Avnell v Commissioner for Fair Trading

The licensing regime

1. The licensing regime established by the Act was set out in detail in the decisions of Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 (Smith) and Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211 (Zahra).
2. In summary, from November 2013 the Act introduced licensing requirements for operators of tattoo parlours (operators) and, relevantly, tattooists. It is an offence for a tattooist to fail to have the requisite licence: s 7 of the Act.
3. A person may apply to Fair Trading for a tattooist licence pursuant to s 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.
4. Pursuant to s 14(b) of the Act, upon receiving an application for a licence, Fair Trading is to refer the application to the Police Commissioner (Commissioner), for 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 provides that the Commissioner is to inquire into, 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.
5. A licence must not be granted if the Commissioner makes an adverse security determination in relation to an applicant: s 16(3)(c) of the Act.

Basis of the refusal

1. In circumstances where, in accordance with s 14 of the Act, Fair Trading has referred a licence application to the Commissioner for 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, and an adverse security determination has made, Fair Trading must refuse to grant the licence.
2. Following an adverse security determination (ASD) in respect of the Applicant, Fair Trading was obliged to refuse his application.

The review

1. A person whose application for a licence under the Act has been refused may apply to this Tribunal for an administrative review of that decision: s 27(1) of the Act.
2. On review, the Tribunal is not bound by the security determination and must make a fresh determination, on the basis of the information before it: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 (Austin) at [37].

Issue

1. Is the Applicant a fit and proper person to be granted the licence and would it would be contrary to the public interest for the licence to be granted?

The Respondents' position

1. The Respondents' submissions were that the following considerations are relevant to the suitability of a person to be granted a licence under the Act: 1. the nature, seriousness and frequency of any criminal offences in respect to which the applicant has been charged or convicted; 2. the applicant's reputation; 3. the likelihood the Applicant will re-offend or be the subject of further complaints: see Saadieh v Director General, Department of Transport [1999] NSWADT 68 per Hennessy DP which applied in Smith at [39], and 4. any other relevant matter.
2. The Respondents relied on material relating to the Applicant's criminal history and the ASD. Some additional material was provided to the Tribunal on a confidential basis and has not been supplied to the Applicant. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW)(CAT Act) applies to that material.
3. The Respondents referred to the Applicant's criminal history. Prior to obtaining his first licence under the Act, he had been convicted on 6 October 2004, when aged about 20, of aggravated dangerous driving occasioning grievous bodily harm pursuant to s 52A(4) of the Crimes Act 1900 (NSW) and was sentenced to a period of 2 years, 3 months' imprisonment with a non-parole period of 10 months ending on 5 August 2005. In summary, the Applicant had crossed to the incorrect side of the road and collided with the front of a bus. As a result of the collision one of his passengers sustained severe internal injuries, underwent emergency surgery for a ruptured liver, kidney and other injuries and remained on life-support for two weeks and in hospital for a total of five weeks, having also suffered a broken back and ribs. The Applicant's other passenger suffered serious fractures to her left ankle and underwent surgery during which metal plates and pins were inserted. She also sustained fractured ribs and a fractured right hand and was hospitalised for five days. The Police Facts disclose that the Applicant had consumed numerous alcoholic drinks immediately prior to the collision and he presented with a blood alcohol concentration of 0.186 grams of alcohol per 100 millilitres of blood, well in excess of the prescribed concentration of alcohol.
4. The ASD includes the Applicant's Traffic Record Report which records multiple traffic offences, the majority of which relate to speeding. Nearly every year since commencing as a learner driver in 1999 the Applicant was found to be in breach of one or more road rules.
5. The ASD also sets out details of Police enquiries in April 2008 following a report by the Applicant to Police of a domestic disagreement. The Applicant was found by Police to be in possession of a double barrel shotgun for which he had no licence and which was seized by Police. No charges were laid.
6. The ASD has details of Police enquiries in December 2008 over the seizure of a firearm belonging to the Applicant's father (a 303 rifle) and ammunition, which resulted in his father being charged. The Applicant provided a statement to Police that he knew that his father was storing an unsecured firearm at his home. The firearm had belonged to the Applicant's late grandfather. The Applicant was found in possession of various ammunition for which he had no licence, but no charges were laid against him.
7. The Applicant's criminal history after the issue of his licence indicated that on 24 November 2014 he was convicted of five offences. Two related to possessing and cultivating four cannabis plants and a small quantity of dried cannabis for which he was fined $600 in each matter. On another charge - possessing drug paraphernalia (a bong) - no penalty was imposed. Two other charges related to firearms offences - he did not have a licence for, nor did he have secured, an air rifle which he had been given by his grandfather some years beforehand and which he believed to be not functioning. He was fined $200 in each of the firearms matters.
8. From the time his (tattooist) licence was first issued in 2014 there were three traffic offences - two for speeding and one for driving while his licence was suspended.
9. In addition to the above, there are records amongst the ASD material relating to Police searching the Applicant for drugs in July 2016 at the tattoo parlour. No drugs were found and no charges were laid.
10. Evidence was given by Senior Constable Kaluski of the Raymond Terrace Police gave evidence that there are 3 licenced tattoo parlours in Raymond Terrace and that routine public health inspections are conducted. He noted that in June 2016 the Applicant complained about another person who he said was conducting tattoos whilst unlicensed.
11. [NOT FOR PUBLICATION]
12. The Respondents submitted that since the grant of his first licence in March 2014 the Applicant has demonstrated a consistent failure to comply with licensing regimes directed to the protection of the public interest, public safety in particular. The Applicant's repeatedly being found in possession of firearms and/or ammunition, together with his long history of illicit drug use and disobedience of other licensing regimes (driver licence) and public safety regimes (road rules), demonstrates that the Applicant is incapable of complying with the rules. The Applicant's disobedience of licensing laws, it was submitted, casts as disingenuous his complaints that others have failed to comply with licensing regimes or are conducting themselves in contravention of the law. The Applicant's laying the blame for what he says is his recent resumption of illicit drug use at the feet of the NSW Police Force also reflects poorly on the Applicant's personal responsibility and therefore his character and integrity. These are matters relevant to the Applicant's reputation and trustworthiness and the likelihood that he will continue to break the law with respect to illicit drug use in particular.
13. Further, it was contended that the Applicant has a history of non-compliance with other licencing and regulatory schemes that are aimed at ensuring public safety.
14. Much time at the hearing was spent exploring possible issues of the Applicant having in fact been the operator, and not merely a tattooist, at the studio, and that he had permitted an unlicensed tattooist, Ms Jenkinson-Marsh to work at the studio. Following evidence from the Applicant's mother, the licensed operator, and Ms Jenkinson-Marsh, those contentions were not pressed.
15. There was also considerable evidence about the process which led to the issue of the licence in March 2014, and whether the Applicant had lodged his application within time. I do not consider it necessary to reproduce that evidence, including that of Mr Flematti, a Licensing Advisor with Fair Trading, and Ms Palmer, Acting Manager, Assessment and Prevention, Security Licensing and Enforcement Directorate, NSW Police, because, ultimately, the licence was granted.

