 2. That the fit and proper person test applied in the decision was harsh and unfair when compared to other industries such as the police force, legal profession, medical profession and teachers. There should be a lower standard applied to a licence for a tattooist than the standard applied in those fields. 3. The conclusions in paragraph 75 of the reasons of the Tribunal concerning fitness and propriety based upon Mr Austin's criminal record were inadequate. 4. The criminal intelligence material, in so far as it concerned Mr Austin's involvement with OMCGs, was irrelevant given that it was common ground that it did not concern activities of any declared organisation under the CCOC Act or any controlled member of such an organisation.

Limitations on appeal

1. For reasons explained below, it does seem to us that each of these grounds of appeal raises, or arguably, raises a question of law. In respect of an appeal on a question of law, Mr Austin has a right of appeal: s 80(2)(b) of Civil and Administrative Tribunal Act 2013 (NSW).
2. By his Notice of Appeal, Mr Austin sought leave to appeal as to the merits of the decision. However, in doing so, incorrectly, he addressed the specific requirements for leave to appeal from a decision of the Consumer and Commercial Division. Having done so, he contended that leave to appeal should be granted because the decision was not fair and equitable - one of the alternative requirements set out in cl 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act concerning leave to appeal from a decision of the Consumer and Commercial Division.
3. In addition to a right of appeal on any question of law, Mr Austin could appeal, with the leave of the Appeal Panel, "on any other grounds": s 80(2)(b). As to this, the general principles as stated in Collins v Urban [2014] NSWCATAP 17 at [84] are applicable: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];………

Ground 1 - Harsh and unreasonable, financial impact on Mr Austin

1. This ground can be seen as raising a question of law on the basis that it contends that there was a failure to take into account a relevant consideration with respect to what was akin to a discretionary judgment.
2. We agree with the submissions of the Respondents that financial disadvantage or hardship is not relevant to the assessment of a person's fitness and propriety: see Singh v Roads and Maritime Services [2015] NSWCATOD 66 at [36]; Khan v Roads and Maritime Services [2014] NSWCATOD 23 at [25]; Lal v Director-General Department of Transport [2001] NSWADT 74 at [47].
3. Accordingly, we reject this ground of appeal.

Ground 2 - Fit and proper test applicable to a tattooist

1. This ground can been seen as raising a question of law on the basis that it was contended that the Tribunal below applied the wrong test - it applied a rigid test that failed to adjust to the activities the subject of the licence.
2. In support of this ground, Mr Maspero's argument included: 1. The Tribunal addressed the fit and proper test, but made no reference to applying a different standard to a different profession. 2. The Tribunal gave no reasons that addressed Mr Austin's fitness and propriety as a tattooist, bearing in mind that there was no evidence that his criminal activities were engaged in whilst practising as a tattooist.
3. We do not accept this ground of appeal.
4. In the first place, it is plain that the Tribunal had in mind the relevance of the activities in which Mr Austin would be engaged to the fit and proper test. That it did so, appears from the passages from the authorities to which the Tribunal referred which emphasised that the test takes its meaning from, amongst other things, the activities in which the person will be engaged. It also appears from the attention that the Tribunal gave to the issue of the connection between Mr Austin's activities as a tattooist and his relationship with OMCGs.
5. We accept that the standard of character required of a tattooist does not equate with the high standard of character required of, for example, a legal practitioner. However, in our opinion, qualities of good character are introduced as an aspect of the licence assessment by the legislature's adoption of the commonly used expression "fit and proper person". They bear upon the obvious consideration of public safety.
6. Secondly, as we have already explained, there was no real issue in the proceedings that, in the absence of rehabilitation, Mr Austin's criminal history, including the nature and seriousness of it, leaving aside any relationship with OMCGs, stood in the way of a successful application by him for a licence. In our opinion, it was correct that it did so because it showed a disregard for the law and the rights and safety of others which was inconsistent with his designation as a fit and proper person and warranted a lack of confidence that he would conduct himself as a tattooist safely and honestly. In our opinion, of prime concern in this regard was the 2013 conviction involving the use of "Ice".
7. Mr Austin also sought to derive support from a large bundle of materials, including extracts from Wikipedia, press clippings, journal articles and a report from the Human Rights Commission with a view to showing the standards applied in other industries to criminal history, including drug use, in the application of the fit and proper test, which it was said supported the conclusion that Mr Austin was a fit and proper person to obtain a licence.
8. Leaving aside any issue concerning fresh evidence on appeal, this argument is misconceived. Most significantly, it overlooks the need to determine the content of fit and proper by reference to the activities in issue - the point advanced by Mr Austin in respect of his argument under this ground that we first dealt with. Secondly, each case is highly fact dependent and the material presented by Mr Austin does not provide a sufficiently reliable source from which to arrive at any sensible conclusions.