Applicant's evidence

1. The Applicant, who has been tattooing for about 15 years, provided a statement dated 15 November 2017 and gave evidence.
2. The Applicant did not deny the criminal history set out above. As to the aggravated dangerous driving conviction in 2004 the Applicant said that he was intoxicated and should not have been driving. He acknowledged that his three friends who were in the vehicle were seriously injured. He said that he feels remorse for what he did and noted that he had pleaded guilty at the earliest opportunity.
3. The Applicant said that he had not used cannabis between 2002 and 2012. Then, in 2013, he left his former tattooist job because the owner was a known bikie and he wanted to get away from any association with bikies, especially as the new tattoo parlour laws were coming in; he said that Police had told him he would not get a licence under the new laws. He gave evidence about his exasperation with Fair Trading's procedures when the Act was introduced, but, as discussed above, the licence was ultimately issued. He said he complained to Police about at least one unlicensed tattooist who was operating in his area.
4. As a result, he was very stressed, as tattooing was his chosen career and he had responsibilities for one child and another was on the way. He started using cannabis again - every 4-5 days, from 2012 until the raid on his home in October 2014.
5. As to the charges in 2014 he said that the cannabis was being grown for his own use. He said he has not used cannabis since. As to the air rifle police located he said it had been given to him by his (now deceased) grandfather when he was 14 as a memento.
6. He said that in July 2016 Police came to the tattoo parlour with a search warrant, and accompanied by a drug dog. No drugs were found and no action was taken against him.

Character evidence

1. Statements were filed by Councillor Peter Kafer of Port Stephens Council, and Michel Lumier, the Applicant's former martial arts coach. Both wrote that they were aware of the Applicant's current circumstances. Councillor Kafer referred to the Applicant's willingness to help others, and Mr Lumier wrote of the Applicant's professionalism in kick-boxing until his retirement in order to preserve his hands for his tattoo art. Kylee Walker (who is Ms Jenkinson-Marsh's mother), Erika Marshall, another tattooist, Leane (whose surname was indecipherable), and Cloe Mulder, all wrote of his professionalism, dedication to his art and strict adherence to high hygiene standards.

Fit and proper person

1. The meaning of "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 distilled by the Tribunal's Appeal Panel in Austin, following Montgomery SM's reasons at first instance, as follows: 1. The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. 2. "Fit" with respect to an office is said to involve honesty, knowledge and ability. 3. The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged 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 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.
2. While there is a focus in the legislation and its administration on the involvement of gangs in the tattoo industry, that is not to the exclusion of other concerns about criminality: Wright v Commissioner for Fair Trading [2017] NSWCATAD 98 at [118].
3. The Applicant had previously been assessed by the Commissioner on 14 February 2014 as a fit and proper person to be granted a tattooist licence and it was concluded that it would not be contrary to the public interest for a tattooist's licence to be granted to him. On the basis of that assessment the Applicant was granted a tattooist licence on 6 March 2014.
4. I agree with the submission on behalf of the Applicant that, by necessary implication, that decision took full account of his 2004 conviction and that he had served a term of imprisonment as a consequence of that conviction, and the two firearms events in 2008 referred to above which resulted in no charges against the Applicant. Similarly, it is also presumed that traffic offences since he obtained his driver's licence in 2000 and up until the licence was issued were also taken into account.
5. The Respondents submitted that the Applicant is now not a fit and proper person to hold a licence. The Respondents' contentions refer to the Applicant's criminal history as demonstrating an unwillingness to comply with the law. The Respondents also submit that it would be contrary to the public interest for him to now hold a licence.
6. I agree with the submission on behalf of the Applicant that the test to be applied includes an assessment whether there has been conduct in the past (including criminal conduct) which may bear on the matters which the licensing requirements of the particular legislation are designed to regulate and protect. Although it was submitted that the Tribunal should also assess if the Applicant is qualified to undertake and is capable of undertaking the work to which the licence relates, it is not the Tribunal's role to examine his qualifications as a tattooist, namely whether he has the technical skills to undertake the role.
7. Necessarily, it seems to me, an assessment might emphasise, in the case of a licence renewal application, an applicant's conduct from the time the licence was last issued. It is useful to note that the Applicant has been a tattooist for some time, including before the introduction of the Act. There was no contention that any of the Applicant's offences were related to tattooing or occurred at his place of work as a tattooist, nor that any of the offences are connected in any way with organized crime or outlaw motorcycle gangs. In fact, the Applicant's evidence, which was uncontested, was that he sought to remove himself from a bikie-associated parlour prior to the introduction of the Act. Subsequently, his licence was granted following the introduction of the Act. There was also no evidence that his role as a tattooist - namely compliance with various health and safety obligations associated with the role - has been in question since that time, despite regular inspections by Police.
8. Following the issue of his licence there were convictions in 2014 arising from the cultivation, possession and use of cannabis and the two convictions relating to the air rifle found in his garage. I observe that notwithstanding those convictions, it was not until he sought renewal of his licence in 2017 that these convictions were considered sufficiently heinous to impact upon his licence. While counsel for the Respondents informed me that there was not a continuous review of licences to monitor if convictions or other relevant conduct had occurred during the currency of a licence, I would consider it unlikely, if there were well-founded concerns about his ongoing licence, that is would have been left until the time of his renewal application for action to be taken; it was open to Fair Trading to suspend or cancel his licence: s 25 and s 26 of the Act. Failure to have taken such action is not determinative, but may reflect a systemic issue, the consequences of which may be acceptable to the Respondents.
9. The Applicant in this case has a criminal record. He does not dispute his criminal history and says that he is ashamed of it. I do not agree with the Respondents' characterisation of his history as one where he has been repeatedly found in possession of firearms and/or ammunition, especially in circumstances where he has been prosecuted for only one instance. Neither do I accept that since the grant of his first licence he has demonstrated a consistent failure to comply with licensing regimes directed to the protection of public safety. It is true that he has some convictions, but it is overstating the position to describe it as the Respondents have done. Further, while there is evidence of a long history of cannabis use over the years, there have been some lengthy periods of abstention, and his evidence, which I accept, is that he has used no drugs since 2014. I do not consider that there is any reason to suggest he will resume any drug use. The fact that the Applicant was subjected to a drug search by Police in 2016 when nothing was found adds nothing to the enquiry and is disregarded.
10. The Respondents submit that together with his drug use, and disobedience of other licensing regimes (driver licence) and public safety regimes (road rules), demonstrates that the Applicant is incapable of complying with "the rules". I have found his drug use to be in the past, and there is no evidence of non-compliance with the tattoo safety rules. A contention in Dyas v Director-General, Fair Trading & Commissioner of Police [2014] NSWCATAD 223, to which the Applicant's counsel referred, was that a reasonable person attending a tattoo parlour for a tattoo by the Applicant would be unaffected by knowing about the driving offence matters relied upon by the Respondents.
11. Further, the administrative requirement on tattooists is minimal and appears limited to recording the date a procedure is performed, the name and licence number of the tattooist and the amount charged and payment method. A history of non-compliance with traffic legislation, does not demonstrate that the Applicant will not comply with the relatively straightforward administrative obligations as a tattooist he has under the Act. I do not consider that the Applicant poses a risk to his clients.
12. The Respondents submitted that the Applicant's disobedience of licensing laws casts as disingenuous his complaints that others have failed to comply with licensing regimes or are conducting themselves in contravention of the law. His laying the blame for what he says was his resumption of illicit drug use at the feet of the NSW Police was said to reflect poorly on his personal responsibility and therefore his character and integrity. The Applicant gave evidence about his frustration with procedures with the introduction of the licensing regime, when his livelihood was likely to be affected.
13. As was pointed out in the Applicant's submissions in relation to the cannabis/bong incident of 2014, there is nothing to suggest that the material found was otherwise than for the Applicant's private use, or that he was involved in any organised crime. In relation to the firearms charges arising out of the same search of his property 2014, the evidence is that the firearm in question was an inoperative air rifle which the Applicant was given as a boy. The penalties imposed were at the low end of the range.
14. Further, there is no evidence that the Applicant's use of cannabis has continued following the charges. In fact, he emphatically denies that he now uses cannabis. There is nothing to suggest that the Applicant uses any other illicit drugs, which would suggest the incident has had the necessary deterrent effect upon the Applicant to prevent any such future contravention. It is now 3½ years since that occurred and the Applicant has had no criminal charges since.
15. [NOT FOR PUBLICATION]
16. The Applicant was concerned that some unlicensed tattooists continue to operate in the area. While this may be driven by commercial interest, this nonetheless suggests to me that he is adamantly in support of the regulatory scheme.
17. The applicant is seeking a licence as a tattoist, not as a tattoo parlour operator. He would thus be working under the supervision of an operator, his mother, who on the evidence, attends the parlour about once a week or fortnight. It is in her interest to ensure that he continues to comply with legislative standards. While one would have preferred to see a longer period of incident-free living, I am comfortably satisfied that, at present, he meets the fitness and propriety criterion required for a tattooist licence, and so I find.