Ground 3 adequacy of reasons about criminal record and its significance

1. On first impression, it may seem that the reasons do not include a sufficient evaluation of the criminal history in support of the conclusion concerning a lack of fitness and propriety in paragraph 75 of the reasons. On this question, the Respondents supplied detailed supplementary written submissions: at [16] - [52]. Having read those, as well as those of Mr Maspero in reply, which take no issue with the Respondents' account of what occurred in the course of the hearing at first instance, we accept that the reasons were sufficient in a context where the real issue in contest between the parties concerned the question of rehabilitation.
2. As the Respondents submit, it is also, probably, correct that the Tribunal's expression of agreement with the Respondent as to the impact of the criminal record on fitness and propriety was a shorthand acceptance of the contentions in the security determination, to which we have referred above.

Ground 4 - relevance of the criminal intelligence

1. At the outset, although not a matter the subject of any application or argument on behalf of Mr Austin, it is worth noting the disadvantage suffered by Mr Austin in exercising such appeal rights as he had in relation to any matter arising out of the Tribunal's use of the criminal intelligence. It was virtually impossible for him to consider and, if appropriate, formulate any appeal issue because the reasons and the information itself was kept confidential from him pursuant to the legislative requirement to do so.
2. In these circumstances, we have scrutinised the confidential reasons concerning this information, as well as the intelligence information referred to in those reasons. In this case, this was a manageable and comprehensible task. In other cases, it may be desirable, in the interests of justice, to give consideration to the appointment of an independent lawyer to assist with an assessment and presentation of any argument, as has been considered in analogous situations : see New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200 at [20] and the cases there cited at [21] - [31], including the case which addressed the role for such a lawyer in connection with the review by the predecessor of the Tribunal of criminal intelligence, namely Commissioner of Police v Sleiman & AVS Group of Companies [2011] NSWCA 21: see at [183]-[185] and [188]-[189] per Sackville AJA.
3. Doing the best he could, Mr Austin's point on appeal about the criminal intelligence was that it must be irrelevant. As we understood it, his argument was that to the extent the material established a relationship between Mr Austin and OMCGs, then that was of no consequence to Mr Austin. This was because "outlaw" could have no adverse implication in circumstances where there were no motorcycle clubs declared under the CCOC. To the extent that the material was used to try and establish Mr Austin's involvement in the criminal conduct of motorcycle gangs, we understood the argument to be that this was implausible. If there was any such material, the Commissioner of Police would have used it to have the gang made a declared organisation, but this had not occurred.
4. We do not agree that all of the material was irrelevant. This is because we agree with the Tribunal at first instance that some of the criminal intelligence casts serious doubt upon the accuracy of some of the information Mr Austin supplied to Mr Stoker and that it established a lack of candour in Mr Austin's evidence to the Tribunal. We refer to this aspect further below.
5. We recognise that the Tribunal was cautious about the use it made of the criminal intelligence material, and that there appears to be legislative approval for the Tribunal to have regard to criminal intelligence held in relation to Mr Austin (see s 19(3) of the Act). However, in our opinion, the Tribunal did err in relation to one aspect of this part of the reasons, as outlined below, in paragraphs that are not for publication. Nevertheless, as we said in the overview, this concerned only one element of the reasons that provided additional, but not essential, support for the decision. In the circumstances, to the extent that leave to appeal to raise such grounds was required, we would not grant such leave.

Outcome of the appeal

1. For the above reasons, leave to appeal should be refused and the appeal should be dismissed.

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: 04 August 2016