Public interest

1. The phrase "public interest" is not defined in the Act or the regulations. It is an 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: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. It is a wider enquiry than the question of the fitness of a particular applicant. Necessarily, the public interest will be informed by the legislation under consideration.
2. By all accounts the Applicant is an able and experienced tattooist, who is passionate about his art. References show a well-regarded member of community who carries out his work as a tattooist with proper regard for his clients' health and safety.
3. When considering fitness and propriety and the public interest, an applicant's private interests, such as in obtaining access to a reliable income stream, receive no weight: Austin at [72] - [73]. Nevertheless, matters directly affecting the individual may have wider public interest relevance. From the Applicant's evidence and that of his mother, I accept that he is a reliable day-to-day manager of her business, which appears to be operating successfully. There is also a public benefit in a person engaging in gainful employment rather than being kept by the taxpayer: see Allen v Commissioner of Fair Trading [2015] NSWCATAD 273 at [70].
4. On balance I therefore conclude that it would not be contrary to the public interest for the applicant to be granted a tattooist licence. Given his record and the misgivings expressed in the ASD, however, I would suggest to the Applicant that it is in his interest to ensure that he strictly complies, not only with all his obligations as a tattooist, but with the law generally. Any future contraventions are unlikely to be viewed leniently.

Orders 1. The decision under review is set aside 2. In substitution for the decision under review, the Applicant's application for a tattooist licence is granted.

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: 16 March 2018